Supreme court arguments today re: Lautenberg


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No Fear
November 10, 2008, 11:05 PM
Wow, there were arguments today at the supreme court regarding that horrible tyranny known as the lautenberg amendment which nra ignored and the repbublican congress passed in 1996. The case is U.S. V. Haynes.

Why did I have to check BRADY'S friggin' website to find out about this? :fire::fire:

http://www.bradycampaign.org/media/release.php?release=1084

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mica
November 10, 2008, 11:55 PM
Guess you are not perusing the right gun sites. :)

cassandrasdaddy
November 11, 2008, 08:42 AM
Why did I have to check BRADY'S friggin' website to find out about this?


because you weren't paying attention?

ants
November 11, 2008, 01:13 PM
Even Associated Press is carrying the story. You don't need gun control people to educate you about the issues.

As I understand it, the problem is not the meaning or intent of the law. That's why no one opposed it in 1996. But the language in the bill leaves it open to challenge. The language refers to misdemeanors for domestic violence, but most states prosecute for assault and battery, not misdemeanor domestic violence. If the law had referenced misdemeanor assault in the home (and included a workable definition for Home) it might not be challenged.

Do I have it right? Help us out if you have better insight.

everallm
November 11, 2008, 02:00 PM
The real problem isn't about no firearms after being convicted of a violent act.

The actual problem is, even if you are only the lucky recipient of a domestic restraining order, you are not only prohibited but must divest yourself of all firearms immediately.

Not charged and convicted of an offense mind, just someone saying you're a nasty person.

For example in NJ, you can wait until after the courts close at 3:30pm, go to your local police station, state you are in fear and get a temporary restraining order issued by the police and with no evidence within an hour which is typically good for up to 10 days.

Ahhhhh and we all thought we were innocent until proven guilty.....

DMF
November 11, 2008, 02:55 PM
For example in NJ, you can wait until after the courts close at 3:30pm, go to your local police station, state you are in fear and get a temporary restraining order issued by the police and with no evidence within an hour which is typically good for up to 10 days.None of that would make a person prohibited from possessing a firearm or ammunition under federal law.

This is one of the many topics about which people seem to willingly remain ignorant of the facts, and repeatedly make false statements about.

How about a little dose of reality regarding firearms disability due to a DV restraining order under 18USC922(g)(8):

"It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The protection order must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury."

http://www.ovw.usdoj.gov/docs/federal_violence.pdf

Very few restraining orders, including those that involve intimate partners, or the child of an intimate partner, will meet the legal requirements to make the subject of the order a prohibited person under 18USC922(g)(8). Further, a person cannot be denied their due process rights when a restraining order is issued. There must be a "hearing as to which the defendant had actual notice and an opportunity to participate." Which means you had to be provided an opportunity to participate in the hearing with the judge, so it was more than "just her in front of the judge."

For a detailed analysis of what qualifies a misdemeanor crime of domestic violence for the purposes of 18USC922(g)(9), I suggest reading this:

http://www.usdoj.gov/olc/2007/atfmcdv-opinion.pdf

It would be helpful in these debates if people actually stuck to the facts instead of spouting off comments that have no basis in reality.

cassandrasdaddy
November 11, 2008, 03:06 PM
It would be helpful in these debates if people actually stuck to the facts instead of spouting off comments that have no basis in reality.


wheres the fun in that? buzzkiller!!

everallm
November 11, 2008, 03:36 PM
DMF

Your a little off track, the Lautenberg act, as enacted supports my comment but is in conflict with other law, which is one of the reasons the SC are reviewing at the moment.

DMF
November 11, 2008, 08:42 PM
Let's see I quote source material that shows your assertion about a particular TRO creating a firearms disability are false, but that makes me off track? :rolleyes:

You made a statement about TROs related to 18USC922(g)(8), which has no basis in reality.

I'm completely on track.

Further, if you wish to pick nits the current case before the SC is about 18USC922(g)(9), and misdemeanor crimes of domestic violence, not 18USC922(g)(8) and DV restraining orders. So your mention of TROs would be "off track" using your logic.

Further, the issue at hand in front of the SC is not about a conflict between 18USC922(g)(9) and other statutes, it's a matter of how courts have been applying convictions under state law to the prohibition. The fed statute isn't in conflict with other laws, there is a difference in opinion as to what convictions qualify as a misdemeanor crime of domestic violence.

Yoda
November 11, 2008, 10:15 PM
It's not what the law SAYS that's important, it's what the cops and lawyers THINK the law says that matters.

I've read many authoritative articles about people who were ordered to surrender their guns based on TROs that they knew nothing about until the cops showed up at the door.

In one case, in Las Vegas, a divorced father called to make an appointment to visit his kids, and the ex-wife's latest boyfriend got upset and got a TRO against the guy. He didn't even know anything had happened until the police showed up at his house and ordered him to surrender his pistol. Since he was a security guard, this effectively put him out of a job.

