PDA

View Full Version : Could a neighbor get a restraining order?


tiko
02-13-2011, 8:37 PM
Hi all friends, this thread is in behave of my friend, he is old school and does not use computer, so I am helping him.
Couple days ago, his long time neighbor ( 10+ years ) and my friend argued about the common fence between their houses, no physical contacts, no threats and no swearings have been used, they just yelled over their fence. However, the neighbor knows that my friend has guns ( 10+years neighbor ) so he said that he will get a restraining order against my friend and that will make him lose all his guns!
Should my friend worry about this? Since no physical contacts, no threatenings and no swearings at all, could the neighbor get a RO? If he can tell the police that my friend threatened him, he could get it right?
Please tell your opinions, at this point it is still calm :)

five.five-six
02-13-2011, 8:40 PM
my, friends

TROs are handed out like popcorn, getting the 3 year injunction requires evidence that the restraine behaved in an abnormally threatening manner

TRO requires the served party to dispose of all firearms via either "safe keeping" at the PD (requires 30 days and a COE to get them back) or sale to an 01FFL... guns not in California don't count.

as I understand it, the restriction is not enforced, it is more of an enhancer for people who kill someone after being told by the court not to

TeckLancer
02-13-2011, 8:40 PM
he can get it then they will go to court and maybe nuthing happens. but even in a temp ro u still have to give up your guns until u go to court and the reg ro is denied

tiko
02-13-2011, 8:51 PM
Sigh... my friend better not to let his neighbor know about his guns, but they are so-so neighbor for more than 10 years, now I get to think about do my neighbors know that I have guns, at least one that I went shooting with him! Best way to avoid all arguments or move...

Civilitant
02-13-2011, 8:53 PM
what is there to question. you and HE are both aware and fully understand the consequences of what IS GOING to happen.

this is how you "win" a situation like what you have described... there is only 1 way to be able to keep your guns here - your friend NEEDS to GET THE PAPER TRAIL STARTED. Started is the key word. Unquestionably whoever starts the paper trail is at a huge advantage. Either he believes the neighbor is bluffing and will do nothing or he believes the threat of a TRO is real and in that case he without question NEEDS to get a TRO against the neighbor himself immediately. this is a very sticky situation. TRO = no guns and if someone tells you this kind of thing is not enforced they are wrong. BE CAREFUL with these kind of confrontations between neighbors they are very real and once legal proceedings are started they will be very damaging. period.

jtmkinsd
02-13-2011, 8:58 PM
Sigh... my friend better not to let his neighbor know about his guns, but they are so-so neighbor for more than 10 years, now I get to think about do my neighbors know that I have guns, at least one that I went shooting with him! Best way to avoid all arguments or move...

I have handled numerous firearms for people who have been in this very position...sadly, they all had one thing in common; they got angry, said something stupid, and the one they were angry at got the final word...with a TRO.

It is not worth it...all the headache...time wasted...and for no good reason at all. The judge isn't going to care two people entered into an argument...isn't going to care for what reason...isn't going to care who was "right or wrong"...they are simply as a matter of course going to issue a TRO to the party asking for one and you are going to have to dispose of your firearms and MAYBE you'll get them back.

IntoForever
02-13-2011, 9:02 PM
To answer the initial question, yes, next door neighbors can have a RO on the other. I used to know someone who had one after neighbor claimed he kept breaking windows on cars and house. It was great when the neighbor filed a police report saying he definitely saw Matt throw a brick through a window and gave a specified time. We were about 100 miles north and we were pulled over and had our ID's checked because I was speeding and Matt smelled like alcohol (checked to make sure he was 21). Good luck on that one though.

voiceofreason
02-13-2011, 9:03 PM
Perhaps he should contact a firearms attorney and take some pre-emptive action.

The attorney can contact the local DA or CofP regarding the matter. The neighbor is basically threatening to file a false police report of something that did not occur such as brandishing.

Through the attorney, he might consider filing for a TRO because he feels threatened by the neighbor who is looking to abuse the system.

jtmkinsd
02-13-2011, 9:12 PM
I don't know the size or layout of the property in question...but he should probably consider security/video cameras with a 7 day recording loop. They may help disprove a false claim if one is made.

five.five-six
02-13-2011, 9:16 PM
there is only 1 way to be able to keep your guns here - your friend NEEDS to GET THE PAPER TRAIL STARTED. Started is the key word. Unquestionably whoever starts the paper trail is at a huge advantage. Either he believes the neighbor is bluffing and will do nothing or he believes the threat of a TRO is real and in that case he without question NEEDS to get a TRO against the neighbor himself immediately. this is a very sticky situation.
well not exactly, there are several ways

1) California courts have no jurisdiction to tell you to got to nevada, get your guns, bring them back and sell them within 24 hours

2) an intrafamilial transfer, the courts can not force you to sell somthing that's not yours

3) is a gray one, but if your guns are being cleaned at the gunsmith, they are logged in under their 01FFL and no longer in your control

while the first 2 must be done prior to being served, an argument could be made for the 3rd option within 24 hrs of being served.

