Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg
- Thread starter anthonyca
- Start date
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.
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.
youngunz4life
New member
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.
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.
In reviewing the court's order, it appears that the important points are:
(1) Only those who have actually been denied the right to purchase firearms because of a misdemeanor domestic violence conviction have standing to challenge the constitutionality of the statue. Simply being dissuaded from trying to purchase a firearm is not enough.
(2) The court recognized that other courts have held the statute not to be unconstitutional on its face. However, the court has kept alive the single "as applied" challenge; that being that the lifetime ban is unconstitutional as applied to plaintiff Enos because his conviction was more than ten years old and California had restored his right to own a firearm under state law.
(1) Only those who have actually been denied the right to purchase firearms because of a misdemeanor domestic violence conviction have standing to challenge the constitutionality of the statue. Simply being dissuaded from trying to purchase a firearm is not enough.
(2) The court recognized that other courts have held the statute not to be unconstitutional on its face. However, the court has kept alive the single "as applied" challenge; that being that the lifetime ban is unconstitutional as applied to plaintiff Enos because his conviction was more than ten years old and California had restored his right to own a firearm under state law.
I wanted to edit my OP but I guess this site locks you out after a while. Here is the first page of a similar thread on calguns. http://calguns.net/calgunforum/showthread.php?t=417935
If you know anyone who has been impacted by lautenberg or feels that the lifetime misdemeanor ban is wrong, please email them a link to this thread. There are millions of us who feel this law is wrong. Let's go viral with this.
Donating money here http://madison-society.org/donation.html would really help this case and a possible future case for the plaintif who was dismissed by the judge. According to Donald Kilmer, that plaintiff had the best 10th amendment claim.
The 10th amendment claim will get more people interested than just gun people.
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 case is Enos V Holder.
http://madison-society.org/laws/litigation.htm
Look at page 12. http://www.madison-society.org/laws/...-1-MTD-MPA.pdf The government is arguing that the second amendment is NOT a civil right. They say voting, speech, freedom of the press are, but not the second.
Update; Don Kilmer filed this Supplemental Authority. http://ia600300.us.archive.org/35/it...15824.23.0.pdf
Update; Enos survived the motion to dismiss by the federal government.http://ia600300.us.archive.org/attac...15824.24.0.pdf
We are winning!
If you know anyone who has been impacted by lautenberg or feels that the lifetime misdemeanor ban is wrong, please email them a link to this thread. There are millions of us who feel this law is wrong. Let's go viral with this.
Donating money here http://madison-society.org/donation.html would really help this case and a possible future case for the plaintif who was dismissed by the judge. According to Donald Kilmer, that plaintiff had the best 10th amendment claim.
The 10th amendment claim will get more people interested than just gun people.
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 case is Enos V Holder.
http://madison-society.org/laws/litigation.htm
Look at page 12. http://www.madison-society.org/laws/...-1-MTD-MPA.pdf The government is arguing that the second amendment is NOT a civil right. They say voting, speech, freedom of the press are, but not the second.
Update; Don Kilmer filed this Supplemental Authority. http://ia600300.us.archive.org/35/it...15824.23.0.pdf
Update; Enos survived the motion to dismiss by the federal government.http://ia600300.us.archive.org/attac...15824.24.0.pdf
We are winning!
Face to face argument with the wife, she goes to turn to walk away. I grabbed her wrist. I get DV, that was ten years ago.
I went and received my expungement last year. This coming Tuesday the 26th, I had planned going to the range. But that won't be happening.
Yes there is much more to the story. But it would take a long time and probably 2 or 3 pages.
I went and received my expungement last year. This coming Tuesday the 26th, I had planned going to the range. But that won't be happening.
Yes there is much more to the story. But it would take a long time and probably 2 or 3 pages.
It was a terrifying experience! I'd never had anything so scary happen to me before like that. Traffic ticket was the most I ever had, but a lot of us get those. Arrested, "me"- unreal, a night mare!
I still look out the front window(some times, not every time) when the dogs bark. Looking for my probation officer, to be walking up to do their monthly house search. "I've been off probation 7 years , and expunged"!
I still look out the front window(some times, not every time) when the dogs bark. Looking for my probation officer, to be walking up to do their monthly house search. "I've been off probation 7 years , and expunged"!
