Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg

[Al Norris]

Originally Posted by JimDandy

I think the key would be getting the firearms disability categorized as a punishment.

First, we have to get a firearms disability categorized as a civil right. Currently, the Feds are saying it is not. The rights that the Feds (and the district court) recognize, as civil rights, are: Voting, Jury Duty and Electability to Civil Office. If you haven't lost one of those three, then you haven't lost any rights and therefore, your rights have never been restored.

The problem is that all three of the rights used by statute are political rights and not fundamental rights.

[JimDandy]

Those are the rights used right now. There are other rights that are recognized by the courts as civil rights.

[Frank Ettin]

Originally Posted by JimDandy

...I think the key would be getting the firearms disability categorized as a punishment.

But it seems that the lawyers handling these cases haven't seen that as a worthwhile tactic.

[Bakfyr]

Hi,

I'm new here, and after reading this thread, I've decided to join and throw in my 'two cents'. Hope it's worth more.

I wrote an email to the attorney handling this case before joining, but he has not responded. I wasn't sure if the information I provided was useful, or should be kept 'secret', but since he hasn't responded, I'm assuming my info wasn't much help. So, I will share it here.

Much of this discussion has focused on 'civil rights', specifically the three core 'civil rights' of (jury, voting, and public office). The feds claim that under California law, none of these rights are lost due to a misdemeanor MDVC, therefore they cannot be restored within the definition of Lautenberg even with expungement. Hence, no restoration of 'civil rights' then no 'gun rights' either.

However, the feds are wrong. To this date, I have not found anyone present this angle, or argue it in a Lautenberg case as related to California:

In California, just about anyone can become a Notary Public. But most people don't realize that a Notary Public is a 'public officer' commissioned by the Secratary Of State. It is well established that a Notary Public is considered 'holding public office' (a core civil right as recognized by Lautenberg).

However, an applicant will be denied if convicted under misdemeanor Penal Code 273.5 (Some degree of domestic violence). Even an existing Notary Public will have his/her commission revoked/suspended if convicted of MDVC during their tenure.

A person convicted of a MDVC cannot be commissioned for Notary Public
until after 5 years since their sentence has ended AND they have had their conviction EXPUNGED with a certificate of rehabilitation per PC 1203.4.

This is all outlined on the Secretary Of State's website and PDF file here:

http://www.sos.ca.gov/business/notar...lines-2012.pdf



It appears that under a MDVC one of the three core civil rights is lost, and restored.

Now, someone may try to argue that it's only 'one' civil right lost, and not all three, and therefore not considered a 'full' loss. Ok. Allow me to point you to documents submitted by the federal attorney in the Enos case. In the following documents the fed attorney representing the defendant U.S., argues about a previous 9th Circuit decision regarding the state of Washington. He acknowledges that a felon had all his civil rights restored after a expungement or pardon (vote, jury duty, hold public office), with one little exception. The ex-convict could not specifically hold office as a county sheriff. Therefore, even though his other core civil rights were intact, he was still considered a prohibited person under federal law from possessing a firearm since he could not hold the 'public office' of sheriff. Pay particular attention to the final paragraph, as it uses the word 'or'. This is the government's own argument, using their own choice of words.




BENJAMIN B. WAGNER
United States Attorney
EDWARD A. OLSEN, CSBN 214150
Assistant United States Attorney



RICHARD ENOS, JEFF BASTASINI,
LOUIE MERCADO, WALTER GROVES,
MANUEL MONTEIRO, EDWARD
ERIKSON, VERNON NEWMAN,
Plaintiffs,
v.
ERIC HOLDER, as United States Attorney
General, and ROBERT MUELLER, III, as
Director of the Federal Bureau of Investigation,
Defendants.


CASE NO. 2:10-CV-02911-JAM-EFB
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
DEFENDANTS’ MOTION TO DISMISS
Date: November 16, 2011
Time: 9:30 a.m.
Place: Courtroom 6, 14th Floor
Judge: John A. Mendez


(excerpt from page 13):


...The fact that a state has restored an individual’s right to possess firearms is insufficient. In Andaverde, the Ninth Circuit addressed this very issue in the context of 18 U.S.C. § 922(g)(1), the felon-in-possession statute, as follows:

Andaverde first argues that, because Washington state law did not prohibit him
from possessing a shotgun, he should be considered as having had his civil rights restored. Therefore, Andaverde contends, his conviction is not a conviction for § 922(g)(1)’s purposes.

