Supreme court arguments today re: Lautenberg

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DMF,

Thanks for the info. I haven't had a chance to look at the link, but from the excerpt you gave, I have to admit that my non-lawyer brain has some difficulty wrapping itself around the logic of the finding re: the ex post facto issue. I am not saying your cites are inaccurate, clearly they are. And, you are quite obviously in a better position to judge the reasoning used by the various courts to come to their respective conclusions.

Again we disagree.
I assume this is the court speaking

"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).
This is where I start to loose the logic. Clearly both events in question, the crime (the assault) and the legal act of purchasing the gun, occured prior to passage of The Act. Furthermore, it both altered the "definition of criminal conduct" (before the act gun possession was legal) and increased the the punishment for the crime (removal of a civil right not previously impacted by the conviction) by prohibiting the possession of the gun.

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.
Again, the logic seems to escape me insofar as prior to enactment of 922(g)(9) a person with a misdemeanor DV conviction could legally possess a firearm, it was the enactment of the statue that created the prohibition. To dismiss as immaterial the fact that both the events (assault/gun purchase) occured prior to enactment seems almost (again, to my non-lawyer brain) counter-intuitive.

I hope you don't think I am trying to start some sort of pissin' contest here. I'm not. I am just trying to understand the logic of the courts and see if I am missing some major factor that makes it so unclear to me yet so obvious to all the courts that seem to concur with the decision. Thanks again for the info and the citations, as well as the willingness to share your expertise.

Aloha
 
Did you ever countersue, slander, anything like that?

I was told by my attorney that the courts will not allow such a suit to proceed, because if word got out that a woman who reported domestic violence was subsequently punished if she were not believed, then women would be afraid to come forward.

In legal circles, punishing men for, and protecting women from, domestic violence is en vogue.
 
Anyone read the briefs yet?

More briefs, filed by other 'interested parties':

PRO 2A (in support of Respondent Hayes) ....

Eagle Forum Education and Legal Defense Fund:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_RespondentAmCuEagleForumELDF.pdf

Second Amendment Foundation, Inc. (Alan Gura):
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_RespondentAmCu2ndAmendmentFound.pdf

Gun Owners Foundation:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_RespondentAmCuGunOwnersFound.pdf

ANTI ....
Senators Lautenberg, Fienstein, and Murray:
http://www.abanet.org/publiced/prev...etitionerAmCuSenLautenbergFeinsteinMurray.pdf

AND ....

NEUTRAL ....
Professor of Linguistics and Cognitive Sciences:
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-608_NeutralAmCuProfLingCognitiveSci.pdf

My guess is that no one (including those who feel strongly enough to reprimand others on this thread) has read any of the briefs, for which I've posted links. The info. is now available. It's the responsible thing to do before engaging in legal punditry, no?

divemedic, sorry to read of your difficult situation. I hope for a positive outcome, eventually.
 
thesecond, you would be wrong. I've read all the briefs, including the orals.

What DMF says about the ex post facto matter is true... Up to a point.

Before Heller, firearms were mere possessions. The dynamic now changes since firearms are now part and parcel, implements of an individual right. That makes taking them away from people convicted of A&B (that some courts have found to be MCDV) prior to the enactment of the statute, a further punishment. It can also be argued that the permanent restriction of an individual right upon a misdemeanor conviction is unconstitutional itself.

This was hinted at, by the Court, during the orals.
 
Al Norris,

I’ll assume that you have read all of the preceding posts, so I will thank you for your ‘assessment‘. I'm happy to be wrong in my ‘guess‘, as, I’ll likewise assume that you telling me of my error, publicly, indicates that someone on this forum, besides me, namely you, has read the briefs (including the amici briefs) and the oral transcript (BTW, thanks for the link on TFL) before commenting (quite vigorously, and, perhaps, rudely) on what is being argued before the Court.

The ex-post facto argument, I'm aware, was rejected in the 4th circuit Mitchell case. Possession of the firearm is the transgression under 922(g)(9), not the underlying facts (of the predicate offense). It would have been polite for one to explain why he or she believes another’s analysis is wrong, before insulting such others, most of whom I considered to be ‘curious posters’ (some of whom, frustrated), in such a dismissive fashion.

