West Virginia gun case goes to the Supreme Court

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http://www.wsaz.com/news/headlines/18437644.html



[align=center]Charleston, W.Va. (WSAZ) - A West Virginia case involving gun rights is on its way to the United States Supreme Court.
[/align]In 1994: Randy Hayes of Marion County pleaded guilty under state law to a misdemeanor battery offense against his ex-wife. In 1996: it became a federal law that you can't own a gun if you're convicted of a domestic violence misdemeanor.


Then in 2004: police say they found a Winchester rifle at Hayes' home.

The government argues that because of his guilty plea to misdemeanor battery Hayes is not allowed to own a gun. But Hayes and his lawyer disagree. They say it's not fair to apply a law that was passed in 1996 to an offense that happened in 1994. They also say Hayes plead guilty to a state misdemeanor battery charge, which is different from a federal domestic violence misdemeanor.

The case is expected to go before the Court sometime this fall. Whatever the Court decides could influence gun laws and whether the government is allowed to enforce new laws on past cases all over the country.

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If he pleaded guilty in 94' and the law was created in 96' I really dont think they can
revoke his right to own a firearm.

The constitution has a little something called "ex post facto" (after the fact) which means you can't be charged with something if there is no law for it at the time.

For example, lets say there was no law currently in place for murder. If I kill someone I cannot be charged for the crime. If the gov't then creates a murder law after you have killed, then it cannot apply to you because of ex post facto.

I'm confident that the constitution is on his side
it will be very interesting to see the verdict on this one.

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COTUS I 9:3a

No bill of attainder or ex post facto Law shall be passed.

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But then COTUS I 9:4a is no more effective than its BOR 2

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Smiget wrote:

If he pleaded guilty in 94' and the law was created in 96' I really dont think they can
revoke his right to own a firearm.

The constitution has a little something called "ex post facto" (after the fact) which means you can't be charged with something if there is no law for it at the time.

For example, lets say there was no law currently in place for murder. If I kill someone I cannot be charged for the crime. If the gov't then creates a murder law after you have killed, then it cannot apply to you because of ex post facto.

I'm confident that the constitution is on his side
it will be very interesting to see the verdict on this one.

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I hope so, certainly, but I'm not so confident unfortunately
If I pled guilty to check fraud in '94 and in '96 the gov't passed a law that in effect said 'anyone convicted of check fraud may not issue checks or posess a checkbook' would it still be legal for me to have a checkbook?
Harder still....
If I pled guilty to DUI in '94 and in '96 the law was changed to say that those convicted of DUI may not drive for a period of 5 years, would I still be allowed to drive?
Neither one would be a new trial, but the penalties are Not the same as the law I was convicted under. (errr... theoreticallyl convicted)

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I'd say that so long as sex offender blacklists, er, registries, can be applied to past acts, so can this. The court will probably say that this isn't a punishment, per se, so it doesn't fall under "ex post facto", and secondly that it's a matter of public safety.

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I'm also confident that the consitution is on his side. Unfortunately, I'm not sure that the court is always on the side of the constitution anymore. There are too many justices on SCOTUS who think it is a living, breathing document instead of a damn good set of guidelines and rules we damn well should be following.

The problem here with ex post facto application is that he made a plea based on law and consequences at the time he made the plea. If the law in 1994 read that he would lose his right to ever again own a firearm, he very well would have made a different decision and fought the charges. Think of it this way:

You are arrested for _____ and the sentencing guidelines say that if you enter an Alford plea that you will get a max of 6 months suspended sentence. So you make the plea and go about your life. Two weeks later they pass a law that says any conviction of this crime, including an Alford Plea has a sentencing guideline of a minimum of 1 year in prison. Can they then come to your house and arrest you and take you to jail? Would you have made the plea if 1 year in prison had been the minimum sentence?

This is much the same thing. He made a plea. The gov't changed the consequences for that plea 2 years later. They cannot go back now and punish him differently than what was legal punishment at the time he made the plea.

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imperialism2024 wrote:

I'd say that so long as sex offender blacklists, er, registries, can be applied to past acts, so can this. The court will probably say that this isn't a punishment, per se, so it doesn't fall under "ex post facto", and secondly that it's a matter of public safety.

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I don't agree. Especially if Heller decides that 2A is an individual right.

Making sex offender registries retroactive, while it can easily (and rightly IMO) be argued that it is a punishment, it is also true that it is arguably just a central compilation of public record. That is VASTLY different than denying someone a constitutional right ex post facto and I think on that a lot of this will hing.

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There is more to this than just ex post facto. First of all, while this case the defendant very clearly was engaged in DV, not all misdemeanor domestic violence cases are the same.

It is a very common tactic in the midst of a divorce for one of the spouses (usually the wife) to allege DV. In most states, if DV is alleged, someone has to go to jail. In my case, I plead no contest to avoid the attorney's fees (I was going broke with the divorce attorney to begin with). There was no threats, no physical violence- nothing. There was just an argument and the rookie female LEO decided there was probable cause- though the other, more senior LEOs did not. I did not fight it, and in fact the family court judge saw it for what it was and told her it was sad she was trying to play games like that because it wouldn't work in her court. Unfortunately, since I was not a gun owner at the time, I didn't know the implications that this would have later.

