OIDV Project Of Michigan - Officer Involved Domestic Violence Project Of Michigan: 01012001 - 2001 VAWA/Violence Against Women Act AND Political Agendas

VAWA Posts:

Bush nominees pose threat to social justice

Daily Hampshire Gazette (Northampton, MA)

To the Editor

January 22, 2001

https://infoweb.newsbank.com/

We are writing to express our deep concern over the nominations of John Ashcroft for attorney general and Tommy Thompson for secretary of Health and Human Services. In light of these appointments, we seriously question the commitment of the incoming Bush administration to justice and fairness.

The Men's Resource Center of Western Massachusetts is dedicated to stopping all forms of oppression, including discrimination and violence against women, sexism, racism, and homophobia in all their manifestations. Given Mr. Ashcroft's and Mr. Thompson's records, we are not confident that they will work effectively to enforce or support the Violence Against Women Act, ensure safe access to legal abortions, end racial profiling by police, stop job and housing discrimination and hate crimes against gays and people of color, reduce the incidence of gun violence, or protect minority voting rights. The attorney general's key role in screening and recommending candidates to the federal courts, including the Supreme Court, leads us to be especially worried about the long-term effects that his appointment may have on the cause of social justice in this country. The secretary of Health and Human Services has a particularly crucial role in enhancing the lives of the citizens of our nation, but as governor of Wisconsin, Mr. Thompson's "reforms" of welfare resulted in needy women and children being denied basic support, hardly a good gauge of someone being nominated for such a critical post.

Steven D. Botkin, Executive director - Men's Resource Center of Western Massachusetts Amherst

Michael J. Dover. Board chair - Men's Resource Center of Western Massachusetts Amherst

Ex-Blanding official guilty of gun charge

He reserves right to challenge law's constitutionality

Deseret News, The (Salt Lake City, UT)

January 31, 2001

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A former Blanding city councilman pleaded guilty in federal court Wednesday to the illegal possession of a firearm -- but still intends to pursue his constitutional challenge of the federal Violence Against Women Act.

Randee Lee Bayles' plea change was conditional on his ability to appeal to the 10th Circuit Court of Appeals a recent decision by U.S. District Judge Dale Kimball not to dismiss the case, according to prosecutor Brett Tolman.

Bayles argued that his constitutional right to bear arms supersedes the federal act, which prohibits a person subject to a protective order from possessing a firearm.

Bayles' former wife, Jeroldene Bailey, asked a San Juan County judge for a protective order in July 1998.

Court documents indicated that Bayles was physically abusive and threatened Bailey throughout their 27-year marriage.

The judge eventually ordered Bayles not to have any contact with his ex-wife.

Undercover federal agents met with Bayles while he was under that order, and he bragged about owning "approximately 100 rifles and between 75 and 85 handguns," according to the indictment.

Prosecutors say Bayles also admitted to the agent that "due to a protective order that his ex-wife had obtained from the courts, he had moved most of his guns to a location away from his house," but that he had some guns in his house for hunting and two handguns in his truck.

Bayles then showed the handguns to the undercover agent, according to court documents.

At the time of his ruling, Kimball said that no federal courts of appeal had dealt with a Second Amendment challenge to the Violence Against Women Act but that numerous circuit courts "have determined that the Second Amendment protects only a collective right on the part of the state to arm a militia -- not an individual right to bear arms."

With the exception of a case in Texas, Kimball said, every district court that has addressed the question has found the statute to be constitutional.

Bayles pleaded guilty to the possession charge to speed up the appeals process.

"He is acknowledging that there was possession and that yes, he was under a protective order," Tolman said. "But he'll argue that he thinks the law is wrong."

Court denies man's appeal on firearms charge

Deseret News, The (Salt Lake City, UT)

February 4, 2001

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A former Blanding city councilman who is fighting charges of illegal possession of a firearm in federal court was denied an appeal in state court.

Randee Lee Bayles says his constitutional right to bear arms supersedes the federal Violence Against Women Act, which prohibits a person subject to a protective order from possessing a firearm.

The Utah Court of Appeals on Thursday affirmed the protective order that a San Juan County judge granted to Bayles' ex-wife, Jeroldene Bailey, in 1998.

"Bailey presented sufficient evidence to support the trial court's determination that, following their separation, Bayles intentionally created in Bailey an imminent fear of physical harm," Judge William A. Thorne wrote.

Fellow Judge Russell W. Bench concurred, but Judge James Z. David dissented, saying the trial court judge had not made "findings on all the elements of the stalking statute."

On Wednesday Bayles pleaded guilty to the federal charge but has reserved the right to appeal to the 10th Circuit Court of Appeals in Denver.

Let's disarm the dangerous

Austin American-Statesman (TX)

February 14, 2001

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``Armed and dangerous.'' The phrase makes us cringe in fright.

The whole state knew such fear when the ominous phrase was applied to seven felons who escaped from a state prison late last year and killed a police officer.

It was the same phrase used to describe Jeremiah Engleton a year earlier, when he lured law officers to his home in Pleasanton with a 911 call and shot three of them dead. Engleton had been arrested for beating his wife and released hours before the gunfight with law officers, in which the 21-year-old shooter also died.

It was probably the phrase used in Katy to describe the violent man who on Monday killed three children and wounded a fourth, then used his gun to kill himself at a home in the Houston suburb. ``The incidents leading up to this appears to be family violence that goes back a long way,'' Katy Police Chief Robert Frazier said.

The police and the wife of Timothy Lee Rumsey knew for a long time that Rumsey hoarded guns and was dangerously violent, according to news reports of the slayings. But state law often leaves families, police and courts impotent to act on what they know.

That powerlessness could be lifted by legislation designed to disarm persons convicted of family violence crimes or governed by a court's protective order because of family violence. Sen. Royce West's sensible law-and-order proposal was approved 6-0 by the Senate Jurisprudence Committee on Jan. 29. It deserves to become law.

The federal Violence Against Women Act already prohibits gun possession by those under protective orders for domestic violence. But state law enforcement officials say enforcement would be easier if a state law were on the books.

The constitutionality of the federal statute is being tested in the federal courts, in a case from San Angelo. In that case, a husband under a restraining order in a divorce action allegedly brandished a gun at his wife and 6-year-old daughter. Courts will judge his claim that he was protected by the constitutional right to bear arms.

``Prior family violence is a top indicator of future violent behavior,'' says Nina Butts of Texans Against Gun Violence. She said Austin Police Chief Stan Knee suggested legislation similar to West's Senate Bill 199 in the fall of 1999 -- before the Pleasanton slayings.

The bill by West, D-Houston, and Sen. Leticia Van de Putte, D-San Antonio, was approved by a bipartisan 6-0 vote in the Senate committee. In the House, Rep. Toby Goodman, R-Arlington, has introduced a similar bill.

Ordinary citizens have difficulty understanding why people who the courts view as dangerous to other humans should retain rights to carry firearms. Too many women die from guns wielded by intimate partners who threaten and stalk for months or years before killing. Too many police officers die when they become entangled in crimes of domestic violence.

Those whose history shows them to be dangerous should have no right to remain armed.

Domestic-violence plan diluted, victims' advocates say

Air Force Times

March 12, 2001

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The voices of military victims are missing from a new national plan to end violence against women, said an advocate who helps victims of domestic violence in the armed services.

The recently published "Ending Violence Against Women - Agenda for the Nation" recommends changes in domestic violence policies and programs, and includes a section on the military's response to the issue.

The action plan was issued by the National Advisory Council on Violence Against Women, a group of experts who advise the Justice Department's Violence Against Women Office that was created by the 1994 Violence Against Women Act.

State and local communities are expected to look to this national agenda for guidance in dealing with domestic violence.

But critics claim several early revisions diluted the plan's military recommendations to place less emphasis on victims' safety, leaving them less effective than they could be.

"It was toned down substantially," said Christine Hansen, executive director of the Miles Foundation, a nonprofit organization that provides free assistance to victims of domestic violence in the military.

For example, in a previous draft from late 1999, the council made a strong statement about victim safety: "In day-to-day military operations, the safety of women must be given priority over concerns about the need for the offender to meet military readiness objectives."

That has been removed from the most recent draft.

The first draft recommended that defense officials ensure the services and installations deal with domestic violence in a consistent manner.

The revised draft says that defense officials should review the resources and funding of military programs to improve and standardize the response to violence against women throughout the services.

Jacquelyn Campbell, an associate dean at the Johns Hopkins School of Nursing and a member of the national advisory council that developed the action plan, said members were concerned about the first draft's tone, which was "not conducive to collaborative efforts."

"It sounded like we were taking them to task," said Campbell, who is also a member of the Defense Task Force on Domestic Violence. "Not everyone realizes what has been done by the military to address the issue of domestic violence."

Military readiness and victim safety are "twin elements," Campbell said. "One doesn't have to take precedence over the other."

The council was trying to support the defense task force with its recommendations, she said. "We're hoping the Defense Department, Department of Justice and the Department of Health and Human Services will work together."

Co-chairing the advisory council are the U.S. attorney general and the secretary of health and human services, who asked the council in 1998 to develop a comprehensive national plan to address the issue of violence against women.

The military recommendations are undergoing further changes, although it is unclear how substantial they will be. They were posted on the Internet as recently as last November but now have been removed.

"This is not problematic," Campbell said. "We partnered with the Defense Department and family advocacy in most of the writing. It got posted even before I'd done a final review."

"This is procedural. We do this all the time," said Linda Mansour, spokeswoman for the Department of Justice's Violence Against Women Office. She said the military section of the plan was removed because "someone asked to review it."

"Various departments" within the Defense Department are reviewing the military section, said David Lloyd, director of the Pentagon's family advocacy program, which maintains offices on military bases to intervene in cases of domestic violence and offer education and counseling programs to prevent such abuse.

Lloyd said he can't comment on the military section of the agenda because it is still an unfinished draft. Critics familiar with it, however, are concerned about further changes.

"This does not paint an accurate picture of what exists in the Defense Department," said the Miles Foundation's Hansen. "It reflects what's been heard from defense officials and lawyers, not victims or victims' advocates. The Department of Defense was significantly involved in the redraft process."

The Justice Department's Mansour said the action plan contains only recommendations and has no enforcement weight.

"They're recommendations to be used by different groups as guidance when they're forming responses to domestic violence," she said.

Here are some of the recommendations in the latest available draft:

** Review, evaluate, support and enhance the military's efforts to provide programs and services to deal with violence against women.

** Establish a complementary body to the Defense Task Force on Domestic Violence to address sexual assault in the military environment or when committed by service personnel.

** Develop policies and procedures to coordinate with civilian authorities and community-based service providers in cases involving military personnel and civilians living off base or committing offenses on base.

** Strengthen record keeping to ensure commanders are aware of service members who commit violence against women.

** Continue to train service members on "preventing unauthorized use of violence" throughout their active-duty careers, to include training designed to prevent sexual assault, domestic violence and stalking.

** Continue to provide ongoing training to all personnel involved in the investigation and prosecution of cases of violence against women.

** Prepare all commanders to work effectively with the Family Advocacy Program and military attorneys and make decisions that respond to the safety and security of victims, ensure offender accountability and stay consistent with the duties and responsibilities of the armed services.

** Train personnel, particularly those stationed overseas, on how to avoid getting involved with prostitutes who are victims of trafficking in women and how to identify and report trafficking and forced prostitution.

** Continue to offer "multi- disciplinary" interventions for victims and offenders through family advocacy, health and mental-health professionals and other providers.

** Develop interventions that are sensitive to ethnic and cultural differences. Careful attention should be paid to the relationship between the victim and the offender.

** Implement a coordinated community response to domestic violence, sexual assault and stalking, including all service providers in both the civilian and military communities that families turn to for support.

Outreach helps those desperately seeking answers

Attorney, others host immigration event in Pittsburg

Morning Sun, The (Pittsburg, KS)

March 13, 2001

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Ninety-five families from six different countries were served Monday by an immigration attorney sponsored by Pittsburg Area Community Outreach.

Suzanne Gladney, of Legal Aid of Western Missouri in Kansas City, Mo., visited Pittsburg along with Sr. Beatriz Zapata, immigration advocate from Salina. The two women spent the day answering questions from more than 100 people, representing six countries including Cuba, El Salvador, Mexico and Germany.

The Crawford County Health Department also offered vision screenings, and a local photographer was on hand to take photographs needed for documentation papers. There were displays of health information and a display from the Pittsburg Public Library, as well as a children's area complete with coloring books, stories and paper-bag puppets. All were set up in the lower level of Memorial Auditorium.

Gladney told the PACO Board of Directors that she hosts several such events around the region each year. The events provide immigrants a chance to get legal advice for free, and help them learn where to go next. At a recent event in Monett, Mo., she served more than 200 people.

"The benefit is that we have time to talk with people who have a lot of questions and who are desperately seeking answers," explained Pittsburg Police Chief Mike Hall, who is also the vice president of PACO. "There are people who are mothers and fathers and workers in our community. The benefit is that we are all working together. As I look around the room, I see smiles, children, moms and dads."

Gladney said many times, people will come from several states. Monday, she talked mostly with people from Pittsburg, as well as a few families from Joplin and one family from Oklahoma.

She said the organization of the day was "great." "We've never had more than 30 people at a time," she said. "Sometimes there's just such a flood of people." When too many people turn out for such events, she said she feels as if she is rushing them through, and perhaps people leave with questions unanswered.

Monday, she felt as if she had time to help most of those who came through the services. Gladney began seeing people at about 10 a.m.; families were waiting at the door when she arrived at about 9:30 a.m. At 4 p.m., when the shift changes at local plants, another large group of people entered. The event was scheduled to end at 4:30 p.m., in order that those who had signed up by that time could be served by about 6:30 p.m.

Gladney said the bulk of cases she dealt with were people who are being represented for citizenship by a U.S. citizen by birth, or by a relative who has attained citizenship. People were also renewing expiring resident alien cards, which are reaching the 10-year expiration date.

Gladney said she talked to a "fair number" of Salvadorans. She said she had not realized so many countries were represented in the Pittsburg area. She expected mostly Mexican nationals, but she did say there are several families from Guatemala living in Carthage, Mo. The Salvadorans are here, she theorized, because of new legislation following the recent earthquakes that have devastated that country. They can apply for an 18-month work permit, she said. "That's been good," she added.

