The 10th Circuit has issued an opinion that convictions under local ordinances for domestic violence do not remove a person’s Second Amendment rights. Current federal law makes a person who has been convicted of domestic violence under “Federal, State, or Tribal law” a prohibited possessor who may not legally purchase or possess firearms or ammunition. In this case, U.S.A. v. Pauler, the defendant, Alexander J. Pauler, had been convicted of violating a Wichita, Kansas municipal ordinance against domestic violence.
WICHITA – A Kansas man convicted of misdemeanor domestic battery under a city ordinance can legally carry a gun, an appeals court found in a ruling that could have broader implications for firearm sales.
The 10th U.S. Circuit Court of Appeals’ ruling came in the case of Alexander Pauler, a Wichita man who was accused of violating a federal law that prohibits someone from owning a gun if they’ve been convicted of misdemeanor domestic violence “under federal, state or tribal law.”
The opinion is fairly short and well written. It essentially says that the statutory language is clear, and means what is written. It is unclear if the state will apply for an en banc ruling, appeal the case to the Supreme Court, or elect to accept the 10th Circuit decision. From uscourts.gov:
We interpret “State” to have the same meaning in § 921(a)(33) that it has throughout the rest of §§ 921 and 922 and therefore conclude that “a misdemeanor under Federal, State, or Tribal law” does not include a violation of a municipal ordinance. In these sections, when Congress refers only to “State” law, it does not also include the laws of a state’s political subdivisions. Accordingly, because Defendant’s prior violation of a Wichita municipal ordinance was not a “misdemeanor crime of domestic violence” as defined by § 921(a)(33), the government has not demonstrated that he was prohibited from possessing a firearm under § 922(g)(9).
It is unknown how many people have been convicted of domestic violence under municipal or local ordinances. In some areas, large percentages of domestic violence cases are tried in municipal or local courts. Plea bargains where part of the deal is to plead guilty to a municipal ordinance rather than a state statute, are known to occur. From pressofatlanticcity.com:
About 43 percent of new domestic violence cases are heard in municipal court.
The case opens up a new strategy for defendants who are charged with domestic violence. Those who wish to avoid the expense of a trial have an option that may avoid loss of Second Amendment rights, by pleading to a municipal ordinance. Those who have been convicted under municipal or other local ordinances now have a reasonable case to appeal their status as prohibited possessors.
©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.
I find it somewhat painful to stand shoulder to shoulder with wife (or husband) beaters. And yet, here I am.
Meh… some people need five across the face to keep them in line. Women are much better at mind fuckery, and never get called on it these days.
Dude, for a guy that proclaims his hatred of muslims you sure talk like one at times.
I’m just pointing out that women are almost never prosecuted for the psychological torture they use against men. Given that, prosecuting men for losing their tempers when no real damage is done seem hypocritical.
Bogart gave out well deserved slaps in almost every movie, then you kiss ’em and toss ’em on the nearest couch. Problem solved. I think there is a serious difference in a Bogart slap and “wife beating”.
If they want equal rights, shouldn’t that come with equal lefts???
Watch out for tollbooths, use ‘EasyPass’ (that must be mob-controlled, picking your pocket automatically, with just a soft ‘peep’ and a flash of green LED…)
“Meh… some people need five across the face to keep them in line.”
Sicilian marital wisdom from ‘The Godfather’:
The Don’s daughter – “Daddy, my husband beats me!”
Don Corleone – “What do you do to make him hit you?”
In that case, nothing. It was just a way to draw out Sonny.
Watch out for tollbooths, use ‘EasyPass’ (that must be mob-controlled, picking your pocket automatically, with just a soft ‘peep’ and a flash of green LED…)
The tollbooth was later, the first time around, she was complaining to the Don at the wedding…
They only have power over you if you give it to them.
I’m with you on that, Ralph. But I never thought it just to convict a person of a misdemeanor and have that lead to loss of civil rights for life.
A conviction doesn’t mean they actually did anything. There are a lot of people who are rail roaded in the criminal justice system. Restraining orders and domestic abuse claims are often used in divorce and child custody cases.
