Ex Post Facto and Lautenburg

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NukemJim

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A request from those more knowledgable than I in legalities.

I was explaining some of the reasons that gun ownership is forbiden to a co-worker today and when talking about the Lautenburg ammendment/provision I mentioned how if you had a DV conviction 30 years ago that you would not be allowed to own a firearm today. Another co-worker said that it was illegal since that would be an Ex Post Facto law.

I know the feds got around this "minor technical detail" but I do not know how.

Any assistance is gratefully appreciated.

Thank you

NukemJim
 
The way I understand it, if Lautenberg was "ex post facto" then it would be retroactive and the people who committed those violent acts 30 years ago could be arrested for having had a gun 25 years ago.
 
yeah, but someone who pleaded guilty of a DV charge 30 years ago did so based on a full knowledge of the consequences of his plea.

Now the .gov has added an extra penalty to the conviction, 30 years after the fact. And most importantly, the removed the mans ability to be fully aware of the consequences of his plea prior to making it.

In contract law I guess I'd compare it to 'full disclosure,' by adding an penalty 30 years later there was not full disclosure prior to the person entering into the plea agreement. And the thought that a penalty could be added to the sentence 30 years after the sentence had been served does seem unreasonable (as in, a normal person could not resonably be expected to factor that into their original decision about entering their plea).
 
Very simplisticly.

Ex post facto: punish now for act done earlier (beat spouse).

Lautenberg: punish now for act done now (possess firearm). Act done earlier is only relevant as basis for current possession limitation. No current possession, no punishment.
 
So right now the penalty for jaywalking is a $25 fine.

Based on the knowledge of that consequence a person who is ticket for jaywalking has a choice: A) contest the ticket, which takes time away from their day and if they hire an attorney costs them more than the fine itself or B) just plead guilty and pay the $25.

So in their fully informed decision, it made sense to just pay the fine. Saves them time and money.

Now imagine that 30 years goes by, it's now the year 2037.

Some dumb politician manages to write a bill and it gets passed and signed into law. The bill states that ANYBODY who has ever been convicted of JAYWALKING is to be rounded up and EXCECUTED.

Not expost facto, according to your reasoning, but it uses the exact same logic as Lautenberg. it is simply ADDING a penalty to the old conviction. A penalty that the person who pleaded guilty 30 years ago had no idea he'd eventually face (no resonable expectation).

Lautenberg; stinks on the surface, stinks at the core.
 
A request from those more knowledgable than I in legalities.

I was explaining some of the reasons that gun ownership is forbiden to a co-worker today and when talking about the Lautenburg ammendment/provision I mentioned how if you had a DV conviction 30 years ago that you would not be allowed to own a firearm today. Another co-worker said that it was illegal since that would be an Ex Post Facto law.

I know the feds got around this "minor technical detail" but I do not know how.
Click to expand...
Well the feds (in this case Congress) didn't "get around" anything. It's not "ex post facto" law in any way shape or form.

Ex post facto law, would be a law that criminalizes an act committed before the law was enacted. The Lautenberg Act does not do that, it criminalizes behavior committed after the law was enacted. If a person was convicted of a DV crime several years prior to Lautenberg, and possessed firearms PRIOR to the Lautenberg amendment, but NOT after, the person cannot be charged with a violation of 18USC922(g)(9). However, if the person possesses firearms or ammunition AFTER the Lautenberg Amendment became law they can be charged with a violation of 18USC922(g)(9).

Again, the criminal act is the possession of a firearm by a person convicted of DV crime, and the POSSESSION OF THE FIREARM must be AFTER the law was enacted.
 
Dave_pro2a... to answer your question with another question, What is punishment?

For example, if you have a drug conviction on your record you probably cannot get a job with the California Highway Patrol. Is that because the CHP is trying to punish drug offenders? Most people would say, "No."

Ineligibility to purchase a firearm is not considered a punishment. If it was, you'd have to explain why people in D.C., NYC, and other cities are being punished without convictions or or even being accused of a crime.
 
It also seems to go against the 8th amendment: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”

The ninth curcuit has ruled that the punishement must not be disproportionate to the offense (Leandro Andrade v. Attorney General of the State of California, 270 F.3d 743 and Brown v. the Attorney General of the State of California, 247 F3d 370). SCOTUS has expressed that same principle iirc.

