RESTRAINT PROVISION
2000-834 - July 26, 2002
Prudence G. Magoon v. Richard J. Thoroughgood

BROCK, C.J. The respondent appealed an order of the superior court (Smukler, J.) denying his request for the return of his firearms, confiscated by the intervenor, the Belknap County Sheriff's Department. The supreme court reversed.

A divorce decree between the petitioner and the respondent encompassed a stipulation agreed to by the parties that the respondent was restrained from interfering with the person or liberty of the petitioner, from harassing, intimidating or threatening the petitioner, and from entering the residence or workplace of the petitioner. The petitioner filed a stalking petition against the respondent one year later. Pursuant to the order, the Belknap County Sheriff's Department confiscated firearms and ammunition in the respondent's possession. The court subsequently dismissed the petition finding that the petitioner had not been stalked. The respondent filed a motion seeking the return of his firearms. The court granted the motion. The Belknap County Sheriff's Office intervened for the court to reconsider. The court reconsidered and ruled that the intervenor was prohibited from returning the weapons because in the divorce the respondent was subject to the restraining order.

On appeal the respondent argued that the divorce decree restraint provision failed to meet the threshold requirements of USC 933(d)(8)(B)(2). Thus, under RSA 173-B:5, X(b) he was not subject to a federal law precluding his ownership or possession of firearms. The court agreed with the respondent that the restraint provision did not explicitly prohibit him from using, attempting to use, or threatening to use physical force involving bodily injury. The restraint provision, which was agreed to by the parties, did not make any reference to physical force or to physical force involving bodily injury. The court concluded that the restraint provision was not explicit as required by federal statute, and therefore found that the trial court erred as a matter of law when it bared the return of the respondent's firearms.

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