A woman from Cuba was able to apply for a resident card, while four people applied for citizenship.

In addition, Joy Leeper, of SRS, talked to Gladney about programs for battered women under the Violence Against Women Act that provides aid for immigrants.

Gladney complimented Pittsburg on its welcoming attitude. She said the immigration events often must be held at churches because so many immigrants are afraid to come to public buildings. "They all seem to be comfortable coming here," Gladney said. "I think Pittsburg is unusual in that regard, that people feel welcomed and safe here."

Penny Armstrong, president of PACO, said, "People were afraid this was the INS. We've tried very hard to dispel that idea." She added, "Many of the people that have been through here today are people that I already have known." She said that shows "a degree of trust that we have worked hard to achieve."

Gladney told PACO board members that there are several key points in working with immigrants. One is to realize that the immigration system is a federal one. There are no differences in immigration law from state to state. However, it's very easy for unscrupulous people to scam immigrants because they are so "desperate." She urged PACO members to help by referring immigrants to reputable attorneys; she also provided a list. Most of the attorneys she recommends are in the Kansas City area, but she pointed out it is a benefit to have an attorney that works close to the center of the action, which is the immigration office in Kansas City.

"There are corner notaries in your area that are taking advantage of people," she cautioned. "Newcomers to a community don't have much knowledge on how to find reputable services." She suggested that is one way PACO can continue to advocate for new residents.

As the day progressed, Armstrong commented, "I've been really happy that it's been a nice, steady flow, yet there hasn't been a long wait."

She added, however, that she didn't believe everyone had been reached that could benefit from Gladney's services and advice, especially as immigration law takes the center stage in Congress later this year. "I think as the word gets out, more people will come and take advantage of it," she commented.

Sr. Beatriz will be back in Pittsburg in mid-April to finish paperwork on some of the people she worked with on Monday, and may be able to provide another session at that time, Hall said.

Ashcroft targets violence on women

Says White House to seek more funds

Washington Times, The (DC)

April 6, 2001

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Attorney General John Ashcroft yesterday said the Bush administration intends to ask Congress for an additional $102.5 million for programs to combat violence against women.

"We want to reduce violence in specific and target areas and help communities address violence against women by assisting in prosecution and victims' assistance," Mr. Ashcroft said in a speech before the Academy of Criminal Justice Sciences and Criminal Justice Journalists in Washington.

President Bush's proposed 2001 budget seeks the increase over this year's funding level for Justice Department programs that implement the 1994 Violence Against Women Act.

The Justice Department was awarded $288 million this year for grants to states and communities to combat violence against women. The act seeks to address sexual assault, domestic violence and the stalking of women and to provide advocacy, emergency shelters, police protection and legal aid to women.

Mr. Ashcroft is no stranger to the fight for more money to combat violence against women. As Missouri's attorney general, governor and later its U.S. senator, he fought for and obtained funds for programs to help women who had been the target of violent acts.

As governor, he secured $100 million in increased funding to combat violence against women.

During his confirmation hearing before the Senate Judiciary Committee in January, Mr. Ashcroft said that continuing violence against women threatened to deny them their "fundamental rights to be secure" and he pledged to forcefully enforce the 1994 Violence Against Women Act.

The act established new penalties with programs to prosecute offenders and assist female victims of violence, including services to battered women and shelters, programs to reduce sexual abuse among runaways, homeless and street youth as well as grants to states for rape-prevention and education programs.

Over the past several years, violence against women has seen a dramatic increase. A 1998 report by two federal agencies, the first collaborative study on violence jointly funded by the Justice and Health and Human Services departments, found that more than 17 million women - or about 18 percent of the U.S. population - have been raped or been a victim of attempted rape during their lifetimes.

The report also noted that more than half of the country's female population have been physically assaulted some time during their lives - including being slapped, hit or threatened with a weapon. In addition, it said 54 percent of those reporting they had been raped were under the age of 17 when the assault took place.

Husband Faces New Charge In Wife's Fatal Cliff Plunge

Salt Lake Tribune, The (UT)

April 7, 2001

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A federal grand jury this week added a charge of interstate domestic violence to an indictment that alleges an Illinois man pushed his wife off a cliff in Zion National Park four years ago to collect $1 million in investments and life insurance.

The new charge against James Bottarini, 42, could land him in a federal prison for life. Bottarini's wife, Patricia, 36, died after she plunged several hundred feet. The Bottarinis, then of New Jersey, were hiking Observation Point Trail, which rises 2,148 feet.

Partway up the trail, prosecutors claim, Bottarini pushed his wife, causing her to fall to her death.

They say Bottarini killed his wife to collect $250,000 in life insurance and more than $1 million from her interest in an investment partnership. Last year, Bottarini was charged with with four counts of wire fraud and one count of providing false statements to a federal investigator in connection with the death of his wife.

The new charge, a violation of the federal Violence Against Women Act, alleges that Bottarini traveled across state lines, from Medford, N.J., to Utah, intending to injure his wife.

Bottarini could receive life in prison if convicted on the domestic violence charges because the abuse resulted in death.

Federal prosecutors are unable to charge Bottarini with murder because the crime occurred on state-owned property in Washington County. County prosecutors are awaiting the results of the federal trial before they proceed with possible charges.

Prosecutors say they are skeptical of Bottarini's claim of an accidental fall because in the 60 years that the trail has been open, there was not a single fatal fall before Patricia Bottarini's.

Bottarini is scheduled to stand trial on the charges starting in August.

Judges say injunction bids marred by abuses

Daytona Beach News-Journal, The (FL)

April 9, 2001

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In civil court hearings intended to protect people from dangerous acquaintances, lovers or spouses, judges are increasingly being asked to resolve everyday squabbles or give a spouse an early advantage in a divorce case.

Despite the best intentions of lawmakers and domestic abuse prevention advocates, the ease of filing for injunctions for protection has left the process open to abuse, say judges and lawyers who work within the court system.

"I think a number of people are onto the injunction process and try to use it for their own personal purposes," says Circuit Judge James Foxman. "We have people who file them regularly."

Spend a day watching injunction hearings and you may start believing you've wandered onto the set of Judge Judy.

"People are watching Jerry Springer and Court TV to the point where they are thoroughly aware of how to use the process," says Rep. Suzanne Kosmas, D-New Smyrna Beach. "Children use it to threaten their parents. Parents use it to threaten each other. And judges are forced to err on the side of caution to ensure someone doesn't get injured or killed."

Attorneys warn that the costs of the abuse may be borne by legiti mate victims who have injunction requests denied by judges weary of plaintiffs who cry wolf.

During two days in February, judges Foxman and Patrick Kennedy denied requests for injunctions for protection based on these "threats": A woman claimed her sister visited their aging mother in a nursing home and tried to steal items from her room.

* A mother claimed a 13-year-old girl was threatening to harm her daughter at middle school. The girls used to be best friends.

* A man claimed he was threatened near his home by a man who sold him a car. He failed to mention the seller was at his home to repossess the car because he hadn't been making payments as promised.

Local statistics suggest that more people are using the injunction courts for complaints such as these.

Reported acts of domestic violence, as with all violent crimes, are decreasing in Volusia County, the state and nation.

The number of women seeking emergency housing at one of the area's two abuse victim shelters has fluctuated between 300 and 400 since 1995.

And the number of permanent injunctions -- which judges usually reserve for the most serious abuse cases -- has held steady during the same period.

In contrast, the only number that has risen sharply since 1995 are requests for protection.

Advocates attribute the increase to heightened awareness among victims and potential victims of the availability of help through the court system.

But some family law attorneys, and the judges who preside over their cases, link the increase to a growing number of inappropriate filings.

They blame the trend on two factors: the ease of filing for injunctions and an inability among people to resolve their everyday disputes.

More and more people today expect the judicial system to solve their personal problems, they say.

"The word is out," Circuit Judge John Doyle says, that injunction requests provide a quick way for people to get their disputes resolved in court.

Process helps many, but abuse is growing

Local legal experts say most requests for injunctions for protection are legitimate pleas for emergency help.

Triggered by attention to the O.J. Simpson case, domestic and repeat violence became a hot topic in the early 1990s. Reports stating that violence among intimate partners was more common than previously thought compelled lawmakers and state court officials to rethink how the courts dealt with victims' complaints.

Remedies included the creation of domestic violence criminal courts to streamline punishment and treatment of offenders. Privately run "anger management" programs, geared primarily toward men, were made mandatory elements of civil and criminal settlements.

And lawmakers financed education programs to teach victims, step by step, how to file requests for injunctions in civil court without hiring attorneys.

Shortly after filing a petition for injunction -- usually within 24 hours -- intimate partners who attest, under threat of a perjury conviction, that they have been victimized can have their alleged abusers removed from the shared home; receive immediate court-ordered child support payments; and place the alleged abuser on immediate threat of arrest if he or she tries to contact the victim.

In their initial review of the petitions, judges have three options: grant the emergency injunction and set a formal hearing within 15 days to hear both sides; deny the injunction and schedule the formal hearing; or dismiss the case immediately.

In addition to intimate partners, injunctions can be obtained against former friends, co-workers, neighbors or acquaintances who behave violently at least twice during an ongoing dispute.

Misuse of the system can be traced back to 1984, when state law required judges to issue emergency injunctions solely on the basis of one party's sworn claims -- without hearing the other side of the story.

"Obviously that leaves the system open for abuse," says Judge Doyle. He calls the one-sided rulings "the great failing of the injunction system."

According to Judge Kennedy, "you run into problems when you start entering court orders without due process, and this process requires us to do just that."

In 1995, the state Legislature further loosened the standards by allowing emergency injunctions for potential as well as actual victims of domestic violence. Under the amended law, petitioners no longer had to attest that violence had taken place but merely demonstrate a "reasonable fear" that they would be harmed.

The new standard, legal experts agree, opened the door for petitioners to exaggerate the threat to their safety without telling an outright lie.

"Reasonable fear" of violence, depend ing on a judge's interpretation of the law, can now be provoked by a loss of temper, a loud argument, slamming a door, pounding a table, throwing an object against a wall, or any number of angry outbursts.

Referring to a recent case, Judge Kennedy explained why he granted an injunction despite not having as much information about the case as he would have liked.

"I don't think I'm entitled to evaluate whether her fears are reasonable based on my fears," he says. "It's her fears -- what she believes."

System exploited 'time after time'

People learn how the system works from a variety of sources.

Attorneys at Central Florida Legal Services conduct weekly classes to teach people how to file for injunctions. Advocates who work for the Domestic Abuse Council of Volusia County provide the same service, and accompany injunction petitioners to court.

Some attorneys and judges believe petitioners are being urged -- possibly by acquaintances, police or their attorneys -- to file for injunctions in cases that don't qualify as legitimate emergencies.

The reasons may vary. In some disputes in which police are called but make no arrests, as in the case of the battling 13-year-olds, officers recommend to the parties that they seek an injunction.

"Why? Because they can't do anything for them or want to get them out of their hair," said County Judge Peter Marshall.

Law enforcement officers may indeed suggest injunctions, says Volusia County Sheriff Ben Johnson, in situations where there's no clear evidence that an assault occurred "and there's nothing (complainants) can do but go to that next step."

Some will file inappropriate claims be cause it's free for those who qualify under a liberal definition of indigency. Filing fees are waived for 80 percent of all petitioners, court records show.

Some repeatedly file petitions based on fears not grounded in reality.

Circuit Judge James Foxman cites the case of a mentally disturbed woman who sought several injunctions against family members -- living and dead. She stopped only when Foxman began requiring her to pay filing fees.

Kennedy tells of granting an emergency injunction based on a Holly Hill man's claim that another man threw him to the ground. Kennedy quickly learned that the accused was a police officer, and the accuser, who had a long criminal history, often needed to be put on the ground.

Then there are the routine filers, according to Judge Marshall. The routine filer will submit a petition, then fail to show for a scheduled hearing or ask that it be dismissed. "Then a couple months later they show up again (and file another petition). That gets dismissed for some reason. Then they're back three months later. It's an ongoing course of conduct: 'I'll just get an injunction against you. Let's race each other down to the courthouse to see who can get the first injunction.'

"We jump through hoops for them and they don't show up. It happens time after time."

Legitimate victims may pay a price for all the legal horseplay, attorney Rick Brown says.

"The problem is you get people doing that and it's taking away from the people who really need help for domestic violence," he says. "Judges are going to stop granting them so easily if they keep seeing these are being filed not just for domestic violence but to get the upper hand" in a dispute.

Judges are already exercising more restraint, according to local statistics. In Volusia County, injunction requests increased from 2,064 in 1994 to 2,601 in 2000. But the number of permanent injunctions granted by judges has remained steady, from 1,119 in 1994 to 1,125 in 2000.

However, Jim Dulfer, managing attorney for Central Florida Legal Services, says the number of permanent injunctions may be remaining steady because emergency injunctions are serving their intended purpose. In some cases, judges will close cases without issuing permanent injunctions if abusers agree to long- term anger management counseling and their victims feel that the temporary injunction has served its purpose.

"For so many years, domestic violence has gone underreported and ignored," he said. "The pendulum has swung, and many are now aware of it. Many (victims) are now invoking the system, many times to get someone's attention. Afterward, they're willing to dismiss it. That's a sign where something has worked. She got his attention."

Non-spouse requests most commonly abused

Injunctions for protection fall into two categories: domestic violence and repeat violence. Injunctions to prevent domestic violence can be obtained against intimate partners who provoke "reasonable fear" of physical abuse.

In repeat violence cases, which do not involve intimate partners or couples who live together, the burden of proof for obtaining injunctions is tougher.

Petitioners must swear, under threat of prosecution for perjury, that someone has committed a violent act -- assault, battery or stalking -- against them at least twice in six months.

With varying interpretations of the terms assault, battery and stalking, repeat violence allegations are the source of many of the inappropriate filings, judges say.

Cases heard in recent months by Judges Kennedy and Marshall involved children who have trouble getting along with each other in school. When children are involved, petitions must be filed by parents.

