FORUM: Death by protective order

On Nov 15 at 7 p.m. the Alexandria Human Rights Commission held a public hearing on the Alexandria Police internal affairs investigation on the tragic shooting death of Lewis Barber on April 27. Lewis Barber was issued a protective order April 23 directing he not contact his wife Robin or his 9-year-old son Phillip. On April 26, Lewis, being distraught, forcibly took his son from his wife and brought him to his house. An 18-hour standoff with the Alexandria police led to Lewis Barber being shot to death by the Alexandria Police.

The Alexandria Police Department did a good job explaining why the police officers had to use deadly force in the last 6 seconds of the encounter, but left open for further review the tactics used and the extent to which nonlethal methods could be more effectively applied. A better question though, was how this could happen to a man who, by all accounts, even that of the Alexandria Chief of Police was a loving father and husband. More specifically why was there a protective order barring Lewis Barber from seeing his son?

The protective order was granted at the request of his wife, who intended to leave him and their marriage. There were two reasons: a 1998 incident in which Lewis’ wife claimed he fired shots in their home’s attic and the fact there were guns in the house. Lewis collected Civil War firearms. The investigation should have focused more on why an alleged incident seven years earlier and legal ownership of firearms warranted barring Lewis from having contact with his son.

The morning after the protective order was issued, the police showed up at Lewis Barber’s house while his wife was leaving and told him he could not contact his wife or son. Put yourself in Lewis Barber’s place and imagine what it like to see your wife leaving and the police saying you are not allowed to contact your 9-year-old son for at least two weeks and then only after a hearing to demonstrate your worthiness to do so. Most people in this situation would be beyond anger and frustration. In fact, this would drive most people crazy.

The protective order became a self-fulfilling prophecy; put the conditions in place to make Lewis irrational and then used the irrational behavior to justify the protective order.

Protective orders are a real life version of “Minority Report,” the Tom Cruise science fiction movie where the legal system believes it can accurately predict a crime before it occurs. A one-party claim is all that is required to obtain a protective order, which can be issued after a hearing of no more than 5 or 10 minutes before a judge or magistrate, who only need believe the claims to be plausible. No attempt to contact the accused party is made and no proof or evidence is required.

In fact, protective orders are very often and too easily misused by one parent to gain advantage in a child custody battle and are a device to keep the family home in a property settlement. Once one spouse has gained custody of their minor children and the house through a protective order, it is difficult for the other party to secure significant custodial time with their children and almost impossible to regain the house.

Protective orders can also provide cover and shift blame from spouses who may have initiated the break-up by having an affair or simply becoming bored with the marriage.

Lawyers and other advocates willingly take part in this protective order fraud through the advice they give their clients. Judges and magistrates err on the side of caution because they don’t want headlines of a murder or serious injury if they don’t grant a protective order.

The irony here is the judge who issued the protective order led directly to Lewis Barber’s death and left his son Phillip less protected because his father is no longer alive.

RON GRIGNOL

A Fairfax County resident and a defense consultant. He is also a shared parenting and family law reform advocate and recent Republican candidate for the Virginia House of Delegates from the 43rd district.