Important development on protective orders
The Court of Appeals issued today a very important case on domestic protective orders: Tons vs. Bley. Many of us attorneys have thought application of the domestic protective order was too broad, and the impact of the order too severe. It would be one thing for courts to have been authorized to impose limits, including handgun prohibitions, on those convicted of criminal offenses, but the way the statute is written, harsh restrictions, including firearm bans, can come down for conduct that falls far short of a crime.
Also, the statute can provide great leverage to one party when a relationship breaks up. A protective order can be obtained on mere allegation of threatening, and then used to keep the allegedly dangerous person from seeing their kids. Under the statute, the fact that lots of time passed between an act of violence and the application for the order cannot be the basis for denying the order. We have had cases where an order was issued during a divorce, where the acts are over 10 years old, and the parties had lived together as man and wife for years before the order was issued.
The court today cleared up two major issues:
The protective orders pertaining to Barbara and Brian present a serious problem. There is no evidence that Tons ever threatened Barbara, and she admitted that he did not. Any acts of violence by Tons against Barbara occurred during their marriage that ended in 1996. While the court may not deny the petition solely by reason of the lapse of time between the act of violence and the filing of the petition, Ind. Code § 34-26-5-13, we may consider remoteness in determining whether a sufficient threat exists to warrant the issuance of a protective order. We believe that unspecified acts of violence occurring eight years previously are a not sufficient basis for the issuance of a protective order. Therefore, we must reverse the protective order as it pertains to Barbara. Likewise there is absolutely no evidence of any acts of violence, or threats, by Tons toward Brian. The protective order as to Brian is reversed.
The second issue they address is the standards used to evaluate whether to issue the firearm ban. In this arena, in my assessment, the court did not give us much help:
That portion of the court’s order regarding firearms, ammunition, and deadly weapons raises more concerns.
. . . .
Here, there is no evidence that Tons committed any of the types of acts Garmene held sufficient to warrant issuance of the order that the respondent not possess or use any firearms, ammunition, or deadly weapons. Therefore, we reverse that portion of the protective order.
The view of the dissent is troubling here:
In my view, under the current scheme all that is needed to support an order prohibiting the possession of firearms or deadly weapons is a finding, by a preponderance of the evidence, that the respondent poses a credible threat to the safety of a petitioner or member of the petitioner’s household, which is identical to what is needed to order the issuance of a protective order in the first place. There need be no separate evidence and finding specifically relating to firearms and weapons and a substantial threat of serious bodily injury. In this particular case, I am convinced in any event that given Tons’ previously demonstrated violent tendencies, the trial court may reasonably have concluded that prohibiting Tons from possessing firearms or dangerous weapons was necessary to diminish the threat of violence to Travis, Barbara, and Brian. I would affirm the trial court’s order in its entirety.
Troubling, because while the majority found that the petitioner did not even present enough evidence to justify a protective order, the dissent thinks she proved Tons had “previously demonstrated violent tendencies” justifying denying him the right to possess firearms.
It will be interesting if this one ends up in front of the Indiana Supreme Court.