A ‘restraining order’ is a lot easier to get than a conviction, though.
And if you plead guilty, well, guess you shouldn’t do that if you’re innocent.
Assume for the moment you believe yourself to be innocent:
Imagine your lawyer wanted $5k to take it to trial, or you could plea ‘no contest’ to a reduced charge and pay $100 fine and $1000 to your lawyer with no jail time…
Imagine 20 years later, Congress decides loss of civil rights for life would be a fine retroactive sentence for you, on top of the $100 fine you already paid…
Imagine deciding that killing a voting majority of congresscritters would be a good use of the rest of your life…
Dude, “Domestiv Violence” means literally anything. I personally know people who caught a DV charge (and a charge is pretty much a garaunteed conviction) without even touching her. I don’t mean she claimed they hit her, I mean nobody claimed any kind of physical confrontation. Still, DV conviction.
Yeah, in some states the policy is a “manditory arrest” on ANY domestic violence call. So, the neighbor hears you fighting (arguing) loud and calls the police, says a woman is “screaming” across the street. Cops show up and the couple say ” No, we were just having a heated discussion…its fine.” No one has any physical injurys. Too bad. They will actually tell you to decide between the two of you who is going to jail, period.
I’ve also seen guys get involved with a CRAZY woman, who seemed ok…until she wasn’t. Woman gets pissed off catching dude texting some other chick or something, and she KNOWS all she has do do to ruin the guys life (at least for a while) is either slap herself twice and make a phone call or go get a restraining order. That system is WAY broken.
Just the fact that someone can get an emergency restraining order on anyone else on just their word alone is craptastic. How does that even work along side of “guilty until proven innocent”? Wackadoo.
‘Domestic disturbance’ calls, I understand, frequently turn into ‘battery on a law enforcement officer’ shortly after the cops snap on the shiny bracelets, when the woman jumps the cop to ‘get her man back’.
I couldn’t be a cop, even though I naturally have a ‘hostile and combative’ personality, it really stresses me out if I’m exposed to someone else’s, like the neighbors fighting next door wit their windows open…
In this situation, a misdemeanor battery charge at the municipal level probably isn’t a “wife beater”. A friend of mine in Colorado got into a fight with her husband in public (after drinking all night at a bar) and both of them got arrested and charged under a municipal ordnance for domestic violence.
If the crime was severe enough for a state charge, the prosecutor would have charged it that way.
Under CO law, telling your wife “Shut up, bitch!” is misdemeanor DV. Punching a door in frustration, breaking a dish, all are a State misdemeanor.
So, let me get this straight. Under this new ruling, if it stands, only a conviction of domestic violence in Federal court equates to loss of 2a rights?
Damn. That pretty much removes non felony domestic violence as a lifetime prohibition against gun ownership.
CA changing all domestic violence laws to felonies in 3….2….1.
No, read it again. The Federal law prohibiting possession is based on convictions under federal, state, or tribal laws. A local municipality is not on the list, but the plaintiff was convicted under such an ordinance. The court correctly said, in essence, read the law, it’s not there, you can’t just pretend that it is.
The court held that misdemeanor convictions of local and municipal spousal violence ordinances, codes and laws will not eliminate 2A rights. State, Federal and Tribal misdemeanors and felonies are not affected by this decision.
I’m sure Frank the Lout thought he’d covered all the bases…heck, I thought he did too, I never imagined there would be a city ordinance against wife-beating so that the city could claim a big fine instead of letting the state do all the fleecing…
“Domestic violence” has been so over applied these days it includes shouting matches, so anything to lessen that abuse is welcome.
It is also used as a weapon in divorce and custody cases. I am suspect of any criminal charge and MUCH more so when the accused and the accuser know each other.
Yes, and in spite of numerous studies that show domestic abuse to be about evenly distributed between men and women, nearly all people convicted of domestic abuse are men. In some local ordinances, the law requires the police to arrest a party, even if it is difficult to determine who is the victim.
Domestic abuse has become political abuse of men in a significant percent of cases.
