only1asterisk
July 24, 2003, 04:10 AM
http://www.sltrib.com/2003/jul/07212003/utah/77317.asp
Court considers jailing abusers who have guns
By Pamela Manson
The Salt Lake Tribune
A Centerville woman said she became so concerned when her live-in boyfriend came home intoxicated one night last January that she considered calling the police.
Then, when she learned that her boyfriend, 50-year-old Kenneth Charles Rogers, had been in court before on a domestic violence complaint, the girlfriend said she became worried for her children and made plans to move out, according to court records.
Her decision set off a chain of events that landed Rogers in jail and set the stage for a court ruling on whether domestic violence offenders accused of illegal firearms possession can be forced to stay behind bars while awaiting trial.
A ruling confirming that authorities can petition a judge to hold these defendants in jail could be imperative for public safety in Utah, prosecutors claim in court papers. Assistant U.S. Attorney Barbara Bearnson noted that the federal gov- ernment has created Project Safe Neighborhoods, a program to combat gun crime, and that authorities in Utah have filed approximately 500 firearms cases in the state in the past year and a half.
"Gun violence poses a significant risk of harm to the public interest," Bearnson wrote in a motion asking a court to keep Rogers in jail until his trial.
But Rogers' attorney said his client is not a threat to anyone and that merely owning a firearm while subject to a court order to stay away from a former girlfriend is not a violent crime.
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"There never was this threat to the community that the government has always maintained," attorney Michael Boyle said.
Court records give this scenario of the case:
Rogers' girlfriend asked Centerville police on Feb. 4 to assist her in moving out of their residence because she feared for her safety. While in the home, officers asked Rogers if he had any weapons there and he showed them handgun and rifle cases.
Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives searched court records and learned that Rogers was under a protection order issued in January 2002, and had been convicted of misdemeanor assault in a domestic violence case, according to an affidavit by an ATF agent.
The agents obtained a warrant and a search of Rogers' home turned up an Intra Tec 9 mm semi-automatic pistol, a Browning 12-gauge pump-action shotgun and 45 rounds of ammunition at the home.
Rogers was arrested and charged with possession of a firearm while subject to a protective order and possession of a firearm following a misdemeanor conviction of domestic violence. A magistrate ordered him held until his trial, finding that there was a "serious risk that the defendant will endanger the safety of another person in the community."
Rogers filed a motion asking a district judge to throw out the magistrate's order, but that request was denied. He then filed a second motion asking for further review of the order holding him in jail. This time, the court ruled in his favor.
In a June 27 decision, U.S. District Judge Ted Stewart ruled that the charges against Rogers were not "crimes of violence" that required a detention hearing under the federal Bail Reform Act -- if prosecutors request one. The U.S. Attorney's Office in Salt Lake City immediately appealed to the 10th U.S. Circuit Court of Appeals, which on July 1 ordered Rogers held while prosecutors try to overturn the trial court's release order.
"We conclude that there is a substantial risk that defendant's possession of a firearm could play a part in the commission of a crime of violence against another individual," a three-judge panel from the 10th Circuit said in explaining why it ordered the continued detention.
Rogers' case fell under Project Safe Neighborhoods, a nationwide effort to provide tougher enforcement of existing firearm laws through the cooperation of federal, state and local agencies. The program focuses on defendants who are felons, drug addicts and people named in a protective domestic protective order or who have a prior domestic violence misdemeanor conviction.
John Huber, West Valley city prosecutor, said the project, which is called Project CUFF (Criminal Use of Firearms by Felons) in Utah, targets defendants who pose a high risk of violence. Huber, who has prosecuted gun cases as a special assistant U.S. attorney under the project, is not involved in the Rogers case.
"We don't want a felon or someone who battered his wife in the past to have a gun," Huber said.
Lawyers on both sides in the Rogers case are filing additional briefs this month centering on whether the alleged offenses should be considered crimes of violence that allow prosecutors to request a detention hearing.
The U.S. Attorney's Office notes that appeals courts around the nation and courts within Utah have split on the issue.
In arguing that detention hearings are required at a prosecutor's request, Bearnson wrote: "As Congress has recognized, the possession of a firearm by a person who has previously committed or has threatened to commit an act of domestic violence poses a substantial risk of physical harm."
She also said the law mandates only a hearing on the issue of whether a defendant poses a risk of harm and should remain in jail, not automatic detention. Rogers has a history of domestic violence that includes the issuance of four protective orders at the request of four different women and a 2002 misdemeanor conviction for domestic violence assault, Bearnson wrote.
But Boyle pointed out that the four complaints came over a period of six years, adding Rogers has never been a threat to the community. In the current case, the guns were stowed in an interior room of the house and never taken out or brandished, he said.
In a court brief, Boyle wrote that Rogers should be free pending his trial.
"Mere possession of a weapon is not a crime of violence," he wrote. "This position is bolstered by the definition of a crime of violence under the Federal Sentencing Guidelines which specifically excludes possession of a weapon as a crime of violence. Moreover, the language of the indictment does not indicate any violence alleged in the present offenses before this Court."
Boyle said that the long stay in jail has been unnecessary to protect the community and has badly hurt Rogers' business, which he declined to identify. Some violent criminals have a better chance at pretrial release than a non-violent defendant such as Rogers, he said.
"It is quite clear that the harm is really to Mr. Rogers," Boyle said. "He may never really recover from this extensive stay in jail. He's self-employed. His business has suffered."
No date has been set for a ruling on whether Rogers should stay in jail, but the appeals court has put the case on an expedited schedule.
I have no sympathy for scumbags, but this sets a dangerous precedent.
