In Ohio, It's Difficult To Confiscate Guns From Violent People

Jun 14, 2018

In Ohio, it only takes one act of violence to make you eligible for a civil protection order if the courts agree there’s a clear and credible threat of physical harm or past violence. Not all protection orders deal with guns, either. Some orders just tell people to stay away from their accuser.

But there’s a problem: Sometimes, offenders avoid being served their protection orders.

“The trick with that is it has to be served,” Murray says. “We can’t hold something against somebody if they haven’t been served. That’s a hard thing to do, particularly if someone dodges service.”

Franklin County Sheriff’s Deputy Andrew Lucas says people dodge service frequently. Last year, the office handled around 60,000 orders.

“People will avoid service or try to avoid service all the time. The problem is they’re civil orders, not warrants,” Lucas says. “So we can knock on the door. We can’t make them open the door.”

Even if offenders are served, it can still be hard confiscating offenders’ guns.

“We inform the individual of what the order says,” Lucas says. “If they look me in the face and say, ‘I don’t have any firearms,’ then there’s not a whole bunch I can do about it. I can’t go searching their house with this order.”

In the wake of several mass shootings, some states, including Ohio, are considering adopting laws letting courts seize guns from people at risk of committing violence.  Many question whether the “red flag” restraining orders can prevent violence.

One way to possibly predict their effectiveness is to look at how other restraining orders work. Ohio’s current civil protection system already allows for gun seizures, but some lawmakers want to make amends to the process.

What Is A Protection Order?

There are a range of protection orders you can get in Ohio, and they’re based on your relationship to the offender.

According to the Columbus City Attorney’s website, a "Protection Order is granted by a Judge and orders the defendant to stay away from you. The defendant should not enter your home or approach you at your place of work or school. If the defendant violates the protection order, a new charge could be filed and the defendant could be arrested.”

But according to local judges and law enforcement, protection orders are difficult to implement.

The Franklin County Court of Common Pleas can grant several types of civil protection orders. But enforcing gun confiscations is difficult.
Credit Adora Namigadde / WOSU

At the Court of Common Pleas, the Domestic Relations Court may issue a "civil protection order" if you are a family member of or live in the same household as the defendant.

If you're not, then you can request a "temporary protection order" or "criminal protection order" through the Municipal Court - but only if the defendant is charged on your behalf with felonious assault, aggravated assault, aggravated menacing, menacing by stalking or aggravated trespass.

Anne Murraydirects the Domestic Violence and Stalking Unit for the Columbus City Attorney, says protection orders are enforceable for up to five years.

“If you’re a family member under the law, you can go to domestic relations court and get a civil protection order,” Murray says. “That orders someone to stay away for five years and is extremely powerful. (Temporary protection order) is also eligible for up to five years and powerful but not as powerful as a CPO, which can decide custody and support, those kinds of domestic relations issues.”

Each order says a person should not have weapons. According to Murray, the orders are enforceable by a new criminal charge called "violation of protection," a first-degree misdemeanor charge. Multiple violations of domestic violence is already a felony under Ohio law.

Protection orders differ from restraining orders in both form and function.

“A restraining order is a legal document, and it is only through Domestic Relations Court. It’s only when people are getting a divorce. It does say ‘stay away,’” Murray says. “But it basically is, ‘Don’t vacate the bank account,’ all this, and it’s enforceable only by the domestic relations judge that issued it.”

Challenges With Enforcement

Since the protection order is not a warrant, police have to take offenders who claim not to have weapons at their word - they can't search the premises.

For many advocates, that's not enough. Murray wants language put into court documents that force people to turn over their guns or face actual consequences.

“We don’t have control over those civil protections and ordering them, but we would really like courts to start saying, ‘You have this weapon, we would like you to turn in that weapon by this day at this place,’” Murray says. “So that if they aren’t surrendered by that date there can be a violation of protection order.”

The city attorney’s office doesn’t issue civil protection orders. That’s done by judges, and Franklin County Judge Mark Hummer thinks protection orders already have enough teeth.

“Even if there’s not, the court can generate a separate order that says bond is condition on no acts of violence,” Hummer says. “Stay away from the prosecuting witness, no consumption of alcohol or drug abuse and no possession of firearms.”

Defense attorney Terry Sherman was assistant Franklin County Prosecutor for six years and deals with domestic violence cases regularly. He says another obstacle to enforcement is that victims sometimes drop protection orders or decline to pursue charges.

“It’s not always a she, but lets say she’s gonna be reluctant to go forward. She doesn’t want him locked up,” Sherman says. “She doesn’t want him convicted. She doesn’t want him to lose his job. They want in their own unartful way to try to work it out.”

When people can't work it out on their own, Sherman would rather see offenders go to a diversion program to correct their behavior than go to jail.

After the Parkland school shooting, Gov. John Kasich in March proposed a "red flag" law to enable family members, guardians or police to ask judges to temporarily strip gun rights from people showing warning signs of violence.

While state legislators debate that bill, HB 585, local governments are trying to fill in the gaps. A Columbus law taking effect next month makes it illegal for anyone who’s the subject of a protection order to possess guns.

In Cleveland, Judge Diane Palos wants to make people accused of domestic abuse say under oath what weapons they have and prove to the courts that the guns were turned in. That proposal has so far failed to make it before city council.