I know people who were arrest where they are the one assaulted or there was no assault at all. The cops don’t want to end up on TV or the newspaper is there is a serious assault later that day/night, so they just arrest the guy and let the courts deal with it. It’s not even being cautious, it’s a cover your butt arrest. I’ve spoken to women detectives in my areas about the DV laws in my state, they say they are abused like crazy in family and divorce situations and it’s a joke.
Not always. Years ago, on Cops, they investigated an argument between an elderly couple. When the wife admitted to slapping her husband, they hauled her off to jail.
That’s because men are typically much more proficient at domestic violence. The woman may start it, but the man usually ends up inflicting the most damage.
I’m one of those lucky people that bruises easily and martial arts has me covered in bruises most of the time.
I joke with my wife that due to this if we ever argue and someone calls the cops on us it’s her that’s going to get screwed.
Truth is, if we ever really had a DV incident I’d probably need a hospital or a mortician.
What about the 2nd amendment itself? Isn’t it clear and means what is written? That the right of the people to keep and bear arms shall not be infringed?
It should not matter what crime a person has committed if said person has served their time, or probation, or paid recompense. Only during a person’s incarceration or probation are their Rights suspended. After that all Rights should be restored.
The prohibitions against the possession of arms by (violent) fellons are longstanding and deeply rooted in Anglo-Saxon Common Law. Hence, in principle, they do not diminish RKBA even as it was understood by the Framers and before them at all.
I am sure, however, they would have found some harsh words about all kinds of nonviolent crimes and misdemeanors as well as highly questionable “crimes” such as (bogus) “domestic violence” shenanigans getting dragged under the umbrella.
I’m just happy the stormy relationship with my 1st wife 40years ago hasn’t f###ed my life up. No problems for a very long time. Yes women can be violent and abusive but there is(almost!) no excuse to hit a woman…and you shouldn’t lose your rights over BS.
Yeah… I have the exact same threshold for hitting a woman as hitting a man. Basically, they do something that requires a beating to correct. I’m an egalitarian that way.
There’s always someone bigger than you. If you apply that sort of “justice” to others, expect to be pummeled someday.
Finally a bit of good news! We need the ATF rights restoration program funded now OR we need the government to recognize that the 2nd Amendment IS a right and not a privilege which can be taken away like it currently is – HEAR THAT NRA??? Why should anyone lose their 2nd Amendment right after they have “done their time” or “paid their debt to society” when they are “set free?” If anyone proposed a law which would take away anyone’s 1st, 4th, 5th, 6th, 7th, etc. Amendment rights for life, after they “did their time” in jail, the Democrats and Republicans would go crazy but the 2nd Amendment can be taken away for life – no problem. Where is the NRA??? [crickets chirping] Where is the Trump Second Amendment Committee with all of their gun industry celebrity activists??? [crickets chirping] Was the Trump 2A committee just for show and to use gun owners to get elected or is Trump going to make the 2nd Amendment “great again?” Or will we just get another lack luster George “Dubya” Bush big ZERO performance on gun rights??? The liberals would like to take away our gun rights for life for getting a few parking tickets.
I assume the federal law Weingarten refers to is the infamous Lautenburg Amendment, passed around ’95 if memory serves. I was City prosecutor then, and got a call from a 70-year old man who had his pistol permit renewal denied because he had pleaded guilty to “Harassment”, an unwanted touching (The lowest level of assault in AL), in 1976. He and his wife were divorcing then. She made the charge simply to get leverage in the divorce. Divorce settled, the man took his lawyer’s advice to plead guilty and pay the $25 fine, “Because it can never come back to hurt you!”
Now, 20 years later, confined to a wheelchair and his kids moved far away, the man asked me, “What can I do now to defend myself?” I told him I was very sorry, but he needed to call his congressman. Lautenburg is now dead. My sympathies to Satan.
In a case like that, Greg, I would hope he would just get his via private sale and be done with it…
This. Lautenburg applies to any arrest, not conviction. When released, the orders have to say that your gun right are restored or you will not rate to own a gun. This 10th Circuit decision flies in the face of established law and will not stand long.
