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Supreme court arguments today re: Lautenberg

Discussion in 'Legal' started by No Fear, Nov 10, 2008.

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  1. No Fear

    No Fear member

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    Wow, there were arguments today at the supreme court regarding that horrible tyranny known as the lautenberg amendment which nra ignored and the repbublican congress passed in 1996. The case is U.S. V. Haynes.

    Why did I have to check BRADY'S friggin' website to find out about this? :fire::fire:

    http://www.bradycampaign.org/media/release.php?release=1084
     
  2. mica

    mica Member

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    Guess you are not perusing the right gun sites. :)
     
  3. cassandrasdaddy

    cassandrasdaddy Member

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    Why did I have to check BRADY'S friggin' website to find out about this?


    because you weren't paying attention?
     
  4. ants

    ants Member

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    Even Associated Press is carrying the story. You don't need gun control people to educate you about the issues.

    As I understand it, the problem is not the meaning or intent of the law. That's why no one opposed it in 1996. But the language in the bill leaves it open to challenge. The language refers to misdemeanors for domestic violence, but most states prosecute for assault and battery, not misdemeanor domestic violence. If the law had referenced misdemeanor assault in the home (and included a workable definition for Home) it might not be challenged.

    Do I have it right? Help us out if you have better insight.
     
  5. everallm

    everallm Member

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    The real problem isn't about no firearms after being convicted of a violent act.

    The actual problem is, even if you are only the lucky recipient of a domestic restraining order, you are not only prohibited but must divest yourself of all firearms immediately.

    Not charged and convicted of an offense mind, just someone saying you're a nasty person.

    For example in NJ, you can wait until after the courts close at 3:30pm, go to your local police station, state you are in fear and get a temporary restraining order issued by the police and with no evidence within an hour which is typically good for up to 10 days.

    Ahhhhh and we all thought we were innocent until proven guilty.....
     
  6. DMF

    DMF Member

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    None of that would make a person prohibited from possessing a firearm or ammunition under federal law.

    This is one of the many topics about which people seem to willingly remain ignorant of the facts, and repeatedly make false statements about.

    How about a little dose of reality regarding firearms disability due to a DV restraining order under 18USC922(g)(8):

    "It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The protection order must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury."

    http://www.ovw.usdoj.gov/docs/federal_violence.pdf

    Very few restraining orders, including those that involve intimate partners, or the child of an intimate partner, will meet the legal requirements to make the subject of the order a prohibited person under 18USC922(g)(8). Further, a person cannot be denied their due process rights when a restraining order is issued. There must be a "hearing as to which the defendant had actual notice and an opportunity to participate." Which means you had to be provided an opportunity to participate in the hearing with the judge, so it was more than "just her in front of the judge."

    For a detailed analysis of what qualifies a misdemeanor crime of domestic violence for the purposes of 18USC922(g)(9), I suggest reading this:

    http://www.usdoj.gov/olc/2007/atfmcdv-opinion.pdf

    It would be helpful in these debates if people actually stuck to the facts instead of spouting off comments that have no basis in reality.
     
  7. cassandrasdaddy

    cassandrasdaddy Member

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    It would be helpful in these debates if people actually stuck to the facts instead of spouting off comments that have no basis in reality.


    wheres the fun in that? buzzkiller!!
     
  8. everallm

    everallm Member

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    DMF

    Your a little off track, the Lautenberg act, as enacted supports my comment but is in conflict with other law, which is one of the reasons the SC are reviewing at the moment.
     
  9. DMF

    DMF Member

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    Let's see I quote source material that shows your assertion about a particular TRO creating a firearms disability are false, but that makes me off track? :rolleyes:

    You made a statement about TROs related to 18USC922(g)(8), which has no basis in reality.

    I'm completely on track.

    Further, if you wish to pick nits the current case before the SC is about 18USC922(g)(9), and misdemeanor crimes of domestic violence, not 18USC922(g)(8) and DV restraining orders. So your mention of TROs would be "off track" using your logic.

