HomeMy WebLinkAbout02/16/2010 05 Audience ParticipationDomestic Violence Offender Gun Ban - Wiki edia, the free encyclopedia b l54n LLY47ed h/ /
2/16/105.19 PM Domestic Violence Offender
Gun Ban 1 y , 2
From Wildpedia, the free encyclopedia
The Domestic Violence Offender Gun Ban ( "Gun Ban for
Individuals Convicted of a Misdemeanor Crime of Domestic
Violence ", Pub.L. 104 -208 (http : / /www gpo.gov/fdsys/pkg/PIAW-
104publ2O8/content-detail.html) 104Publ208 /content - detail.html) ,111 18 U.S.C. § 922(g)(9) ��<<I
(http / /www.law cornell .edu /uscode /18/922(g)(9).html) [ �]) was an 0\4
amendment to the Omnibus Consolidated Appropriations Act of 1997
enacted by the 104th United States Congress in 1996. The act is often
referred to as "the Lautenberg Amendment" after its sponsor, Senator
Frank Lautenberg.
Contents
■ 1 Summary
■ 2 Court history
■ 3 Application
■ 3.1 Opposition views
■ 3.2 Proponent views
3.3 Effects on the United States military
3.4 Effects on law enforcement officers
■ 4 See also
■ 5 External links
■ 6 References
Summary
The act bans shipment, transport, ownership and use of guns or
ammunition by individuals convicted of misdemeanor domestic
violence, or who are under a restraining (protection) order for
domestic abuse. The act also makes it unlawful to knowingly sell or
give a firearm or ammunition to such person.
Firearms dealers are under ever increasing pressure to avoid straw
purchases — a purchase made by a non - prohibited person on behalf
of a prohibited person. This means that spouses, people who
cohabitate with a domestic violence offender, and indeed friends can
come under very close scrutiny by dealers and law enforcement
during the sales process.
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The definition of 'convicted' can be found in the chapter 18 USC ss
921(a)(33)(B)(ii) and has exceptions
(33) (B) (i) A person shall not be considered to have been convicted of
such an offense for purposes of this chapter, unless— (I) the person
was represented by counsel in the case, or knowingly and intelligently
waived the right to counsel in the case; and (II) in the case of a
prosecution for an offense described in this paragraph for which a
person was entitled to a jury trial in the jurisdiction in which the case
was tried, either (aa) the case was tried by a jury, or (bb) the person
knowingly and intelligently waived the right to have the case tried by
a jury, by guilty plea or otherwise. (ii) A person shall not be
considered to have been convicted of such an offense for purposes of
this chapter 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.
Therefore, if a person was represented by counsel, waived that right,
AND, the person was entitled to a trial by jury, but also waived that
right, the person shall not be considered to have been convicted if the
conviction was expunged or set aside or had his civil rights (to bear
arms) restored, UNLESS the further order of the court permanently
revokes that right.
Court history
This law has been tested in federal court with the case United States
v Emerson (No. 99- 10331) (5th Cir. 2001) 131 See also U S. v.
Emerson, 231 Fed. Appx. 349 (5th Cir 2007) (Same defendant
seeking review of judgment). The case involved a challenge to the
Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute that
prohibited the transportation of firearms or ammunition in interstate
commerce by persons subject to a court order that, by its explicit
terms, prohibits the use of physical force against an intimate partner
or child. Emerson does not address the portion of the Lautenberg
Amendment involving conviction for misdemeanor domestic violence.
It was initially overturned in 1999 for being unconstitutional, but that
case was reversed upon appeal in 2001.141
The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th
1999) also challenged this law, and the case was
rejected. [citation needed] The ex post facto aspects of the law were
challenged with
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United States v Brady, 26 F.3d 282 (2d Cir ), cert. denied, 115
S.Ct. 246 (1994)(denying ex post facto challenge to a 922(g)(1)
conviction) and
United States v Waters, 23 F.3d 29 (2d Cir 1994) (ex post facto
based challenge to a 922(g)(4) conviction)
Both of the challenges were denied.
