4th Circuit Says Domestic Violence Ban May Be Unconstitutional

[Bartholomew Roberts]

There is a much better discussion of it here:
http://volokh.com/2010/12/30/big-sec...-misdemeanants

But the short version is that in the case of United States vs. Chester, the government tried to justify a 922(g)(9) conviction (ban on firearms possession by person convicted of misdemeanor domestic violence) by saying it was no different than the list of presumptively lawful regulations mentioned in Heller.

The 4th Circuit said that the government failed to meet it's scrutiny burden with that argument and remanded. It looks like they are applying at least an intermediate scrutiny.

[atlctyslkr]

This is good. There are alot of people who have been victimized by the "she said".

[Tom Servo]

In some ways, this is a second chance for the Skoien arguments.

[Al Norris]

OK, this is going to be a might long, but I don't see any other way to put my thoughts about this into a coherent manner.

Part of the conversation about the Lautenberg Amendment, is that it created an ex post facto law. The Courts have held, time and again, that it is not. There may now be grounds for a difference in opinion on that subject. Since we are dealing with the 4th circuit (for now), I'll stay with that subject.

An earlier decision by the 4th Circuit was United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000):

Mitchell next argues that as applied to him, section 922(g)(9)
violates the Ex Post Facto Clause because both his firearm purchase and misdemeanor domestic violence conviction occurred prior to section 922(g)(9)'s enactment. See U.S. Const. art. I, section 9, cl. 3.

Again we disagree. "To fall within the ex post facto prohibition, a law must be retrospective -- that is, it must apply to events occurring before its enactment -- and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations and internal quotation marks omitted). It is immaterial that Mitchell's firearm purchase and domestic violence conviction occurred prior to section 922(g)(9)'s enactment because the conduct prohibited by section 922(g)(9) is the possession of a firearm. See, e.g., United States v. Boyd, 52 F. Supp. 2d 1233, 1236-37 (D. Kan. 1999) ("This court, as have all others deciding such a challenge, have concluded that ... the illegal act in section 922(g)(9) is the possession of the firearm, not the misdemeanor domestic violence conviction . .. ."); National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564, 1575-76 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998). As it is undisputed that Mitchell possessed the firearm after the enactment of section 922(g)(9), the law's application to Mitchell does not run afoul of the ex post facto prohibition.

Courts addressing similar ex post facto challenges to § 922(g)(9) have all agreed with this conclusion. See, e.g. , Boyd, 52 F. Supp. 2d at 1236-37; McHugh v. Rubin, 49 F. Supp. 2d 105, 108 (E.D.N.Y. 1999); United States v. Hicks, 992 F. Supp. 1244, 1245-46 (D. Kan. 1997); United States v. Meade, 986 F. Supp. 66, 69 (D. Mass. 1997), aff'd, 175 F.2d 215 (1st Cir. 1999); Barrett , 968 F. Supp. at 1575-76. Analogous ex post facto challenges to other similarly worded firearm possession crimes have also failed. See, e.g. , United States v. D'Angelo, 819 F.2d 1062, 1065-66 (11th Cir. 1987) (Defendant "was in possession of the pistol after the enactment of the statute. Proof of [defendant's] possession obviated the need for proof of the date [defendant] received the pistol."); United States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994); United States v. Gillies, 851 F.2d 492, 495 (1st Cir. 1988).

What Chief Judge Wilkenson is saying, is that the predicate unlawful act is the actual possession after a “misdemeanor crime of domestic violence” (an “MCDV”) conviction.

This interpretation is properly valid, only inasmuch as such possession (of a firearm for lawful purposes) is not a constitutional right. If the possession of firearms are a constitutional right, then what was lawful one day, but unlawful the next day, before §§ 922(g)(9) was passed, becomes exactly what the opinion above says it did not. That is, the act (possession) "appl[ies] to events occurring before its enactment..." the conviction prior to Lautenberg Amendment. The act (possession) "disadvantage[s] the offender affected by it by altering the definition of criminal conduct ..." known to the offender at the time of conviction.

We should be mindful that until Heller, possession of firearms were not a federal right. We should also be mindful, that this applies only to such convictions that were in place before §§ 922(g)(9) was enacted, not those decided after the enactment.

Part of the problem, hell, one major stumbling block is that the Federal Courts have not recognized that permanently stripping a person of their ability to possess firearms (for self defense or other lawful purposes) is a punishment.

That can be changed/is changing as we speak. The other problem is one of politics.

No Court in the US is going to be wanted to be seen as the Court that went soft on wife and child beaters.

It doesn't much matter that Domestic Violence, doesn't actually mean violence (the DV statutes are routinely abused). You've seen people villified here and everywhere else. Like a child molester, someone accused of DV is guilty, even if found not guilty.