Fast forward to when I purchased my firearm- NICS background check - Proceed. According to the Feds, I'm OK- they looked into my disorderly conduct (DV-related) and concluded that I was not prohibited under the Lautenberg amendment. Fast forward again two days ago I was declined my CCW permit in the state of AZ because of the same Disorderly Conduct violation from 8 years ago. When I called DPS to verify if they considered me prohibited possessor or not, she said, "Since it's a Federal Law, we leave that part of it to the Feds. As far as the state is concerned, using the federal guidelines, you can't be issued a CCW, but you can continue to OC if you wish."

See there are several problems with the law as it stands:

1. The law makes a felony from a misdemeanor, in other words, you can be charged with a felony as the result ofa misdemeanor (cruel and unusual 8th Amendment). In my case, I wasn't told at the time of my conviction that it would result in a future gun prohibition- a violation of the6th Amendment.
2. If I legally owned a gun prior to the offense then it could be construed as illegal seizure depending on the circumstances. (4th Amendment)
3. It denies due process (14th Amendment).

In my case, both DPS and the City Municipal court have been very helpful. I filed a motion to have my conviction set-aside, and they court is going to fast-track the request. When/if my motion is granted, DPS said they would change the status of my application (all I have to do is fax the court order). Should take no more than 2 weeks, but it's still dependant on a judge's discretion.

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He's going to lose. There's a relevant case I read recently (will update when I find it) that is very similar, and they said that as the victim was an intimate partner, it constituted doemstic violence, whatever the nominal charge, and was upheld as a bar to this guy's gun rights.

In the meantime, this is the applicable standard:

A "misdemeanor crime of violence," pursuant to 18 U.S.C. § 921(33)(a), means an offense that:

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.


As of September 30, 1996, the new law went into effect. However, the prohibition also applies to persons convicted of misdemeanor domestic violence AT ANY TIME PRIOR to September 30, 1996. Therefore, as of the effective date, any person who has EVER been convicted of a misdemeanor crime of domestic violence may no longer possess a firearm or ammunition.

With respect to all persons convicted, the law would NOT apply if the conviction is defective procedurally due to representation or trial issues, such as the person's constitutional rights to counsel and/or a jury trial were not knowingly and intelligently waived. Also, the law would not apply if the conviction has been expunged, set aside, pardoned, or the person has had his or her civil rights restored and the person is not otherwise prohibited from possessing firearms or ammunition.


-ljp

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Good post, Dawg. Hope the judge is sympathetic to your being screwed on the deal.

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Legba wrote:

He's going to lose. There's a relevant case I read recently (will update when I find it) that is very similar, and they said that as the victim was an intimate partner, it constituted doemstic violence, whatever the nominal charge, and was upheld as a bar to this guy's gun rights.

In the meantime, this is the applicable standard:

A "misdemeanor crime of violence," pursuant to 18 U.S.C. § 921(33)(a), means an offense that:

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.


As of September 30, 1996, the new law went into effect. However, the prohibition also applies to persons convicted of misdemeanor domestic violence AT ANY TIME PRIOR to September 30, 1996. Therefore, as of the effective date, any person who has EVER been convicted of a misdemeanor crime of domestic violence may no longer possess a firearm or ammunition.

With respect to all persons convicted, the law would NOT apply if the conviction is defective procedurally due to representation or trial issues, such as the person's constitutional rights to counsel and/or a jury trial were not knowingly and intelligently waived. Also, the law would not apply if the conviction has been expunged, set aside, pardoned, or the person has had his or her civil rights restored and the person is not otherwise prohibited from possessing firearms or ammunition.


-ljp

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Well, then we will just hope that SCOTUS will be inclined to rule that the standard is flawed and unconstitutional.

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deepdiver wrote:

imperialism2024 wrote:

I'd say that so long as sex offender blacklists, er, registries, can be applied to past acts, so can this. The court will probably say that this isn't a punishment, per se, so it doesn't fall under "ex post facto", and secondly that it's a matter of public safety.

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I don't agree. Especially if Heller decides that 2A is an individual right.

Making sex offender registries retroactive, while it can easily (and rightly IMO) be argued that it is a punishment, it is also true that it is arguably just a central compilation of public record. That is VASTLY different than denying someone a constitutional right ex post facto and I think on that a lot of this will hing.

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Well, I'm not convinced. Granted, I don't agree that the registries nor gun prohibitions for members of free society are constitutional, but I think the courts will say what I posted previously. I guess we'll see how it turns out...

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I personally believe that the case will hinge on WHEN he bought the gun. since he has been convicted of teh misdemeanor charge, as of teh passage of teh new law, his right to buy, possess, and own a firearm is prohibited from that point on. If he bought the gun BEFORE teh passage of the law, I believe that he is "grandfathered" in, and I believe taht the court will see it the same way.

either way, I disagree with the denial of a persons rights.

