‘Hole in the law’ leaves restraining orders ineffective

If court order to surrender guns is ignored, county takes no action

BY DENEEN SMITH
dsmith@kenoshanews.com

When a retired firefighter from Bristol got a restraining order last spring barring a man who had threatened him from keeping guns or contacting him again, he thought he was taking a step that would keep him safer.

Instead, it provided an illustration of the gaping hole in the restraining order process.

The restraining order issued in the case ordered that the subject of the order, Trevor resident and Federal Bureau of Alcohol, Tobacco and Firearms investigator Philip Dziki, not contact the firefighter for two years. In addition, the court ordered that Dziki be barred from possessing a firearm for two years, and that he turn in the guns that he owns. “The respondent shall immediately surrender any firearms he owns or has in his possession to the sheriff of this county,” Court Commissioner Jon Mason ordered in court.

The order included a stipulation that Dziki would be able to handle weapons in relation to his job as an ATF investigator.

Mason’s verbal order in court was followed by a written injunction with the same instructions.

“Violation of this order shall result in immediate arrest and is punishable by imprisonment not to exceed 90 days or by a fine not to exceed $1,000,” Mason told Dziki in court. “I am also issuing an order to the sheriff of Kenosha County, Wisconsin. The court has ordered that Philip Dziki surrender any firearms he owns or has in his possession to you. And you may not return any firearms to this person until a judge had ordered that you may return the firearms.”

That language is standard in such injunctions. It is routinely given in orders of protection issued in cases of domestic violence and child abuse. In harassment complaints, the complaint must indicate there is a danger of the use of guns, a fear that was present in the Dziki case.

According to the Kenosha Clerk of Courts office, 522 restraining order requests were filed last year. Of those, 215 were granted, 93 with firearms restrictions.

“There are ten of these scheduled every Monday, 52 weeks a year,” Mason said. There are usually more than 10 on a waiting list, those get bumped to open times in the court’s schedule on Tuesday and Wednesday each week.

Victims may leave Mason’s court with the with the assumption that the subject of the order will turn in his guns. They are likely mistaken. Because while the orders call for guns to be turned in to the sheriff — or in negotiated cases to a third party — no one in the legal system is responsible for following up on whether they are.

And when the guns are not turned in, the sheriff’s department policy has been that deputies do not have the ability to enforce the turnover without a second court order.

Assistant District Attorney Dick Ginkowski said there is an ongoing investigation into the circumstances surrounding the Dziki order. However, he acknowledged, “there is a hole in the law.”

That hole became apparent statewide last October when a man who was subject to a restraining order in a domestic violence case did not turn in his guns, and later went to the Brookfield spa where his wife worked, shooting her and two other women to death.

The county has been at work on creating a pilot program to address the issue. They are expected announce the launch of that program next week.

The firefighter said the Brookfield case prompted him to check to see whether Dziki had turned in his guns.

To his surprise, and to that of his attorney John Kiel, he was advised that not only had Dziki not turned in his guns, but that it was up to the firefighter to go back to court if he wanted to do something about it

Kiel and his client were told that the issue was a civil matter, and if they wanted Dziki to give up his guns, they would have to seek another injunction.

“Under the present circumstance, it would appear that the burden is upon the client and attorney John B. Kiel to bring the respondent back into Court,” wrote Bernard Vash, county corporation council, in an email to Sheriff Dave Beth. “I would also note that we have located no specific procedures in (the law) for a civil order search and seizure of the premises of a respondent given such an injunction to turn in his firearms.”

Kiel said he is upset that the burden is on his client to try to return to court to have the injunction enforced.

“I walked away from the court room that day, I thought this was over with,” the firefighter said. “I did what my lawyer told me to do, I just wanted it to go away.”

Kiel said he is worried about what the firefighter’s experience means for domestic violence victims who have similar orders that have never been acted upon. “I find it crazy that in America we’re having this debate about stricter firearms legislation, and we’re not even enforcing the ones we have,” Kiel said. “It’s frustrating. And it’s not only frustrating, it’s dangerous.”

Case began during recall effort

Politics set off the threats that led a retired firefighter to seek an order of protection.

During the series of recall battles that roiled Wisconsin in 2102, the retired firefighter was a volunteer collecting petitions in the recall drive against Gov. Scott Walker. Phil Dziki was a Walker supporter.

While the firefighter and another man were collecting signatures in Old Settlers Park in Paddock Lake last January a man in a blue Toyota twice pulled in to the park and berated them, saying they did not have a right to be in the park. While confronting them, the firefighter said, the man made a shooting motion with his hand.

