18402 N. 19th Ave., #109
Phoenix, AZ 85023
602-513-3738 [email protected]
Since some here claim to "live in the real world," I offer that Mr. Roth's petition to repeal ARPOP Rule 6(E)(4)(e)(2) is no longer an academic exercise. It's now become very real.
To wit, I got a call a few weeks ago from a desperate Phoenix police officer. (He found me via Google when he searched for civil injunctions and the Second Amendment.) He's about to permanently lose his job of 12 years as a proximate result of an unlawful, unconstitutional revocation of his Second Amendment right via a civil injunction. (As a cop, no gun = no job.)
The issue here is not the injunction per se. The issue is the lawless revocation of a constitutional right, unconstitutionally promulgated as substantive law by this Court's ARPOP Rule 6(E)(4)(e)(2). (The ARPOP being a mere Rule 28 rule of (internal) administration for the Court, not binding as law on all Arizonans.)
Specifically, after a hearing for a civil injunction against workplace harassment [FN 1], one of the judiciary's "fine and highly respected group of professionals"--a bounced around pro tem JP-- issued a criminal domestic violence "Brady Disqualification" against our cop, causing his name to be placed on the FBI's NCIC database as a domestic violence prohibited possessor! [FN 2] But this wasn't a DV situation. (No intimate partner.)
As I have repeatedly said in this forum, the Arizona Legislature did not authorize a judicial officer to revoke one's Second Amendment constitutional right (let alone any constitutional right) in a civil injunction. The word "firearm" is not in A.R.S. §§ 12-1809 and 1810. (Injunction Against Harassment and Injunction Against Workplace Harassment, respectively.) Moreover, the statute for Workplace Harassment has specific verbiage from the Legislature that used to be in §12-1809, that "This section does not [p]ermit a court to issue a temporary restraining order or injunction that prohibits speech or other activities that are constitutionally protected . . . " § 12-1810 (K)(2).
Even though that language is no longer in §12-1809, according to FN 7 in LaFaro v. Cahill, 203 Ariz. 482, P.3d 56 (App. 2002), that statute likewise does not permit a court to issue an injunction that prohibits constitutionally protected activities. [FN 3]
Despite being educated about the law in a motion to reconsider (after the officer was forced to hire an attorney to defend his constitutional rights), the JP in our "professional and impartial court system" refuses to uphold the constitution or the law by vacating her unlawful Brady Disqualification. As a result, the cop is about to be fired.
A Notice of Appeal has been filed and I'm hopeful this instant error will be corrected. Unfortunately, the officer (who is burning up vacation time) will be terminated a month from now (December 1) and will be irreparably harmed (he and his wife will lose their house) unless this matter can be remedied in four weeks. Which isn't likely. (Especially considering the Thanksgiving Holiday.)
Sadly, part of the problem here is promulgated by the CIDVC's "one form fits all" approach to petitions for civil Injunctions Against Harassment, which lumps criminal DV Orders of Protection with civil IAH's on one form, failing to distinguish that the Second Amendment Firearm restriction checkbox on the form can, by law, ONLY be checked off in a criminal DV situation.
Better in the first place if this Court didn't posture through the ARPOP that a judicial officer could revoke a constitutional right in a civil injunction. And better if this Court would insist on two separate forms for petitions for criminal OOP's vs civil IAH's, since they're not the same but distinct. (Criminal vs. civil.)
FN 1 - Not the cop's workplace. Rather, the workplace of some foes his wife is suing in a federal civil rights lawsuit. The foes have offered (in writing) to withdraw the injunction against our cop in exchange for his wife withdrawing her federal lawsuit. (Arguably extortion.) As I've said elsewhere, "Harassment law is being used to harass."
FN 2 - Initially, he was told to turn over his gun in an ex parte action and had to stop working immediately. A patent violation of his Fourteenth Amendment right to due process.
FN 3 - Ironically (and interestingly), ARPOP Rule 6(F)(4)(d), the Workplace Harassment equivalent of Rule 6(E)(4)(e)(2), does not mention firearms. Rather, it simply quotes the pertinent statute without adding to it. So even though the ARPOP is not law, this JP can't even cite the ARPOP as good faith basis to invoke a firearm restriction in this Injunction against Workplace harassment.