Lautenburg amendment upheld.

[Duke of Doubt]

Hanafuda: "I was a prosecutor for 5 years and recollect quite a few domestic assault convictions in which no physical contact took place. "Assault" means action which places another in "imminent apprehension of bodily harm" - that's a pretty standard, codified definition derived from common law. So as a prosecutor, you ask the victim if he or she believed the defendant was going to strike them, and if they say yes (and the judge or jury believes it), then guilty."

My distinction was between a verbal argument and a physical assault, which in my state doesn't require actual contact, either. For example, drawing a gun may be assault, as may be swinging and missing, or even swinging short under some circumstances, or throwing an object and missing. But an objective "reasonable person" standard is employed by the finder of fact, not the subjective fears, real or imagined, of the victim.

Hanafuda: "I also pleaded plenty of 'weak' domestic cases to simple assault, because the victim recanted and refused to testify (but the police officer wouldn't drop the complaint), or because it involved parental discipline gone a little overboard, and etc. The intention of the plea agreement was to take the case out of the 'domestic violence' arena. But under this ruling, all those people who pleaded to simple assault also lose their gun rights."

Correct, and this was the rule in all but the 4th before this decision. Defense counsel in your "weak" cases where the victim recanted should have subpoenaed the recanting victim and introduced her testimony to impeach her earlier statements.

 

[ArmedBear]

But an objective "reasonable person" standard is employed by the finder of fact, not the subjective fears, real or imagined, of the victim.

I've done jury duty. Haven't seen a lot of reasonable people in the box.

 

[Husker_Fan]

“[T]he term ‘misdemeanor crime of domestic violence’ means an offense that— “(i) is a misdemeanor under Federal, State, or Tribal law; and “(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated withthe victim as a spouse, parent, or guardian, or by aperson similarly situated to a spouse, parent, or guardian of the victim.”

I'm not doubting you Duke, but this is the definition for the Lautenberg amendment. I don't see how a verbal argument that only made a person feel treatened, without the threatened use of a deadly weapon would qualify.

As for "this was the rule in all but the 4th before this decision," I looked at the opinion and it looke to me like the nine other appelate courts had reached the same conclusion as Ginsburg, and that the 4th was the only one finding otherwise.

 

[Hanafuda]

OK, Duke, I see you are an informed and thinking gentleman after all.

Yes, the 'reasonable man' standard does apply in determining whether the evidence meets the burden, and not the subjective fears of the victim. But in practice, the fact finder's job is to determine whether those subjective fears were reasonable. And when its a 300lb redneck with a beard and tats vs. a 125lb stringbean trailer princess, it doesn't usually take the jury all that long to reach a verdict (even though the 'victim' could, in reality, probably kick the big baby's ass and leave him blubberin')


Husker said:

As for "this was the rule in all but the 4th before this decision," I looked at the opinion and it looke to me like the nine other appelate courts had reached the same conclusion as Ginsburg, and that the 4th was the only one finding otherwise.

that's because the 4th Circuit is the last bastion of freedom.

 

[Duke of Doubt]

ArmedBear: "I've done jury duty. Haven't seen a lot of reasonable people in the box."

Jury instruction is critical. If the jury verdict of guilty could not possibly have been reached under the instructions given, a judgment notwithstanding verdict is justified. As might be an appeal.

 

[Duke of Doubt]

HuskerFan: "I'm not doubting you Duke, but this is the definition for the Lautenberg amendment. I don't see how a verbal argument that only made a person feel treatened, without the threatened use of a deadly weapon would qualify."

That's exactly what I'm saying.

HuskerFan: "As for "this was the rule in all but the 4th before this decision," I looked at the opinion and it looke to me like the nine other appelate courts had reached the same conclusion as Ginsburg, and that the 4th was the only one finding otherwise."

That's exactly what I said.

 

[Husker_Fan]

that's because the 4th Circuit is the last bastion of freedom.

I don't know that that has anything to do with it. From a statutory construction point of view, I actually think the Court's view is pretty well thought out, even though I don't like the law.

I would like court cases to reach the results I like, but it is more important to me that they use the right reasons.

 

[Husker_Fan]

Duke:

That's exactly what I'm saying.

Not doubting you, but dang, if that is supposed to be under the Lautenberg amendment (and not some state provision) that is messed up.

That's exactly what I said.

My mistake. I reread the exchange above and it made more sense this time.

 

[leadcounsel]

Well it's laws like these the serve to destroy families, not reunite them.

Sad sad sad....

 

[Duke of Doubt]

HuskerFan: "Not doubting you, but dang, if that is supposed to be under the Lautenberg amendment (and not some state provision) that is messed up."

