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Thread: Va District Cts & "crimes of domestic violence"

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    Va District Cts & "crimes of domestic violence"

    If you are arrested for anything related to assault or battery where the victim is related to you or someone you live with, here's a REALLY IMPORTANT TIP: do not, repeat, DO NOT sign the "waiver of counsel" form they will shove at you and tell you to sign. You do not have to sign it, you are not required to waive your right to counsel, and you should not, under any circumstances, sign that form!!! There's a place at the bottom of the form where the judge can sign it saying the court rules that you have, by refusing to sign, waived your right to counsel, but that doesn't matter.

    Here's why: if you are convicted of a "misdemeanor crime of domestic violence", you lose your right to defend yourself with firearms. Forever. And there's a recent U.S. Supreme Court opinion in which members of the majority expressed the opinion that any assault on a family member (remember, "assault" does not require actual touching) constitutes "violence". That opinion is what's called, "mere dicta", things the court talked about in the opinion that have nothing to do with the holding in the case, and in this case, members of the Court were sort of spouting off from amicus curiae briefs that contained nothing but other people's anti-gun opinions and anecdotal evidence. In other words, not legally binding as precedent.

    Nevertheless, the Virginia State Police, acting on instructions from the carpetbagger who's opposed to the individual's right to defend himself, his home and his family from criminal violence, are treating the dicta as if it were law and refusing CHP's and gun sales without there having ever been any actual crime involving force or violence directed against a family member or co-habitant. There is an exclusion in the statute for people who were not represented by counsel and who did not knowingly, voluntarily, and intelligently waive their right to counsel. So DON'T SIGN THE FORM.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    As always, thank you for continuing to educate us. It is appreciated greatly.

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    Would this not apply in all states?
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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    No idea. Aspects of it, in terms of what federal law says, do, but what I'm focusing on is an element of practice in Virginia district courts (J&DR and GDC) and how the VSP are doing things. I'd hesitate to put this somewhere (1) of general application where I'm not competent to pontificate and (2) where people in Virginia would be less likely to see it.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    BTW, to those who have already been convicted (the usual thing is for the prosecutor to tell the defendant, "You don't need a lawyer, this can all be handled today; just agree to take a class and this will all go away.") but who did sign that form, and who are now in the position of not being able to buy a gun, there is a way out. If you go to buy a gun, do the background check form truthfully (answer "yes" when it says, "have you been convicted"), and on the "explanation" page, say, "I didn't knowingly, voluntarily, and intelligently waive my right to counsel." Then, when you get denied, appeal the decision on the ground that you didn't know what that form was about, no one explained it to you, and you were ordered to sign it. If that's true, of course, don't make stuff up, that can get you into real trouble.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Regular Member jsfrederick's Avatar
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    User, Thank you for this very important information. As always, you are keeping all of us up to date on the deviousness of the sneaky individual who back doored his way into the Governors office.


    Sent from my iPad using Tapatalk

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by jsfrederick View Post
    User, Thank you for this very important information. As always, you are keeping all of us up to date on the deviousness of the sneaky individual who back doored his way into the Governors office.


    Sent from my iPad using Tapatalk

    That^

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    Quote Originally Posted by peter nap View Post
    That^
    What does this mean?
    "Everyone has a plan 'till they get punched in the mouth." - Mike Tyson

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    Quote Originally Posted by scooter348 View Post
    What does this mean?
    Just a different form of "+1"

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

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    Quote Originally Posted by skidmark View Post
    Just a different form of "+1"

    stay safe.
    Ah. I got it. Thanks.
    "Everyone has a plan 'till they get punched in the mouth." - Mike Tyson

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    Quote Originally Posted by user View Post
    If you are arrested for anything related to assault or battery where the victim is related to you or someone you live with, here's a REALLY IMPORTANT TIP: do not, repeat, DO NOT sign the "waiver of counsel" form they will shove at you and tell you to sign. You do not have to sign it, you are not required to waive your right to counsel, and you should not, under any circumstances, sign that form!!! There's a place at the bottom of the form where the judge can sign it saying the court rules that you have, by refusing to sign, waived your right to counsel, but that doesn't matter.

    Here's why: if you are convicted of a "misdemeanor crime of domestic violence", you lose your right to defend yourself with firearms. Forever. And there's a recent U.S. Supreme Court opinion in which members of the majority expressed the opinion that any assault on a family member (remember, "assault" does not require actual touching) constitutes "violence". That opinion is what's called, "mere dicta", things the court talked about in the opinion that have nothing to do with the holding in the case, and in this case, members of the Court were sort of spouting off from amicus curiae briefs that contained nothing but other people's anti-gun opinions and anecdotal evidence. In other words, not legally binding as precedent.

