Holder and the Feds sued Over MCDV Lifetime Ban; Litigated By Donald Kilmer
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You are correct about the one year. You are also a little narrow minded, if you look at the conversation preceding my post it was largely centered upon "battery" as the DV. I was merely pointing out that you don't need to actually COMMIT the violence to be convicted of a MS crime of DV. Your assumption that I don't know the difference between "assault" and "battery" is incorrect. I was merely using common terminology as it fit the conversation. Thanks anyhow.
I was asked to post some supporting documentation showing that ANY touching of clothing or the person is battery. This is mainly based on California jury instruction but it is similar in many places and SCOTUS talks about it in reference to 922.
While a second amendment argument was not raised, and the case concerned the 15 year ACCA not lautenberg, the issue of "unwanted touching" and misdemeanor lauterberg did come up in this case.http://www.scotuswiki.com/index.php?...Johnson_v._U.S.
The US attorney, bought up lautenberg, to the chagrin of Scalia, and argued that if they invalidated the ACCA (felony) for the slightest touching, with no injury, misdemeanor lautenberg would be comprimized.
Scalia wrote the opinion and said they were not addressing lautenberg as that was a misdemeanor and this was a felony. Johnson's case was originally a misdemeanor but under Florida law was automatically elevated to a felony due to a prior misdemeanor conviction for battery.
Johnson won his case and his conviction was reversed in a 7-2 ruling. Alito and Thomas dissented and explicitly stated that this would harm the use of lautenberg, for the same no injury touching. So the US attorney had and augment somewhat backfire on the definition of "use of force", the majority did not address the misdemeanor question, and the dissenters said this ruling would effect lautenberg on "use of force" issues. Hmmmmmm. Second amendment was not raised. What will this mean to a lautenberg challenge?
From SCOTUS Blog;
"The majority and the dissent disputed the implications of the Court’s decision. Justice Alito warned that the decision will remove statutes involving both the use of violent force and offensive touching from the scope of the ACCA; moreover, he cautioned, the decision renders the removal of aliens convicted of domestic violence more difficult insofar as the relevant statute, 8 U.S.C. § 1227(a)(2)(E), defines “domestic violence” to include the use or attempted use of “physical force.” The majority downplayed Justice Alito’s concerns as “exaggerate[ing] the practical effect of our decision,” and it pointed to the government’s success in obtaining ACCA convictions under the modified categorical approach, which allows a court to determine the basis for conviction by consulting the trial record. Though absence or incompleteness of records may make a modified categorical approach less plausible in some cases, the majority explained, it does not follow that Congress meant to avoid that “common enough consequence” by “import[ing] a term of art [into the ACCA] that is a comical misfit with the defined term ‘violent felony.’” "
Here is an interesting part. California misdemeanor battery 242, and domestic battery, 243e, does state; "A battery is any willful and unlawful use of force or violence upon the person of another", but California jury instructions state that ANY touching weather it be on the person, clothing, causes pain or injury or not, was intended to cause pain or not, and no matter how slight, constitutes a battery. Back to the "force" definition. A few federal courts have ruled that states with misdemeanor battery statutes such as Florida, Hawaii, and I think Wyoming, don't meet lautenberg because they also include offensive touching. What about California jury instructions?
Examples;
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Penal Code 243(e)(1)). ("The slightest touching can be enough to commit a [domestic] battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind."
People v. Rocha, (1971) 3 Cal.3d 893, 900 ("‘It has long been established, both in tort and criminal law, that the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'"
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code pc 243(e)(1)). ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code 243(e)(1)). ("[The touching can be done indirectly by causing an object [or someone else] to touch the other person.
I can't answer your question, sorry. This may be of interest. 7th circuit ruled that intermediate scrutiny is to be used in lautenberg cases. and reversed and remanded a conviction. http://volokh.com/2010/02/22/seventh...koien-en-banc/
I also know of someone who challenged this case in a somewhat back door way. The judge did say that the man was correct and his conviction should be reversed, but it would be too important to many other second amendment cases and it was dissmissed with out prejudice. He is looking to go it again.
