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N Cal Attorney
N Cal Attorney, Lawyer
Category: Criminal Law
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Experience:  Since 1983
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Hello, I read a summary of the argument that you authored

Resolved Question:

Hello, I read a summary of the argument that you authored regarding the DVPA as facially unconstitutional. On July 28, 2010, I had a hearing and was convicted of a Domestic Violence Restraining Order for 5 years. I was not charged with any violent acts. I was not charged with any threats of violence. I was convicted of non-threatening and non-obscene speech.
I am located in the Los Angeles area. I want to explore the possibility of pursuing an appeal. Would you be able to represent me in Southern California for an appeal? Please advise.
Thanks in advance for your response.
Kristy
Submitted: 7 years ago.
Category: Criminal Law
Expert:  N Cal Attorney replied 7 years ago.
The experts here cannot represent you or have any interaction other than through the website so you would need a local attorney to handle the appeal. If you raised the issue in the trial court that the DVPA is facially overbroad under the First Amendment you can force the Court of Appeal to decide that issue.

You can get a free consultation from some of the constitutional law attorneys in LA listed at
http://lawyers.findlaw.com/lawyer/firm/Constitutional-Law/Los-Angeles/California

Please tell your lawyer that in my opinion, Family Code § 6203(d) is facially overbroad and violates the First Amendment for that reason.

The DVPA is such a sacred cow the courts will try to avoid ruling on that issue, but if you raised it in the superior court, the Court of Appeal has to decide it.

I hope this information is helpful.
Customer: replied 7 years ago.

I am hoping to get a bit more information if possible...

 

I visited the lawyer referral link but it has around 100 firms that list constitutional law as one of their specialties. Do you happen to know if there are any other more precise ways that a consumer could locate an attorney that may have experience in DVPA + first amendment/constitutional law (I have tried various searches but haven't found anything)?

 

Also, what would be tremendously helpful to me and greatly tipworthy would be if you happen to be able to direct me to a CA case where a DVRO was reversed due to first amendment rights (most especially any cases specific to written speech that is non-violent/obscene/threatening...).

 

 

Expert:  N Cal Attorney replied 7 years ago.
I don't know of any cases where the Court did that. The Courts have treated this issue as a hot potato and gone out of their way to refuse ruling on the Constitutionality of the DVPA. It is such a sacred cow no judge wants to declare it unconstitutional. But defining abuse to include protected conduct really goes too far.

I would start calling lawyers and ask if have done first amendment cases and if they are willing to look at Family Code § 6203(d) and decide if I am correct, that it is facially overbroad.
Customer: replied 7 years ago.

The first question I had was whether there was any way I could, without going nearly yellowpages level and phoning random attorney offices, find an attorney with any experience/specialization in DVRO + first amendment/constitutional law. Without this, the process of just calling up offices for the typical consumer in the real world, is a pretty frustrating process.

 

I asked whether there was any established case law in CA that you know of that could be referenced on this topic.

 

I was hoping to get, and hoping to pay for, was something...anything that could in some way provide a direction helpful to my situation. Otherwise, I guess I can just pay for the expert answer "no," if that is appropriate. I'm not trying to get something for nothing - just trying to get "something" if possible.

 

Can you think of anything that might be any possible resource to my situation???

Expert:  N Cal Attorney replied 7 years ago.
I have attempted to raise the issue of the facial unconstitutionality of the DVPA at every level of the California court system. No judge wants to rule on that issue and they have all ducked it. I got a set of DVPA orders vacated under Ross v. Figueroa (2006) 139 Cal.App.4th 856, but the judge who did that rejected the constitutional arguments.

I have also had great difficulty finding a lawyer who understands First Amendment law enough to see that this is a serious issue. There is no established case law on this.

http://attorneygeneral.utah.gov/821.html is an AG opinion from Utah that concludes:
The State has a strong interest in exercising its police powers for the prevention of domestic violence and protection of its citizenry. Legislation which violates an individual's due process rights, however, cannot be sustained no matter how well intended the legislation may be. Utah Code Ann.
77-36-3.5 will certainly deprive individuals of liberty and property interests without affording the due process protections required by Utah Const. article I, section 7 and the fourteenth amendment to the United States Constitution. It is our opinion, therefore, that the statute is unconstitutional.

But that is not binding in California.

A lot people think the DV laws have gotten completely out of hand, see
http://mediaradar.org/

You asked whether there was any established case law in CA that you know of that could be referenced on this topic.

The answer is No, there is no Cal case that examined a first amendment challenge to the DVPA.

You can Shepardize Blazel v. Bradley, 698 F. Supp. 756 (Wisc. 1988),
to see if it has been mentioned yet in any California opinion. Last time I checked, it had not.

I'm sorry it's such a pain, but you need to find a lawyer to file a motion to vacate the DVPA orders on Constitutional grounds and if that is denied, file a notice of appeal.

Please keep trying. If you Google
"LA domestic violence lawyers"
you will see a list of lawyers that handle these cases.

I hope this information is helpful.
N Cal Attorney and other Criminal Law Specialists are ready to help you
Expert:  N Cal Attorney replied 7 years ago.
Thank you for accepting my answer.