Holder and the Feds Sued Over Lifetime MCDV Prohibition: Lautenberg

[hermannr]

The answer of course is, if they are a lawyer, don't vote them into public office. They like to protect their own you know.

 

[BowOnly]

Disabled MCDV

I am extremely interested in the outcome of this case, not only because of the implications it would have to support second amendment rights but also personally.
Hello everyone...
I too am a new found DVMC.
I am not going to pass on the particulars but I can say that I intend to spend the rest of my life working to reform the DV laws.
I was an avid hunter. I own and operated an outdoor forum, community and multi-site blog and have set up firearms events for women, children and and training \charity events. My organization helped get the castle docrtrine passed in Pennsylvania. All of these things I have abandoned. I could go on and on...
I never thought this would happen to me. You think these things only happen to thugs, wife batterers and the like.
Per advice from now fired attorney, I declined my prelim. I had lost a career dream job and had to go with a Public Defender. My PD tells me that I should take a first offenders program and have it expunged later on and deal with it.
The day of my trial (Unknown to me that I am going to trial) I am summoned to arrive (in another part of the state) or plead in front of a judge. I get there almost 4 hours late.
The atty has no case prepared, the judge refuses to extend the time to gather evidence and I am given an ultimatum - 6 months jail if I loose or no jail time and a 300$ fine if I plead.
I struggle with the fact that the "Victim" wasn't my wife ( I was married and am in process of divorce) , she was an ex from a few years before that I had worked out a deal to trade some work that was mutually beneficial.
Not my Spouse, cohabitator, wife, mother of my children, was this woman.
I was charged with Simple Assault with DV tag (Misdemenaor of the 2nd Degree)- because I grabbed her by her arms and walked her to my door and put her outside and locked it.
I have mountains of evidence that my attorney told me was not admissible...
I am finally coming out of the shock and want to do something about it.
This is my very first post and so I hope that I'm taken seriously. I am genuine and sincere and am looking for information that may enable me get my gun rights restored.
I'm not going into the particulars of my case simply because I don't want to be judged. I have never hit a woman and do not intend to justify my actions to anyone. I am required to avoid minimization, denial and blame weekly for 30 weeks a requirement to fulfill due to the charge and rehabilitation.
My future plans are to inform folks that the DV laws need to be changed. I think women should be protected and rightfully so but I do not think mandatory immediate incarceration, loss of firearms privilege or anything of the associated penalties that come with a charge that does not require evidence, witness or proof.
Any information in regard to Enos vs. Holder, suggested legal council or steps to take to turn this around are appreciated.
Regards and happy shooting to those of you who can.

 

[Al Norris]

Yesterday, the defendant(s) filed their response brief. In two weeks, we should have Enos' reply brief, at which point the briefing will be complete.

The fed.gov is relying upon United States v. Brailey, 408 F.3d 609 (9th Cir. 2005) - a pre Heller/McDonald case to define the “core civil rights of voting, serving as a juror, or holding public office.”

After an analysis of pre-Heller cases, the fed.gov says,

The statutory analysis is no way altered by the Supreme Court’s recent holding that the Second Amendment protects “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” District of Columbia v. Heller, 554 U.S. 570, 635 (2008); see also McDonald v. City of Chicago, 130 S. Ct. 3020, 3105 (2010). Plaintiffs are thus mistaken in contending that their arguments for a statutory exception (Pl. Br. 22) find any support in Heller or McDonald.

They go on to espouse the Lautenberg and Congress' presumptive authority, via the Commerce Clause to negate the plaintiffs other claims (10A and 2A).

In short, the 2A is not only not a "core" civil right, it is not a civil right within the meaning of the statute at question.

 

[Al Norris]

Friday, Sept. 21st, Donald Kilmer filed the reply brief. Briefing is now complete and we await assignment for a date of the oral arguments.

This brief was perhaps the most powerful brief, to date, that I have read from Don.