Andaverde is incorrect. In determining whether a felon continues to suffer a civil rights disability, the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office. United States v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510 U.S. 919, 114 S. Ct. 314, 126 L.Ed.2d 261 (1993); United States v. Dahms, 938 F.2d 131, 133 (9th Cir. 1991). Andaverde contends that this restoration analysis should turn on whether state law restores the right to bear arms.

Even if, in determining whether a felon’s civil rights have been restored, the court should look to state law giving felons the right to bear arms, the restoration of this single right does not prevent prosecution under § 922(g)(1). A restoration of rights must be “substantial,” not merely de minimus. Meeks, 987 F.2d at 578; Dahms, 938 F.2d at 133. We held in Meeks that, under Missouri law, which allowed convicted felons to vote and hold office, but which did not restore the right to serve on a jury, to hold office as a sheriff, or to be a highway patrol officer, the defendant had not had his civil rights “substantially restored” and thus could be prosecuted under § 922(g)(1). Meeks, 987 F.2d at 578.

Andaverde, 64 F.3d at 1309 (internal footnote omitted); see also United States v. Valerio, 441 F.3d 837, 843 (9th Cir. 2006) (noting that the individual’s right to vote and right to possess firearms had been restored, but holding “that is not enough”);

Brailey, 408 F.3d at 613 (“Because Brailey’s misdemeanor conviction did not remove Brailey’s core civil rights of voting, serving as a juror, or holding public office, his civil rights have not been ‘restored’ within the meaning of federal law by Utah’s 2000 amendment permitting him to possess a firearm.”); United States v. Leuschen, 395 F.3d 155, 160 (3d Cir. 2005) (stating that “[t]he absence of firearms restrictions, however, becomes relevant only if the convict’s core civil rights have been restored” and “[i]f the defendant ‘has not “had his civil rights restored,” it simply does not matter what the state law provides concerning possession of firearms.’”) (quoting Thomas, 991 F.2d at 211).




I hope this helps, and someone finds it useful.

[Cosmo]

PC 1203.4 used to restore your firearms rights in CA. But the BATFE has stepped in and declared that they do not consider 1203.4 to be one of the remedies described in the federal code. They say that 1203.4 does not specifically state that firearms rights are restored.

In CA your firearms rights are supposed to be restored by default 10 years after conviction (or completion of your sentence?). So if both 10 years has past, and you got a 1203.4 (to satisfy the federal remedy language), shouldn't the two together satisfy?

[Bakfyr]

From my limited understanding, and the informed discussion of this thread, the restoration of gun rights under California law is not recognized by the feds.

Alone and by itself, loss of gun rights is not considered a loss of a civil right. The feds only recognize the 3 core civil rights of jury duty, voting, and holding public office.

A misdemeanor conviction does not cause the loss of those 3 rights. However, I have recently discovered that is not true.

So a 1203.4 expungement even if it specifically indicates restoration of gun rights is not recognized by the feds. However, as I pointed out in my previous post, a misdemeanor conviction does cause the loss of the right to "hold public office" as a Notary Public. This right can only be restored with expungement under 1203.4. Therefore this now would qualify the convicted individual to properly show that one of the 3 core civil rights was lost and restored, thus qualifying him to regain gun rights under Lautenberg.

[Cosmo]

Both AB 1131 and SB 127 provide for a time period after which the offending person is no longer considered to be prohibited. Why can't Lautenberg be amended to include a specific period of time? If I'm not mistaken, they also provide a mechanism to apply for relief... so apparently funds do exist.

[Frank Ettin]

Originally Posted by Cosmo

...Why can't Lautenberg be amended to include a specific period of time?...

Politics. If there were enough political pressure and support, it could be done. There apparently isn't.

[Al Norris]

The process in this appeals case has just been made harder.

A panel on the 9th Circuit handed down an appeals case this past Monday: USA V. DANIEL CHOVAN

Judge Pregerson wrote the opinion for the Majority with Judge Bea writing a concurring opinion that disagreed with the majority in several respects.

