Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg

[KyJim]

In reviewing the court's order, it appears that the important points are:

(1) Only those who have actually been denied the right to purchase firearms because of a misdemeanor domestic violence conviction have standing to challenge the constitutionality of the statue. Simply being dissuaded from trying to purchase a firearm is not enough.

(2) The court recognized that other courts have held the statute not to be unconstitutional on its face. However, the court has kept alive the single "as applied" challenge; that being that the lifetime ban is unconstitutional as applied to plaintiff Enos because his conviction was more than ten years old and California had restored his right to own a firearm under state law.

[anthonyca]

I wanted to edit my OP but I guess this site locks you out after a while. Here is the first page of a similar thread on calguns. http://calguns.net/calgunforum/showthread.php?t=417935

If you know anyone who has been impacted by lautenberg or feels that the lifetime misdemeanor ban is wrong, please email them a link to this thread. There are millions of us who feel this law is wrong. Let's go viral with this.

Donating money here http://madison-society.org/donation.html would really help this case and a possible future case for the plaintif who was dismissed by the judge. According to Donald Kilmer, that plaintiff had the best 10th amendment claim.

The 10th amendment claim will get more people interested than just gun people.

The Madison Society is suing Eric Holder and the feds over the lifetime federal ban on "domestic violence" misdemeanants. People who know about this issue know just how easy it is to become prohibited due to one of these convictions.

The case is Enos V Holder.
http://madison-society.org/laws/litigation.htm




Look at page 12. http://www.madison-society.org/laws/...-1-MTD-MPA.pdf The government is arguing that the second amendment is NOT a civil right. They say voting, speech, freedom of the press are, but not the second.

Update; Don Kilmer filed this Supplemental Authority. http://ia600300.us.archive.org/35/it...15824.23.0.pdf

Update; Enos survived the motion to dismiss by the federal government.http://ia600300.us.archive.org/attac...15824.24.0.pdf

We are winning!

[anthonyca]

Update. http://ia700300.us.archive.org/35/it...15824.25.0.pdf

[MrX]

Face to face argument with the wife, she goes to turn to walk away. I grabbed her wrist. I get DV, that was ten years ago.
I went and received my expungement last year. This coming Tuesday the 26th, I had planned going to the range. But that won't be happening.
Yes there is much more to the story. But it would take a long time and probably 2 or 3 pages.

[anthonyca]

Mrx. People need to hear these stories.

[MrX]

It was a terrifying experience! I'd never had anything so scary happen to me before like that. Traffic ticket was the most I ever had, but a lot of us get those. Arrested, "me"- unreal, a night mare!
I still look out the front window(some times, not every time) when the dogs bark. Looking for my probation officer, to be walking up to do their monthly house search. "I've been off probation 7 years , and expunged"!

[anthonyca]

Mr. X, thanks for posting. People have to experience this or see it happen to understand. It is really hard for someone like me who took the oath and was prepared to give my life for my country only to learn our own government despises the constitution they took the same oath to defend.

[anthonyca]

Update. Filed by Mr Kilmer.

http://www.archive.org/download/gov....15824.27.0.pdf

[TexasFats]

It would seem to me that lifetime loss of gun rights, now recognized by the Supreme Court as protected by the Second Amendment, for a misdemeanor could best be fought as excessive punishment for a misdemeanor. I mean, what other misdemeanor carries with it lifetime loss of a constitutional right?

[MrX]

Didn't the Supreme Court, in Heller or McDonald, say that any one with DV conviction still would not be able to own a gun?
How can Enos change that?

[Al Norris]

Apologies for being late with a couple of answers.

Originally Posted by MrX

Didn't the Supreme Court, in Heller or McDonald, say that any one with DV conviction still would not be able to own a gun?

No. Scalia did not say anything at all about that. He did write that long standing laws that prohibited felons from possession were presumptively constitutional.

Someone convicted of a misdemeanor domestic violence violation is not a felon.

Originally Posted by TexasFats

I mean, what other misdemeanor carries with it lifetime loss of a constitutional right?

Try a conviction of common law battery that carried only a small fine, until years later the State changed the sentence to an indeterminate sentencing of up to 3 years. See Schrader v. Holder for that one.

[American Made]

Hi,


That whole "lesser" crime thing really bugs me. If someone pleads out on "Disturbing the peace" he still is under the gun ban. ...If the penal code that he pleads has the "element" of force ( like Ca P.C 415 ). However, you can reduce several of these lesser crimes in California to infractions. This takes you out of the misdemeanor and away from the ban. This whole law is overly broad AND unconstitutional.

