Being new to the shooting arts, and having recently filled out a number of 4473's as part of the vetting process to ensure I am entitled to possess a firearm, I have to say that although most of the disqualifying criteria are reasonable, i.e. no felony convictions, no mental impairement, etc., the exclusion for conviction of a misdemeanor domestic violence charge is absurd. The threshold is much too low for that type of conviction, hell, you can probably be convicted for raising your voice, let alone for "bumping" your mate during an argument. If a couple argue and the police get called, it is almost a surety that someone will be cuffed and charged with domestic violence. Furthermore, I don't see any statute of limitation whereby this exclusion would sunset if there were no new charges (convictions). As such, this exclusion is a gross violation of our 2nd Amendment rights, and should be repealed. Does anyone else find this particular exclusion out of line with the intent of the background check and the other criteria? Has any legal entity, such as the NRA or the ACLU ever challenged this in court?
Repeal the Domestic Violence Misdemeanor Exculsion
- Thread starter arcsound
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Double Naught Spy
Sus Venator
the exclusion for conviction of a misdemeanor domestic violence charge is absurd. The
Untrue. Got any documentation?
Definitely untrue.
Given that your beliefs on what can cause arrest and conviction are not based in reality, your justification for repealing is unfounded.
Untrue. Got any documentation?
Definitely untrue.
Given that your beliefs on what can cause arrest and conviction are not based in reality, your justification for repealing is unfounded.
leadcounsel
member
Actually Arcsound is 100% spot on.
A misdemeanor conviction is an incredibly low threshold and it handled often in fast-food style courtrooms.
The basis for repealing someones' 2A rights should be a very high standard for a crime that warrants the punishment. However, a misdemeanor conviction can include threatening language, a minor argument, a minor physical alteration, etc.
As a prosecutor, and someone who's been in legal practice for nearly a decade, I can say that I have personally and anectdotally seen/heard of cases where:
1) Physical/verbal altercation occurs, generally among a couple that has a history of loud abusive arguments or is going through a rough patch. Alcohol is typically involved, so judgment is impaired. It's not typically a person's shining moment nor a reflection of who they are. They could have just learned about adultry or some other serious drama in their relationship and gone off the deep end.
2) Somebody, whether it's one of the couple or a friend/neighbor, calls the cops
3) Many jurisdicitons have a mandatory arrest policy, meaning that if the cops are called, they show up, and someone gets arrested. Usually it's the man, even if it's mutual combatives, because women bruise easier and are more prone to crying and hysterics and the man by default is the aggressor. Another reason is there are often children present and our biast system tends to keep women with kids.
4) Many jurisdicitons also have mandatory prosecution policies, meaning that if there's a Domestic Violence arrest, the prosecutor must prosecute the case. This prevents the DA from dropping it because the 'victim' often begs for the DA to drop it; and to prevent that the DA has to continue on the case.
5) Criminal courts are packed and deals are struck - often the DA will charge some felony (aggravated assault, for instance, if there was any weapon such as a thrown shoe, etc.). Faced with a felony, misdemeanor pleas are common. Or, even if there's no plea, a misdemeanor is trival and easy to prosecute.
Once you are tapped with a misdemeanor conviction for DV (and the SCOTUS recently ruled that ANY Violent misdemeanor eg. a bar fight could result in the loss of 2A), you lose your 2A rights under Lautenberg.
So, in summary, it's a very petty crime, a low conviction threshold and a loss of 2A rights and any job you would hold that requires using/possessing weapons, which are heavily male dominated (police, military, security, etc.).
Completely unconstitutional in procedure and substance and implementation.
A misdemeanor conviction is an incredibly low threshold and it handled often in fast-food style courtrooms.
The basis for repealing someones' 2A rights should be a very high standard for a crime that warrants the punishment. However, a misdemeanor conviction can include threatening language, a minor argument, a minor physical alteration, etc.