Mr. X, thanks for posting. People have to experience this or see it happen to understand. It is really hard for someone like me who took the oath and was prepared to give my life for my country only to learn our own government despises the constitution they took the same oath to defend.
Update. Filed by Mr Kilmer.
http://www.archive.org/download/gov.uscourts.caed.215824/gov.uscourts.caed.215824.27.0.pdf
http://www.archive.org/download/gov.uscourts.caed.215824/gov.uscourts.caed.215824.27.0.pdf
It would seem to me that lifetime loss of gun rights, now recognized by the Supreme Court as protected by the Second Amendment, for a misdemeanor could best be fought as excessive punishment for a misdemeanor. I mean, what other misdemeanor carries with it lifetime loss of a constitutional right?
Apologies for being late with a couple of answers.
No. Scalia did not say anything at all about that. He did write that long standing laws that prohibited felons from possession were presumptively constitutional.
Someone convicted of a misdemeanor domestic violence violation is not a felon.
Try a conviction of common law battery that carried only a small fine, until years later the State changed the sentence to an indeterminate sentencing of up to 3 years. See Schrader v. Holder for that one.
MrX said:
No. Scalia did not say anything at all about that. He did write that long standing laws that prohibited felons from possession were presumptively constitutional.
Someone convicted of a misdemeanor domestic violence violation is not a felon.
TexasFats said:
Try a conviction of common law battery that carried only a small fine, until years later the State changed the sentence to an indeterminate sentencing of up to 3 years. See Schrader v. Holder for that one.
American Made
New member
Hi,
That whole "lesser" crime thing really bugs me. If someone pleads out on "Disturbing the peace" he still is under the gun ban. ...If the penal code that he pleads has the "element" of force ( like Ca P.C 415 ). However, you can reduce several of these lesser crimes in California to infractions. This takes you out of the misdemeanor and away from the ban. This whole law is overly broad AND unconstitutional.
Penal Code section 17(d) reads:
A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction
Penal Code 19.8. The following offenses are subject to subdivision (d) of
Section 17: Sections 193.8, 330, 415, 485, 490.7, 555, 602.13, 652,
and 853.7 of this code; subdivision (c) of Section 532b, and
subdivision
of Section 602 of this code; subdivision (b) of
Section 25658 and Sections 21672, 25658.5, 25661, and 25662 of the
Business and Professions Code; Section 27204 of the Government Code;
subdivision (c) of Section 23109 and Sections 12500, 14601.1,
27150.1, 40508, and 42005 of the Vehicle Code, and any other offense
which the Legislature makes subject to subdivision (d) of Section 17.
Except where a lesser maximum fine is expressly provided for a
violation of any of those sections, any violation which is an
infraction is punishable by a fine not exceeding two hundred fifty
dollars ($250).
Regarding California 17b and 17d:
People v. Gilbreth (2007) 156 Cal.App.4th 53 [-- Cal.Rptr.3d --]
[1] "[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor 'for all purposes.' This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring." (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant's possession of a firearm by a convicted felon must be reversed. (See People v. Banks (1959) 53 Cal.2d 370, 383-387, 388 ["defendant would remain classified as one convicted of a felony within the meaning of section 12021 . . . until and unless the [prior] offense was reduced to a misdemeanor by imposition of appropriate sentence"]; Gebremicael, supra, at p. 1485 ["as the Banks court observed, a person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony within the meaning of . . . section 12021"].)
The People attempt to create an aura of uncertainty around the application of section 17, subdivision (b)(3) by comparing this case to those where defendants unsuccessfully argued their convictions were automatically classified as misdemeanors because they successfully completed probation. (People v. Banks, supra, 53 Cal.2d 370; People v. Livingston (1970) 4 Cal.App.3d 251; People v. Esparza (1967) 253 Cal.App.2d 362.) We find those cases to be inapposite. Defendant's earlier conviction for evading an officer was reduced upon motion of the prosecution to a misdemeanor "for all purposes."
