First SCOTUS Case After Heller


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Chrome
April 30, 2008, 09:45 PM
From the WVCDL Newsletter. This will be big if Heller falls our way. This, like Heller, could open the flood gates of cases presented to SCOTUS.


WV GUN CASE GOING TO US SUPREME COURT

As with yesterday’s announced national park rules change, I have not had the time to carefully analyze this case. The Supreme Court’s upcoming decision in D.C. v. Heller will have a significant effect on this case, which will be the first gun case they hear following Heller. This case involves a challenge to a 1996 change in federal law known as the Lautenberg Amendment (named after its sponsor, New Jersey Senator Frank Lautenberg) that bans anyone convicted of a misdemeanor domestic violence offense from possessing a firearm for life, regardless of when the offense was committed, unless that person has been pardoned or received an expungement of the record.



http://www.dailymail.com/News/200804300223

Wednesday April 30, 2008

City lawyer going before highest court in the land

by Cheryl Caswell

Daily Mail staff



The case of a Marion County man will go to the U.S. Supreme Court later this year, and a Charleston attorney will become one of a limited number of West Virginia lawyers to argue in that venue.

Troy Giatras will defend Randy Hayes of Mannington, a contractor convicted of a felony gun possession charge, and ask the highest court to clarify Second Amendment right to bear arms.

No matter the outcome of Hayes' case, Giatras will receive the coveted quill presented to all lawyers who come before the U.S Supreme Court.

“It's an honor,” Giatras said. “For 99 percent of lawyers, it's a once in a lifetime opportunity.

“It's the absolute pinnacle for a lawyer,” Giatras said. “Because it's the highest court in the nation.”

He expects the U.S. Supreme Court to hear his case between October and December.

Out of about 5,000 petitions the court receives each year to hear cases, the justices accept only about 75. Giatras says not that many West Virginia lawyers have argued a case before the country's highest court.

Hayes' case goes back to 1994, when he pleaded guilty to a misdemeanor battery offense after a dispute with his wife. Ten years later, an argument over their son occurred over the phone between the now-divorced parents and she asked police to go to his home.

When they searched Hayes home, an old Winchester rifle given to him by his father was found under a bed. Hayes didn't know it, but a 1996 amendment to federal gun laws made it illegal for him to possess the gun because of his prior misdemeanor offense.

Giatras was retained two days before Hayes was expected to plead guilty to the gun charge in federal court.

“We halted the entire process in March 2005,” Giatras said. “Because he only pleaded guilty in 1994 to battery, not domestic battery. But the federal court interpreted it as domestic battery because it was against a family member.”

“In 1994 and in 1995, he was legally able to have a gun,” Giatras said. “The 1996 law was applied to him retroactively, but he didn't even know it.”

The case proceeded through the Fourth U.S. Circuit Court of Appeals in Richmond in October 2006 and the court reversed the earlier decision. But the U.S. Justice Department appealed to the U.S. Supreme Court and the court agreed last month to hear the case.

Giatras said the case is important because it will further define the right to own a gun and also addresses the issue of laws affecting citizens retroactively.

The case of a Marion County man will go to the U.S. Supreme Court later this year, and a Charleston attorney will become one of a limited number of West Virginia lawyers to argue in that venue.

Troy Giatras will defend Randy Hayes of Mannington, a contractor convicted of a felony gun possession charge, and ask the highest court to clarify Second Amendment right to bear arms.

No matter the outcome of Hayes' case, Giatras will receive the coveted quill presented to all lawyers who come before the U.S Supreme Court.

“It's an honor,” Giatras said. “For 99 percent of lawyers, it's a once in a lifetime opportunity.

“It's the absolute pinnacle for a lawyer,” Giatras said. “Because it's the highest court in the nation.”

He expects the U.S. Supreme Court to hear his case between October and December.

Out of about 5,000 petitions the court receives each year to hear cases, the justices accept only about 75. Giatras says not that many West Virginia lawyers have argued a case before the country's highest court.

Hayes' case goes back to 1994, when he pleaded guilty to a misdemeanor battery offense after a dispute with his wife. Ten years later, an argument over their son occurred over the phone between the now-divorced parents and she asked police to go to his home.

When they searched Hayes home, an old Winchester rifle given to him by his father was found under a bed. Hayes didn't know it, but a 1996 amendment to federal gun laws made it illegal for him to possess the gun because of his prior misdemeanor offense.

