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anthonyca
07-26-2009, 2:55 AM
I have done quite a bit of research on this subject and can not get a concise answer on what is "similarly situated" as per the lautenberg amendment. This site lists some case law and it seems that "similarly situated" is not at all clearly defined. http://law.onecle.com/search.html?cx=016782931958625056904%3A9-nyb_jrt5e&cof=FORID%3A11&ie=UTF-8&q=lautenberg+gun+control+act#1400 According to the BATFE brochure "simply stating that the persons are boyfriend/girlfriend does not establish the relationship necessary for the MCDV prohibitor to apply". Page 2 top center paragraph http://www.atf.gov/firearms/domestic/112807mcdv_brochure.pdf If the relationships spelled out in Lautenberg are not met and If boyfriend/girlfriend does not establish the relationship then what exactly does? Dating for a defined time length? If they were in love? If they were just having a casual physical relationship? Every other law I have ever looked up is so detailed it is almost comical and many people make jokes about them. The victim and defendant were not domiciled together and had no shared expenses.This letter is kinda old from 2001 but seems to say that they must be domiciled or have been domiciled in an intimate relationship to be considered similarly situated. http://www.peaceathomeshelter.org/DV/readings/federal/lautenberg.pdf
On edit. This site references the most on what is "similary situated" I could find.http://findarticles.com/p/articles/mi_hb1412/is_3_17/ai_n31163608/pg_39/?tag=content;col1

Cal DOJ does a PFEC, personal firearms eligibility check and is listed as a "point of contact state" and they check federal and state prohibitions. The problem is that the first time he did that check they said he was ineligible to possess or purchase firearms under the federal lautenberg amendment. He called the Cal DOJ requesting clarification and was told that he pleaded to a minor crime involving his "fiance". After he told the women from Cal DOJ he was never engaged she back peddled and told him to call the Federal Nics office. They were no help and he filed online also and never received any response.

After all this he filled out the same PFEC and this time it comes back saying that he is eligible to both possess and purchase firearms. He still has not bought any firearms as he does not want to risk a federal prosecution due to these conflicting results from the people who are supposed to know the law.

Adding to the confusion he was in the Army Reserve and some people were removed from his unit for failing the Lautenberg Amendment checks but he was not. The original charge was California penal code 243(e) battery against a person involved in a dating or engagement relationship but his attorney pleaded him to California penal code 242 which is a non DV battery. That seemed to be somewhat settled until US vs Hayes as the plea was to a non DV charge.

The BATFE says they look at both court and non court documents, IE police reports to determine the relationship. He has never seen the police report and even filed a Public Records Act Request for him to see a redacted copy and was told "in order preserve investigative techniques" ( for a 12 year old misdemeanor case) he would not be allowed to see a copy. How can he know what the police wrote in the report that is potentially blocking his Constitutional rights and could possibly open him to a federal felony?

There were no injuries or striking (according to him and the "victim") in the case so the circuit split on if "violence" is required under lautenberg http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1347226# further complicates his case as in California if someone calls the police in an apparent DV case someone is going to jail and the Prosecutor will file charges even against the will of the "victim". In California mistomeaner assault does not have to even involve any physical contact. In argument the police may have wrote that he touched her but they both say that he did not strike or harm her hence the Battery charge. The victim still tells him years later that she did not call the police and would not cooperate with the DA even after being threatened.(they are no longer together but do not hate each other)

The Lautenberg Amendment has effected so many people and I can not believe that it is still valid. He is in the process of trying to get his plea withdrawn (not likely) due to the evidence he saved of his attorney telling him after the fact how his plea would destroy his military career (He was in the Army Reserve at the time) and effect his employment as he needs to get very detailed background checks for Govt agencies and the 1934 SEC act. He has the docket showing he was never in court and he has the TAHL/plea form that she never signed where it states that she explained the charges and consequences. He still possesses her original signed letters dated after she entered his plea explaining that "it occurred to me that you will banned from possessing a firearm". He was 19 at the time and very naive as she rushed him through the process. He also has a certified copy of the docket showing he was never present in court and she appeared on his behalf.

This guy got screwed really bad on this whole thing. I saw a lot of this as I was in the ARMY Reserve when this crap law was passed and we had to discharge some good soldiers for a fine they paid years before with no time served.

How can he know 100% that he will not be brought into a Federal Grand Jury investigation and charged federally with out it first happening? There is no federal PFEC.

I know there have been very few challenges to this law that have made any headway and never went all the way besides Hayes who was a terrible plaintiff but with the right defendant and the right counsel could this go anywhere?

locosway
07-26-2009, 5:59 AM
I believe he can demand the police report as it's a public record. Investigation techniques are pretty much common knowledge and classes are taught all over the place.

anthonyca
07-26-2009, 11:23 AM
I believe he can demand the police report as it's a public record. Investigation techniques are pretty much common knowledge and classes are taught all over the place.

