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Thread: SB224 will it be retroactive?

  1. #1
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    SB224 will it be retroactive?

    Anyone know what the impact of this bill will be? Will it apply to previous convictions even if pardoned or restored?

  2. #2
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    SB 224 (and its House counterpart, HB 992) would only apply to crimes committed on or after its effective date--if it becomes law. I strongly agree with VCDL's strong opposition to these bills. Under current Virginia (and West Virginia) law and the Fourth Circuit's decision in U.S. v. White, 606 F.3d 144 (4th Cir. 2010), assault and battery convictions in states like Virginia and West Virginia that still follow the common law theory of assault and battery (i.e., any unwanted touching of an insulting or provoking nature, no matter how gentle the touch) do not count as a "misdemeanor crime of domestic violence" under the Lautenberg Amendment because the crime does not include, as an element, "physical force," defined by federal case law as violent force--more than a mere touching.

    Second, I note that 18 U.S.C. 921(a)(33)(B)(ii) excludes from the definition of a "misdemeanor crime of domestic violence" any conviction
    if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
    Ignore the "civil rights restored" exception, as misdemeanors do not result in a loss of civil rights in Virginia West Virginia and a state cannot "restore" civil rights if civil rights were never lost in the first instance.
    Last edited by JimMullinsWVCDL; 01-19-2012 at 09:41 PM.
    James M. "Jim" Mullins, Jr., Esq.
    Admitted to practice in West Virginia and Florida.

    Founder, Past President, Treasurer, and General Counsel, West Virginia Citizens Defense League, Inc.
    Life Member, NRA

  3. #3
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    Thanks a great deal!

  4. #4
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    it's not necessary to pass the bill because prosecutors can achieve the same effect by, where appropriate, making the warrant Lautenberg compliant.

  5. #5
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    Not in virginia. Like mr mullins said the current a&b statue does not count as a crime of domestic violence. Therefore federal attorneys cannot charge citizens with violating 922(g). I had a lawyer by the name of Richard Gardnier write a letter to the VSP. Now I can purchase firearms.....i just wanted to make sure this bill wasnt retroactive.

  6. #6
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    Quote Originally Posted by love4guns View Post
    Not in virginia. Like mr mullins said the current a&b statue does not count as a crime of domestic violence. Therefore federal attorneys cannot charge citizens with violating 922(g). I had a lawyer by the name of Richard Gardnier write a letter to the VSP. Now I can purchase firearms.....i just wanted to make sure this bill wasnt retroactive.
    The bill is not retroactive, but bill or no bill, if a prior conviction is documented in the warrant as involving the use or threatenned use of force, then US v. White appears to allow that conviction to stand as a Lautenberg disabler.

  7. #7
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    United states v shepard and United states v harcum clearly outlines what a later court can use to determine force. Plea agreement, transcipt of plea colloquy, charging document and the final order is all a later court can use. So i think you are right my friend. Im not trying to play lawyer this is all the info i got from dan hawes and rich gardnier.

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