- - - Yoda

BHP FAN
November 11, 2008, 10:27 PM
The Lautenberg Amendment, enacted in 1996, prohibits abusers convicted of misdemeanor domestic violence from possessing firearms...Wow,a misdomeanor offence can take away a Constitutional RIGHT?That's ...wrong.

Jeff White
November 11, 2008, 11:08 PM
In one case, in Las Vegas, a divorced father called to make an appointment to visit his kids, and the ex-wife's latest boyfriend got upset and got a TRO against the guy. He didn't even know anything had happened until the police showed up at his house and ordered him to surrender his pistol. Since he was a security guard, this effectively put him out of a job.

You got a link to this? There is a whole lot of rumor and innuendo about anything involving firearms and the law. There may be a state where an order of protection is valid before the respondent is served with it, but I've never heard of anyplace where an order could be enforced before it was served.

Many states jumped on the Lautenberg bandwagon and added their own firearm possession bans to the wording of their protective orders. So even if a person under a temporary order that he/she hasn't had a hearing on isn't federally disqualified, he/she may be disqualified by state law.

Many states also have not possessing firearms as a condition of bail, even for misdemeanor offenses. So if you get arrested for disorderly conduct, post bond, and you may be a prohibited person under the conditions of your bond.

DMF
November 11, 2008, 11:20 PM
It's not what the law SAYS that's important, it's what the cops and lawyers THINK the law says that matters.No it does matter what the law says, and what the relevant case law says. Those of us that actually have to go to court and prove our cases know that, and know that your claim is bunk.

Existing case law has established that an order creating a disability under 18USC922(g)(8) "must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate." You see the "lawyers" (more accurately the judges) have actually ruled on what the law says, and THAT is what matters.

Archie
November 11, 2008, 11:51 PM
I can tell you all this: I see many NCIC records of protection orders every week. They all have language stating the subject of the order may not possess a firearm under federal law - or words to that effect. All of them. If anyone wants to argue that doesn't mean it's valid under law, okay... but that is what they say.

The idea that a single misdemeanor conviction of anything deprives a citizen of basic civil rights is unprecedented. The idea of a court order creating a permanent deprivation of civil rights is unthinkable.

thesecond
November 12, 2008, 12:15 AM
This is, after all, the legal forum (and not the DOJ opinion forum).

The 'controversy' has a case, i.e., U.S. v. Hayes, so, if anyone's interested in having a read ....

U.S. Petitioner's Brief:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_Petitioner.pdf

Respondent Randy Hayes' Brief:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_Respondent.pdf

U.S. Petitioner's Reply Brief:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_PetitionerReply.pdf

And, of course, The Brady Amicus Brief:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_PetitionerAmCu11LawEnforceOrgs.pdf

I'm a slow reader, so, if this thread lasts, see you in a few .... :)

P.S. 922(g)(9)

damien
November 12, 2008, 03:51 PM
There was some commentary from court observers that the justices, in general, seemed skeptical of the government's position (that the Lautenberg amendment was constitutional). Hopefully we will have an opinion in a few months striking it down. A few additional unambiguous opinions from the court would help the inferior courts decide gun rights cases correctly at their level. Some day, the 9th is going to get tired of getting reversed (just reversed again today, not surprisingly on the sonar vs. whales issue).

HIcarry
November 13, 2008, 01:20 AM
I don't know if this is a factor in the case before SCOTUS, but isn't another issue with Lautenberg that it is being applied to those convicted prior to the implementation of the law, or ex post facto? (I hope I got that term right...)

DMF
November 13, 2008, 04:39 AM
I don't know if this is a factor in the case before SCOTUS, but isn't another issue with Lautenberg that it is being applied to those convicted prior to the implementation of the law, or ex post facto? (I hope I got that term right...)That argument has been addressed, and it is NOT ex post facto law.

I know there are a few cases where the ex post facto argument has been raised, and rejected, but here is a link to a case from the 4th Circuit Court of Appeals: United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000)

http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_mitchell2.txt

Which states in pertinent part:

"Mitchell next argues that as applied to him, section 922(g)(9)
violates the Ex Post Facto Clause because both his firearm purchase
and misdemeanor domestic violence conviction occurred prior to
section 922(g)(9)'s enactment. See U.S. Const. art. I, section 9,
cl. 3.