It's amazing to me that many hate wife beaters ( I do too) but they are legally defined as wife/ husband beaters and child abusers.
While a second amendment argument was not raised, and the case concerned the 15 year ACCA not lautenberg, the issue of "unwanted touching" and misdemeanor lauterberg did come up in this case.http://www.scotuswiki.com/index.php?...Johnson_v._U.S.
The US attorney, bought up lautenberg, to the chagrin of Scalia, and argued that if they invalidated the ACCA (felony) for the slightest touching, with no injury, misdemeanor lautenberg would be comprimized.
Scalia wrote the opinion and said they were not addressing lautenberg as that was a misdemeanor and this was a felony. Johnson's case was originally a misdemeanor but under Florida law was automatically elevated to a felony due to a prior misdemeanor conviction for battery.
Johnson won his case and his conviction was reversed in a 7-2 ruling. Alito and Thomas dissented and explicitly stated that this would harm the use of lautenberg, for the same no injury touching. So the US attorney had and augment somewhat backfire on the definition of "use of force", the majority did not address the misdemeanor question, and the dissenters said this ruling would effect lautenberg on "use of force" issues. Hmmmmmm. Second amendment was not raised. What will this mean to a lautenberg challenge?
From SCOTUS Blog;
"The majority and the dissent disputed the implications of the Court’s decision. Justice Alito warned that the decision will remove statutes involving both the use of violent force and offensive touching from the scope of the ACCA; moreover, he cautioned, the decision renders the removal of aliens convicted of domestic violence more difficult insofar as the relevant statute, 8 U.S.C. § 1227(a)(2)(E), defines “domestic violence” to include the use or attempted use of “physical force.” The majority downplayed Justice Alito’s concerns as “exaggerate[ing] the practical effect of our decision,” and it pointed to the government’s success in obtaining ACCA convictions under the modified categorical approach, which allows a court to determine the basis for conviction by consulting the trial record. Though absence or incompleteness of records may make a modified categorical approach less plausible in some cases, the majority explained, it does not follow that Congress meant to avoid that “common enough consequence” by “import[ing] a term of art [into the ACCA] that is a comical misfit with the defined term ‘violent felony.’” "
Here is an interesting part. California misdemeanor battery 242, and domestic battery, 243e, does state; "A battery is any willful and unlawful use of force or violence upon the person of another", but California jury instructions state that ANY touching weather it be on the person, clothing, causes pain or injury or not, was intended to cause pain or not, and no matter how slight, constitutes a battery. Back to the "force" definition. A few federal courts have ruled that states with misdemeanor battery statutes such as Florida, Hawaii, and I think Wyoming, don't meet lautenberg because they also include offensive touching. What about California jury instructions?
Examples;
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Penal Code 243(e)(1)). ("The slightest touching can be enough to commit a [domestic] battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind."
People v. Rocha, (1971) 3 Cal.3d 893, 900 ("‘It has long been established, both in tort and criminal law, that the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'"
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code pc 243(e)(1)). ("Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage."
Judicial Council Of California Criminal Jury Instruction 841- Simple Battery: Against Spouse, Cohabitant, or Fellow Parent (Domestic battery, Penal Code 243(e)(1)). ("[The touching can be done indirectly by causing an object [or someone else] to touch the other person.
I can't answer your question, sorry. This may be of interest. 7th circuit ruled that intermediate scrutiny is to be used in lautenberg cases. and reversed and remanded a conviction. http://volokh.com/2010/02/22/seventh...koien-en-banc/
I also know of someone who challenged this case in a somewhat back door way. The judge did say that the man was correct and his conviction should be reversed, but it would be too important to many other second amendment cases and it was dissmissed with out prejudice. He is looking to go it again.
It's amazing to me that many hate wife beaters ( I do too) but they are legally defined as wife/ husband beaters and child abusers.
