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Thread: "felony" isn't what you think it is...

  1. #1
    Regular Member MKEgal's Avatar
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    "felony" isn't what you think it is...

    .

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    Regular Member MKEgal's Avatar
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    At least for determining firearms disability...
    This surprised me.

    18USC921
    (a) (20)The term “crime punishable by imprisonment for a term exceeding one year” does not include

    (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or

    (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.

    ... Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
    Last edited by MKEgal; 11-30-2012 at 11:35 PM.

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    Campaign Veteran skidmark's Avatar
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    (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,
    Don't want those bankers and stock brokers to lose their means of making a living. Without them politicians would have to actually figure out how to stash their cash in places other than behind the TV dnners in the freezer compartment.

    Anybody have any success getting past a NICS check with a 2-year misdemeanor on their record? Seems that's one of the big complaints about making everybody a felon.

    stay safe.
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    Regular Member rushcreek2's Avatar
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    Such is the case under Colorado law (Article 7, Sec. 10 of the CO Constitution) as held by the 10th Circuit in Denver per 18 USC 921/922 ( US v Hall). Unfortunately State law enforcement agencies choose to ignore this particular section of the Colorado Constitution that they are sworn to uphold. Sworn to "UPHOLD" , but choosing to "IGNORE" a clear provision of the Colorado Constitution ???

    The Colorado Court of Appeals has been enlightening State law enforcement concerning this Article 7, Section 10 restoration of the right to keep & bear arms in self defense provision here within the last year or so. Promising developement. ( The People v De Witt for one )

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    Quote Originally Posted by skidmark View Post
    Anybody have any success getting past a NICS check with a 2-year misdemeanor on their record?
    If one get's their civil rights restored by the state, the federal disability arising from that state conviction is removed.

    For purposes of this section of the federal Gun Control Act, the term "civil rights" has been construed to mean the right to vote, hold office, and serve on a jury.

    What is kind of odd is when that happens, but the state gun ban persists as in Virginia, you still can't carry a gun due to state law, even though you can buy a gun outside that state under federal law.

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    In Massachusetts, they have the problem that some offenses (like DWI) have no statutory upper limit on the length of incarceration. That means that someone could, theoretically, go to prison for more than two years, and is a prohibited person.

    And then there's this debacle in North Carolina: because some people could have received felony sentences due to sentence enhancements, the state and courts considered anyone convicted of the same offenses to be felons. This was the case even where the maximum statutory penalty in a particular individual's case was much less than one year.

    http://www.usatoday.com/news/nation/...ers/55585176/1

    ELIZABETHTOWN, N.C. – Terrell McCullum did not commit a federal crime by carrying a shotgun and a rifle out of his ex-girlfriend's house.

    But he is serving a federal prison sentence for it. And the fact that everyone — including the U.S.Justice Department— agrees that he is legally innocent might not be enough to set him free.

    A USA TODAY investigation, based on court records and interviews with government officials and attorneys, found more than 60 men who went to prison for violating federal gun possession laws, even though courts have since determined that it was not a federal crime for them to have a gun.

    Many of them don't even know they're innocent.
    Last edited by KBCraig; 08-12-2012 at 08:39 PM.

  7. #7
    Regular Member rushcreek2's Avatar
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    The 10th Circuit decisions holding that such Colorado convictions are " not predicate" under 18 USC 921/922 beginning with U.S. v Hall is consistent with the holdings of two other sister Circuits - one of which is the 9th Circuit.

    The State of Colorado has no choice but to stipulate to the fact that the constitutionally protected right to keep & bear arms IN DEFENSE OF HOME, PERSON, OR PROPERTY(under the Colorado Constitution) is in fact restored under Colorado law upon completion of a sentence (Article 7, Sec. 10, CO Const.).

