SCOTUS rules that you lose your gun rights after misd domestic - US v. Castleman

[usmarine0352_2005]

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http://www.boston.com/news/nation/w...gun-ban-law/9aTiYcEKTCGpFkrXhOW47H/story.html

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Supreme Court Bolsters Domestic Violence Gun Ban Law

By THE ASSOCIATED PRESS

AP / March 26, 2014

WASHINGTON (AP) — The Supreme Court says a federal law barring people convicted of minor domestic violence offenses from possessing guns can be enforced even in states where no proof of physical force is required to support the domestic violence charge.

Federal law bars a person convicted of misdemeanor domestic violence involving the use of physical force or a deadly weapon from possessing a firearm. But Castleman said he should not have to face the gun charges because the Tennessee law doesn’t specify that his domestic violence crime had to include physical force.
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[Deaf Smith]

In short, if accused of such a crime, get a lawyer and fight tooth-n-nail to prove you are innocent.

The consequences are to far reaching to not.

Deaf

 

[MEHavey]

"...can be enforced even in states where no proof of physical
force is required to support the domestic violence charge...."

Someone's going to have to `splain to me how domestic violence can to attributed
to a situation where no force (much less actual violence) can be shown.

Does speaking sharply to someone now get you a conviction for violence ?
Does hurting someone's feelings get you convicted for violence ?

Help me to understand, for I see high potential for endless legal mischief under the covers here.

 

[JustinJ]

At work we won't even hire people with domestic abuse charges. It truly sucks when innocents are convicted of crimes but such is the nature of a legal system. Unfortunately in ours money is often the difference between guilty and not guilty.

 

[stressed]

I do not agree with this. I know of where women have used this to intimidate and have made up stories to police.

Also, to who whoever who disagrees with me with how this is flawed.. Give me your full name and I will have a restraining order out against you by tommorrow morning and say bye bye to your guns. Yeah. It's that easy. Some women are coached on this by '"victims advocates" Also, the "victim" can file an OFP for free, and it will cost you thousands upon thousands to fight.. Might as well sell those guns to pay your lawyer anyway.

Also, if a man serves his time consider his debt to society payed.

 

[Ryanxia]

Someone's going to have to `splain to me how domestic violence can to attributed
to a situation where no force (much less actual violence) can be shown.

Does speaking sharply to someone now get you a conviction for violence ?
Does hurting someone's feelings get you convicted for violence ?

Help me to understand, for I see high potential for endless legal mischief under the covers here.

Agreed, this slope has been and is getting more slippery all the time. I've heard situations where just having the neighbors call the police lands you in a world of trouble, because if you're having a heated discussion with raised voices and the cops show up and say 'we're taking someone tonight, it's a domestic dispute' most of the times the man will volunteer so his wife won't end up fending for herself.

I stand by my thoughts of, if they are dangerous, lock them up, if they're safe enough to be out on the street, time served, Rights restored. Pretty soon almost EVERYTHING will be a felony that strips us of our Rights.

 

[Gottahaveone]

Such people forfeit their rights imo.

OK, When you get into a verbal discussion with your significant other, and a nosy neighbor calls the police who usually have a policy that somebody is going to jail, let me know how that works out for you.....

 

[madsend81]

I gave the ruling a cursory reading, and most of the discussion dealt with the level of violence that Castleman had pled guilty to, so it looked to me that they essentially said, "We're not really going to draw a line in the sand just yet, but we do know that this guy crossed over it"

 

[stressed]

As I said above with restraining orders... There is no court, you are automatically liable once one is filed against you. It's assumed as truth no matter what. Also, they do not prosecute those who pull fraudulent restraining orders. Because that's "going after the victim" and it's know that people are not prosecuted for false lies on restraining orders, prosecutors want no hand in that.

SO, Tipro.. What's your first and last name?

 

[Glocktogo]

Good news. Domestic violence often starts with "mere threats" and then escalates. Moreover, proof of injury beyond a reasonable doubt can be difficult to establish, especially for black women whose bruises often don't show. Such people forfeit their rights imo.

So based on that premise, what other misdemeanor offenses where the burden of proof is allegedly lower are you willing to use as justification to strip American citizens of their constitutionally protected rights?

 

[leadcounsel]

I'll repeat what I've said for a decade, that Lautenberg and similar FED laws are an end around to gun control, with an aim to disarm all Americans.

Very simple to allege assaults with minimal proof required for a conviction. It's free with zero consequences for the accuser, and very expensive to defend, with serious consequences for the accused.