Truth be told, I can understand the other members’ frustration with the legal profession being perceived as ‘divining’ results, or, as fashioning the law for their pre-determined objectives. The truth is that one branch of the government has been overly ambitious creating law (Congress), another is forever tempted with absolute power in enforcing it (The Executive). The third must make sense of the mess that’s been given, with due respect to that continually accumulating body of law we‘ve inherited, tempered by the compassionate awareness that people‘s fates are concretely affected, and, ultimately, and truly, remaining faithful to the Constitution. Heller, narrow as it is, will prove itself “the gift that keeps on giving“, and after it’s said and done, the Courts will have confronted, with logic and grace, the public perception that “it” is all about selfish mental acrobatics.

It should be noted that although the ex-post facto issue was not raised on the record, there are a number of other legal principles and circumstances, alluded to by the Court (addressing application of the law, e.g., the vagueness doctrine and the rule of Lenity as it applies to guilty pleas in consultation with an attorney, the absence or presence of misdemeanor domestic violence statutes and variations among those in effect, the Court’s use of a ‘categorical approach’ to the application of federal prohibitions flowing from prior state convictions) outside of the issues focused on by Attorneys Giatras and Saharsky, I.e., statutory interpretation. Fortunately, the amici briefs filed (thanks to esq.’s Gura, Smith, and Titus) help inform us better of ALL the issues being contemplated by the SCOTUS.

I’m not nominating Respondent Hayes for a humanitarian award anytime soon, but should he get to keep pop’s .30-.30? What say you?

P.S. Here's the link to the transcript of oral arguments:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/07-608.pdf


P.S.S. Kudos to Al Norris, for comments and analysis elsewhere. After reading the oral argument transcripts, I agree that it's an exciting case post-Heller, and that we can expect, and be thankful for, more meaningful litigation.

:)
 
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This is where I start to loose the logic. Clearly both events in question, the crime (the assault) and the legal act of purchasing the gun, occured prior to passage of The Act.
No the crime, being possession of the firearm/ammunition is only a crime AFTER the date the law went into affect. It would only be "ex post facto" law if they tried to criminalize the possession of the firearm prior to the law. So if a person had MCDV conviction in 1994 and had firearms up to the date the law went into affect in 1996, but legally disposed of those firearms the day before the law went into affect that person could not be prosecuted for violating 18USC922(g)(9). However, if they possessed the firearms after the law went into affect then they would be in violation of 18USC922(g)(1). You see it's only activity that occurs after the law, not before that can be prosecuted.

Again, this is not a new issue. Similar challenges were made after 1968 with 18USC922(g)(1), when the law created a prohibition on firearms/ammunition possession by felons.
Again, the logic seems to escape me insofar as prior to enactment of 922(g)(9) a person with a misdemeanor DV conviction could legally possess a firearm, it was the enactment of the statue that created the prohibition. To dismiss as immaterial the fact that both the events (assault/gun purchase) occured prior to enactment seems almost (again, to my non-lawyer brain) counter-intuitive.
Well as I've said, the receipt of the firearm and the possession of the firearm BEFORE the law went into affect are not criminalized by the law and cannot be prosecuted. The created a prohibition on possession of firearms and ammunition for those convicted of MCDV, and only possession of firearms and ammunition AFTER the law went into affect are criminal acts. So what occurred prior to the law going into affect is not relevant.
 
thesecond, sorry that you feel I was rude. However, you did say:
My guess is that no one (including those who feel strongly enough to reprimand others on this thread) has read any of the briefs, for which I've posted links.
Which was the object of my first sentence. While being sarcasm, it is not necessarily rude.
It would have been polite for one to explain why he or she believes another’s analysis is wrong, before insulting such others, most of whom I considered to be ‘curious posters’ (some of whom, frustrated), in such a dismissive fashion.
Unlike others, I don't cross-post. A habit I learned back in the days of usenet. If you find that a failing of mine, then all I can say is that my failure was in not linking to my analysis. For that, I apologize (brevity is not always good).

For those wondering, this thread at TFL has the links referred to by thesecond, and this post is the one where I give my analysis of the case.
 
My situation resolved over 4 years ago. I got my CCW back, I got my guns back, and the nutcase is out of my life. I was just handing out a friendly warning, is all.
 
An ex post facto law is:
1. Criminalizing something that was not a crime beforehand
OR
2. Retroactively increasing the punishment for a crime

Obviously, permanently stripping someone of a fundamental constitutional right for a petty offense that may have occurred decades ago AS A RESULT of that initial conviction is an ex post facto law.

Just because the material submitted on prior posts addressed (1) does not make (2) less true.

