Short story about domestic violence


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bkjeffrey
February 5, 2011, 09:04 PM
This is kinda long winded but Im seeking some info, specifically pertaining to Mississippi law. The story takes place in Mississippi.

Story. Back in 1985 a 25 year old man was dating an older woman who had a who had a daughter that was 12 years old. The man caught the woman stealing money from his home. When confronted, the woman passed the wad of cash off to her daughter and denied the accusation. The man called the police. While waiting for the law the woman became physical with the man and the man physically restrained her until the police arrived and left squeeze marks on the womans arms. When the police arrived they questioned the woman about the marks. The police arrested the man and he was charged with domestic. The woman never accused the man of domestic violence, the police pressed the charges. He was convicted in court and served community service.

Since then the woman and man have had no more contact. 26 years have passed and since then the man has been an upstanding citizen. He served a 4 year tour in the Army and was honorably discharged. Went to college and got an engineering degree. Homeowner, taxpayer and on the right side of the law since.

Recently the fella has taken an interest in firearms due to my interest in the hobby. I took him out to the range and he took a liking to my AK and mentioned that he would like to buy one but didnt figure the law would allow it due to his domestic violence charge from 26 years ago.

My question is, after 26 years is there any statute of limitations? What are yalls thoughts on this? Can he buy a gun? Should he try?

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WardenWolf
February 5, 2011, 09:14 PM
Unfortunately, the Lautenberg Amendment is, unconstitutionably so, retroactive. It applies to everyone if they were EVER convicted. So a person who legally owned guns before the amendment was passed suddenly became a potential felon afterwards.

Blackbeard
February 5, 2011, 09:53 PM
Your friend may be out of luck. Best chance would be to get a lawyer and try to get a court to expunge his record and/or restore his rights.

NavyLCDR
February 5, 2011, 09:55 PM
http://www.law.cornell.edu/uscode/uscode18/usc_sec_18_00000922----000-.html

(g) It shall be unlawful for any person—

(9) who has been convicted in any court of a misdemeanor crime of domestic violence,

to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

and

(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person—

(9) has been convicted in any court of a misdemeanor crime of domestic violence.

bikemutt
February 5, 2011, 10:53 PM
Your friend needs to hire a lawyer well versed in this area of the law in Mississippi. Or seek a pardon from Governor Barbour. FWIW, going it alone to save money is a bad investment.

Mags
February 5, 2011, 11:06 PM
When your friend was in the Army was he issued a weapon.

I know if you have a domestic on your record you cannot even carry Uncle Sam's guns.

Owen Sparks
February 6, 2011, 02:50 AM
I know a man who was in a very similar situation and hired a lawyer and got the charges expunged from his record. It cost him several hundred dollars though it might be worth it to your friend.

ArmedLiberal
February 7, 2011, 09:53 AM
26 years is a long time and record keeping is often less than perfect. In California you can send in a form to the DOJ with a small fee to see if you are eligible to purchase firearms. Perhaps there is a similar process in your state?

ColtPythonElite
February 7, 2011, 09:58 AM
Is your friend certain he was convicted of domestic A&B? I'm betting he may have plead to a reduced charge.

rocky branch
February 7, 2011, 03:34 PM
The law has a long memory.
I applied for a C&R in 2001.
After a long wait I called and asked about it.
Lady said the FBI found an open issue from 1972 that was unresolved.

I just happened to have paperwork on that and after submitting it, all went well.

Thr Lauterberg folks whined and snivelled that the law was not supposed to be retroactive, but never did anything to solve it.

essayons21
February 8, 2011, 12:03 AM
When your friend was in the Army was he issued a weapon.

I know if you have a domestic on your record you cannot even carry Uncle Sam's guns.

Lautenberg was passed in 1996. I am assuming that the 4 year stint in the military was prior to this, and from 1985-1996, and from 1999-2001 when the law was overturned by the courts, he could legally possess a weapon.

Lautenberg is a clear violation of Article I, Section 9 of the US constitution

No Bill of Attainder or ex post facto Law shall be passed.

Why it hasn't been challenged and overturned stumps me. There really is no clearer example of an ex post facto law than Lautenberg.

Double Naught Spy
February 8, 2011, 10:22 AM
The OP's story was nice, but the whole business about how the friend was wronged by his thieving girlfriend and how she became physical with him such that it resulted in apparently marks only on her just isn't really relevant. We don't get to retry the case and pass judgment. All that matters is that he was convicted of domestic violence.