To lose one's unalienable right for a lifetime due to a conviction of a misdemeanor assault, seems disproportionate. It almost seems like a case of “gross disproportionality."
 
Ed, a job with CHIP is nowhere near on par with the abilty to excersice one's unalienable rights. Plus I'm betting that the drug policy with CHIP is just that, a departamental policy, not a Federal law (probably not even a state law).

SCOTUS ruled in Lynce v. Mathis, (95-7452), 519 U.S. 443 (1997), that when the rules for counting 'served time credits' changed mid-sentence that it invalidated the plea agreement of Lynce.

In the Lynce case, the defendant pled guilty to a charge. He did so, in part, because he was told he could earn good conduct credit as he served his time, thus earning early release. After he earned some credit the policy changed in such a way that his chance of earning more good conduct credit was greatly diminished, and thus his chance of an early release was also greatly diminished. The court judged that the policy change was an example of ex post facto law, and thus the defendant’s petition was granted.

Some of the criteria that the court used in reaching their decision can be reasonably applied to the Lautenburg issue.

Some people (similar to Lynce) entered plea agreements in DV cases only to find the conditions of the agreements changed with the passage of Lautenburg. They were effectively changed because a new penalty was added, denial of one's RKBA. That is referred to as “secondary retroactivity,” because the new legislation is directly concerned with 'past circumstances and behavior.'

There's another important legal principle that comes into play: “lack of fair notice.” Adding a new consequence to having pled guilty (after the fact) means the person who pled guilty did not get fair notice of all the potential consequences prior to pleading guilty.

When new legislation is enacted, that was primarily concerned with events which occured before the laws enactment it is most likely going to run into problems with both the principle of secondary retroactivity and lack of fair notice.

If a person pleads guilty of DV 30 years ago, based on their understanding of ALL the consequences (i.e. W, X and Y). And then the .gov comes along 30 years later and adds a BRAND NEW consequence (i.e. Z), then the person who plead guilty COULD NOT have done it with a full and proper understanding of the consequences.

This is not rocket science.

Would YOU feel fine if you signed a contract to buy a home, and then 10 years later the seller came back and added an item Z to the contract -- and you were forced to adhere to the brand new stipulation? If you can actually agree that such behavior is just and moral, then I have many things to sell you (a car, stock, property, etc).
 
I posted this in the other Lautenburg thread but it is relevent here too:
another scary thing is what is considered a "DV" today. It's not just beating your wife to a pulp. I grew up with AWESOME parents. Mom and Dad were high school sweethearts, the ONLY ones each other has ever been with. They are still married and totaly in love with each other. I grew up in the church. We blessed our meal together and ate supper at the family table every night. They never missed a single one of my high school football games. I HAD A GREAT "LEAVE IT TO BEAVER CHILDHOOD". Those were the best years of my life. My dad is my hero, and I can only hope and pray that I can be as good of a father to my kids and husband to my wife as he was and still is. That being said I got my share of whoopins and back-hands as a kid, and looking back I deserved every damn one of them.
nowdays if a guy roughs his boy up a bit for bringing dope into the house, or, joyriding in the family car when he's 14 friggin years old(either one of these would have won me a nice set of dentures)or goes "behind the woodshed" for back-talking Momma when Dad gets home, IT"S FLIPPIN CHILD ABUSE OR DV!!!, and Dad gets locked up and loses his guns for being a parent, and giving the kid a little attitude adjustment(even if it happened 30 years ago).
Now, Said kid that didn't get a whoopin because Dad didn't want to go to jail, goes nucking futz and hurts somebody. Society says blame the gun (an inanimate object) or blame the parents who have been legislated out of any real control of there own home!!! For the love of Christmas what is going on?


I'm only 29. This wasn't that long ago!!!!

Josh
Click to expand...
 
I'm simply flattened by some of these Lautenberg threads...

When I got divorced (almost 20 years ago, now) my ex played the "abuse card", as she had been told (repeatedly) by her lawyer, that this would "help" her in getting a favorable divorce settlement. Of course, since it was all lies (and I fought it in court, to the tune of $5000), it didn't work out quite so well for her.

But, nowadays, if you're accused of abuse its strictly "guilty until proven innocent (really, it was then, too)". If either party (although its usually the woman--not to be sexist) claims abuse, the other party has to disprove the allegations, which is pretty hard, since its usually a he-said, she-said situation.