In my own opinion, our current culture demands that the authorities disarm the people whenever a plausible excuse crops up. Domestic violence is a serious matter especially to victims and the hordes of special interest groups, lawyers, and government bureaucrats that make their livelihoods on these cases. When has it become common to see open carry? How often do we hear of cases where people have been hassled for doing so? What is the mindset of average people on others carrying guns?

Like it or not, anyone other than police keeping/bearing guns fights against public misconception. Prosecutors and judges see the scum of society everyday, and will use every tool at their disposal to disarm these people. If your actions involve yourself into their world, then you're in for it.
 
Al Norris: No offense taken, but how 'bout we not let this thread continue sideways. You've read the briefs and oral argument, good job.

The ex-post facto issue is subsumed under the discussion of other legal issues at play, e.g., statutory interpretation of 922(g)(9) and 921(A)(33), and the rule of lenity. The ex-post fact case cited, is pre-Heller.
 
Fact is fact not law

This is in response DMF's response


You must be one of those lawyers that encourages litigation.... to feed your deep pockets.


Hello,
I'm havoc's wife and am also a Social Worker. The gentleman with the story of how his ex was able to make a statement after hours and have a ex parte emergency temporary relief from abuse order granted by a judge is absolutely correct. it happens every day, many times a day. As a Social Worker, I've seen instances when it was truly warranted for the alleged perpetrator to be relieved of his firearms... I've also seen many instances when victims use the system to play out their revenge..... the system is not fool proof and unfortunately, like this gentleman, people get hurt if not ruined in the process. So believe it folks. I used to be a Director of a domestic and sexual violence program and saw how it truly protected some victims and how some alleged victims used it to their advantage.

Mrs. Havoc, MSW
P.S. I own a firearms repair and sales business, have an FFL and own personal firearms as well...
 
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We have one attorney in this discussion, being lynched by an enclave of outhouse lawyers.

It's "you're" . . . not "your." And from that juncture the syllogism takes a nose dive.
 
Actually, I agree with DMF. I do not think this law fits the definition of ex post facto any more than GCA68 does. If the Lautenberg Amendment is to be successfully challenged, that is not the way to do it.
 
Fact is fact not law

--------------------------------------------------------------------------------

This is in response DMF's response


You must be one of those lawyers that encourages litigation.... to feed your deep pockets.
Always entertaining to see someone spout off without even bothering to find out the truth. :rolleyes: It's been established on these forums for quite some time that I'm a cop, not a lawyer.
 
Lautenberg's implementation in family courts

Well, I am a lawyer and I practice family law and it is true that Lautenberg gets abused to create a tactical advantage in family law cases. One party can go into court "ex parte" (without the other side being aware of it) and get a restraining order based on allegations of abuse in a domestic context. This can grant not only the restraining order, but also temporary possession of the residence and maybe a car, custody of the children, temporary parenting time, and often temporary support. The other side gets served with the order and then has an opportunity to request a supposedly quick hearing to contest the order (although this can easily be postponed for quite a while).

The burden of proof for the petitioner is theoretically a preponderance of the evidence, but in most cases it's a "he said, she said" situation and the court isn't sure who's telling the truth and so as a practical matter the legal standard becomes something along the lines of "better safe than sorry." Unfortunately for the respondent this means losing the right to possess firearms for an period of time. Cie la vie. If you don't like it then write to your congressman to get it changed. Good luck with that, though, since it's unlikely that very many politicians are going to want to be characterized as supporting wife beaters.

In my opinion the real problem is how some states and courts interpret Lautenberg to apply BEYOND the above. For example, if a respondent doesn't want to contest the abuse finding or the no-contact provisions but does want to contest the parenting time or custody or support provisions of the order the court STILL considers it to be a hearing where respondent had notice and an opportunity to be heard. After all, Lautenberg doesn't mention anywhere what the subject matter of the hearing has to be - only that there be a hearing with notice and an opportunity to be heard, and in this state the statute specifically applies Lautenberg to such situations. For an example order issued after such a hearing in Oregon, check out http://www.ojd.state.or.us/osca/cps...law/document/OrderAfterHearingMODIFY-6-08.pdf.

It can get even worse than that, but I'll leave that for another day.

In other words, it doesn't matter if you contest the underlying domestic violence, only that you had a hearing at all, and that is how Lautenberg is being used. Yeah, the court also has to check that respondent represents a credible threat but that's a given, because if respondent didn't then the case would have to be dismissed and the order would have no effect. So if you don't want to lose your right to possess a firearm then you let the ex take the kids, the house, the car and the money and keep your mouth shut. Or you roll the dice and request a hearing, which is a great option if you have a few extra thousand and a couple of years to spend getting it all straightened out on appeal.