The same holds for the rest of the fluff about having no legal troubles since then and having served in the miliary and getting an honorable discharge. The law generally doesn't have any standard parameters that states if you do good for a given amount of time that previous convictions get removed. So we don't get to pass judgment there either.

My question is, after 26 years is there any statute of limitations?
There is no statute of limitations on your criminal record. There is none on your record of being a good guy.

What a lot of folks fail to understand is that there are some very real consequences for their actions, especially when the problem results in a legal conviction, and that those consequences are longstanding. They don't go away on their own.

Your buddy should see about trying to get his record expunged. All that stuff about not being in trouble and the honorable discharge could be used to help make the case to a judge for getting the record expunged.
Sounds like what your friend

What are yalls thoughts on this?

essayons21
February 8, 2011, 10:41 AM
What are yalls thoughts on this?

New laws are not retroactive. The Article I, Section 9 of the US Constitution prohibits this. The Lautenberg Amendment imposed a further penalty on a crime this guy committed, a decade after the crime, without the benefit of a trial.

He had paid his debt to society and turned his life around, and was an otherwise free citizen with full rights until this law was passed.

This should be challenged. If your friend has time and money to spare, he should contact the NRA.

Bartholomew Roberts
February 8, 2011, 01:07 PM
Why it hasn't been challenged and overturned stumps me. There really is no clearer example of an ex post facto law than Lautenberg.

It hasn't been challenged and overturned on the grounds you cite because courts have said it is not an ex post facto law and it is not a bill of attainder.

Ex post facto is Latin for "After the fact" and an ex post facto law is one that criminalizes PAST behavior. For example, let's say the speed limit is 70mph. Today you drive 65mph down the highway. Next month, the state passes a law that changes the speed limit to 55mph and attempts to charge you with a crime for driving 65mph today - that is an ex post facto law.

Under Launtenberg, the crime is currently possessing a firearm after a prior conviction of domestic violence. So there is no past legal behavior being criminalized, it is your current illegal behavior that is criminalized.

The second angle - that it retroactively increases punishment for a crime - has historically been ignored by courts who reason that like driver's licensing or other licensing, making the standards stricter isn't punishment for past acts and so isn't an ex post facto law.

Dave Hardy discusses it more here (http://armsandthelaw.com/archives/2009/02/supreme_ct_inte.php) and links to a 2009 Supreme Court case on the issue. As he notes, now that Heller and McDonald are precedent, the domestic violence restriction may not fare so well. There are already several cases attacking different aspects of Lautenberg (http://thefiringline.com/forums/showthread.php?t=416973).

essayons21
February 8, 2011, 03:46 PM
I know Lautenberg has been argued ad naseum on these forums, and you quite effectively stated the case that some courts have argued.

US v Hayes didn't challenge Lautenberg on a basis of it being ex post facto. It was the fact that Hayes has been charged with battery of his wife, but at the time West Virginia law didn't specify it as "domestic" battery.

It is true that Lautenberg doesn't criminalize past behavior, but IMO, further criminalization, i.e. increasing loss of rights, constitutes a violation of ex post facto, as it imposes further penalties "after the fact" without benefit of a further trial or judicial process.

I could also argue Lautenberg as a bill of attainder: "An act of legislature finding a person guilty of treason or felony without trial."

The act (Lautenberg), de facto finds an individual guilty of a felony (due to the accompanying loss of rights) without a trial.

In light of Heller, with the 2A as an individual right, and with many states viewing the RKBA as a natural right, it is hard to see how the government can criminalize a natural right without trial. If all persons convicted of check fraud could no longer engage in commerce, would that be constitutional?

To quote Dave Hardy in the same blog post you linked:

t's hard to see how stripping a person of a constitutional right, retroactively, for a misdemeanor, can't be seen as increasing the punishment for it.

