Respondents who have had a civil Protection Order granted against them have an obligation to surrender any weapons they own, possess, or have under their control.  The idea is that the assault victims will be safer this way.  This process is managed through a Weapons Surrender Calendar.  The weapons are to be turned over to their local police, unless the judge allows for alternative safekeeping.

If there was no allegation of the use of a weapon in the assault, and likewise no allegation by the protected party that the respondent has any weapons, the party usually signs a Declaration of Non-Surrender.  In that sworn declaration, there is a warning that any ownership or control of a weapon afterwards will be a criminal offense.

Here is where a problem arises.  Due to our Fifth Amendment right to remain silent and not testify against ourselves, the court cannot demand that an assaulting party admit that he has a gun under his control after signing under penalty of perjury that he does not.  Because such an admission is a crime, and he would be admitting on the record under oath to committing a new crime.   Unfortunately, this is in direct conflict with the assaulted person’s right to assess her own safety and have whatever protection the law can afford.

I was in a hearing where the man had broken a gun during an assault on his wife, so that gun was considered “out of commission” and he was allowed to sign a Non-Surrender declaration.  But a month later, he was pulled over and the police found a semi-automatic pistol hidden in his glove box.  The wife’s lawyer demanded to know what happened to that gun, whether the police had it, and whether he had access to any other weapons.

The judge interrupted to advise the husband to remain silent, explaining that he cannot be forced to testify against himself, as the gun found in the car may give rise to a criminal case.  The wife then interrupted the judge to ask: “What about my right to not get shot and killed by the man who just beat me up?  What about that?”

There is no good answer to that question under our current system.