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July 8, 2017, 11:25 AM | #1 |
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Domestic Violence Convictions in the 10th Circuit
U.S. v. Pauler (16-3070) decided and published on May 23, 2017.
In 2014, Aleaxander Pauler was indicted and subsequently convicted for violating 18 U.S.C. § 922(g)(9) by possessing a firearm after having previously been convicted of a misdemeanor crime of domestic violence. The difference being that the DVM conviction was a misdemeanor conviction of violating a municipal ordinance. The 10th Circuit panel agreed with the appellant (defendant) that the term used in § 922(g)(9), "a misdemeanor under Federal, State, or Tribal law" does not include violating a local (or municipal) law. Elsewhere in both § 921 and § 922 (the pertinent statutes), Congress used specific language, "State and local", when it meant municipal laws. In the statute that Pauler was convicted, only the term, "Federal, State, or Tribal law", was used and therefore precluded violations of local (or municipal) law. The panel reversed and remanded with instructions for the district court to vacate defendant's conviction and sentence and to dismiss the indictment. The decision is a brief 9 pages and may be found here: http://www.ca10.uscourts.gov/opinions/16/16-3070.pdf |
July 8, 2017, 11:33 AM | #2 |
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Thank goodness there are a few judges left who can (and will) read what a law actually says, as opposed to what they think it should mean.
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July 8, 2017, 11:42 AM | #3 |
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I have no clue how many people were convicted (of DVM) under local ordinances, and then convicted under federal law for being a prohibited person. But I'm willing to bet there are more than one. While currently this operates only within the 10th Circuit, I'm willing to bet it will become the "law of the land" should other similarly situated defendants take notice.
This case has slipped "under the radar" of almost everyone, because of the current infatuation of the press to destroy the POTUS has blinded it to all other news. |
October 21, 2017, 11:05 PM | #4 |
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In the courts of a nation where the large majority of cases are disposed before trial by plea every so often you run across one such as this. All I can say is good for him. Well done and wish their were more like you.
Noting Al Norris "How many" comment i would venture to guess it is a very large number based upon my own knowledge and research of similar void orders and prosecutions for protective orders and their violation. I can point you right now today in one minutes time to thousands of them. |
October 22, 2017, 01:30 AM | #5 | |
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Quote:
But what amounts to your mere guess on the question is of no use at all.
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October 22, 2017, 05:36 AM | #6 | |
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Your guess based upon what you know of protective orders has no merit. Two entirely different things cannot be used for comparisons. It is an apple and orange comparison. |
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October 22, 2017, 08:30 AM | #7 |
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I agree with Al & Frank on this. In ~12 years as a municipal attorney, I cannot recall ever coming across a municipal ordinance on domestic battery, or anyone convicted under one.
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October 22, 2017, 08:48 AM | #8 |
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I ran an "All States & All Federal" search in Westlaw for "defendant convicted under domestic violence ordinance." I got 64 cases that hit, but not all of which are really applicable. I went through the first 40 before I ran out of time. Of those 40, I only found five that were convictions under domestic battery ordinances.
1. State v. Russ, an unpublished 2017 KS case from Wichita; 2. U.S. v. Pauler, which is linked at the top of this page; 3. City of Middletown v. Walker, 107 Ohio App.3d 516; 4. State v. Lackey, 45 Kan.App. 257 (2011); 5. City of Garden City v. Bird, 2006 WL 1816407, out of Kansas. There may be a handful of others out there, but they may also be beyond the reach of my Westlaw.
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October 22, 2017, 10:31 AM | #9 |
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What I find sad is that so many men lose their 2A right because of a misdemeanor conviction.
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October 22, 2017, 10:36 AM | #10 | |
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We have a sort of tug of war between the state and cities on traffic matters, so the State assembly has required that any plea be reported to the BMV for points according to the original charge. Now when people bring me a ticket, the PO often doesn't write the state code section and that section isn't part of the charge.
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October 22, 2017, 01:23 PM | #11 |
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Ok that may have been my bad. I did not mean that I could point you to thousands of municipal ordinance POs and convictions for violations of same. What I said or at least meant to convey was that; In my own research and experience I know for a fact without a doubt that there exists today thousands of void convictions for violation of civil domestic violence protection orders for lack of due process but which are [[Under state law}}. Thus my mention of "similar" void orders.
I can prove it and I will and I am. I am not simply talking to hear my own head rattle. I believe that for years there has been an abuse of power which has resulted in as was stated above by Kevin.... "What I find sad is that so many men lose their 2A right because of a misdemeanor conviction. " I think thats the real focus isnt it? |
October 22, 2017, 01:31 PM | #12 | ||
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Quote:
Quote:
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October 22, 2017, 01:44 PM | #13 |
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Frank there seems to be a proficiency of semantics here. My original comment was to that of the Ordinance my next comment was to that of the misinterpretation of that first comment.
Lets try and accomplish something rather than quoting from books weve all read. And you are wrong the conviction of violation of an non existent statute is void. If the 922 does not apply to the accused the prosecution has no standing to even bring a cause against him. If there is no standing though the conviction was rev & rem with instructions the proper action, I believe, would have been to reverse and render that the conviction was void. That didnt happen but it is my assertion that it should or at least could have been disposed in that manner. Please distinguish here the conviction under ordinance which was not void and the conviction under 922 which was void. |
October 22, 2017, 01:50 PM | #14 |
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October 22, 2017, 02:09 PM | #15 |
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Don't beat your wife" It seems simple. But as late as the 70s, there was an ordnance on the books in Buffalo, NY that said you cannot beat your wife after nine o'clock at or beat her in public.
Laws change and evolve or new laws are written leaving old ones on the books that shouldn't be there.
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October 22, 2017, 02:32 PM | #16 | |||||
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Quote:
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Second, what matters is what happened, not what you think should have happened. The question was posed to the Tenth Circuit, not to you. What the Tenth Circuit did is relevant. What you think should have happened is not.
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October 22, 2017, 03:28 PM | #17 | |||
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May I back the bus up for just a second? I want to highlight a couple of things:
Quote:
Suthern1, you then came back with: Quote:
You attempted to clarify with the following, to which I've added some underlines for emphasis: Quote:
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October 23, 2017, 12:51 PM | #18 |
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Yes Spats, "DVM" does in fact mean "Domestic Violence Misdemeanor". I've only begun using this acronym because it has now been used by both state and federal courts to mean exactly that. The acronym has long been used by the parties to an action, in their pleadings. Within the past five years, the courts themselves have begun using the shorthand term, in their decisions.
Suthern1, Pauler was convicted of violating a municipal domestic battery ordinance. That conviction stands, meaning that it (the conviction) was never in question. Pauler was later convicted of a Federal Offense: being in possession of a firearm in violation of 18 USC 922(g)(9). That was the conviction that was overturned. That DVM conviction was only part of the dispute because of the way the federal law [18 USC 922(g)(9)] was interpreted by the arresting authorities. The 10th Circuit correctly reasoned that if the Congress had meant that municipal DVM convictions were to be held as part of the 18 USC 922(g)(9) violation, they would have said so (using the standards applied in other parts of Title 18). Absolutely no law was voided; invalidated; folded; spindled or mutilated (grin). Protective Orders, in any guise, are not relevant for discussion in this thread. The only thing at issue here is the Conviction of a Domestic Violence Municipal Ordinance and whether or not it triggers 18 USC 922(g)(9). It does not, according to the 10th Circuit Court of Appeals. I really don't know how to make this more plain. |
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