"I don't think it was the intent of the Legislature to separate kids having squabbles," Judge Marshall says. "Granted there are some legitimate allegations concerning kids. But the run of the mill complaint is 'so-and-so called my child a bad name' or threatened to beat him up at the bus stop.

"It would be impossible to craft the conditions that would be followed. You can't put one kid out of school to satisfy the injunction. If they are next-door neighbors, does that mean one child cannot stand in his front yard?"

Judge Marshall says he sees such cases "several times a week," and encourages parents to talk to school authorities or the Department of Juvenile Justice.

Kennedy sees inappropriate filings as an example of how "people's self-reliance has weakened quite a bit in recent years."

"When people used to look at themselves or their family, they're now willing to let the state or other government entity look into their private affairs and structure them. Anyone who has watched this develop over the past 15 years is frustrated. There are limitations as to what judges can do."

Spouses sometimes file false petitions

Sometimes spouses or partners file false allegations, say family law attorneys, to gain an early advantage in battles over the couple's children, home and assets.

"Which isn't to say that domestic violence isn't real and out there," said Daytona Beach attorney Bif Ellis. "But if you sit through a day's worth of domestic violence cases you will come away with the idea that the good intent of the Legislature is not the result they are aiming for in the courthouse."

All of the judges interviewed for this story say it's rare for a spouse to purposely make false allegations to gain an unfair advantage -- though it does happen.

Kennedy recalled one case in which a wife secured sole possession of the home, then backed in a moving van, emptied the home and fled the state.

The case illustrates what judges freely admit: Even if they view an emergency injunction request with skepticism, they often grant it anyway.

Sometimes, Kennedy says, "at the hearing stage (within 15 days), we find out the facts are very different."

Still, he says, "If you are going to make a mistake, you want to err on the side of protection. I think that's what the Legislature would want us to do."

Dulfer of Central Florida Legal Services acknowledged that people are sometimes unfairly thrown out of their homes by false allegations. He says those occurrences are an unfortunate byproduct of a necessary law -- similar to when parents lose their children to state social workers swayed by false child abuse allegations.

Curtailing abuses while protecting victims

Because of the protection afforded to legitimate victims, no one interviewed for this story advocated watering down the ability to obtain emergency injunctions.

But attorneys and judges say that abuses of the system could be curtailed by some simple reforms.

Foxman said frivolous claims could be reduced if the state required all petitioners to pay "some sort of filing fee." Current law allows clerks of courts to waive the $50 filing fee for petitioners who claim economic hardship. Only 20 percent of petitioners paid a filing fee between 1994 and 1999.

Legitimate petitioners would still qualify for sharply reduced fees, he said, but abusers of the system would be deterred by no longer being allowed to file unlimited claims free of charge.

Attorney Brown suggested that the Legislature allow judges to issue mutual restraining orders prohibiting both parties from harassing each other. Judges are currently forbidden from issuing mutual restraining orders unless both parties request injunctions. When restraining orders are issued against just one party, the other party remains free to initiate as much contact as he or she would like. The one-way contact can provoke the other party into violating the terms of the injunction, Brown says.

Kennedy suggested the State Attorney's Office should prosecute petitioners who commit perjury.

"In cases where I'm firmly convinced someone has perjured themselves, I would like to see that investigated by the state attorney so that it would get out in the community: There are penalties if you lie."

A spokesman for State Attorney John Tanner's office said prosecutors cannot recall indicting anyone for committing perjury on petitions for protective injunctions.

Kennedy also wants better and quicker access to the case history of the petitioners and respondents.

State law requires judges to make a ruling on emergency requests "at the earliest possible time," which is usually 24 hours. But in the case of couples who moved here recently, they often cannot obtain records within that time or even within the 15 days when a formal hearing must be scheduled.

Records such as previous injunctions, convictions, divorce settlements, or paternity rulings would allow more informed decisions, Kennedy says.

The federal Violence Against Women Act, passed by Congress in 1995, includes the goal of creating a nationwide database, but Congress has yet to fund the project.

"Judges have no staff," Kennedy said. "We can't investigate anything. We have no investigators. I share a legal clerk with six other circuit judges in this building. If we're going to become administrative arms as well as adjudicating arms, they have to fund some staff for us to do this."

Kennedy would also like the Legislature to clarify the circumstances under which judges should consider issues such as child support, custody and establishment of paternity in injunction hearings. When possible, he would like to be able to divert such cases more quickly to more appropriate civil court venues.

Because of ambiguity in the way state law is currently written, each judge must determine on his own how or whether to address various family issues during the injunction hearings.

Judge John Doyle said the county should reinstate the justice of the peace court -- a district-level system disbanded in 1968 when state and county courts were consolidated into one system. Justices of the peace could resolve issues resulting from the breakup of unmarried couples, as well as other disputes that fall short of the types of emergencies envisioned by the creators of the injunction laws.

Diverting such everyday disputes to justice-of-the-peace court, he said, would allow judges to invest more time resolving the real emergencies that endanger the lives of legitimate victims of domestic and repeat violence.

Ex-Blanding official won't go to prison

Deseret News, The (Salt Lake City, UT)

April 14, 2001

https://infoweb.newsbank.com/

A former Blanding city councilman will serve no prison time for the illegal possession of a firearm under the Violence Against Women Act, but he has not ruled out appealing his conviction anyway on grounds the federal law is unconstitutional.

Randee Lee Bayles, 51, was given 24 months' probation and a $1,000 fine by U.S. District Judge Dale Kimball Wednesday afternoon.

"I do not condone any violence against women," Kimball told a full courtroom. "But people ought to have every chance to know what they can and can't do."

Bayles claimed he did not understand that a person subject to a protective order is prohibited from possessing a firearm under the federal law.

Bayles' ex-wife, Jeroldene Bailey, asked a San Juan County judge for a protective order in 1998 after suffering, she said, from physical abuse and threats of abuse throughout their 27-year marriage.

Undercover federal agents met with Bayles while he was under that order, and say he bragged about owning "approximately 100 rifles and between 75 and 85 handguns," according to the indictment.

Prosecutors say Bayles also admitted to the agent that "he had moved most of his guns to a location away from his house," but that he had some guns in his house for hunting and two handguns in his truck.

Bayles' attorney, Brad Rich, argued that the sentencing guideline of 12 to 24 months in prison should be reduced because Bayles' firearms were mostly for hunting or were part of a gun collection.

Rich also argued that Bayles tried to comply with his understanding of the requirements of the protective order.

"I thought I had made every effort to comply with the law," Bayles told the judge.

But federal prosecutor Barbara Bearnson said most of Bayles guns were "ordinary, the kind of guns you could buy at Kmart" and not collector's items. She also said there was "significant planning" involved when Bayles moved many of his guns to a new location after being served the protective order.

"This man knew he could not possess firearms," she told the judge.

Kimball agreed with Bearnson, that Bayles' guns were not mere items in a collection, but granted the downward departure in sentencing anyway, because, he said, Bayles had not been sufficiently informed of the federal statue.

Bayles pleaded guilty to the charge in January on the condition that he could appeal to the 10th Circuit Court of Appeals in Denver an earlier decision by Kimball not to dismiss the case altogether.

Rich argued that Bayles' constitutional right to bear arms supersedes the Violence Against Women Act.

Kimball disagreed and said that with the exception of a case in Texas, every district court that has addressed the question has found the statute to be constitutional.

Rich said Bayles has 10 days to decide whether to pursue his challenge of the law.

Son now suspect in crime like father's

Rockford Register Star (IL)

April 14, 2001

https://infoweb.newsbank.com/

ROCKFORD - Harrison Gathers Jr. was 4 years old when his father shot his fleeing mother in the front of their apartment at Fairgrounds Park in August 1983.

Last month, Winnebago County Sheriff's Department police say the now 21-year-old Gathers stalked his 22-year-old wife and shot her as she drove home from work.

The cycle of family violence is not surprising to domestic violence experts or area police who are familiar with father and son. But what distinguishes the shootings is that Harrison Gathers Sr. surrendered to police while his son has fled, so far evading Winnebago County sheriff's detectives for nearly three weeks.

Police have issued an arrest warrant, and a $250,000 bond has been set.

Deputy Chief Roger Costello believes that friends are harboring Gathers in Rockford.

His wife, Tiffany Harper-Gathers, meanwhile remains in seclusion, reportedly under the care of domestic violence counselors.

Attempts to contact her and family members were unsuccessful.

Links to the past

Area police familiar with Gathers Jr.'s clashes with the law say that he was given ample chances to change - warnings, juvenile detention, probation, jail time and even a stint in prison.

Gathers Jr.'s path started when at the age of 9 he joined the Gangster Disciples. By 12 he was sentenced to 24 days in jail for attempted theft. And at 13 he was given two years' probation for the unlawful use of a weapon.

On Sept. 17, 1997, he made another indelible mark on police.

Rockford Officer Curtis Sockwell stopped Gathers in a car that had been reported stolen. During questioning, he sped off. Sockwell dove for the car and dangled from the driver's side door until he was able to wrestle Gathers from inside the car and then got control of the vehicle.

Gathers Jr.'s path has not been unlike his father's.

Veteran police remember Gathers Sr. robbing and shooting a 21-year-old Owens Oil Co. gas station attendant in 1964. Gathers fled with one of two accomplices to Cambden, Ark., where the FBI captured them days later.

The gas station attendant lived to testify, and Gathers Sr. was sentenced to serve up to 15 years in prison.

"Domestic violence is passed on from generation to generation," said Kathryn Packard, a sheriff's department advocate focusing on domestic violence. "That's why it is so hard to stop it. When children grow up in a violent environment, they can either become a victim or a violent abuser."

Costello agreed. He declined to discuss details of this situation but said that domestic violence cases often involve learned behavior.

"You do see a cycle," he said. "Kids are taught by their parents."

Legacy of violence

The shootings were decades apart, and Gathers Jr.'s mother, Oddie Gathers, and wife, Tiffany Harper-Gathers, beat the odds by surviving.

In 1996, nearly three out of four of those killed in domestic disputes were women, the Family Violence and Prevention Fund reported in its most recent study released in 1998.

About 33 percent of women reported having problems six months after filing an order of protection, according to the study. That's what Harper-Gathers intended to do before the shooting.

"We see fatalities after they leave," Rockford's Working Against Violent Environments Program Supervisor Andrea Walter said. "Some of the threats come true, some don't."

Tiffany Harper-Gathers fought back nearly a month ago, demanding that her husband leave their apartment she also changed the locks.

On March 24, Harper-Gathers told police her Overdene Avenue apartment was broken into by Gathers Jr. and that he stole $500. Over the next two days, Gathers made threatening telephone calls and appeared at his wife's job, witnesses told police.

Harper-Gathers called police twice March 26. They searched for Gathers but were unsuccessful. Harper-Gathers said she would take out an order of protection against Gathers the next day.

She never got the chance. She was shot less than two hours later.

She was treated for two gunshot wounds to the chest at Rockford Memorial Hospital and released several days later.

How to help

Anyone with information on Harrison Gathers Jr. can call the Winnebago County Sheriff's Department at 987-5939 or Crime Stoppers at 963-7867.

Gathers is described as 5 feet, 10 inches and 160 pounds, with black hair and brown eyes. Tattooed on his left arm is his nickname "June Bug" six-point stars are tattooed on both arms.

Efforts to protect women

Rochelle native Mary Heaslip suffocated during Labor Day weekend 1995 after her husband sat on her during a domestic dispute. In 1997, Gov. Jim Edgar later signed a measure called Mary's Law, which requires a three- to 14-year sentence for domestic violence resulting in a death.

A year before Heaslip died, the federal government passed the Violence Against Women Act.

In October, President Clinton signed legislation reauthorizing and expanding the act.

Since then, the Health and Human Services Department undertook a range of initiatives that included establishing a national toll-free domestic violence hot line - (800) 799-7233 - that has fielded more than 530,000 calls since last year.

In fiscal 2000, HHS allocated $101.1 million in grants to states for programs for battered women and $5.9 million for coordinated community responses to violence against women.

Gun law in focus as NRA gathers

Kansas City Star, The (MO)

May 18, 2001

https://infoweb.newsbank.com/

A contorted, 27-word sentence penned more than two centuries ago lingers and swirls like gun smoke, its meaning today debated more than ever.

As the National Rifle Association kicks off its annual convention today in Kansas City, bringing as many as 40,000 members, new battle lines are forming. And high above the center of the conflict hovers that one confounding sentence - the Second Amendment in the Bill of Rights:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

For decades, federal judges have resisted jumping into America's argument over exactly what that sentence means.

Now, a 1999 ruling out of Texas has made the Second Amendment a live ball, one that could be bouncing its way to the U.S. Supreme Court. In the end, scholars say, gun enthusiasts could score an unprecedented legal coup, securing individual rights that courts have long been reluctant to grant them.

At issue is the so-called "second half" of the Second Amendment - that part about the right of the people. Does it mean any law-abiding individual has a constitutional right to own guns?

The NRA gathering in Bartle Hall says yes, absolutely. The group plasters "the right of the people to keep and bear arms" all over its literature and T-shirts. And its president, Charlton Heston, calls that right "the most rare and hard-won right in human history."

Gun-control advocates and many legal scholars say no, it is not an individual right. And until recently they have had federal court rulings on their side.

They favor the first half of the amendment, which they say merely guarantees a "collective right" of states to defend themselves from federal tyranny by maintaining an organized militia - in modern-day parlance, a National Guard.

But U.S. District Judge Sam Cummings of Lubbock, Texas, single-handedly blew a hole through that interpretation two years ago.

Ruling that the Second Amendment guarantees rights to individuals, and not just to militias, Cummings dismissed federal charges against a physician who had brandished a handgun in front of his estranged wife and their daughter.

Thought to be the first time a judge has used the Second Amendment to overturn a federal law, the ruling is under appeal.

Future hinges on courts

At least two U.S. Supreme Court justices, Clarence Thomas and Antonin Scalia, already have hinted at a readiness to expand the definition of the Second Amendment.

The political makeup in Washington this year also has the NRA breathing easier. The group helped George W. Bush eke out a presidential victory and has a longtime champion of gun rights, John Ashcroft, running the Justice Department.