    Further, the issue at hand in front of the SC is not about a conflict between 18USC922(g)(9) and other statutes, it's a matter of how courts have been applying convictions under state law to the prohibition. The fed statute isn't in conflict with other laws, there is a difference in opinion as to what convictions qualify as a misdemeanor crime of domestic violence.
     
  10. Yoda

    Yoda Member

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    That's not the point...

    It's not what the law SAYS that's important, it's what the cops and lawyers THINK the law says that matters.

    I've read many authoritative articles about people who were ordered to surrender their guns based on TROs that they knew nothing about until the cops showed up at the door.

    In one case, in Las Vegas, a divorced father called to make an appointment to visit his kids, and the ex-wife's latest boyfriend got upset and got a TRO against the guy. He didn't even know anything had happened until the police showed up at his house and ordered him to surrender his pistol. Since he was a security guard, this effectively put him out of a job.

    - - - Yoda
     
  11. BHP FAN

    BHP FAN Member

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    The Lautenberg Amendment, enacted in 1996, prohibits abusers convicted of misdemeanor domestic violence from possessing firearms...Wow,a misdomeanor offence can take away a Constitutional RIGHT?That's ...wrong.
     
  12. Jeff White

    Jeff White Moderator Staff Member

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    You got a link to this? There is a whole lot of rumor and innuendo about anything involving firearms and the law. There may be a state where an order of protection is valid before the respondent is served with it, but I've never heard of anyplace where an order could be enforced before it was served.

    Many states jumped on the Lautenberg bandwagon and added their own firearm possession bans to the wording of their protective orders. So even if a person under a temporary order that he/she hasn't had a hearing on isn't federally disqualified, he/she may be disqualified by state law.

    Many states also have not possessing firearms as a condition of bail, even for misdemeanor offenses. So if you get arrested for disorderly conduct, post bond, and you may be a prohibited person under the conditions of your bond.
     
  13. DMF

    DMF Member

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    No it does matter what the law says, and what the relevant case law says. Those of us that actually have to go to court and prove our cases know that, and know that your claim is bunk.

    Existing case law has established that an order creating a disability under 18USC922(g)(8) "must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate." You see the "lawyers" (more accurately the judges) have actually ruled on what the law says, and THAT is what matters.
     
  14. Archie

    Archie Member

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    I can tell you all this: I see many NCIC records of protection orders every week. They all have language stating the subject of the order may not possess a firearm under federal law - or words to that effect. All of them. If anyone wants to argue that doesn't mean it's valid under law, okay... but that is what they say.

    The idea that a single misdemeanor conviction of anything deprives a citizen of basic civil rights is unprecedented. The idea of a court order creating a permanent deprivation of civil rights is unthinkable.
     
  15. thesecond

    thesecond Member

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    Links ....

    This is, after all, the legal forum (and not the DOJ opinion forum).

    The 'controversy' has a case, i.e., U.S. v. Hayes, so, if anyone's interested in having a read ....

    U.S. Petitioner's Brief:
    http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_Petitioner.pdf

    Respondent Randy Hayes' Brief:
    http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_Respondent.pdf

    U.S. Petitioner's Reply Brief:
    http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_PetitionerReply.pdf

    And, of course, The Brady Amicus Brief:
    http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_PetitionerAmCu11LawEnforceOrgs.pdf

    I'm a slow reader, so, if this thread lasts, see you in a few .... :)

    P.S. 922(g)(9)
     
  16. damien

    damien Member

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    There was some commentary from court observers that the justices, in general, seemed skeptical of the government's position (that the Lautenberg amendment was constitutional). Hopefully we will have an opinion in a few months striking it down. A few additional unambiguous opinions from the court would help the inferior courts decide gun rights cases correctly at their level. Some day, the 9th is going to get tired of getting reversed (just reversed again today, not surprisingly on the sonar vs. whales issue).
     