Restraining orders and DV allegations are favorite tools of disgruntled spouses and significant others (typically filed by women against men) to gain leverage, harass, and gain child custody and property rights. They are free and easy and akin to a nuclear weapon with total destruction. Once accused, it's very hard to clear your name and costs a lot of money.

The 'burden of proof' is incorrect. In a "he said" versus "she said," often one person is barred from testifying because it's wiser for them to invoke for technical reasons. So the finder of fact is often left with "she said" and he remained silent. And regarding restraining orders, it's a 'more likely than not' burden, which is quite low.

A travesty for justice and for the 2A.

 

[DT Guy]

@Tipro,

Would you agree that a mere verbal threat should eliminate one's gun rights forever? Or should I say, the ACCUSATION of a threat? Because when you eliminate any physical evidence, that's what we're talking about, here.

And the criminal justice system does NOT treat men and women equally, in this instance.


Larry

 

[alsaqr]

Castelman plead guilty to domestic violence. Years later Castleman and wife were arrested on gun trafficing charges. The wife was buying the guns.

The Supreme Court reversed the appeals court and reinstated the charges against Castleman, in an opinion by Justice Sonia Sotomayor. Writing for the court, Sotomayor said it was enough that Castleman pleaded guilty to having "intentionally or knowingly caused bodily injury to" the mother of his child.

"Because Castleman's indictment makes clear that physical force was an element of his conviction, that conviction qualifies as a 'misdemeanor crime of domestic violence,'" Sotomayor said.

http://www.startribune.com/politics/252450641.html

More:

Seven years after his conviction for misdemeanor domestic assault, federal agents discovered that Castleman and his wife were buying firearms and selling them on the black market—with one of the alleged firearms recovered in Chicago. To accomplish their scheme, Castleman’s wife allegedly would lie on federal forms that she was the real buyer, purchase the weapons, and then turn them over to Castleman.

Under 18 U.S.C. § 922(g)(9) (“Section 922(g)(9)” or “Lautenberg Amendment”), it is “unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence” to transport, ship, receive, or possess any firearms which have been affected by or affects interstate commerce. This law could apply to Castleman if his Tennessee misdemeanor has an element of “use or attempted use of physical force.” The Tennessee statute under which Castleman was convicted has an element of“bodily injury.”

http://www.law.cornell.edu/supct/cert/12-1371

 

[JRH6856]

Castleman was not a good case on which to challenge Lautenberg. Better a conviction or plea on a violence charge when no violence was involved.

It is somewhat sobering to be reminded that the status of protected rights often depends on which half-brained nit-wit gets to SCOTUS first.

 

[twofifty]

What a slippery slope we've been on since 1968.

 

[barnbwt]

"Restraining orders and DV allegations are favorite tools of disgruntled spouses and significant others (typically filed by women against men) to gain leverage, harass, and gain child custody and property rights. They are free and easy and akin to a nuclear weapon with total destruction. Once accused, it's very hard to clear your name and costs a lot of money."

Case in point the other "test case" of that dude in DC with the shotgun shell . It all began with a verbal accusation...

""Because Castleman's indictment makes clear that physical force was an element of his conviction, that conviction qualifies as a 'misdemeanor crime of domestic violence,'" Sotomayor said."
Wait, so "force equals violence" and therefore Castleman's conviction stands (debatable, but whatever), therefore the statutes where "non-force can equal violence" stand? What I'm asking, is are they upholding Lautenberg only in circumstances where physical force is an element of the DV conviction? Or are they using physical force to prove his conviction was for "domestic violence?" Because I'm pretty sure the court record already states that, so what does physical force have to do with the ruling unless it is to narrow the scope of the Lautenberg condition in locales with the lower violence threshold? Sounds remarkably like a self-referential argument to me (perfect for arriving at a foregone conclusion )

"The Obama administration had argued that the lower court decisions would effectively nullify the gun ban in dozens of states where misdemeanor domestic violence laws don't specify the degree of force needed for conviction. That would frustrate the intent of Congress, the administration argued, which was to keep firearms away from anyone found guilty of misdemeanor domestic violence."

And here we see the true perversion of the Lautenberg travesty; it was never intended to keep firearms away from individuals who would use force against others --merely this nebulous "violence" people seem extremely reluctant to define in real terms, and which has a shockingly low burden of proof in many instances (especially considering the mounting ramifications that follow it). The 2nd amendment is hardly an inalienable right if you lose it the instant "someone" thinks you should, and tattles

"What a slippery slope we've been on since 1968."
We've been on a slippery slope since 3100BC. It took work and dedication to work our way up the hill, and laziness brings us inexorably back down.