[2] We also are not persuaded by the People's criticism of Gebremicael, supra, 118 Cal.App.4th 1477, for its reliance on dicta in our Supreme Court's decision in People v. Banks, supra, 53 Cal.2d 370. We have no reason to disagree with the Gebremicael court's construction of section 17, and we agree that: "as observed in Banks, when the Legislature wants to continue treating a felony reduced to a misdemeanor under . . . section 17 as a felony, it expressly says so, and the court will treat the person as such only upon those occasions." (Gebremicael, supra, at p. 1486.) In fact, the Legislature added subsection (b)(3) to section 17 after Banks was decided, and included no language to suggest that a defendant whose conviction was reduced under section 17, subdivision (b)(3) was to still be considered a felon for purposes of section 12021. At the time he was charged in this case, defendant had a prior misdemeanor conviction for evading an officer, and that conviction could not be considered a felony to serve as the basis for a charge that defendant had violated section 12021. Defendant's conviction for being a felon in possession of a firearm is reversed.
That whole "lesser" crime thing really bugs me. If someone pleads out on "Disturbing the peace" he still is under the gun ban. ...If the penal code that he pleads has the "element" of force ( like Ca P.C 415 ). However, you can reduce several of these lesser crimes in California to infractions. This takes you out of the misdemeanor and away from the ban. This whole law is overly broad AND unconstitutional.
Penal Code section 17(d) reads:
A violation of any code section listed in Section 19.8 is an infraction subject to the procedures described in Sections 19.6 and 19.7 when: (1) The prosecutor files a complaint charging the offense as an infraction unless the defendant, at the time he or she is arraigned, after being informed of his or her rights, elects to have the case proceed as a misdemeanor, or; (2) The court, with the consent of the defendant, determines that the offense is an infraction
Penal Code 19.8. The following offenses are subject to subdivision (d) of
Section 17: Sections 193.8, 330, 415, 485, 490.7, 555, 602.13, 652,
and 853.7 of this code; subdivision (c) of Section 532b, and
subdivision
of Section 602 of this code; subdivision (b) of Section 25658 and Sections 21672, 25658.5, 25661, and 25662 of the
Business and Professions Code; Section 27204 of the Government Code;
subdivision (c) of Section 23109 and Sections 12500, 14601.1,
27150.1, 40508, and 42005 of the Vehicle Code, and any other offense
which the Legislature makes subject to subdivision (d) of Section 17.
Except where a lesser maximum fine is expressly provided for a
violation of any of those sections, any violation which is an
infraction is punishable by a fine not exceeding two hundred fifty
dollars ($250).
Regarding California 17b and 17d:
People v. Gilbreth (2007) 156 Cal.App.4th 53 [-- Cal.Rptr.3d --]
[1] "[O]nce a court has reduced a wobbler to a misdemeanor pursuant to . . . section 17, the crime is thereafter regarded as a misdemeanor 'for all purposes.' This unambiguous language means what it says, and unless the Legislature states otherwise, a person such as [defendant] stands convicted of a misdemeanor, not a felony, for all purposes upon the court so declaring." (Gebremicael v. California Com. on Teacher Credentialing (2004) [156 Cal.App.4th 58] 118 Cal.App.4th 1477, 1483 (Gebremicael).) Accordingly, defendant's possession of a firearm by a convicted felon must be reversed. (See People v. Banks (1959) 53 Cal.2d 370, 383-387, 388 ["defendant would remain classified as one convicted of a felony within the meaning of section 12021 . . . until and unless the [prior] offense was reduced to a misdemeanor by imposition of appropriate sentence"]; Gebremicael, supra, at p. 1485 ["as the Banks court observed, a person whose felony conviction is reduced to a misdemeanor will no longer be classified as one convicted of a felony within the meaning of . . . section 12021"].)
The People attempt to create an aura of uncertainty around the application of section 17, subdivision (b)(3) by comparing this case to those where defendants unsuccessfully argued their convictions were automatically classified as misdemeanors because they successfully completed probation. (People v. Banks, supra, 53 Cal.2d 370; People v. Livingston (1970) 4 Cal.App.3d 251; People v. Esparza (1967) 253 Cal.App.2d 362.) We find those cases to be inapposite. Defendant's earlier conviction for evading an officer was reduced upon motion of the prosecution to a misdemeanor "for all purposes."