Penal Code section 17(d) reads:


A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction

Penal Code 19.8. The following offenses are subject to subdivision (d) of
Section 17: Sections 193.8, 330, 415, 485, 490.7, 555, 602.13, 652,
and 853.7 of this code; subdivision (c) of Section 532b, and
subdivision (n) of Section 602 of this code; subdivision (b) of
Section 25658 and Sections 21672, 25658.5, 25661, and 25662 of the
Business and Professions Code; Section 27204 of the Government Code;
subdivision (c) of Section 23109 and Sections 12500, 14601.1,
27150.1, 40508, and 42005 of the Vehicle Code, and any other offense
which the Legislature makes subject to subdivision (d) of Section 17.
Except where a lesser maximum fine is expressly provided for a
violation of any of those sections, any violation which is an
infraction is punishable by a fine not exceeding two hundred fifty
dollars ($250).

Regarding California 17b and 17d:

People v. Gilbreth (2007) 156 Cal.App.4th 53 [-- Cal.Rptr.3d --]
[1] "[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor 'for all purposes.' This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring." (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant's possession of a firearm by a convicted felon must be reversed. (See People v. Banks (1959) 53 Cal.2d 370, 383-387, 388 ["defendant would remain classified as one convicted of a felony within the meaning of section 12021 . . . until and unless the [prior] offense was reduced to a misdemeanor by imposition of appropriate sentence"]; Gebremicael, supra, at p. 1485 ["as the Banks court observed, a person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony within the meaning of . . . section 12021"].)

The People attempt to create an aura of uncertainty around the application of section 17, subdivision (b)(3) by comparing this case to those where defendants unsuccessfully argued their convictions were automatically classified as misdemeanors because they successfully completed probation. (People v. Banks, supra, 53 Cal.2d 370; People v. Livingston (1970) 4 Cal.App.3d 251; People v. Esparza (1967) 253 Cal.App.2d 362.) We find those cases to be inapposite. Defendant's earlier conviction for evading an officer was reduced upon motion of the prosecution to a misdemeanor "for all purposes."

[2] We also are not persuaded by the People's criticism of Gebremicael, supra, 118 Cal.App.4th 1477, for its reliance on dicta in our Supreme Court's decision in People v. Banks, supra, 53 Cal.2d 370. We have no reason to disagree with the Gebremicael court's construction of section 17, and we agree that: "as observed in Banks, when the Legislature wants to continue treating a felony reduced to a misdemeanor under . . . section 17 as a felony, it expressly says so, and the court will treat the person as such only upon those occasions." (Gebremicael, supra, at p. 1486.) In fact, the Legislature added subsection (b)(3) to section 17 after Banks was decided, and included no language to suggest that a defendant whose conviction was reduced under section 17, subdivision (b)(3) was to still be considered a felon for purposes of section 12021. At the time he was charged in this case, defendant had a prior misdemeanor conviction for evading an officer, and that conviction could not be considered a felony to serve as the basis for a charge that defendant had violated section 12021. Defendant's conviction for being a felon in possession of a firearm is reversed.

[BobW88]

Hi all, I have been following this post for some time now as I too am affected by this violation of my constitutional right to bear arms. In 2008 i was convicted of misdemeanor dv, I had to jump through all the hoops: lawyered up, plead out of the felony they charged me with to the misdemeanor(which in my case was a break), completed the one year dv classes. I too am seeking expungement for this crime in the hopes to restore my rights. I live in a remote area of northern California where not only am I looking to protect my family, but myself from intruders and wildlife(bears, mt. lions etc.). Law enforcement cannot be at my house for over an hour if called, thats being said there is no cell service where I live, so if the phone is down I hike to the neighbors. So I am looking for ways around Lautenberg. I understand that I may not own/buy firearms, however is my wife and children who are not under any restrictions able to purchase firearms, and what about weapons they have previously owned before my ban? Any information on this subject would be appreciated.
My understanding is that I may not have access to these weapons, but if they were in a gun safe where "I did not know the combo/have access to" would this be safe?
-Bob

[raimius]

If you don't own it, and you don't have access to it...you don't have access to it, legally. (Not a legal opinion, from a guy who does not have a law school background)

[American Made]

Bobw88,

Are you still looking for info? There are several MAJOR problems with California expungement law. The first being, it is not a full expungement under federal standards. You need one of the better firearm attorneys! Most 'legal minds' don't understand this area of law well enough.

The misdemeanor under California law is only ten year firearm ban. Then you have the federal issue at play here - which is lifetime. I believe there is a lawsuit about this CURRENTLY. If you would have pled down further ( something that was reducible ) then you could ask the judge to reduce the charge. But.... Ca PC 273 ()ect are not reducible.

You COULD spend tons of money and see if you could re-fight the whole case. This is very hard though.

What was your plea? What for..Penal code?


EDIT:

Run this by your attorney. Have your charge ( I believe this can happen with the D.A's permission ) reduced to CA penal code 415(2). The whole subject is "element" of force under federal law. I believe this is your best hope..

Here is CA penal code 415

Any of the following persons shall be punished by imprisonment
in the county jail for a period of not more than 90 days, a fine of
not more than four hundred dollars ($400), or both such imprisonment
and fine:
(1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
(2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
(3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.