    Accordingly the 10th Circuit has consistently held that the amendment of CRS 18-12-108 in 1994 fails to negate the PRIOR restoration of the constitutionally protected right under Colorado law. The 10th Circuit holding that " the subsequent amendment of the statute (CRS 18-12-108) does not negate the PRIOR restoration of the firearm right" seems to infer that the SUBSEQUENT restoration of the firearm right after July 1994 may be subject to CRS 18-12-108 disablement provision. The 10th Circuit viewed the totality of Colorado law to combine the "TEN YEAR" disablement provided under CRS 18-12-108, as well as the AUTOMATIC restoration provision of the Colorado Constitution.

    The State of Colorado is limited in its ability to apply CRS 18-12-108 in instances not involving collateral criminal conduct, and U. S. Attorneys are reluctant to prosecute a Colorado case under 18 USC 922 - IN THE ABSENCE OF ANY EVIDENCE OF COLLATERAL CRIMINAL CONDUCT. There are many, many nuances involved in interpreting the case by case applicability of this all rights restoration provision under Colorado law, so don't imagine that a previous offender can simply move to Colorado and enjoy restoration of their firearm rights.

    The narrowness of the constitutional affirmative defense would seem to possibly bring into question whether or not a previous offender is free to possess a firearm for hunting, or purely recreational purposes. I would think that involvement in otherwise LAWFUL hunting activity would by definition NOT CONSTITUTE ANY CRIMINAL CONDUCT, and the potential threat associated with bears, mountain lions, and 2-legged predators pretty well establishes solid ground for the constitutional affirmative defense in wilderness areas.

    Up until just recently this constitutional affirmative defense was considered by the Colorado courts only if the defendent could establish that the possession occured in response to some immediate, and impending threat specifically directed at one's home, person, or property.

    The Colorado appellate court has now removed this inane road-block to the affirmative defense ( People v DeWitt). The previous standard made as much sense as the State prohibiting the carrying of a spare tire in your vehicle unless you have a life-threatening blow-out.

    Unfortunately, even with this narrow restoration of the right, the previous offender remains "inelligible" for a Colorado concealed handgun permit. Unpermitted concealed carry in Colorado is unlawful, and would invalidate any assertion of the constitutional affirmative defense since concealed carry is excepted from the right protected under Article 2, Section 13 of the Colorado Constitution.

    The Colorado Bureau of Investigation continues to ignore the constitutional restoration provision, and reports previous offenders as "prohibited persons" on backgroung checks, irrespective of the applicability of the AUTOMATIC OPERATION ( "without further action required") of the restoration of ALL rights provision under Colorado law. Apparently the only way for a previous offender to obtain a CO CHP ( or purchase a gun through a FFL) would be through the judicial review process ( Seguna v Maketa ).

    For those who have followed the recent unlawful arrest of the OC'er at the Pridefest event in the Colorado Springs city park - this is a mild sample of the treatment any previous offender would be subject to in Colorado for edeavoring to exercise their restored right by OC'ing. Colorado law enforcement, and the CJS is heavily invested in the official one-size-fits-all narrative that "felons are prohibited from possessing firearms under Colorado law" The truth still remains the truth however , and the official narrative has lost its veil of cover, but previous offenders aren't free to "come out of the closet " just yet.
    ______________
    I am NOT a lawyer. The above comments reflect my observations, and personal conclusions after 4 years studying the above subject matter.

    The State issue is still very much in flux, although things seem to be headed in the right direction -at least in regards to restoring respect for the TRUTH. It is a sad commentary that State officials in law enforcement and the criminal justice system in Colorado have for many years engaged in a concerted effort to suppress the truth about this restoration of the firearm right to Coloradoans.

    Their motivations may be understandable, but their actions have interferred with the restored civil right of thousands of Coloradoans for too many years.
    Last edited by rushcreek2; 08-13-2012 at 07:36 PM.
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    Campaign Veteran since9's Avatar
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    Quote Originally Posted by rushcreek2 View Post
    Such is the case under Colorado law (Article 7, Sec. 10 of the CO Constitution) as held by the 10th Circuit in Denver per 18 USC 921/922 ( US v Hall). Unfortunately State law enforcement agencies choose to ignore this particular section of the Colorado Constitution that they are sworn to uphold. Sworn to "UPHOLD" , but choosing to "IGNORE" a clear provision of the Colorado Constitution ???

