Domestic Violence Convictions in the 10th Circuit

A

Al Norris

Moderator Emeritus
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
 
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.
 
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.
 
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.
 
Suthern1 said:
...I can point you right now today in one minutes time to thousands of them.
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Please do then. It's been my experience that domestic violence charges most commonly arise under state law, not local ordinance. If you can demonstrate reliably that such prosecutions are frequently or commonly brought under local ordinances, that would be very useful information.

But what amounts to your mere guess on the question is of no use at all.
 
Suthern1 said:
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.
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My guess is that there may be more than one, but hardly more than a few. My reasoning is actually quite simple. There are likely only a few municipalities that would have such an ordinance, when the crime is already on the books as a State Statute, which is where most DVM convictions are made.

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.
 
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.
 
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.
 
Spats Mcgee said:
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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My practice isn't criminal, but sometimes a client wants me to handle a criminal matter even when I tell him he needs someone else. My area has 60+ municipal governments in the metro area. Many of them have their own city code section that looks as if they just copied the state code. I believe it pertains to how they report misdemeanors to the state and whether they can trade a higher fine for non-reporting to other authorities.

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.
 
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?
 
Suthern1 said:
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.....
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In other words you didn't bother to read and understand Mr. Norris' post. We're only discussing firearms disabilities arising from convictions under local ordinances for domestic violence. And no one is saying that Mr. Pauler's conviction is void, only that it doesn't trigger a firearms disability under federal law.

Suthern1 said:
....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?
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Not of this thread.
 
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.
 
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.
 
Suthern1 said:
Frank there seems to be a proficiency of semantics here.....
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Does that mean anything in English? You seem to think it does, but the meaning, especially in the context of the posts in this thread, escapes me.

Suthern1 said:
...My original comment was to that of the Ordinance my next comment was to that of the misinterpretation of that first comment.
...
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And what do you think this means when translated into English?

Suthern1 said:
...And you are wrong the conviction of violation of an non existent statute is void....
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No, you are wrong and apparently don't understand what's going on.

  1. Mr. Pauler was convicted in 2009 of violating a Wichita, Kansas municipal domestic battery ordinance by punching his girlfriend.

  2. He possessed a firearm in 2014. He was subsequently indicted by a federal grand jury for committing the federal crime of being a person convicted of a misdemeanor crime of domestic violence in violation of 18 USC 922(g)(9).

  3. Mr. Pauler moved to dismiss the indictment, which motion was denied by the district court. He was subsequently convicted of the violation of federal law and appealed to the Tenth Circuit.

  4. The Tenth Circuit reversed finding that, based on the exact words of the applicable federal statutes a conviction for a violation of a local domestic violence ordinance, in contrast to a state domestic violence statute, did not trigger the firearms disqualification of 18 USC 922(g)(9). The Tenth Circuit therefore reversed the judgment of the district court and remanded the case to the district court to vacate Mr. Pauler's conviction and dismiss the indictment.

  5. But note the following:

    • Mr Pauler's 2009 conviction under the Wichita ordinance was not a subject of the appeal. The conviction stands. It was that conviction under the Wichita ordinance that I was referring to in post 12 when I wrote:
      ....We're only discussing firearms disabilities arising from convictions under local ordinances for domestic violence. And no one is saying that Mr. Pauler's conviction is void, only that it doesn't trigger a firearms disability under federal law.....
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      I thought that the context was clear, but perhaps I could have said it more clearly.

    • This case was one which turned on a question of statutory construction. The Tenth Circuit didn't find 18 USC 922(g)(9) to be void or invalid. They merely looked at what the statute said and meant and concluded that 18 USC 922(g)(9) was violated by the possession of a gun by someone convicted for a violation of a local domestic violence ordinance, as opposed to a state domestic violence statute.

... 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.
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Well first, did you read and understand the Tenth Circuit opinion. What happened was that the conviction was vacated and the indictment dismissed by the district court as directed by the court of appeals.

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.
 
May I back the bus up for just a second? I want to highlight a couple of things:
Al Norris said:
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.
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So Al's comment referred to folks who were: (a) convicted of a Domestic Violence Misdemeanor (I think that's what he means by "DVM"); and then (b) convicted for possession of a firearm under federal law.

Suthern1, you then came back with:
Suthern1 said:
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.
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Thousands of what, exactly, do you propose to point us to? I've read thread and it's still not clear. It does not appear to be thousands of people fitting in Al's proposed group, because you include "similar void orders and prosecutions for protective orders and their violations."

You attempted to clarify with the following, to which I've added some underlines for emphasis:
Suthern1 said:
. . . . 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.
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I have some questions:
  • Were the subjects of these allegedly void orders & prosecutions later prosecuted for possession of a firearm? Were they otherwise barred from possessing firearms? If the answer to both of these is no, why are we discussing them? (I'm not saying we can't, just trying to sort out the whys.)
  • How do we know that the orders were void for lack of due process? Did a court of competent jurisdiction actually make that finding?
  • Do you have the records to support these claims? Can you upload or otherwise provide proof of them?
 
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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