Pets to be Included in Protection Orders

Minnesota is currently in line to become the fourteenth state that includes pets in a list of possible considerations for protection orders. Its purpose is to enable battered individuals to leave dangerous abusive situations, who often remain out of fear of what may happen to their pets if they leave.

The proposed bill is a seemingly natural merger of two undisputed values shared by the grand majority of the American people: we do not harm our women and children, and we do not harm our pets. Opposition to such legislation is arguably bad for your public relations health, but nonetheless the opposition came – in the form of the National Rifle Association.

Before any macabre conclusions can be drawn from that detail, the NRA’s interest is really what it has always been: the right to bear arms. Minnesota law withdraws gun rights for three years to life for those who violate protection orders. While proponents of the bill claim that pets act as a proxy for abusers to further inflict damage upon their victims, the NRA claims that the proposal is a proxy to further restrict gun ownership in the state of Minnesota. As the NRA so eloquently (and perhaps a bit impetuously) states on its website, “Conviction of violating a protective order, based on unjustified interference with, for example a gerbil, would result in an automatic three-year ban on handgun possession.”

Before any perverse conclusions can be drawn by that statement, note that while the NRA’s crusade against this bill is motivated by genuine concerns, these concerns are ultimately amiss once you actually read the proposal. To understand why, one should first understand the process of obtaining and enforcing a protection order.

The first step in obtaining a protection order is typically for the victim to file a temporary protection order, or TPO, asking for relief. A court may grant the TPO without a formal hearing, but the TPO only lasts a few weeks at the most, upon which a hearing must be held to determine whether a non-temporary restraining order may be issued. Violating a protection order may result in arrest and jail time, as well as fines.

One of the concerns is that the alleged abuser may not know the order exists if the victim obtained a TPO without his or her knowledge, and thus unknowingly violates the order. However, a TPO only becomes effective once it has been served on the restrained person so that he or she is aware of its terms and knows of his or her opportunity to be heard at the hearing. These rules are designed to address lack of notice concerns in TPOs generally, and a pet-included TPO does not alter the effect of such rules in any logical way.

Secondly, there is a fear that restrained persons may unintentionally come into contact with their pets, such as if a dog were to run towards its owner. However, the bill was amended to strike the no-contact provision, so that the new proposal reads to prevent the restrained person from “harassing, interfering with, abusing, or injuring any pet, without legal justification.”  Without a no-contact rule, pet owners would not be in violation of an order in the above enthusiastic-pet scenario.

While such remedial measures may still leave some NRA enthusiasts wary of the proposal’s intentions, their suspicions become somewhat absurd upon examination of a provision specifically pertaining to gun owners. Minnesota statute 518B.01 subdiv. 14(j) states that an alleged abuser’s gun rights are withdrawn only when he or she violates a protection order and “the court determines that the person used a firearm in any way during commission of the violation.” Considered with the deletion of the no-contact rule from the proposed bill, one would be hard pressed to find a plausible situation involving unintentional harassing, interfering with, abusing, or injury of a pet while using a firearm. Perhaps unintentional hunting with your pet? Unintentional shooting of your pet? Unintentional using your gun to teach your pet how to play dead, thereby impressing all your friends? Perhaps I am simply not imaginative enough.

May I suggest a different route for the opposition.  When a victim files for a TPO using a form provided by the Minnesota court system, the form will ask the victim to state with specificity all past incidents of abuse in a fact intensive manner. Using these statements, the court must find that sufficient facts exist to justify issuing a TRO without a hearing.

Considering that the proposal addresses the concern that victims may not leave abusive situations due to fear of potential abuse of a pet, would the proposal enable a victim to obtain a pet TPO despite a complete lack of actual pet abuse? Is a showing of such fear sufficient to take a pet away from its owner before giving that owner his day in court? Is the bill, aimed at protecting the abused, subject to being abused itself?

If the proposal passes, it would be interesting to see how the court forms are revised, and even more interesting to see how the judges handle these findings of fact, or lack thereof. Even more interesting than that is how the Minnesota family law practitioners will seize on this opportunity to engage in some serious creative lawyering. Even more interesting than THAT … I wouldn’t know -I don’t get out much.