TCB

 

[JRH6856]

From US v Castleman, Syllabus , pg 2:

"First, whereas it was “unlikely” that Congress meant to incorporate in ACCA’s “violent felony” definition “a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor,” id., at 141, it is likely that Congress meant to incorporate the misdemeanor-specific meaning of “force” in defining a “misdemeanor crime of domestic violence.” Second, whereas the word “violent” or “violence” standing alone “connotes a substantial degree of force,” id., at 140, that is not true of “domestic violence,” which is a term of art encompassing acts that one might not characterize as “violent” in a nondomestic context."​

 

[RetiredUSNChief]

First of all, I'm of the opinion that when the word "misdemeanor" is included in the criminal descriptor, then by the very definition of the word, the crime in which it is associated with is MINOR.

Therefore, I am also of the opinion that NO CRIME which can be described as "minor" is worthy of denying someone a fundamental right for the rest of his/her life.

PERIOD.


This is not to say that I think domestic abuse is not serious. However, I have a very realistic view and opinion with respect to both the level of abuse that may be involved for any given case AND the level to which domestic abuse accusations themselves may be abused.


I dislike this law for another reason...it's an "ex post facto" law...meaning that the law applies to people who were convicted of ANY misdemeanor domestic abuse prior to September 30, 1996 (when this law went into effect). For some reason that escapes me, this has been deemed perfectly legal, even though the Congressionally passed law was passed by a Congress which the U.S. Constitution has clearly stated in Article I, Section 9, paragraph 3: "No Bill of Attainder or ex post facto Law shall be passed."

http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01117.htm

http://constitutionus.com/


What this means is that no matter how minor the actual event, ANY conviction of misdemeanor domestic abuse with ANY level of physical force results in the revocation of an individual's RKBA for the rest of his/her life.


ALL THAT SAID...

Castleman was NOT a case which should have gone before the Supreme Court. The law is fairly clear with respect to what constitutes physical force (nearly anything) and Castleman, for whatever reason, plead guilty to it. Once he did this, it was pretty much game over.


The Supreme Court thus has not said that ANY misdemeanor domestic abuse conviction will result in the permanent loss of an individual's RKBA...they've only said that any misdemeanor domestic abuse conviction which involves the use or attempted use of physical force as defined by the law will result in the permanent loss of an individual's RKBA.

Nothing has changed.

 

[Frank Ettin]

...I dislike this law for another reason...it's an "ex post facto" law.......

No it is not.

The Lautenberg Amendment and related state laws have some serious problems and raise some serious, real concerns. But let's not waste time chasing chimera. They are not ex post facto laws.

1. As defined, an ex post facto law is one:

   ...adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed...

   
   
2. Ex post facto essentially means being subject to criminal sanctions today for an act performed in the past which was legal when performed. That is different from from being subject to criminal liability for the continued possession of a thing after the effective date of a law making that thing illegal for you to possess.
   
   
3. In terms of the Lautenberg Amendment (or similar laws), it may be understood as follows:
   
   
   • One may have possessed a gun after having been convicted of a domestic violence misdemeanor and prior to the effective date of the Lautenberg amendment.
     
     
   • If that person had sold the gun prior to the effective date of the Lautenberg amendment, he would have no criminal liability under the Lautenberg amendment for the act committed and concluded before that amendment became effective.
     
     
   • If however the Lautenberg amendment purported to make criminal that prior possession of a gun no longer possessed, it would be ex post facto and violate the Constitutional prohibition.
     
     
   • But instead the act made illegal under the Lautenberg amendment is the possession of a gun after the effective date of the amendment by someone convicted of a domestic violence misdemeanor. The illegal conduct, possession of the gun, must occur after the effective date of the law.
     
     
   • What is unlawful under Lautenberg is the continued possession after Lautenberg became effective, not the possession of a gun prior to the amendment's effective date.
   
   
4. In Enos, et al v. Holder, et al. Case #2:10-CV-02911-JAM-EFB, filed on 10-29-2010 in the US District Court of the Eastern District of California,
   Don Kilmer, a well known, experienced, skilled and knowledgeable lawyer, did not raise ex post facto as part of his challenge, on behalf of several plaintiffs, of the Lautenberg Amendment. If that would have been a fruitful basis for challenge, he no doubt would have used it as a basis for a claim for relief in addition to the nine claims for relief he sets out in the initial complaint.
   
   
5. The Lautenberg Amendment has been challenged in other litigation and upheld at the Circuit Court level (see U.S. v. Hartsock, 347 F.3d 1 (1st Cir., 2003); U.S. v. Chester, 628 F.3d 673 (4th Cir., 2010); U.S. v. Skoien, 587 F.3d 803 (7th Cir., 2009); and U.S. v. Booker, 644 F.3d 12 (1st Cir., 2011)). In none of those cases was ex post facto raised. Are we to conclude that the plaintiff's lawyer in each of those cases was so incompetent as to ignore a potentially meritorious line of attack on the federal law?
   
