http://www.calguns.net/calgunforum/showthread.php?p=2835643#post2835643
I have done quite a bit of research on this subject and can not get a concise answer on what is "similarly situated" as per the lautenberg amendment. This site lists some case law and it seems that "similarly situated" is not at all clearly defined. http://law.onecle.com/search.html?cx...ntrol+act#1400 According to the BATFE brochure "simply stating that the persons are boyfriend/girlfriend does not establish the relationship necessary for the MCDV prohibitor to apply". Page 2 top center paragraph http://www.atf.gov/firearms/domestic...v_brochure.pdf If the relationships spelled out in Lautenberg are not met and If boyfriend/girlfriend does not establish the relationship then what exactly does? Dating for a defined time length? If they were in love? If they were just having a casual physical relationship? Every other law I have ever looked up is so detailed it is almost comical and many people make jokes about them. The victim and defendant were not domiciled together and had no shared expenses.This letter is kinda old from 2001 but seems to say that they must be domiciled or have been domiciled in an intimate relationship to be considered similarly situated. http://www.peaceathomeshelter.org/DV...lautenberg.pdf
On edit. This site references the most on what is "similary situated" I could find.http://findarticles.com/p/articles/m...g=content;col1
Cal DOJ does a PFEC, personal firearms eligibility check and is listed as a "point of contact state" and they check federal and state prohibitions. The problem is that the first time he did that check they said he was ineligible to possess or purchase firearms under the federal lautenberg amendment. He called the Cal DOJ requesting clarification and was told that he pleaded to a minor crime involving his "fiance". After he told the women from Cal DOJ he was never engaged she back peddled and told him to call the Federal Nics office. They were no help and he filed online also and never received any response.
After all this he filled out the same PFEC and this time it comes back saying that he is eligible to both possess and purchase firearms. He still has not bought any firearms as he does not want to risk a federal prosecution due to these conflicting results from the people who are supposed to know the law.
Adding to the confusion he was in the Army Reserve and some people were removed from his unit for failing the Lautenberg Amendment checks but he was not. The original charge was California penal code 243(e) battery against a person involved in a dating or engagement relationship but his attorney pleaded him to California penal code 242 which is a non DV battery. That seemed to be somewhat settled until US vs Hayes as the plea was to a non DV charge.
The BATFE says they look at both court and non court documents, IE police reports to determine the relationship. He has never seen the police report and even filed a Public Records Act Request for him to see a redacted copy and was told "in order preserve investigative techniques" ( for a 12 year old misdemeanor case) he would not be allowed to see a copy. How can he know what the police wrote in the report that is potentially blocking his Constitutional rights and could possibly open him to a federal felony?
There were no injuries or striking (according to him and the "victim") in the case so the circuit split on if "violence" is required under lautenberg http://papers.ssrn.com/sol3/papers.c...ct_id=1347226# further complicates his case as in California if someone calls the police in an apparent DV case someone is going to jail and the Prosecutor will file charges even against the will of the "victim". In California mistomeaner assault does not have to even involve any physical contact. In argument the police may have wrote that he touched her but they both say that he did not strike or harm her hence the Battery charge. The victim still tells him years later that she did not call the police and would not cooperate with the DA even after being threatened.(they are no longer together but do not hate each other)
The Lautenberg Amendment has effected so many people and I can not believe that it is still valid. He is in the process of trying to get his plea withdrawn (not likely) due to the evidence he saved of his attorney telling him after the fact how his plea would destroy his military career (He was in the Army Reserve at the time) and effect his employment as he needs to get very detailed background checks for Govt agencies and the 1934 SEC act. He has the docket showing he was never in court and he has the TAHL/plea form that she never signed where it states that she explained the charges and consequences. He still possesses her original signed letters dated after she entered his plea explaining that "it occurred to me that you will banned from possessing a firearm". He was 19 at the time and very naive as she rushed him through the process. He also has a certified copy of the docket showing he was never present in court and she appeared on his behalf.
This guy got screwed really bad on this whole thing. I saw a lot of this as I was in the ARMY Reserve when this crap law was passed and we had to discharge some good soldiers for a fine they paid years before with no time served.
How can he know 100% that he will not be brought into a Federal Grand Jury investigation and charged federally with out it first happening? There is no federal PFEC.
I know there have been very few challenges to this law that have made any headway and never went all the way besides Hayes who was a terrible plaintiff but with the right defendant and the right counsel could this go anywhere?