P.S. Here's an odd situation, that's recently occurred. A good friend, of a good friend, ahs been having a problems with her live-in boyfriend. They've lived togther in HER house for the past few months. Recently, he's become more violent and abusive, threatening her, her daughter and even their dogs. She got an RO against him, BUT SHE had to move out of the house instead of him. They told her it would take a coupla weeks before they could forcible remove him from the house. OK, so what sense does THAT make!
 
I worked in Federal Law Enforcement until 3 years ago. I fired 2 of my 74 officers when this particular law was enacted. Both of them had pleaded guilty to what had been misdemeanor charges at the time, on the advice of their lawyers. Both claimed that the charges were part of a divorce "blitz" (a very, very common tactic) and they had only plead guilty because the small fine was less than the money they would have spent defending themselves. Had they known that 10 years later this would cost them their careers (20 years plus in both cases) they would have fought to the end. Frankly, having known them and watched them perform in violent situations with excellent self restraint and maturity, I believe them.

Over the next 4 years I was forced to fire 4 more officers for the same reasons. In every case, I was forced to suspend them immediately, far prior to the trial. In 3 of the cases, I was forced to do so because of allegations made while the woman was applying for a protection order. This is significant because when applying for a protection order the "defendant" is not informed of any accusations made against him, is not invited to attend, and is offered no opportunity to defend themselves. Regardless of the law, the policy I was required to enforce stated that "Any history of Domestic Violence will result in immediate termination." and history was understood to include protection orders taken out against an officer when those orders included statements about previous incidents of Domestic Violence. All that was required was for the woman to ask the judge to include that statement in their wording, and most judges did so.

Post Facto indeed, Non Facto in many cases. I will also point out that all four of the recent cases a grievance was filed by the Union, but all four were lost by the Union in arbitration.

The one case was especially infuriating. The Judge's statement included the phrase "in order to prevent a future violent domestic incident". Because the Protection order itself was now "past history" and because the Judge's order included a statement on Domestic Violence, the powers that be in Region 6 decided it qualified as a history of Domestic Violence, even though no actual incident of DV had even been alleged to have occured. If you think the law is bad, wait until the bureaucrats get ahold of it. By the time they are done "erring on the side of caution" even the law looks reasonable by comparison.

One of the many reasons I no longer work there.
 
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oh wait, "but it's the law." So everyone should just **** and choke it down.

Blindly believe the part line, SCOTUS, Democracy, and Billary Clinton, et al.

After all, YOU must have wanted this law since it NOW exists.

It's fair, just, moral, legal, and constitutional, trust us it is... because we said so.

Since we control education, just believe what your teacher says, really it's for the best. Don't become a critical thinker with indiviual initiative or autonomy.

[/disgusted sarcasm off]
 
Lautenberg is an abomination.

F4GIB's characterization of Lautenberg as ex post facto is, however correct.

I forget the case (Emerson?) but there was a scotus finding that application of the firearms disability was "not additional punishment".


dave_pro2a's comment about "lack of fair notice" also seems to be spot on. As other posters have noted, I don't recall reading anything int the (Emerson?) decision that would discriminate between the application of Lautenberg, or any such future law that for example, found that people who have had parking tickets aren't trustworthy, and it is therefore in the public interest to disarm them as well.
 
dave_2a, I think that's an excellent explanation for why it's equivalent to an ex post facto law, but...

Some dumb politician manages to write a bill and it gets passed and signed into law. The bill states that ANYBODY who has ever been convicted of JAYWALKING is to be rounded up and EXCECUTED.
Click to expand...
I think the counterargument is that rights disabilities aren't technically punishment. Executing someone or changing the rules so they'll stay in jail longer is clearly a change in punishment. Prohibiting people from owning guns may or may not be. Since it seems to be legal for various localities to ban certain types of guns outright, it's harder to argue that banning convicted criminals from owning guns is punishment. Some enterprising socialist government lawyer might even argue that the law does convicts a favor.

If a ban on gun ownership is punishment, the folks in Chi-town and D.C. have a slam-dunk procedural due process lawsuit, right?

Are firearms/weapons rights the only area in which convicted criminals have lost legal ground since, say, 1940?
 
quote Tyme: Executing someone or changing the rules so they'll stay in jail longer is clearly a change in punishment.