    The Colorado Court of Appeals has been enlightening State law enforcement concerning this Article 7, Section 10 restoration of the right to keep & bear arms in self defense provision here within the last year or so. Promising developement. ( The People v De Witt for one )
    When I went through the CSPD's Citizens' Academy recently, one of the officers made a comment that made my ears perk up as it just didn't ring true. Turns out, it was about this very issue, so thank you, rushcreek, for clearing this up!

    And yes, the LEO was incorrect.
    Last edited by since9; 08-14-2012 at 03:57 AM.
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    Regular Member rushcreek2's Avatar
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    Colorado has always (since 1876 at least ) been blessed with a feature in the State's Constitution that addressed the restoration of "ALL rights of citizenship WITHOUT EXCEPTION herein provided" upon release from incarceration. Probation, and parole are of course conditional sentencing alternatives to actual incarceration.

    Colorado case law has always acknowledged the restoration of the Article 2, Section 13 right for nonviolent convictions - UNTIL 1994 when CRS 18-12-108 was amended to encompass even nonviolent felony convictions. Thereafter only under the most extreme circumstances involving immediate threat of harm was the restored constitutional right recognized .

    The application, and enforcement of CRS 18-12-108 against previous offenders found to be in possession of a firearm has heretofore relied upon a standard of requiring the defendent to show that their possession of a firearm was for the purpose of defending against some immediate threat.

    I guess there is no way of escaping recognition of the fact that Colorado law enforcement, district attorneys, and trial judges have conspired to interfere with the free exercise of a restored civil right for many years.

    The Colorado Court of Appeals has finally begun to address this travesty by requiring said law enforcement, district attorneys, and trial judges to seriously consider the constitutional affirmative defense of those charged under CRS 18-12-108.

    In short form - habeas corpus. Where is the "crime" - as in collateral criminal conduct ?

    No collateral criminal conduct = Constitutional affirmative defense under Article 2, Section 13.
    Last edited by rushcreek2; 08-14-2012 at 07:37 PM.
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    Virginia does restore gun rights

    Quote Originally Posted by Mike View Post
    If one get's their civil rights restored by the state, the federal disability arising from that state conviction is removed.

    For purposes of this section of the federal Gun Control Act, the term "civil rights" has been construed to mean the right to vote, hold office, and serve on a jury.

    What is kind of odd is when that happens, but the state gun ban persists as in Virginia, you still can't carry a gun due to state law, even though you can buy a gun outside that state under federal law.

    If the state restores your civil rights you petition the circuit court to have firearm rights restored. Virginia is a 2 step process. After restoration of firearm rights you can apply for and get a ccw as well.

    Once the court restores firearm rights the person needs to let the VaSP Firearms Transaction Center know by faxing, emailing, or mailing to them the Governors Restoration order and the Circuit Courts order granting rights to possess, transport, purchase, or sell any firearm allowed by law. Do this before trying to fill out the 4473 or sp65. The person may still come up denied at worst in which case they should call the transaction center. Have you documents with you when you go to purchase in case the denial comes with a State Police Officer by your side at Gander or wherever. You may more than likely always be delayed for a short while when purchasing from an FFL. This info is not necessarily for the OP but for anyone that needs it.
    Last edited by lizjimbo; 10-11-2012 at 05:51 PM. Reason: add information

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    Quote Originally Posted by skidmark View Post
    Anybody have any success getting past a NICS check with a 2-year misdemeanor on their record?
    If the misdemeanor is a state misdemeanor, then in order for a conviction to disable your gun rights as a matter offederal law, that state misdemeanor must have as a possibility a sentence LONGER than 2 years.

