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Old April 6, 2011, 08:33 PM   #1
anthonyca
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Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg

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 infamous Lautenberg ammendment.

The case is Enos V Holder.
http://madison-society.org/laws/litigation.htm
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Old April 6, 2011, 09:45 PM   #2
Al Norris
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A "sleeper" case!

Enos, et al v. Holder, et al. Case #2:10-CV-02911-JAM-EFB. Filed on 10-29-2010 in the US District Court of the Eastern District of California, Sacramento. Donald Kilmer, attorney for the Plaintiffs. 9 Plaintiffs, all but one, convicted of MCDV (Lautenberg). Alleges the US Government has violated their 2A rights through an unlawful interpretation of 18 U.S.C. SS 921, 922, and 925. Alleges violations of 1st, 2nd, 5th, and 10th amendments. The Madison Society is funding this lawsuit.

The case is at the MSJ stage. More when I can get to PACER.
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Old April 6, 2011, 11:06 PM   #3
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I'm about to edit the 2A thread and include this case.

You should know that the 9 plaintiffs were selected by Donald Kilmer (Nordyke) to represent a certain segment of people who are facing a lifetime gun prohibition, because the Feds refuse to recognize CA statutory law that has removed the disability from these people.

While this case, if successful, will not remove the Lautenberg amendment from the Federal Codes, it will force the feds to recognize States that, by statute, return a citizens gun rights.

The original complaint is available on the docket. First amended complaint is here: http://ia700300.us.archive.org/35/it...215824.8.0.pdf

Defendants MTD (points and authorities) is here: http://ia700300.us.archive.org/35/it...15824.11.1.pdf

All of these should show up on the "Docket" later tonight... But in case they don't, here ya are.
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Old April 6, 2011, 11:16 PM   #4
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Is WA state a part of the suit? Our state law allows for reinstatement after five years of good behavior by the superior court.
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Old April 6, 2011, 11:38 PM   #5
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The relevant portion of federal law is:

Quote:
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 [18 USCS §§ 921 et seq.] 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.
Under CA law, you can go to a court or wait for 10 years, and your rights are restored by operation of law. The feds are not honoring this portion of the Lauternberg amendment.

CA law is specific. It specifies exactly what an MCDV is and the punishments (such as loss of firearms) and the length of time to have your rights restored.

I don't know that WA law is the same.
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Old April 7, 2011, 09:04 AM   #6
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Thank you Al Norris. As you know, this is a very important case for the RKBA. Unfortunately very few people feel the same way.

I joined the Madison Society after learning of this case and I am trying to get attention directed here and hopefully have people donate.

As you said, Donald Kilmer is the attorney who first won incorporation for us in Nordyke (before going en banc) and Nordyke III is about to be decided.

I am surprised at how little interest there is in this case. I believe it should be well funded as it is important for the 1st,2nd,5th, and 10th amendments. This could be far reaching.
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Old April 7, 2011, 04:27 PM   #7
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Quote:
I am surprised at how little interest there is in this case. I believe it should be well funded as it is important for the 1st,2nd,5th, and 10th amendments. This could be far reaching.
I think there is a lot of unvoiced interest here. Several discussion on TFL have brought up friends/family/spouses/children of members, that are stuck in limbo, right now. With old convictions, or even just charges, there are many people that are wondering exactly what their firearms future holds.

Those people that are not currently interested, really should be. Most people don't understand that 99% of domestic violence charges are not brought on by the 'victim', but the court system itself - and that there are many "unconventional" ways to get charged (and convicted). If this issue is not addressed, it could very easily have a far-reaching affect on gun (and other) rights, as a whole.

My personal interest in this issue comes from my younger brother.
There is a lot of background I won't cover, but it all boils down to a quick explanation:
My younger brother's girlfriend brought their two little girls over to visit, at his house. She became upset, took his truck keys (his only mode of transportation) and cell phone, put the girls in the car, and tried to leave. He stood in front of the car, and demanded he be allowed to tell his girls goodbye, and that his keys and phone be given back. She refused, put the car in gear, and tried to drive over him. As he was moving out of the way, he pushed off of the windshield with one hand, as his body was rolling over the front fender... and made the mistake of yelling, "I'll kill you, you <expletive>". He hit the ground, and she never stopped - just kept driving.

She returned with sheriff's deputies about an hour later. Even though there were three witnesses that verified she ran into him with the car, as the first act of aggression from either party; he was ultimately charged with 8 counts of domestic violence: One charge of a "Domestic Terroristic Threat", for "I'll kill you". One charge of domestic violence, for "hitting" the windshield, after blocking her exit from the property. Four charges of "Domestic Violence in the Presence of a Minor"; one for each of the previous charges, for each child. Two charges of domestic violence, for swearing in the presence of a minor.