Again we disagree. "To fall within the ex post facto
prohibition, a law must be retrospective -- that is, it must apply
to events occurring before its enactment -- and it must
disadvantage the offender affected by it by altering the definition
of criminal conduct or increasing the punishment for the crime."
Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations and internal
quotation marks omitted). It is immaterial that Mitchell's firearm
purchase and domestic violence conviction occurred prior to section
922(g)(9)'s enactment because the conduct prohibited by section
922(g)(9) is the possession of a firearm. See, e.g., United States
v. Boyd, 52 F. Supp. 2d 1233, 1236-37 (D. Kan. 1999) ("This court,
as have all others deciding such a challenge, have concluded that
... the illegal act in section 922(g)(9) is the possession of the
firearm, not the misdemeanor domestic violence conviction . .. .");
National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564,
1575-76 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d
1276 (11th Cir. 1998). As it is undisputed that Mitchell possessed
the firearm after the enactment of section 922(g)(9), the law's
application to Mitchell does not run afoul of the ex post facto
prohibition.

Courts addressing similar ex post facto challenges to section
922(g)(9) have all agreed with this conclusion. See, e.g., Boyd, 52
F. Supp. 2d at 1236-37; McHugh v. Rubin, 49 F. Supp. 2d 105, 108
(E.D.N.Y. 1999); United States v. Hicks, 992 F. Supp. 1244, 1245-46
(D. Kan. 1997); United States v. Meade, 986 F. Supp. 66, 69 (D.
Mass. 1997), aff'd, 175 F.2d 215 (1st Cir. 1999); Barrett, 968 F.
Supp. at 1575-76.

Analogous ex post facto challenges to other similarly worded
firearm possession crimes have also failed. See, e.g., United
States v. D'Angelo, 819 F.2d 1062, 1065-66 (11th Cir. 1987)
(Defendant "was in possession of the pistol after the enactment of
the statute. Proof of [defendant's] possession obviated the need
for proof of the date [defendant] received the pistol."); United
States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994); United States
v. Gillies, 851 F.2d 492, 495 (1st Cir. 1988)."

BHP FAN
November 13, 2008, 04:47 AM
''Proof of [defendant's] possession obviated the need
for proof of the date [defendant] received the pistol..."
scary precedent,right there.

Zoogster
November 13, 2008, 08:48 PM
Wow, so ex post facto laws that are even more restrictive are now legal.

The entire Constitution is being unraveled.

The path is being paved for absolutely whatever rulers decide to be legal and "constitutional".

Extreme restrictions on federal power, and things like limiting Congressional power to Interstate Commerce mean nothing.

divemedic
November 13, 2008, 09:26 PM
just to clear it up- it is illegal for you to be in possession of a firearm if you are the subject of a DV restraining order, and the initial temporary one is nearly always issued ex parte (that means with the petitioner and not the respondent present) A hearing is then later held, in which both sides are asked to prove why the DV order should/ should not be made permanent. How do I know? It happened to me.

This set of events happened to me during the period of March through September of 2004, events which resulted in my CWP being revoked, and nearly ended my career. It took me six months, multiple hearings, an administrative appeal, and several thousand dollars in attorney fees to finally clear my name. Sorry if this is a long story.

It began when my then live in girlfriend announced that she wanted to see other people and moved out. While we were living together, her car had broken down, and I had been letting her drive my second car while she was awaiting repairs. She had also been using a second cell phone on my Nextel account. (Trust me, I am not rambling- this is all important later)

When she moved out in February 2004, I turned off the cell phone and I asked for my car back. She refused. I called the cops, they told me that since I had given her the keys, it was a civil matter. I didn't know where she moved to, so my car was gone. A month later, I saw the car parked at the mall, but there was a "club" on the steering wheel. I had it towed to my house.

The next day, there was a sheriff's deputy at my door with a domestic violence injunction, ordering me to appear at a hearing a week later. At the hearing, she produced a written statement where she claimed that I had been beating her while we were together. No proof, no witnesses, no police reports, no medical records, no marks on her, no corroborating evidence of any kind, just her say-so. It turns out that there is a "domestic violence victims advocates office" at the court house that coaches these women in what to say, and juggles the calendar to make sure they get sympathetic judges.

While in court, she began crying and told the judge that I had taken away her phone, and that I had taken back my car which was her only transportation, and left her with no way to get to work. She also told the judge that she was afraid of me because I owned a lot of guns. This infuriated the judge, and he ordered me to turn my guns in to the police, revoked my CCW, and ordered me to provide her with a car and a phone.

He also said that since my 2 jobs as a paramedic could potentially bring me near her that I was prohibited from going to work. One job was willing to work with me, the other one fired me the next day.

My attorney pointed out that we were never married, and the car was mine. The judge told him to sit down. Luckily, the attorney had prewarned me about the anti-gun attitude of the judge, and I had sold all of my guns to my brother in law two days earlier. Since this was not a final judgment, we could not appeal. The judge also said that my taking away "her" car and phone was a kind of violence, in that I was using my financial influence and the threat of firearms to control her.

For the next six months, we had numerous hearings, and I got one of my jobs back. I had to endure her showing up everywhere I went and she would use the restraining order to force me to leave, sometimes while I was in the middle of dining in a restaurant. I started making sure I had witnesses wherever I was, so that she couldn't accuse me of anything. I hung out with friends and family, so that way it wouldn't be my word against hers.

