Latest Case: M. A. B. v. Buell (Civil Procedure)

Hard Cases

JOSEPH MARGULIES

Cornell law professor Joseph Margulies uses the killing of Rayshard Brooks in Atlanta by police to explain some lessons for reform we might learn. Margulies calls upon us to use this case to reexamine the circumstances that should result in a custodial arrest and to shrink the function of police so as to use them only in the very few situations that truly require them.

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M. A. B. v. Buell

Docket: S066752

Opinion Date: June 18, 2020

Judge: Nelson

Areas of Law: Civil Procedure, Family Law

Petitioner M.A.B. applied for a Family Abuse Prevention Act (FAPA) protective order against respondent on October 9, 2017. Respondent and petitioner were married in 2014. Together, they had a son, J, who was born in 2015. During the marriage, respondent suffered from depression, for which he took medication. He sometimes also drank to excess. Petitioner testified that respondent raped her twice: once in March 2017 and once in May 2017. The incident in May included respondent dragging petitioner away from J while petitioner was breast feeding. In June 2017, petitioner expressed her unhappiness with the marriage. Respondent replied that, if petitioner left or divorced him, he would kill her and take J. In July 2017, petitioner took J, moved in with her parents, and filed for dissolution. After the separation, respondent made frequent attempts to contact petitioner by phone, email, and text message. At prearranged meetings, respondent regularly exhibited anger toward petitioner. After a hearing, the trial court continued the protective order in its entirety. On appeal, respondent conceded that the trial court’s findings were sufficient to establish that he had abused petitioner within 180 days of petitioner seeking the protective order. Respondent argued, however, that the evidence was insufficient to establish the two other elements: that petitioner was in imminent danger of further abuse from respondent and that respondent presented a credible threat to petitioner’s physical safety. The Court of Appeals agreed with respondent that the evidence was insufficient to show that petitioner was in imminent danger of further abuse from respondent. The court, as a result, reversed the trial court’s order without considering whether respondent represented a credible threat to petitioner’s physical safety. Because the appellate court did not consider whether respondent represented a credible threat to petitioner’s physical safety, the Oregon Supreme Court reversed and remanded for the appeals court to determine that issue in the first instance.