Still, the courts remain a huge concern. A barrage of liability lawsuits against gun makers spurred Colt's Manufacturing Co. to abandon sales of self-defense sidearms.

Should the high court weigh in on the side of individual rights, a flood of new litigation surely would follow in the lower courts.

Some doubt that such a change would have much effect on the thousands of gun laws already on local, state and federal books.

"No rights are absolute, and government would still have the larger responsibility of protecting the health, safety and welfare of its citizens," said Robert Spitzer, political science professor at State University of New York and author of The Politics of Gun Control.

Taken to the extreme, background checks could be ruled unconstitutional, cities could be prevented from banning handguns, and felons could carry weapons, though few observers on either side of the debate foresee the end of gun control.

"If a re-interpretation doesn't change the landscape, it would certainly change the conversation about gun legislation," said Dan Polsby, a law professor at George Mason University. "The Supreme Court has managed to dodge the issue for years."

He agrees with the NRA interpretation: "There's clearly an individual right - everything about the Second Amendment says so."

Jonathan Lowy, senior attorney for the Center to Prevent Handgun Violence, could not disagree more.

"The courts have said what the Second Amendment means: It gives states the right to have militias," Lowy said. "To rule that individuals have a constitutional right to possess guns could have tremendous implications. The fact that some trial judge in Texas went that way doesn't signal a trend."

There are signs of a refocusing, however, such as the 2000 edition of American Constitutional Law, edited by liberal scholar Laurence H. Tribe of the Harvard Law School. It included for the first time a section suggesting that the individual-rights argument should be taken more seriously.

"The federal government may not disarm individual citizens without some unusually strong justification," Tribe wrote.

27 contentious words

What did James Madison and his constitutional collaborators mean to say with those 27 words?

"The evidence of the framers' original intent is mixed," said Michael C. Dorf, a vice dean at Columbia Law School and a supporter of gun control. "But courts very rarely base their decisions solely on what the framers meant to say in 1791."

There is little dispute that gun possession at the end of the 18th century was an accepted, even necessary, way of life in the United States. And the record makes clear that state legislators debating the ratification of the Constitution insisted on the need for state militias, manned by private citizens, to arm themselves as a balance against possible abuses of a national army.

Less clear is the chorus for an individual citizen's right to lock and load.

When drafting the Bill of Rights, Madison relied in part on rights outlined in state constitutions. Five of those constitutions mentioned militias but not the right to bear arms. Three granted a collective right to bear arms for the defense of the state. Two guaranteed individual rights, and four mentioned neither militias nor the right to bear arms.

Madison's draft included both "a well regulated Militia" and "the right of the people to keep and bear Arms." But the House of Representatives deleted another clause designed to prevent governments from forcing pacifist Quakers into militias: "No person religiously scrupulous of bearing arms should be compelled to render military service."

Spitzer said the deleted clause suggested that the framers intended to focus the Second Amendment on military issues. "All the debate was framed in military terms," he said.

Individual-rights advocates counter that society widely accepts that most other provisions of the Bill of Rights - free speech, for example - apply to "the people" as well as the states.

"Civil libertarians support the individual rights recognized in the First, Fourth, Fifth and Sixth Amendments," writes law professor David E. Vandercoy of Valparaiso University. But with the Second, their "instincts are overcome by our fear of one another."

In the 20th century, the high court rarely touched the Second Amendment. Its most direct attempt at interpretation, in 1939, resulted in a ruling restricting sawed-off shotguns, mainly because a militia would not need them.

Justices might get another crack if the case of United States vs. Timothy Joe Emerson reaches them.

The San Angelo, Texas, physician was indicted after pulling a Beretta pistol out of a desk drawer and laying it on the tabletop when his wife, who had filed for a restraining order, showed up at his medical office with their 4-year-old daughter.

Emerson had violated a federal law included in the Violence Against Women Act of 1994, prohibiting someone under a restraining order from even owning guns.

Judge Cummings dismissed the charges and ruled that "a textual analysis of the Second Amendment supports an individual right to bear arms." The case now has been in the hands of a three-judge appellate panel for more than a year.

Regardless of what judges say, violent crime and public opinion will continue to weigh heavily on lawmakers. Just last week, gun-control forces in Washington embraced a new ally in U.S. Sen. John McCain.

The Arizona Republican is sponsoring a bill with Democratic Sen. Joseph Lieberman of Connecticut that would mandate criminal background checks for buyers at gun shows with at least 75 weapons on sale.

U.S. Rep. Dennis Moore of Kansas is co-sponsoring the House version. Moore said Thursday that recent school shootings had "transcended partisan politics. This isn't about Republicans and Democrats; it's about kids getting shot."

"With every right comes responsibility," the Democrat said. "Convicted felons, mentally ill people and unsupervised children don't have the right" to keep and bear arms.

As NRA convenes, Second Amendment debate intensifies

Billings Gazette, The (MT)

May 19, 2001

https://infoweb.newsbank.com/

KANSAS CITY, Mo. - A contorted, 27-word sentence penned more than two centuries ago lingers and swirls like gun smoke, its meaning today debated more than ever.

As the National Rifle Association kicked off its annual convention Friday in Kansas City, bringing as many as 40,000 members, new battle lines are forming. And high above the center of the conflict hovers that one confounding sentence - the Second Amendment in the Bill of Rights:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

For decades, federal judges have resisted jumping into America's argument over exactly what that sentence means.

At issue is the so-called "second half of the Second Amendment - that part about the right of the people. Does it mean any law-abiding individual has a constitutional right to own guns?

The NRA gathering says yes, absolutely. The group plasters "the right of the people to keep and bear arms all over its literature and T-shirts. And its president, Charlton Heston, calls that right "the most rare and hard-won right in human history.

Gun-control advocates and many legal scholars say no, it is not an individual right. And until recently they have had federal court rulings on their side.

They favor the first half of the amendment, which they say merely guarantees a "collective right of states to defend themselves from federal tyranny by maintaining an organized militia -in modern-day parlance, a National Guard.

But U.S. District Judge Sam Cummings of Lubbock, Texas, single-handedly blew a hole through that interpretation two years ago.

The decision of Cummings, appointed by President Ronald Reagan to the federal bench, was swiftly denounced in a brief filed by 52 legal scholars who support gun control. Thought to be the first time a judge has used the Second Amendment to overturn a federal law, the ruling is under appeal.

At least two U.S. Supreme Court justices, Clarence Thomas and Antonin Scalia, already have hinted at a readiness to expand the definition of the Second Amendment.

Thomas has cited NRA-financed research and "a growing body of scholarly commentary that the right to keep and bear arms' is ... a personal right.

Still, the courts remain a huge concern. A barrage of liability lawsuits against gun makers spurred Colt's Manufacturing Co. to abandon sales of self-defense sidearms.

Should the high court weigh in on the side of individual rights, a flood of new litigation surely would follow in the lower courts.

Some doubt that such a change would have much effect on the thousands of gun laws already on local, state and federal books.

"No rights are absolute, and government would still have the larger responsibility of protecting the health, safety and welfare of its citizens, said Robert Spitzer, political science professor at State University of New York and author of "The Politics of Gun Control.

But Congress might have a tougher time passing new laws infringing on a person's ability to trade, stockpile or carry firearms. At least, said one NRA attorney, "they'd have to come up with better reasons.

"If a re-interpretation doesn't change the landscape, it would certainly change the conversation about gun legislation, said Dan Polsby, a law professor at George Mason University. "The Supreme Court has managed to dodge the issue for years.

He agrees with the NRA interpretation: "There's clearly an individual right - everything about the Second Amendment says so.

Jonathan Lowy, senior attorney for the Center to Prevent Handgun Violence, could not disagree more.

"The courts have said what the Second Amendment means: It gives states the right to have militias, Lowy said. "To rule that individuals have a constitutional right to possess guns could have tremendous implications. The fact that some trial judge in Texas went that way doesn't signal a trend.

There are signs of a refocusing, however, such as the 2000 edition of "American Constitutional Law, edited by liberal scholar Laurence H. Tribe of the Harvard Law School. It included for the first time a section suggesting that the individual-rights argument should be taken more seriously.

"The federal government may not disarm individual citizens without some unusually strong justification, Tribe wrote.

What did James Madison and his constitutional collaborators mean to say with those 27 words?

"The evidence of the framers' original intent is mixed, said Michael C. Dorf, a vice dean at Columbia Law School and a supporter of gun control. "But courts very rarely base their decisions solely on what the framers meant to say in 1791.

Less clear is the chorus for an individual citizen's right to lock and load.

Madison's draft included both "a well regulated Militia and "the right of the people to keep and bear Arms. But the House of Representatives deleted another clause designed to prevent governments from forcing pacifist Quakers into militias: "No person religiously scrupulous of bearing arms should be compelled to render military service.

Spitzer said the deleted clause suggested that the framers intended to focus the Second Amendment on military issues. "All the debate was framed in military terms, he said.

Law professor Dorf agreed: "Almost universally, when people talked of bearing arms' back then, it was in reference to the military, to soldiers carrying weapons.

Individual-rights advocates counter that society widely accepts that most other provisions of the Bill of Rights - free speech, for example - apply to "the people as well as the states.

"Civil libertarians support the individual rights recognized in the First, Fourth, Fifth and Sixth Amendments, writes law professor David E. Vandercoy of Valparaiso University. But with the Second, their "instincts are overcome by our fear of one another.

Even as individual-rights litigation exploded in the 20th century, the high court rarely touched the Second Amendment.

Its most direct attempt at interpretation, in 1939, resulted in a ruling restricting sawed-off shotguns, mainly because a militia would not need them.

Justices might get another crack if the case of United States vs. Timothy Joe Emerson reaches them.

Emerson had violated a federal law included in the Violence Against Women Act of 1994, prohibiting someone under a restraining order from even owning guns.

Judge Cummings dismissed the charges and ruled "a textual analysis of the Second Amendment supports an individual right to bear arms. The case now has been in the hands of a three-judge appellate panel for more than a year, suggesting to many experts that a provocative decision is in the works.

"When gun legislation starts hurting ordinary people and not just criminals, these cases are going to take more thought in the courtroom, said Kevin Jamison, a lawyer for the Western Missouri Shooters Alliance.

"With every right comes responsibility, the Democrat said. "Convicted felons, mentally ill people and unsupervised children don't have the right to keep and bear arms.

Ex-Blanding official may be re-sentenced

Bayles understood order, federal prosecutors say

Deseret News, The (Salt Lake City, UT)

May 20, 2001

https://infoweb.newsbank.com/

Federal prosecutors announced last week they will appeal the sentence of a former Blanding city councilman convicted under the Violence Against Women Act.

Randee Lee Bayles, 51, was given just 24 months of probation and a $1,000 fine by U.S. District Judge Dale Kimball on May 9.

Bayles claimed he did not understand that a person subject to a protective order is prohibited from possessing a firearm under the federal law.

Bayles' ex-wife, Jeroldene Bailey, asked a San Juan County judge for a protective order in 1998 after suffering, she said, from physical abuse and threats of abuse throughout their 27-year marriage.

Undercover federal agents met with Bayles while he was under that order and said he bragged about owning hundreds of rifles and handguns.

The U.S. attorney's office in Utah announced Wednesday it will appeal the sentence, because prosecutors believe Kimball erred in the application of certain guidelines.

Prosecutors said Bayles was sufficiently informed of the law at the time the protective order was granted.

ASHCROFT'S GUN STANCE CORRECT

Macon Telegraph, The (GA)

July 5, 2001

https://infoweb.newsbank.com/

Anti-gun forces are becoming increasing strident in their criticism of Attorney General John Ashcroft's position even as gun applications are declining. Gun sales have been subject to a background check since enactment in 1994 of the so-called Brady Act.

Last year, 7.7 million background checks were conducted. This huge volume of checks stopped the sales of 153,000 guns. Last year, authorities conducted 8.6 million background checks.

Nationally, that seems to show a considerable drop in the number of Americans who tried to buy a gun. However, applications can be for more than one weapon, so it cannot be said that this shows a decline in gun purchases.

Still, some criminal justice experts contribute the drop to people who don't perceive the streets as unsafe, so don't feel the need for personal protection. Georgia was among the states to submit figures for 2000, and they show a 15.7-percent drop in applications from the previous year.

Meanwhile, Ashcroft has urged federal prosecutors to step up efforts to bring Brady violators to justice. "While the Brady law has helped us stop convicted felons and other dangerous individuals from buying guns easily, violations of the law are not being prosecuted adequately," he said.

His tough stance on Brady enforcement hasn't earned him points with anti-gun groups, however. Two groups have announced plans to file an ethics complaint against Ashcroft as a result of something he wrote to the NRA.

In a May letter, Ashcroft stated that he believes the Constitution protects the right of an individual to own a gun. However, in a pending case against a Texas doctor, the government argues that gun ownership is a collective, not individual, right --- a conclusion that would render the Second Amendment meaningless. Ashcroft maintains, however, that an individual right to ownership is not in conflict with the need to have reasonable restrictions on guns.

The case involves a physician who is accused of displaying a gun in front of his wife and daughter. The wife had obtained a restraining order and the Violence Against Women Act of 1994 forbids anyone under such an order from owning a gun. A federal judge threw out the charges against the physician last year, citing the Second Amendment.

The issue as to the the individual versus collective right to bear arms is of enormous importance to Americans. If at some point the courts were to decide that the right is merely a collective one, the Second Amendment may as well not have ever been written.

The most recent court decisions have tended to support the collective-right position, but earlier and more compelling cases support an individual right. This is not just an issue for legal scholars. The right to be able to protect oneself from criminals is at stake. Also, Ashcroft is already under sharp criticism for cutting the time that records of background checks are held by the government from three months to a day.

Ashcroft deserves support for his reasonable and responsible position on this issue. After all, if people are less fearful of crime, it might just be because they are already armed.

---Ron Woodgeard/For the editorial board

Life in the Margins

Young illegal aliens' hopes of normal life in U.S. stifled by deportation fear

Crain's New York Business

July 16, 2001

https://infoweb.newsbank.com/

Two days before Genevieve's high school graduation, her world came apart.