It would go like this: I would be at a sports bar owned by my partner, and she would show up, and call the police. Since I was there first, they couldn't arrest me, but they would make me leave. She would go grocery shopping at the store across the street from my house, and tell the cops I was watching her from my window, and they would come over and hassle me. She called the cops and told them her doctor's office was in my mom's neighborhood, and they would even throw me out of my mom's house, and make me leave until she was finished at the doctor.

One night, she called me and told me that the whole thing would go away if I paid her $10,000 in cash and let her keep the car. I refused. My attorney was finally able to trip the judge on a legal technicality, and got him recused from the case. With a new judge, we got the whole thing thrown out, and I got my car back. By the time I got it, it had been damaged by some sort of tool.

Another month and some administrative appeals later, I managed to get my CWP back. I bought the guns from my brother in law, and my life returned to normal.

All of this was done on a statement filled out by her, with no witnesses, and no proof whatsoever. The initial order was issued in an ex parte hearing. I discovered that when you get in front of these judges, you are at their mercy. They can ruin your life. One of the deputies told me that most of the domestic violence injunctions he serves are not really violence, but women trying to gain the upper hand in divorce proceedings, or out to get revenge.

Thanks Lautenberg.

armoredman
November 13, 2008, 11:01 PM
Did you ever countersue, slander, anything like that?

sailortoo
November 13, 2008, 11:05 PM
Divemedic - a scarey story, to say the least! The woman involved was bad enough, but the first judge involved needs a long rest with service through the bars! Again - scarey, and a heads up about where judges come from.
sailortoo

Zoogster
November 13, 2008, 11:57 PM
Did you ever countersue, slander, anything like that?
Clearly you do not understand the likely result in a court of law.

It would be her word against his, and even if it was determined he was in the right, what she "felt" at the time is not wrong, it is what she felt.
Proving that it was not what she "felt" but was instead vindictive in court would be a very difficult task. Just like her proving it was more would also be difficult.


What a countersuit would accomplish is simply employing attorneys on both sides, costing both many thousands more in attorney fees.

Now if he makes more money than her, that could actualy be more harmful to her, resulting in her losing quantities of money more necessary to her than to him. He could try to be as bad as she was by using the system.
So the person who has more money to feed to the courts can "win" in that way, but to "win", both have to lose more.

Attorneys are likely to encourage additional lawsuits, because that is the product they sell: thier time in representation. The more litigation, the more they win.

The court is a system, that system employs many thousands of people in a given area. It is like a Casino in that for every big "winner" (which really just means someone else lost bigger than the winner won) you hear about and gets highlighted in media, many thousands pump money into it with little or no return and are lucky to break even.
Anyone that thinks they will "win" by using the system on a regular basis has not seen the system in action.
Suing someone over something so difficult to reliably prove in court would just cost money, and be very unlikely to result in any charges or financial gain.

In fact to gain something she has to have something valuable to take, that after court fees still equates to more than was given to the attorneys in taking it to court.
So in both criminal and civil court it would not be very beneficial.

The system feeds on such people who bitterly use it to be vindictive to eachother. It grows fat in employment and assessed fees, fines, and both people usualy lose.
It is like those bitter divorces where in the end, after all the lawyer fees are added up on both sides, a significant portion of the assets they were dividing up are simply gone. Gone into the pockets of the system to never be seen by either of them.
Yet many people continue to do it on a regular basis. So consumed by hatred for the person they supposedly "loved" that they will destroy eachother.
Lautenberg just provided an additional way to do it.




Arguably Lautenberg puts women in even more danger, because a man actualy intent on harming an ex could use it to insure the woman was legaly disarmed prior to harming her. Since a woman is worse off if both are legaly disarmed, it benefits the stronger man even if (big if) both really are disarmed of firearms.
The ex could defend herself against a man with a gun, using a gun herself. She is at a much greater disadvantage if she has no firearm and he comes along with a blunt or edged weapon, or some other tool to use violently.

DMF
November 14, 2008, 02:13 AM
Wow, so ex post facto laws that are even more restrictive are now legal.

The entire Constitution is being unraveled.Unravled? That is utterly ridiculous. 18USC922(g)(9) was passed by the Legislative branch in the manner defined in Article I of the Constitution, it has been signed into law and implemented by the Executive branch as defined in Article II of the Constitution, and it has been challenged and ruled on in the Judicial branch as defined in Article III of the Constitution. The whole process is being done exactly as the Constitution says it should be done. Further, through that process it has been determined that 18USC922(g)(9) is NOT ex post facto law.

Further, this is not a new concept related to 922(g)(9) similar challenges have been presented in relation to 18USC922(g)(1), the prohibition on felons possessing firearms/ammunition, and have also been rejected by the courts.