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I have done quite a bit of research on this subject and can not get a concise answer on what is "similarly situated" as per the lautenberg amendment. This site lists some case law and it seems that "similarly situated" is not at all clearly defined. http://law.onecle.com/search.html?cx...ntrol+act#1400 According to the BATFE brochure "simply stating that the persons are boyfriend/girlfriend does not establish the relationship necessary for the MCDV prohibitor to apply". Page 2 top center paragraph http://www.atf.gov/firearms/domestic...v_brochure.pdf If the relationships spelled out in Lautenberg are not met and If boyfriend/girlfriend does not establish the relationship then what exactly does? Dating for a defined time length? If they were in love? If they were just having a casual physical relationship? Every other law I have ever looked up is so detailed it is almost comical and many people make jokes about them. The victim and defendant were not domiciled together and had no shared expenses.This letter is kinda old from 2001 but seems to say that they must be domiciled or have been domiciled in an intimate relationship to be considered similarly situated. http://www.peaceathomeshelter.org/DV...lautenberg.pdf
On edit. This site references the most on what is "similary situated" I could find.http://findarticles.com/p/articles/m...g=content;col1
Cal DOJ does a PFEC, personal firearms eligibility check and is listed as a "point of contact state" and they check federal and state prohibitions. The problem is that the first time he did that check they said he was ineligible to possess or purchase firearms under the federal lautenberg amendment. He called the Cal DOJ requesting clarification and was told that he pleaded to a minor crime involving his "fiance". After he told the women from Cal DOJ he was never engaged she back peddled and told him to call the Federal Nics office. They were no help and he filed online also and never received any response.
After all this he filled out the same PFEC and this time it comes back saying that he is eligible to both possess and purchase firearms. He still has not bought any firearms as he does not want to risk a federal prosecution due to these conflicting results from the people who are supposed to know the law.
Adding to the confusion he was in the Army Reserve and some people were removed from his unit for failing the Lautenberg Amendment checks but he was not. The original charge was California penal code 243(e) battery against a person involved in a dating or engagement relationship but his attorney pleaded him to California penal code 242 which is a non DV battery. That seemed to be somewhat settled until US vs Hayes as the plea was to a non DV charge.
The BATFE says they look at both court and non court documents, IE police reports to determine the relationship. He has never seen the police report and even filed a Public Records Act Request for him to see a redacted copy and was told "in order preserve investigative techniques" ( for a 12 year old misdemeanor case) he would not be allowed to see a copy. How can he know what the police wrote in the report that is potentially blocking his Constitutional rights and could possibly open him to a federal felony?
There were no injuries or striking (according to him and the "victim") in the case so the circuit split on if "violence" is required under lautenberg http://papers.ssrn.com/sol3/papers.c...ct_id=1347226# further complicates his case as in California if someone calls the police in an apparent DV case someone is going to jail and the Prosecutor will file charges even against the will of the "victim". In California mistomeaner assault does not have to even involve any physical contact. In argument the police may have wrote that he touched her but they both say that he did not strike or harm her hence the Battery charge. The victim still tells him years later that she did not call the police and would not cooperate with the DA even after being threatened.(they are no longer together but do not hate each other)
The Lautenberg Amendment has effected so many people and I can not believe that it is still valid. He is in the process of trying to get his plea withdrawn (not likely) due to the evidence he saved of his attorney telling him after the fact how his plea would destroy his military career (He was in the Army Reserve at the time) and effect his employment as he needs to get very detailed background checks for Govt agencies and the 1934 SEC act. He has the docket showing he was never in court and he has the TAHL/plea form that she never signed where it states that she explained the charges and consequences. He still possesses her original signed letters dated after she entered his plea explaining that "it occurred to me that you will banned from possessing a firearm". He was 19 at the time and very naive as she rushed him through the process. He also has a certified copy of the docket showing he was never present in court and she appeared on his behalf.
This guy got screwed really bad on this whole thing. I saw a lot of this as I was in the ARMY Reserve when this crap law was passed and we had to discharge some good soldiers for a fine they paid years before with no time served.
How can he know 100% that he will not be brought into a Federal Grand Jury investigation and charged federally with out it first happening? There is no federal PFEC.
I know there have been very few challenges to this law that have made any headway and never went all the way besides Hayes who was a terrible plaintiff but with the right defendant and the right counsel could this go anywhere?
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