So gun owners lose in US v. Castleman no matter what the ruling?

[usmarine0352_2005]

.
US v. Castleman is a misdemeanor domestic assault case that is being ruled on whether or not it has to be violent force or just force, correct?



The more important question should be, can you lose your Constitutional right to own a firearm due to a misdemeanor conviction of domestic abuse rather than a felony.



No matter what the ruling is, aren't people with misdemeanor domestic abuse convictions going to be screwed?
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[gc70]

According to the government's brief:

The decisions below, if applied nationwide, would render Section 922(g)(9) a virtual “dead letter” in all but (at most) a handful of States “from the very moment of its enactment.”

So the government thinks that affirming the appeals court's ruling for Castleman would invalidate the use of the vast majority of existing misdemeanor DV convictions and most states would have to amend their laws for future DV convictions to be disqualifying.

 

[ilbob]

According to the government's brief:



So the government thinks that affirming the appeals court's ruling for Castleman would invalidate the use of the vast majority of existing misdemeanor DV convictions and most states would have to amend their laws for future DV convictions to be disqualifying.

which might or might not arguably be a good thing.

I am somewhat ambivalent about the DV thing.

People who abuse those close to them maybe should be screened out as gun owners. But, at present, the screening seems to screen out as many people who probably should not be as should be which suggests that the mechanism in use has serious flaws.

 

[AlexanderA]

The worst part about the Lautenberg Amendment is its retroactivity. That is, people often pleaded guilty to what they considered a minor misdemeanor charge just to get the matter behind them. Later they found out that this disqualified them from gun ownership -- for life! This is grossly unfair and (IMO) violates the Constitution's ex post facto clause. Unfortunately, that aspect is not before the Supreme Court.

 

[rbernie]

When DV misdemeanors are evenly defined from state to state, and that definition preserves the presumption that the defendant is innocent until proven guilty by more than just accusation, then inclusion of DV as a disqualifying event can be considered.

Until then - not so much.

 

[Midwest]

The worst part about the Lautenberg Amendment is its retroactivity. That is, people often pleaded guilty to what they considered a minor misdemeanor charge just to get the matter behind them. Later they found out that this disqualified them from gun ownership -- for life! This is grossly unfair and (IMO) violates the Constitution's ex post facto clause. Unfortunately, that aspect is not before the Supreme Court.

The Lautenberg Amendment should have been overturned because of the retroactive element. Creating and adding on extra penalties after the case has been already settled is additional punishment without legal recourse. And should be challenged.

The defendants who were pleading to a misdemeanor DV at the time were probably just facing a simple fine and or probation. Had they known that years down the road additional penalties were to be retroactively tacked on in the form of a lifetime ban on firearms (equivalent to a felony). The defendants would have mounted a defense.

The equivalent of the Lautenberg Amendment retroactive component would be if someone arrested for drunk driving paid their fine and did their time, got their license restored and maintained a clean record.

But then later found out that they are permanently banned from driving because of a new Anti Drunk Driving Amendment which says that all convicted drunk drivers are now retroactively banned for life from driving. That law would be challenged and overturned because of its retroactivity.

Why wasn't the Lautenberg Amendment challenged and overturned because of its retroactivity?

 

[tomrkba]

It should have been overturned for more than just being retroactive. It removes a right based upon a misdemeanor.

 

[RussellC]

What I find disturbing about it is this. I am a Lawyer, and where I practice we have a large DV docket. There may be 100 folks in the audience, and of all those cases it is typical that 50-75 percent of them are total BS, just fired up alcohol fueled arguments where it becomes a race to the phone about who can call the police faster and tell the best story to get the other one hauled off. Just attitude. Then, there are the real DV cases. Well, most of these dockets are receiving all sorts of federal funding and so forth, and most of these agencies want to see results....so most all of these cases are prosecuted vigorously. Jail space is "saved" just for these cases, even if the witness, now not mad, is sitting right next to the person charged and doesnt want them convicted...and I am not talking about real DV where the victim is scared of the arrest and is being forced to say these things. Well, it is just too easy to get wrapped up into this and get a conviction is my point, and maybe this info will help those who are ambivalent on the DV issue. With these repercussions, there needs to be a careful look at each case. If there is serious injury, and a felony is sought makes more sense than a bad night of childish attitudes with no real violence, but even felonies need looked at carefully in this regard.