As a prosecutor, and someone who's been in legal practice for nearly a decade, I can say that I have personally and anectdotally seen/heard of cases where:
1) Physical/verbal altercation occurs, generally among a couple that has a history of loud abusive arguments or is going through a rough patch. Alcohol is typically involved, so judgment is impaired. It's not typically a person's shining moment nor a reflection of who they are. They could have just learned about adultry or some other serious drama in their relationship and gone off the deep end.
2) Somebody, whether it's one of the couple or a friend/neighbor, calls the cops
3) Many jurisdicitons have a mandatory arrest policy, meaning that if the cops are called, they show up, and someone gets arrested. Usually it's the man, even if it's mutual combatives, because women bruise easier and are more prone to crying and hysterics and the man by default is the aggressor. Another reason is there are often children present and our biast system tends to keep women with kids.
4) Many jurisdicitons also have mandatory prosecution policies, meaning that if there's a Domestic Violence arrest, the prosecutor must prosecute the case. This prevents the DA from dropping it because the 'victim' often begs for the DA to drop it; and to prevent that the DA has to continue on the case.
5) Criminal courts are packed and deals are struck - often the DA will charge some felony (aggravated assault, for instance, if there was any weapon such as a thrown shoe, etc.). Faced with a felony, misdemeanor pleas are common. Or, even if there's no plea, a misdemeanor is trival and easy to prosecute.
Once you are tapped with a misdemeanor conviction for DV (and the SCOTUS recently ruled that ANY Violent misdemeanor eg. a bar fight could result in the loss of 2A), you lose your 2A rights under Lautenberg.
So, in summary, it's a very petty crime, a low conviction threshold and a loss of 2A rights and any job you would hold that requires using/possessing weapons, which are heavily male dominated (police, military, security, etc.).
Completely unconstitutional in procedure and substance and implementation.
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alsaqr
Member
The DVA may be a violation of 2nd amendment rights in some cases. It is also never going to go away.
rocky branch
Member
I know there is a law in my city that requires an arrest if a domestic violence call is made.
Some of the founders of the law in this thread stated they did not realise how stringently it would be used.
There is a lot more to the original posters intent to dismiss him in such a snide manner.
This law has disarmed a lot of folks for some very insignificant incidents.
Some of the founders of the law in this thread stated they did not realise how stringently it would be used.
There is a lot more to the original posters intent to dismiss him in such a snide manner.
This law has disarmed a lot of folks for some very insignificant incidents.
HappyHunting
Member
I have a friend who went to the finals in a boxing tournament. His ex girlfriend turned 21 the other night and she got hammered and was feeling lonely so she called him up. He was in the shower, and wasn't invited to go out and celebrate in the first place. She came to his house anyway (drove), tried to kick his door in, keyed someone else's car thinking it was his, and then when he got out of the shower she stabbed him in the forearm with the key in what looks like a defensive wound. During the ordeal, the neighbors called the police and put my friend in handcuffs while getting statements. They let them both go.
I think in Alabama the police try and save the man the embarrassment of being assaulted by their lady-friends, regardless of whether there is domestic violence or not. I think that if it were the other way around they would have thrown the book at him, and used his boxing to make him even more threatening.
EDIT: I misspoke, they didn't let them both go, they took him to jail for hours on DV charges. Then let him go. They let the girl go at the same time, though.
I think in Alabama the police try and save the man the embarrassment of being assaulted by their lady-friends, regardless of whether there is domestic violence or not. I think that if it were the other way around they would have thrown the book at him, and used his boxing to make him even more threatening.
EDIT: I misspoke, they didn't let them both go, they took him to jail for hours on DV charges. Then let him go. They let the girl go at the same time, though.
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Robert Wilson
Member
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- Aug 13, 2009
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The trouble, of course, is that any politician or group coming out for this repeal will instantly be tarred with the "They want wife beaters and rapists to have guns!!!" brush.
from my understanding.....an arrest is only made if:
1.) someone admits to battery
2.) there is substantial proof (ie. one person bloody or bruised)
3.) there was a witness(s) to the event
anything else would seem like a "he said/ she said" event......
1.) someone admits to battery
2.) there is substantial proof (ie. one person bloody or bruised)
3.) there was a witness(s) to the event
anything else would seem like a "he said/ she said" event......