Brought to New York City from Haiti as an infant, she grew up in typical American fashion, playing high school basketball and working at a fast food restaurant. She'd mapped out her future: the Air Force, college, a business career.

But a year ago, as she was about to take the first step on that ladder, it collapsed. Though Genevieve had never realized it, her adoptive mother had not followed through on the paperwork that would have made her a legal U.S. resident. Without a green card, she would be unable to join the Air Force.

Then Genevieve learned that she could be deported to what the authorities consider her home country, Haiti. It might as well be the North Pole, for all the time she's spent there.

Genevieve now lives in a youth shelter, working at low-paying jobs as she tries to stay out of the way of immigration authorities.

She is one of thousands of illegal immigrants in New York City who are hitting adulthood and a brick wall at the same time. Brought to the United States by their families as children, they have been raised as Americans, learning the reality of their situations only when they become adults.

Their lives, never easy, have become more difficult since recent crackdowns on illegal immigration closed important avenues to legalizing their status and made deportation more likely.

"It is a real fear, being sent back to Haiti," Genevieve says. "I try not to think about it."

Based on the fact that the bulk of New York state's 540,000 illegal aliens live in New York City, experts say the city has one of the country's highest concentrations of such young people.

A permanent underclass

As children, they face few problems. They attend public schools, play in Little League and work at after-school jobs, often with no questions asked.

But if they reach adulthood without a green card, they have little choice but to take low-paying jobs where employers don't ask questions. They can't access public services like financial aid for college, health insurance, and unemployment benefits. Young people with the added burden of a troubled family life can face homelessness and despair.

"They're a permanent underclass," says David Thronson, a lawyer and an instructor at New York University School of Law who has worked with many immigrant youths.

The predicament of these illegal immigrants, who are Americans but for a piece of paper, raises questions about the definition of citizenship.

"Americans have a very ambivalent attitude about immigrants," says Philip Kasinitz, professor of sociology at Hunter College and the City University of New York Graduate Center, who studies immigration trends. "On the one hand, they don't like the idea of illegal immigration. But they don't want people like themselves deported, especially if they entered as small children."

The names of the teen-agers interviewed in this article have been changed to protect their identities.

Like many illegal immigrants who grew up here, Genevieve, now 20, didn't learn she wasn't legal until she applied to the Air Force. Her mother, a U.S. citizen, at one point had petitioned for legal residency for Genevieve, the young woman explains. But over the years, the relationship between mother and daughter deteriorated, and Genevieve's mother dropped the effort.

After Genevieve graduated from high school, her mother ordered her out of the house. Unable to join the Air Force or get a good job, Genevieve took refuge in friends' homes and, eventually, the youth shelter.

New York social services agencies say more of the young people now seeking their help are homeless in part because they are illegal aliens.

Joy, 18, is one. Like Genevieve, Joy had always assumed she was legal. Brought here at the age of 3 from West Africa, she knew little beyond life in the United States. Even as she bounced between divorced parents, she planned for her future.

After graduating from a Midwestern high school last year, Joy moved to New York City to get a job and attend the Fashion Institute of Technology. In the process, she learned she was illegal. Her mother, a citizen, had once petitioned the Immigration and Naturalization Service on her daughter's behalf but never followed through.

Joy now tends bar at two restaurants. While she has applied for public housing, she is afraid she'll be turned down because she's illegal.

"I can't apply to F.I.T. now," she says, big tears rolling down her cheeks. "Anything I really want to do is hard."

Brought here as young children, Genevieve and Joy are tied to the United States-and separated from the countries of their birth-by culture, language and family. There are others whose situations are murkier.

Edward, an earnest 18-year-old from Venezuela, was brought here by his mother, who is also illegal, four years ago. Hoping to become a psychologist, he attended public high school, where he was active in student government and community service programs. He stayed in school against the wishes of his mother, who told him he should go to work full-time. On weekends, he stocked shelves at a supermarket for 12 hours a day.

Last spring, Edward won a private scholarship to a small college-a rare achievement for an illegal immigrant. He doesn't know what will happen when he finishes school. He tries not to think about being deported, though it could happen any time.

"I'm afraid of ending up wasting my time, like my mother said," Edward says, speaking with a slight accent. "Being a teen-ager is hard, being a minority is hard and being illegal is hard. And it's hard for people to see that there's a person behind those obstacles."

All-important sponsor

The obstacles got higher in 1996, when the federal Illegal Immigration Reform and Immigrant Responsibility Act passed amid a wave of anti-immigrant sentiment.

The key to becoming legal for people over the age of 18 who do not have special skills or asylum claims has always been to have a sponsor: a spouse, parent, child or even a sibling who is a citizen or a legal resident.

Before 1996, immigration judges could qualify people for residency even if they didn't have sponsors, as long as they had been living here for seven years, demonstrated good character and made a convincing case that it would be a hardship to return to countries they barely knew.

The new law requires aliens who plead hardship to prove that their deportations would cause hardship, not to themselves, but to a parent, spouse or child who is a citizen or has a green card.

The tougher standards, as well as an expansion of the list of deportable crimes and increased funding for the INS, have meant more deportations. In fiscal 2000, for example, the INS deported some 185,000 aliens, compared with roughly 70,000 in fiscal 1996.

The INS' priority is identifying illegal immigrants who have committed crimes. It doesn't go looking for undocumented young people. But a brush with the law, such as shoplifting, can get these young people swiftly deported, even if that means they're being sent to countries where they don't speak the language or have family.

"This is a difficult situation from an enforcement standpoint," an INS spokeswoman concedes.

A backlash on the part of immigration advocates against the 1996 law has spurred efforts to reverse some of the harshest provisions, but many of the proposals would help only legal immigrants. For illegal immigrants, federal lawmakers are considering reinstating an amnesty period, which could open the door for some young people. And a bill allowing college-bound illegal immigrants to get government scholarships has been proposed by members of the House of Representatives.

"Judges hate the (1996) law, prosecutors hate it, the INS hates it," says Mr. Kasinitz, the sociology professor. "It will die the death of a thousand cuts."

Under the law, illegal immigrants who can't make a case to stay in the United States are supposed to return to their countries of their birth and apply for U.S. residency from there. Few actually do. Instead, they remain here, dodging the INS.

For young people who have lived normal lives in the United States for years, sometimes decades, neither option seems tenable.

"It's a very sad one- or two-time meeting, where you tell them there's no remedy," says Monica De La Torre, director of legal services for youth services agency The Door, one of only a few organizations that offer such services to immigrant youth. Covenant House, Catholic Charities and the Legal Aid Society are also major havens. The 1996 law prohibits service organizations that get federal funding from helping illegal aliens to gain legal status.

Few private law firms take cases for illegal aliens, say advocates, because of the dogged effort required. "It's an accident when (these young people are) lucky enough to get someone to pay attention," says Omshanti Parnes, a Covenant House lawyer.

By that estimation, Joy and Genevieve are both lucky.

Trying to make a case

Now 18, Joy is trying to get residency through her parents, though there's no guarantee that her case will be reviewed in time. After she reaches 21, she'll be required to return to West Africa and wait for a visa. Her alternative is to remain in the margins of society.

"I don't worry about going back, because I'm not going back," she insists, crying.

Genevieve is trying to make a case that the discord with her mother qualifies her as a victim of abuse in the eyes of the INS. Then, she might be able to stay here under the Violence Against Women Act.

Meanwhile, she works at a clerical job and takes college classes with the support of sympathetic teachers and coaches.

At times, the stress is too much. Last year, Genevieve tried to kill herself by slitting her wrists and wound up in the hospital for psychiatric evaluation.

"I told them I'm not crazy," she says. "I get depressed."

Ashcroft changes Justice stance on gun rights

He says Constitution protects individuals, not just militias

Dallas Morning News, The (TX)

July 22, 2001

https://infoweb.newsbank.com/

In a departure that could challenge a decades-old approach on gun-control laws, Attorney General John Ashcroft has quietly changed the official Justice Department position on the Second Amendment, reinterpreting it to mean that individuals, not just militias, have an iron-clad right to bear arms.

Mr. Ashcroft outlined his stance in May in a letter to the National Rifle Association, of which he is a member. Justice officials now say it has become the official view of the department, and a White House aide said President Bush supports the decision.

Mr. Ashcroft has not yet made a formal announcement about the shift. For almost half a century, most administrations, along with the courts and the Justice Department, have read the Second Amendment as a relic of the American Revolution - a provision protecting gun rights only in the context of an organized military force. Under that interpretation, federal restrictions on gun ownership by individuals do not conflict with the Constitution.

But Mr. Ashcroft holds a more literal interpretation of the amendment - long the holy grail of the powerful gun lobby. Opponents of such a reading believe it could open the door to challenges to existing federal gun-control laws.

In his letter to the NRA, Mr. Ashcroft wrote: "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms.

"While some have argued that the Second Amendment guarantees only a 'collective' right of the States to maintain militias, I believe the amendment's plain meaning and original intent prove otherwise," he wrote.

Impact unclear

The decision has alarmed gun-control groups and prompted at least one ethics complaint against Mr. Ashcroft, but its long-term implications are unclear. Its effect will depend largely on whether the Bush administration decides to pursue the position consistently in the courts. One Justice official, speaking on condition of anonymity, said, "It could have absolutely no effect whatsoever."

Advocates on both sides of the issue, however, regard the change as momentous. James Baker, executive director of the NRA's legislative branch, described it as an "important shift" in the government stance. Sen. Edward Kennedy, in a letter to Mr. Ashcroft with two other senators, called it an "unacceptable change."

Although Mr. Ashcroft does not make laws, the attorney general's opinions traditionally carry weight with lawyers in the Justice Department and could influence the thinking of judges and defense attorneys in gun cases nationwide, said John Lowy, a senior attorney with the nonprofit Brady Campaign to Prevent Gun Violence. The decision could also influence which cases the Justice Department decides to pursue.

"If I were a criminal defendant and I violated federal gun laws, I would certainly welcome having the attorney general support me in saying that the law I'm being prosecuted under is unconstitutional," Mr. Lowy said.

Scott Harshbarger, whose advocacy group Common Cause filed an ethics complaint against Mr. Ashcroft and asked the White House counsel to investigate, said the shift carries weight.

"When the attorney general speaks, a lot of people in the department and in law enforcement listen," said Mr. Harshbarger, the former Massachusetts attorney general. "This is a pretty radical departure from the stated position of the Justice Department, and it's also a radical departure, at least in spirit, from anything Attorney General Ashcroft said in his confirmation hearings."

Case highlights role

The case of the United States vs. Timothy Joe Emerson serves as an example of the key role the Justice Department plays in the legal battle over gun control. Dr. Emerson, a Texas physician, was indicted in 1999 on charges of possessing and brandishing a gun in violation of the restraining order taken out by his estranged wife during their divorce.

Under the federal Violence Against Women Act of 1994, anyone subject to a domestic restraining order is barred from owning a gun. Dr. Emerson fit that bill. But his public defender, noting that it was never proven in court that Dr. Emerson acted violently, argued that Emerson's Second Amendment rights were infringed upon by an unfair gun-control statute. U.S. District Judge Sam Cummings agreed and threw out the charges. His opinion caused an earthquake in legal circles.

Rare reasoning

"It is absurd that a boilerplate state court divorce order can collaterally and automatically extinguish a law-abiding citizen's Second Amendment rights," Judge Cummings wrote, a rare instance in which a judge cited the Constitution on behalf of a gun owner.

The Clinton administration Justice Department appealed the case to the 5th Circuit Court, where it is still under consideration. A Justice Department spokeswoman, Mindy Tucker, said there will "absolutely be no change" in the department's position in the case now that Mr. Ashcroft is in charge.

That, however, does not preclude him from applying his new standard in future cases. Ms. Tucker was careful to note that Mr. Ashcroft believes that the right to own a gun is "an individual right, but that there are reasonable restrictions."

Mr. Bush has long held a similar view, an aide said. "He's a strong supporter of Second Amendment rights," White House spokesman Scott McClellan said. As for Mr. Ashcroft's shifting of Justice Department policy, Mr. McClellan said, Mr. Bush "supports his decision."

Such a literal reading of the Constitution is palatable to at least one liberal voice. Harvard law professor Laurence Tribe, a constitutional scholar, said that in theory, "there is much to be said for the view that, despite a previous consensus to the contrary, the Constitution does protect an individual right to bear arms." But Mr. Tribe called that right a "limited one, subject to close regulation for the public's safety."

Not pushing

The consensus among gun-control advocates - indeed, across the spectrum within the legal profession - has for decades been that the Second Amendment is no longer a serious issue in the gun-control debate. Neither side wanted to "push it and risk what a clear decision the Supreme Court might make," said one NRA official, speaking on condition of anonymity.

The Supreme Court last ruled on the meaning of the Second Amendment in 1939. In U.S. vs. Miller, the court found the defendant had no right to own a sawed-off shotgun because he did not have a "reasonable relationship to the preservation or efficiency of a well-regulated militia."

More recently, individual justices have weighed in. In a 1997 opinion, Justice Clarence Thomas suggested that the Brady Act, which mandates background checks for gun purchases, violates the Constitution.

Aside from the substance of Mr. Ashcroft's decision, what has outraged some detractors is the method he chose to reveal it. Although his letter to the NRA did not refer to the Emerson case, Mr. Ashcroft was almost certainly aware of its relevance, a situation that prompted the ethics complaint and drew fire from Democrats.

"Your NRA letter appears to support the defendant's position and actually contradicts the arguments made by the Justice Department in favor of the prosecution," read the letter from Mr. Kennedy, Sen. Dianne Feinstein of California and Sen. Charles Schumer of New York, all Democrats. "Your letter endorses an extreme view of the Second Amendment that is inconsistent with the position that your department has taken in ongoing litigation."

For the NRA, it's a warmer White House

Recent moves by the Bush administration suggest strong sympathy for gun owners and gun-control groups are worried

Philadelphia Inquirer, The (PA)

August 10, 2001

https://infoweb.newsbank.com/

Now that Republicans control the White House, the nation's capital is a much friendlier place for the National Rifle Association.

Since President Bush took office, the administration has canceled a Clinton-era gun-buyback program opposed by the NRA, forced the weakening of an international treaty aimed at stopping the flow of small arms, and endorsed an expansive reading of the Constitution's Second Amendment, which guarantees the right to bear arms.