The primary charges and 'swearing in the presence' charges were dropped, when a judge ruled that blocking her exit from the property was not enough to warrant her response (hitting him with the car). However, the "-in the Presence of a Minor" charges resulted in conviction later on (even though the judge decided they were baseless!), and simply being charged with the "Terroristic Threat" is enough to revoke his firearm rights, permanently (according to current Federal Interpretations).

A few months down the road, he won an appeal to have the "-in the Presence of a Minor" convictions expunged. Yet, he still can't so much as touch a firearm, because of a charge that was ruled to be baseless - the "Terroristic Threat".


The majority of people in the U.S. just don't understand how easy it is to be charged with domestic violence (my brother's experience aside), and how much simply being charged can change your life. A conviction is bad, but just being charged can be life-altering.

Another problem with the "awareness level", is that many of the people dealing with this problem are not actively participating in firearms activities (obviously ). With their opinions, experiences, and views not being injected into discussions on boards like TFL, many people just aren't aware of the issues at stake, and the reasons to care about this issue.
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Old April 7, 2011, 04:33 PM   #8
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In some states the "charges" themselves can be expunged in addition to any convictions. I have a cousin who stole a VW bug and got three years in the pen who was later able to get the whole thing expunged...
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Old April 7, 2011, 07:25 PM   #9
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Currently however, unless you go through the § 925 relief, as the feds are not interpreting § 921(a)(33)(B)(ii) in the correct manor.

Oh, did I forget to mention that § 925 is not being funded? Get your application for relief of firearms disability, fill it out and send it in (with the required fee) and after a couple or three weeks, it will be returned to you (along with your uncashed check). A nice letter will accompany the return telling you that the program is not being funded by the Congress, so they can't even reject the application. It is merely returned.

The upshot of this, is that the Courts have already ruled that since the application was not denied, you don't have a claim before the court.

So what does this case do?

If successful on the facial challenge (which I think is very, very slim), it overturns the Lautenberg amendment.

If successful on the as-applied challenge, it will allow the States Legislatures to enact statutory law (similar to CA law) to relieve the disability.
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Old April 8, 2011, 08:10 AM   #10
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Quote:
Originally Posted by FrankenMauser:

and simply being charged with the "Terroristic Threat" is enough to revoke his firearm rights, permanently (according to current Federal Interpretations).
Under what federal statute is simply being charged with an offense enough to result in a permanent firearm disability?

The definition of a MCDV under 921(a)(33) is:

Quote:
(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 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.
(B)

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(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.
Charges do not equal conviction.

Unless the prohibition is based upon a protective order but that is not permanent.
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Old April 8, 2011, 08:13 PM   #11
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Quote:
I think there is a lot of unvoiced interest here. Several discussion on TFL have brought up friends/family/spouses/children of members, that are stuck in limbo, right now. With old convictions, or even just charges, there are many people that are wondering exactly what their firearms future holds.
I'm voicing interest. Hell, I'm a LEO and I don't think a misdemeanor DV conviction should permenantly revoke the RKBA. Many non-violent (and non-drug related) felonies should not permenantly revoke the RKBA, IMHO. I personally see nearly every day how one stupid attack can permenantly strip you of a constitutional right. I'm all about taking that away if you're slinging crack, committed rape, or have murdered someone. I don't think a guy that got into it with his wife one night, she wanted to leave and he wanted to finish the conversation, he blocks the exit so they can resolve their business, she calls 911 and an overzeleous LEO wants to charge felonious restraint (even though he never hit her or hurt her)... whew... should be permenantly stripped of his 2nd amendment rights.



I've also seen women (and men) who lie to a magistrate to obtain a restraining order against the guy. The restrainee is aware of the order, as they're served with it. The other party, however, keeps calling them and telling them they want to continue the relationship. The restrainee, who usually loves them, agrees. Everything is fine. Until, that is, the restrainee upsets the restrainer. Then 911 is called, and LEOs end up arresting the restrainee for violation of the restraining order (or protective order, or whatever it is in whatever state). You have a guy or girl who's never really committed real domestic violence, but now they are all but convicted of a DV offense. Bye Bye gun collection. This happens. I've seen it happen.
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Old April 9, 2011, 11:57 AM   #12
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http://www.madison-society.org/laws/...-1-MTD-MPA.pdf

Look at page 16 where the government argues that gun rights are not civil rights.
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Old May 11, 2011, 08:20 AM   #13
anthonyca
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Al Norris posted an informative update in post #166 here http://thefiringline.com/forums/show...=416973&page=7

The government is arguing that the second amendment is not a civil right and that a lifetime ban of the right to keep and bear arms is not enough of a substantial burden.