Yes but he got a letter from the police stating why they do not have to obey the law.

dustoff31
07-26-2009, 11:38 AM
Purely speculation on my part of course, but this tells me that the problem may well be with CaDOJ rather than BATFE. I suggest that CaDOJ screwed up and put a state prohibition on him, and tried to blame the feds. The feds didn't answer him because they don't know what he's talking about.

In any event, this is an excellent example of why CA needs to get out of the NICS business, and let FFLs contact the FBI directly like the majority of the free world. They charge you to perform a service that is otherwise free, and then very often screw it up.

Cal DOJ does a PFEC, personal firearms eligibility check and is listed as a "point of contact state" and they check federal and state prohibitions. The problem is that the first time he did that check they said he was ineligible to possess or purchase firearms under the federal lautenberg amendment. He called the Cal DOJ requesting clarification and was told that he pleaded to a minor crime involving his "fiance". After he told the women from Cal DOJ he was never engaged she back peddled and told him to call the Federal Nics office. They were no help and he filed online also and never received any response.

After all this he filled out the same PFEC and this time it comes back saying that he is eligible to both possess and purchase firearms. He still has not bought any firearms as he does not want to risk a federal prosecution due to these conflicting results from the people who are supposed to know the law.

locosway
07-26-2009, 12:08 PM
Yes but he got a letter from the police stating why they do not have to obey the law.

Sounds like a lawyer could eat that up... :)

anthonyca
07-26-2009, 12:26 PM
Sounds like a lawyer could eat that up... :)

He is working on that but you would be suprized how many lawyers do not want to take this.

anthonyca
07-26-2009, 12:31 PM
Purely speculation on my part of course, but this tells me that the problem may well be with CaDOJ rather than BATFE. I suggest that CaDOJ screwed up and put a state prohibition on him, and tried to blame the feds. The feds didn't answer him because they don't know what he's talking about.

In any event, this is an excellent example of why CA needs to get out of the NICS business, and let FFLs contact the FBI directly like the majority of the free world. They charge you to perform a service that is otherwise free, and then very often screw it up.

I agree. But he is in a precarious situation here. Say that the feds do consider him banned and CAL DOJ clears him. Now he is open to a federal felony with a possible 10 year term and 250g fine.

There needs to be a definite answer from the feds on if he can be charged or not. Too much wishy wash to risk.

The problem is all almost all the case law we found was for hardened criminals and this was a stacker and appealed.

Is there anyway to know BEFORE he is charged? He can not file a 1983 civil rights lawsuit cause they won't formally tell him he is banned but they tell him he should not have guns.:rolleyes:

anthonyca
07-27-2009, 9:07 PM
I found some interesting court instructions regarding 18 usc.

The Second Amendment to the United States Constitution guarantees the fundamental right of individuals to keep and bear arms. That right may only be infringed when the restriction is narrowly tailored to meet a compelling government interest. You are instructed that 18 U.S.C. § 922(g)(9), the crime for which Defendant is charged, is, as a matter of law, a lawful and constitutional restriction of the Second Amendment rights of those who pose a prospective, or future, risk of violence.

If you find that the government has proved beyond a reasonable doubt the elements of the charge against him, as set forth in Jury Instruction Number ____, regarding Count I, you are instructed that Defendant is presumed to pose a prospective risk of violence. However, Defendant is entitled to offer evidence to rebut that presumption and show that he did not pose a prospective risk of violence. It is the burden of the Defendant to prove to you, by a preponderance of the evidence, that he did not pose a prospective risk of violence.

Therefore, if you find that the Defendant did not pose a prospective risk of violence, he may not be deprived of his Second Amendment rights, and you must find him not guilty. However, if you find that the government has proved beyond a reasonable doubt the elements of the charge against him, and that the Defendant has not proved, by a preponderance of the evidence, that he posed no prospective risk of violence, you must find the Defendant guilty.


https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?2008cr0430-37

http://volokh.com/posts/1245366067.shtml

anthonyca
07-30-2009, 8:40 AM
It seems as the only way to have a true answer is to first be charged and then put in prison or appeal and spend a few hundred k.

Thank you for the note.

We have been fighting Lautenberg ever since its inception and passage and will continue to do so.

I am pleased that you agree there is no clear cut definitions about what constitutes a Lautenberg offence pertaining to exactly who is considered to be in a domestic relationship and exactly what constitutes a domestic assault. We have declared this point ad nauseam for many 15 years.


You say your friend has been relieved of his Lautenberg conviction by the state of California. He now needs to contact NICS and ask what he needs to do to clear his NICS record of this conviction.

Another possibility is “run a NICS check on yourself” and if the check comes back showing the California relieved Lautenberg conviction. If it does, then apply to the FBI to correct the record see article below:

Article:

Can I Run a NICS Check on Myself?

by Erich Pratt

Many gun owners have asked if there is a phone number they can call to get a NICS check run on themselves before they try to buy a gun — thus, avoiding the legal ramifications that arise from being denied while standing in a gun store.