I think there's a misunderstanding here. Several posters claimed that a verbal argument can be a crime of domestic violence under Lautenberg. I disagreed and say that it cannot be, at least in any state I've ever lived.

 

[Husker_Fan]

Sorry, I took your response to mean the opposite.

Squared away now.

 

[agd1953]

Now wait for your step kids to call the cops because you made them do what you told them to do

 

[Hanafuda]

West Virginia Code, with emphasis added ...

§61-2-28. Domestic violence -- Criminal acts.
(a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.

(b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.

so, "committing an act which places a family or household member in reasonable apprehension of immediately receiving a violent injury" is what you have to do in my state. What constitutes such an act? Don't forget that people LIE to the police. And the police are usually going to arrest someone when they get called to a domestic scene, for liability reasons. After that, its just a question of fact whether your actions rose to that level or not. That means the jury decides, and do you think a jury of 6 rednecks is concerned about the precise meaning of those words? Nope. They just decide if they think the defendant was in the wrong or not.


For years, the 4th Cir. has held that pleading to a simple assault or simple battery would opt the case out of the Lautenburg amendment, so of course a lot of defendants took that plea rather than risk their fate to a jury. Now they're all getting screwed.

 

[Husker_Fan]

Hanafuda,
The fact that "an act which places a family or household member in reasonable apprehension of immediately receiving a violent injury" is defined as domestic assault in your state doesn't mean anything under Lautenberg. The definition in the federal statute is what matters. See the quoted statute above.

Whether or not your state has a rule that such a conviction results in a loss of gun rights has no bearing on Lautenber either.

 

[Hanafuda]

Whether or not your state has a rule that such a conviction results in a loss of gun rights has no bearing on Lautenber either.

Ah, but of course it does, because if the Court had done its job, the state statute (which was only a spinoff of Lautenburg anyway and never would've happened if it weren't for Lautenburg) would be struck down along with the federal.

I don't care if Constitutionality was or wasn't argued by plaintiff ... the Court has sua sponte raised Constitutionality before and will again. It is as fundamental as the test for jurisdiction. This is clearly an unconstitutional infringement of an identified right, and the Court abrogated its duty to quash it. But it's obvious that the majority of judicial opinion in the SCOTUS as well as the federal circuits is against my interpretation of the 2nd Amendment, and it looks like I'm outnumbered in this thread too.

oh well. maybe I should re-think my interpretation of 'shall not be infringed.'

 

[Travis Bickle]

Ah, but of course it does, because if the Court had done its job, the state statute (which was only a spinoff of Lautenburg anyway and never would've happened if it weren't for Lautenburg) would be struck down along with the federal.

Probably the only reason Lautenberg was ever invoked because he also in violation of the state law. The cops around here don't give a spit about Section 922 because it's not a state law. What happens is, someone will break a state law and then after he's in jail, the DA goes over the law books with a fine-tooth comb looking for anything he can be charged with. All this, of course, is a result of the NRAs whining about how the government should "enforce the laws on the books."

I suppose the guy should actually be glad the case went federal, since the federal prisons are not nearly as bad as most state prisons.

 

[DCR]

for many, 2A rights vanish under this ruling

In my state, some MCDV's are pled down to disturbing the peace - usually when the "victim" becomes uncooperative or there's no proof of assault or battery, a classic "he said-she said" situation.

Our state defines "disturbing the peace" as "loud or unusual noise, or by tumultuous or offensive conduct, or by threatening, traducing, quarreling, challenging to fight or fighting...."

So, when a guy (or gal) agrees to a plea agreement where the original MCDV is reduced to Disturbing the Peace, and years later fills out the 4473 and goes through the background check, the BATFE folks get his whole criminal history, see an arrest for and original charge of MCDV, see Disturbing the Peace, read our state's Disturbing the Peace statute, and impose their own decision that he committed an MCDV based on the original charge, even though he hasn't ever been convicted of an MCDV, because DTP includes possible threats or uses of force or violence.

This decision forces BATFE to look beyond what the final outcome of the case was and decide, based on their own biases, whether to deny, hold or grant, and we all know they'll err on the side of deny, forcing him to go through an appeal. That'll involve getting original paperwork, the transcript of the sentencing hearing, but they can demand it go even further, providing officer reports and "victim" statements, which unfortunately can and often do contain errors (none of which are ever in favor of the arrestee), and will make it infinitely harder, if not impossible, for the guy who got the police called on him following a yelling match, got arrested because she was in tears and the local LEO's have a "shall arrest" policy (most all do, thanks to the federal STOP grants), and got prosecuted by an overzealous prosecutor (many are because STOP grants pay their salaries, and have "no drop" or "no deal" policies on domestic violence cases as a condition to continue to receive the federal dollars) to ever own or possess a firearm again.