  17. HIcarry

    HIcarry Member

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    I don't know if this is a factor in the case before SCOTUS, but isn't another issue with Lautenberg that it is being applied to those convicted prior to the implementation of the law, or ex post facto? (I hope I got that term right...)
     
  18. DMF

    DMF Member

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    That argument has been addressed, and it is NOT ex post facto law.

    I know there are a few cases where the ex post facto argument has been raised, and rejected, but here is a link to a case from the 4th Circuit Court of Appeals: United States v. Mitchell, 209 F.3d 319 (4th Cir. 2000)

    http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/us_v_mitchell2.txt

    Which states in pertinent part:

    "Mitchell next argues that as applied to him, section 922(g)(9)
    violates the Ex Post Facto Clause because both his firearm purchase
    and misdemeanor domestic violence conviction occurred prior to
    section 922(g)(9)'s enactment. See U.S. Const. art. I, section 9,
    cl. 3.

    Again we disagree. "To fall within the ex post facto
    prohibition, a law must be retrospective -- that is, it must apply
    to events occurring before its enactment -- and it must
    disadvantage the offender affected by it by altering the definition
    of criminal conduct or increasing the punishment for the crime."
    Lynce v. Mathis, 519 U.S. 433, 441 (1997) (citations and internal
    quotation marks omitted). It is immaterial that Mitchell's firearm
    purchase and domestic violence conviction occurred prior to section
    922(g)(9)'s enactment because the conduct prohibited by section
    922(g)(9) is the possession of a firearm. See, e.g., United States
    v. Boyd, 52 F. Supp. 2d 1233, 1236-37 (D. Kan. 1999) ("This court,
    as have all others deciding such a challenge, have concluded that
    ... the illegal act in section 922(g)(9) is the possession of the
    firearm, not the misdemeanor domestic violence conviction . .. .");
    National Ass'n of Gov't Employees v. Barrett, 968 F. Supp. 1564,
    1575-76 (N.D. Ga. 1997), aff'd sub nom. Hiley v. Barrett, 155 F.3d
    1276 (11th Cir. 1998). As it is undisputed that Mitchell possessed
    the firearm after the enactment of section 922(g)(9), the law's
    application to Mitchell does not run afoul of the ex post facto
    prohibition.

    Courts addressing similar ex post facto challenges to section
    922(g)(9) have all agreed with this conclusion. See, e.g., Boyd, 52
    F. Supp. 2d at 1236-37; McHugh v. Rubin, 49 F. Supp. 2d 105, 108
    (E.D.N.Y. 1999); United States v. Hicks, 992 F. Supp. 1244, 1245-46
    (D. Kan. 1997); United States v. Meade, 986 F. Supp. 66, 69 (D.
    Mass. 1997), aff'd, 175 F.2d 215 (1st Cir. 1999); Barrett, 968 F.
    Supp. at 1575-76.

    Analogous ex post facto challenges to other similarly worded
    firearm possession crimes have also failed. See, e.g., United
    States v. D'Angelo, 819 F.2d 1062, 1065-66 (11th Cir. 1987)
    (Defendant "was in possession of the pistol after the enactment of
    the statute. Proof of [defendant's] possession obviated the need
    for proof of the date [defendant] received the pistol."); United
    States v. Brady, 26 F.3d 282, 290-91 (2d Cir. 1994); United States
    v. Gillies, 851 F.2d 492, 495 (1st Cir. 1988)."
     
  19. BHP FAN

    BHP FAN Member

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    ''Proof of [defendant's] possession obviated the need
    for proof of the date [defendant] received the pistol..."
    scary precedent,right there.
     
  20. Zoogster

    Zoogster Member

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    Wow, so ex post facto laws that are even more restrictive are now legal.

    The entire Constitution is being unraveled.

    The path is being paved for absolutely whatever rulers decide to be legal and "constitutional".

