Category: Civil Protective Order (CPO)

As the ongoing pandemic rages across the world, people in every state in the United States are required, or have been required, to stay home as much as possible to slow the spread of the deadly Coronavirus. Being confined in the home has posed a litany of added stressors, including financial problems and mental health deterioration’s. 

The additional problems and sources of stress, as well as the nature of being home far more than people are used to, have contributed to a subsequent rise in domestic violence (DV). Police have seen varying degrees of increases in DV calls across the nation, some as high as 20%. This trend is no different in the DMV. DC law enforcement has spoken about the fear of a rise in DV during the lockdown since March, and national trends seem to affirm that concern. 

DC Domestic Violence Laws

The District of Columbia Criminal Code details what would constitute an arrest for DV as follows:Domestic violence - DC

“A law enforcement officer shall arrest a person if the law enforcement officer has probable cause to believe that the person: committed an intrafamily offense that resulted in physical injury, including physical pain or illness, regardless of whether or not the intrafamily offense was committed in the presence of the law enforcement officer”. 

The term “intrafamily” refers to a domestic partner, which can be defined as “a spouse, lover, sibling, parent, child, or roommate”. The aforementioned definition of DV in DC would constitute simple assault, which is defined as “a misdemeanor offense involving either the threat of force or the actual use of force”. 

           

Standard of Proof for DV Simple Assault

 As with any criminal case, the government must prove the defendant’s guilt beyond a reasonable doubt. In the case of a DV simple assault case, the government must prove the following three elements:

  1. Either that the defendant intended to use force or violence against the other person or that he/she intended to put that person in fear of immediate injury.
  2. That the defendant’s actions were intentional and not the result of a mistake or accident.
  3. That at the time of the alleged incident, the defendant had the “apparent ability” to injure the other person.

Potential Punishments if Convicted

The maximum penalties for sentences for DV cases are the same as other simple assault cases, 180 days in jail and/or $1000 fine. However, judges typically sentence DV cases harsher due to their proclivity to reoccur. As with other cases, the Court will view a variety of factors when determining sentencing. Notably, however, many diversion options typically available to first-time offenders are not available in DV cases. 

There may be an option of a Deferred Sentencing Agreement (DSA) which would entail the defendant entering a guilty plea, and then being given a particular amount of time to complete a set of requirements, which may include anger management training, mental health evaluations, or completion of a Domestic Violence Intervention Program. 

Contact our Attorneys Today

 If you have questions about DC’s domestic violence laws or require legal representation, reach out to Bruckheim & Patel to speak with attorney Sweta Patel or Kelsey Penna at 202-930-3464.  

In the District of Columbia, when a person petitions the court for a Civil Protection Order it is the petitioner’s burden to prove that an intrafamily offense occurred. An intrafamily offense means the offender needs to have committed or threatened to commit a crime against a person he shares a relationship with by marriage, blood, a child in common, legal custody, shared residence, or a romantic/dating relationship. Because Civil Protection Orders are unique in that they mix both criminal law and civil litigation, there are specific rules that regulate these matters under the Domestic Violence Division at D.C. Superior Court.

Civil Cases with Criminal Implications

Discovery Rights

Unlike a criminal case, automatic discovery rules do not apply when a Civil Protection Order is initiated. Rule 8 of the Domestic Violence Division Rules governs discovery practice. If either party wishes to receive discovery prior to the hearing, the party must motion the court and state whether there is a pending criminal case involving the same facts alleged in the Civil Protection Order case and attach proposed interrogatories, requests for production, or requests for admission. This motion must be filed not later than 7 days after the respondent was served with the petition. Even if a party requests discovery, there is no guarantee the court will grant the request if good cause has not been shown and with regard to the nature of the proceedings.

5th Amendment Protections

In some cases, a criminal case rising out of the same facts may be pending simultaneously with a Civil Protection Order case. If the respondent is a defendant in the criminal case, he may believe he can invoke his 5th Amendment right to protect himself against self-incrimination by not testifying and delaying the civil protection hearing until after the criminal case is complete. However, Rule 12(b)(4) of the Domestic Violence Rules prohibits the respondent’s testimony during a civil protection hearing be used against him and is inadmissible as evidence in a delinquency proceeding or criminal trial. The only exception to the rule is his testimony can be used in a prosecution for perjury or false statement. Since this rule exists, it is unlikely a judge will delay the Civil Protection Order hearing until after a criminal case based on a 5th amendment claim.

