Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg

I had read in various gun rags, when this law was first passed,
that most law enforcement agencies loved it! :) Then, they
found out that THEY could be charged and lose their jobs, too!
By the way, the law was RETROACTIVE! If you had any prior
conviction in your past, regardless of when it had happened, you
could still lose your job over it. And, by extension, your second
amendment rights, too!
 
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I had dinner Thursday with a retired commander of a major Maryland agency who came very close to losing his entire career over a false allegation made by his alcoholic wife (now ex-wife) who, in fact, fell down the stairs in a drunken stupor (while he was on duty and NOT at home).

Being a chronic alcoholic, she had done this before. This time, under questioning by detectives, she blamed this on her husband. Apparently, the format of the questioning tends to sway less-than-lucid individuals toward admitting domestic violence, sometimes even when non has occurred.

They were finally able to confirm his story through his daughters and through colleagues who were able to verify his whereabouts at the time of the accident, but not before the cuffs were applied.
 
I found this on another forum. Reading it, it sounds as if the ATF, has had a change of heart when it comes to expungements! "Am I wrong"?


Q: What is a “misdemeanor crime of domestic violence?”

A “misdemeanor crime of domestic violence” means an offense that:
1.is a misdemeanor under Federal or State law;
2.has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
3.was committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
1.the person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
2.in the case of a prosecution for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either — a.the case was tried by a jury, or
b.the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.


In addition, a conviction would not be disabling if it has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the jurisdiction in which the proceedings were held provides for the loss of civil rights upon conviction for such an offense) unless the pardon, expunction, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms, and the person is not otherwise prohibited by the law of the jurisdiction in which the proceedings were held from receiving or possessing firearms.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]
http://www.atf.gov/firearms/faq/misdemeanor-domestic-violence.html
 
MrX, nothing was actually changed by this "new" definition. It is merely a bit longer and still in accord with what the .gov is arguing in this case. Namely: your RKBA is not a civil right and therefore nothing was restored.

The .gov filed there answering brief to the complaint. it can be read here.

Not surprisingly, it is a Motion To Dismiss.
 
Al Norris, Thank you very much for posting the docket! I read it over several times. I'm sure that others, that are in the same boat as myself did also!
 
American made here is some more info on my current situation.
2008- plead nolo contendere to ca pc 243.e (1) domestic battery I believe.
Sentenced to, three years probation(the works community service, and drug testing until I completed dv class) The one year of anger management/dv class, then probation was commuted to unsupervised and an ass load of fines. I had completed all my classes and payed all my fines, had my probation dropped to unsupervised.
2010- got into it again with the same lady, this time they wanted to slap me with the works... domestic, probation violation etc. I was by no means the antagonist in this situation, but due to my situation at the time I was the one in cuffs. "Luckily" and i say as non whole heartedly as I can, I had witnesses who could draft letters on my behalf to the DA that I was the non aggressor. Well the DA's here in California are out for blood when it comes to domestics, and in Santa Barbara County where this happened they have zero tolerance when it comes to this crap, the man is always going down. I plead nolo contendere to what you had mentioned, ca pc 415, disturbing the peace by noise. They wiped my old probation and slapped me with two more years unsupervised and of course more fines.
So at this point I am looking for what I can do.....
-Bob
 
I lost a good airman because of lautenberg. He and his girlfriend got into an argument and the neighbors had called the police. Both of them had charges of domestic violence filed on them and he was kicked out of the military because he was no longer allowed to handle firearms.
 
Domestic Violence is a serious issue, and those who are truly involved in it deserve to face the full brunt of the law. I understand that the laws are written to protect those who can't protect themselves, but the laws go too far and are stacked against those who may be innocent.

As a manager in two different companies, I had to fire two male employees who couldn't make it to work on a regular basis because their ex's would file DV charges against them on Sunday night, like clockwork. While we believed the charges to be false, and ultimately they were proved false, both employees were terminated for attendance policy violations. Right or wrong, you can't employ someone whose ex has them arrested every Sunday night. Both ex's were vindictive and trying to get the guys fired. The police wanted nothing to do with filing charges relating to false claims against them.

A friend came within a hair of losing her children because her four year old fell down a flight of steps, and someone reported her for child abuse based on the appearance of the child. The case worker told her had she not had the hospital records, they would have taken both her children into protective custody. She still has an active file with social services, with an "unsubstantiated" claim of child abuse, which could hurt her if anything else was ever to happen. She wasn't allowed to know who filed the claim or face her accuser.

It's far too easy to end up with a DV charge. In the three states I've lived in (NC, FL, GA) if the police come out for a DV, someone is going to jail. I've seen far too many people with their futures ruined over lies from partners and ex's, and the police seem far too reluctant to pursue charges against those who make false claims.

Again, DV is a serious issue and those who do abuse their partners deserve the weight of the law to be brought against them, but the laws as written are one-sided and don't address the reality of many situations.
 
The penalty for false DV accusations needs to equal that for actual DV. There is almost no consequence for this crime. As of now, prosecuting those falsely accusing is seen as 'blaming the victim'.
 
False DV accusations, I call that "false witness"! It happens, problem is, people don't believe you. I take that back, one man at the DA's office saw through her lies! I was still convicted, but I served no jail time, thanks to him!
 
I was just reading over the Governments "dismiss" motion ... what a sick joke!

