dc_dux

A victory for a 12-year old common sense amendment to the Brady Law over the rights of those guilty of misdemeanor domestic violence
Why should restrictions on possessing a firearm be limited to convicted felons or only those convicted under specific misdemeanor domestic violence laws?

Commit misdemeanor domestic violence under any general assault and battery law....lose the "right" to possess a firearm.

Works for me!

And I cant believe I started another gun thread. WTF am I thinking.

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~ Voltaire

Plan9

Uh... hasn't it been this way since forever? Every time I go to fill out a fed form I have to answer:

"Have you been convicted of domestic abuse?"

"Do you have a restraining order out on you?"

"Are you a fugitive from justice?"

etc. I'm sure I'm missing some legal minutia here.

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Cynthetiq

WTF? so you mean to say that maybe misdemeanor crimes should have the same penalty as felony crimes?

The common sense thing here is to make domestic abuse crimes a felony. It's a felony to assault a bus driver, flight attendant and a few other protected classes, why not include spouse or domestic partner?

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snowy

I think it should be a felony.

Perhaps this is a step in that direction.

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dksuddeth

I am not surprised at the amount of misinformation both in the article and in the decision. U.S. v. hayes is about a state law that did not define an element of misdemeanor assault, that being the domestic household part. This abhorent decision has now made it possible to remove the 2nd Amendment rights of anyone accused of misdemeanor assault, whether it's between boyfriend/girlfriend, brother/sister, brother/brother, or roommates of all genders, just so long as both participants in the assault lived in the same household.

What a tremendously atrocious decision.

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Cynthetiq

I find that maybe that won't happen since you can drink and drive and it not be a felony in almost all states, I can't see why it would be much different. The great equalizer of being able to drink and drive and then come home to beat your spouse.

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dc_dux

The Lautenberg amendment has been part of federal gun control legislation for 12 years.

It addressed the fact that in some states, domestic violence is a felony and in others it is a misdemeanor...and it further addressed the cases where a person is convicted of a misdemeanor under a general battery law. The relationship that the offender has with victim is what determines whether or not the misdemeanor is a domestic violence misdemeanor.

As I understand it, this guy beat his wife or used physical force (or threatened the use of a gun), was convicted of misdemeanor battery and claimed that since he was not charged specifically with domestic battery or domestic violence, the Lautenberg amendment did not apply to him and he should have the right to possess a firearm.

Nope, sorry guy.

__________________
"The perfect is the enemy of the good."
~ Voltaire

dksuddeth

this means what?

which partially makes the decision a horrendous one. Instead of looking at the plain statute of the state and determining that there is no reference to a domestic element, the majority decision says plainly that it doesn't matter. Now, according to the USSC, misdemeanor assault statutes don't need the domestic element to apply.

the state statute he was convicted of had nothing to do with a domestic violence yet the USSC that the exact wording of the state statute is irrelevant, that it's not the detail of the crime, but the nature of the relationship involved. Basically, the USSC ignored the state statute and supplied its own interpretation.

It would still make you incorrect.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

dc_dux

What was the state statute and specific misdemeanor under which he was convicted? Was the victim his spouse (or child)? Did he beat her or use physical force in any manner or threaten her with a weapon?

---------- Post added at 12:14 PM ---------- Previous post was at 12:01 PM ----------

added:

In 1994, [Randy Edward] Hayes pleaded guilty to a misdemeanor battery offense under West Virginia law, in the magistrate court of Marion County, West Virginia (the "1994 State Offense"). The victim of the 1994 State Offense was Hayes's then wife, Mary Ann (now Mary Carnes), with whom he lived and had a child. As a result of the 1994 State Offense, Hayes was sentenced to a year of probation.

Ten years later, on July 25, 2004, the authorities in Marion County were summoned to Hayes's home in response to a domestic violence 911 call. When police officers arrived at Hayes's home, he consented to a search thereof, and a Winchester rifle was discovered. Hayes was arrested and, on January 4, 2005, indicted in federal court on three charges of possessing firearms after having been convicted of an MCDV, in violation of 18 U.S.C. §§ 922(g)(9) and 924(a)(2).

US Code:

It shall be unlawful for any person...who has been convicted in any court of a misdemeanor crime of domestic violence... to...possess...any firearm

Committing a misdemeanor crime of battery against a spouse even under a general misdemeanor battery statute is still a misdemeanor crime of domestic violence...or so the Court upheld, 7-2.

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dksuddeth

I dont' have the specific state code or statute number right off, though i'll try to find it. What Hayes was convicted of was the state statute of generic battery, not any domestic violence battery statute. Maybe that was a lesser plea, I am not sure, I just know that he didn't plead guilty to a state domestic violence crime. What this decision is saying is that anyone convicted of any misdemeanor battery or assault charge can now be convicted of illegal weapons possession as long as the government can prove at the illegal weapons possession trial that the persons criminal conviction was against a domestic member. This is an egregious ex post facto violation because anyone who has a misdemeanor assault/battery conviction anywhere in their past could face 5 years in prison if the government can prove it was against a household member.