Reasonable Doubt v. Preponderance of Evidence Standard

Though the judge in a Civil Protection Order hearing needs to find that the respondent committed or threatened to commit a criminal offense against a petitioner, the level of proof required is much lower than what is necessary in a criminal case. As most people know, the government must prove beyond a reasonable doubt that a defendant committed a crime in order for the person to be found guilty. In a Civil Protection Order case, the judge only needs to find that there is good cause to believe the respondent committed the offense. This standard is known as the preponderance of evidence which can be defined as it was “more likely than not” or “more than a 50% chance” that the offense occurred.

Motions to Reconsider and Appeal Rights

If a party disagrees with the court’s findings after a Civil Protection Order hearing, he can motion the court to reconsider its ruling. Rule 7(j) details the following grounds for this motion:

  • The court’s failure to consider a material fact or applicable law;
  • Newly discovered evidence that, with reasonable diligence, could not have been discovered prior to the court’s ruling, order, or judgment;
  • A change of law not previously brought to the court’s attention;
  • The absence of a stated reason for the court’s order;
  • Fraud, misrepresentation, or other misconduct by the opposing party;
  • Mistake, inadvertence, surprise, or excusable neglect; or
  • Any other reason that justifies relief.

A motion to reconsider must be filed no later than 28 days after entry of the order. If a party’s motion to reconsider is denied, he then could file a notice of appeal with the Court of Appeals for the District of Columbia. This notice must be filed within 30 days from the denial of the motion to reconsider. However, a party is not required to file a motion to reconsider with the court prior to filing a notice of appeal. After the Civil Protection Order is issued, a party can appeal this order by filing a notice of appeal within 30 days with the Court of Appeals. It is important to note that filing a motion to reconsider or a notice of appeal does not change or suspend the Civil Protection Order while the motion and appeal are pending.

If you are interested in petitioning for a Civil Protection Order or someone has filed a Civil Protective Order against you, contact Bruckheim & Patel to speak with one of their expert attorneys in domestic violence for a free, confidential consultation.

There are a number of reasons to ask the District of the Columbia for a Civil Protection Order (CPO); commonly known as a restraining or stay away order. A CPO is a court order that can last up to one year in which your abuser must stay away from you, not contact you, and stop abusing or threatening you.A CPO can be filed up to two years after the abuse has occurred, but in it is often in your best interest to file as soon as possible. The order is enforced in every state, district, and territory of the United States regardless of where it was ordered. Being in a current or former abusive relationship or fearing for your safety from a second party are just a few reasons for the need for a CPO. The entire CPO process can be done on one’s own, however this is not advised. This process can be difficult and hard to navigate. Depending on your circumstances, it might be essential for your safety to ensure this order is granted. Because of this, using the knowledge and experience of a DC CPO attorney might be in your best self interest.

Civil Protection Orders are filed at the Superior Court of the District of Columbia. When going to file your initial complaint, you are given an extensive form to write your plea and describe in detail the events which have lead you to file the order. Having an experienced attorney could be necessary in this step of the process because the actions you are describing must constitute a crime. Someone saying something mean does not constitute a crime, however someone threatening your life does. An attorney can aid you in ensuring the incidents were in fact crimes. Furthermore, you must have a reasonable fear of danger from the second party, who is also called the respondent in these proceedings.

Once the form has been submitted, the form will be evaluated to ensure the complaints meet the preliminary standard for the matter to advance totrial. Once this has been accomplished, a court date will be set within two weeks.

In the mean time, you may ask for a Temporary Protection Order (TPO) which will last until the CPO trial date. You will appear before a magistrate judge and will have to read the allegations you made against the respondent before the Court. The judge will then decide if the allegations constitute a need for such an order. In almost every circumstance, these orders are grantedbecause the respondent will not be able to challenge the allegations in this particular hearing. If the TPO is granted, it will last until your evidentiary trial in two weeks.

When your trial date comes, you will appear before a judge to present the necessary evidence for the order to be granted. The respondent will also be present at this trial date and will be able to challenge your complaints. You have the right to call witnesses on your behalf and cross examine any witness the respondent calls. You are also required by law to testify at this point in the proceeding. The respondent will have the right to cross examine you and the allegations they are facing. If you do not have a lawyer, all of this will be your responsibility to have the necessary legal skills throughout the trial. This is another reason why having an attorney to aid in preparation and at trial is vital. It is important the best evidence, witnesses, and cross examination is executed before the Court for the best possible chance at getting the CPO granted.