Well, you should know that while the FBI frowns strongly upon that, there is a better way. For a mere $18, you may request your own FBI background check and determine if there are any errors in your record that could result in your being denied a firearm.

According to the Code of Federal Regulations (28 CFR 16.32), you may obtain a copy of your “identification record” by writing the agency at: FBI, Criminal Justice Information Services (CJIS) Division, ATTN: SCU, Mod. D-2, 1000 Custer Hollow Road, Clarksburg, WV 26306.

According to the regs, such request must be “accompanied by satisfactory proof of identity, which shall consist of name, date and place of birth and a set [of] rolled-inked fingerprint impressions placed upon fingerprint cards or forms commonly utilized for applicant or law enforcement purposes by law enforcement agencies.”

One can usually go to his local sheriff to get a set of fingerprints taken. For example, GOA Life Member and firearms instructor Alecs Dean has had about 130 fingerprint checks performed on himself over the past five years. He notes that, in his experience, no sheriff has ever kept his fingerprint card as a
result of his requesting an FBI “identification record.”

Moreover, Dean says, the FBI always returns his fingerprint cards with the requested information. But he’s quick to add that “one can’t be absolutely sure” the FBI is not scanning and keeping the fingerprints.

Even then, Dean notes, “What would they put these fingerprints under? Criminals have their fingerprints recorded in a criminal file. But when you get an identification record check from the FBI, you’re just requesting the
check as an average citizen, not a gun owner.”

Dean agrees that the instant background check for gun owners is far more dangerous than the process involved in getting an identification record check on oneself. The former creates the potential to register gun buyers as a specific class of targeted people, while the latter simply identifies people as being nothing more than U.S. citizens.

Finally, if (after getting the results of your FBI background check) you determine there are errors in your record, you can petition the FBI to make corrections by writing them at the same address. (See 28 CFR 6.34.)

Is this a panacea? Does this process guarantee that you will never be denied a gun when you’re standing at the gun dealer’s counter? Ultimately, no it doesn’t. Hey, you are dealing with government bureaucrats, after all!

But Dean has found that when he was illegitimately denied the right to buy a gun, having a previous copy of
the FBI self-check “greased the skids” and sped up the process for getting the denial overturned.

GOA Life Member Alecs Dean contributed
to this story. For more information,
see www.internationalfirearmsafety.com.
__________________________________________________ _____

I hope this helps your friend


Robert Duggar
Gun Owners Of America
8001 Forbes Place, Suite 102
Springfield, VA 22151

Sign up for Free Email Alerts from Gun Owners of America at:
www.gunowners.org/ean.htm

KylaGWolf
07-30-2009, 9:18 AM
Here is the thing if they lived together as a couple it could still be construed as DV. And yes he does have the right to the police report. He should have been given a copy when he went to court on the charges. He might even be able to just get a copy of the court proceedings since they should also have a copy of the police report. His lawyer from that case should also have a copy of said report.

If he has something from the state showing that he is indeed clear of those prohibitions it should not be an issue. Then again we are talking our state government which tends to mess things up royally.

anthonyca
07-30-2009, 12:17 PM
Here is the thing if they lived together as a couple it could still be construed as DV. And yes he does have the right to the police report. He should have been given a copy when he went to court on the charges. He might even be able to just get a copy of the court proceedings since they should also have a copy of the police report. His lawyer from that case should also have a copy of said report.

If he has something from the state showing that he is indeed clear of those prohibitions it should not be an issue. Then again we are talking our state government which tends to mess things up royally.

Thanks for your reply. They were not living together and shared no bills or children. That is fact. He does not know what the police report says about the relationship. The only page the police department would release states that he was her boyfriend. That should not meet "sililarly situated" but he needs a definite answer. Per BATFE that does not meet the relationship requirement of "similarly situated" according to their 2003 DV broshure but if they embellished and wrote that they were engaged or living together which was not true he could fall into that category. The court states the file was discarded except for the docket and plea form that his lawyer never signed.

His original law firm says they discarded the file also and his lawyer no longer works there and left on bad terms and she was not much help even when this was happening.

I was on sceene when the incident took place as well as many other people. There were many female sceene lining up to give statements when the police arrived I was told. I can tell you there does not have to be any violence to be arrested for DV. mist assault in california does not even require physical contact but this was charged as battery.

I also saw him arrested and one of the cops was very apologetic and told him that there is nothing they could even if the "victim" did say nothing happened they have to arrest him. The other cop was the opposite but this is just me venting. He is willing to pay a lawyer but some of the best firearms rights lawyers told him there is no real way to know with out being charged and they do not want the case as it would cost 10s of thousands and probably not get anywhere.

The fact that the Cal DOJ, laymen and many lawyers can not give the same answer shows the peril one could be put in here. Two calls to the same line yeilded two different answers. BATFE and NICS could not even answer. There needs to be clear guidelines as in the other laws.

Look at how far US v Hayesn (bad plaintiff) got due to a curcuit split and that was much more striaght forward and much more case law IMHO.