I also wanted to put my two cents in on the "ex post facto" discussion. I think that DMF is legally correct (in the 4th Circuit, certainly) but let's face it - that's not really a just outcome, is it? One of the requirements for accepting a guilty plea is that the defendant understand the potential consequences of the conviction, and that wouldn't be the case if the rules get changed "ex post facto." I have to admit I don't know how to fix it, though.
 
I do not think this law fits the definition of ex post facto any more than GCA68 does. If the Lautenberg Amendment is to be successfully challenged, that is not the way to do it.
For society at large no, it is not the way to challenge it. For the individual that had a conviction prior to the increased ex post facto punishment years later, it is very valid.

Someone that commited a felony in 1967, whether it was for something like drugs (hippy era) or anything was not prohibited from bearing arms and excercising thier constitutional rights for life.
That someone can afterwards bring forward a law, increasing the punishment for something done previously, is a violation of ex post facto, regardless of who rules otherwise.

The same for those who had a misdemeanor conviction of domestic violence prior to the Lautenburg Amendment. If they did something prior to the increase in punishment, they are recieving increased punishment after the fact, which was not a part of thier sentencing or laws on the books at the time.


That of course does little to change the situation for everyone else, so is not the way to challenge those laws in general, just the specific application of it under those Ex Post Facto circumstances.
Increased punishment from new laws for something done prior to the laws is a violation of Ex Post Facto.
The punishment in this case is a lifetime prohibition of a constitutional right, brought on by a statute created long after thier crime.

It would be no different than declaring tommorrow that anyone who has ever had more than X number of speeding tickets, parking violations, accidents, or other automobile violations within Y number of years, anytime in thier life can no longer ever drive a car for the rest of thier life.
(Well except for driving is not a Constitutional Right.)
 
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Except it has not been established that loss of the ability to own a firearm is a punishment, and whether you or I think it is or not is immaterial.
 
divemedic: the prohibition on firearms possession, we should hope, will be seen as a punishment in light of Heller. That case will prove to change the context of the discourse.

Also, I'd like to know how many attorneys, in states which did not have a misdemeanor domestic violence statute (33 states, I believe), would reasonably have known that their client's plea of guilty to a misdemeanor assault/battery charge would bring felony-conviction-level prohibitions, after the passage of the Lautenberg amendment.

DMF: Your interpretation of ex-post facto law as it pertains to 922(g)(9), in the 4th circuit, and pre-Heller, is correct, but it is not the main issue of contention in the Hayes case. Assuming arguendo your take on U.S. v. Mitchell, a host of other legal principles, still call into question the constitutionality of the Lautenberg Amendment. I encourage you to read the briefs filed. (And thanks for your service.)

Many thanks to those who have shared with us their professional and personal experiences and commentary under the application of the domestic violence statutes and of the Lautenberg Amendment.
 
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Which is why I said at the very first, that in light of heller, the loss of the ability keep and bear arms, a civil right, is a punishment, particularly if the statute is read the way the government wants it read.

In Calder v. Bull, 3 U.S. (1 Dall.) 386, 390 (1798), Justice Chase set the 4 point rule that defines what this (ex post facto) means.

In the case we are dealing with here, the Court will decide how the statute is to be interpreted. That is, must the crime charged be an actual domestic violence criminal statute or will it merely mean that any assault and/or battery charge will do, so long as the victim is related to the aggressor.
 
Your interpretation of ex-post facto law as it pertains to 922(g)(9), in the 4th circuit, and pre-Heller, is correct, but it is not the main issue of contention in the Hayes case.
Yes, but other, not me, have raised that issue of ex post facto law. I've read most (probably not all) the briefs related to Hayes. These issues were not brought up as part of Hayes, but have been raised by people here on this thread, who have clearly not read the relevant case law on the subject of ex post facto law.
 
7.62x25mm said:
It's "you're" . . . not "your." And from that juncture the syllogism takes a nose dive.
To/at whom was this directed?

If it was directed at Mrs. Havoc, who posted immediately above you -- you're wrong, and she's right.

"You're" is the abbreviated form of "you are."

"Your" is the possessive form of "you." It appears to me that Mrs. Havoc's use of the word "your" was correct in context. If that's NOT who you were intending to "correct" (incorrectly), it might be a good idea to identify the alleged perpetrator of the grammatical goof.
 
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