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    Regular Member Logan 5's Avatar
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    What gets me is the reaction people have when they meet a felon. Just because they have an F on their record doesn't mean they are evil. A felon is not automatically a sex offender or child molester. They are not automatically dishonest and ready to rip you off. I know several that I trust with my truck and home if the need arises. Only thing is they were caught and busted. There are many out there that weren't. One fella did time for murder. Yeah, so? He did the crime and he did the time.

    I read the case files he still had, and it showed that yeah he murdered a man- the man that had been stalking his daughter and the man turned out to be a suspect in several rapes. The law (I think it was in Connecticut, but I could be wrong...I know it was somewhere back east) gave no leeway at that time for that. The cops wouldn't do anything because there was no proof. Well, he got out early from what was found in his case, but he was still a convict.

    I think that so long as they did their time, paid the fines and restitution, they get their guns back. Second Amendment is there for a reason. It gives people the matter of choice. Whatever door you choose is up to you, just make damned sure you make a rational and educated choice.
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    Registering gun owners to prevent crime, is like registering Jews to prevent a HOLOCAUST.

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    You have a valid point, but you overstate the case.

    Only thing is they were caught and busted.
    No, only thing is they broke the law, were caught, and busted.

    There are too many laws, they are too technical, and too many are defined as felonies. But, as long as a law is on the books, don't do the crime if you can't do the time. And work to get the laws off the books.

    The ability to create law is the ability to oppress. Wouldn't a constitutional amendment limiting the total combined size of law and regulation be nice? In order to pass a new law or implement a new regulation, an old law or regulation would have to come off the books. With a limited resource of words of law, the government would have to focus like a laser beam on that which it must do.

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    Regular Member Logan 5's Avatar
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    Quote Originally Posted by eye95 View Post
    There are too many laws, they are too technical, and too many are defined as felonies. But, as long as a law is on the books, don't do the crime if you can't do the time. And work to get the laws off the books.

    The ability to create law is the ability to oppress. Wouldn't a constitutional amendment limiting the total combined size of law and regulation be nice? In order to pass a new law or implement a new regulation, an old law or regulation would have to come off the books. With a limited resource of words of law, the government would have to focus like a laser beam on that which it must do.
    First you say there are too many laws, then you say don't do the crime if you can't do the time. make up your mind, will ya?
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    Registering gun owners to prevent crime, is like registering Jews to prevent a HOLOCAUST.

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    Quote Originally Posted by Logan 5 View Post
    First you say there are too many laws, then you say don't do the crime if you can't do the time. make up your mind, will ya?
    The two statements are not inconsistent. Do a little thinkin', will ya?

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    Regular Member Logan 5's Avatar
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    Quote Originally Posted by eye95 View Post
    The two statements are not inconsistent. Do a little thinkin', will ya?
    Ohhhhhh! I think I did more thinking about it than you give me credit for!

    You hunt & fish, right? Ok. Lacey Act.

    The Lacey Act, 16 U.S.C. Sec. 33713378 is a law you should read up on.

    Quote Originally Posted by Wikipedia "Lacey Act"
    The Lacey Act protects both plants and wildlife by creating civil and criminal penalties for a wide array of violations. It prohibits trade in wildlife, fish, and plants that have been illegally taken, transported or sold. The law is still in effect, although it has been amended several times.

    This environmental legislation came under attack starting in 2009 when facilities of Gibson Guitar Corporation were raided and hardwoods that had been illegally harvested in Madagascar were seized. Gibson professed its innocence and accused the federal government of bullying, which made the case popular among right-wing politicians and members of the Tea Party movement, who opposed the environmental legislation. Gibson eventually admitted wrongdoing and settled the case in August 2012, saying it felt "compelled to settle as the costs of proving [the] case at trial would have cost millions of dollars and taken a long time to resolve."
    Gee, guess it's more than just hunting and fishing. I like pine nuts. Harvesting pine nuts of one variety of pinion pine in Arizona could very well be illegal in Utah. Have you seen pine nuts for sale in the grocery store? Has the folks harvesting those nuts verified their variety of pine nuts are legal to sell in Utah, if harvested elsewhere?