And last month, the NRA put a picture of Attorney General John Ashcroft on the cover of one of its magazines, heralding his endorsement of the idea that individual gun ownership is a constitutional right.

The close links between the Bush administration and gun owners come as no surprise, given the NRA's intensive efforts for Bush and other Republicans in last year's election.

But after years of acrimony between gun owners and the administration of Bill Clinton - who pushed for tighter gun laws, including a ban on assault weapons - the cordial relations between gun groups and the White House mark a dramatic turnabout.

The Bush White House has "acted in marked contrast to the previous administration," said James Baker, chief lobbyist and legislative strategist for the NRA. "That is exactly what they said they would do during the campaign, which is a refreshing change for a politician."

The NRA is also gaining ground on Capitol Hill, where Democrats have increasingly questioned whether their party's advocacy of gun control cost Al Gore the presidency. As if to underscore the gun lobby's congressional influence, the Democratic-controlled Senate last week voted down a proposal to reverse the administration's cancellation of the gun-buyback program.

It is unclear whether the administration's initiatives will have a significant impact, because its actions so far affect issues on the margins of the gun debate or because the issues are still in the courts.

But groups that favor gun control say the Bush administration is sending strong signals that it supports the NRA's agenda and wants to weaken gun restrictions where it can.

"This is not going to change anything overnight, but it is the first step toward radical changes," said Kristen Rand, a legislative director for the Violence Policy Center, a nonprofit that pushes for tighter gun laws.

The administration delivered on a longtime NRA objective in June by ordering the FBI to destroy records of firearms background checks within 24 hours of obtaining them. The FBI collected the records through the National Instant Criminal Background Check System, instituted several years ago to prevent felons and other disqualified people from obtaining guns.

Over objections by the NRA, which contended that retaining the records could lead to a national gun registry, the FBI said it needed to keep them for up to six months to trace gun traffickers and detect gun dealers who were abusing the system.

Mindy Tucker, a spokeswoman for the Justice Department, which oversees the program, says the department now believes those efforts can take place without retaining the records, a contention disputed by gun-control advocates, who say the new policy will make the system less effective.

Rand and other gun-control advocates said they were particularly concerned by a May 17 letter from Ashcroft to the NRA's Baker, in which the attorney general reversed departmental policy by concluding that the Second Amendment guarantees an individual's right to keep and bear arms. Ashcroft's letter came in response to a request by Baker that he clarify the policy.

The Clinton administration and prior federal court decisions going back six decades had concluded that the right applied only to individual states' ability to establish militias.

Ashcroft, a lifetime member of the NRA, adopted a view promoted increasingly by conservative scholars that the framers of the Constitution, who had won independence from Britain through an armed insurrection, had always intended that it be an individual right.

But by endorsing that interpretation, Ashcroft contradicted the position of Justice Department lawyers in a criminal case whose outcome could change the legal landscape on gun control.

In that case, a San Angelo, Texas, doctor argues that his 1998 indictment for possessing a handgun was unconstitutional because it violated the Second Amendment.

The doctor, Timothy Joe Emerson, was indicted under an obscure provision of the 1994 Violence Against Women act, which bars possession of a firearm by anyone under a restraining order. Emerson was placed under a restraining order as part of a divorce proceeding.

He was indicted after his wife reported that he pulled a revolver from a drawer and placed it on a desk in front of him when she had visited him to discuss their pending divorce.

U.S. District Judge Sam Cummings threw out the indictment last year, finding the restriction on gun ownership unconstitutional - the first time a gun-control law was ruled unconstitutional by a federal court. The case, United States v. Emerson, is on appeal to the U.S. Court of Appeals in New Orleans.

Common Cause and the Brady Center to Prevent Gun Violence, a gun-control group based in Washington, filed an ethics complaint against Ashcroft with the inspector general of the Justice Department, saying Ashcroft had improperly reversed the position of his own department in the case.

Dennis Henigan, legal director of the Brady Center, noting that Emerson's attorney had already cited Ashcroft's letter in the case as part of the defense, said he expected other criminal-defense lawyers to use the letter.

"Every modern court that has dealt with this issue has ruled that there is no such individual right" to own a gun, Henigan said. Ashcroft "allows his personal views, which are in accord with the NRA, to materially and adversely affect the interests" of the country.

The Justice Department disputes that the letter will undermine prosecution of gun cases. If anything, Tucker insists, the department will beef up prosecution of gun crimes, a tactic long favored by Republicans over enactment of new gun laws. Ashcroft recently announced the assignment of more prosecutors to gun enforcement.

"What this means is we will be prosecuting more gun crimes, not less," Tucker said.

Lawyer Helps Save Battered Immigrants

Albuquerque Journal (NM)

September 5, 2001

https://infoweb.newsbank.com/

* Victims of domestic violence can qualify for legal status and work permits

Most days, when Anna was an undocumented immigrant, she was too scared to call police for fear of being deported.

As a victim of domestic violence, she felt isolated. And her husband, who was in the U.S. legally, kept the upper hand, threatening her with calling the Immigration and Naturalization Service if she told anyone about his behavior.

But one day, he went too far. She said she was afraid for her life after her husband hurt her when she was in the middle of her pregnancy. She called police who didn't report her to the INS.

Anna, 22, is among the nearly 300 women (and one man) Mirna Torres has helped through the federal Violence Against Women Act, a program begun in the mid-1990s for battered spouses and their children.

Under the act, spouses can apply for legal permanent status and qualify for work permits without telling their spouse about the application.

The law only applies in cases where the abusive spouse is a legal resident or citizen. A similar law is available for victims whose spouse also is in the country illegally. But in those cases, the victim must agree to press charges.

Most of the cases brought under the Violence Against Women Act never make it to court, Torres said. Instead, the women are instructed by authorities to get a restraining order to keep the abuser away. For example, after Anna was treated for her injuries, she stayed in a women's shelter for a while and got a yearlong restraining order against her husband, Torres said.

Torres said she believes this is the only program in New Mexico providing free legal services to undocumented immigrant men, women and children who are victims of domestic violence. She said she has successfully petitioned the INS for work permits in all her cases.

"It's freedom to these women," Torres said in an interview.

A work permit also means the woman can get a driver's license or state identification card, and a Social Security number. It means she can attend school, get a job, open a bank account and rent a house under her name. "My clients are so amazing. They're inspiring," Torres said. "I don't understand how they do it."

Torres offers more than her legal services. She encourages the women to find work, go to school.

"She's helped us like a friend," said Leticia, 36, a mother of three children. "We need her; she's there for us. She helps us but she says you have to work or go to school. You have to do something and this is good for us."

Leticia and Anna are part of a small and growing group of immigrant women who look out for each other. They live near one another, watch over each other's babies and offer support. They met through Torres.

Torres, 27, got the idea of representing immigrant women who are victims of domestic abuse when she was in law school at Northwestern University near Chicago.

Before that, she attended the University of New Mexico. Originally from Mexico, she came to the United States in 1985 as an undocumented immigrant and grew up in Lovington.

Torres' program started with a fellowship from the National Association for Public Interest Law, a nonprofit organization based in Washington, D.C., that provides fellowships to lawyers.

She also has a $38,000 grant from the New Mexico Crime Victims Reparation Commission to expand and continue her work. Torres must reapply for grant money each year. Meanwhile, Catholic Charities of Central New Mexico pays for her office space in the Catholic Charities office on Bridge SW.

Torres asks clients to provide marriage and birth certificates, residential leases, letters from people who know them and an affidavit of how the couple met and how violence tore the family apart. The victim has to prove she has been in the United States and is a person of "good moral character," Torres said.

"This is her testimony, in a way, to INS," Torres said.

They also need to provide police records. "Clients hate it," she said. "They finally have to tell somebody everything. I have to gain their trust."

Torres has 80 clients from across the state including Albuquerque, Artesia, Taos, Grants, Silver City, Deming and Santa Rosa.

Many of her clients hear about her services through word-of-mouth. "I have a lot of clients who refer clients within the Mexican or Russian (communities)," Torres said.

Torres helps the women find housing through Catholic Charities.

"The main point is to get her out of the abusive relationship," she said.

Anna said she couldn't have gotten out of her household without Torres' help. Since she met Torres, she has given birth to a son, who is now 8 months old.

Anna said she plans to attend TVI, where she will take English as a Second Language classes. She wants to become a social worker. For now, Anna is taking parenting classes.

"I feel so happy I have one year free," Anna said. "And I have my baby with me. He doesn't have his daddy with him, but I have a lot of people who love him."

FUND SERVICES TO FIGHT DOMESTIC VIOLENCE

BUSH BUDGET FALLS SHORT

Roanoke Times, The (VA)

September 5, 2001

https://infoweb.newsbank.com/

EVERY DAY in this country, an average of three women and three children are murdered, 1,000 people are sexually assaulted and more than 10,000 women are severely abused due to family violence.

In October 2000, Congress by an overwhelming majority responded to this epidemic of family violence by reauthorizing the Violence Against Women Act. It authorized spending $677 million per year for each of the next five years on domestic-violence and sexual-assault programs, hotlines, shelters and services nationwide.

While President Bush's budget is notably strong in requests for criminal-justice system funding for the act, his budget requests for funding through the Department of Social Services fall almost $100 million short of the spending levels authorized by it. Full Department of Social Services funding for the Violence Against Women Act is essential.

Every day, hundreds of women and children are turned away from life-saving domestic-violence shelters due to overcrowding, while Bush's budget requests $58 million less than the act's authorized spending levels for these vital programs.

Every day, nearly 1,000 people are sexually assaulted - more than half of them children - while his budget requests $35 million less than the act's authorized spending levels for rape-crisis, prevention and education programs.

The Violence Against Women Act is an essential piece of legislation. Its programs have been effective at protecting victims and at holding offenders accountable. Domestic-violence murder rates have declined since the act's implementation in 1995, but it is meaningless if there isn't funding to keep these life-saving programs running.

This month, Congress will be making final decisions on the 2002 budget. Please visit http://www.stopfamilyviolence.org to send a free, prewritten message to our legislators, urging them to provide full funding for all Violence Against Women Act programs in the budget. Let them know that keeping our families safe is a spending priority.

- -

NANCY MOORE is executive director of Prevent Child Abuse Now in Christiansburg.

NEVER-ENDING VIOLENCE

Court-ordered classes don't cut domestic assault statistics

Anchorage Daily News (AK)

September 6, 2001

https://infoweb.newsbank.com/

At home, the batterer screams and shouts. Punches and pushes, pulls phone cords from the wall and aims dishes or lamps or even cars at the victim. The raging often continues even after police arrive. Much of the time -- officials estimate 80 percent of the time -- the batterer is drunk or using drugs.

But later, standing before District Court judges, batterers -- usually neatly dressed and sober -- can turn meek. Every response is respectful. ''Yes, your honor,'' they say, standing at attention. ''Thank you, your honor.'' They shake hands and open doors for the women with them.

Getting this transformation to continue beyond the courtroom -- that's the formidable challenge facing the courts, police and social agencies enmeshed in this social problem. Everyone who works with domestic violence says its effects radiate across society, causing serious problems for children and increasing public health costs.

One of the overriding questions is whether the city's main tool to reform batterers -- intervention programs -- causes men to stop battering.

BATTERERS' PROGRAMS

The programs work this way: Judges send many of the batterers -- men and women -- to alcohol- and drug-abuse programs. At the same time or later, many also are sent to a batterers' class.

State-approved batterer programs are a 24-week course of two-hour weekly classes. Batterers pay $30 a class, and no state or charity money is used.

In the classes, the batterers stand before the class and describe their rage-filled behavior. They also role-play and do a number of exercises designed to help them take responsibility for their violent behavior -- and stop it.

But multiple problems interfere with this plan for rehabilitation. Among the difficulties are:

* Noncompliance. Most batterers -- and most are men -- don't finish the programs. Local agencies that offer batterer programs estimate that judges order 1,500 men a year to attend the classes, a condition of their being on probation instead of going to jail. Of those, they say, about 500 finish the course, 500 drop out and 500 never show up.

* Insufficient oversight. Why is compliance an issue? First, prosecutors take the noncompliant case back before a judge, asking that probation be revoked because the man has not attended the classes.

Nothing more happens in many cases. ''Thousands and thousands'' of warrants, one judge said, never get executed. Sgt. Bill Herrick, in charge of the warrants section of Anchorage Police Department, acknowledged the backlog. He said he cannot execute all the warrants he gets with the personnel he has.

Most domestic-violence arrests occur when the defendant has been detained for a subsequent offense, such as a traffic violation or another battering, say those involved in domestic violence programs.

* Questionable effectiveness. Perhaps the most troubling problem deals with the programs themselves. Do they stop men from beating up their families? If the men quit beating women and children but torture them psychologically and emotionally, is the program a success?

National studies -- most done since passage of the 1994 Violence Against Women Act provided funding for studies -- show mixed results. None has shown conclusively that a majority of batterers behave after taking the courses -- that is, that batterer programs ''work.''

A 1995 study questions whether any study can determine if batterer programs work. The usual standards in scientific studies -- a statistically significant change, such as reducing beatings from five to three per week -- are inappropriate in domestic violence research, the author wrote.

However, analysis of several major studies led the author to conclude that most men who finish the batterers' courses are less violent afterward. A 1997 study that followed men for 15 months after they completed a program reinforced that finding.

* Funding issues. Apart from questions about what kind of program might help batterers reform, most of the uncertainties about dealing with domestic violence revolve around distributing resources and how to organize government entities with responsibility for the problem.

First, the resource issue: State money is funneled from the Council of Domestic Violence and Sexual Assault, part of the state Department of Public Safety, to agencies like Abused Women's Aid in Crisis. AWAIC has about $800,000 this year for victim programming.

The municipal Department of Health and Human Services gave $50,000 to AWAIC last year to monitor batterers' attendance at court-mandated programs. This year, that money is being shifted to the municipal prosecutor's office.

Earlier plans for the state Department of Corrections to provide a person to do the monitoring gave way to transfer of the funds to prosecutor Bruce Roberts, whose office hopes to set up monitoring. But is $50,000 adequate to effectively monitor batterers?