Giatras was retained two days before Hayes was expected to plead guilty to the gun charge in federal court.

“We halted the entire process in March 2005,” Giatras said. “Because he only pleaded guilty in 1994 to battery, not domestic battery. But the federal court interpreted it as domestic battery because it was against a family member.”

“In 1994 and in 1995, he was legally able to have a gun,” Giatras said. “The 1996 law was applied to him retroactively, but he didn't even know it.”

The case proceeded through the Fourth U.S. Circuit Court of Appeals in Richmond in October 2006 and the court reversed the earlier decision. But the U.S. Justice Department appealed to the U.S. Supreme Court and the court agreed last month to hear the case.

Giatras said the case is important because it will further define the right to own a gun and also addresses the issue of laws affecting citizens retroactively.

“You make a decision based on what the law is, as opposed to what it will be in the future,” he said.

“In the end, it could provide justice not just for Randy Hayes, but others who have been caught this way.”

To prepare for presenting his case, Giatras will argue before moot courts in West Virginia and at Georgetown University Law School.

“We submit briefs, attorneys sit as fake judges, you do the argument, they question and grill you and then they give you a frank critique,” he said.

While arguing before the U.S. Supreme Court is an honor, it's also quite a challenge, [Giatras] said.

“The other side is represented by the U.S. Solicitor General,” he said. “All they do is argue professionally for the government.”

“I've already visited the Supreme Court to acclimate myself,” Giatras said. “It's very similar to the West Virginia Supreme Court. It was the same architect, the same layout.” [JM: The West Virginia State Capitol, including the Supreme Court courtroom, and the U.S. Supreme, were both designed by famed architect Cass Gilbert. The West Virginia Supreme Court, which was built almost a decade before the U.S. Supreme Court, is identical to the U.S. Supreme Court except for the absence of a bar between the court and the gallery and only 5 justices instead of 9. But let me repeat: ours came first.]

Giatras said organizations and individuals can submit Amicus briefs summarizing their opinions in his case.

“Any interested party can submit those,” he said. “They'll begin to come in around June. I've already had pro-gun groups and family groups say they want to weigh in. You have to file a brief and have a lawyer.”

Another prominent gun law case, referred to as the Heller case, has attracted the attention of many gun control and gun rights activists. He expects the Hayes case to generate much of the same interest.

The U.S. Supreme Court is expected to rule on the Heller case by the end of June.

Giatras, 43, is a graduate of Duquesne University and West Virginia University School of Law. He was admitted to the state bar in 1990.

Contact writer Cheryl Caswell at cherylc@dailymail.com or 304-348-4832.

Later,
Chrome...

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divemedic
April 30, 2008, 10:19 PM
This could also be the incorporation case we have been looking for. I would like to read it. I will read it this week.

NukemJim
April 30, 2008, 11:33 PM
This could also be the incorporation case we have been looking for

If possible could you please elucidate, if possible, on what aspects of this case might help as far as incorporation of the 2A?:confused:

Thank you

NukemJim

jlbraun
April 30, 2008, 11:34 PM
I don't think it's going to be an incorporation case, as it addresses a question of federal law, not state law.

Standing Wolf
May 1, 2008, 12:07 AM
Someday, if you've ever had a parking ticket, you'll be prevented from keeping and bearing arms.

We need to stop this Lautenberg dreck.

MiddleAgedKen
May 1, 2008, 12:37 AM
Interesting case, and could be a good one for the cause of ordered liberty--although if the Court were inclined to dodge the 2A aspects, they might make (can they, if it is not made part of either plaintiff's or defendant's argument?) a ruling on the apparent ex post facto element. As usual, though, IANAL.

Anything I could add about Lautenberg wouldn't be High Road.

mekender
May 1, 2008, 01:09 AM
according to what i have heard, the Cato Institute is planning on filing a challenge to the Sullivan Act on the day of the heller ruling if the ruling is favorable

Thernlund
May 1, 2008, 01:41 AM
Nothing for 70 years, then two in one year. Hmmm... you think the court is trying to get something done before the next president gets his mits on an eventual open slot?


-T.

Jdude
May 1, 2008, 02:43 AM
Nothing for 70 years, then two in one year. Hmmm... you think the court is trying to get something done before the next president gets his mits on an eventual open slot?