TRO = no guns and if someone tells you this kind of thing is not enforced they are wrong. BE CAREFUL with these kind of confrontations between neighbors they are very real and once legal proceedings are started they will be very damaging. period.

I can tell you that in one jurisdiction, I had a full injunction and the restrane did maintain possession of (2) 1851 colt navy revolver working replicas, the PD refused to investigate, YMMV

Civilitant
02-13-2011, 9:26 PM
well not exactly, there are several ways

1) California courts have no jurisdiction to tell you to got to nevada, get your guns, bring them back and sell them within 24 hours

2) an intrafamilial transfer, the courts can not force you to sell somthing that's not yours

3) is a gray one, but if your guns are being cleaned at the gunsmith, they are logged in under their 01FFL and no longer in your control

while the first 2 must be done prior to being served, an argument could be made for the 3rd option within 24 hrs of being served.

great information, knowledge is power

I can tell you that in one jurisdiction, I had a full injunction and the restrane did maintain possession of (2) 1851 colt navy revolver working replicas, the PD refused to investigate, YMMV

I have had the opposite experience here in SD... fwiw
I will stress that doing "nothing" after someone has clearly informed you of their intentions to try to "destroy" you is ill-advised.

five.five-six
02-13-2011, 9:28 PM
I should have noted YMMV in my first post, it probably depends on the particular officer and/or department... personally, I would not risk it, IIRC violating a firearms related court order carries a 10 year membership in the "no guns club"

stitchnicklas
02-13-2011, 9:33 PM
tell him to send a canned ham to his mean neighbor,next conversation and all others--"record" for evidence of lies,threats,and extortion.

paul0660
02-13-2011, 9:42 PM
Should my friend worry about this?

Yes, because it is enforced, filing one against the fellow filing against you doesn't do any good, and it might keep him from owning firearms forever.

I pretty much don't yell at anyone anymore, and I am not sure THAT will work.

Kid Stanislaus
02-13-2011, 9:55 PM
CA laws regarding this type of thing are entirely pathetic.

Window_Seat
02-13-2011, 10:49 PM
Since noone here has mentioned it...

If you get in trouble with the law for your guns - PLEASE contact CGF (http://www.calguns.net/calgunforum/showthread.php?t=245866)

Erik.

BillCA
02-13-2011, 10:53 PM
Anything is possible in California regarding ROs. Best that your friend limit his discussions with the neighbor to times when he can have a 3rd party witness (other than a family member if possible) present. Do document the date, time and location of the argument, who was there (witnesses) and the subject and "tone" of the argument. Note any threats, statements or threats of actions. Keeping this in a spiral bound 5x7 notebook or similar can show the history of the arguments. He can also list dates/times of any actions he took to appease the neighbor or prove the fence is on his property, up to code, in good repair, etc.

This history can be very supportive of your friend's side of the argument and document potential irrational behavior of the neighbor. Your friend should not make a big deal of any comment about forcing him to get rid of his guns. Such comments along with comments about destroying, defacing or damaging the fence should be met with a calm statement like "Oh, c'mon Bob, you don't want to get into a big legal mess over a stupid fence."

Since you didn't state what the fence argument was about, it's hard to suggest a direction for remedy.

Burbur
02-13-2011, 11:55 PM
This entire thread makes me sick, and it's not the first time this same thread made me sick.

'Boo hoo, that big guy over there is scary and he has guns; take them away from him!'

Can I revoke his first amendment rights, because I'm afraid of what his words can do?

Casual_Shooter
02-14-2011, 7:41 AM
I can tell you that in one jurisdiction, I had a full injunction and the restrane did maintain possession of (2) 1851 colt navy revolver working replicas, the PD refused to investigate, YMMV

I also know of someone with a restraining order that allegedly has "approved" guns listed (according to the local PD).

According to county records/ copies of the RO, no such "approved" guns exist on the RO.

Glock22Fan
02-14-2011, 7:47 AM
Be careful, very careful, before getting a R.O. against someone. Typical reaction is that the restrainee will immediately get one against you.

Avoid R.O.'s like the plague, and fight like heck if someone initiates one against you. You will need all the evidence you can as the judges are predisposed to award them willy nilly, on the grounds that they would rather be safe than sorry.

thomasanelson
02-14-2011, 8:08 AM
Extortion is a felony. If it happened to me, I would go to the police and file a report/charges. At least there would be some "evidence" of wrong doing by the other party that might help a ruling in my favor.

RandyD
02-14-2011, 8:33 AM
As an attorney who handles restraining order hearings, here are a few points to consider.

