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Legal trap - domestic violence - attorneys pay attention!

Discussion in 'Legal' started by DCR, Jun 23, 2005.

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  1. DCR

    DCR Member

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    I just became aware of a strange application of the Lautenberg amendment that expands the definition of domestic violence. It may well be in effect in your jurisdiction.

    Background: my friend and his wife get into a drunken, mutual hollering and pushing match (no injuries to either), "victim" wife calls police, friend is charged with domestic violence. His solid defenses, and a now sober and uncooperative "victim" (she can't remember anything that happened; all they have is her inconsistent and contradictory "excited utterance" statement to police and the 911 call) forced prosecutor to back off; friend accepted plea agreement to disturbing the peace to get things over with and not put wife through "trauma" of a jury trial. Shortly after, he gets a letter from the Ada County (Idaho) Sheriff's office stating that his CCW permit is revoked because he is no longer eligible to possess a firearm under federal law. :confused: And no, I did not represent him in that matter.

    Get this: BATF and USDOJ guidance on Lautenberg states that "a misdemeanor crime of domestic violence means an offense that: (1) is a misdemeanor under Federal or State law; and (2) has, as an element, the use or attempted use of physical force ...committed by a current or former spouse, parent or guardian of the victim...." Ok so far? Well, Idaho's disturbing the peace statute reads as follows:
    The sheriff's office has determined that this statute is a "physical force statute" and that because the disturbance in my friend's case involved him and his wife, his disturbing the peace conviction brings him under the purview of the Lautenberg amendment. Apparently, this has been happening for the last year or so in every disturbing the peace case between household members, and particularly when there was originally a domestic violence charge that has been reduced for whatever reason.

    Now, correct me if I'm wrong, but doesn't Lautenberg only prohibit firearm possession in cases where a person has been convicted of assault, battery, domestic assault, or domestic battery - where there was a perpetrator committing an unlawful act on an unwilling partner/spouse victim? I could see the Sheriff's position (MAYBE) if there was threatening involved, but doesn't the mutuality of fighting or quarreling eliminate the roles of perpetrator and victim? And isn't the "victim" in Idaho's disturbing the peace statute a neighborhood or third parties -- none of whom are a spouse or partner under Lautenberg?

    It's my view that the Sheriff's office is stretching this way too far; what are your thoughts? Does this occur in your jurisdictions? Anyone aware of any case law on the subject?

    At any rate, you may want to find out how your jurisdiction treats this, both on the local and federal levels, and watch out for fellow gun owners who may be in this sticky situation. I'm going to try to help my friend out in any way I can, because he truly is a good guy and the only shooting buddy I really have, and would appreciate your thoughts before I dive in.
     
  2. Fred Fuller

    Fred Fuller Moderator Emeritus

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    1) friend and his wife get into a drunken, mutual hollering and pushing match

    2) "victim" wife calls police

    3) she can't remember anything that happened

    4) friend accepted plea agreement to disturbing the peace

    5) his CCW permit is revoked

    6) sticky situation

    Worse than just losing a CCW permit, I'd say. Your amigo's "right" to purchase/own firearms legally is now gone too, if your sheriff's interpretation holds. This is a logical extension (in a twisted bureaucratic sense) of the ex post facto aspects of domestic violence "crimes" in the modern age (getting punished now for something that wasn't punishable in this fashion when you did it) AND the crossing-the-felony-bar aspect as well (felony level punishment for something originally defined and punished as a misdemeanor). Lawyerly types shoulda been yelling bloody murder at both of those 'lane violations' years ago. But the silence has been deafening.

    I have long said that the 'line' defining criminal behavior is moving to take in more and more people. Stay where you are and keep doing what you are doing and eventually you too will be a criminal. The "criminal justice system" needs more and more and more raw material to process, and people are the raw material of the criminal justice system. When trying to obey the law is no longer a protection from the law... we're toast.

    Good luck to your friend, and to you. You both need more than luck. So do we all.

    lpl/nc (IANAL)
     
  3. ID_shooting

    ID_shooting Member

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    I can't really offer much but as an Ada County resident I will be very interested in the outcome if he challenges the Sheriff's decision. Since most of our 4th district judges are fairly conservative (at least from my expirience on jury duty) a court hearing on the matter should go well.
     
  4. WT

    WT Member

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    I don't think this 'tough guy' should be allowed access to firearms. He pushed his wife around. Then he pleaded guilty to a crime.

    Its not like 2 guys getting into a fight at the local bar.

    Its domestic violence, pure and simple.
     
  5. Taipei Personality

    Taipei Personality Member

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    "There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. When there aren't enough criminals, one MAKES them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. ... Create a nation of law-breakers, and then you cash in on the guilt."