    Nevertheless, the Virginia State Police, acting on instructions from the carpetbagger who's opposed to the individual's right to defend himself, his home and his family from criminal violence, are treating the dicta as if it were law and refusing CHP's and gun sales without there having ever been any actual crime involving force or violence directed against a family member or co-habitant. There is an exclusion in the statute for people who were not represented by counsel and who did not knowingly, voluntarily, and intelligently waive their right to counsel. So DON'T SIGN THE FORM.

    First, I must say I am glad to see this topic being discussed and have some questions and a couple of points Id like to make. I among others feel that the L. Amendment is highly unconstitutional and should be repealed. I will say that this situation does affect me personally as my father is a victim of this ridiculous law from an incident dating back from 1988 when he was 19. After speaking with 2 lawyers, one from the VCDL site, my father was giving the following advice. 1) There is no State Law prohibiting him from possessing a gun cause due to a Misdemeanor A&B. After being told that he went and applied for a CHP and was granted one from the local court. I understand that a CHP does not say he can posses under federal law but only state law. However, he was pulled over last week and the officer simply gave him his CHP back and didn't even write him a ticket for failing to signal. So if our government says Gays should able to have their marriages recognized from state to state with out federal interference. Why not the same for guns?? Also, 2) in Heller vs. US it was decided that gun ownership is an absolute right. So based on the fact that local police in VA do not enforce the L. law and considering Heller vs. US. I feel my father can carry but I know if he travel on federal land or comes across a fed somehow while armed the result may be a criminal charge.

    Secondly, there was federal case earlier this year that another lawyer told me could affect the L. ban if ever presented under the right circumstances. A man won a case against the feds involving being banned from gun ownership. He went to a hospital to be mentally evaluated and I believe he was admitted as well. When the L. ban was created there was also included in the bill a system for restoration via the ATF. The same was for people who were considered mentally unsuitable to own guns. Congress defunded this restoration process in 1993 and it has never be funded since. That is why the L. amendment is a lifetime ban and felons may can restore their guns after 5 yrs. in Virginia. One of the primary reasons the man won his case and got his gun rights back was because of the defunded ATF department which created a lifetime ban for him. There has to be something useful in this case to help those under the L. amendment.

    Can someone that's actually informed on the L ban particularly Mr Hawes provide an opinion or some insight on the listed above? It seems as though local police and state police only enforce VA gun laws. Such a policy makes getting a gun via FFL impossible but of course a private sell in Virginia doesn't require FFL procedures.

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    Welcome to OCDO UVA_undercover.

    If your user name means what I think it does, I'd like to find out a) if you are aware of the exemption that you are eligible for should you ever fall into this morass, and b) if you are aware of the number of others who are working under that exemption?

    State-level LEOs enforce state laws. They might be aware of federal laws that they believe are being violated, in which case they have to refer the matter to the US Attorney to decide if they want to prosecute. The problem I see is that while the SP-65 form dos not ask about "misdemeanor crimes of domestic violence" it does have a statement in the certification section:

    I certify that the above answers and answers on the corresponding Federal Firearms Transaction Record (ATF F 4473) form are true and
    correct. I understand that I may not receive a firearm if I am prohibited by federal or state law. I understand that the making of a false statement on this form and/or the corresponding federal form is punishable as a felony. I hereby consent to having the transferor (seller) request a criminal history record information check be performed by the Department of State Police about me in connection with this transaction.
    that would make it a state law violation if your father were to attempt to purchase a firearm from a FFL.

    Fortunately, private sales do not require a background check.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

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    Actually, under the Constitution of the United States, the United States has no law enforcement authority at all. The police power is one of those reserved to the states. That's why, in order to get the FBI created, the agreement had to be that all it would do is investigation. Of course the pressing need to control bootlegging put an end to that theory, and it's been downhill ever since, such that every federal agency seems to have its own police department.

    So the idea that local cops can't enforce federal law is very new. Either Virginia is in the United States or it isn't. If it is, then federal law is Virginia law, and unless a specific code section divests state courts of jurisdiction with respect to federal issues, then every county court in the U.S. is a federal court of competent jurisdiction. I've thought it was funny, by the way, that people assume that a local county sheriff in Arizona doesn't have the power to enforce immigration laws.

