The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools Search this Thread
Old October 31, 2018, 12:26 PM   #1
44 AMP
Staff
 
Join Date: March 11, 2006
Location: Upper US
Posts: 19,116
Various legal standards

I got to thinking, and have a question for our resident legal eagles (or anyone who knows)…

We all watch TV and hear about the different standards of proof. I've heard a little about the different levels of "scrutiny" applied for different things.

TV teaches us that for crimes like murder, the standard is "beyond a reasonable doubt", and to win in the People's Court, the standard to prove your case is "preponderance of the evidence".

Now, here's the question, when its a case of violation of firearms law, not a murder or assault, but a technical violation of law, what standard would be applied by the court?

Is there a general rule or is it entirely on a case by case basis?
__________________
All else being equal (and it almost never is) bigger bullets tend to work better.
44 AMP is offline  
Old October 31, 2018, 12:55 PM   #2
Doyle
Senior Member
 
Join Date: June 20, 2007
Location: Starkville, MS
Posts: 6,829
No legal expert here but my business law classes taught me that in a criminal case it is reasonable doubt; in a civil case it is preponderance of evidence.
Doyle is offline  
Old October 31, 2018, 01:02 PM   #3
zukiphile
Senior Member
 
Join Date: December 13, 2005
Posts: 3,262
Quote:
Originally Posted by 44
Now, here's the question, when its a case of violation of firearms law, not a murder or assault, but a technical violation of law, what standard would be applied by the court?

Is there a general rule or is it entirely on a case by case basis?
Beyond reasonable doubt will be the the standard of proof in that criminal matter. That is just the standard for a burden in evaluating evidence. In civil matters, the ordinary standard will be a preponderence of the evidence, a 50.1% sort of burden. In specific sorts of civil matters, the burden can be clear and convincing, something between the prior two.

Your question used the word "technical". Are you also asking about the state of mind needed to find guilt? Sometimes liability will be strict, meaning that you need not intend to transgress to be found guilty. If my rifle barrel is 15.95 inches long and I have no stamp, but thought it was 16.1, I think I have a problem despite my pure heart. If I also have an angled forward grip, BATF may put me on double secret probation.

Other laws may require some intent. To find me guilty of menacing, I don't see how any jurisdiction could impose strict liability, for instance, finding me guilty for having such an ugly face that people feel a menace despite my pure heart.

The standards for testing the constitutionality of a challenged law are a different thing yet again. I think you would more accurately view them as analytical frameworks than threshholds for weighing simple factual conclusions.

Last edited by zukiphile; October 31, 2018 at 01:14 PM.
zukiphile is offline  
Old October 31, 2018, 10:24 PM   #4
Dano4734
Senior Member
 
Join Date: October 6, 2014
Posts: 712
Also the state you live in is a big factor. Here in New York State you have to figure they will throw the book at you. Other states maybe a warning on a technical violation that was a simple mistake. States like ny or ca you bet you are in trouble and it will be expensive
Dano4734 is offline  
Old October 31, 2018, 10:31 PM   #5
Dano4734
Senior Member
 
Join Date: October 6, 2014
Posts: 712
In buffalo ny they threw a guy in jail for having a ten round magazine clip in his glock that he was registered and fully licensed to carry. The new safe act said no magazine over 7 rounds. He fought it and won as glock makes no magazine under ten rounds for his model and the safe act effectively made his and other legally registered guns illegal. He was still fighting to get his gun back ugh. His charges were dismissed but I think the 7 round clip is still on the books even after a judge declared that portion of the law invalid. My police friends said they were told ten is ok now but noone is sure. It’s nuts actually

Last edited by Dano4734; October 31, 2018 at 11:01 PM.
Dano4734 is offline  
Old October 31, 2018, 11:15 PM   #6
KyJim
Senior Member
 
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 8,643
Quote:
Now, here's the question, when its a case of violation of firearms law, not a murder or assault, but a technical violation of law, what standard would be applied by the court?

Is there a general rule or is it entirely on a case by case basis?
The standard of proof in a criminal case will always be beyond a reasonable doubt. (Note that some offenses like parking violations are usually considered civil violations and have a lesser burden of proof). The question is what are the elements of the offense; i.e., what does the government have to prove. One element will be the state of mind element.

As zukiphile indicated, there may be some cases where there is strict liability but these tend to be minor offenses. Next on the list is whether the person has knowledge of the facts. For example, the government may only have to prove a person had knowledge that the magazine exceeded ten rounds. The person does not have to know this violated the law. Then there is what is called "specific intent" where a person intends the result of the act. There are variations of this, as well as other mental states like recklessness, etc. However, I think most criminal firearm violations will require the defendant have knowledge of the facts making it a violation, but not the intent to break the law (or even know there is a law on the subject). In the magazine capacity violation example I used, it is relatively easy for a jury to infer the person knew the magazine exceeded 10 rounds just by possessing it.

This is off the top of my head and there may be strict liability for some firearm violations.

Last edited by KyJim; October 31, 2018 at 11:20 PM.
KyJim is offline  
Old November 1, 2018, 08:54 AM   #7
Armorer-at-Law
Senior Member
 
Join Date: October 29, 2002
Location: Cincinnati, OH
Posts: 465
Quote:
in a criminal case it is reasonable doubt; in a civil case it is preponderance of evidence
Correct. There is another standard in between those: Clear and convincing evidence. This is sometimes used in civil cases where an affirmative defense is asserted to rebut a legal presumption.
__________________
Send lawyers, guns, and money...
Armorer-at-Law.com
07FFL/02SOT
Armorer-at-Law is offline  
Reply

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 03:04 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2019, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2018 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.05042 seconds with 10 queries