Like many things, the reality is not the perception.

It seems the 4th circuit has had some change of heart, since it's decision in Mitchell in 2000.

In a decision from 2007, U.S. v. Hayes (case 06-4087) was decided.

The 4th Circuit decided that because the offense that Hayes was charged and convicted of, did not include any predicate domestic violence, the federal charges under 18 U.S.C. §§ 922(g)(9) and 924(a)(2) were not met. Hayes conviction was reversed.

This case was appealed by the US Attorney and cert was granted on March 24, 2008.

Before the SCOTUS was this question: Under the Gun Control Act of 1968, does a conviction for misdemeanor battery constitute a "misdemeanor crime of domestic violence" when the victim was the offender's wife and the predicate offense statute did not designate a "domestic relationship" between aggressor and victim as an element of the crime?

Remember, that in 1996, many States did not have specific DV statutes. The Lautenberg amendment was seen as a Federal "fix" to a popularly described problem.

The SCOTUS found: Yes. The Supreme Court reversed the Fourth Circuit holding that the predicate offense statute need not include the existence of a "domestic relationship" as an element of the crime in order to qualify as a "misdemeanor crime of domestic violence" as specified by the Gun Control Act of 1968.

(the above 2 paragraphs taken from the Oyez Summary)

Because of the Hayes decision, any conviction of assault or battery, in which the Feds can attribute some domestic relationship, now meet the criteria for MCDV and permanent disability of anyones RKBA. It matters not one whit, how far back in time the related conviction was.

In the meantime, we have had the Heller and McDonald decisions. Has this changed the playing field?

The 4th Circuit seems to think so... Because we now have had Skoien (7th Circuit), Mazzarella (3rd Circuit), and now Chester.

On the surface, it suggests that Intermediate Scrutiny (of some type) will be the issue in other as-applied challenges to §§ 922(g)(9).

Other cases will cement the legitimacy of possession of firearms, in the near future.

This then suggests that a first time conviction that requires a permanent disability, may not pass constitutional muster (no prior history).

It also suggests that a prior conviction, years in the past, with no intervening criminal activity may not provide the "history" to equate the individual with being less than "law abiding, and responsible" and therefore may not warrant a permanent disability.

It further suggests that an ex post facto challenge to permanent disability arising from a conviction before §§ 922(g)(9) was enacted, may now be ripe.

The landscape is changing.

I suggest that §§ 922(g)(9) is overbroad in scope and reach; That it was and is feel-good legislation that has been historically abused; That it should be rewritten and narrowly tailored for the effect it was supposed to reach.

[armoredman]

We live in interesting times.

[cookhj]

while i have no problem punishing people for wife beating, there is a lot of "he said, she said" involved, and it normally comes out bad for the guy. there are also a lot of real DV incidents that go unreported.

at any rate, i do agree that this law is, in essence, an ex post facto law. whether or not the courts agree this will remain to be seen.

[B.N.Real]

The concept of denying a person his or her Constitutional Rights due to a minor infraction of the law is very bizarre.

I an amazed that it's taken this long for the law to be questioned.

In the case of anyone who requires a firearm to keep their job,this law has been devastating.

[MLeake]

Another thing to bear in mind - so far, in every thread I have seen, everybody focuses on man vs woman.

But, in some places, if you get into a brawl with your brother or cousin who is temporarily residing with you, that can bring a DV charge.

Or, if you discipline a kid in a way that some random witness finds offensive, the same can happen.

DV statutes have become very broad in some jurisdictions. This could be another angle of attack.

[jimpeel]

In Denver there was a man who was in a heated argument with his wife. He wanted, and tried, to leave the situation but the door to the garage was through the kitchen and a narrow hall. His wife got in the narrow area and placed her foot on the opposite wall blocking his path. To get through, he pushed her leg down so he could pass. She threatened to call the cops so he called them instead. He was arrested for misdemeanor domestic violence and convicted. She was not hit or injured. He just wanted to leave.

[orangello]

I am glad to hear this law is being reviewed. I think it opens the door for a great deal of abuse/misuse.

[MLeake]

... while not a "punishment," per se.

The Lautenberg amendment can result in effective termination and impossibility of future employment for police and military. If they can't legally carry weapons...

So, the scenario I imagine, Corporal Schmuckatelli's brother in law, who is staying with the couple, has a few too many. Corporal Schmuckatelli tries to take the car keys from brother in law. Fight ensues.

Corporal Schmuckatelli and his brother in law get hit with misdemeanor domestic violence. (In some jurisdictions, such a fight would qualify.) Corporal Schmuckatelli cannot have a weapon; he cannot deploy. His reenlistment gets denied.

This kind of thing does happen, unfortunately.