From their point of view:


"Under 18 U.S.C. § 922(g)(9), it is unlawful for any person convicted of a misdemeanor crime of domestic violence to possess a firearm. However, the definition of the term “misdemeanor crime of domestic violence” includes the following exception:
A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person 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) unless the pardon, expungement, or restoration of civil rights, expressly provides that the person may not ship, transport, possess, or receive firearms."

Here comes the double talk:

"The test for whether one’s civil rights have been restored is whether the individual has lost and regained his right to vote, to sit on a jury, and to hold
public office."

"In California, as in most states, a conviction for a misdemeanor does not result in the loss of civil rights."

"Because plaintiffs cannot allege that their civil rights were taken
away, they cannot allege that they have had their civil rights restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii)."

????

If they never lost their civil rights...then what are we doing here????

This whole law is unconstitutional! What is wrong with these courts?

Read it yourself http://madison-society.org/laws/032-1 MTD PaA.pdf
 
American Made, it is not "double-talk."

Their argument is that there is no civil right when considering the right to keep and bear arms. It is merely yet another twist of the Heller decision.

We have seen this in most of the cases we are following on 2A litigation.

Have you looked at the first 4 posts in the Current 2A Cases thread? This case is #39 on the hit parade (post #3) (Regardless, that thread has all the relevant 2A cases listed and cataloged).

You will find a link to the Internet Archives case docket, a link to the Justia Summary and a link to this very thread.

At the docket, you will find document #32.1, which is the download-able PDF file that you linked to. That document was made available back on 10-03, when it was filed. It was reported both here and within the 2A cases thread.

On 10-13, you will see a stipulated proposed order for continuance (#33) and on 10-19, the Judge accepted the proposed order (#35). In that order, the next item of business will be the plaintiffs filing of their Opposition to the MTD, due on 01-11-2012 and the defendants reply due on 01-18-2012.

Additionally, the plaintiffs will file a cross-motion (an MSJ) on 12-14-2011 with a response on 01-11-2012 and reply due on 01-18-2012.

A hearing on 01-25-2012 will be held to hear all current motions.
 
I fixed the links to the documents in the above post.

What Don Kilmer is telling the court is that while the Lautenberg Amendment may very well be constitutional, it is the US Governments interpretation of the means to restore the disability that is flawed as well as the lifetime ban for such a misdemeanor, when clear and convincing evidence shows that someone convicted of this crime can be rehabilitated and therefore attain the status of a "Law Abiding Citizen."
 
Yesterday, the defendants filed their brief in opposition to plaintiffs MSJ. You can read it here.

My take on the brief:

1. The Only Proper Defendant Under 18 U.S.C. § 925A Is The United States
Click to expand...

Which is true if you are trying to overturn the law in question. However, if you are trying trying to overturn the DOJ's interpretation of the law, then the defendants are the proper defendants.

2. Plaintiffs Have Not Had Their “Civil Rights Restored” Within The Meaning of 18 U.S.C. § 921(a)(33)(B)(ii)

The test for whether one’s civil rights have been restored is whether the individual has lost and regained his right to vote, to sit on a jury, and to hold public office. See United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir. 1995) (stating that in considering whether an individual’s civil rights have been restored, “the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office.”) ...
Click to expand...

The brief goes on to quote several other pre-Heller cases, as to what constitutes "civil rights."

Here the defendants are regurgitating the same defense that they (successfully) used earlier at the district court: The RKBA is not a civil right.

3. Plaintiffs’ Claim That They Were Not Convicted Of Misdemeanor Crimes Of Domestic Violence Because They Did Not Knowingly and Intelligently Waive Their Right To A Jury Trial Lacks Merit
Click to expand...

This is another method that the Defendants have used to downplay the post-Heller/McDonald rulings. The loss of the ability to possess firearms is a mere "collateral consequence" and not the loss of a fundamental right that the plaintiffs contend it is.

All in all, the entire brief is a distillation of the defense arguments previously made at the district court. They were successful earlier, why not now?

The differences between this case and the Skoien and Smith cases (cited as binding precedent by the defense), is that these plaintiffs have not repeated the offenses and are not before the court as criminal defendants.

This gives lie to the Court in Smith, which said: In Congress’s judgment and as demonstrated by social scientists, domestic violence misdemeanants are prone to repeated acts of intrafamily violence. Past domestic violence is an indicator of future crimes of violence, and Congress legislated with that trend in mind. As these plaintiffs have shown no proclivity to repeat the offense(s) they were convicted of.

The plaintiffs have a tough fight to separate their non-criminal action from the weight of precedence in the form of prior criminal cases.
 
A mere 4 hours after the Government filed their latest brief, Don Kilmer filed the plaintiffs Opposition to the Defendants MTD.

Shame that RECAP appears to be messed up at the moment. As Don's Opposition to the Defendants MTD was really good. We should have been seeing Docket item #50: (http://www.archive.org/download/gov.uscourts.caed.215824/gov.uscourts.caed.215824.50.pdf) by now. But the docket wasn't updated nor was the pdf properly placed in the archive.

Indeed, my reading of that brief showed that Don called them on every thing I was inwardly screaming at them!

An observation, if I may. The recent ruling in Rehlander (1st CCA) should be of some small benefit, unless I have misread what the court said.
 

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