The firefighter called law enforcement two months later when Dziki, whom he had never met, contacted him by phone at his home twice, making threatening statements because the firefighter had been collecting signatures in the Walker recall campaign. During the call, Dziki told the firefighter he was the same person who had twice confronted him at Old Settlers Park.

Dziki, 61, was cited for harassment and for unlawful use of telephone for his threats to the firefighter. He was later cited in another case where he contacted a couple who had signed Walker recall petitions, by email. In the email, Dziki, demanded the couple give “an adequate explanation” for their opposition to Walker. If he was not satisfied, he wrote, “I will distribute a copy of the petition you signed to all (of the members of their church’s) congregation.”

Included in the complaints were postings Dziki made on his Facebook page. In one photo, Dziki appears to be in a gun shop holding a large, semi-automatic weapon. Under the photo Dziki comments “for foreign varmints near the southwest border who don’t respect our laws.”

Under another photograph of Dziki holding a high powered weapon, Dziki comments “I should go to DC after some of the socialist pigs that are rooting around, foraging for more of our tax money.”

Dziki believes he is the one being targeted for harassment by the firefighter, who he described as a “union activist” and a “toxic activist element in our community.” Dziki said the firefighter targeted him because he is a conservative, and said the recall gave the firefighter “fertile ground for him to exploit.” He also suggested the court commissioner and the sheriff’s department supervisor who signed off on the citations were all biased against him, saying their names were included on lists of people who had signed recall petitions.

The citations related to the firefighter were later dismissed in exchange for Dziki agreeing to the terms of the restraining order. The second complaint was also dismissed after negotiations between the district attorney’s office and Dziki’s attorney.

Dziki said that his communications with the firefighter and the couple he contacted “were all political in nature, lawful and specifically protected.” He called people involved in the case and people who have made comments about it online “local troublemakers” who have “spread toxin against many in our community through the media in order to promote and continue their political activist agenda.”

He said he only agreed to the restraining order to stop what he saw as harassment and because, he said, “my attorney questioned whether the court commissioner would be fair” because the commissioner was a recall petition signer.

“I did not say that,” Dziki’s attorney Michael Masnica said, saying he had no idea whether or not the court commissioner had supported the recall. Masnica said he was not aware that Dziki had not turned weapons in to the sheriff’s department, and said he has not been in contact with him recently.

The firefighter said despite the no contact order, Dziki appears to be continuing to be concerned with his activities.

In July, two months after the restraining order was issued, Dziki’s wife put in a public records request at Central High School for all email communications sent or received by the firefighter, who works at the school part time, his wife, who is a teacher, and a woman employee who is a member of the couple targeted by Dziki in the second harassment complaint. The request — which targeted only those school employees and no others — asked for all records that included the keywords “recall, petition, Walker, Barrett, election, Dziki and ATF.”

An open records request was also sent to the office of state Sen. Bob Wirch in August, requesting any correspondence between Wirch and the firefighter. Wirch’s office denied that request. Dziki then made a complaint about that denial to the State of Wisconsin Department of Justice. In September, the attorney from the office responded that “the justifications in Senator Wirch’s letter appear to be legitimate” and declined to pursue action on Dziki’s behalf in the matter.

Case being reviewed

After the firefighter raised a series of complaints about the gun surrender issue over the past several months, Sheriff Dave Beth sent an email this week indicating the issue was being reopened.

“I have already asked a team to review this entire incident from beginning to end to make sure all those involved acted appropriately. This includes my staff as well,” Beth wrote.

Included in that review, Beth indicated in an earlier email, was the issue of whether Phil Dziki was correct, and that petition gatherers did not have a right to be in Old Settlers Park.

“I have questions of what occurred and of the initial complainants right to be in the county park working in the fashion they were,” Beth wrote.

Both the Wisconsin Government Accountability Board and Kenosha County Corporation Council have indicated petition gatherers for all the recalls — and other political activities — have the right to be in public parks.

In a memorandum guiding people interested in the circulation of recall petitions, the Government Accountability Board wrote that parks are “quintessential public forums.”

Corporation Council Bernard Vash also advised at the time of the recalls that the county could not restrict activity like petition gathering in county parks like Old Settlers or carrying political signs. Doing so, he advised, could violate the First Amendment.

This week, Vash said he had changed his mind. “I don’t believe that the Supreme Court has changed their opinion about that, and I don’t imagine they will,” he said.

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