---------- Post added at 11:22 AM ---------- Previous post was at 11:16 AM ----------

thank you for helping me make my point. What this decision does it make anyone convicted of assault and/or battery, even simple threats, ineligible for firearm possession, even though their conviction isn't from a domestic violence statute.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

dc_dux

Nope...you can still go out and commit misdemeanor battery against your neighbor or a stranger who approaches you in the street, or most other scenarios and you wont lose your gun rights.

You just cant beat or threaten your wife with a weapon, regardless of the specificity of the statute.

__________________
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dksuddeth

dc, what you're saying is that the wording of statutes and laws mean zero, absolutely nothing, and that it only matters what judges say and what congress 'intended', according to the interpretation of a court. why have laws anymore? maybe we should have a weekly confession and then magistrates can charge us if they feel we committed a crime they didn't agree with. it's absurd.

that someone with a general battery conviction is denied the right to a firearm when the federal statute says domestic violence crime. general battery is not a domestic violence crime. unless direct words of statutes are to be ignored now.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

dc_dux

dk...the guy admitted to battery on his wife (that is domestic violence) in a state that did not have a specific misdemeanor domestic violence statute.

IMO (and the Court's) he attempted to use a technicality to get around the prohibition of owning a gun for committing a crime of misdemeanor domestic violence.

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dksuddeth

look at the dates of such laws and convictions, dc. he pleaded to a general battery charge in 94. had to because there was no DV statute in the state at that time.

Lautenberg becomes law in 96, so state makes a DV statute to work with the amendment. No problem here. This makes it so that anyone who commits domestic violence can be charged with domestic violence.

2004, police are called to his house because of domestic violence, find guns, charge him with illegal possession due to lautenberg, which didn't exist in 94, and no conviction of DV because it wasn't a specific crime in that state in 94. Ten years later, with just two short sentences, his crime of general battery is now domestic battery.

this is ex post facto if ever there was an example of it.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

Plan9

As personally disgusting and socially abhorrent as domestic abuse is... consider the possible side effects that come from upgrading all sorts of social problem crimes to felony status. It's similar to the "sex offender" label you can get for public urination in some states. Overkill, creating more problems than it solves by focusing on the short term gratification instead of the long view consequences. Example: Crack cocaine prison sentence issues, late '80s.

A felony pretty much destroys your life for a long period of time, if not indefinitely. I've seen what it does to people. They're 3rd class citizens.

I don't know if there is a good answer, but putting more wife-beating drunkards behind bars and labeling them so that when they do get out they have a real hard time returning to any semblance of a normal life isn't a real good long term solution.

I have a close friend that was out of control at one point in his life and engaged in a domestic violence situation with his girlfriend. He's since cleaned up his act. If he had been given a felony, there is no way he would have recovered and become the productive citizen that he is today.

People make mistakes. It's easy to assume once-a-beater-always-a-beater, but that holier-than-thou approach doesn't solve anything.

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dippin

It would only be ex post fact if he was caught before lautenberg. The idea that laws cannot be applied retroactively means that he cannot be charged with doing something before it was a crime, not that he cannot be charged with an ongoing violation that started before it was a crime.

ring

His case then, Crompsin.....is rare.
It is a proven fact that most all people who engage in domestic violence (mostly men)
do not and cannot recover from this behavior.
Believe me, I have had personal anecdotal experience with this,
and many many professionals that are trained in this area will agree.

I do agree that convicted felons of all sorts face extreme discrimination in society,

I agree to pushing this behavior towards a felony however.

dksuddeth

exactly, which is exactly what happened to hayes. his criminal conviction of general battery was changed to domestic battery 2 years after his conviction and his punishment increased because of it. that is ex post facto.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

Plan9

Recidivism among domestic violence perpetrators is extremely high, I concur. I believe, however, it requires careful graduation of laws to avoid frying people for what could be a one-time thing. Our justice system is often flawed in its plea bargain oh-go-again mercy, but it still has some.

...

I find that those who push for tougher penalties often have never experienced the clusterfuck that is the justice system in its full effect. It's really scary and can be brought down upon you for even the slightest mistake in judgment.

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Whatever you can carry.

"You should not drink... and bake."

ring

It's all scary:
The women who cannot pull themselves out from this abuse,
and the young men who become further damaged by spending time in prison.

I believe that crimes against another persons physical body trump those
more so than all the people sitting in prison for silly drug offenses.

Discussing prison reform is a topic that usually turns towards strong black and white thinking, in my experience.
Unfortunately, especially with our world imploding financially, prison reform, I'm afraid,
is going to end up way at the bottom of priorities.

I'm all over the place here with my comments, and thinking.

Time to re-group.

I know our justice system is very broken, but so is every thing else in the US right now,
where to start? It's overwhelming.

dksuddeth

I wonder if this 'unintended consequence' will now render some police officers ineligible to be police officers? I've read several stories in the past where police officers accused of domestic violence have pleaded to lesser assault/battery charges in order to avoid the domestic element.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

Plan9

Threadjack:

Why don't you become a police officer, DK? You're all about the letter of the law.

__________________
Whatever you can carry.

"You should not drink... and bake."

dksuddeth

i'm all about exposing hypocrisy when it concerns people who preach the law, then turn around and ignore it for their own purposes.