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unreconstructed1 wrote:

I personally believe that the case will hinge on WHEN he bought the gun. since he has been convicted of teh misdemeanor charge, as of teh passage of teh new law, his right to buy, possess, and own a firearm is prohibited from that point on. If he bought the gun BEFORE teh passage of the law, I believe that he is "grandfathered" in, and I believe taht the court will see it the same way.

either way, I disagree with the denial of a persons rights.

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It's still ex post facto to deny him to buy firearms in the future.

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Baradium wrote:

unreconstructed1 wrote:

I personally believe that the case will hinge on WHEN he bought the gun. since he has been convicted of teh misdemeanor charge, as of teh passage of teh new law, his right to buy, possess, and own a firearm is prohibited from that point on. If he bought the gun BEFORE teh passage of the law, I believe that he is "grandfathered" in, and I believe taht the court will see it the same way.

either way, I disagree with the denial of a persons rights.

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It's still ex post facto to deny him to buy firearms in the future.

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Baradium, please don't take my post eh wrong way, i disagree with it as well, but I merely stated that I believe that the court will base their decision on the time that the gun was bought, as opposed to teh timeframe for his conviction.

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unreconstructed1 wrote:

Baradium, please don't take my post eh wrong way, i disagree with it as well, but I merely stated that I believe that the court will base their decision on the time that the gun was bought, as opposed to teh timeframe for his conviction.

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I'd like to think they wouldn't. For one, it doesn't make sense. That'd imply that if he had two guns, and had bought one before and one after, he couldn't have the second gun but could have the first.

He can either have them or not, shouldn't be a limit on future purchases while letting him keep what he had already.

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Well, the law can be that stupid. If you're under indictment (at least in Ohio), you can keep the guns you already have, but can't acquire any more guns or even ammo (unless it's a crime of violence or a narcotics offense as alleged, then disability attaches when the charge is filed). Pretty fine hairsplitting, eh?

-ljp

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What led the police to find the rifle? How does the police end up in your house searching if you have no other reason for them to be there? I'm just curious...

PS: IF he assaulted his wife, I have little sympathy.

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Baradium wrote:

unreconstructed1 wrote:

I personally believe that the case will hinge on WHEN he bought the gun. since he has been convicted of teh misdemeanor charge, as of teh passage of teh new law, his right to buy, possess, and own a firearm is prohibited from that point on. If he bought the gun BEFORE teh passage of the law, I believe that he is "grandfathered" in, and I believe taht the court will see it the same way.

either way, I disagree with the denial of a persons rights.

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It's still ex post facto to deny him to buy firearms in the future.

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Wrong. When the drinking age was raised from 18 to 21 back in the 70's, those who were 19 at the time and had been drinking for a year were not prosecuted for MIPs that happened before the law passed (ex post facto), but were prohibitedfrom buying or drinkingafter the law passed, until they turned 21. It's slightly different, but the key point of "ex post facto" is that it deals with actions. A related but different concept is the grandfather clause. The difference is that ex post facto prevents prosecution for a single act; a grandfather clause protects an ongoing condition or state of affairs after the single act that creates a state of affairs is made illegal. These are seperate points of law; grandfather clauses are not synonymous with ex post facto, and the question before the SCOTUS basically amounts to "should they be?"; in other words, should a grandfather clause be required or implicitly understood under ex post facto when a law makes a persistent situation illegal?

The key difference which many people either do not know or conveniently forget is that *people* are generally not considered to be grandfathered; what is grandfathered is generally either a possession or a persistent situation. If tomorrow, God forbid, Texas stopped issuing and renewing CHLs but allowed valid CHLs to expire normally, it is the CHL that is grandfathered, not the license holder. I can carry concealed, as my CHL allows, until the CHL expires. However, once it expired I would not be able to renew it or to carry concealed. If the CHL were not grandfathered and expired immediately with the passage of the law, I as a person who carries concealed do not have the right to continue to carryjust because I could a week ago; the CHL, which is required by law for me to carry concealed, remains in existence and thus I can legally carryeven though the practice of issuing new CHLs has been stopped. BIG difference.

Applying this to the gun owner with the domestic violence charge, if he bought the gun when a domestic violence charge did not disqualify (before '96), it was legal for him to buy it and they cannot charge him for buying it. Whether it was legal by the letter of the lawfor him topossess it when it was found in his homeafter the law passed, OTOH,depends on whether the law specifically makes an exception (a grandfather clause) for weapons ownedeither before the law passed or before theperson wasfound guilty. The law probably does not specifically grant or deny this exemption, however thesituation is similar to others where things are grandfathered either explicitly or implicitly, and thus the question before the court is whether it is unconstitutionalto refuse tograndfather a possession that is made illegal to possess. In either case, it is perfectly logical that it is illegal for himto buy any new gun after 1996, because that is the letter of the law. Depending on the ruling he MAY be able to keep what he has until for whatever reason he doesn't have it anymore, but he cannot get more.