Question about the Lautenberg Amendment

[therealdeal]

I apologize for the possible wrong forum but I figured Frank andor Al(or someone else) might be able to quelch my curiosity on a debate I was listening to one day.....

basically lautenberg act amendment of the 1968gun ban:

if someone avoids a domestic violence misdeameanor but gets an assault misdeameanor conviction or a battery misdeameanor conviction, etc, etc, etc but they are NOT considered domestic violence convictions, are they still considered domestic violence via federal law and mess up gun owners or LEOs and so-on because even though it wasnt domestic violence since the misdemeanor conviction involved a family member it still falls under that status??

what is the deal??

again sorry if wrong spot I saw the correct thread earlier but have looke dand looked and haven't seen it since.

I have heard different things, and I know people take plea bargains to protect themselves so that is like the ultimate irony if that came back to haunt someone. I heard back in 1996 at the passage of the law LEOs who had minor misdemeanor convictions were all of a sudden being fired even though the law was passed yrs after their convictions...... I believe these people were DV's though

[Al Norris]

18 U.S.C. 921(a)(33)(A) Except as provided in subparagraph (C), the term “misdemeanor crime of domestic violence” means an offense that—

(i) is a misdemeanor under Federal, State, or Tribal [3] law; and

(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, 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.

Look real hard at paragraph (ii). If the misdemeanor conviction had any of the above elements, regardless of what the misdemeanor was called, then under Federal law, it is an MCDV.

See also United States v. Hayes, 129 S.Ct. 1079 (2009).

[KyJim]

Yet another example of creative interpretation of a statute's plain language to achieve a perceived positive social result. An "element" of a statute is something expressly stated in the law which the government has to prove beyond a reasonable doubt -- except here. Under the case Al cited, even if the conviction is for a generic battery that does not require the victim to be a family member, it will qualify as a misdemeanor of domestic violence if the victim is, in fact, one of the types of designated family members.

[youngunz4life]

does that mean they would have to give up their firearms? what do they do if the lawyer gave them wrong info? thatz crazy...

[KyJim]

does that mean they would have to give up their firearms?

Yes.

what do they do if the lawyer gave them wrong info?

They can try to set aside the conviction based on ineffective assistance of counsel. It would not be easy and there are time limits.

[youngunz4life]

is there anything else one can do/acceptable avenues?

[Spats McGee]

Split off from a different thread.

youngunz4life, in addition to attempting to get the conviction set aside, as KyJim suggested, one could also try to get:
1) a pardon;
2) an expungement;
3) gun rights restored.

[seeker_4]

Could a restraining order in itself be an element? Without any further charges? Or would it amount to conviction of a charge?
I ask because in divorces, judges passed out restraining orders like candy. Had to be no support justifications other than the spouse (normally female) requested it.
My son cohabited with a woman and when they separated she got a restraining order against him, stated she fealt he was dangerous. He had no contact with her at all and after 12 months it just went away. But there was never a reason to begin with.

[Al Norris]

Originally Posted by seeker_4

Could a restraining order in itself be an element?

A Temporary Restraining Order (TRO), qualifies as a temporary firearms disability. Should the order be made permanent, then the disability would be for life.

Originally Posted by Spats

youngunz4life, in addition to attempting to get the conviction set aside, as KyJim suggested, one could also try to get:
1) a pardon;
2) an expungement;
3) gun rights restored.

The problem here, is that the BATF does not recognize the items in Spats' list, above. This is readily seen in the fact pattern of the case that this thread was split off of. Consider the exception of the statute:

18 U.S.C. 921(a)(33)(B)(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction 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 applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The BATF and the DOJ, through their interpretation of the statute, in particular the portion I highlighted above, insist that if you've never had your right to vote, right to sit on a jury, right to hold elected office taken away (and a MCDV does not normally restrict those specific rights) then you can never have had your rights restored.

In short, the BATF does not consider the loss of the ability to keep and bear arms a civil right.

[Spats McGee]

Whoops. Sorry for the bad info. I stand corrected.

ETA: I'll try to do some research to refine the particulars of this later. It may not be today, though.

[Al Norris]

To see exactly what the Federal Government is saying, I need only quote from the original Motion to Dismiss from the Enos district court:

Second, the test for whether one’s civil rights have been restored is whether the individual has regained his right to vote, to sit on a jury, and to hold public office. See Logan, 552 U.S. at 28 (construing the sister statute for felons and stating that “[w]hile 921(a)(20) does not define the term ‘civil rights,’ courts have held, and petitioner agrees, that the civil rights relevant under the above-quoted provision are the rights to vote, hold office, and serve on a jury.”); United States v. Valerio, 441 F.3d 837, 843 (9th Cir. 2006) (same). The fact that a state has restored an individual’s right to possess firearms is not enough. Valerio, 441 F.3d at 842-43; see also United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir. 1995) (rejecting the argument that an individual’s civil rights have been restored if state law has restored the individual’s right to bear arms).

That, in a nutshell, is where this case is. At the CA9, Donald Kilmer is attempting to have the courts recognize that an enumerated and declared fundamental right, is in fact, a civil right for purposes of interpreting the law.