This case has much broader implications than has been discussed so far; it really took a chunk out of our 2A rights. It effectively can take away the 2A rights of a guy who pled to a lesser charge, rightfully or wrongfully, and has since enjoyed his 2A rights. It has also completely undermined the understanding of prosecutors, defense attorneys and defendants since Lautenberg was passed, and effectively gives decision-making authority over someone's 2A rights to those that do background checks and others who have no formal training in the law. It's a sad day for everyone.

 

[Duke of Doubt]

DCR: "This case has much broader implications than has been discussed so far; it really took a chunk out of our 2A rights. It effectively can take away the 2A rights of a guy who pled to a lesser charge, rightfully or wrongfully, and has since enjoyed his 2A rights. It has also completely undermined the understanding of prosecutors, defense attorneys and defendants since Lautenberg was passed, and effectively gives decision-making authority over someone's 2A rights to those that do background checks and others who have no formal training in the law. It's a sad day for everyone."

Only in the Fourth Circuit. Everyone else has lived with this mess for years. On the "bright side", an awful lot of guns (tens to hundreds of thousands) are going to be dumped on the market next week in the Fourth Circuit, bringing national prices down.

 

[user3214]

Domestic Violence: http://www.clarkprosecutor.org/html/domviol/what.htm

USING PHYSICAL AND SEXUAL ABUSE
Hair pulling, biting, shaking, pushing, pinching, choking, kicking, confinement, slapping, hitting, punching, using weapons, forced intercourse, unwanted sexual touching in public or in private and depriving her of food or sleep.

USING EMOTIONAL ABUSE

Insulting her in public or in private
Putting down her friends and family
Making her feel bad about herself
Calling her names
Making her think she's crazy
Playing mind games
Humiliating her
Making her feel guilty
Using Male Privilege; acting like "Master of the Castle"
Treating her like a servant
Making all the big decisions
Being the one to define men's and women's roles.

USING ECONOMIC ABUSE

Preventing her from getting or keeping a job
Making her ask for money
Giving her an allowance
Taking her money
Not letting her know about or have access to family income
Not allowing her a voice in important financial decisions
Demanding exclusive control over household finances.

USING COERCION AND THREATS

Making or carrying out threats to do something to hurt her
Threatening to leave her, or to commit suicide
Threatening to report her to welfare
Making her drop charges
Making her do illegal things.

USING INTIMIDATION

Making her afraid by using looks, gestures, or actions
Throwing or smashing things, destroying property
Abusing pets
Dangerous driving
Displaying weapons.

USING CHILDREN

Making her feel guilty about the children
Using the children to relay messages
Using visitation to harass her
Threatening to take the children away.

USING ISOLATION

Controlling what she does, who she sees, what she reads, & where she goes
Limiting her outside involvement
Refusing to let her learn to drive, go to school, or get a job
Not allowing her to freely use the car or the telephone.

USING JEALOUSY AND BLAME TO JUSTIFY ACTIONS

Minimizing, Denying, Blaming
Making light of the abuse and not taking her concerns about it seriously
Checking up on where she's been or who she's talked to
Accusing her of infidelity
Saying the abuse didn't happen
Shifting responsibility for abusive behavior
Saying she caused it.

 

[usmarine0352_2005]

Only in the Fourth Circuit. Everyone else has lived with this mess for years. On the "bright side", an awful lot of guns (tens to hundreds of thousands) are going to be dumped on the market next week in the Fourth Circuit, bringing national prices down.

That's an awful way to acquire a gun if your buying it from a good person who got screwed out of their 2nd Amendment rights.


.

 

[rugerman07]

The SCOTUS ruling on LAUTENBERG is just a stepping stone of things to come. It will open doors for other misdemeanor convictions to rob the people of their 2A rights. We're not at the doorstep of socialism, we've already walked through it.

 

[Travis Bickle]

Threatening to leave her, or to commit suicide

So a woman drives a man to suicide and she's the one who's the victim of domestic violence?

This society is sick, and getting sicker all the time.

 

[Duke of Doubt]

user3214, that other crap is not implicated under the Lautenberg Amendment:

http://www.thehighroad.org/showthread.php?p=5371278#post5371278

See Post 48 of that thread.

 

[Travis Bickle]

The SCOTUS ruling on LAUTENBERG is just a stepping stone of things to come. It will open doors for more misdemeanor convictions to rob the people of their 2A rights.

Yup. Expect more and more misdemeanor offenses to be added to Section 922 until practically no one can legally own a gun. That's their plan.

 

[Husker_Fan]

Are you saying that almost no one has managed to make it through life without a misdemeanor conviction?

Maybe I am just naive, but there seems to be a lot of overly dramatic responses to the opinion.