I also choose not to be a police officer because I could never arrest anyone carrying a gun if the state made it illegal.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

ring

Huh? seriously...huh?

dksuddeth

you have more to add to that question?

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

ring

Please expound on the last sentence of your previous post, please.
I don't understand what you are trying to convey.

Cynthetiq

I read it as he cannot enforce laws that he does not believe in, specifically revocation of 2nd Amendment rights.

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ring

Okay, I see.."If the state made it illegal" (to carry a gun)

I used to have guns myself, and enjoyed target shooting very much,
but not anymore.

I always thought that the pre-screening paperwork was not invasive enough in their questions and subsequent so called background checks.

I knew many many people who were in and out of mental health facilities
for various reasons, and as long as they had never been officially commited
on a 72 hour hold...a 51-50? I believe, all was still then hunky dory to buy a gun.

Yikes.

dksuddeth

actually cyn, more specifically, I could not enforce laws that just plain deny 2nd amendment rights, like laws in Illinois, New York, California, or Texas.

I COULD enforce laws that prohibit violent felons from possessing arms, that really wouldn't bother me, but to deny carrying period, like Illinois, I could not enforce.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

Cynosure

Wha-aaat... ?!




I think your particular experience with domestic violence may be clouding your viewpoint on this issue; which, as I understood what you said, is that a man who engages in hitting his girlfriend or wife cannot be rehabilitated, which kind of puts him in the same class as a child molester. As for the "many many professionals" that you are including as having your same viewpoint...



Social workers can be like police officers, in that both professions deal with such awful people and such horrible situations, and on a daily basis, that it tends to darken and prejudice their view of certain members of humanity.

Slims

To stay on topic, here is my take:

I don't think the Lautenberg Amendment is unreasonable.

However, I DO think judges have a duty to interpret the law as it is written. In this case, the man was charged with a lesser crime rather than with domestic battery. Recognizing that, his state should have either convicted him of domestic battery or the Lautenberg Amendment should have been re-worded to account for that loophole.

This guy was NEVER convicted in court of domestic violence. He was convicted of battery, but a jury never officially found him guilty of DOMESTIC battery/violence.

Now, if something happens in my home and I manage to plea my case down to....disturbing the peace; in theory I might be unable to own firearms if 'disturbing the peace' reportedly involved slapping my wife (even if I was never convicted of it).

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KirStang

Briefly going over the opinion, I gleaned the following facts:

1.) Appellant/defendant was convicted of battery

2.) The Battery was committed against his then wife.

3.) However, the conviction for battery doesn't necessitate domestic violence. It is broad enough to include any act of battery.

4.) Defendant, argues on a technicality that, because the state statute that convicted him didn't require domestic violence, his conviction is without the element of 'domestic violence' necessary to invoke the 922 section which divests him of the right to own firearms.

Personally, if the underlying offense was committed against a domestic spouse, I don't think a technicality should get him off from falling within the 922 section.

The argument of whether or not domestic violence should divest a person of his 2A rights is a whole 'nother argument. (As an aside, what irks me the most is when an Ex Parte claim of Domestic Violence is made, certain jurisdictions allow the coppers to come and confiscate all your weapons...[Ex Parte Claim = 1 sided and *possibly* without merit...i smell due process violation..])

*Edit*
-Btw, can anyone else think of a shittier test case? I bet this case would have never made it to the SCOTUS had Hayes lost in the 4th Circuit. It seems like, certain political entities, smelling opportunity, encouraged appeal to firmly establish a favorable precedent to their cause.

Marvelous Marv

Oh look, a troll thread!

I remember a situation like this awhile ago, in which cops were losing their ability to work (i.e. carry a gun) after committing domestic violence.

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dksuddeth

and did the police unions ever howl and scream bloody murder about it.

I still haven't heard if any of these officers who plead guilty to lesser offenses to avoid just this situation are being fired now.

__________________
"no amount of force can control a free man, a man whose mind is free. No, not the rack, not fission bombs, not anything. You cannot conquer a free man; the most you can do is kill him."

Terrell

I don't agree that domestic abuse should necessarily be a felony. I think whether it is a misdemeanor or felony, should depend on the specific actions of the accused. I don't think that slapping or pushing someone should be treated the same, under the law, as beating someone to the point they need to be hospitalized (or stabbing/shooting them, including attempts to stab or shoot). I also think that on this issue both sexes should be held to the same standard. Neither male, nor female should hit other people (including the opposite sex) for any reason other than self-defense. Whomever breakes this by throwing the first punch/slap/object etc, is wrong, the other person is defending themselves at least on the violence part of the dispute. (subject to porprotional force restrictions w/r/t self-defense)

I think that existing assault and battery statutes, as well as existing stalking, murder, etc statutes should be sufficent. One needs only to enforce them both fairly and equitably.

Derwood

To play devil's advocate here......

I think that if you made all domestic abuse cases a felony, you'd see the number of prosecuted cases drop, if only because the abused partners would be even less likely to press charges than they are now. It's already difficult to get many abused partners to press charges when it's only a misdemeanor.