''Everybody says we have a serious problem (domestic violence), but nobody's willing to kick in the money to beef up resources,'' Roberts said.

Since the programs aren't proven to help batterers reform and since an estimated two-thirds of them resist attending, at least one judge questions the wisdom of spending money to help batterers reform.

''Perhaps we should just spend more money and resources working with victims to help them make good choices, by providing more and better options,'' said Deputy Presiding District Judge Peter Ashman.

* Coordination problems. Another major problem in dealing with domestic violence is that computerized records of one agency are not readable by computers of another agency.

''Our computers won't talk to one another,'' Roberts said.

As a result, police arrest records can't be pulled into the prosecutor's computer so repeat offenders can be tracked. Nor can the prosecutor pull court records into his system to track orders that have been handed down.

Questions that should be easy to answer can't be answered at all. For example, how many men ordered to go to batterer programs failed to comply and were arrested?

TOWARD SOLUTIONS

City and state agencies have long known that the incompatibility exists. The Women's Commission Action Plan released June 22 identified improved information gathering, storage and flow as crucial elements in following cases through the justice system. The time line calls for police and prosecutor records to be integrated by December 2003.

The prosecutor's office and courts are working on new computer systems, and police made some progress toward installing an updated system earlier this year.

District courts are experimenting with new models for handling cases, Ashman said, and are considering other changes to improve efficiency.

Establishment of a domestic-violence court is another of the commission's goals for December 2003, along with focus groups for aggressors to find techniques that reduce violence.

As imperfect as the Anchorage plan is, the city has been a leader in dealing with domestic violence. The municipality and residents have responded with a comparatively high level of financial and material commitment, said AWAIC director Jan MacClarence.

''Domestic violence services have a level of support in Anchorage unlike that for any other social problem,'' she said. ''Sometimes when I arrive at the office door, I can't get in because donations are piled up by the door.''

Anchorage had been doing most of the things required by state legislation in 1996 for many years before that, MacClarence said. For example, police made arrests when probable cause existed, even if they hadn't seen the violence.

Judge Ashman pointed to two goals in dealing with domestic violence: keeping women and children safe, and holding batterers accountable for their conduct.

''But these are different goals,'' he said. ''Holding batterers accountable does not necessarily make victims safer.

''We need to learn more about what works, to give victims more choices and to encourage batterers to change their behavior,'' Ashman said. ''The challenge facing the courts is to focus and coordinate our efforts toward both of these goals.''

MOST DOMESTIC VIOLENCE ISN'T REPORTED TO POLICE

Anchorage has been grappling with domestic violence as a public issue since the early 1980s, when its Safe Cities program was created. An Anchorage Women's Commission study released in July 1985 recommended 39 actions. One that became law in November 1985 required arrests in domestic violence cases when police had ''probable cause'' to believe an assault had occurred.

After that, domestic violence statistics exploded, according to a 10-year study published in October 2000 -- the third by the commission and the city Department of Health and Human Services.

In 1998, the last year covered in the study, police responded to 3,803 domestic violence calls -- 1,478 per 100,000 residents. At least five times that many probably occurred, with most not reported, national studies estimate. Over the 10-year period, domestic violence arrests in Anchorage ballooned by 389 percent.

Despite recognition of the problem by the municipality and the community, Anchorage and Alaska, like the nation, have many needs in relation to domestic violence, said Jan MacClarence, director of Abused Women's Aid in Crisis.

''Our system is so full of holes that you could drive a hearse through it,'' she said.

Does Most Domestic Violence Occur on Super Bowl Sunday?

"Women's shelters and hotlines are flooded with more calls from victims on Super Bowl Sunday than on any other day of the year."

Snopes Staff

September 07, 2001

https://www.snopes.com/fact-check/domestic-violence-super-bowl-sunday/

Claim:

More women are victims of domestic violence on Super Bowl Sunday than on any other day of the year.

Rating:

False

Origin

Domestic violence has been a problem all too often ignored, covered up, and swept under the rug. Many well-intentioned and successful efforts have been made in the last few decades to bring the issue to public attention; to get the word out to women that they need not suffer silent, helpless, and alone; to advertise that there are organizations victims can turn to for help and support; and to educate others in spotting the signs of abuse. Unfortunately, nearly every cause will encompass a sub-group of advocates who, either through deliberate disingenuousness or earnest gullibility, end up spreading “noble lies” in the furtherance of that cause. The myth of Super Bowl Sunday violence is one such noble lie.

The claim that Super Bowl Sunday is “the biggest day of the year for violence against women” is a case study of how easily an idea congruous with what people want to believe can be implanted in the public consciousness and anointed as “fact” even when there is little or no supporting evidence behind it. Christina Hoff Sommers charted a timeline of how the apocryphal statistic about domestic violence on Super Bowl Sunday was widely (if erroneously) publicized over the course of a few days leading up to the Super Bowl in January 1993:

Thursday, January 28
A news conference was called in Pasadena, California, the site of the forthcoming Super Bowl game, by a coalition of women’s groups. At the news conference reporters were informed that significant anecdotal evidence suggested that Super Bowl Sunday is “the biggest day of the year for violence against women.” Prior to the conference, there had been reports of increases as high as 40 percent in calls for help from victims that day. At the conference, Sheila Kuehl of the California Women’s Law Center cited a study done at Virginia’s Old Dominion University three years before, saying that it found police reports of beatings and hospital admissions in northern Virginia rose 40 percent after games won by the Redskins during the 1988-89 season. The presence of Linda Mitchell at the conference, a representative of a media “watchdog” group called Fairness and Accuracy in Reporting (FAIR), lent credibility to the cause.At about this time a very large media mailing was sent by Dobisky Associates, warning at-risk women, “Don’t remain at home with him during the game.” The idea that sports fans are prone to attack wives or girlfriends on that climactic day persuaded many men as well: Robert Lipsyte of the New York Times would soon be referring to the “Abuse Bowl.”

Friday, January 29
Lenore Walker, a Denver psychologist and author of The Battered Woman, appeared on “Good Morning America” claiming to have compiled a ten-year record showing a sharp increase in violent incidents against women on Super Bowl Sundays. Here, again, a representative from FAIR, Laura Flanders, was present to lend credibility to the cause.

Saturday, January 30
A story in the Boston Globe written by Linda Gorov reported that women’s shelters and hotlines are “flooded with more calls from victims [on Super Bowl Sunday] than on any other day of the year.” Gorov cited “one study of women’s shelters out West” that “showed a 40 percent climb in calls, a pattern advocates said is repeated nationwide, including in Massachusetts.”

Commentators were quick to offers reasons why this “fact” was so obviously true: Men are mostly loutish brutes, and football is the epitome of mindless, aggressive, violent, testosterone-driven macho posturing, so certainly during the culmination of the football season and its final, spectacular, massively-hyped “super” game, more men than ever were going to express their excitement or disappointment by smacking their wives and girlfriends around. So much attention did the “Super Bowl abuse” stories garner that NBC aired a public service announcement before the 1993 game to remind men that domestic violence is a crime.

Ken Ringle, a reporter for the Washington Post, was one of the few journalists to bother to check the sources behind the stories. When he contacted Janet Katz, a professor of sociology and criminal justice at Old Dominion University, and one of the authors of the study cited during the January 28 news conference, he found:

Janet Katz, professor of sociology and criminal justice at Old Dominion and one of the authors of that study, said “that’s not what we found at all. “One of the most notable findings, she said, was that an increase of emergency room admissions “was not associated with the occurrence of football games in general, nor with watching a team lose.” When they looked at win days alone, however, they found that the number of women admitted for gunshot wounds, stabbings, assaults, falls, lacerations and wounds from being hit by objects was slightly higher than average. But certainly not 40 percent.

“These are interesting but very tentative findings, suggesting what violence there is from males after football may spring not from a feeling of defensive insecurity, which you’d associate with a loss, but from the sense of empowerment following a win. We found that significant. But it certainly doesn’t support what those women are saying in Pasadena,” Katz said.

Likewise, Ringle checked the claim made by Dobisky Associates (the organization that had mailed warnings to women advising them not to stay at home with their husbands on Super Bowl Sunday) that “Super Bowl Sunday is the one day in the year when hot lines, shelters, and other agencies that work with battered women get the most reports and complaints of domestic violence.” Dobisky’s source for this quote was Charles Patrick Ewing, a professor at the University at Buffalo, but Professor Ewing told Ringle he’d never said it:

“I don’t think anybody has any systematic data on any of this,” said Charles Patrick Ewing, a forensic psychologist and author of “Battered Women Who Kill.”Yet Ewing is quoted in the release from Dobisky Associates declaring “Super Bowl Sunday is one day in the year when hot lines, shelters and other agencies that work with battered women get the most reports and complaints of domestic violence.”

“I never said that,” Ewing said. “I don’t know that to be true.”

Told of Ewing’s response, Frank Dobisky acknowledged that the quote should have read “one of the days of the year.” That could mean one of many days in the year.

In addition, Ringle learned that Linda Gorov, the Boston Globe reporter who’d written that women’s shelters and hotlines are “flooded with more calls from victims [on Super Bowl Sunday] than on any other day of the year” hadn’t even seen the study she’d cited in support of that statement but had merely been told about it by Linda Mitchell, the FAIR representative who was present at the January 28 news conference that had kicked off the whole issue.

Did any evidence back up the assertion that Super Bowl Sunday was the leading day for domestic violence? When the Washington Post‘s Ringle attempted to follow the chain by contacting Linda Mitchell of FAIR, Mitchell said her source had been Lenore Walker, the Denver psychologist who’d appeared on “Good Morning America” the day after the news conference. Ms. Walker’s office referred Ringle to Michael Lindsey, another Denver psychologist who was also an authority on battered women. Mr. Lindsey told Ringle that “I haven’t been any more successful than you in tracking down any of this” and asked, “You think maybe we have one of these myth things here?”

The upshot? It turned out that Super Bowl Sunday in 1993 (as in other years) was not a significantly different day for those who monitor domestic abuse hotlines and staff battered women’s shelters:

Those who work with the victims of domestic violence in Connecticut reported no increase in cases [on the day after the Super Bowl], after a barrage of publicity on the potential link between Super Bowl gatherings and family violence. An increase in domestic violence predicted for Super Bowl Sunday did not happen in Columbus, authorities said, and others nationwide said women’s rights activists were spreading the wrong message.

Despite some pregame hype about the “day of dread” for some women, Columbus-area domestic violence counselors said that [Super Bowl] Sunday, although certainly violent for some women, was relatively routine.

So, on what day of the year is domestic violence against women most prevalent, if not Super Bowl Sunday? It appears domestic violence doesn’t peak on any one specific day, but it does rise at particular times of the year.

For example, a 2006 study published in the Handbook of Sports and Media that examined over 1.3 million domestic violence police reports from every day of the year in 15 NFL cities found only a very small rise in domestic violence dispatches on (or just after) Super Bowl Sunday, but nearly a quintupling of domestic violence police dispatch reports around major holidays such as Christmas. A 2007 study that analyzed patterns of women fleeing domestic abuse found that the highest intake rates of women with children at shelters coincided not with Super Bowl Sunday, but with breaks in the school calendar such as Christmas vacation, spring break, and summer vacation (although that study surveyed when women most often fled from their abusers rather than when they actually experienced the abuse that prompted them to flee).

The weeks and months after the 1993 Super Bowl saw a fair amount of backpedaling by those who had propagated the Super Bowl Sunday violence myth, but as usual the retractions and corrections received far less attention than the sensational-but-false stories everyone wanted to believe, and the bogus Super Bowl statistic remains a widely-cited and believed piece of misinformation. As Sommers concluded, “How a belief in that misandrist canard can make the world a better place for women is not explained.”

Variations: A similar item, circulated during the 2014 World Cup football (i.e., soccer) tournament and based on a study by researchers at Lancaster University, held that “Every time England loses the World Cup, domestic violence against women raises 38%.”

Sources

Cadwallader, Bruce. “Super Bowl Battering Didn’t Happen.” The Columbus Dispatch. 2 February 1993 (p. C1).

Cobb, Jean. “A Super Bowl — Battered Women Link?” American Journalism Review. May 1993 (p. 33-38).

Gantz, W. et al. “Televised NFL Games, the Family, and Domestic Violence.” Published in: Raney, Arthur A. Handbook of Sports and Media. Mahwah, NJ: Lawrence Erlbaum Associates, 2006. ISBN 0-805-85189-5 (pp. 365-381).

Gorov, Lynda. “Activists: Abused Women at Risk on Super Sunday.” The Boston Globe. 29 January 1993 (Metro; p. 13).

Hohler, Bob. “Super Bowl Gaffe.” The Boston Globe. 2 February 1993 (p. 1).

Oths, K.S. “Give Me Shelter: Temporal Patterns of Women Fleeing Domestic Abuse.” Human Organization. 2007: 66(3), pp. 249-260.

Ringle, Ken. “Debunking the ‘Day of Dread’ for Women." The Washington Post. 31 January 1993 (p. A1).

Sommers, Christina Hoff. Who Stole Feminism?: How Women Have Betrayed Women. New York: Simon & Schuster, 1994. ISBN 0-684-80156-6 (pp. 188-192).

Tuohy, Lynne. “No Increases in Domestic Violence Reported from Super Bowl.” The Hartford Courant . 2 February 1993 (p. A3).

The Wall Street Journal. “Football’s Day of Dread.” 5 February 1993 (p. A10).

Trial set for man accused of killing wife

Standard-Examiner (Ogden, UT)

October 5, 2001

https://infoweb.newsbank.com/

SALT LAKE CITY -- An Illinois man accused of pushing his wife to her death from a trail in Zion National Park will face trial in May 2002.

James S. Bottarini, 42, of Ottawa, Ill., was indicted in October 2000 on fraud charges for trying to collect more than $1 million on his wife"s life insurance policy and other investments after her death in May 1997.

In April 2001 another indictment added one count of interstate domestic violence, a violation of the federal Violence Against Women Act. He could serve life in prison for that charge, said Melodie Rydalch, spokeswoman for the U.S. Attorney"s office.

The federal government does not have jurisdiction to charge him with murder, but local authorities may decide to do so, she said.