Another reason a CPO attorney might be necessary is often the respondent, whether they have grounds to do so or not, will attempt to file a retaliatory CPO against you. In the worst possible scenario, the CPO against you could be granted and yours could be denied. An experienced attorney will help assist in making sure this does not occur.

Once all the evidence and testimony has been completed at trial, the judge will issue a ruling on the status of the CPO. The judge will either grant or deny your motion. Having an experienced DC CPO attorney working on your behalf will help ensure the order is granted. Often times, people ask for these orders because their safety or their lives depend on it. Having the legal counsel of an attorney can help you get the best possible outcome for you and ensure your safety and well being.

If the order is granted and the respondent violates it, you do have recourse. It is essential to document the incident, save any evidence, get statements from any witnesses,contact authorities, and if you were physically assaulted to immediately go to the hospital. You should also contact your CPO lawyer. Your attorney will be able to get you legal recourse, which can include jail time for your abuser. It is important any violations are well documented and reported to authorities for your safety and an experienced DC CPO attorney can be an essential part of maintaining that. Contact the experienced attorneys at Bruckheim & Patel for a free confidential evaluation of your case.

You already know that a civil protection order (CPO)can impose serious restrictions on your behavior for a specific period of time. Does it, however, prohibit you from possessing a firearm in the District of Columbia? According to DC civil protection order attorneys, it does.

What is a CPO?

A CPO is a court orderthat is issued by a D.C. Superior Court judge that imposes restrictions on the respondent. A CPO proceeding is initiated by the petitioner, who alleges that the respondent has committed has committed a criminal offense against them that requires the court to impose limitations against the respondents’ ability to contact or see the petitioner. The respondent must be the petitioner’s current or former spouse or intimate partner, a relative, a housemate, or a co-parent.

If you have been served with a temporary protective order and have a pending CPO trial, a DC CPO attorney can help you understand your rights and prepare your defense for the CPO trial.

Can I handle a firearm if a CPO is against me?

No. If a CPO issued by a civil court is against you, you cannot buy or possess a gun. Most CPOs contains a provision requiring the respondentto relinquish all firearms in his or her possession to local authorities within 24 hours.

This means that it will be a criminal offense for the respondent to possess a gun once a CPO is in effect. Such an offense can carry a sentence of two to tenyears and/or a fine of up to $15,000.

Federal Law also Bar Gun Possession

In addition to DC laws, federal law also prohibitsa person from possessing, purchasing, selling or otherwise handling guns or ammunition while a CPO is in effect. However, for federal law to apply in DC, it must be shown that the CPO:

  1. Was issued by a court where the respondent had notice of its proceedings and was able to attend the proceedings (even if the respondent did not actually attend);
  2. Was issued after a finding was made that the respondent represented a credible threat to the safety of the applicant;
  3. Specifically prohibits the respondent from assaulting, harassing, threatening or stalking the petitioner or doing anything that may cause the petitioner to be reasonably fearful of his/her life or that of a child under his/her care;
  4. Specifically requires the petitioner to surrender your firearms.

The Case of Temporary Protection Orders

Temporary protection orders are issued by a civil court before the actual CPO trial has occurred. They can be issued the day a petition is filed if a judge believes the applicant or his/her child is facing immediate danger. The respondent does not have to be aware that the hearing occurred.

Generally, a temporary protection order does not bar the petitioner from possessing a firearm. However, if the petitioner makes a special request to the judge for an order prohibiting the respondent from possessing a gun and such special request is granted and provided for in the order, the respondent will be prohibited from possessing a firearm.

If you have been served with a temporary protective order, this means that a CPO trial has been scheduled. Contact a DC CPO attorney to help you protect your rights.

Social Media:

Twitter:  Faced with a Civil Protective Order in DC? You may lose your second amendment right to own a firearm. #DCCPOATTORNEY http://bit.ly/IFHzvO

Facebook: Are you breaking the law? Many Americans hold dear their right to possess a firearm. However, if you have a DC civil protective order in force against you, possessing a gun may get you in more hot water.Local DC CPO attorney talks do’s and don’ts when it comes to CPOs and guns.

 

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