TexasRifleman
Moderator Emeritus
Depends on where you are. Colorado for example:
The simple fact of the matter is it's extremely easy to fall under these DV laws.
The simple fact of the matter is it's extremely easy to fall under these DV laws.
I understand that there has been at least one court challenge, in the 7th Circuit. But it failed. I believe that there have also been a couple of others that were unsuccessful.
leadcounsel
member
And let's also not forget this is a backdoor end-around assault on the 2A. This is a slippery slope.
While an extreme example, let's say a pro-2A man meets a woman and after a few dates they are at his house. Perfectly natural. She has a mental problem or a drinking problem, or whatever and attacks him. While HE is defending himself, his bruises and scratches are minor whereas her wrists are badly bruised from him holding her back, or her arms are bruised from him blocking her attack. Police are summoned by someone calling 911 and they determine that HE was the aggressor and thus he's dumped into the court system for being the man, a better fighter, whatever ... even though it was defense....
Patrick Roy from the Colorado Avs was arrested and prosecuted for BREAKING his own property in his OWN house during an argument with his wife. He tore a door off the hinges and she stated that was threatening.
Men get prosecuted for cutting a phone line during a fight, punching the wall during a fit of frustration, breaking something they own...
Think it doesn't happen, think again. Here's a great website for case studies.:
http://www.ejfi.org/
While an extreme example, let's say a pro-2A man meets a woman and after a few dates they are at his house. Perfectly natural. She has a mental problem or a drinking problem, or whatever and attacks him. While HE is defending himself, his bruises and scratches are minor whereas her wrists are badly bruised from him holding her back, or her arms are bruised from him blocking her attack. Police are summoned by someone calling 911 and they determine that HE was the aggressor and thus he's dumped into the court system for being the man, a better fighter, whatever ... even though it was defense....
Patrick Roy from the Colorado Avs was arrested and prosecuted for BREAKING his own property in his OWN house during an argument with his wife. He tore a door off the hinges and she stated that was threatening.
Men get prosecuted for cutting a phone line during a fight, punching the wall during a fit of frustration, breaking something they own...
Think it doesn't happen, think again. Here's a great website for case studies.:
http://www.ejfi.org/
Jorg Nysgerrig
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- 7,822
Are you contending that tearing a door off the hinges during an argument isn't threatening?
HappyHunting
Member
My girlfriend has told me countless times about friends of hers picking up shiners under questionable circumstances.
I actually dated a girl in high school, if you can believe it, who was indoctrinated to that way of thinking by her past boyfriend and it went hand in hand with her own insecurities. She said he used to rough her up but only when she deserved it.
If I have daughters... whew.
OKOK extreme circumstance. But, there may be brandishing.
I actually dated a girl in high school, if you can believe it, who was indoctrinated to that way of thinking by her past boyfriend and it went hand in hand with her own insecurities. She said he used to rough her up but only when she deserved it.
If I have daughters... whew.
OKOK extreme circumstance. But, there may be brandishing.
leadcounsel
member
@ Jorg...
So, if I destroy my own property, even if someone else perceives it to be threatening, then under the current law I could be prosecuted and convicted of a misdemeanor DV charge and lose my 2A rights...
There is NO correlation (the punishment does not fit the 'crime' and I'd debate there even being a crime to begin with). My property. I can do what I want with it for the most part. I can destroy it, throw it away, etc (there are some exceptions like arson, selling illegal property like prescription drugs, etc.). But the point is that if I want to kick a hole in my wall, then why is that any concern of the government, police, etc.? Frankly, it's not.
However, EVEN if I conceded that it is the government's concern (which I could be persuaded to believe if it was a precursor to actual physical violence against a person or creature), there is still NO correlation to firearms any more than possessing a kitchen knife or baseball bat or can of gas and a match.
scythefwd
Member
Doesn't the Lautenburg amendment also allow for the removal of 2a rights for someone who has had a restraining order (order of protection) against them? Am I wrong and that only applies while the order is in place instead of anytime in the past. Again, the standard for this is way too low. In Peoria, IL, a female can walk into the police department and say she is afraid for her life and actually get one. No evidence has to be presented. Before someone says "that's impossible", I have personally seen it done.