    "How is that relevant", you ask? Well, you did say....

    Quote Originally Posted by eye95 View Post
    ...There are too many laws, they are too technical, and too many are defined as felonies. But, as long as a law is on the books, don't do the crime if you can't do the time....
    Except you & your wife and your 8 year old daughter are on vacation. Your daughter collected a few rocks, pine cones and a wood carving of a Hopi dancer. >WHAM! BAM! SHAZAAM!< Your daughter could be a felon. Just for that. I guess she should have read up on the law. Google the Lacey Act and read it. I'll save you some of the effort-

    http://www.ncbfaa.org/Scripts/4Disap...0&MenuKey=pubs
    http://www.floorcoveringinstitute.co...rticle15_2.pdf
    http://www.homesteadingtoday.com/gen...eat-truck.html
    http://en.wikipedia.org/wiki/Lacey_Act
    http://wvgazette.com/Outdoors/outdoo...s/201207260133
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    Registering gun owners to prevent crime, is like registering Jews to prevent a HOLOCAUST.

    I am not a lawyer in real life, or in play life. So anything I say is for debate and discussion only.

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    No, I don't hunt, nor do I fish. However, I am able to fathom beyond my personal existence.

    And since you need a clear demonstration of how the two statements are not inconsistent:

    1. You have just demonstrated how the laws are too technical and detailed. We don't seem to be arguing that point, just its consistency with the following.

    2. You have demonstrated that you know that particular technical and detailed law. If you choose to violate it, even if you think it shouldn't be a law or you think it is too technical and too detailed, you should accept that you will suffer consequences as a result. Don't to the crime if you can't do the time.

    Whether you agree with them or not, the two points are valid and can coexist. They are not inconsistent.

    You have amply demonstrated, by making me go to these lengths to overcome your snotty reply earlier, that discussion with you on this topic is not worth my time or effort, so this will be my last words on the subject. Go ahead and continue with the snarkiness you started. I won't contribute to it further. Moving on.

  18. #18
    Regular Member Logan 5's Avatar
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    Snarkiness? Whatever you wish to call it.

    The problem is, I think we both agree, is too many laws and many of which you and I don't know of. Unless we can get a list from the government, I don't think we'll ever know all of them.
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    Registering gun owners to prevent crime, is like registering Jews to prevent a HOLOCAUST.

    I am not a lawyer in real life, or in play life. So anything I say is for debate and discussion only.

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    One huge change to our legal "system" should be the removal of "strict liability" statutes. Merely being in technical violation of one of these laws is enough to send you off to the penal system for a long rest--whether you have violated the law or not. These statutes do not recognize "criminal intent" or innocent violation. Your neighbor does not like you. He buys a junk single barrel shotgun, saws off the barrel to twelve inches, cuts the stock off to leave a pistol grip, wraps it in a towel and stuffs it under the seat in your boat--which you have thoughtfully parked right next to your house where he can get at it!! Off on a weekend fishing trip, you encounter the friendly Coast Guard doing checks for proper equipment. A sharp-eyed young recruit spots the gun!! Viola--you are now on your way to enjoying the inside of a federal prison--almost certainly. "I did not know it was there"--is true but no defense. At the very least you will be convicted of possession of this device and lose all your rights. Sex crimes are another area where much attention is needed to protect the public from false accusations. In Louisiana if the charges are shown to be baseless and dismissed, the system still treats you as though you were convicted for a period of nine years. No unsupervised visits with children, no computer access, registration as a sex offender--the whole nine yards--even though you were not even remotely guilty of the crime!! I personally know three men who have gone through this. One is currently fighting the false accusations. He will prevail but his life is ruined. This needs to change.

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