    Now that the United States has arrogated unto itself law enforcement authority, it wants to own it. But it actually has no authority to do so. It's just a matter of the naked exercise of power. Why do they do it? Because they can. What's a constitution among friends, anyway?
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    --snipped--What's a constitution among friends, anyway?
    I may have to borrow that

    It might have to do with one's definition of friends.
    You will not rise to the occasion; you will fall back on your level of training. Archilochus, 650 BC

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    Quote Originally Posted by UVA_undercover View Post
    Congress defunded this restoration process in 1993 and it has never be funded since. That is why the L. amendment is a lifetime ban and felons may can restore their guns after 5 yrs. in Virginia. One of the primary reasons the man won his case and got his gun rights back was because of the defunded ATF department which created a lifetime ban for him. There has to be something useful in this case to help those under the L. amendment.
    I think that they may have recently voted to restore funding to that dept., but I also think that it only serves to restore rights involving federal cases/charges.
    *I am not a lawyer. Nothing from me shall be construed as a magic cloak of legal advice. It's ultimately your tucas that's on the line. Keep examining the law anyway. The gov't, made up of people like us, is supposed to work for us, not against us. Let's find, correct, and avoid the wrongs before they're actively used against us, or we become innocently trapped by them. We're to be the masters. Let's vigilantly keep tabs on our servants who seek to rule us.

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    Thought I'd add my experience in this matter here: A conviction giving a person a federal firearms disability that is a state level conviction is considered removed when the conviction or disability is removed by the state. For instance: a misdemeanor CDV conviction results in a federal firearms disability, but once pardoned or expunged, by the state, the disability is considered removed by the federal government. I'd have to dig for relevant case law, etc. A federal firearms disability placed due to a federal charge is what the ATF was charged with overseeing, and subsequently not funded essentially making it an unenforced law. I have seen case law relating to the ATF and the lack of funding that essentially found this isn't challengeable because, being defunded, it is considered an unenforced law.

    I can look up all these references later if anyone is interested.

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    Quote Originally Posted by slick84pb01 View Post
    Thought I'd add my experience in this matter here: A conviction giving a person a federal firearms disability that is a state level conviction is considered removed when the conviction or disability is removed by the state. For instance: a misdemeanor CDV conviction results in a federal firearms disability, but once pardoned or expunged, by the state, the disability is considered removed by the federal government. I'd have to dig for relevant case law, etc. A federal firearms disability placed due to a federal charge is what the ATF was charged with overseeing, and subsequently not funded essentially making it an unenforced law. I have seen case law relating to the ATF and the lack of funding that essentially found this isn't challengeable because, being defunded, it is considered an unenforced law.

    I can look up all these references later if anyone is interested.
    That's all consistent with my understanding. However, after twenty years, a conviction for domestic A & B is expunged from the J&DR courts. But the "record" persists; it is a crime for anyone to use expunged information in Virginia, but like, who's going to arrest the Va. State Police for denying a background check application? And once they send the information to NICS, well, that's like a black hole, it ain't never coming out.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    That's all consistent with my understanding. However, after twenty years, a conviction for domestic A & B is expunged from the J&DR courts. But the "record" persists; it is a crime for anyone to use expunged information in Virginia, but like, who's going to arrest the Va. State Police for denying a background check application? And once they send the information to NICS, well, that's like a black hole, it ain't never coming out.
    VAF is the route I was presented post pardon/expungement. NICS will contact whoever initiated the disability to verify and, disability removed, should get the all clear. NICS pin may be a necessity for future purposes. Or a CHP if VA CHP exempts a buyer from the NICS check.

    I'm a little outside the VA aspects of this being in SC. It will be interesting to see how the feds and courts treat the new SC law passed this year. It states, with some stipulation, after 3 years of a misdemeanor CDV and upon receipt of a letter stating the relevant information, SLED *shall notify* NICS that a person is no longer prohibited. Creates a situation where the state has obviously restored the right but under the federal act a person should be still prohibited by the conviction.
    Last edited by slick84pb01; 08-10-2015 at 09:29 AM.

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    Quote Originally Posted by user View Post
    That's all consistent with my understanding. However, after twenty years, a conviction for domestic A & B is expunged from the J&DR courts. But the "record" persists; it is a crime for anyone to use expunged information in Virginia, but like, who's going to arrest the Va. State Police for denying a background check application? And once they send the information to NICS, well, that's like a black hole, it ain't never coming out.
    Is it expunged or pardoned? Expunged means there is no longer a record. While there may be a record of the expungement, there should, in essence, be no record of a charge. Running a background check through a state agency may let you see exactly what is showing up.

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    Quote Originally Posted by ChristCrusader View Post
    I think that they may have recently voted to restore funding to that dept., but I also think that it only serves to restore rights involving federal cases/charges.
    I think there is bill proposed to do so and if it makes into law then it must include restoration for L law as well.