[ScottRiqui]

Look real hard at paragraph (ii). If the misdemeanor conviction had any of the above elements, regardless of what the misdemeanor was called, then under Federal law, it is an MCDV.

So going back to the OP's question, if a domestic violence charge is reduced to simple battery, either through a plea bargain or at the discretion of the prosecuting attorney, then a conviction wouldn't cost the defendant his gun rights, as long as none of the elements of simple battery in that jurisdiction require a particular relationship between the assailant and the victim, correct?

[Al Norris]

Perhaps I'm not explaining this properly, Scott....

If any of the elements of Domestic Violence are involved in the conviction, you are a prohibited person. It matters not what the conviction was for or how the elments of the conviction are stated, in or out of Statute.

If the domestic element is there, it is, in the eyes of the Feds, an MCDV.

[ScottRiqui]

Isn't an "element" something that's specified within the statute under which a person is charged or convicted? Here's an example using Florida law (emphasis added):

As defined under Section 784.011, Florida Statutes, simple assault occurs when a person, by word or act, makes an intentional, unlawful threat to commit violence towards another person, and the person making the threat has the apparent ability to carry out the threat, and the person does some act which creates a well-founded fear in the other person that such violence is imminent. Thus, to prove the crime of simple assault, the State must prove three elements: (1) the accused intentionally and unlawfully threatened, by word or act, to do violence to the alleged victim, (2) At the time the threat was made, the accused appeared to have the ability to carry out the threat, and (3) the accused’s threat created in the mind of the alleged victim a well-founded fear that the violence was about to take place.

None of those elements make any reference to the particular type of relationship that exists between the assailant and the victim. So under the part of 18 U.S.C. you cited, a person could be convicted of simple assault in Florida without it being a MCDV, even if the victim was a spouse, live-in lover, or otherwise.

While the "crime" might have been someone raising his hand to his wife, the "offense" in this example is simple assault, because that's what the assailant either pled to or was convicted of.

The only thing in the official record will be a conviction for simple assault. How are the details of who the victim was and the relationship between the assailant and the victim going to find their way into the record so that the person can be declared a prohibited person? None of the elements of the offense for which the person was convicted are covered by the portion of 18 U.S.C you referenced.

[therealdeal]

The only thing in the official record will be a conviction for simple assault. How are the details of who the victim was and the relationship between the assailant and the victim going to find their way into the record so that the person can be declared a prohibited person? None of the elements of the offense for which the person was convicted are covered by the portion of 18 U.S.C you referenced.

this is a good point and was part of the debate mentioned in the original post.

one debater was a cop saying if he pulled someone over, he sees simple assault. bang done deal. yeah he could call for police reports, yadayadayada but why would someone. I don't know...I got lost in the sauce listening to the debate. someone else said this stiff wasn't even enforced until post9/11 but really I mean it is a scary law but I would assume tons fall thru the cracks. then of course if something happens they are royally screwed even if they claim being stupid(or actually to be honest are clueless on this ridiculous law).

not only that I was under the impression this 18 cited above isnt rock solid but open to litigation and state by state and is broad. therefore most states consider the person A OK(but technically federal trumps state so they aren't). I would love to get a lawyer's input on this. I cant think of anyone that begins to enforce this except of course inhouse LEOs when it pops up case by case. is this law going to be overturned AL? I know in 2010 it was successfully challenged but squeaked by (STOLKIEN the hunter said it was agnst his 2a rights)

[KyJim]

ScottRiqui -- Your understanding of an element of a statute comports with all that is good, true, and holy in the realm of statutory interpretation, except in this case. You need to read the case Al cited to in post #2. The majority of the court had no doubt just returned from Wonderland when they wrote their opinion:

'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'

'The question is,' said Alice, 'whether you can make words mean so many different things.'

'The question is,' said Humpty Dumpty, 'which is to be master — that's all.'

Lewis Carrol, Through the Looking Glass.

[ScottRiqui]

Thanks - I missed the linked case, and thought you were talking instead about the statute he cited.

After reading the case, I can see that the Fourth Circuit agreed with me, for the same reasoning I was using, so at least I wasn't totally "out to lunch". But you're right - the SCOTUS disagreed, so I'm now officially 'wrong'.

[Al Norris]

Sorry to have been the bearer of bad news.

[ScottRiqui]

That's okay - I'd rather know I was wrong, if it means I understand it now. Thanks, Al.

[therealdeal]

Al, I spoke with a very very competent attorney who has experience with this and has been a lawyer since 1985. I am still way way under a level understanding of say you or this guy(in my opinion), but I will say that the easy route is to understand what you said(and that is the way I always saw it). However - and I am still not even sure if it parallels the way scott was originally pointing out - the more difficult way to understand it was the way this lawyer explained it....and he explained it 3-4times because I was riding the train thinking he was mistaken or possibly ill-advised(or maybe just geberally unaware of the Lautenberg amendment). He said the ENTIRE amendment must be read in full to totally begin to comprehend it.