I am not trying to downplay DV, it is a serious problem. But people know how to play the system, and in the heat of anger do things that cant later be undone, even when they do not want to go forward.

Some programs are so wanting to increase numbers I have seen a "victim" at trial state that they never told the police they were assaulted. Case stops and is continued for the officer who took report to come to court. They get a little testimony from the complaining witness, (usually unrepresented) then question the report taking officer. Case dismissed against original defendant, charges given for filing false police report to the victim! A number is a number when you work off of grants....the whole area of law is problematic beyond the problem of domestic Violence itself .

 

[waterhouse]

In my area, if there is any complaint of pain due to any physical contact, one of the parties goes to jail. It is a zero tollerance concept, and as with most zero tollerance concepts it takes all common sense out of the equation and leads to a lot of people being arrested who don't need to be. This does not always lead to a conviction, but it certainly can.

 

[tyeo098]

DV is a misdemeanor for a reason.

If any kind of actual physical violence was involved it would be felony assault and battery, correct?

Misdemeanors are, by definition non-serious crimes. If people want DV to disqualify a person from owning a gun, it should be bumped up to a felony (and probably then it would be taken more seriously)

 

[Arkansas Paul]

If any kind of actual physical violence was involved it would be felony assault and battery, correct?

No, that is incorrect.
Minor acts of violence are often still misdemeanors. A fist fight for instance will not usually bring felony charges.

The exact details of what constitutes a felony will vary from state to state but generally it has to be pretty serious to arise to felony. Remember for something to be deemed a felony the MINIMUM sentence for a conviction is 1 year in prison. You're not going to get that type of punishment for simple assault.

In Arkansas Battery in the 3rd degree is a Class A Misdemeanor. Battery in the 2nd degree is a Class D Felony. The difference can be whether or not a weapon was used, and how serious the injuries are.

 

[Arizona_Mike]

How did the Jan 15 hearing questioning go? I'm not hearing much on the case from the usual court watchers.

Mike

 

[gc70]

Here are links to an audio recording and a transcript of the oral arguments, as well as an assessment from SCOTUSblog.

 

[torqem]

Actually, there is no provision in the laws or practices of the `18th century for exempting you from militia service, just because of a felony convicition. If you are going to use the 2nd A as your basis of argument, then women can't own guns, cause they are not subject to draft registration, etc.

Not true about the fist fights. You can get a battery charge by touching somebody with a fingertip. You can get an aggravated assault charge just by screaming viscious or racial threats as you "merely" slap somebody, especially if it's a female, an eldery person, handicapped, small/frail, etc. All it takes is "apparent disparity of force".

 

[Zoogster]

Such restrictions remain in place because of misinformation involving what domestic violence is.
To the majority of citizens it brings up thoughts of some guy beating his wife.
But that is a small minority of cases and more severe than most.
Domestic violence interpretations as many states define them includes things that happen in a large percentage of some relationships at some point.
Such as mere physical contact during an altercation or argument.
Girlfriend gets upset and grabs your stuff to break it and you grab her arms, calm her down, and then the police show up because someone heard an argument?
That was unwanted physical force used. Women generally bruise a whole lot easier than men too, as any active woman in sports or outdoor activities can attest to as they are often covered in bruises from activities that leave none on men.
So the amount of force needed to even hold on to a wrist probably left a bruise.
Unwanted force and evidence left, that's a pretty strong DV case.

Many relationships involve trying to hold or calm the person, or someone pushing away not wanting to be held or calmed as they are upset. These are also uses of force that can be interpreted as domestic violence by someone after the fact.

Then there is intentional exaggerations encouraged by lawyers in custody disputes, divorces, etc

A small minority of cases are of guys actually beating women.
Most couples I know have at some point grabbed on to their partner when it was unwanted, or pushed them away or past them to get by, etc They were not violent incidents,but by many state laws are domestic violence. However in most minor little arguments the police don't arrive and so nobody ever got into trouble. So the only real difference in the cases that do get prosecuted is the authorities heard the story. Afew states have laws requiring the officers make an arrest if there even might have been physical contact even if nobody wants to press charges. Such laws passing in an attempt to deal with women that wouldn't press charges on men that actually are beating them, but then applying to petty scenarios with no beating whatsoever.
Other things like the Hollywood slap from a scorned or upset woman when a man says something disrespectful, rude, vulgar, etc are also domestic violence and a woman can lose her right to a firearm for life for such things. Even though culturally in some places that is a minor thing, often half hearted and does no real damage.