You see if you're going to claim to love and want to protect the Constitution, you have to protect ALL of it, including the process of creating, implementing, and interpreting laws defined in Articles I, II, and III.

HIcarry
November 14, 2008, 05:20 AM
DMF,

Thanks for the info. I haven't had a chance to look at the link, but from the excerpt you gave, I have to admit that my non-lawyer brain has some difficulty wrapping itself around the logic of the finding re: the ex post facto issue. I am not saying your cites are inaccurate, clearly they are. And, you are quite obviously in a better position to judge the reasoning used by the various courts to come to their respective conclusions.

Again we disagree.
I assume this is the court speaking

"To fall within the ex post facto
prohibition, a law must be retrospective -- that is, it must apply
to events occurring before its enactment -- and it must
disadvantage the offender affected by it by altering the definition
of criminal conduct or increasing the punishment for the crime."
Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations and internal
quotation marks omitted).
This is where I start to loose the logic. Clearly both events in question, the crime (the assault) and the legal act of purchasing the gun, occured prior to passage of The Act. Furthermore, it both altered the "definition of criminal conduct" (before the act gun possession was legal) and increased the the punishment for the crime (removal of a civil right not previously impacted by the conviction) by prohibiting the possession of the gun.

It is immaterial that Mitchell's firearm
purchase and domestic violence conviction occurred prior to section
922(g)(9)'s enactment because the conduct prohibited by section
922(g)(9) is the possession of a firearm.
Again, the logic seems to escape me insofar as prior to enactment of 922(g)(9) a person with a misdemeanor DV conviction could legally possess a firearm, it was the enactment of the statue that created the prohibition. To dismiss as immaterial the fact that both the events (assault/gun purchase) occured prior to enactment seems almost (again, to my non-lawyer brain) counter-intuitive.

I hope you don't think I am trying to start some sort of pissin' contest here. I'm not. I am just trying to understand the logic of the courts and see if I am missing some major factor that makes it so unclear to me yet so obvious to all the courts that seem to concur with the decision. Thanks again for the info and the citations, as well as the willingness to share your expertise.

Aloha

divemedic
November 14, 2008, 07:13 AM
Did you ever countersue, slander, anything like that?

I was told by my attorney that the courts will not allow such a suit to proceed, because if word got out that a woman who reported domestic violence was subsequently punished if she were not believed, then women would be afraid to come forward.

In legal circles, punishing men for, and protecting women from, domestic violence is en vogue.

thesecond
November 14, 2008, 08:56 PM
More briefs, filed by other 'interested parties':

PRO 2A (in support of Respondent Hayes) ....

Eagle Forum Education and Legal Defense Fund:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_RespondentAmCuEagleForumELDF.pdf

Second Amendment Foundation, Inc. (Alan Gura):
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_RespondentAmCu2ndAmendmentFound.pdf

Gun Owners Foundation:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_RespondentAmCuGunOwnersFound.pdf

ANTI ....
Senators Lautenberg, Fienstein, and Murray:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_PetitionerAmCuSenLautenbergFeinsteinMurray.pdf

AND ....

NEUTRAL ....
Professor of Linguistics and Cognitive Sciences:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_NeutralAmCuProfLingCognitiveSci.pdf

My guess is that no one (including those who feel strongly enough to reprimand others on this thread) has read any of the briefs, for which I've posted links. The info. is now available. It's the responsible thing to do before engaging in legal punditry, no?

divemedic, sorry to read of your difficult situation. I hope for a positive outcome, eventually.

Al Norris
November 16, 2008, 01:34 AM
thesecond, you would be wrong. I've read all the briefs, including the orals.

What DMF says about the ex post facto matter is true... Up to a point.

Before Heller, firearms were mere possessions. The dynamic now changes since firearms are now part and parcel, implements of an individual right. That makes taking them away from people convicted of A&B (that some courts have found to be MCDV) prior to the enactment of the statute, a further punishment. It can also be argued that the permanent restriction of an individual right upon a misdemeanor conviction is unconstitutional itself.

This was hinted at, by the Court, during the orals.

thesecond
November 16, 2008, 05:56 AM
Al Norris,

I’ll assume that you have read all of the preceding posts, so I will thank you for your ‘assessment‘. I'm happy to be wrong in my ‘guess‘, as, I’ll likewise assume that you telling me of my error, publicly, indicates that someone on this forum, besides me, namely you, has read the briefs (including the amici briefs) and the oral transcript (BTW, thanks for the link on TFL) before commenting (quite vigorously, and, perhaps, rudely) on what is being argued before the Court.

The ex-post facto argument, I'm aware, was rejected in the 4th circuit Mitchell case. Possession of the firearm is the transgression under 922(g)(9), not the underlying facts (of the predicate offense). It would have been polite for one to explain why he or she believes another’s analysis is wrong, before insulting such others, most of whom I considered to be ‘curious posters’ (some of whom, frustrated), in such a dismissive fashion.