Already happened, passed Constitutional tests thus far. imho part of a goal to be able to do whatever they want with people who've previously been convicted of a crime (regardless of the crime, or how long ago it was).

http://cantwell.senate.gov/news/record.cfm?id=259152&&days=30&
"And back in 1990, we were the first state to enact a sexual predator involuntary commitment law."

http://www.wsipp.wa.gov/rptfiles/05-03-1101.pdf
"In 1990, the Washington State Legislature passed
a new form of involuntary commitment for sex
offenders identified as “sexually violent predators”
(SVPs). This law permits the state to retain
custody of individuals found by a judge or jury to
pose risks for reoffending."

http://www.annalsnyas.org/cgi/content/abstract/989/1/489
"Fifteen states and the District of Columbia have laws for the special civil commitment of convicted sexual offenders who are about to be released from penal confinement and do not meet criteria for ordinary psychiatric civil commitment. As of summer 2002, nearly 2500 sexual offenders were hospitalized pursuant to one of these laws. An American Psychiatric Association task force declared that "sexual predator commitment laws establish a non-medical definition of what purports to be a clinical condition without regard for scientific and clinical knowledge," and thus "distort the traditional meaning of civil commitment, misallocate psychiatric facilities and resources, and constitute an abuse of psychiatry."

Even the people who create physological disorders (who, define, catagorize, diagnose, etc) think that the .gov is wrong about this.

I do not 'advocate' for sexual predators, but to preserve OUR liberty it might be wise to try and preserve EVERYONE's liberty (access to due process, to just and fair treatment, etc).

In regards to the D.C. and CA arguement. Even in DC a person free citizen is theoretically able to own a hunting rifle iirc. No jurisdiction, that I'm aware of, has an absolute ban on all firearms for all free citizens.

Besides, even if one did, it would be going against the 2A, against everyone's unalienable right. Either the RKBA is applicable to every free citizen, and is unalienable, or it isn't. If it is those things, then Lautenberg is wrong.

And even if SCOTUS rules that Lautenberg is legal, I think to any resonable person who thinks about the issue that it would seem a travesty of justice. Any 'normal' right thinker (NOT a lawyer or judge) would certinaly see how it involves a lack of fair notice.
 
So, would it make any difference if it was cars, refridgerators, electricity, propane or natuaral gas that DV was now a counterindication for?

Is it really legal to select a subgroup of the population and decide, retroactively, they, and only they can't have certain things?

What if we decided that anyone who has ever held public office, from now on and forever more can't vote? Or maybe they can't ever own shares in a public corporation.
 
Only One Answer

So, would it make any difference if it was cars, refridgerators, electricity, propane or natuaral gas that DV was now a counterindication for?

Is it really legal to select a subgroup of the population and decide, retroactively, they, and only they can't have certain things?
Click to expand...

The simple answer, and the only just or fair answer, is to keep people who can't be trusted with arms locked up in the case of the criminal, or institutionalized or under guardianship for the mentally unstable, and under guardianship for the young.

It is that simple. Do that, and there is no argument for background checks, or need for a Federal or state license to sell guns.(Consider the Second Amendment notwithstanding for the sake of discussion.)

Woody

God gave us guns for a reason. It wasn't so we could lament the lack of them when we need them. B.E. Wood
 
"The simple answer, and the only just or fair answer, is to keep people who can't be trusted with arms locked up in the case of the criminal, or institutionalized or under guardianship for the mentally unstable, and under guardianship for the young."

There is no way to accurately predict human behavior. Look at the stats. for any large police force. Even with all the screening police go through some of them turn into violent felons. So there is no simple answer, even giving guns to cops involves risk and a cost benefit analysis that is far from simple.
 
Ex post facto doesn't apply in this situation because the firearm prohibition isn't, technically, considered an extension of the punishment of the original crime. Rather, the crime, or absence of it, it a requirement for gun possession. Government considers firearm ownership to be a privilege which it can grant, or not, based on whatever requirements are in the current law.

K
 
Quote: "Government considers firearm ownership to be a privilege which it can grant, or not"

Yes, this issue makes that abundantly clear.

If they considered the RKBA a natural right, as outlined in the BOR, then they wouldn't have a leg to stand on with Lautenburg.
 
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