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The distillation is that it takes literally nothing to be convicted of a domestiv violence offense, since their doesn't need to be any physical evidence of a battery or assault and most of these cases don't involve an eyewitness other than the two people involved.
Typical scenario -
Guy dates girl, and, slowly, he finds she is disingenuous, manipulative, dishonest, etc...and, he wishes to bow out gracefuly.
She, at his place, being given the news, grabs some 'sharp' object, dull kitchen knife or whatever, and, starts slashing at herself ( in a way which does no harm, but appears insane and suicidal ) while screaming. Or she just goes 'nuts' with screaming, smashing things, and so on, big tantrum, hystrerical acting-out.
He grabs her wrists or arms, tries to calm her down, etc. she struggles, maybe even threatening to kill herself, burn his house down, whatever.
She then calls cops, shows them her slightly bruised wrists, and, the guy goes to jail, and, is tried and convicted of DV.
A woman can set this up SO easily, as a way of asserting a 'make him loose' game he can not evade unless VERY savvy and experienced in the ruses and wiles, or even then, he might not see it coming or be able to avoid it, and, he is screwed.
This illegal 'law' has been enormously violating of innocent people, in the tacit collusion between disingenuous women, or how they may be relied on, and, courts and a corrupt judicial system who wish for ever more fodder.
Nor is there any basis whatever in any sort of respctibe order of reason, to presume that a quarrel or contention between some sort of 'domestic' acquaintences, should result in suspension of Civil Rights for whoever was least adroit at the game of lieing to authorities about the event in order to harm the other ( as a continuation OF the quarrel or contention on merely a new gameboard).
Whoever was behind this law, and, whoever supported it, I am confident, tacitly, knew what would come about with it's actual 'use' in practice.
Or even if so naive or stupid, that they did not know, the facile impetuous and irrational hysterical episodes of ledgislators, is far from even a pretense of 'Representaional' Government - it represents only an abstraction of the drama of mental illness endemic in those who succeed in politics, and, their enablement then to inflict it upon those who must answer to their 'laws'.
Guy dates girl, and, slowly, he finds she is disingenuous, manipulative, dishonest, etc...and, he wishes to bow out gracefuly.
She, at his place, being given the news, grabs some 'sharp' object, dull kitchen knife or whatever, and, starts slashing at herself ( in a way which does no harm, but appears insane and suicidal ) while screaming. Or she just goes 'nuts' with screaming, smashing things, and so on, big tantrum, hystrerical acting-out.
He grabs her wrists or arms, tries to calm her down, etc. she struggles, maybe even threatening to kill herself, burn his house down, whatever.
She then calls cops, shows them her slightly bruised wrists, and, the guy goes to jail, and, is tried and convicted of DV.
A woman can set this up SO easily, as a way of asserting a 'make him loose' game he can not evade unless VERY savvy and experienced in the ruses and wiles, or even then, he might not see it coming or be able to avoid it, and, he is screwed.
This illegal 'law' has been enormously violating of innocent people, in the tacit collusion between disingenuous women, or how they may be relied on, and, courts and a corrupt judicial system who wish for ever more fodder.
Nor is there any basis whatever in any sort of respctibe order of reason, to presume that a quarrel or contention between some sort of 'domestic' acquaintences, should result in suspension of Civil Rights for whoever was least adroit at the game of lieing to authorities about the event in order to harm the other ( as a continuation OF the quarrel or contention on merely a new gameboard).
Whoever was behind this law, and, whoever supported it, I am confident, tacitly, knew what would come about with it's actual 'use' in practice.
Or even if so naive or stupid, that they did not know, the facile impetuous and irrational hysterical episodes of ledgislators, is far from even a pretense of 'Representaional' Government - it represents only an abstraction of the drama of mental illness endemic in those who succeed in politics, and, their enablement then to inflict it upon those who must answer to their 'laws'.
TexasBill
Member
Okay, we all agree the domestic violence laws are grossly unfair. We're also pretty sure the courts aren't going to provide any relief. This means the law must be changed.