    Extreme restrictions on federal power, and things like limiting Congressional power to Interstate Commerce mean nothing.
     
  21. divemedic

    divemedic Member

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    just to clear it up- it is illegal for you to be in possession of a firearm if you are the subject of a DV restraining order, and the initial temporary one is nearly always issued ex parte (that means with the petitioner and not the respondent present) A hearing is then later held, in which both sides are asked to prove why the DV order should/ should not be made permanent. How do I know? It happened to me.

    This set of events happened to me during the period of March through September of 2004, events which resulted in my CWP being revoked, and nearly ended my career. It took me six months, multiple hearings, an administrative appeal, and several thousand dollars in attorney fees to finally clear my name. Sorry if this is a long story.

    It began when my then live in girlfriend announced that she wanted to see other people and moved out. While we were living together, her car had broken down, and I had been letting her drive my second car while she was awaiting repairs. She had also been using a second cell phone on my Nextel account. (Trust me, I am not rambling- this is all important later)

    When she moved out in February 2004, I turned off the cell phone and I asked for my car back. She refused. I called the cops, they told me that since I had given her the keys, it was a civil matter. I didn't know where she moved to, so my car was gone. A month later, I saw the car parked at the mall, but there was a "club" on the steering wheel. I had it towed to my house.

    The next day, there was a sheriff's deputy at my door with a domestic violence injunction, ordering me to appear at a hearing a week later. At the hearing, she produced a written statement where she claimed that I had been beating her while we were together. No proof, no witnesses, no police reports, no medical records, no marks on her, no corroborating evidence of any kind, just her say-so. It turns out that there is a "domestic violence victims advocates office" at the court house that coaches these women in what to say, and juggles the calendar to make sure they get sympathetic judges.

    While in court, she began crying and told the judge that I had taken away her phone, and that I had taken back my car which was her only transportation, and left her with no way to get to work. She also told the judge that she was afraid of me because I owned a lot of guns. This infuriated the judge, and he ordered me to turn my guns in to the police, revoked my CCW, and ordered me to provide her with a car and a phone.

    He also said that since my 2 jobs as a paramedic could potentially bring me near her that I was prohibited from going to work. One job was willing to work with me, the other one fired me the next day.

    My attorney pointed out that we were never married, and the car was mine. The judge told him to sit down. Luckily, the attorney had prewarned me about the anti-gun attitude of the judge, and I had sold all of my guns to my brother in law two days earlier. Since this was not a final judgment, we could not appeal. The judge also said that my taking away "her" car and phone was a kind of violence, in that I was using my financial influence and the threat of firearms to control her.

    For the next six months, we had numerous hearings, and I got one of my jobs back. I had to endure her showing up everywhere I went and she would use the restraining order to force me to leave, sometimes while I was in the middle of dining in a restaurant. I started making sure I had witnesses wherever I was, so that she couldn't accuse me of anything. I hung out with friends and family, so that way it wouldn't be my word against hers.

    It would go like this: I would be at a sports bar owned by my partner, and she would show up, and call the police. Since I was there first, they couldn't arrest me, but they would make me leave. She would go grocery shopping at the store across the street from my house, and tell the cops I was watching her from my window, and they would come over and hassle me. She called the cops and told them her doctor's office was in my mom's neighborhood, and they would even throw me out of my mom's house, and make me leave until she was finished at the doctor.

    One night, she called me and told me that the whole thing would go away if I paid her $10,000 in cash and let her keep the car. I refused. My attorney was finally able to trip the judge on a legal technicality, and got him recused from the case. With a new judge, we got the whole thing thrown out, and I got my car back. By the time I got it, it had been damaged by some sort of tool.

    Another month and some administrative appeals later, I managed to get my CWP back. I bought the guns from my brother in law, and my life returned to normal.