Essentially, it boils down to the fact that Mr. Chovan did not lose his "core" civil rights (Voting, Jury Duty and Ability to Hold Elected Office). The CA statute at issue does not restore these civil rights (as they were never "lost"). Therefore his only avenues of relief was to have the conviction (1) expunged, (2) set aside or to have been (3) pardoned. The Plaintiff/Appellant did not attempt these alternate routes of relief. The majority used Intermediate Scrutiny in upholding the law.

Judge Bea's concurrence would have set the bar at Strict Scrutiny, but would have ruled that the Federal Statutes pass that test.

[Tom Servo]

Scalia's "presumptively lawful" and "longstanding" language continues to haunt us, and the 9th Circuit has decided that someone convicted of domestic violence is not a "law-abiding, responsible" citizen.

Heller tells us that the core of the Second Amendment is “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” 554 U.S. at 635. Section 922(g)(9) does not implicate this core Second Amendment right because it regulates firearm possession for individuals with criminal convictions. “ Although [Chovan] asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense—by virtue of [Chovan]’s criminal history as a domestic violence misdemeanant.” [p. 22]

That said, Chovan does not appear to be a very good plaintiff for us.

We really need to hear something from the Supreme Court regarding a standard of scrutiny, since intermediate scrutiny can be used to justify nearly anything.

Putting these four conclusions together, the government has demonstrated that domestic violence misdemeanants are likely to commit acts of domestic violence again and that, if they do so with a gun, the risk of death to the victim is significantly increased. We hold that the government has thereby met its burden to show that § 922(g)(9)’s prohibition on gun possession by domestic violence misdemeanants is substantially related to the important government interest of preventing domestic gun violence. [p. 27]

[Al Norris]

Not only is Chovan not a good plaintiff, but this was a published opinion and therefore is citable precedent (within the CA9).

Bad plaintiff and bad cases, makes for bad caselaw.

[Cosmo]

In the attachment to post #109, Al, it says:

Section 922(g)(9) establishes two exceptions under which the statute will no longer apply: (1) “if the conviction has been expunged or set aside”; or (2) if the offender “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).” 18 U.S.C. § 921(a)(33)(B)(ii)."


On my CA 1203.4 documents, the judge wrote "plea set aside, probation terminated".

This, I think, is what we need to go after -- why CA 1203.4 is not considered to be relief as described in 921(a)(33)(B)(ii).

[Frank Ettin]

Originally Posted by Cosmo

...This, I think, is what we need to go after -- why CA 1203.4 is not considered to be relief as described in 921(a)(33)(B)(ii).

Well, perhaps it's because California Penal Code 1203.4 specifically provides, at paragraph (a)(2):

(2) Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm...

[Cosmo]

Yea, except in the past people were able to get relief from 1203.4, until the BATFE stepped in and said it's a no go. So are those people who got relief and were told they can purchase/posses firearms now in violation of the law again?

[Frank Ettin]

Originally Posted by Cosmo

...in the past people were able to get relief from 1203.4, until the BATFE stepped in and said it's a no go. So are those people who got relief and were told they can purchase/posses firearms now in violation of the law again?

Who, when and how?

[Cosmo]

Well, I was just looking for the site where I saw references to people, in the past, getting relief by way of 1203.4, and came across this: http://www.calgunlaws.com/wp-content...-After-All.pdf

Interesting.

[Frank Ettin]

Okay, but (1) that involves a specific restoration of firearms rights under Penal Code 12021; (2) it says nothing about the federal government not recognizing the particular removal of firearms disability under state law; and (3) involves a specific determination that the crime involved was not a crime of domestic violence.

The thing is that the details really matter.

[leadcounsel]

I have been quite interested in this unconstitutional law for a long number of years.

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.

People just don't understand how one-sided the whole process is. The 'victim' is most often a woman who gets thousands of dollars worth of 'free' victim advocate and prosecutor services, police, and other resources to literally harass and destroy the 'perpetrator' which is most often a male.