   
6. In a District Court (trial court) ruling (National Ass'n of Government Employees v. Barrett, 968 F. Supp. 1564 - Dist. Court, ND Georgia 1997), the court in addressing the ex post facto claim writes (at 1575 - 1576):

   ...Plaintiffs' claim that § 922(g)(9) violates the Ex Post Facto Clause fails because § 922(g)(9) is not retrospective.
   
   Plaintiffs' argument that § 922(g)(9) is retrospective is based on the fact that § 922(g)(9) prohibits an individual convicted of a misdemeanor crime of domestic violence from possessing a firearm even if the individual's conviction occurred prior to the effective date of § 922(g)(9). Defendants counter this argument by pointing out that the activity prohibited by § 922(g)(9) is the post-enactment possession of a firearm, not the pre-enactment misdemeanor crime of domestic violence. Defendants' argument comports with the decision of United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 513 U.S. 894, 115 S.Ct. 246, 130 L.Ed.2d 168 (1994) In Brady, the Second Circuit addressed an ex post facto challenge to § 922(g)(1) whereby a defendant argued that his 1951 felony conviction could not serve as a an element of the offense prohibited by that section of the gun control laws. In rejecting defendant's challenge, the court held:
   
   

   Regardless of the date of [defendant's] prior conviction, the crime of being a felon in possession of a firearm was not committed until after the effective date of the statute .... by [the date of defendant's conviction under § 922(g)(1), defendant] had more than adequate notice that it was illegal for him to possess a firearm because of his status as a convicted felon, and he could have conformed his conduct to the requirements of the law. Therefore, the Ex Post Facto clause was not violated by the use of a 1951 felony conviction as a predicate for a violation of § 922(g).​

   
   Brady, 26 F.3d at 291. Cf. Landgraf v. USI Film Products, 511 U.S. 244, 269 n. 24, 114 S.Ct. 1483, 1499 n. 24, 128 L.Ed.2d 229 (1994) ("[A] statute `is not made retroactive merely because it draws upon antecedent facts for its operation.'") (quoting Cox v. Hart, 260 U.S. 427, 434-37, 43 S.Ct. 154, 157, 67 L.Ed. 332 (1922)); United States v. Allen, 886 F.2d 143, 146 (8th Cir.1989) ("So long as the actual crime for which a defendant is being sentenced occurred after the effective date of the new statute, there is no ex post facto violation.")....

Let's concentrate on real issues.

...Castleman was NOT a case which should have gone before the Supreme Court. The law is fairly clear with respect to what constitutes physical force (nearly anything) and Castleman, for whatever reason, plead guilty to it. Once he did this, it was pretty much game over.


The Supreme Court thus has not said that ANY misdemeanor domestic abuse conviction will result in the permanent loss of an individual's RKBA...they've only said that any misdemeanor domestic abuse conviction which involves the use or attempted use of physical force as defined by the law will result in the permanent loss of an individual's RKBA....

And that seems to be pretty much the bottom line. Castleman was not a good case with which to challenge the law.

 

[JRH6856]

And that seems to be pretty much the bottom line. Castleman was not a good case with which to challenge the law.

And perhaps fortunately, as Sotomayor noted in her opinion, the constitutionality of Lautenberg was not challenged by Castleman so the Court did not look at it. It is still open to a challange of constitutionality.

 

[RetiredUSNChief]

Frank,

...adopted after an act is committed making it illegal although it was legal when done, or increases the penalty for a crime after it is committed...

OK, I got that definition, having looked it up beforehand and puzzled it over in that teeny-tiny portion of my muddled noggin that is devoted to understanding the law.

And though I understand, and at first latched onto, the portion of the definition which says "adopted after an act is committed making it illegal although it was legal when done", the definition also goes on to include "or increases the penalty for a crime after it is committed". It's this second part that galls me with respect to this law. It went into effect on September 30, 1996. Yet anybody who was convicted of a misdemeanor domestic abuse charge that included physical force is ALSO affected by this law, to wit the punishment now includes a revocation of that individual's RKBA.

I also read that the SCOTUS position on this is that this is a "regulatory" act and not a "punishment". Which, according to that aforementioned miniscule portion of my brain, is legal-speak for saying "since it's not a punishment, it's A-OK". Meaning a person essentially did not have life, liberty, or some material aspect (such as money or property) denied to him according to my understanding. I take exception to this...how can revoking any fundamental right NOT be viewed as a punishment?