Leadcounsel - It has to depend on the situation. If you are in a very heated argument and you turn and punch a hole through your wall, then yes it can be considered threatening. It shows you are aggravated to the point of violence and even if it isn't directed at the person you are arguing with there isn't a guarantee that it won't be. Now if you're outside, pissed at the cat, and tearing the door off it's hinges (I've kicked doors off their hinges, if you can tear one off... you're a BIG man) others may fear for someones safety.
Put it this way, you see someone with a gun in hand yelling and pointing it. A case could be made that this person is endangering others and that a justifiable shoot could occur. Why would that be different just be cause you live with those people or own whatever you are shooting? The attitude very well could be the same. It could also be very different, but in this case I see it as a good thing to err on the side of caution. I also think the Lautenburg amendment is a total load of crap that sets the burden of proof WAY to low.
Leadcounsel - It has to depend on the situation. If you are in a very heated argument and you turn and punch a hole through your wall, then yes it can be considered threatening. It shows you are aggravated to the point of violence and even if it isn't directed at the person you are arguing with there isn't a guarantee that it won't be. Now if you're outside, pissed at the cat, and tearing the door off it's hinges (I've kicked doors off their hinges, if you can tear one off... you're a BIG man) others may fear for someones safety.
Put it this way, you see someone with a gun in hand yelling and pointing it. A case could be made that this person is endangering others and that a justifiable shoot could occur. Why would that be different just be cause you live with those people or own whatever you are shooting? The attitude very well could be the same. It could also be very different, but in this case I see it as a good thing to err on the side of caution. I also think the Lautenburg amendment is a total load of crap that sets the burden of proof WAY to low.
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Bubbles
Member
There's a discussion of this issue on the WVCDL forum as WV's DV laws are effectively more stringent than Federal laws.
Double Naught Spy
Sus Venator
Okay, so you are saying that violence took place and justice wasn't carried out appropriately. That isn't reason reason for dumping the domestic violence exclusion. There is a problem, no doubt, but not with the exclusion.
This is a much more reasonable argument.
crossrhodes
Member
Another unjust story
My former girlfriend and I were Fed LEO's, I've since retired NO GREY areas. Well, she had a bad temper and one day we had a verbal altercation at my resident. The short story is she pulled her duty firearm on me, shot my refrigerator and threaten to put an end to our problems, during this, unknowing to her, I dialed 911 and hide the phone out of sight.
The State Police show up, disarmed her, put her in the cruiser and dropped her off at her parents house for the night. The DV advocate in this area will not file RO's for males so I had a No Trespass order given to her via State Police.
I went through hell with the investigation as the IA guys thought for sure it had to be my fault. She spent 6 months at a desk job then was given two options: resign or face prosecution. If the shoe was on the other foot you can bet I would of been lodge that night and fired the next day.
End of story.
Don't believe me...It's public record State of Vermont.
My former girlfriend and I were Fed LEO's, I've since retired NO GREY areas. Well, she had a bad temper and one day we had a verbal altercation at my resident. The short story is she pulled her duty firearm on me, shot my refrigerator and threaten to put an end to our problems, during this, unknowing to her, I dialed 911 and hide the phone out of sight.
The State Police show up, disarmed her, put her in the cruiser and dropped her off at her parents house for the night. The DV advocate in this area will not file RO's for males so I had a No Trespass order given to her via State Police.
I went through hell with the investigation as the IA guys thought for sure it had to be my fault. She spent 6 months at a desk job then was given two options: resign or face prosecution. If the shoe was on the other foot you can bet I would of been lodge that night and fired the next day.
End of story.
Don't believe me...It's public record State of Vermont.
razorback2003
Member
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- Aug 24, 2008
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- 1,231
Expungement?