Please consider donating to help this cause. Fowrarding information on this case is also helpful and many gun right people find it an interesting case. http://www.madison-society.org/donation.html

This case goes beyond misdemeanor lifetime bans.
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Old June 25, 2011, 02:35 PM   #14
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Mr. Kilmer filed a notice of supplemental authority. http://ia600300.us.archive.org/35/it...15824.23.0.pdf

Interesting.
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Old June 25, 2011, 02:52 PM   #15
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Okay, I was vaguely aware of the Bond case, but how does it bear on the case in California?
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Old June 25, 2011, 03:16 PM   #16
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Not to mention members of the Military. I have to do what is termed a Lautenberg Act for military personnel assigned to the units I work for annually.
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Old June 27, 2011, 08:22 PM   #17
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I'll be honest and say that wasn't even aware of this case until yesterday. I knew about states restricting gun rights after certain charges/convictions, but I didn't know that was being fought in the courts. I can say this. In the case of Al's brother, the LEOs are certainly going overboard. There are much more appropriate ways to handle that. The convictions are ludicrous. I'm glad to know this law is being fought and will be watching it closely. Thanks for the information.
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Old June 27, 2011, 09:54 PM   #18
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The Bond case is a 10th amendment case and directly bears on CA laws in restoring rights to "prohibited persons."

Quote:
Plaintiffs hereby give notice to this Court and the Defendants of Supplemental Authority regarding the Plaintiffs’ 10th Amendment claims. The United State Supreme Court issued an opinion in Bond v. United States, Case No.: 09–1227 on June 16, 2011. The Court has a Motion to Dismiss under submission that challenges Plaintiffs’ 10th Amendment claims. The Bond case specifically addresses standing issues in a way that is favorable to Plaintiffs’ claims.
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Old June 28, 2011, 05:36 PM   #19
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Hope they win and Lautenberg gets thrown out. That will give the anti gun folks a brain hemmorage.
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Old July 3, 2011, 07:36 PM   #20
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Ruling On Defendant's Motion to Dismiss

Does anyone know how long the court has to rule on the MTD?
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Old July 8, 2011, 06:15 PM   #21
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Update. http://ia600300.us.archive.org/35/it...15824.24.0.pdf

Don Kilmer responded here. http://www.calguns.net/calgunforum/s...=417935&page=5
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Old July 8, 2011, 07:31 PM   #22
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CA Attorney Donald Kilmer sent me an email this afternoon. I got home from work, read the email, then the decision. For those who don't understand legal speak, here is what has happened:

In the matter of Enos v. Holder (lifetime ban on misdemeanor domestic violence, Don Kilmer, CA), the court has found that Bastasini, Mercado, Groves, Monteiro, Erickson, and Newman lack standing and are dismissed, pending a second amended complaint.

The court also dismissed the First, Tenth and Fifth Amendment claims of Enos (and subsequently all parties), with prejudice.

The claims for declaratory relief and Second Amendment claims are still alive, pending a second amended complaint, which must be filed within 20 days. Judgment dated July 7th and entered today, July 8th.

The ruling is here.

As Don said to me, "Mixed result, but mostly good." The lawsuit is still alive. SAC will be due on or before Aug. 4th.
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Old July 8, 2011, 08:38 PM   #23
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Thanks for the synopsis Al.

The 10th dismissal with prejudice is upsetting.
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Old July 11, 2011, 01:44 AM   #24
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This forum won't let me edit the title, but I was asked by someone very important to change the title of this thread on Calguns to, "the Feds are Closer To Loosing......."
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Old July 11, 2011, 02:22 AM   #25
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this kinda stuff scares me...we all know people's careers can go caput by one domestic too. maybe that's a stretch but I saw one cop on the news who lost his job only to see himself win the case and have to file suit to get his job back. I mean that's a perfect example of being found innocent and suffering negative consequences anyways. Do yourself a favor, take the wife out to dinner and tell her you love her. ps- I am not sure if the guy even got his job back...

First thing that happens on a bad domestic(meaning the cops don't just leave while leaving it off the record after the talk), guns are confiscated. Second thing if you're any kind of LEO, the police Will call your work via protocol.
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