According to prosecutors, 36-year-old Patricia Bottarini and her husband were hiking Observation Point Trail, a nearly eight-mile hike that climbs 2,148 feet. Part way up the trail, Bottarini allegedly pushed his wife, causing her to fall to her death.

Bottarini has pleaded innocent to the charges.

Prosecutors are skeptical of his claim of accidental fall because in 60 years the trail has been open, there had not been a single fatal fall.

US District Court Of Appeals

Appeal From US District Court For Northern District Of Texas

RE: Dr. Timothy Joe Emerson - Second Amendment Rights And Restraining Order

October 16, 2001

http://www.ca5.uscourts.gov/opinions%5Cpub%5C99/99-10331.cr0.wpd.pdf

10162001--US-Court-Of-Appeals--Appeal-From-US-District-Court-For-Northern-District-Of-Texas--Timothy-Joe-Emerson--Second-Amendment-Rights-And-Restraining-Order

Appeals court: Domestic violence restraining order is reason to restrict gun rights

Associated Press Archive

October 17, 2001

https://infoweb.newsbank.com/

Citizens have a broad right to bear arms, but the right may be restricted if a person is under a domestic violence court order, a federal appeals court ruled.

The 5th U.S. Circuit Court of Appeals on Tuesday overturned a district judge's decision that Timothy Emerson, a San Angelo, Texas, physician, was wrongly prosecuted for buying a pistol while under a temporary restraining order meant to protect his wife and child.

The appeals court sent the case back to Texas for trial. But in its ruling, the three-judge panel also took a step into a long-fought debate over the intent of the Second Amendment of the Constitution.

The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

Gun-control advocates argue the wording should be taken literally to mean that only members of a "well-regulated militia" have the right to bear arms. Advocates for gun ownership say the amendment should be interpreted to mean almost all Americans have the right to own a gun.

Generally siding with the gun ownership advocates, the appeals court wrote that the Second Amendment preserves Americans' "right to keep and bear arms whether or not they are a member of a select militia or performing active military service or training." However, the court said, the restraining order against Emerson was sufficient "to support the deprivation ... of the defendant's Second Amendment rights."

Although the Second Amendment protects an individual's right to bear arms, "that does not mean that those rights may never be made subject to any limited, narrowly tailored ... exceptions or restrictions," 5th Circuit Judge William Garwood wrote for the panel.

The court's ruling said the restrictions on Emerson's gun ownership were valid for as long as the restraining order was valid.

"Legally, it's a huge victory in the quest to prove that the Second Amendment is indeed an individual right," said David Guinn, Emerson's attorney. "More importantly for Dr. Emerson, it's a very, very sad day. The consequences of fighting unsuccessfully with the federal government are usually pretty harsh."

Guinn said he would request a hearing before the entire appeals court and might ask that the case be heard by the U.S. Supreme Court.

The Supreme Court has ruled only once -- in 1939 -- directly on the scope of the Second Amendment. In that ruling, it said there is no right to own a sawed-off shotgun in the absence of "some reasonable relationship to the preservation or efficiency of a well regulated militia."

Assistant U.S. Attorney Bill Mateja said he was pleased with Tuesday's reversal but declined further comment until he could review the opinion.

The ruling is a mixed bag for gun control advocates, said attorney Ruchi Bhowmik of the Brady Center to Prevent Gun Violence.

"Their decision on the constitutionality of the violence against women act is a victory for common sense gun safety measures," Bhowmik said. However, the Brady Center said the decision on the Second Amendment goes against established precedent.

Jim Baker, chief lobbyist for the National Rifle Association, said in a telephone interview from Washington that the NRA was "extremely pleased" with the ruling.

"Clearly, the 5th Circuit has held that the Second Amendment is an individual right. For the first time in modern legal history a court of appeals has held that it is not a collective right."

He said he hopes other circuits will now use Tuesday's ruling in considering other cases.

The Texas case goes back to 1998 when Emerson's wife, Sacha, filed for divorce and was granted a temporary restraining order to prevent her husband from threatening or harming her or the couple's daughter.

Emerson was arrested after he bought a pistol and was prosecuted on grounds that purchasing the gun was a violation of the order.

District Judge Sam Cummings of Lubbock, Texas, granted Emerson's motions to dismiss the indictment on both Second Amendment and Fifth Amendment grounds. The government appealed to the 5th Circuit, which heard arguments in the case last year.

CLASSROOM RAMPAGE

Attack may support ex-wife's INS case

York Dispatch, The (PA)

November 28, 2001

https://infoweb.newsbank.com/

William Michael Stankewicz's arrest for the Friday violence at North Hopewell-Winterstown Elementary School has thrust one of his ex-wives into the public eye.

It's something she's willing to endure, because she thinks it may help her plight with the Immigration and Naturalization Service.

But it's a calculated risk, she and her attorney both agree, because the publicity could remind the agency that's she still here without legal status.

Local attorney Craig Trebilcock, representing Larisa Montgomery in her effort to stay in the United States, said he welcomes the scrutiny that press coverage will bring to her case.

Trebilcock said Montgomery finds herself in an illegal status because the INS did not believe her claims of spousal abuse, which would have waived a regulation that "mail order brides" remain married for two years after receiving her green card.

Stankewicz was arrested Friday after police said he attacked students, teachers and the principal at North Hopewell-Winterstown Elementary School. He is in the York County Prison in lieu of $2 million bail, charged with two counts of criminal attempt homicide, nine counts of aggravated assault, and one count of possession of a weapon on school property.

"We think that maybe this is like some way to tell the other side. Maybe people in the INS will see my side. I am a patient person. Maybe I should be patient and quiet, so they don't kick me out," Montgomery said.

Married in 1995: Larisa Anatolylevna Ohachinskaya married Stankewicz on February 15, 1995. They had met through Club Prima, a Texas matchmaking company specializing in introducing American men to Russian women.

Stankewicz corresponded with Larisa and traveled to Kazakhstan, a former Soviet republic, to meet her in the summer of 1994. They married on Feb. 13, 1995 and she entered the United States on what is called a K-1 permit.

Her daughters, Olya and Alexandra, were 13 and 9 at the time; they enrolled in the sixth and third grades at North Hopewell-Winterstown.

Larisa filed for divorce from Stankewicz a year later, claiming Stankewicz was abusive to her and made sexual advances to her girls.

She has since remarried, and lives in York County with her new husband and daughters. Her new name is Larisa Montgomery.

But INS regulations require "mail order brides" to stay married for at least two years to their original spouse after entering the country on a K-1 visa. After those two years, the immigrant spouse can apply for permanent legal status. The law is meant to prevent fraudulent marriages that could be used to bring aliens into the country, said Jennifer Mickey, spokeswoman for the Philadelphia Division of the INS.

Exceptions: Exceptions to the law permit the divorced immigrant spouse to apply for a waiver if their U.S. citizen spouse dies or the immigrant spouse can prove they left the marriage because of abuse.

Larisa applied for the waiver under the abused spouse exception about two years ago, but the INS apparently didn't believe her, and turned down her request, Trebilcock said.

"He (Stankewicz) told the court that I just married him to come here," Montgomery said. "It was not my fault (the divorce). He was behaving wrong."

Trebilcock is appealing that decision and is mailing the most recent information about Stankewicz to INS officials by overnight mail today, hoping to change their minds. Trebilcock said he believes Stankewicz went to the school looking to kill Larisa's daughters, neither of whom attend the school anymore.

And though he's saddened by the tragic attack, Trebilcock said he's hopeful the tirade will prove Montgomery's accusation of abuse. Trebilcock said he can't understand how the INS could have denied her waiver request in the first place.

Montgomery said Stankewicz wouldn't allow her to have a job. When he was angry with her or the girls, she said, Stankewicz refused to buy food. She said he swore at her and the girls. He would walk around nude and took the daughters' underwear, she said.

Five months after they were married, Larisa filed for a protection from abuse order in York County Court, alleging Stankewicz was touching her daughters on the buttocks and legs and physically abusing her. Turned down for the PFA, she took her daughters to an apartment in West York in the fall of 1995, with assistance from First Church of the Brethren in York. She filed for divorce in 1996.

Stankewicz spent two years in federal prison after pleading guilty to one count of making interstate threats in 1996.

Troubles with INS: "It's not just that I disagreed with the INS," Trebilcock said about the agency's decision to reject her spousal abuse waiver. "It was like, gee, did they even read the same file?"

Mickey said the INS cannot discuss specific cases.

Trebilcock said he appealed the previous rejection, asking the INS to review the case based upon the evidence already presented and a previous neighbor's new testimony that she saw Stankewicz grope the daughters.

Also, the Violence Against Women Act, passed by Congress last year, specifically provides protection for women in situations such as the one in which Montgomery finds herself.

"We are basically saying to the INS, not only did you blow it the first time, but now there's an even better law with more teeth in it to protect women. We want you to use these facts against the new law," Trebilcock said.

If the new information doesn't prompt the INS to review her case, Trebilcock said, he's hopeful it will at least convince them to let Montgomery stay in the country while she continues the appeal process. But he said there is always the possibility they could try to deport her.

Trebilcock said Montgomery doesn't have legal status, and she and her daughters are unable to gain a "green card" to work.

"We spend so much time to do these things. My husband spends so much time worrying about us. We are just normal people. We have so much troubles to get straightened out," Montgomery said.

Her new husband is a rocket scientist in the weapons department of the U.S. Department of Defense. He applied for and was granted the first of two steps in gaining a permit for an alien relative for Larisa.

But in order to finish the procedure, she would have to go back to Russia and apply for a change in status from there.

In a best-case scenario, that could take at least a year.

In a worst-case scenario, Montgomery could be banned from the United States for 10 years because she has been in the country illegally for awhile now.

"It's a real gray area. I'm not that nervous (about the INS immediately deporting her) because I think the press coverage is good, in that it points out the plight of these women who are brought here by somebody who turns out to be abusive.

"And I would be amazed if the INS would take an adverse action against her after he tried to kill her children with a machete," Trebilcock said.

NOW asks Senate to delay nominee review

Abuse probe of U.S. attorney pick sought

Times-Picayune, The (New Orleans, LA)

December 1, 2001

https://infoweb.newsbank.com/

WASHINGTON -- A national women’s rights group has asked the U.S. Senate to delay consideration of President Bush’s nominee for the top federal prosecutor in New Orleans until allegations of spousal abuse are more fully investigated.

Kim Gandy, president of the National Organization for Women, said Friday that she has urged the Senate Judiciary Committee to wait before taking up the nomination of Jefferson Parish lawyer Fred Heebe to be U.S. attorney for the Eastern District of Louisiana.

Heebe, who was in Washington this week for terrorism-related briefings in anticipation of assuming his new duties, was unavailable for comment. His attorney vehemently denied the allegations of physical and mental abuse stemming from his 1986 divorce and said Heebe’s former wife, Nanci Easterling, had signed an affidavit disavowing those claims.

But Gandy, who said she recently spoke with Easterling, said she found the claims to be "credible."

"We have urged that no decision be made until more complete information is available," Gandy said. "It is of great concern to us. . . . If this is a man who was violent in his marriage, then he should not be the chief federal prosecutor responsible for enforcing the Violence Against Women Act."

Gandy, a New Orleans lawyer who was elected NOW president during the summer, said that based on her conversation with Easterling she is skeptical that the FBI fully investigated the claims during Heebe’s background check. She said Easterling told her that she had given the FBI names of corroborating witnesses. Easterling said one of the witnesses later told her that the FBI agents contacted him but said they weren’t interested in hearing about something that happened 15 years ago, Gandy said.

"It sounds to us like the investigation was incomplete," Gandy said.

Easterling could not be reached for comment.

Heebe’s attorney, Peter Butler Sr., said the FBI investigated the matter fully and found nothing. As part of the background check leading up to the Nov. 1 nomination, Butler said the FBI reviewed the courthouse records and interviewed Heebe, Easterling, her mother and a private investigator Easterling had hired as part of the divorce.

"They spent a great deal of time on it," he said.

Butler provided a 1995 affidavit signed by Easterling that states "all allegations of spousal physical and mental abuse, (and) habitual intemperance . . . were made without her advice, consent or authorization, were not properly verified, nor explained to her and therefore are without merit and should be stricken from the record." As part of the settlement, she agreed to pay Heebe $50,000.

Butler also provided the 1986 divorce judgment that found Easterling had committed adultery.

Mimi Devlin, a spokeswoman for the Senate Judiciary Committee, said the staff had not received the FBI report on Heebe and that the committee was not yet scheduled to consider his nomination. She wouldn’t comment on the NOW request for further investigation, but said such inquiries can be handled by the committee.

Gandy also has urged the staff of Sen. John Breaux, D-La., to withhold his support for the Heebe nomination pending further inquiry. Home state senators have significant influence over nominations. Gandy said she planned to make the same request to Sen. Mary Landrieu, D-La.

A Breaux spokesman said that since the senator had not seen the FBI findings, he wouldn’t comment.

Gov. Foster, who has been a key supporter of Heebe’s, said the revival of the allegations from the divorce are the acts of "a desperate element" who "don’t want an honest person in that office."

"There is absolutely no truth to this," Foster said. "He has been approved by the FBI; he’s been thoroughly checked. He has an affidavit that says these allegations are not true. If they run it through the FBI channels again, it will be found to be not true."

Foster said he has been more involved in the selection of the U.S. attorney in New Orleans than in other districts "because I have done everything I can to get an honest person in that office."

Unlike the other U.S. attorneys’ offices in Louisiana, the New Orleans office is handling a high-profile case in which Foster has been involved. The governor’s secret purchase of a political mailing list from former Klansman David Duke for $150,000 was made public in 1999 in an investigation of Duke by the U.S. attorney’s office in New Orleans. Some of Foster’s records were subpoenaed during the investigation and he later paid a $20,000 fine to the state Ethics Board for failing to report the purchase. The Duke investigation remains open and Foster has said he’s been told he is not a target.

OIDV Project Of Michigan - Officer Involved Domestic Violence Project Of Michigan

Monday, January 1, 2001

01012001 - 2001 VAWA/Violence Against Women Act AND Political Agendas - News Articles

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