What we will now see is if the theories advanced by the Pltfs/Appellants will sway the 9th Circuit, or if they will hold that no State action can restore a fundamental right. That would be contrary to the law, as it is written.

 

[AmericanWolverine]

@BowOnly

I was convicted of misdemeanor DV in 2002. Since then I've been looking hard through laws regarding lawful gun ownership. From what I've read, it APPEARS the Gun Ban doesn't apply to me since the alleged "victim" isn't a former/current spouse, someone I had intercourse with, or child.

I'm quite hesitant to attempt a gun purchase. Wish an Attorney would let me know for certain.

 

[Frank Ettin]

...I'm quite hesitant to attempt a gun purchase. Wish an Attorney would let me know for certain.

What you, or anyone else with at real life, personal legal issue, need to do is find a qualified lawyer and hire him to give you an opinion or deal with the situation for you. The Internet is not the place to do that.

 

[xtphreak]

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.

...the police seem far too reluctant to pursue charges against those who make false claims...

The DA & judge are both elected.
Neither will anger women's groups for appearing to come down on a woman for filing false charges, to do so means no reelection.
Perjury is available for charges, but I challenge anyone to find an instance of a proven false accusation being prosecuted.

 

[xtphreak]

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!

And how this escapes the prohibition on ex post facto laws I do not understand

 

[jimpeel]

And how this escapes the prohibition on ex post facto laws I do not understand

Me neither too. Why this was not brought before the courts at its inception is beyond me. It is clearly ex post facto yet it survives.

 

[Frank Ettin]

...Why this was not brought before the courts at its inception is beyond me. It is clearly ex post facto yet it survives.

No, it is not an ex post facto law. As defined, an ex post facto law is one:

...adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed...

Ex post facto essentially means being subject to criminal sanctions today for an act performed in the past which was legal when performed. That is different from from being subject to criminal liability for the continued possession of a thing after the effective date of a law making that thing illegal for you to possess.

In terms of the Lautenberg amendment, it may be understood as follows:

1. On may have possessed a gun after having been convicted of a domestic violence misdemeanor and prior to the effective date of the Lautenberg amendment.
   
   
2. If that person had sold the gun prior to the effective date of the Lautenberg amendment, he would have no criminal liability under the Lautenberg amendment for the act committed and concluded before that amendment became effective.
   
   
3. If however the Lautenberg amendment purported to make criminal that prior possession of a gun no longer possessed, it would be ex post facto and violate the Constitutional prohibition.
   
   
4. But instead the act made illegal under the Lautenberg amendment is the possession of a gun after the effective date of the amendment by someone convicted of a domestic violence misdemeanor. The illegal conduct, possession of the gun, must occur after the effective date of the law.
   
   
5. What is unlawful under Lautenberg is the continued possession after Lautenberg became effective, not the possession of a gun prior to the amendment's effective date.

 

[jimpeel]

Key words:

or increases the penalty for a crime after it is committed...

Does not the Lautenberg Act increase the penalty for the crime of domestic abuse after it has already been adjudicated and the punishment meted out? Lautenberg adds a penalty, after the fact, for a crime in which the penalty has already been served or the fine paid.

 

[Frank Ettin]

Does not the Lautenberg Act increase the penalty for the crime of domestic abuse after it has already been adjudicated and the punishment meted out? Lautenberg adds a penalty, after the fact, for a crime in which the penalty has already been served or the fine paid.

The disqualification from possessing firearms effected by the Lautenberg Amendment, a federal law, is not a penalty for a state crime of domestic violence. It is not the province of one jurisdiction or sovereignty to punish for the crime of another jurisdiction. And the crime punished under the Lautenberg Amendment is not domestic violence; it is possession of a gun by a person prohibited under federal law from possessing a gun. That is a separate crime, requiring a separate indictment, separate trial and separate conviction.