Truth be told, I can understand the other members’ frustration with the legal profession being perceived as ‘divining’ results, or, as fashioning the law for their pre-determined objectives. The truth is that one branch of the government has been overly ambitious creating law (Congress), another is forever tempted with absolute power in enforcing it (The Executive). The third must make sense of the mess that’s been given, with due respect to that continually accumulating body of law we‘ve inherited, tempered by the compassionate awareness that people‘s fates are concretely affected, and, ultimately, and truly, remaining faithful to the Constitution. Heller, narrow as it is, will prove itself “the gift that keeps on giving“, and after it’s said and done, the Courts will have confronted, with logic and grace, the public perception that “it” is all about selfish mental acrobatics.

It should be noted that although the ex-post facto issue was not raised on the record, there are a number of other legal principles and circumstances, alluded to by the Court (addressing application of the law, e.g., the vagueness doctrine and the rule of Lenity as it applies to guilty pleas in consultation with an attorney, the absence or presence of misdemeanor domestic violence statutes and variations among those in effect, the Court’s use of a ‘categorical approach’ to the application of federal prohibitions flowing from prior state convictions) outside of the issues focused on by Attorneys Giatras and Saharsky, I.e., statutory interpretation. Fortunately, the amici briefs filed (thanks to esq.’s Gura, Smith, and Titus) help inform us better of ALL the issues being contemplated by the SCOTUS.

I’m not nominating Respondent Hayes for a humanitarian award anytime soon, but should he get to keep pop’s .30-.30? What say you?

P.S. Here's the link to the transcript of oral arguments:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-608.pdf


P.S.S. Kudos to Al Norris, for comments and analysis elsewhere. After reading the oral argument transcripts, I agree that it's an exciting case post-Heller, and that we can expect, and be thankful for, more meaningful litigation.

:)

DMF
November 16, 2008, 01:32 PM
This is where I start to loose the logic. Clearly both events in question, the crime (the assault) and the legal act of purchasing the gun, occured prior to passage of The Act.No the crime, being possession of the firearm/ammunition is only a crime AFTER the date the law went into affect. It would only be "ex post facto" law if they tried to criminalize the possession of the firearm prior to the law. So if a person had MCDV conviction in 1994 and had firearms up to the date the law went into affect in 1996, but legally disposed of those firearms the day before the law went into affect that person could not be prosecuted for violating 18USC922(g)(9). However, if they possessed the firearms after the law went into affect then they would be in violation of 18USC922(g)(1). You see it's only activity that occurs after the law, not before that can be prosecuted.

Again, this is not a new issue. Similar challenges were made after 1968 with 18USC922(g)(1), when the law created a prohibition on firearms/ammunition possession by felons.Again, the logic seems to escape me insofar as prior to enactment of 922(g)(9) a person with a misdemeanor DV conviction could legally possess a firearm, it was the enactment of the statue that created the prohibition. To dismiss as immaterial the fact that both the events (assault/gun purchase) occured prior to enactment seems almost (again, to my non-lawyer brain) counter-intuitive.Well as I've said, the receipt of the firearm and the possession of the firearm BEFORE the law went into affect are not criminalized by the law and cannot be prosecuted. The created a prohibition on possession of firearms and ammunition for those convicted of MCDV, and only possession of firearms and ammunition AFTER the law went into affect are criminal acts. So what occurred prior to the law going into affect is not relevant.

Al Norris
November 17, 2008, 01:27 AM
thesecond, sorry that you feel I was rude. However, you did say:
My guess is that no one (including those who feel strongly enough to reprimand others on this thread) has read any of the briefs, for which I've posted links.
Which was the object of my first sentence. While being sarcasm, it is not necessarily rude.
It would have been polite for one to explain why he or she believes another’s analysis is wrong, before insulting such others, most of whom I considered to be ‘curious posters’ (some of whom, frustrated), in such a dismissive fashion.
Unlike others, I don't cross-post. A habit I learned back in the days of usenet. If you find that a failing of mine, then all I can say is that my failure was in not linking to my analysis. For that, I apologize (brevity is not always good).

For those wondering, this (http://thefiringline.com/forums/showthread.php?t=318747) thread at TFL has the links referred to by thesecond, and this (http://thefiringline.com/forums/showpost.php?p=3126868&postcount=20) post is the one where I give my analysis of the case.

divemedic
November 17, 2008, 09:51 PM
My situation resolved over 4 years ago. I got my CCW back, I got my guns back, and the nutcase is out of my life. I was just handing out a friendly warning, is all.

Bookworm
November 18, 2008, 10:33 AM
An ex post facto law is:
1. Criminalizing something that was not a crime beforehand
OR
2. Retroactively increasing the punishment for a crime

Obviously, permanently stripping someone of a fundamental constitutional right for a petty offense that may have occurred decades ago AS A RESULT of that initial conviction is an ex post facto law.