 

[silicosys4]

which might or might not arguably be a good thing.

I am somewhat ambivalent about the DV thing.

People who abuse those close to them maybe should be screened out as gun owners. But, at present, the screening seems to screen out as many people who probably should not be as should be which suggests that the mechanism in use has serious flaws.

You are right.
And zoogster said it very well in the post above mine.
DV reasonable until you find out what constitutes a DV in your area.

I went through this, almost had my gun rights removed for life.
I must be some abusive A-hole, right?
I was 18 and my little brother was 13. I wouldn't let him use the computer, so he called 911 and said I was "fighting" with him. Never touched him.
I bailed. Had I been home when the sheriff arrived I WOULD have been arrested, as it is mandatory to arrest someone in a DV call. I WOULD have lost my firearm rights for life, as an arrest is all that is needed to have a record of DV, and its the state who decides to prosecute, not the accuser. Luckily the sheriff got the whole story out of my bro and called me in to give a statement, then dropped the charges, supposedly like it never happened, total nonsense is what he called it.

Now, 15 years later, because that is still floating around somewhere, I get delayed for any firearm transfer that I don't use my concealed permit to expedite. With my permit, its a call to the FBI and I'm out the door. Without, and it gets routed through the local PD and gets me delayed every single time. Last time I did a transfer without my permit, (renewing at the time) the shop I did it through had to chew out the local PD and tell them about recent transfers I had made with my permit that had gone right through, before The pd would approve the transfer, and when I went down to find out why, I was told I still had that B.S. DV thing on my record somehow, even though charges were never filed.

I have an older friend, a distinguished veteran, who can no longer own firearms in this state for life because his ex lied on record and claimed he threatened her life. Never saw a police officer. Never was arrested. There was never an actual incident on record that police responded to. No 911 calls.
This was weeks after his last contact with her. Never touched her. It is my friends mom and even my friend says she is doing it all out of spite and she has no proof and major issues. It's basically ruined his life, and he is moving out of state at great expense to himself at a time in his life when he should be retiring and enjoying what his hard work and service to his country should have earned him.

It ain't always like you think. I am not a lawyer, but There is a reason you should avoid calling the cops unless absolutely necessary, particularly with family. If 911 gets called on a DV situation, someone is going to jail even if everyone involved is amicable when the police arrive.

To my knowledge, in my state ANY dispute with family with any level of violence, even if its non-injurious or damages are strictly property related its DV in the eyes of the law. You can't even break your OWN stuff if someone gets scared and calls the cops while you are doing it.

The brush is unacceptably broad IMO, and the system too easy to manipulate by people illegitimately playing the "victim".

 

[gc70]

In oral arguments, the government's attorney said "the problem that Congress was trying to solve is because these were family members, these individuals were often not prosecuted as felons, they were prosecuted and convicted of misdemeanors offenses." That statement is consist with the rationale Lautenberg gave in the Senate when he said "one-third of the cases that would be considered felonies, if committed by strangers, are instead filed as misdemeanors."

The government fairly stated Congress' intent to capture severe acts of violence, regardless of how those acts were charged. But the government then contends that the level of violence in an act does not matter and that the charge alone suffices - "this is a misdemeanor offense, it's not a felony offense. Common law misdemeanor, understanding of physical force applies directly here."

Now the Court gets to decide whether the law focuses on the act regardless of the charge or focuses on the charge regardless of the act.

 

[AlexanderA]

....as an arrest is all that is needed to have a record of DV

No. There has to be a conviction. A guilty plea is a "conviction." An arrest, where the charges are dropped, or there is "deferred adjudication," is not a "conviction."

The problem is that years ago, people would plead guilty just to get the matter behind them, even if the charges were not justified. Today, knowing that they stand to lose their gun rights, people would fight this tooth and nail.

The moral of the story: never plead guilty to anything. Make the state prove its case.