If an individual is convicted of a domestic violence type misdemeanor and later has the conviction expunged, is the person still 'convicted', or can the person still buy a firearm? I have heard that courts easily expunge some misdemeanor convictions. I think it would be sad for someone to never be able to legally buy, possess, or carry a firearm over a misdemeanor. If the offense is so bad, then it should be a felony, not a misdemeanor.
If someone can vote, why should his firearm rights be taken away? Voting rights and firearm rights go hand in hand.
If an individual is convicted of a domestic violence type misdemeanor and later has the conviction expunged, is the person still 'convicted', or can the person still buy a firearm? I have heard that courts easily expunge some misdemeanor convictions. I think it would be sad for someone to never be able to legally buy, possess, or carry a firearm over a misdemeanor. If the offense is so bad, then it should be a felony, not a misdemeanor.
If someone can vote, why should his firearm rights be taken away? Voting rights and firearm rights go hand in hand.
W.E.G.
Member
If you have ever been the subject of a final protective order, Lautenberg strips you of your right to own guns.
The STANDARD of proof in a protective order hearing is a paltry "preponderance of the evidence" (same standard as most landlord-tenant cases).
For that, you lose your gun rights.
http://www.abanet.org/domviol/pdfs/Standards_of_Proof_by_State.pdf
The STANDARD of proof in a protective order hearing is a paltry "preponderance of the evidence" (same standard as most landlord-tenant cases).
For that, you lose your gun rights.
http://www.abanet.org/domviol/pdfs/Standards_of_Proof_by_State.pdf
X hunter
Member
I put on my asbestos suit so go ahead and flame. Domestic violence is a nasty game. Alot of women use it as a tool. Sort of like the last kick in a fight. They know the police will take the man away if they make an accusation.
A Judge is a politician just like a senator. They come up with some hair brain ****, just to make sure they get re-elected. So instead of an LEO being empowered to make the rational decision when he gets to a scene, the chief judge puts out an order to make an arrest in all domestic cases. How does it look when a Deputy shows up, supposedly the "voice of reason" and has to make an un-reasonable arrest?
As far as the 2nd Amendment goes, how many felony convictions have nothing to do with a persons right to carry. Why do we have to take away someones rights to carry a concealed weapon, or take his kids hunting because he had to "kite" a few checks? Yes, it is illegal. Yes it is wrong. But, who hasn't done it? If somebody is robbing banks or snatching an oldlady's purse by all means revoke his right to carry, but illegally dumping tree branches, or destroying a gopher tortise's natural habitat? Give me a break.
A Judge is a politician just like a senator. They come up with some hair brain ****, just to make sure they get re-elected. So instead of an LEO being empowered to make the rational decision when he gets to a scene, the chief judge puts out an order to make an arrest in all domestic cases. How does it look when a Deputy shows up, supposedly the "voice of reason" and has to make an un-reasonable arrest?
As far as the 2nd Amendment goes, how many felony convictions have nothing to do with a persons right to carry. Why do we have to take away someones rights to carry a concealed weapon, or take his kids hunting because he had to "kite" a few checks? Yes, it is illegal. Yes it is wrong. But, who hasn't done it? If somebody is robbing banks or snatching an oldlady's purse by all means revoke his right to carry, but illegally dumping tree branches, or destroying a gopher tortise's natural habitat? Give me a break.
jimmyraythomason
Member
It was called the "Wife Beater Bill" when it was introduced. No one wanted to be labeled a supporter of wife beaters so the bill was passed into law. It won't be repealed for the same reason.
I once got hauled off to jail for yelling at my ex, I didn't lift a finger to her. The police finger printed me and let me go home, telling me I would have to show up later for court. When the court date came I went down to the court house, only to be told the charges had been dismissed. I was going to plead guilty, just to avoid the hassles of further court dates. This was before the retro active domestic violence clause came into effect. Had they not dismissed the charges and had I pled guilty back then, I would not be able to legaly own a gun today.
IMO, there are probably a lot of people barred from owning guns today, for what seemed like a minor spat back then.
IMO, there are probably a lot of people barred from owning guns today, for what seemed like a minor spat back then.
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