[hartlock]

I had read in various gun rags, when this law was first passed,
that most law enforcement agencies loved it! Then, they
found out that THEY could be charged and lose their jobs, too!
By the way, the law was RETROACTIVE! If you had any prior
conviction in your past, regardless of when it had happened, you
could still lose your job over it. And, by extension, your second
amendment rights, too!

[maestro pistolero]

I had dinner Thursday with a retired commander of a major Maryland agency who came very close to losing his entire career over a false allegation made by his alcoholic wife (now ex-wife) who, in fact, fell down the stairs in a drunken stupor (while he was on duty and NOT at home).

Being a chronic alcoholic, she had done this before. This time, under questioning by detectives, she blamed this on her husband. Apparently, the format of the questioning tends to sway less-than-lucid individuals toward admitting domestic violence, sometimes even when non has occurred.

They were finally able to confirm his story through his daughters and through colleagues who were able to verify his whereabouts at the time of the accident, but not before the cuffs were applied.

[MrX]

I found this on another forum. Reading it, it sounds as if the ATF, has had a change of heart when it comes to expungements! "Am I wrong"?


Q: What is a “misdemeanor crime of domestic violence?”

A “misdemeanor crime of domestic violence” means an offense that:
1.is a misdemeanor under Federal or State law;
2.has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
3.was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
1.the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
2.in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either — a.the case was tried by a jury, or
b.the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.


In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]
http://www.atf.gov/firearms/faq/misd...-violence.html

[Al Norris]

MrX, nothing was actually changed by this "new" definition. It is merely a bit longer and still in accord with what the .gov is arguing in this case. Namely: your RKBA is not a civil right and therefore nothing was restored.

The .gov filed there answering brief to the complaint. it can be read here.

Not surprisingly, it is a Motion To Dismiss.

[MrX]

Al Norris, Thank you very much for posting the docket! I read it over several times. I'm sure that others, that are in the same boat as myself did also!

[BobW88]

American made here is some more info on my current situation.
2008- plead nolo contendere to ca pc 243.e (1) domestic battery I believe.
Sentenced to, three years probation(the works community service, and drug testing until I completed dv class) The one year of anger management/dv class, then probation was commuted to unsupervised and an ass load of fines. I had completed all my classes and payed all my fines, had my probation dropped to unsupervised.
2010- got into it again with the same lady, this time they wanted to slap me with the works... domestic, probation violation etc. I was by no means the antagonist in this situation, but due to my situation at the time I was the one in cuffs. "Luckily" and i say as non whole heartedly as I can, I had witnesses who could draft letters on my behalf to the DA that I was the non aggressor. Well the DA's here in California are out for blood when it comes to domestics, and in Santa Barbara County where this happened they have zero tolerance when it comes to this crap, the man is always going down. I plead nolo contendere to what you had mentioned, ca pc 415, disturbing the peace by noise. They wiped my old probation and slapped me with two more years unsupervised and of course more fines.
So at this point I am looking for what I can do.....
-Bob

[bacardisteve]

I lost a good airman because of lautenberg. He and his girlfriend got into an argument and the neighbors had called the police. Both of them had charges of domestic violence filed on them and he was kicked out of the military because he was no longer allowed to handle firearms.

[Dr. Strangelove]

Domestic Violence is a serious issue, and those who are truly involved in it deserve to face the full brunt of the law. I understand that the laws are written to protect those who can't protect themselves, but the laws go too far and are stacked against those who may be innocent.

As a manager in two different companies, I had to fire two male employees who couldn't make it to work on a regular basis because their ex's would file DV charges against them on Sunday night, like clockwork. While we believed the charges to be false, and ultimately they were proved false, both employees were terminated for attendance policy violations. Right or wrong, you can't employ someone whose ex has them arrested every Sunday night. Both ex's were vindictive and trying to get the guys fired. The police wanted nothing to do with filing charges relating to false claims against them.

A friend came within a hair of losing her children because her four year old fell down a flight of steps, and someone reported her for child abuse based on the appearance of the child. The case worker told her had she not had the hospital records, they would have taken both her children into protective custody. She still has an active file with social services, with an "unsubstantiated" claim of child abuse, which could hurt her if anything else was ever to happen. She wasn't allowed to know who filed the claim or face her accuser.

It's far too easy to end up with a DV charge. In the three states I've lived in (NC, FL, GA) if the police come out for a DV, someone is going to jail. I've seen far too many people with their futures ruined over lies from partners and ex's, and the police seem far too reluctant to pursue charges against those who make false claims.

Again, DV is a serious issue and those who do abuse their partners deserve the weight of the law to be brought against them, but the laws as written are one-sided and don't address the reality of many situations.

[maestro pistolero]

The penalty for false DV accusations needs to equal that for actual DV. There is almost no consequence for this crime. As of now, prosecuting those falsely accusing is seen as 'blaming the victim'.

[MrX]

False DV accusations, I call that "false witness"! It happens, problem is, people don't believe you. I take that back, one man at the DA's office saw through her lies! I was still convicted, but I served no jail time, thanks to him!