 

[Midwest]

The problem is that years ago, people would plead guilty just to get the matter behind them, even if the charges were not justified. Today, knowing that they stand to lose their gun rights, people would fight this tooth and nail.

That is my whole argument of why the Lautenberg Amendment must be overturned. Because it created an additional penalty that was automatically added on well after the cases have been settled. The additional penalty being a permanent loss of 2A rights-after the fact.

The defendants were assessed this additional penalty after the cases were settled. This is a gross miscarriage of justice IMO.

Imagine a drunk driver who paid the fine and did the time years ago and never offended again is now suddenly prohibited from ever getting a drivers license because of a new misguided and unconstitutional law. The law would be overturned.

The cases that were tried before the Lautenberg Amendment was signed into law must be re-opened and retried with the government paying legal expenses for the defendant.

Or overturn all the misdemeanor DV convictions (before the Lautenberg Amendment took effect) to a disorderly offense and let the government bear the expense of fixing the criminal records.

Or throw out the Lautenberg Amendment as unconstitutional as it creates an additional penalty after the fact. Because if it is allowed to stand, it creates a precedent and thus opens up the door for other abuses. And leaves the chance that anyone can have extra penalties added to them after their cases were settled.

The Lautenberg Amendment almost smacks of double jeopardy, because the defendant was tried and sentenced and paid their debt, and later on an added penalty was tacked on. It is almost like they were retried for the same offense from a legal standpoint.

Imagine getting a $25 parking ticket, then paying it. Years later some new law goes in effect that says all parking tickets are now $100 retroactive, now you get a bill in the mail for $75 for an offense that you paid for and was settled years ago. So where does this retroactive nonsense stop? It must stop at the Lautenberg Amendment and it needs to be overturned.

 

[coyotehitman]

Had I been home when the sheriff arrived I WOULD have been arrested, as it is mandatory to arrest someone in a DV call. I WOULD have lost my firearm rights for life, as an arrest is all that is needed to have a record of DV, and its the state who decides to prosecute, not the accuser.

You have a really unusual, and incorrect, understanding of DV laws.

 

[Arkansas Paul]

No. There has to be a conviction. A guilty plea is a "conviction." An arrest, where the charges are dropped, or there is "deferred adjudication," is not a "conviction."

The arrest will stay on your record though, even if no charges are filed. You can have that expunged, but if you don't, record of the arrest will stay and will show up on certain background checks. I deal with this frequently at work (Prosecuting Attorney's Office).
The arrest in itself does not prohibit you from owning firearms. We get forms in from the FBI daily regarding people applying for a CHL that have arrests on their record. We simply fill out the form, letting them know what the charges actually were and what the disposition was. They then make a decision based on that.
So an arrest without a conviction will slow down the process and delay a firearms purchase, but will not automatically prohibit it.

 

[JRH6856]

Plea bargaining has become somewhat the norm in many courts, and sometimes it seems easier to plead to a misdemeanor, pay the fine and get on with life. It is indeed unfortunate that any innocent person has pled guilty or no contest to a misdemeanor charge for any reason. But if they did plead or fail to contest the charge, then they stand convicted and the reason they surrendered their innocence without contest is irrelevant. The moral is clear: if you are innocent, defend your innocence. If you are guilty, you can either try to convince a jury you aren't or take the best deal you can. But don't deal away your innocence.

 

[savanahsdad]

It should have been overturned for more than just being retroactive. It removes a right based upon a misdemeanor.

right . they should toss it out and make wife beating a felony and MOST would be happy

 

[gc70]

right . they should toss it out and make wife beating a felony and MOST would be happy

While that seems like the obvious solution, it would bring us back to where the Lautenberg Amendment started.

We have a cultural problem dealing with domestic violence in the legal system. The reasoning that Lautenberg gave for the law was that "one-third of the cases that would be considered felonies, if committed by strangers, are instead filed as misdemeanors." There were, and still are, real-deal break-her-jaw wife beaters only convicted on misdemeanor charges.

A substantial part of the arguments in Castleman revolve around whether a "misdemeanor crime of domestic violence" should require "violent force" -just like the requirement for a felony- to qualify for a firearms disability under the Lautenberg Amendment.