    -- Ayn Rand Atlas Shrugged
     
  6. Art Eatman

    Art Eatman Administrator Staff Member

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    WT, I surely do hope that's sarcasm. It's hard for me to accept that yelling (or "hollering and pushing", as was specified) is "violence". Maybe it's my old age, but I've always understood that violence involves serious threats of physical harm or physical harm itself.

    But maybe you've never been married? Never gotten drunk and had somebody put the verbal needle to you? :) Heck, you've never been in a foul mood and somebody starts needling you?

    Art
     
  7. BigG

    BigG Member

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    I mentioned this a quite a while back. You guys really need to know that they are enforcing this thing (at least here in GA) to an unreasonably far degree. All it takes is your ____ to file a complaint, the DA's office will kindly help her file a complaint under the Lautenberg amendment which the fed.gov (with your tax dollars) gives them a grant to employ some drone with. :barf:
     
  8. El Tejon

    El Tejon Member

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    "Strange application"??? :confused:

    It's been happening since 1996. Who represented at his guilty plea?
     
  9. beerslurpy

    beerslurpy member

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    Quoted for truth in case anyone missed it. I dont even approve of having ex-felons deprived of the right to self defense. A man who gets into a fight with his wife is normal, not something I would consider worthy of society's punishments. My parents got into worse fights than this once in a while, though they would never have involved the cops. They were paranoid about child services finding out how small our apartment was.
     
  10. WT

    WT Member

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    Art - I'm serious. I have absolutely no respect for a guy who pushes his wife around. That's called DV.

    I've been married a long time.

    Being drunk is no excuse. Do drunk drivers get to walk after they've killed somebody? Heck, no.

    No, I don't get drunk, go to bars, or push people around.

    PS: Before I retired I was the recipient of many 'needling' incidents by the union folks in my plant. They were masters, like an old Navy CPO. I handled it.
     
  11. GunGoBoom

    GunGoBoom member

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    1. Since Lautenberg as a whole is unconstitutionally violative of the 2nd amendment, I cannot with any clarity of thought bring myself to analyze whether Idaho sheriff's are stretching its application too far.

    2. He of course needs his day in court to argue that this is an improper application of Lautenberg, probably first in an agency tribunal from the state agency who issues CCW permits, then appeal to the district court from there.

    3. If it holds, he will be disarmed for 3 years, as I understand things.

    4. As a practical matter, for future reference for folks with significant others, he and his attorney should have made it a specific condition of the plea agreement that his CCW rights and gun rights are not affected in any way. He might even attempt to overturn his sentence on the basis of violation of the plea agreement by the prosecutor, on the theory that the prosecutor should have disclosed this little gem; if successful, then re-negotiate a plea or have a trial. In any event, he's looking at a lot of atty's fees or disarmament one...

    5. As a practical matter, for future reference for folks without significant others, it may be wise to commit to staying single in this crazy world. Either that or don't drink if you are shacked up /married.

    :banghead:
     
  12. Tory

    Tory member

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    Let's review

    "my friend and his wife get into a drunken, mutual hollering and pushing match..."

    The applicable statute prohibits the following conduct:

    "Every person who maliciously and wilfully disturbs the peace or quiet of any neighborhood, family or person, by loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting...is guilty of a misdemeanor."

    So, under what strained substitute for rational analysis is two drunks in a shoving match NOT "fighting?" under the controlling statute?

    While an overly severe application of Lautenberg, the revocation has a valid basis. So, what ELSE has your drunken friend done to warrant the attention of the sheriff? :uhoh:
     
  13. dfaugh

    dfaugh Member

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    I see you one,and raise you one

    When I was getting divorced, my ex claimed that I had "verbally abused" her, and that she was afraid of me. Totally unfounded, and no calls to police EVER.

    Yet, I had to surrender my guns...At least until I went to court, where neighbors testified that they had never even heard raised voices coming from my house (we then lived in the city where houses were quite close together).

    My day in court cost me about $5000, but there was no way I gonna have my reputation tarnished, even by accusations people who knew me would never believe.

    In short, you buddy made a BIG mistake to plead guilty.

    As an aside, the fact that she lied about this, and some other thing as well, meant that anything else she said was taken with agrain of salt,in all subsequent proceedings.
     
  14. GunGoBoom

    GunGoBoom member

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    dfaugh, that's like one's worst nightmare - imagine, what if you hadn't had the wherewithal ($$) to fight that accusation? Where would you be now? I'm curious, do you loathe her with a passion to this day as a result of her actions, or have you gotten over it? Stay single guys, because all women are crazy (except THR women).
     
  15. sssteinkamp

    sssteinkamp Member

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    To my mind, the drinking should be enough to have his CCW revolked. In Louisiana it is. Getting arrested for drunkeness is enough. DV is just extra gravy. Doens't sound like this guy is a responsible citizen.

    Shane
     
  16. Henry Bowman

    Henry Bowman Senior Member

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    Bad choice. The evil of the Lautenberg Act is that so many are sucked into its trap out of momentary convenience without any knowledge of the lifetime consequences. :fire: If a doctor, pharmaceutical company or lawn mower company failed to give a similar warning and full, informed consent, they would be liable for the lifetime handicap.

