As a result of the tragic event at Salon Meritage in Seal Beach which took the life of Christy Wilson, her husband, Paul Wilson is pushing for new legislation in two areas; gun restrictions for participants of family law proceedings, and Judicial authority to protect victim’s rights to recover civil damages pending resolution of criminal proceedings.
Before Scott Dekraai massacred eight people on October 12, 2011, he had his weapons confiscated twice by police. They were confiscated after a feigned suicide attempt and after an alleged assault on his father. In each instance, Dekraai was able to regain possession of his firearms.
It was well known that Dekraai was a ticking time-bomb. Recently the Orange County District Attorney’s office disclosed that Dekraai allegedly assaulted, threatened or brandished a gun at someone in nine separate instances dating back to 1995. Sadly, the employees at the salon joked that one day Dekraai would show up and blast everyone---Dekraai was engaged in a custody dispute with his ex-wife who was employed at the salon.
Paul Wilson believes that simple safeguards such as the ones detailed below could have prevented the murder of his wife and the murder of hundreds of others who have been victimized during the pendency of a dissolution of marriage and/or child custody proceedings.
Proposed new gun legislation:
A. Prohibit the purchase of firearms while engaged in dissolution/child custody dispute
B. Prohibit possession of firearms while engaged in dissolution/child custody dispute
C. Require surrender of existing firearms while engaged in dissolution/child custody dispute
A. Require "Firearm Notification" form to be submitted by both parties, addressing:
1. Presence of firearms
2. Purchase of firearms
3. Surrender of firearms
4. Existence of prior or potential domestic violence
5. Law enforcement exception
6. Procedures for return of right to possess firearms (below)
7. CLETS requirement at time of filing case
B. Return of firearms/right to buy and possess
1. Parties file a revocable non-issue form
a. Both parties agree that possession of firearm is non-issue (assent
revocable) by either party
2. Court makes determination that the possession of firearm is non-issue
a. Determination requires judicial hearing at moving party’s expense
b. Dead-beat spouses don't get firearms back (option)
1. Failure to file forms = contempt of court
2. Possession of firearm violation = misdemeanor + mandatory jail time
3. Subsequent offenses = felony
Mr. Wilson and other victims have brought wrongful death actions against Dekraai. Dekraai is seeking to postpone litigation of these civil actions until the conclusion of his criminal case–claiming that defending a civil suit would force him to waive his Fifth Amendment right to remain silent. Since Dekraai is facing the death penalty it is expected that the criminal case could drag on for 3 or more years. Once again, Mr. Wilson feels victimized by a judicial system that provides more protection for criminals than for those violated by criminals. Therefore, Mr. Wilson proposes new legislation that authorizes the court to protect victims who are seeking to recover damages from criminal defendants.
Proposed new victim’s rights legislation:
Presently there is no statutory law regarding the staying of proceedings or discovery in a civil action due to the simultaneous prosecution of a criminal matter; however, there is plenty of Federal and State case law that gives the court discretion to do either or both. Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, explains what factors a court should consider when contemplating a stay of a parallel civil action:
1. "The interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay";
2. "The burden which any particular aspect of the proceedings may impose on defendants";
3. "The convenience of the court in the management of its cases, and the efficient use of judicial resources";
4. "The interests of persons not parties to the civil litigation"; and
5. "The interest of the public in the pending civil and criminal litigation."
The court was also given broad discretion in Afro-Lecon, Inc. v. U.S., (Fed Cir. 1987) 820 F.2d 1198, 1202: "the Constitution does not require a stay of civil proceedings pending the outcome of criminal proceedings...A court, however, has the discretion to stay civil proceedings, postpone civil discovery, or impose protective orders and conditions 'when the interests of justice' seem to require such action..."
Mr. Wilson proposes that the above case law be incorporated into a new State statute with the following additions:
1. Require defendants seeking a stay to file a declaration of wealth (income and assets);
2. Require courts to make a determination of likely hood of success for plaintiff's case;
3. If the likely hood of success is favorable, then require defendant to file a bond equal to amount of his/her declaration of wealth as a prerequisite to granting a stay.
Since the crux of defendants' arguments seem to stem from a forced waiver of their Fifth Amendment right to remain silent, the court may issue a protective order preventing use of defendant's statements. The protective order can be framed similar to the protection provided a defendant when statements are obtained in violation of Miranda; the statements cannot be used by the prosecution in their case-in-chief, however, prior statements made during the civil proceedings may be used for impeachment, if they amount to prior inconsistent statements.
The result is that the defendant would be able to testify in a civil case and still remain silent in the criminal case without prejudice.
Mr. Wilson is aware that he is in a unique position; typically civil cases against criminal defendants are unfruitful due to their indigence. However, in situations such as the instant case, were the defendant has sufficient assets (Dekraai is estimated to have over $500,000.00 in assets plus thousands paid to him monthly from an annuity), defendants should not be afforded the time and opportunity of a stay to squander or hide assets during the pendency of the criminal matter. Such legislation would protect victims from being re-victimized by defendants in the civil arena.
It should also be noted that Dekraai continues to litigate child custody, while claiming that having to litigate the civil case would be too burdensome. Thus, Dekraai’s hypocrisy is obvious; he wants to use our court system to his benefit (child custody), but wants the court to shield him from litigation that does not (wrongful death action).
Mr. Wilson’s motivation for the above is the hope that these changes will prevent others from suffering as he and the family members of all the victims of the October 12 slayings have suffered and continue to suffer through a judicial system that is skewed towards the protection of killers, rather than victims.
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