Application
For individuals who find their gun rights revoked by the Lautenberg
Amendment, having their misdemeanor record expunged or sealed
WILL NOT restore legal access to firearms.
Opposition views
Some opponents believe that the law runs contrary to the right to
keep and bear arms protected by Second Amendment to the United
States Constitution, and that this law has modified the Second
Amendment to be more of a revocable privilege than a fundamental
protection. Other opponents believe that this is contrary to the Tenth
Amendment, making firearm and ammunition possession a federal
felony due to a previous state misdemeanor charge. Most opponents
consider this act to be an ex post facto law, and thus, illegal under the
U.S. constitution.
Proponent views
Proponents of this section of federal law use the U.S. constitution to
defend its legality The Supreme Court has consistently ruled that
Congress, under the interstate commerce clause, has the authority to
regulate items that enter, or could enter, the stream of commerce.
Since guns can easily be transported across state lines, this justifies
federal regulation. Furthermore, courts have also upheld the ability of
the government to restrict the gun rights of categories of people,
including criminals, the mentally ill, etc., ruling that prohibiting a
narrow category of people from owning firearms does not violate the
second amendment.
Effects on the United States military
This law effectively mandated the discharge of service members who
had been convicted of domestic violence, and mandates the discharge
of all service members who are convicted of domestic violence in the
future. This is not explicitly written in the law, but a side effect of
servicemembers' access to firearms in the course of their duties. A
servicemember discharged this way is said to be Lautenberged.
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Effects on law enforcement officers
The Bureau of Alcohol, Tobacco and Firearms (ATF) sent a notice to
every law enforcement agency when this law went into effect. Police
officers with prior misdemeanor convictions of domestic violence
from years earlier were no longer permitted to possess firearms under
the new federal law Several officers were fired for such past
misdemeanor offenses. Several of the gun magazines printed a copy of
this new ATF order at the time.
See also
• Gun Control Act
• Firearm Owners Protection Act
External links
• Department of Justice Criminal Resource Manual
(http / /www.usdoi.gov /usao /eousa /foia_ reading _room /usam /title9 /crmoill7.htm)
• The Consumer Law Page Article
(http / /consumerlawpage.com /article /handguns.shtml)
• Misdemeanor Crime of Domestic Violence
(http / /www.letswrap.com /legal /firearms.htm #misdem)
• The Emerson Case ( http• / /www.ejfi.org /emerson.htm)
References
1 ^ "PUBLIC LAW 104 -208" (http• / /www.aele.org /s- 658.html)
http• / /www.aele.org /s- 658.html.
2 ^ "Criminal Resource Manual 1117 Restrictions on the Possession of
Firearms by Individuals Convicted of a Misdemeanor Crime of
Domestic Violence"
(http / /www usdoj. gov /usao /eousa /foia _ reading_room /usam /title9 /c
rmo1117.htm)
http / /www usdoj. gov / usao /eousa /foia_reading_ room /usam /title9 /cr
mo1117.htm
3. ^ "FindLaw for Legal Professionals - Case Law, Federal and State
Resources, Forms, and Code"
(http. / /Iaws.1p.findlaw.com /5th /9910331cro.html)
http / /laws.1p.findlaw.com /5th /9910331cro.html.
4. ^ "FindLaw for Legal Professionals - Case Law, Federal and State
Resources, Forms, and Code"
(http / /caselaw.lp.findlaw.com /scripts /getcase.pl?
court= 5th&navby= case8mo =9910331cro)
http• / /caselaw.1p.findlaw.com /scripts /getcase.pl?
court= 5th &navby= case8mo= 9910331cro
Retrieved from
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Domestic Violence Offender Gun Ban - Wikipedia, the free encyclopedia
Categories United States federal firearms legislation 11997 in law
This page was last modified on 18 January 2010 at 03 16.
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SEC. 658. GUN BAN FOR INDIVIDUALS CONVICTED OF A
MISDEMEANOR
CRIME OF DOMESTIC VIOLENCE.