My final conclusion is that I cannot even begin to repeat what he was saying at least with major specifics, but in essence this man knew his game and it "isn't that easy". Someone could have a simple assault as only one example and still NOT fall under it being a domestic just because it was a family member. Sometimes elements do in fact have to be proven & also sometimes elements can't even begin to be attempted to be proven(due to various circumstances andor different/unique scenarios); this would indeed render the non-domestic misdemeanor safe from being labeled a domestic like Lautenberg tries to tie a knot to with his 30SEP1996 amendment. I would never argue with you, and I am not even sure if there is a response to my post. I am interested in this thread though. It is a good debate for sure and one - at least for me - that is very difficult to understand + conclusively make a solid interpretation of. Very good stuff, but I would hate to be the test pig in this one.

[therealdeal]

Could a restraining order in itself be an element? Without any further charges? Or would it amount to conviction of a charge?
I ask because in divorces, judges passed out restraining orders like candy. Had to be no support justifications other than the spouse (normally female) requested it.
My son cohabited with a woman and when they separated she got a restraining order against him, stated she fealt he was dangerous. He had no contact with her at all and after 12 months it just went away. But there was never a reason to begin with.

there would have to be a conviction, but a restraining andor protective order that wasn't temporary would handcuff your gun rights as a citizen.

sometimes a TRO as labeled by Al(Temporary restraining Order) or an order that is called something else in a different state which is just to get the ball rolling(emergency protective order as one of some other examples) is NOT enough to handcuff your gun rights. However, instances like this are obviously a hassle. One might receive an auto-generated revocation of there CCW because of such a snafu(depending on the state). One should be able to relatively easy restore their rights in such a scenario though once they can show nothing came of that. You make good points. Things like this happen all the time. I met a lawyer one time who looked at me with a straight face and told me she had her client ask for a restraining order one time because it made her case easier in a court...I don't know what case she meant whether custody, criminal, guns, or what the heck. I can say that I had a serious problem with that type of rhetoric from her. Because she gets paid she can ruin someone's 2A rights?! That's abuse in my opinion. those orders are supposed to be used to protect families, kids, women, and also men. they shouldn't be used as tools to further a different goal when they aren't truly needed.

PS- I REALLY WISH I KNEW WHAT ALL AND SCOTT WERE TALKING ABOUT WITH SCOTUS, 4TH CIRCUIT, ETC. I AM JUST A BEGINNER I GUESS

[ScottRiqui]

Check out Al's link in post #2 (the link I missed earlier). Basically, it describes a case that went to the Fourth Circuit Court of Appeals, then to the Supreme Court.

The Fourth Circuit COA interpreted the U.S. Code the same way I did - that unless the misdemeanor offense for which a person was convicted contained an element that expressly described a "domestic" relationship between the assailant and the victim, it didn't count as a "misdemeanor crime of domestic violence" for the purposes of the section of 18 U.S.C cited earlier.

The Supreme Court disagreed, and said that if there was a domestic relationship between the defendant and the victim, the misdemeanor conviction counts as a MCDV, even if none of the elements of the offense for which the defendant was convicted described a domestic relationship between the defendant and the victim.

[Al Norris]

OK, I've shown the 921 definition of a MCDV. Also the latest Supreme Court case that addresses this. Now let's look at section 922, the actual prohibition:

18 USC 922(d)(8) is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child, except that this paragraph shall only apply to a court order that—

(A) was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and

(B)

(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or

(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or

(9) has been convicted in any court of a misdemeanor crime of domestic violence.

The restraining order (or order of protection, whether it be a temporary or permanent order) has some very specific circumstances. It can not be just any restraining order.

1. The order must be made against you by an intimate partner or their (or your) child, or the childs' intimate partner;
2. You must have had a court hearing at which you can have rebutted the allegations;
3. The order includes a finding that you represent a credible threat against an intimate partner or a child;
4. The the order prohibits you from using any coercive means against said intimate partner or child.

If all of those elements are present, you are a prohibited person for as long as the order is in effect. 18 USC 922(d)(9) only comes into effect if you are subsequently convicted of a misdemeanor charge of domestic violence. In which case, you are prohibited for life, regardless of any protective order.

If you are found to be in violation of the above, you will be charged with violating 18 USC 922(g)(9)—which is the actual prohibition as outlined, above.

Prohibited for life... Unless, you are granted relief of this disability under section 925(c)—application for relief of disability—or as defined under 921(a)(20)—restoration of civil rights. That is what the Enos case is all about.

[therealdeal]

Al, how would this transfer over for say like bearpray, pepperspray for that matter, stunguns, and knives. Is whatever the law is for a felon carried over to this unfortunate individual? forgive me if this seems like a stupid question, I am honestly curious & not too keen on these things. I just know that actual convicted felons might worry about this stuff everyday(I'm not one), and internet research is well....how do you say full of holes. I was hoping you can help? I know state laws can differ, but how dicey is this situation regarding the topic of this thread? Thank you in advance, Sir.

[Al Norris]

Bless you, kind sir! [a simple question with a simple answer]

The Federal law, that we are discussing, deals with firearms and firearms only.

Everything that you have mentioned, above, would necessarily be dealt with under State law, if it is dealt with at all.