Interesting theory. I suppose we'll know when one retires and publishes his memoirs.

Personally I believe the district court split had more to do with it though.

Kind of Blued
May 1, 2008, 02:52 AM
This is good news, as every little bit helps, but I can't help but wonder, wouldn't it be more effective and more likely to get to the point where law-abiding citizens have an unadulterated right in the form of the Second Amendment first? Currently, it is bastardized, and I think it needs to be solidified.

For example, is there anything that could be done to declare a future AWB illegal? The SCOTUS needs to be made aware of the first ban's ineffectiveness and undermining of the Second Amendment's intention to protect the people from a tyrannical government by allowing, and promising in the future, effective means of defense.

Draven32
May 1, 2008, 03:09 AM
For example, is there anything that could be done to declare a future AWB illegal?

Sure, declaring all state AWBs unconstitutional would pretty much do it.

Henry Bowman
May 1, 2008, 10:16 AM
This is not a Second Amendment case. The "question presented" is:
QUESTIONS PRESENTED:

Section 922(g)(9) of Title 18, United States Code, makes it a crime for any person
convicted of a "misdemeanor crime of domestic violence" to possess a firearm.

The question presented is whether, to qualify as a "misdemeanor crime of domestic
violence" under 18 U.S.C. 921(a)(33)(A), an offense must have as an element a
domestic relationship between the offender and the victim.It is a case to define the scope of a "misdemeanor crime of domestic
violence."

ctdonath
May 1, 2008, 11:50 AM
Bump that. THIS IS NOT A 2nd AMENDMENT CASE!

That it involves a gun law is merely tangential, the medium upon which the message is carried.

To rephrase the case's formal question:
What puts the "domestic" in "domestic violence"?
This case is about the "domestic" part of "domestic violence", not the "violence" part - and certainly not about the tools used/affected by the latter.

Henry Bowman
May 1, 2008, 12:15 PM
The case is more like the Emerson case in that it is challenging the Lautenberg Act. There, the 5th Circuit found that the 2A protects an individual right, but that the Lautenberg Act was a Contitutionally-permitted restriction. The SCOTUS denied cert., letting the ruling stand. Here the defendant lost at the district court and then won on appeal. The DOJ filed a petition for cert. to the SCOTUS and they accepted the case.

That could mean that they intend not to let the (4th Circuit) court of appeals decision in this case stand -- or something else. Hard to say. My crystal ball is cloudy.

rdhood
May 1, 2008, 01:03 PM
Its not high road, but some folks in this forum, such as a certain holder from 1971, needs to read this and realize that you can, in fact, commit a felony without knowing it.

lacoochee
May 1, 2008, 02:13 PM
Doesn't the Federal government imply incorporation of the 2nd amendment when they pass laws that affect ALL states? Aren't they in fact saying that the laws they are passing are reasonable restrictions on gun owners even though the second amendment is pretty clear they cannot pass laws infringing on the right of gun owners to keep and bear arms?

It seems to me if the Federal government can pass laws affecting citizens in ALL states that the converse is also true that they are bound by the language of the second amendment when they pass a law modifying/restricting those rights in ALL states.

ctdonath
May 1, 2008, 11:04 PM
The case is more like the Emerson case in that it is challenging the Lautenberg Act.
But it's challenging the initiating criteria, not the outcome. It's asking "does X invoke the penalty of Y", not "is Y a constitutional penalty for X". Emerson ruled that RKBA cannot be revoked without individual due process, and ruled that Mr. Emerson had his individual due process; this case is asking what puts the "domestic" in "domestic violence".

ServiceSoon
May 1, 2008, 11:52 PM
This is kind of sublime how the SCOTUS is all about the second amendment.

This case is all about Ex post facto law. Innocent.

It is a case to define the scope of a "misdemeanor crime of domestic
violence.". The SCOTUS always goes off on a tangent. It will be about so much more.

NukemJim
May 3, 2008, 04:02 AM
This case is all about Ex post facto law

As always I could be wrong but my understanding is that an ex post facto situation is when you do an act that is legal to do on Monday and Tuesday they pass a law saying that if you do that act that it is illegal and they arrest you for it.

Lautenburg merely changes the penalty for the act you committed. The act you commited on Monday was illegal on Monday.

It's just now that you got the parking ticket on Monday that you pay on Tuesday and now on Thursday they change the penalty of the law so that you can never drive again.