Just because the material submitted on prior posts addressed (1) does not make (2) less true.

In my own opinion, our current culture demands that the authorities disarm the people whenever a plausible excuse crops up. Domestic violence is a serious matter especially to victims and the hordes of special interest groups, lawyers, and government bureaucrats that make their livelihoods on these cases. When has it become common to see open carry? How often do we hear of cases where people have been hassled for doing so? What is the mindset of average people on others carrying guns?

Like it or not, anyone other than police keeping/bearing guns fights against public misconception. Prosecutors and judges see the scum of society everyday, and will use every tool at their disposal to disarm these people. If your actions involve yourself into their world, then you're in for it.

thesecond
November 19, 2008, 10:05 PM
Al Norris: No offense taken, but how 'bout we not let this thread continue sideways. You've read the briefs and oral argument, good job.

The ex-post facto issue is subsumed under the discussion of other legal issues at play, e.g., statutory interpretation of 922(g)(9) and 921(A)(33), and the rule of lenity. The ex-post fact case cited, is pre-Heller.

havoc7usmc
November 19, 2008, 10:40 PM
This is in response DMF's response


You must be one of those lawyers that encourages litigation.... to feed your deep pockets.


Hello,
I'm havoc's wife and am also a Social Worker. The gentleman with the story of how his ex was able to make a statement after hours and have a ex parte emergency temporary relief from abuse order granted by a judge is absolutely correct. it happens every day, many times a day. As a Social Worker, I've seen instances when it was truly warranted for the alleged perpetrator to be relieved of his firearms... I've also seen many instances when victims use the system to play out their revenge..... the system is not fool proof and unfortunately, like this gentleman, people get hurt if not ruined in the process. So believe it folks. I used to be a Director of a domestic and sexual violence program and saw how it truly protected some victims and how some alleged victims used it to their advantage.

Mrs. Havoc, MSW
P.S. I own a firearms repair and sales business, have an FFL and own personal firearms as well...

7.62X25mm
November 20, 2008, 12:01 AM
We have one attorney in this discussion, being lynched by an enclave of outhouse lawyers.

It's "you're" . . . not "your." And from that juncture the syllogism takes a nose dive.

divemedic
November 20, 2008, 06:47 AM
Actually, I agree with DMF. I do not think this law fits the definition of ex post facto any more than GCA68 does. If the Lautenberg Amendment is to be successfully challenged, that is not the way to do it.

DMF
November 20, 2008, 12:17 PM
Fact is fact not law

--------------------------------------------------------------------------------

This is in response DMF's response


You must be one of those lawyers that encourages litigation.... to feed your deep pockets.
Always entertaining to see someone spout off without even bothering to find out the truth. :rolleyes: It's been established on these forums for quite some time that I'm a cop, not a lawyer.

Rogue6
November 20, 2008, 02:49 PM
Well, I am a lawyer and I practice family law and it is true that Lautenberg gets abused to create a tactical advantage in family law cases. One party can go into court "ex parte" (without the other side being aware of it) and get a restraining order based on allegations of abuse in a domestic context. This can grant not only the restraining order, but also temporary possession of the residence and maybe a car, custody of the children, temporary parenting time, and often temporary support. The other side gets served with the order and then has an opportunity to request a supposedly quick hearing to contest the order (although this can easily be postponed for quite a while).

The burden of proof for the petitioner is theoretically a preponderance of the evidence, but in most cases it's a "he said, she said" situation and the court isn't sure who's telling the truth and so as a practical matter the legal standard becomes something along the lines of "better safe than sorry." Unfortunately for the respondent this means losing the right to possess firearms for an period of time. Cie la vie. If you don't like it then write to your congressman to get it changed. Good luck with that, though, since it's unlikely that very many politicians are going to want to be characterized as supporting wife beaters.

In my opinion the real problem is how some states and courts interpret Lautenberg to apply BEYOND the above. For example, if a respondent doesn't want to contest the abuse finding or the no-contact provisions but does want to contest the parenting time or custody or support provisions of the order the court STILL considers it to be a hearing where respondent had notice and an opportunity to be heard. After all, Lautenberg doesn't mention anywhere what the subject matter of the hearing has to be - only that there be a hearing with notice and an opportunity to be heard, and in this state the statute specifically applies Lautenberg to such situations. For an example order issued after such a hearing in Oregon, check out http://www.ojd.state.or.us/osca/cpsd/courtimprovement/familylaw/document/OrderAfterHearingMODIFY-6-08.pdf.

It can get even worse than that, but I'll leave that for another day.

