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State Protective Orders and Federal Brady Disqualification: Keeping Guns Out of the Domestic Violence Dynamic

Domestic partners, married couples, or really any family members can potentially be the victims of domestic violence. Sometimes this is a pattern, but sometimes it is a one-time event in the emotionally charged event leading unraveling of the relationship. In some cases, tensions are high, remain high, and domestic violence can be a very real, on-going concern for a party, friends, family, and lawyers.

However, there are a number of protections and safeguards in place to prevent a potentially tragic escalation of a domestic matter. Under a uniform act in Indiana law, after a hearing and proving the risk, the person who is the threat can become “Brady Disqualified” if an incident of domestic violence.

Brady Disqualification” prevents a number of improper people/groups of people from being able to possess or purchase firearms.1 Included in the definition of improper person to possess or purchase firearms is one who is under indictment for or convicted of a crime punishable by imprisonment for more than one (1) year, which may be the case in domestic violence.2

Under specific provisions under state law, directed by federal law, a person who has had a hearing and subject to a domestic protective order is and must be Brady disqualified. Possession of a firearm after that time is a felony.

Indiana is linked to the federal Brady provision and keeping firearms from the hands of a person who had a hearing, is subject to a protective order issuing: This is through its Indiana Civil Protection Order Act (ICPOA).3 The ICPOA states that after notice and a hearing, one may be disqualified from using or possessing a firearm, deadly weapon, or ammunition, and may need to surrender same to law enforcement.4

These federal and state safeguards are meant to keep firearms away from people who may use same for violence and have the potential to harm their families or others if in possession of a firearm. On the other hand, and outside the scope of this blog post, there are three (3) major issues with issued protective order that should be recognized. This blog highlights these and addresses a recent case on Brady disqualification.

First, in some cases, protective orders are sought in the domestic context to gain some tactical advantage and have a very “thin” basis. Be aware.

Second, where there is a strong likelihood of domestic violence, it is important to remember to have an alternative plan for protection (like keeping your keys and phone with you) because a paper written and signed by a judge may not dissuade someone intent on committing bodily injury.

Third, if the recipient of a protective order is a member of the police, military, or has certain security clearances, this may cause him or her to lose his employment. This may then create a situation where child support cannot be paid.

These are complex cases where one seemingly clear choice may create a number of other problems or legal issues. It is important to work with your lawyer to minimize these.

Recently, the Indiana Court of Appeals examined the case of Brady Disqualification.5 In Smith v. Ryan, Smith and Ryan lived together and were the parents to a minor child (please note this case is not one that is reported and cannot be used in any legal context). During a verbal disagreement, Smith escalated the situation and produced a firearm, while also blocking Ryan from leaving the home.

The trial court held a hearing on an order of protection against Smith. This protective order was granted, and Smith was determined to be Brady disqualified, even though, it seems Ryan never asked for Brady disqualification specifically.

The Court of Appeals cited the ICPOA, noting the policy to prevent future domestic violence. The Court also found that the trial court had noted that Ryan’s testimony regarding the incident was more believable than Smith’s. The Court held that the trial court was within its discretion to Brady disqualify Smith, based on the evidence introduced during the hearing, and the Brady Disqualification ordered by the trial court was upheld.

Domestic violence is a serious and frightening aspect in some domestic cases. The Brady Handgun Violence Prevention Act (this is a part of the United States Code) coupled with the ICPOA in Indiana seek to prevent already dangerous situations from becoming worse by removing firearms from the ready access by a person subject to the order. If domestic violence is a concern, know protection is available, and please seek help immediately.

Ciyou & Dixon, P.C. practices law throughout the state ofIndiana. This blog post was written by Bryan Ciyou, Esq. and Jessica Keyes.

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