    All of this was done on a statement filled out by her, with no witnesses, and no proof whatsoever. The initial order was issued in an ex parte hearing. I discovered that when you get in front of these judges, you are at their mercy. They can ruin your life. One of the deputies told me that most of the domestic violence injunctions he serves are not really violence, but women trying to gain the upper hand in divorce proceedings, or out to get revenge.

    Thanks Lautenberg.
     
  22. armoredman

    armoredman Member

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    Did you ever countersue, slander, anything like that?
     
  23. sailortoo

    sailortoo Member

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    Divemedic - a scarey story, to say the least! The woman involved was bad enough, but the first judge involved needs a long rest with service through the bars! Again - scarey, and a heads up about where judges come from.
    sailortoo
     
  24. Zoogster

    Zoogster Member

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    Clearly you do not understand the likely result in a court of law.

    It would be her word against his, and even if it was determined he was in the right, what she "felt" at the time is not wrong, it is what she felt.
    Proving that it was not what she "felt" but was instead vindictive in court would be a very difficult task. Just like her proving it was more would also be difficult.


    What a countersuit would accomplish is simply employing attorneys on both sides, costing both many thousands more in attorney fees.

    Now if he makes more money than her, that could actualy be more harmful to her, resulting in her losing quantities of money more necessary to her than to him. He could try to be as bad as she was by using the system.
    So the person who has more money to feed to the courts can "win" in that way, but to "win", both have to lose more.

    Attorneys are likely to encourage additional lawsuits, because that is the product they sell: thier time in representation. The more litigation, the more they win.

    The court is a system, that system employs many thousands of people in a given area. It is like a Casino in that for every big "winner" (which really just means someone else lost bigger than the winner won) you hear about and gets highlighted in media, many thousands pump money into it with little or no return and are lucky to break even.
    Anyone that thinks they will "win" by using the system on a regular basis has not seen the system in action.
    Suing someone over something so difficult to reliably prove in court would just cost money, and be very unlikely to result in any charges or financial gain.

    In fact to gain something she has to have something valuable to take, that after court fees still equates to more than was given to the attorneys in taking it to court.
    So in both criminal and civil court it would not be very beneficial.

    The system feeds on such people who bitterly use it to be vindictive to eachother. It grows fat in employment and assessed fees, fines, and both people usualy lose.
    It is like those bitter divorces where in the end, after all the lawyer fees are added up on both sides, a significant portion of the assets they were dividing up are simply gone. Gone into the pockets of the system to never be seen by either of them.
    Yet many people continue to do it on a regular basis. So consumed by hatred for the person they supposedly "loved" that they will destroy eachother.
    Lautenberg just provided an additional way to do it.




    Arguably Lautenberg puts women in even more danger, because a man actualy intent on harming an ex could use it to insure the woman was legaly disarmed prior to harming her. Since a woman is worse off if both are legaly disarmed, it benefits the stronger man even if (big if) both really are disarmed of firearms.
    The ex could defend herself against a man with a gun, using a gun herself. She is at a much greater disadvantage if she has no firearm and he comes along with a blunt or edged weapon, or some other tool to use violently.
     
    Last edited: Nov 14, 2008
  25. DMF

    DMF Member

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    Unravled? That is utterly ridiculous. 18USC922(g)(9) was passed by the Legislative branch in the manner defined in Article I of the Constitution, it has been signed into law and implemented by the Executive branch as defined in Article II of the Constitution, and it has been challenged and ruled on in the Judicial branch as defined in Article III of the Constitution. The whole process is being done exactly as the Constitution says it should be done. Further, through that process it has been determined that 18USC922(g)(9) is NOT ex post facto law.

    Further, this is not a new concept related to 922(g)(9) similar challenges have been presented in relation to 18USC922(g)(1), the prohibition on felons possessing firearms/ammunition, and have also been rejected by the courts.

    You see if you're going to claim to love and want to protect the Constitution, you have to protect ALL of it, including the process of creating, implementing, and interpreting laws defined in Articles I, II, and III.
     
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