In the case of the Lautenberg Amendment the prohibiting condition is a state conviction for a misdemeanor of domestic violence, just as under 18 USC 922(g)(1) it's a conviction of a felony, under 18 USC 922(g)(2) it's being a fugitive from justice, under 18 USC 922(g)(3) it includes the unlawful use of a controlled substance, under 18 USC 922(g)(7) it's having renounced United States citizenship, etc. But the crime that might be punished is not the act of domestic violence, or the prior act resulting in the felony conviction, or the renunciation of citizenship. It's the possession of a gun by such a person.

As you and others have noted, Don Kilmer, a well known, experienced, skilled and knowledgeable lawyer, did not raise ex post facto as part of his challenge, on behalf of several plaintiffs, of the Lautenberg Amendment. If that would have been a fruitful basis for challenge, he no doubt would have used it as a basis for a claim for relief in addition to the nine claims for relief he sets out in the initial complaint.

The Lautenberg Amendment has been challenged in other litigation and upheld at the Circuit Court level (see U.S. v. Hartsock, 347 F.3d 1 (1st Cir., 2003); U.S. v. Chester, 628 F.3d 673 (4th Cir., 2010); U.S. v. Skoien, 587 F.3d 803 (7th Cir., 2009); and U.S. v. Booker, 644 F.3d 12 (1st Cir., 2011)). In none of those cases was ex post facto raised. Are we to conclude that the plaintiff's lawyer in each of those cases was so incompetent as to ignore a potentially meritorious line of attack on the federal law?

 

[scpapa]

Does this mean that if Congress were to pass more laws similar in nature to the Lautenberg, incrementally referencing "lesser" crimes, eventually you could be a prohibited person because you paid a speeding ticket 20 years ago?
I am not being sarcastic; I am genuinely curious.
Rick

 

[jimpeel]

"But the crime that might be punished is not the act of domestic violence, or the prior act resulting in the felony conviction, or the renunciation of citizenship. It's the possession of a gun by such a person. "

So to remain legal you must forego your right to arms which is a punishment in and of itself. If you possess a firearm, you will be punished. Yes, there will be charges, trial and even more punishment meted out but the restriction of rights is a punishment.

 

[Frank Ettin]

Does this mean that if Congress were to pass more laws similar in nature to the Lautenberg, incrementally referencing "lesser" crimes, eventually you could be a prohibited person because you paid a speeding ticket 20 years ago?...

1. We need to understand that not every bad law, stupid public policy or outrageous act of the government is unconstitutional. Congress could in theory do all sorts of unwise, or downright stupid, things that will be entirely constitutional. (And in theory there are probably things the Congress could do that would be very good to do, but which it can't do under the Constitution.) That's one of the reasons it's important to pay attention to who we elect and to participate in the political process. The Constitution alone can't guarantee wisdom in public affairs.
   
   
2. There are reasons a law like the Lautenberg Amendment might be vulnerable to attack other than as an ex post facto law. There have been several, thus far unsuccessful, attacks on the Lautenberg Amendment on Second Amendment grounds (although one worked at the trial court level). And there is a case pending. Maybe we'll ultimately be able to get some traction at the Supreme Court.
   
   
3. And of course, it doesn't help us to pursue a claim in court on a basis that can't work. So attacking the Lautenberg Amendment, or the other prohibiting conditions of 18 USC 922(g), as ex post facto would be an unwise use of our limited resources.

So to get back to your question, it would not be unconstitutional as an ex post facto law to make it a federal crime for someone who had a minor traffic violation in the distant past to possess a gun today. But there are at least two factors that make such a law extremely unlikely: politics and nexus.

1. Politics, because such a broad disqualification would probably draw too much political flak.
   
   
2. Nexus, because it would be difficult if not impossible in court for the government to satisfactorily establish sufficient relation between a routine traffic infraction and the qualification to possess a gun; and such a relationship would most likely be necessary to satisfy any level of scrutiny likely to be applied by the courts to regulation of the rights described by the Second Amendment.

The Lautenberg Amendment might have some nexus problems, but those are still in the process of being tested in court. That doesn't make it an ex post facto law, however.