    I don't care for wifebeaters, but the answer (withing the Constitutional presevation of liberty) is to arm the wife, not disarm the man. If the man is such a threat, he shouldn't be allowed to walk around in public, armed or unarmed.
     
  17. Sean Smith

    Sean Smith Member

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    At home?

    :confused:
     
  18. BigG

    BigG Member

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    IANAL, but...

    This is not about wife beating or drunk and disorderly. It's about naked abuse of power by the authorities. Your jurisdiction contacts whoever called the police and helpfully recommends they fill out a few papers, usually including a restraining order also. You (now the defendant) find out about this just before you have a chance to plead.

    You are an idiot to plead guilty. Please believe me.

    The guys beating their chests about hating wife beaters, drunkards, etc. are really missing the point. This is where mere accusation constitutes proof as far as the lautenberg yokels are concerned.
     
  19. dfaugh

    dfaugh Member

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    GunGoBoom

    You bet I loathe her(17 years later)...Her lying has continued to this day (and boy do I hate liars).

    Case in point: Even though we had joint custody of the kids,and they spent 50% of the time with me I was STILL forced to pay child support. Now, bear in mind that she's a chemist, and makes good money. And when I was making good money I was STILL paying over $1000 month in child support. But she used to tell the kids that "because your dad doesn't pay enough child support", I can't afford to buy food or {insert something the need here}...

    The only decent clothes and things they ever had I paid for, IN ADDITION TO the $1000/mo in support....

    But here's the interesting thing: Kids are smarter than we might imagine...Right now BOTH my sons live with ME (I'm permanantly disabled), so they can help me out (now 20 and 22)...Funny thing, huh?
     
  20. hso

    hso Moderator Staff Member

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    A DV conviction blocks you on a 4473 yellow sheet.

    A DV conviction has blocked a handgun carry permit applications for years here in TN and and can get your CCW revoked.

    Drunken shoving matches between a CCW holder and another person is pretty much going to get you into trouble here, but if my SO or wife (very unlikely to happen to me because I won't tolerate someone that even has hints of that type behavior) got drunk and mad and called the cops to file a DV complaint I'd either make certain that there was no record or I'd be going to court to make certain a not guilty decision was handed down.

    I don't think anyone is of the opionion that what your friend did was correct, but I don't think that the authorities are correct in how they've addressed the situation either (unless there's a back story and history of problems)

    I don't agree that everyone has been in this situation. I'm 48 years old and married (twice now) and I've never gotten into a drunken shouting/shoving incident with my spouce or any other woman (or man/kid/dog/ aardvark for that matter). I've got lots of friends and only a couple of them (~2%) have ever gotten into a drunken shoving match or any worse and that only in their youth.
     
  21. Art Eatman

    Art Eatman Administrator Staff Member

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    WT, you have self-control. I have self-control. Bully for us. What I'm saying is that very minor bad stuff is being overblown into The Horribles.

    Based on the opening post's description, this is nowhere near a history of hitting and beating coupled with regular drunkenness. These, to me, do indeed warrant investigation and serious charges.

    I dunno. To me, this particular case is sorta like sending a firetruck out to hose down a gutter after somebody spits into it. Or, sending a firetruck to put out a cigarette. It's way too much punishment for what's being called a crime.

    Which is why I detest such do-goodism as the Lautenberg Amendment. It's over-kill by a large degree.

    Hank Williams sang it over a half-century back: "...me and my old lady got a license to fight; why don't you mind your own business..." :)

    Art
     
  22. Henry Bowman

    Henry Bowman Senior Member

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    And it's a step down a slippery slope. Sure, now that we all recognize that DV is really, really bad, what other act would we do-gooders like to punish? Smoking? Having evil books or music? Not giving you pet fresh water every day (now criminal in San Fran)?
     
  23. Gung-Ho

    Gung-Ho member

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    Excuse me while I go puke. :mad: Hey, if were going to do this, lets do it right. Lets make just pushing your wife a FELONY. Hell lets make just getting accused of pushing your wife a FELONY.
     
  24. molonlabe

    molonlabe Member

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    Precedence has already been set for repeat speeding violations and misdemeanors.
    You should expect to see added to the list.
    DUI’s
    Minor Traffic offences.

    Violation of any of the 27,000 + laws currently on the books of which most are misdemeanors. That should about take care of gun ownership. Couple that with confiscation and we will finally have the gun free socialist state Feinstein and Schumer dream of.
     
  25. SteveS

    SteveS Member

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    I agree. The described incident does not seem to rise to the level of DV, unless there is something else that we don't know about.

    Though I feel no sympathy for abusers, the Lautenberg Amendment has more to do with eroding gun rights than punishing abusers, IMHO.
     
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