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    Quote Originally Posted by slick84pb01 View Post
    Thought I'd add my experience in this matter here: A conviction giving a person a federal firearms disability that is a state level conviction is considered removed when the conviction or disability is removed by the state. For instance: a misdemeanor CDV conviction results in a federal firearms disability, but once pardoned or expunged, by the state, the disability is considered removed by the federal government. I'd have to dig for relevant case law, etc. A federal firearms disability placed due to a federal charge is what the ATF was charged with overseeing, and subsequently not funded essentially making it an unenforced law. I have seen case law relating to the ATF and the lack of funding that essentially found this isn't challengeable because, being defunded, it is considered an unenforced law.

    I can look up all these references later if anyone is interested.
    I would love some references pertaining to that. I have also heard that most of the people charged under the Lautenberg Amendment were either guilty of some other crime ie- drug trafficking or on federal land. You seem knowable about this topic so id like to ask you. What would you advise your father in this situation? It seems like a greater risk to his safety to not own a gun then to own one and protect himself and stay off the feds radar....

    Also what do you think about the Federal case were the man got his federal rights restored due to no known processes to restore them? That should apply to the L amendment as well but I wouldn't want to be the test case.

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    Quote Originally Posted by UVA_undercover View Post
    I would love some references pertaining to that. I have also heard that most of the people charged under the Lautenberg Amendment were either guilty of some other crime ie- drug trafficking or on federal land. You seem knowable about this topic so id like to ask you. What would you advise your father in this situation? It seems like a greater risk to his safety to not own a gun then to own one and protect himself and stay off the feds radar....

    Also what do you think about the Federal case were the man got his federal rights restored due to no known processes to restore them? That should apply to the L amendment as well but I wouldn't want to be the test case.
    Preface: This is free and my opinion, as I mention in a few lines - hire a lawyer if for nothing else than explaining where you stand legally in VA.

    Federal firearms disabilities are placed on anyone who is 1) convicted of a felony misdemeanor with a *potential* jail term of more than one year, 2) convicted of a state misdemeanor with a *potential* jail term of more than two years, and 3) convicted of a crime of criminal domestic violence persuant to USC 922(g)(9).

    USC 922(g)(9) reads "who ha been convicted of in any court of a misdemeanor crime of domestic violence"

    My *unprofessional and free* advice would be:
    First, identify if he meets any of those criteria. If he does not, he has no disability in the federal sense. Be wary of how 1 and 2 are worded. Any conviction has to carry a potential sentence less than that listed. While he may have served no time, if he potentially faced that amount of time based on state law and maximum sentences, he would have a disability.

    Secondly, once you figure out the federal part, seek the advice of a firearms savvy lawyer in your state. Preferably one with a focus on firearms associated cases. The one to couple hundred bucks you will spend will not only give you peace of mind, a good lawyer will set a plan before you and note what will or won't happen and how to go forward from each step.

    Aside from those two, ensure that expungement means expungement (*a first time offender of a prior criminal conviction seeks that the records of that earlier process be sealed, thereby making the records unavailable through the state or Federal repositories.). And verify by, potentially forking over a few bucks, getting a state agency to run a background check on him. Expungement may show, but it should only be as evidence that an expungement was given if its a one time deal (it is here).

    It is a deep rabbit hole but, in my opinion, manageable if you are cautious and persistent. As far as current stance, I would highly advise against anything that would make the situation potentially worse. Be that carrying daily or in the car, having one at home, or not at all is a decision that has to be made on a more personal level. I am unaware of any agency swatting folks who are supposed to have a disability at random, but should a situation arise before you know definitely where you stand and it turn out there is a disability and you're in possession - you're talking a minimum 1 year in a federal pen. and a whole lot more legal trouble to undo, not to mention that the sentence qualifies as a federal firearms disability in and of itself.

    I have to look up references when I get home because my work doesn't like a lot of firearms searches and the phone makes it tedious sometimes.

    A final note: I would rather pay for legal advice and even a retainer to go forward with the knowledge of a firearms attorney behind me than I would have to hire that same attorney after I was arrested for trying to purchase or possessing a firearm with a federal disability.

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    I should note too, the federal disability is considered a 'lifetime' disability and thus removing it is not an easy or fast process. The L amendment essentially added domestic violence, and I know for a fact a single conviction of domestic violence without anything else is enough to 'disable' someone. There are multiple slow moving ways through and around it, in and of itself, but unless he has been charged specifically with domestic violence or there is state law that equates his charge to it, I wouldn't believe that would be the reason he would be considered 'disabled.' As far as due to potential sentences I don't know the charges and potential sentences so I can't rule that out either.

    Attorneys are cheaper now than 12 of your peers later.

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    18 U.S.C. 921( a)( 20) provides that 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.

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    Looking over some of the VA stuff, the key seems to be was it charged as "Assault & Battery" or "Assault & Battery of a family member"
    Last edited by slick84pb01; 08-10-2015 at 05:15 PM.

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