You do realize that any politician who tries to modify the laws, even as little as requiring some verifiable proof of injury or an abusive situation, is going to get crucified by women's groups, the media, and who knows who all else? We're going to be treated to a non-stop blitz of photos of women who really were the victims of felonious battery, attempted murder, etc., completely glossing over the fact those women would still be protected (as much as they ever are) by existing laws against battery.
It's just like someone accused of child abuse. Yes, I am all for real child molesters to get the punishment they richly deserve, but there have been cases of false accusations based on "memories" that were suggested or implanted by a therapist or attorney.
It's like we have forgotten that, in our system, the burden of proof is supposed to be on the prosecution, not the defense. But no one dares make the slightest peep against the current status quo.
You do realize that any politician who tries to modify the laws, even as little as requiring some verifiable proof of injury or an abusive situation, is going to get crucified by women's groups, the media, and who knows who all else? We're going to be treated to a non-stop blitz of photos of women who really were the victims of felonious battery, attempted murder, etc., completely glossing over the fact those women would still be protected (as much as they ever are) by existing laws against battery.
It's just like someone accused of child abuse. Yes, I am all for real child molesters to get the punishment they richly deserve, but there have been cases of false accusations based on "memories" that were suggested or implanted by a therapist or attorney.
It's like we have forgotten that, in our system, the burden of proof is supposed to be on the prosecution, not the defense. But no one dares make the slightest peep against the current status quo.
TexasBill
Member
By the way, it should be remembered that the Supreme Court decision saying the police have no duty to protect was based on a domestic violence situation.
Does this mean it will sunset in 2011, unless reapproved?
VAWA will be up for reauthorization in 2011.
http://en.wikipedia.org/wiki/Violence_Against_Women_Act
VAWA will be up for reauthorization in 2011.
http://en.wikipedia.org/wiki/Violence_Against_Women_Act
Bubbles
Member
VAWA <> Lautenberg. Two totally different laws.
Mr. Kilmer filed a notice of supplemental authority. http://ia600300.us.archive.org/35/it...15824.23.0.pdf
Interesting.
Interesting.
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leadcounsel
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Lautenberg is so blatantly in violation of the 2A and the 4th, 5th, 6th and 8th. Heck maybe even the 1st.
Things you say (the 1st) can strip you of your gun rights (2nd) without a fair trial (preemptive - in violation of the 4th) and you're not guaranteed representation at that civilian trial (6th). Stripping someone of their Constitutional rights for an argument with a girlfriend is cruel and unusual punishment (8th).
Things you say (the 1st) can strip you of your gun rights (2nd) without a fair trial (preemptive - in violation of the 4th) and you're not guaranteed representation at that civilian trial (6th). Stripping someone of their Constitutional rights for an argument with a girlfriend is cruel and unusual punishment (8th).
Lautenberg is also being applied in violation of the 10th. It says right in the law that if ones civil rights are restored by the state, the federal lifetime gun ban is lifted. The Feds are not doing this. California, Wyoming and other states are having this problem. This case is also a states rights issue.
AlexanderA
Member
It's even more basic that that -- it's a violation of the "ex post facto law" clause (Article I, section 9). Years ago, before Lautenberg, guys would routinely plead guilty to trumped-up domestic violence misdemeanors, thinking that this would put a messy situation behind them. Little did they imagine that this would one day result in a lifetime ban on gun possession, and with that, often, a loss of their livelihood. If they had, they would have fought the charges, and often would have been cleared. Retroactive increase in the penalty for a crime is one of the definitions of an ex post facto law.
The political problem is that nobody has sympathy for so-called "wife beaters." (Lautenberg knew that, which is why he's such a dishonest worm.) The remedy, therefore, has to come through the courts, where hopefully some dispassionate sanity can prevail.
razorback2003
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A misdemeanor conviction should not take rights away. That is what felonies are for.