 

[Frank Ettin]

...So to remain legal you must forego your right to arms which is a punishment in and of itself. If you possess a firearm, you will be punished. Yes, there will be charges, trial and even more punishment meted out but the restriction of rights is a punishment.

It is what it is, and the Lautenberg Amendment remains under attack in court. Furthermore, there are over 70 lawsuits on RKBA issues currently ongoing in federal courts around the country.

Ex post facto is not the only basis upon which to challenge Lautenberg. It's merely one that won't work. A law can be vulnerable to constitutional challenge even if it's not an ex post facto law. And it's certainly worthwhile to understand this so as to avoid wasting time and resources pursuing challenges on bases that can't succeed.

 

[JimDandy]

Considering many times, it has been mentioned lawyers throw out the kitchen sink in the first complaint just to cover all their bases, yeah, I am surprised it wasn't there.

I also think:

1. If you're in jail during an election, or jury summons- if the person serving the jail sentence is not provided polling station access-or an absentee ballot, or is denied a seat on a jury, or is denied the ability to register to run for office during a jail sentence anyone who is subject to a misdemeanor jail sentence has had their civil rights removed as applied, if not by actual statute
2. Civil rights are MUCH broader than the State may be claiming(According to other posters). For example the right to own property is listed as a civil right in SHELLEY V. KRAEMER , 334 U.S. 1 (1948), and perhaps more on point the freedom:

   peacefully to dwell within the limits of their respective States, to move at will from place to place therein, and to have free ingress thereto and egress therefrom

   United States v. Wheeler, 254 U.S. 281 (1920), another civil right removed and restored upon completion of a sentence.
3. As far as ex post facto: a few cites from Calder v Bull 3 US 386 (1798)

   The prohibition, considered in this light, is an additional bulwark in favor of the personal security of the subject, to protect his person from punishment by legislative acts having a retrospective operation.

   and

   I do not think it was inserted to secure the citizen in his private rights of either property or contracts.

   and finally

   If the prohibition against making ex post facto laws was intended to secure personal rights from being affected, or injured by such laws, and the prohibition is sufficiently extensive for that object, the other restraints I have enumerated were unnecessary, and therefore improper, for both of them are retrospective/

4. Is a Civil Disability a punishment? This is certainly implied by the restored civil rights portion of the law. The restoration of civil rights, or the removal of civil disabilities upon the completion of a sentence, especially as the disability was caused by the conviction strongly implies civil disability is a punishment.
   
   Edit: And if it is a punishment, is this then ex post facto, a bill of attainder, or both? Inflicting a firearms disability on a class of people after the fact? Due process was there, but it wasn't there in some ways too.
   

 

[Frank Ettin]

Considering many times, it has been mentioned lawyers throw out the kitchen sink in the first complaint just to cover all their bases, yeah, I am surprised it wasn't there....

Well, it (ex post facto) wasn't there in at least the five cases mentioned, including the one under discussion in this thread. So five lawyers, in at least four different States left it out for a reason. And if they are good lawyers they had a good reason for leaving it out. Perhaps they pretty much figured it wouldn't get them anywhere.

I don't know the other lawyers. I do know Don Kilmer and have every reason to respect his skill, knowledge and judgment.

 

[JimDandy]

I don't know him, but assume skill is there until reason to believe otherwise. I was just referring to other posts in other threads where it's been mentioned that in preliminary hearings/complaints lawyers on both sides cover every ground they can think of so they won't be prevented from covering them again later because they didn't raise them from the beginning. Ex Post Facto has been ruled on before, which is one reason not to. But the right argument could open the door again, which would be a reason to raise it and let them quash it if they can. I think the key would be getting the firearms disability categorized as a punishment.

 

[mrbatchelor]

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

But wouldn't that imply you also want the firearms disability categorized as part of the "punishement" (by which you seem to mean sentence) for felony bank robbery? Or is it just a consequence of a robbery conviction, not part of the sentence?

I agree it's unfair as it stands. But as Frank said, it's up to us to send good folks to Washington to pass good laws.