A party wanting a restraining order has to complete the applicable forms and have it presented to a judge for review. Judges are all over the board on whether they grant or deny a temporary restraining order. If the judge is antigun, and the words "firearms" with "fear for my life" appear on the application, my bet is the judge will issue a temporary restraining order.

If a temporary restraining order is issued the court will schedule a hearing within 15 days. When a temporary restraining order is not issued, the court will still schedule a hearing to give the applicant an opportunity to replead his case.

When a temporary restraining order is served on the restrained party, he has 24 hours to turn all of his firearms into the police or sell them to an FFL dealer. There are no other options.

I have handled many restraining order cases where the application was proven to be false, and the only consequence for filing a false application is being ordered to pay some or all of the other party's attorney fees.

I do not agree with racing to the court to be the first to file for a restraining order. In this situation, I would recommend that your friend find another person, such as a private investigator, to contact the neighbor to discuss the problem at length. During this discussion, the investigator should inquire about the lack of threats, lack of violence and lack of fear. If the neighbor files for a restraining order, the investigator can testify in court to the statements the neighbor made.

sasc40cal
02-14-2011, 8:56 AM
This type of thing has happened to me before. Long story short- ex-wife didn’t want son to go to hunting - she is very anti-gun, she was told from a friend if she didn’t want our son to go hunting and because I wouldn’t agree to it, the best thing to do would be get a TRO, I had information ahead of time she was going to do this - she told me she was going to- she actually said to me, because you insist on taking our son hunting "I will make sure it isn’t possible, you can’t hunt without a gun", I asked what that meant, she told me her friend told her to just file a TRO, right after that conversation, all firearms were "sold to friend".

2 days later I received a call from DOJ telling me they needed to come out to my house and talk to me about a firearm I forgot to get rid of. They came out to my house at 9:30 at night, parked up at the top of the street, had on all their tac gear, had a copy of my picture from my Driver License, and an old registration from a very old pistol I had sold 8 years prior, they asked me a lot of questions about its location, apparently when I sold that gun to a private party at a local gun shop, the paperwork was messed up. They asked to look around in my empty safe (we were in my garage where safe was , I wouldnt let them in the house) , I said sure, they did tell me to get rid of the ammo i had in it. But then they had me sign an affidavit explaining I no longer had said pistol. Then they left.

1 week later I had hearing, explained my side to the judge, he then asked her why she did what she did and caused all this, next thing I know they sent both of us out to a small room and the new thing (at least 5 years ago) was to sit with a mediator and come up with a good solution. We came to an agreement and went back in front of the judge, he didn’t issue a RO and dismissed the TRO (or the TRO was never made perm.)

I tried to explain to the judge that I wanted to be reimbursed for my firearms, he said to me why, I said I had to sell all of them in a 24 hour period and I had a loss at this point. He then said to chalk it up to a learning experience, I then started to tell him that I made no threats what so ever, we were actually on very good terms but couldn’t work out the hunting issue and that I lost my 2nd Amendment rights with no real trial. He said welcome to the world of Restraining orders.

Needless to say , My friend "sold them all back to me" once I was no longer a prohibited person. They actually gave me a release and cleared me from CJIS/CLETS that day. 15 days later I had my collection back.

Because of divorces this kind of thing happens all of the time, some of the time it is a legit concern, but for the most part, it is crap and a waste of the courts time and money and yours.

I was happy that I had the prior warning and was able to act before she even filed for it. I was at the gun shop at the same time she was at the courts, I had gotten rid of my firearms before I was even served.

aermotor
02-14-2011, 11:07 AM
Wow, this thread is scary. Losing your flipping 2A rights because of a psycho who wants to lay down an RO on you? Yikes. Looks like it's time to send DOUBLE the fruit cakes every Christmas :hide:

Saigon1965
02-14-2011, 11:16 AM
All this over a common fence - Heck they don't even have fences in other parts of the country -

SPaikmos
02-14-2011, 11:25 AM
Kind of a tangent, but I'm curious...
Can firearms be owned by a trust? If so, would they still be subject to sale when one of the trustees is tagged with an RO?

toyotaguy
02-14-2011, 11:31 AM
Wow this is crazy, I'm glad i don't have neighbors.

smtimelevi
02-14-2011, 11:46 AM
What sad shape CA is in. This is what firearms registration leads to. Sick, sick people abusing the legal system.

stix213
02-14-2011, 11:54 AM
On a practical level, it sounds like it is time to move. These kind of situations will only get worse even if the neighbor doesn't go through with the TRO. Also your friend shouldn't have been so careless with whom he lets know he has lots of guns.

mtsul
02-14-2011, 1:10 PM
I'm wondering the same
Kind of a tangent, but I'm curious...
Can firearms be owned by a trust? If so, would they still be subject to sale when one of the trustees is tagged with an RO?

dls
02-14-2011, 1:26 PM
I guess now I will no longer speak to my neighbors.