(a) DEFINITION. — Section 921(a) of title 18, United States
Code,
is amended by adding at the end the following:
"(33) (A) Except as provided in subparagraph (C), the term
`misdemeanor crime of domestic violence' means an offense
that -
"(i) is a misdemeanor under Federal or State law;
and
"(ii) 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.
SEC. 658. GUN BAN FOR INDIVIDUALS CONVICTED OF
A MISDEMEANOR CRIME OF
DOMESTIC VIOLENCE
(a) Definition. -- Section 921(a) of title 18, United States
Code,
is amended by adding at the end the following:
"(33)(A) Except as provided in subparagraph (C), the
term
'misdemeanor crime of domestic violence' means an
offense that--
"(1) is a misdemeanor under Federal or State law;
and
"(ii) 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
is
N
victim shares a child in common, by a person who
cohabiting with or has cohabited with the victim as
spouse, parent, or guardian, or by a person
similarly
situated to a spouse, parent, or guardian of the
victim.
RICHARD MACKEY PROPERTY 812 So 111h Ave February 16, 2010
In the fall of 2003 or 2004, 1 presented to the council my case that the clear view impact on my property
is extreme During that presentation Doug Maples came up and suggested that if the City moved my
rose bushes would that be a workable solution to this problem I agreed and a jail crew came and
transplanted the roses, which promptly died back. The City is back again but this time the impact to my
safety, privacy and property values is far greater
We need to have the city code amended to fit the neighborhood The lot sizes and traffic condition in
the Olsen Project between Tieton and Nob and 5th and 16th is entirely different than that on Castleview
or upper Lincoln Reason should prevail when enforcing the code Arlington Ave by my house is 19 feet
wide curb to cube with no sidewalk, therefore the bite out of my property is much greater than other
locations. There are many locations within Yakima that fall into this unpleasant situation
The neighborhood needs to be considered On quick look around my neighborhood I found 17 houses
that could be affected I wonder what is the total cost in lowered property value would be through -out
Yakima? What would the costs will be from a rise in crime and graffiti damages when backyards are no
longer secure or private?
Esthetically speaking, the clear view damages the character of the older parts of town.
We need to have the citizens weigh in on this matter To that end, I am going door to door to encourage
people who are just a crank call away from suffering damages to their property value, safety and
privacy
A one size clear view triangle does not fit all situations.
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Hi there fellow corner property owner
Recently I was reported to the city for a
"clearview triangle" violation. Evidently
someone thought my yard had too many
plants and made an anonymous
complaint. I was surprised as there is a
stop sign across Arlington St. from my
house and I could not imagine a scenario
where my yard could cause a person to
rip through the stop sign and create an
accident But ok fine I thought and I cut
back my roses and trees etc. Imagine my
shock when I was told that my fence and
lilac bush, which is well back from the
front of my house had to go. The fence
along Arlington provides security and
privacy and the lilac provides privacy and shade in the summer.
have marked the "clearview triangle" as defined by the Yakima City ordinance. It measures 15
feet in from the corner intersection back 120 feet along the street curb line and then a diagonal
line from that point As you can see on Arlington the triangle goes almost to the alley and on
11th it goes down two properties from mine. One triangle is about 16% of my total lot size
Other cities in Washington do not have such a large triangle some go 25 foot by 25 foot and
then a diagonal others only 15 feet I don't know about you but I feel this would lower my
property value, make me feel less safe, and ruin my privacy. I do not plan to abide by this and
neither should you.
I took a quick look along Arlington and around the neighborhood and found that I am not the
only one in danger of losing my property value and quality of life Driving around Yakima I am
amazed at the number of houses and businesses that are in violation of this crazy ordinance.
We need to have it changed I recommend you write you councilman demanding this ordinance
changed for all our good. Take a look at your yard and imagine that 120 foot line
I have placed this in your box as you are one who is dust a crank call away from the kind of
hassle I am in I would like to get a citizen action group up and running on this you can call me
on my cell 206 755 6902 or drop by at my home at 812 So. 11th Ave.
Yours, Richard Marcley