ETA: Further discussion (http://armsandthelaw.com/archives/2006/05/lautenberg_and.php)

essayons21
February 8, 2011, 03:58 PM
Definition from the Supreme Court of ex post facto

The definition of an ex post-facto law as one that (1) punishes as a crime an act previously committed, which was innocent when done, (2) makes more burdensome the punishment for a crime, after its commission, or (3) deprives one charged with a crime of any defense available according to law at the time when the act was committed

Collins V Youngblood (http://www.law.cornell.edu/supct/html/89-742.ZS.html)


You mention this, the usual rational for the courts ignoring this is that loss of 2A rights isn't burdensome, or isn't meant to be punitive, which is an established exception. Post-Heller, with enough funding, it really shouldn't be too hard to get Lautenberg overturned, or at least the misdemeanor DV section. I don't see how any judge or group of judges could find the revocation of a Constitutional and natural right not to be burdensome.

The challenges to Lautenberg as ex post facto have been to 922(g)(1) - Crime w/ imprisonment over 1 year (felony), and 922(g)(4) - mentally defective, both of which are associated with loss of rights. 922(g)(9) is the one we want.

The real reason of course is political. Nobody wants to be the one to say that wife abusers should get to keep their guns.

bkjeffrey
February 8, 2011, 04:00 PM
I believe I will let my amigo read this thread and gather his own opinion on his next course of action. He has mentioned in the past that he would like to see if he could get the charge "removed" for my lack of a better word. I dont think he is too worried about owning firearms now to spend a small fortune trying to remedy the situation.

My next question leads me to this. If in fact he is was convicted of DA/DV and he legally cannot purchase or own a firearm can he still join his friends in a day at the range and enjoy their firearms?

essayons21
February 8, 2011, 04:07 PM
No, he cannot possess a firearm, and it is a further crime for anyone to knows he is a prohibited person to give him a firearm. Sucks.

Penalty is up to 10 years in prison + fines.

Members of the military and police officers are also discharged/fired if they have a DV conviction. This is known as being Lautenberged.

Servicemembers who have a restraining order against them also cannot touch a firearm until the issue is resolved.

scrood?
February 8, 2011, 11:50 PM
Its just a matter of time before the domestic violence prohibition gets overturned. So far its stood up though but how easy in one fell swoop can a woman accuse a man of a misdemeanor, a simple crime that is easy to pay the fine, only to realize you have become a second class citizen in the process. Being stripped of your constitutional rights.

It turns a small charge into something that need to go to a full blown trial every time.

Domestic violence is a lifetime ban, unless you get a judge to restore rights, which is not possible in all states.

essayons21
February 9, 2011, 01:10 AM
I doubt that the entire amendment, or even the DV part will ever get thrown out. A victory would be if it stopped being applied to DV convictions prior to 1996. Even if a judge rules 922(g)(9) null and void, I guarantee it will be reintroduced with modified wording, and nobody is going to stand in front of the cameras of CSPAN and support gun ownership for convicted wife beaters.

What needs to happen is if we are going to treat domestic violence like a felony, make it a felony, and allow a fair trial for the accused. In some states, including my own, you are no longer entitled to a court-appointed lawyer for many misdemeanors, including domestic violence if the prosecution doesn't seek jail time for the accused. Even if you do get a court-appointed attorney, the state only pays them $120(!) for a misdemeanor trial.

scrood?
February 9, 2011, 01:21 AM
We can agree to disagree, but not all DV is wife beaters. This DV crap is part of the feminist movement where females are not only equal, but actually more than equal.

If you ever get accused of DV youll see the light. You are guilty no matter what, especially in my state.

essayons21
February 9, 2011, 01:24 AM
Any politician or judge who supports gun rights for those convicted of domestic violence will be portrayed in the media as a supporter of wife and child abusers, regardless of the truth.

That is the point I was trying to make.

I have had to deal with fellow soldiers accused of DV and those with restraining orders. The whole process sucks, and the man is nearly always guilty until proven innocent, and in the meantime his life is ruined.

BENBRU
February 9, 2011, 05:56 PM
I've sen this a couple of times... Marines being accused of DV, restraining orders, even one that got accused of stalking and had to wear an ankle bracelet. In the case of the dude who had the ankle bracelet, DV assault, stalking... and a grocery list of other stuff he got off when the the DA in Denver realized that the female that accused him was a drug abusing, serial accuser, who also accused this dude of making bombs in his basement prior to the democratic national convention.... However, no conviction, and he shoots regularly.

DV carries a disproportionately heavy price tag. Everything is DV in CO... Hitting a wall... standing in the doorway... raising your voice... I've seen cops charge people with all of it. Equal protection under the law anyone?

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