USMC VET
02-14-2011, 1:44 PM
Anything is possible in California regarding ROs. Best that your friend limit his discussions with the neighbor to times when he can have a 3rd party witness (other than a family member if possible) present. Do document the date, time and location of the argument, who was there (witnesses) and the subject and "tone" of the argument. Note any threats, statements or threats of actions. Keeping this in a spiral bound 5x7 notebook or similar can show the history of the arguments. He can also list dates/times of any actions he took to appease the neighbor or prove the fence is on his property, up to code, in good repair, etc.

This history can be very supportive of your friend's side of the argument and document potential irrational behavior of the neighbor. Your friend should not make a big deal of any comment about forcing him to get rid of his guns. Such comments along with comments about destroying, defacing or damaging the fence should be met with a calm statement like "Oh, c'mon Bob, you don't want to get into a big legal mess over a stupid fence."

Since you didn't state what the fence argument was about, it's hard to suggest a direction for remedy.

Agreed here.

Hopalong
02-14-2011, 1:50 PM
I guess now I will no longer speak to my neighbors.
Works for me.

Wherryj
02-14-2011, 4:02 PM
tell him to send a canned ham to his mean neighbor,next conversation and all others--"record" for evidence of lies,threats,and extortion.

How about he send a keg and a follow up restraining order after the video evidence? :43:

Wherryj
02-14-2011, 4:09 PM
I almost had a similar issue with a new neighbor a few years back. He moved in to the house behind us, then set out upon gutting it and making his "dream" changes. He is in the contracting business as a subcontractor, and has a group of friends who trade their field with one another for such things.

He started to build a pool with a built-in "Playboy Mansion" style "grotto". He dug under the fence supports all around the back yard to lay cement, then surprise-the fence fell over (only the sections along his yard-others have now remained standing for another 5 years).

He approached us with the "I have arranged with my friend's fencing company to replace our fence. Here's the design (absolutely different from the neighborhood fences and our own remaining fencing) and your half." The problems" 1. My wife absolutely HATED the fence and the gaudy post caps he was including (with us paying half cost for those) and 2. He wanted it to be 7.5 feet tall-I presume due to what he was anticipating would be happening in the "grotto"?

The issue is that my town only allows a maximum of six feet. I had run into this while researching my shed, because I always wanted to be at least legal if not a respectful neighbor. I brought this point to him and he got progressively more angry. I left the discussion to my wife, but ended up calling his fence company the weekend before they were going to install (he set it up unilaterally) that if they built over 6 feet I'd have them charged with tresspass.

My town's building department actually has it in writing that any fence over 6 feet will be given written notice upon discovery, at which point the home owner will be charged $1000 a day until the fence is brought into compliance. I wasn't going to mess with that possibility over just trying to be a "good neighbor".

Fortunately he eventually compromised-we'd let him build his exact "dream fence" so long as he cut it down to six feet. I didn't get much consession, but at least there were no ROs involved.

tiko
02-14-2011, 5:48 PM
Update, my friend will pay for the whole cost of the common fence, the neighbor said that if my friend forces him to pay half, he will consider it is a threat and will file a RO.

voiceofreason
02-14-2011, 6:10 PM
Your friend NEEDS to contact an attorney. It will not end here and sounds suspiciously like extortion.

Hopalong
02-14-2011, 6:17 PM
Your friend NEEDS to contact an attorney. It will not end here and sounds suspiciously like extortion.

Amen. It sounds to me like the threats are coming from the other side of the fence.

Once you give in to extortion, ransom demands

More will be forthcoming.

I'd contact an attorney and ask about a preemptive strike

Carsgunsandchics
02-14-2011, 6:24 PM
This friend of yours live in RioLinda? Off of M st? I hope it's a different friend of someone elses...if so I'm in the twilight zone.

tiko
02-14-2011, 6:27 PM
No, he lives in Rocklin. I think it is all about money to rebuild the fence.

Carsgunsandchics
02-14-2011, 6:36 PM
Ok cool. Because the one I know of is going to be a week long story on the LifeTime channel by the time it's done. Complete with the pre-requisite requirement of drugs,incest,suicide,blame, parking in front of the neighbors and bad mullett's.

Dirk Tungsten
02-14-2011, 7:15 PM
Ok cool. Because the one I know of is going to be a week long story on the LifeTime channel by the time it's done. Complete with the pre-requisite requirement of drugs,incest,suicide,blame, parking in front of the neighbors and bad mullett's.

So in other words business as usual in Rio Linda? :biggrinjester:

Carsgunsandchics
02-14-2011, 7:22 PM
So in other words business as usual in Rio Linda? :biggrinjester:

Well that and it's almost time to cut the lawn to get out the summer car.:rolleyes: