Emerson Sentenced to 2 1/2 years in prison.

[KMKeller]

http://www.ohioccw.org/modules.php?name=News&file=article&sid=927

Timothy Emerson, whose right to own a firearm was taken away without a court hearing or notification, has been sentenced to 2 1/2 years in prison.
Emerson's case went to the United States Supreme Court as a landmark Second Amendment decision. For the complete AP story archived on our website click "read more" or follow This Link to Cleveland.com/AP (link will eventually expire)



Texas man sentenced to prison for having gun while under protective order

The Associated Press 1/24/03 7:38 PM

LUBBOCK, Texas (AP) -- A man was sentenced Friday to 2½ years in prison for owning guns while under a protective order -- a limitation on gun rights that an appeals court held was constitutionally acceptable.

The U.S. Supreme Court last June declined to hear arguments that Timothy Emerson should have been allowed to keep his guns under the Second Amendment right to "keep and bear arms."

Emerson was indicted after the restraining order was issued during his divorce in 1998. He owned several rifles and a handgun at the time.

A federal judge dismissed the charges, but the 5th Circuit Court of Appeals overturned the decision in 2001, ruling that an individual's right to bear arms could be restricted in some circumstances.

In Emerson's case and a similar one the Supreme Court also rejected, the Bush administration told the Supreme Court that the Second Amendment protects an individual as well as the collective right to gun ownership. That position reversed decades-old policy on the Second Amendment.

The administration, though, did not support Emerson's appeal, saying the Second Amendment right was still subject to reasonable restrictions.

The Supreme Court's decision not to hear the case sent it back to the district court, where Emerson was convicted in October.

Emerson's attorney, David Guinn, argued at trial his client shouldn't be punished for owning guns that were legal once his divorce was completed. He plans to appeal the sentence.

Emerson had faced a maximum of five years in prison and a $250,000 fine.

 

[Don Gwinn]

Dammit.

 

[Selfdfenz]

"The administration, though, did not support Emerson's appeal, saying the Second Amendment right was still subject to reasonable restrictions"

Looks like this administration wanted some positve PR with the RKBA crowd by getting involved in round 1, then truned their back on the project to get some positive PR with the gun banning crowd.

Playing both sides very effectively....
S-

 

[meathammer]

Where in the 2nd Ammendment does it say anything about "reasonable restrictions?"

 

[Blackhawk]

NOW Emerson has a clear path up the appellate fish ladder.

The SCOTUS wasn't going to take his case when a lower court could grant him relief, and the 5CA decision remanding it ot the DC meant that he could obtain relief in the DC. He didn't. Now the DC has sentenced him, and NOW he needs to appeal to the 5CA, which may reverse his conviction on 2A grounds or others. If it doesn't, he's got a path to the SCOTUS.

The 5CA must hear his appeal because it's not interlocutory, and the SCOTUS may hear his appeal from the 5CA if he loses there, again because it's not interlocutory.

 

[PATH]

Now it becomes appeal on the basis of application of law and I believe he may have a shot. Is there an address where we can send a donation? Is there a defense fund set up for Emerson?

How can we help?

 

[rock jock]

The higher courts are not going to overturn his conviction on 2A grounds. They may do so on the premise that the RO system is flawed, but the 5th CCA has already said that "reasonable restrictions" may be applied to the 2A. We shouldn't get too excited about this case; the SCOTUS isn't going to base a 2A ruling on some poor shmuck who was accused of threatening his wife. The good that may come out of this will be that the procedures for issuing a RO will be revised. It is basically "presumed guilty" now.

BTW, Emerson did get a chance to contest the RO and he declined. So, in a sense, he did have a chance to prevent his RKBA from being suspended. I agree that the RO hearing is still not a vaild mechanism for doing this, but the point is he had a chance to make his case and he chose not to take it. A lesson there for all of us, which is, operated to the degree possible within the existing legal system until we can make substantive change, or our options are limited beyond reason.

 

[alan]

It could well be that my jaundiced view of lots of things tends to color the following observation, however respecting Emerson's conviction, and sentencing under charges heard on remand to the District Court, the following comes to mind.

The trial jury that heard the case is a disgrace to the human race. They could easily, and should have acquitted Emerson, thereby telling the federal government to "go pound salt", as I believe the trial jury did in the DeLorian case, which some might remember, and as trial juries have done, from time to time, in other cases, both federal as well as local.

Shame on that jury and it's members for the intellectual cowardice they emblazoned on the horizon.

 

[Matthew Courtney]

The 5th amendment allows a person to be deprived of liberty with due process of law. Mr Emerson had actual notice of and an opportunity to participate in a hearing regarding the order. He could also have requested that the restraining order be removed or modified to allow him to possess firearms following his divorce.

 

[Zander]

Mr Emerson had actual notice of and an opportunity to participate in a hearing regarding the order.

Are you sure? My understanding of the order is that it was granted as matter of SOP in his state.

What a huge Charlie Foxtrot this is...

 

[Porter Rockwell]

Dr Emerson Foggy Memories?

I'll do a search later this evening, I swear I recall the gun charges were the result of an earlier plea bargain stemming from Dr Emerson pointing a loaded Beretta at his wife and daughter in the "good" doctors office.

 

[Blackhawk]

I'll do a search later this evening, I swear I recall the gun charges were the result of an earlier plea bargain stemming from Dr Emerson pointing a loaded Beretta at his wife and daughter in the "good" doctors office.

And my foggy memory says the jury acquitted him of that charge. It's on TFL, AFAIK.

 

[DeltaElite]

Shame on that jury and it's members for the intellectual cowardice they emblazoned on the horizon.

Juries do more harm than good. They are fed only what a judge lets them hear.
It is seldom the "whole truth and nothing but the truth".

I would love to answer the question, "Do you swear to tell the truth and nothing but the truth?" when I am being sworn in before testifying, by saying. "If you'll let me."
I am betting I would be held in contempt and a mistrial declared, but it would be alot of fun.

 

[Selfdfenz]

TRO's soon become permanent ROs during the process of a divorce. Lets face it, the soon to be ex-wife usually is hitting the soon to be ex-husband with them and not the other way round.
Judges hand them out very freely. It's not just a matter of taking the husbands property and RKBA, its more aimed at kicking him out of the house, setting temp., child support and visitation that favors the custodial parent which is almost always the mother. TROs are part of the hit-the-road "package".

While I'm sure many women seeking POs are are justified in their particular circumstances, many seek them as a matter of course and are required to present little in the way of evidence other then their statments at the preliminary hearing. It's a much abused practice.

Many divorce attorneys ask for and get TROs as a pretty effective tactic to clobber the opposing side from the get-go. There will be nothing in this case that will change the process of issuing TROs in the US. Judges will not change their manner of doing business.

Judges setting on divorce cases have virtually unlimited power and the RKBA is just one of many "rights" he or she may suspend.
S-

 

[Wildalaska]

Shame on that jury and it's members for the intellectual cowardice they emblazoned on the horizon.

Yeah, darn jury doing somehting horrible like following the judges instructions to the best of their ability and finding the facts based on the evidence presented to them...fools!

WildherewegoagainAlaska

 

[Matthew Courtney]

The first order was a TRO issued without any opportunity to respond. The TRO automatically became permanemt when Mr. Emerson failed to respond to his hearing opportunity within the time limit set by law. Most TRO's expire very quickly (30 Days).
NO TRO CAN EVER EFFECT YOUR RKBA! But if you allow one to become permanent, you have a hard row to hoe to regain your rights. To get a restraining order at an adversarial hearing, a plantiff must establish that he/she or a child is in actual fear of death or bodily injury from the defendant. Judges can modify their orders to allow defendants their RKBA. This is not a loser situation.

 

[Selfdfenz]

Matthew

To get a restraining order at an adversarial hearing, a plantiff must establish that he/she or a child is in actual fear of death or bodily injury from the defendant. Judges can modify their orders to allow defendants their RKBA. This is not a loser situation.

"Is in actual fear" and actually being at genuine hazard (truely, factually, threatened with supporting evidence) are uniquely different things. I am in actual fear some terrorists may someday strike again. I have no evidence I can bring to court to prove when or if that will ever happen. TROs are granted on considerably less. There have been studies that even the judges that preside over these hearings believe TROs are abused and used as a tactic when in fact there is no history of threat, violence etc.

"Judges can modify their orders to allow defendants their RKBA."
The operational word here is "can". They certainly "can" but how many "will". Most Judges would rather leave it in place as there are personal downsides if he or she removes it and then something,anything happens. Restoration can be part of the final decree. What 1, 2 or 5 years down the road.

"This is not a loser situation"
I disagree. All to often it is precisely that. RKBA and many other rights being suspended defines a losing hand in my book.

As I am way OT I will stop at this, apologies to the Mods. (and to Matthew if this comes across and even remotely flamish, certainly not my intention)
S-

 

[MitchSchaft]

WildherewegoagainAlaska

WildAmerica'sAgricolaAlaska.

 

[Master Blaster]

Recently in my state of DE the police chief of Elsmere had his RKBA suspended, as part of a divorce, and his gun confiscated because his wife alleged that he pushed her and made threatening statements. There were no witnesses, there were never any previos allegations of domestic violence in their 12 year marriage.
She got a restraining order, even though the chief of police hadnever been accussed of any violent act EVER. He was suspended from his job no pay for 6 months until the order was lifted.

The judge later admitted that these ROs are granted as a mater of course if requested, because you cannot be too careful.

6 months ago we had a woman shot to death in the parking lot of the New Castle County police by her x against whom she had a restraining order. The shot gun was the only gun this jerk owned, but the police were unable to find it since it was hidden in the closet of the house were this murderer lived.

This crapolla could happen to anyone a restraining order is useless against a violent X.

 

[KMKeller]

WildAmerica'sAgricolaAlaska.

LMAO!

 

[Matthew Courtney]

This is a horrible law. Do not misunderstand me about that. Emerson is not a good case with which to attack this law because he did not even attempt to comply. Had he taken the hearing opportunity initially and later had he presented a reasonable case to the court for RKBA restoration and been refused, he would have had a much stronger case on appeal.

 

[alan]

Wildalaska wrote:

"Yeah, darn jury doing somehting horrible like following the judges instructions to the best of their ability and finding the facts based on the evidence presented to them...fools!"

We appear to harbor different opinions in this matter, and as you also noted, yours is no better than mine.

As to the judges charge, which I haven't read, have you, it seems that it is ultimately THE JURY, and nobody else, that is the arbiter of facts in any trial.

There is ample historical precedent for such a view too, in cases where if the jury finds the law unacceptable, overly harsh or otherwise not to their liking, possibly due to the fact that they might not have cared for the tactics utilized by the prosecution, remember DeLorian, via acquittal they can, in effect, declare the law null and void.

Dr. Emerson, and or his counsel might have made some errors, however I believe that, by their upholding bad law, this result obtained by their verdict, that what the trial jury did was very much worse.