What is worse, is that there are actual INCENTIVES to falsely report. I see it all the time in the military. Don't like your unit? Location? Job? Commander? Other Soldiers? You can get re-assigned or screw over adversaries by falsely reporting assaults. In the civilian world, there has been movement to pay 'poor' women's bills, rent, phone, utilities if they report assaults. Oh, and let's not forget custody and property. Judges tend to favor women, especially when the man is 'abusive' and 'threatening' toward her. Emotional females who can whip up some tears and lie convincingly that the jerk husband/boyfriend pointed a gun at her... well they are going to have a better chance at keeping the 1) kids, 2) house, 3) savings, 4) car and 5) a lot of other property.

And here's the best part. It requires no evidence other than an allegation. Yup. Just an allegation. "He did something..." That kicks the whole thing off. And it's just horrible.

In my profession, I have seen countless false allegations of rape and sex assault where there was clear incentive for the woman to fabricate the assault or rape (she's married and got caught, she was drinking illegally, she was caught with drugs, reputation, etc.). The ramifications are horrible and the evidence required to convict is so minimal. Oh, and there is no such thing as a fair trial. The rules are not even and totally favor the 'victim.' If you want to know more, I will share... but I could list about a dozen reasons why it's a stacked deck against the accused/defendant.

Our society is just crumbling away ...

Lautenberg is one of the most horrible laws ever written and should be so narrowly tailored and applied, if not all together stricken as unconstitutional. And it goes hand in hand with the horrible application of sex assault/rape prosecutions and the unfair divorce proceedings - this should concern EVERY man because it's nearly universally against men.

[ThesNazud]

What's almost as bad if not worse is I know a guy who was the victim of DV. His spouse was abusive and manipulative. When he tried to file charges all she did was say she fought back and he spent time in jail and recieved a reputation as a wife beater...

[KyJim]

People just don't understand how one-sided the whole process is. The 'victim' is most often a woman who gets thousands of dollars worth of 'free' victim advocate and prosecutor services, police, and other resources to literally harass and destroy the 'perpetrator' which is most often a male.

My experience in this area is limited. However, a number of years ago, proceedings were running long in the court which issues Domestic Violence Orders (DVOs) so I heard a hearing on one of them. The woman seeking the order admitted her husband/signficant other never physically assaulted her or threatened her. There was simply a lot of yelling. The judge said there was an "atmosphere of violence" which justified issuing the DVO. As an impartial observer, I was flabbergasted until I realized the judge was just taking the "easy" way out by issuing the order. This was before Lautenberg but that doesn't matter because it's still on his record.

As far as the rest of the post by LeadCounsel, I'll just say that cases are fact specific. I had a client going through a contentious custody battle (a LONG time ago) and the estranged wife accused him of assaulting her a week before the hearing on temporary custody. She used that to gain temporary custody (handled by another attorney in the firm, I handled the criminal charge). At the criminal trial, the presiding judge ruled we could use none of this to show motive for the wife to lie. I persisted on asking and my client persisted on answering. It's the closest I've ever come to going to jail but he judge's ruling was a complete mockery and a clear constitutional violation. The jury acquitted.

On the other hand, I am also aware that many times, women do not report rapes and other sexual assaults due to embarrassment and fear. If they report it, they often risk opening up intimate details of their sex lives to complete strangers. Child sexual abuse, most often perpetrated by trusted family members or authority figures, is rarely reported immediately and corroborating physical evidence may be difficult to obtain.

Sex crimes, by their very nature, are committed in private. Dismissing reports of crimes simply because they consist of "mere allegations" is cutting too broad a swath. A lot of crimes are prosecuted on "mere allegation." Overall the criminal justice system works. Sometimes there are warts but that means we need to work on the warts and not cut off the hand.

[leadcounsel]

Serious consequences can result from these types of allegations. Prison. Felon. Lost gun and voting and civil rights. Sex offender registry. Restictions on rights. Probably among the worst stigmas. Seems like requiring more evidence than mere allegation is warranted. Perhaps people would be more inclined to not put themselves in bad situations... make wiser decisions on who and where you date, party, marry, have kids with, etc. Sorta 'you made you bed' policy of personal accountability.... something we have strayed from.

Frankly 'victims' often are partly responsible, but always immune from any personal responsibility for contributing to the situation.

[Tom Servo]

This thread is about the case at hand and the law it challenges. Posts about general victimization and victimhood are off topic.