David
Court considers jailing abusers who have guns
By Pamela Manson
The Salt Lake Tribune
A Centerville woman said she became so concerned when her live-in boyfriend came home intoxicated one night last January that she considered calling the police.
Then, when she learned that her boyfriend, 50-year-old Kenneth Charles Rogers, had been in court before on a domestic violence complaint, the girlfriend said she became worried for her children and made plans to move out, according to court records.
Her decision set off a chain of events that landed Rogers in jail and set the stage for a court ruling on whether domestic violence offenders accused of illegal firearms possession can be forced to stay behind bars while awaiting trial.
A ruling confirming that authorities can petition a judge to hold these defendants in jail could be imperative for public safety in Utah, prosecutors claim in court papers. Assistant U.S. Attorney Barbara Bearnson noted that the federal gov- ernment has created Project Safe Neighborhoods, a program to combat gun crime, and that authorities in Utah have filed approximately 500 firearms cases in the state in the past year and a half.
"Gun violence poses a significant risk of harm to the public interest," Bearnson wrote in a motion asking a court to keep Rogers in jail until his trial.
But Rogers' attorney said his client is not a threat to anyone and that merely owning a firearm while subject to a court order to stay away from a former girlfriend is not a violent crime.
--------------------------------------------------------------------------------
Advertisement
--------------------------------------------------------------------------------
"There never was this threat to the community that the government has always maintained," attorney Michael Boyle said.
Court records give this scenario of the case:
Rogers' girlfriend asked Centerville police on Feb. 4 to assist her in moving out of their residence because she feared for her safety. While in the home, officers asked Rogers if he had any weapons there and he showed them handgun and rifle cases.
Agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives searched court records and learned that Rogers was under a protection order issued in January 2002, and had been convicted of misdemeanor assault in a domestic violence case, according to an affidavit by an ATF agent.
The agents obtained a warrant and a search of Rogers' home turned up an Intra Tec 9 mm semi-automatic pistol, a Browning 12-gauge pump-action shotgun and 45 rounds of ammunition at the home.
Rogers was arrested and charged with possession of a firearm while subject to a protective order and possession of a firearm following a misdemeanor conviction of domestic violence. A magistrate ordered him held until his trial, finding that there was a "serious risk that the defendant will endanger the safety of another person in the community."
Rogers filed a motion asking a district judge to throw out the magistrate's order, but that request was denied. He then filed a second motion asking for further review of the order holding him in jail. This time, the court ruled in his favor.
In a June 27 decision, U.S. District Judge Ted Stewart ruled that the charges against Rogers were not "crimes of violence" that required a detention hearing under the federal Bail Reform Act -- if prosecutors request one. The U.S. Attorney's Office in Salt Lake City immediately appealed to the 10th U.S. Circuit Court of Appeals, which on July 1 ordered Rogers held while prosecutors try to overturn the trial court's release order.
"We conclude that there is a substantial risk that defendant's possession of a firearm could play a part in the commission of a crime of violence against another individual," a three-judge panel from the 10th Circuit said in explaining why it ordered the continued detention.
Rogers' case fell under Project Safe Neighborhoods, a nationwide effort to provide tougher enforcement of existing firearm laws through the cooperation of federal, state and local agencies. The program focuses on defendants who are felons, drug addicts and people named in a protective domestic protective order or who have a prior domestic violence misdemeanor conviction.
John Huber, West Valley city prosecutor, said the project, which is called Project CUFF (Criminal Use of Firearms by Felons) in Utah, targets defendants who pose a high risk of violence. Huber, who has prosecuted gun cases as a special assistant U.S. attorney under the project, is not involved in the Rogers case.
"We don't want a felon or someone who battered his wife in the past to have a gun," Huber said.
Lawyers on both sides in the Rogers case are filing additional briefs this month centering on whether the alleged offenses should be considered crimes of violence that allow prosecutors to request a detention hearing.
The U.S. Attorney's Office notes that appeals courts around the nation and courts within Utah have split on the issue.
In arguing that detention hearings are required at a prosecutor's request, Bearnson wrote: "As Congress has recognized, the possession of a firearm by a person who has previously committed or has threatened to commit an act of domestic violence poses a substantial risk of physical harm."
She also said the law mandates only a hearing on the issue of whether a defendant poses a risk of harm and should remain in jail, not automatic detention. Rogers has a history of domestic violence that includes the issuance of four protective orders at the request of four different women and a 2002 misdemeanor conviction for domestic violence assault, Bearnson wrote.
But Boyle pointed out that the four complaints came over a period of six years, adding Rogers has never been a threat to the community. In the current case, the guns were stowed in an interior room of the house and never taken out or brandished, he said.
In a court brief, Boyle wrote that Rogers should be free pending his trial.
"Mere possession of a weapon is not a crime of violence," he wrote. "This position is bolstered by the definition of a crime of violence under the Federal Sentencing Guidelines which specifically excludes possession of a weapon as a crime of violence. Moreover, the language of the indictment does not indicate any violence alleged in the present offenses before this Court."
Boyle said that the long stay in jail has been unnecessary to protect the community and has badly hurt Rogers' business, which he declined to identify. Some violent criminals have a better chance at pretrial release than a non-violent defendant such as Rogers, he said.
"It is quite clear that the harm is really to Mr. Rogers," Boyle said. "He may never really recover from this extensive stay in jail. He's self-employed. His business has suffered."
No date has been set for a ruling on whether Rogers should stay in jail, but the appeals court has put the case on an expedited schedule.
I have no sympathy for scumbags, but this sets a dangerous precedent.
David