BTW, many CA jurisdictions consider hitting a pet DV. Imagine losing your rights for hitting an aggressive dog
In Texas one can be issued a citation or jailed (or both) for “Family Violence”. The screwball thing is this can apply to non family members that cohabitate like roomates. So, one can have a nasty looking thing on their record for something as silly as getting into an altercation with someone living in the same dorm, It’s pretty ridiculous. This 10th circuit ruling is past due, there are a lot of people in a situation that could curtail their rights unjustifiably.
I was in a religious bldg bathroom. In it was a sign telling men to beware of verbal and mental abuse. It can be devastating, insidious, unrelenting, undermining, subtle, and passive aggressive. That person has a problem! The kids learn to treat their dad like that too.
Conversely if you handle your issues with your hands, you need to check yourself. Figure out if you learned/inherited it from your own family. Get a new relationship where you listen to each other and make it safe to share feelings.
That’s being a responsible gun owner…..or boyfriend, husband, dad, neighbor, employee, boss, coworker, etc.
People who cannot control their emotions have NO BUSINESS possessing a firearm.
Could someone point out where in the Constitution is says in the United States an adult can lose an inalienable right forever because of a crime?
It’s been widely interpreted that the inalienable right to life can be taken away for a capital crime.
Let’s narrow this, since when and how can you be deprived of your 2A right by a criminal conviction?
Since forever. Prohibitions on the possession of arms by (violent) felons are longstanding and date back to even way before the Founding.
Of course, there were not nearly as much crimes considered actual felonies back in the day. Arson, rape, murder, larceny, that sort of thing. Which usually carried with them the death penalty, so any musings about the convict’s inalienable right to keep and bear arms became somewhat theoretical in nature.
If the government enforced the DV law, 50% of all military and 35% of all law enforcement and 80% of all pro sports people would be out of a job.
If you leave a bruise or anything worse on anybody, and they were not a threat to your safety or the safety of others, I don’t think you should be able to carry in town. But I wouldn’t take away your hunting rights unless you were a repeat offender.
Let the flame wars start in 3, 2, 1,…..
“Everybody lies” Dr. Gregory House If you don’t understand this, you have never been a cop, lawyer or judge.
Now that we have that out of the way; why are we letting Congress and the Supreme Court corrupt the plane meaning of the Constitution and our civil rights? Misdemeanors of no type should deny us of fundamental rights.
The problem with Domestic Abuse Prohibition today isn’t the fact that it is targeting … well domestic abusers but the fact of how broad the whole thing is. Just to point out the language from ATF website what constitutes of domestic violence is:
(2) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
– was 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.
Notice how many people even here on forums that can easily even unknowingly be easily stuck on Lautenberg Prohibition Firearm List? Got in a fight with your wife and kicked a chair punched the wall? “Has as an element” and use of physical force already qualifies one (even if it is not on spouse it still counts).
Not your wife but someone who stayed even overnight at your party for a short while? Roommates count as well and so do one night stands.
Got into yelling matches with your spouse and neighbor called the cops? Just admitting to raising your voice qualifies under threat of using violence (attempt to use violence) and almost all law enforcement agencies these days require Automatic Arrest on Domestic Disturbance calls. 90% of the time men get sent to jail in such situations and on the rare times when women do, it is usually when men had been severely injured to have any evidence.
Also forget about the fact that it is true that for misdemeanors (felonies are automatically prosecuted) under such arrests typically first time Domestic Violence offenders plea and go into Diversion program (or whatever is equivalent. – community service?) Pre trial pleas and diversion automatically disqualify one from serving in military or work in law enforcement. In fact almost all government job positions and public work disqualify a person even with arrest on the record from work.
For the second it is Blanket Law like Sex Offender Registry from dangerous rapists to a guy who merely pissed on a wall while drunk at night. This amounts to lumping of people who never even predispondent to domestic violence to be branded as vicious girlfriend and wife beaters for the rest of their lives, even though the worst thing they did was getting in shouting match with their roommate or brother or uncle etc.
Ultimately the problem is the fact that this prohibition have no effect on domestic violence victim murder rate. It does not discourage Domestic Violence nor possession of firearms by prohibited person. It is merely “Don’t Touch The Gun” words written on a piece of paper.