In fact, it seems that the main reason most, if not all, laws which might be viewed as "ex post facto" have been deemed NOT to be such because the consequences/penalties/actions invoked by them are not recognized as "punitive" or "criminal punishment" in nature. Another phrase I ran across was "status offense", meaning it applies to a specific group of people. In this example, my understanding would be "those convicted of misdemeanor domestic abuse involving physical force are a specific group of people, therefore ALL people of this group are subjected to the same consequences, regardless of when they were convicted based on the date the law went into effect."


*scratches head, which is beginning to ache*


THAT SAID...

If this is wandering too far off topic (which I don't think it is, based on the general wording of the OP), just say so and I'll drop it here. In that case, I wouldn't mind an educational exchange via Personal Message afterwards.

 

[BSA1]

OK, When you get into a verbal discussion with your significant other, and a nosy neighbor calls the police who usually have a policy that somebody is going to jail, let me know how that works out for you.....

This is the policy of a major city (pop. 500,000) Police Department I work in.

 

[benEzra]

or increases the penalty for a crime after it is committed...

Changing "verbal reprimand and 30 day's probation" (the penalty at the time the crime was committed) to "verbal reprimand, 30 days' probation, and loss of civil rights for the rest of your life" (the penalty after Lautenberg was enacted) is indeed "increasing the penalty for a crime after it is committed," whether or not the courts have held it so.

If you pled to driving 61 in a 55 zone in 1989 because you thought it'd be cheaper to do that than fight it, and your state tomorrow decided to retroactively revoke the RKBA of anyone with a ticket on their record, wouldn't you consider that an ex post facto increasing the penalty after the fact? Would you have pled to the ticket if that penalty had been in place at the time?

And baseless accusations/frivolous orders are used by men against women too, particularly where the man can afford a good lawyer and the woman cannot. I've seen it happen to a couple of friends.

 

[JRH6856]

Changing "verbal reprimand and 30 day's probation" (the penalty at the time the crime was committed) to "verbal reprimand, 30 days' probation, and loss of civil rights for the rest of your life" (the penalty after Lautenberg was enacted) is indeed "increasing the penalty for a crime after it is committed," whether or not the courts have held it so.

If you pled to driving 61 in a 55 zone in 1989 because you thought it'd be cheaper to do that than fight it, and your state tomorrow decided to retroactively revoke the RKBA of anyone with a ticket on their record, wouldn't you consider that an ex post facto increasing the penalty after the fact? Would you have pled to the ticket if that penalty had been in place at the time?

And baseless accusations/frivolous orders are used by men against women too, particularly where the man can afford a good lawyer and the woman cannot. I've seen it happen to a couple of friends.

The problem is that the Supreme Court has consistently ruled that Congress, under the interstate commerce clause, has the authority to regulate items that enter, or could enter, interstate commerce; guns can easily be transported across state lines and are therefore regulatable as items of interstate commerce.

Courts have upheld the authority of the government to regulate and/or restrict the gun rights of categories of people, including criminals, the mentally ill, etc., ruling that prohibiting a narrow category of people from owning firearms does not violate the Second Amendment. Generally, it takes more than a misdemeanor conviction to place a person in this category, but Lautenberg raises misdemeanor domestic violence to that level.

So, the loss of 2A rights is not seen as a penalty for the crime itself, but as a restriction imposed on a narrow category of persons who have committed crimes which place them in that category. Also, what is being regulated is not the persons in this category, but the firearm as an item of interstate commerce in relation to the persons in that category.

Splitting hairs? yes, but something the courts are very good at doing.

 

[AlexanderA]

Deaf Smith wrote:

In short, if accused of such a crime, get a lawyer and fight tooth-n-nail to prove you are innocent.

That's what would happen today, but that's not necessarily what would have happened back before the Lautenberg Amendment was enacted. People would plead guilty to such charges just to get the charges behind them. Little could they imagine the adverse consequences that would await them in the future. Whether or not this is technically an "ex post facto" application, it's clearly a moral injustice.

The lesson to be learned is to be very, very careful when choosing a domestic companion. Choose wrong, and you will be paying for the rest of your life, in many ways.

Lautenberg was just the opening gambit in a strategy of whittling down gun rights by disqualifying one group after another. First it was the "wife beaters," now it's the "mental defectives" (including, perhaps, veterans with post traumatic stress syndrome), and soon it may be anyone with a so-called "mental defective" living in their household. And yes, the Supreme Court will uphold these things as "reasonable restrictions." We have a bleak future ahead of us.