[2] We also are not persuaded by the People's criticism of Gebremicael, supra, 118 Cal.App.4th 1477, for its reliance on dicta in our Supreme Court's decision in People v. Banks, supra, 53 Cal.2d 370. We have no reason to disagree with the Gebremicael court's construction of section 17, and we agree that: "as observed in Banks, when the Legislature wants to continue treating a felony reduced to a misdemeanor under . . . section 17 as a felony, it expressly says so, and the court will treat the person as such only upon those occasions." (Gebremicael, supra, at p. 1486.) In fact, the Legislature added subsection (b)(3) to section 17 after Banks was decided, and included no language to suggest that a defendant whose conviction was reduced under section 17, subdivision (b)(3) was to still be considered a felon for purposes of section 12021. At the time he was charged in this case, defendant had a prior misdemeanor conviction for evading an officer, and that conviction could not be considered a felony to serve as the basis for a charge that defendant had violated section 12021. Defendant's conviction for being a felon in possession of a firearm is reversed.
Last edited:
Hi all, I have been following this post for some time now as I too am affected by this violation of my constitutional right to bear arms. In 2008 i was convicted of misdemeanor dv, I had to jump through all the hoops: lawyered up, plead out of the felony they charged me with to the misdemeanor(which in my case was a break), completed the one year dv classes. I too am seeking expungement for this crime in the hopes to restore my rights. I live in a remote area of northern California where not only am I looking to protect my family, but myself from intruders and wildlife(bears, mt. lions etc.). Law enforcement cannot be at my house for over an hour if called, thats being said there is no cell service where I live, so if the phone is down I hike to the neighbors. So I am looking for ways around Lautenberg. I understand that I may not own/buy firearms, however is my wife and children who are not under any restrictions able to purchase firearms, and what about weapons they have previously owned before my ban? Any information on this subject would be appreciated.
My understanding is that I may not have access to these weapons, but if they were in a gun safe where "I did not know the combo/have access to" would this be safe?
-Bob
My understanding is that I may not have access to these weapons, but if they were in a gun safe where "I did not know the combo/have access to" would this be safe?
-Bob
American Made
New member
Bobw88,
Are you still looking for info? There are several MAJOR problems with California expungement law. The first being, it is not a full expungement under federal standards. You need one of the better firearm attorneys! Most 'legal minds' don't understand this area of law well enough.
The misdemeanor under California law is only ten year firearm ban. Then you have the federal issue at play here - which is lifetime. I believe there is a lawsuit about this CURRENTLY. If you would have pled down further ( something that was reducible ) then you could ask the judge to reduce the charge. But.... Ca PC 273 ()ect are not reducible.
You COULD spend tons of money and see if you could re-fight the whole case. This is very hard though.
What was your plea? What for..Penal code?
EDIT:
Run this by your attorney. Have your charge ( I believe this can happen with the D.A's permission ) reduced to CA penal code 415(2). The whole subject is "element" of force under federal law. I believe this is your best hope..
Here is CA penal code 415
Any of the following persons shall be punished by imprisonment
in the county jail for a period of not more than 90 days, a fine of
not more than four hundred dollars ($400), or both such imprisonment
and fine:
(1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
(2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
(3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.
Are you still looking for info? There are several MAJOR problems with California expungement law. The first being, it is not a full expungement under federal standards. You need one of the better firearm attorneys! Most 'legal minds' don't understand this area of law well enough.
The misdemeanor under California law is only ten year firearm ban. Then you have the federal issue at play here - which is lifetime. I believe there is a lawsuit about this CURRENTLY. If you would have pled down further ( something that was reducible ) then you could ask the judge to reduce the charge. But.... Ca PC 273 ()ect are not reducible.
You COULD spend tons of money and see if you could re-fight the whole case. This is very hard though.
What was your plea? What for..Penal code?
EDIT:
Run this by your attorney. Have your charge ( I believe this can happen with the D.A's permission ) reduced to CA penal code 415(2). The whole subject is "element" of force under federal law. I believe this is your best hope..
Here is CA penal code 415
Any of the following persons shall be punished by imprisonment
in the county jail for a period of not more than 90 days, a fine of
not more than four hundred dollars ($400), or both such imprisonment
and fine:
(1) Any person who unlawfully fights in a public place or
challenges another person in a public place to fight.
(2) Any person who maliciously and willfully disturbs another
person by loud and unreasonable noise.
(3) Any person who uses offensive words in a public place which
are inherently likely to provoke an immediate violent reaction.
Last edited: