Second Amendment Gets its Day in Court

Dateline: 06/14/00

One day, a Texas doctor legally owned a legal gun. The next day, his wife, who was suing him for divorce, got a routine temporary restraining order against him, and -- "presto" -- the doctor turned into a federal felon.

This did not seem fair to the doctor or to his lawyers and now the Second Amendment faces its biggest legal test in years as a three-judge panel of the U.S. 5th Circuit Court of Appeals prepares to issue its findings in the case of United States v. Emerson. (Please note, you will need the Acrobat Reader to view this document. Click here to download Acrobat Reader.)

In this case, defendant Dr. Timothy Emerson was placed under a Temporary Restraining Order (TRO) while involved in a divorce proceeding. Under federal law at 18 U.S.C. § 922(g)(8), Dr. Emerson, as a person under the restrictions of a TRO was not allowed to buy or even posses a firearm.

8 U.S.C. § 922(g)(8) states that:

(g) It shall be unlawful for any person -

(8) who is subject to a court order that -

• (A) was issued after a hearing of which such person received
  actual notice, and at which such person had an opportunity to
  participate;

• (B) restrains such person from harassing, stalking, or
  threatening an intimate partner of such person or child of such
  intimate partner or person, or engaging in other conduct that
  would place an intimate partner in reasonable fear of bodily
  injury to the partner or child; and
• (C)(i) includes a finding that such person represents a
  credible threat to the physical safety of such intimate partner
  or child; or
  • (ii) by its terms explicitly prohibits the use, attempted
    use, or threatened use of physical force against such intimate
    partner or child that would reasonably be expected to cause
    bodily injury; or

• (9) who has been convicted in any court of a misdemeanor crime
  of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

The petition for the TRO filed by Dr. Emerson's wife, Sacha, was typical of many such motions filed in Texas divorce cases and included language enjoining Dr. Emerson from, "engaging in various financial transactions to maintain the financial status quo and from making threatening communications or actual attacks upon his wife during the ... divorce proceedings." Wording contained in almost every TRO issued in relationship to Texas divorce cases.

During the hearing on the TRO, Mrs. Emerson alleged that her husband threatened over the telephone to kill the man with whom she had been having an affair. However, Mrs. Emerson offered no evidence concerning any acts of violence or threatened violence by Mr. Emerson against her or any member of his family, and the district court made no finding of any such acts. In addition, the court did not advise Mr. Emerson that granting the TRO would place him in violation of a federal law for simply possessing the pistol he already legally owned.

When the119th District Court of Tom Green County, Texas granted the TRO on Sept. 4, 1998, Dr. Emerson automatically became guilty of a crime he had not been guilty of only moments before.

Or, as Civil Liberties Guide J.D. Tuccille puts it in his feature story The second amendment in court, "Emerson unknowingly morphed into a felon as soon as the order was issued, and soon found himself under indictment."

Now how the heck do you defend yourself against what Tuccille so aptly calls a "magic" felony?

Next page In the Doctor's Defense >Page 1, 2

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