What is even crazier is how someone can make a complaint on someone with no proof and get a protection order and your rights are taken away temporarily.
What is even crazier is how someone can make a complaint on someone with no proof and get a protection order and your rights are taken away temporarily.
usmarine0352_2005
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Wow, you'd think differently if it was you.
Our state ties our hands when it comes to domestic violence and it is not right. There are certainly people who've been arrested that I would not have arrested if I didn't have too.
I believe everyone deserves a fair-shake and you can't get that with shall-arrest laws.
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Wow, you'd think differently if it was you.
Our state ties our hands when it comes to domestic violence and it is not right. There are certainly people who've been arrested that I would not have arrested if I didn't have too.
I believe everyone deserves a fair-shake and you can't get that with shall-arrest laws.
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razorback2003
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I was under the assumption that a domestic violence conviction like other misdemeanors could be expunged and the problem would be taken care of. Even some felonies courts will sometimes expunge. So why is this being treated different regarding firearms rights by the feds?
If a person has this misdemeanor conviction expunged, isn't that person then legal in buying/possessing a firearm? Expungement is the courts' process I thought in getting rid of convictions.
I reread the law and it seems to say that if you have had the conviction expunged that you have not been convicted of domestic violence. Do the feds not consider this California 10 year process expungement or conviction set aside? In Tennessee it is common for after a certain period of time courts to do expungements and wipe the record clear.
If a person has this misdemeanor conviction expunged, isn't that person then legal in buying/possessing a firearm? Expungement is the courts' process I thought in getting rid of convictions.
I reread the law and it seems to say that if you have had the conviction expunged that you have not been convicted of domestic violence. Do the feds not consider this California 10 year process expungement or conviction set aside? In Tennessee it is common for after a certain period of time courts to do expungements and wipe the record clear.
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Owen Sparks
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I never have understood how a woman can accuse a man of domestic violence and make it stick without a witness or evidence when it is just her word against his. Your wife might say that you threatened her with a knife but how can she prove it?
usmarine0352_2005
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I'm not understanding this case either.
And doesn't this case come under the purview of Lautenburg which was decided to be legal from SCOTUS?
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I'm not understanding this case either.
And doesn't this case come under the purview of Lautenburg which was decided to be legal from SCOTUS?
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Librarian
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The case interacts a bit with Lautenberg.
CA has misdemeanors that impose a 10-year ban on gun possession and use.
Feds say that one can regain gun rights in some cases, but do not allow that for misdemeanors (?).
The case is about the difference between misdemeanor disablement and felony disablement - Feds say (something like) rights cannot be restored from the misdemeanor conviction, so they're faulting on background checks and folks cannot buy guns. Most recent order says only one plaintiff actually has had this problem, but that for at least that one it is an issue worth exploring.
CA has misdemeanors that impose a 10-year ban on gun possession and use.
Feds say that one can regain gun rights in some cases, but do not allow that for misdemeanors (?).
The case is about the difference between misdemeanor disablement and felony disablement - Feds say (something like) rights cannot be restored from the misdemeanor conviction, so they're faulting on background checks and folks cannot buy guns. Most recent order says only one plaintiff actually has had this problem, but that for at least that one it is an issue worth exploring.
usmarine0352_2005
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So if it is over-ruled will it have any effects on Lautenburg?
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So if it is over-ruled will it have any effects on Lautenburg?
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Owen Sparks
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Let me ask this another way. Suppose you and your wife are going through a nasty divorce and she decides to get revenge by calling the police and claiming that you chased her with a knife? Nobody SAW you chase her with a knife and there is no physical evidence that you did. It is just your word against hers. How can the police or courts take any action without evidence?
usmarine0352_2005
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If she sounds plausible the arrest has to be made and it can be settled by the prosecuting attorney whether or not to prosecute.
It sucks, but that's the way it is.
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If she sounds plausible the arrest has to be made and it can be settled by the prosecuting attorney whether or not to prosecute.
It sucks, but that's the way it is.
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