See it is not ex post facto, they just changed the penalty completely legal.:fire::banghead::cuss:

NukemJim

kurtmax
May 3, 2008, 01:10 PM
Yep. Lautenburg is not Ex Post Facto. It's sure close though. The difference is that the act was already legal when it was commited, so it hasn't made an act in the past 'illegal', just added extra restrictions.

This is just another reason to never plead guilty to even a misdemeanor charge. Fight it hard if possible. You never know how you might be screwed over in the future.

I'd also say it'd help not to beat yer wife, but people get convicted with domestic violence for non-violent things even sooooo....

Dahwg
May 4, 2008, 03:02 AM
There is more to this than just ex post facto. First of all, while this case the defendant very clearly was engaged in domeestic violence (DV), not all misdemeanor DV cases are the same.

It is a very common tactic in the midst of a divorce for one of the spouses (usually the wife) to allege DV. In most states, if DV is alleged, someone has to go to jail. In my case, I plead no contest to avoid the attorney's fees (I was going broke with the divorce attorney to begin with). There was no threats, no physical violence- nothing. There was just an argument and the rookie female LEO decided there was probable cause- though the other, more senior LEOs did not. I did not fight it, and in fact the family court judge saw it for what it was and told her it was sad she was trying to play games like that because it wouldn't work in her court. Unfortunately, since I was not a gun owner at the time, I didn't know the implications that this would have later.

Fast forward to when I purchased my firearm- NICS background check - Proceed. According to the Feds, I'm OK- they looked into my disorderly conduct (DV-related) and concluded that the specific incident I was charged with under state law was not prohibited according to the Lautenberg amendment. Fast forward again four days ago, I was declined my CCW permit in the state of AZ because of the same Disorderly Conduct violation from 8 years ago. When I called DPS to verify if they considered me prohibited possessor or not, she said, "Since it's a Federal Law, we leave that part of it to the Feds. As far as the state is concerned, using the federal guidelines, you can't be issued a CCW, but since you were cleard by the NICS check, you can continue to OC if you wish."

See there are several problems with the law as it stands:


The law makes a felony from a misdemeanor, in other words, you can be charged with a felony as the result of a misdemeanor (cruel and unusual 8th Amendment).
In my case, I wasn't told at the time of my conviction that it would result in a future gun prohibition- a violation of the 6th Amendment.
If I legally owned a gun prior to the offense then it could be construed as illegal seizure depending on the circumstances. (4th Amendment)
It denies due process (14th Amendment).


In my case, both DPS and the City Municipal court have been very helpful. I filed a motion to have my conviction set-aside, and they court is going to fast-track the request. When/if my motion is granted, DPS said they would change the status of my application (all I have to do is fax the court order). Should take no more than 2 weeks, but it's still dependant on a judge's discretion. My advice (as posted above) never plea out on a misdemeanor.

Mike OTDP
May 4, 2008, 11:54 AM
Ex post facto law, and also due process.

MechAg94
May 4, 2008, 11:35 PM
Partly also, it sounds like he plead to a lesser charge below that of domestic battery, but the federal court decided it was Domestic Battery anyway. Does the federal court have the right to essentially change his conviction to a more severe crime?

ServiceSoon
May 4, 2008, 11:51 PM
As always I could be wrong but my understanding is that an ex post facto situation is when you do an act that is legal to do on Monday and Tuesday they pass a law saying that if you do that act that it is illegal and they arrest you for it.

Lautenburg merely changes the penalty for the act you committed. The act you commited on Monday was illegal on Monday.

It's just now that you got the parking ticket on Monday that you pay on Tuesday and now on Thursday they change the penalty of the law so that you can never drive again.

See it is not ex post facto, they just changed the penalty completely legal.

NukemJim
Yep. Lautenburg is not Ex Post Facto. It's sure close though. The difference is that the act was already legal when it was commited, so it hasn't made an act in the past 'illegal', just added extra restrictions.

This is just another reason to never plead guilty to even a misdemeanor charge. Fight it hard if possible. You never know how you might be screwed over in the future.

I'd also say it'd help not to beat yer wife, but people get convicted with domestic violence for non-violent things even sooooo....

The 'words and the intent' of the Ex Post Facto Clause encompass '[e]very law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.' Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798) (opinion of Chase, J.).

Based on the case law quote above, I think he could win if his defense argued ex post facto law.

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