In other words, it doesn't matter if you contest the underlying domestic violence, only that you had a hearing at all, and that is how Lautenberg is being used. Yeah, the court also has to check that respondent represents a credible threat but that's a given, because if respondent didn't then the case would have to be dismissed and the order would have no effect. So if you don't want to lose your right to possess a firearm then you let the ex take the kids, the house, the car and the money and keep your mouth shut. Or you roll the dice and request a hearing, which is a great option if you have a few extra thousand and a couple of years to spend getting it all straightened out on appeal.

I also wanted to put my two cents in on the "ex post facto" discussion. I think that DMF is legally correct (in the 4th Circuit, certainly) but let's face it - that's not really a just outcome, is it? One of the requirements for accepting a guilty plea is that the defendant understand the potential consequences of the conviction, and that wouldn't be the case if the rules get changed "ex post facto." I have to admit I don't know how to fix it, though.

Zoogster
November 20, 2008, 07:10 PM
I do not think this law fits the definition of ex post facto any more than GCA68 does. If the Lautenberg Amendment is to be successfully challenged, that is not the way to do it.
For society at large no, it is not the way to challenge it. For the individual that had a conviction prior to the increased ex post facto punishment years later, it is very valid.

Someone that commited a felony in 1967, whether it was for something like drugs (hippy era) or anything was not prohibited from bearing arms and excercising thier constitutional rights for life.
That someone can afterwards bring forward a law, increasing the punishment for something done previously, is a violation of ex post facto, regardless of who rules otherwise.

The same for those who had a misdemeanor conviction of domestic violence prior to the Lautenburg Amendment. If they did something prior to the increase in punishment, they are recieving increased punishment after the fact, which was not a part of thier sentencing or laws on the books at the time.


That of course does little to change the situation for everyone else, so is not the way to challenge those laws in general, just the specific application of it under those Ex Post Facto circumstances.
Increased punishment from new laws for something done prior to the laws is a violation of Ex Post Facto.
The punishment in this case is a lifetime prohibition of a constitutional right, brought on by a statute created long after thier crime.

It would be no different than declaring tommorrow that anyone who has ever had more than X number of speeding tickets, parking violations, accidents, or other automobile violations within Y number of years, anytime in thier life can no longer ever drive a car for the rest of thier life.
(Well except for driving is not a Constitutional Right.)

divemedic
November 20, 2008, 08:08 PM
Except it has not been established that loss of the ability to own a firearm is a punishment, and whether you or I think it is or not is immaterial.

thesecond
November 21, 2008, 04:40 PM
divemedic: the prohibition on firearms possession, we should hope, will be seen as a punishment in light of Heller. That case will prove to change the context of the discourse.

Also, I'd like to know how many attorneys, in states which did not have a misdemeanor domestic violence statute (33 states, I believe), would reasonably have known that their client's plea of guilty to a misdemeanor assault/battery charge would bring felony-conviction-level prohibitions, after the passage of the Lautenberg amendment.

DMF: Your interpretation of ex-post facto law as it pertains to 922(g)(9), in the 4th circuit, and pre-Heller, is correct, but it is not the main issue of contention in the Hayes case. Assuming arguendo your take on U.S. v. Mitchell, a host of other legal principles, still call into question the constitutionality of the Lautenberg Amendment. I encourage you to read the briefs filed. (And thanks for your service.)

Many thanks to those who have shared with us their professional and personal experiences and commentary under the application of the domestic violence statutes and of the Lautenberg Amendment.

Al Norris
November 22, 2008, 12:09 AM
Which is why I said at the very first, that in light of heller, the loss of the ability keep and bear arms, a civil right, is a punishment, particularly if the statute is read the way the government wants it read.

In Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798), Justice Chase set the 4 point rule that defines what this (ex post facto) means.

In the case we are dealing with here, the Court will decide how the statute is to be interpreted. That is, must the crime charged be an actual domestic violence criminal statute or will it merely mean that any assault and/or battery charge will do, so long as the victim is related to the aggressor.

DMF
November 22, 2008, 12:33 PM
Your interpretation of ex-post facto law as it pertains to 922(g)(9), in the 4th circuit, and pre-Heller, is correct, but it is not the main issue of contention in the Hayes case.Yes, but other, not me, have raised that issue of ex post facto law. I've read most (probably not all) the briefs related to Hayes. These issues were not brought up as part of Hayes, but have been raised by people here on this thread, who have clearly not read the relevant case law on the subject of ex post facto law.

Hawkmoon
November 24, 2008, 11:21 PM
It's "you're" . . . not "your." And from that juncture the syllogism takes a nose dive.
To/at whom was this directed?

If it was directed at Mrs. Havoc, who posted immediately above you -- you're wrong, and she's right.

"You're" is the abbreviated form of "you are."

"Your" is the possessive form of "you." It appears to me that Mrs. Havoc's use of the word "your" was correct in context. If that's NOT who you were intending to "correct" (incorrectly), it might be a good idea to identify the alleged perpetrator of the grammatical goof.

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