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View Full Version : Lifetime Gun Ban Actions at Family Christmas Party


anthonyca
12-25-2009, 12:09 PM
Last night (Christmas eve) at a family party an uncomfortable situation unfolded. My aunt early 60's and her daughter mid 30's were heard getting into a heated argument. Well we are mostly Italian, both northern and Sicilian so to the immediate family it was nothing, but two guests were more uncomfortable, one being the fiance of the daughter in the argument.

The argument started with the mom trying to help with the food but the daughter felt that it was her home and her first time putting on the Christmas eve dinner and she wanted to do it her way. Voices were raised and the daughter said "why do you still treat me like I am fourteen"? There was the B word used by the mom and the daughter bumped her as they both went for the table with the food. The bump looked to be accidental and certainly not intended to cause harm.

Now the important part, the mother pushed the daughter. It was not a hard push and of course there was no injury and the daughter didn't even seem to notice. This happened in an attached condo. I kept thinking that some neighbor could call the police. California misdemeanor battery is any unwanted touching.

People v. Rocha, (1971) 3 Cal.3d 893, 900 ("‘It has long been established, both in tort and criminal law, that the least touching' may constitute battery. In other words, force against the person is enough, it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.'")

If the the police were called the mom would be a federal felon subject to 10 years in prison and a $250,000 fine if she ever touched a gun or ammunition. Will this lautenberg ban ever go away? I saw a good friend arrested for touching his ex gf during an argument and he is now banned for life. I was also in the ARMY reserve when this law went into effect and we had to out process a few people.

I saw the US v. Skoien http://sentencing.typepad.com/sentencing_law_and_policy/2009/11/seventh-circuit-gives-a-little-life-to-heller-challenge-to-prohibition-on-.html is a step in the right direction but this has to be one of the most over reaching gun ban laws. Along with 922(g)(8) the protective order gun ban.

SteveH
12-25-2009, 12:27 PM
A fight between a mother and daughter would not meet the elements of CPC 243(e)(1) or CPC 273.5

It would be non-domestic violence simple asault and battery at most. CPC 240& 242.

anthonyca
12-25-2009, 12:48 PM
A fight between a mother and daughter would not meet the elements of CPC 243(e)(1) or CPC 273.5

It would be non-domestic violence simple asault and battery at most. CPC 240& 242.

A fight between a mother and daughter would not meet the elements of CPC 243(e)(1) or CPC 273.5

It would be non-domestic violence simple asault and battery at most. CPC 240& 242.

It doesn't matter what California calls it as long as it meets the Feds definition.
http://www.scotuswiki.com/index.php?title=United_States_v._Hayes

There was even a person on this board who plead to disorderly conduct after his mother in law called the cops. Since disorderly conduct in California COULD involve elements of lautenberg he is now banned for life. This was straight from Chuck Michell.
http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01117.htm
Qualifying Offenses: As enacted the statute defines "misdemeanor crime of domestic violence" (MCDV) as any state or federal misdemeanor 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."

technique
12-25-2009, 4:51 PM
Well, you have larger issues if your family won't stick up for one another.
Neighbors can call the cops all they want...somethings only gonna happen if the daughter verifies the claim of the neighbors.

If its an Italian thing and it was no big deal..."No officer, nothing of that nature happened. Have a safe night!" (close door).

anthonyca
12-25-2009, 6:07 PM
Well, you have larger issues if your family won't stick up for one another.
Neighbors can call the cops all they want...somethings only gonna happen if the daughter verifies the claim of the neighbors.

If its an Italian thing and it was no big deal..."No officer, nothing of that nature happened. Have a safe night!" (close door).

Part of the reason I bring this up os that many people don't understand what battery is and would probably talk to the cops. If LEO came they would
not just leave if the parties involved said they didn't want them there.

MindBuilder
12-26-2009, 2:01 AM
There was even a person on this board who plead to disorderly conduct after his mother in law called the cops. Since disorderly conduct in California COULD involve elements of lautenberg he is now banned for life.
I don't see any of the elements of disorderly conduct (http://codes.lp.findlaw.com/cacode/PEN/3/1/15/2/s647) in California that list the use of force or threatened use of force, so I don't see how it could be a disqualifying offense under Lautenberg. From what I've read of US v Hayes, I don't think Hayes applies to disorderly conduct, at least as disorderly conduct is defined in California. In some states, disorderly conduct may involve physical fighting, but it doesn't seem to in California.

The FBI has a pdf (http://www.fbi.gov/hq/cjisd/nics/mcdvbrochure.pdf) that goes into this. It states:
For example, a state generic assault statute may provide that a person commits an assault either by using physical force against another person or by verbally threatening another person. Assuming the requisite domestic relationship is present, a conviction under the first prong of the statute would satisfy the MCDV[misdemeanor crime of domestic violence] definition, while a conviction under the second prong of the statute would not.

Of course the California DOJ might just declare you prohibited without legal basis, but I would think you could prevail on appeal if you could afford it. If you cant afford a suit and likely never will, then you could file suit without a lawyer. Some individuals have simply scribbled a note on a piece of paper, saying what their legal issue was, and handed it to the judge's clerk. The court held that the judge had to hear the case despite the violation of procedure, because people couldn't be deprived of justice based on their inability to afford a lawyer or figure out court procedure. Though I think you would be much less likely to piss off the judge if you put some time into figuring out how to follow procedure.

You could probably also legally receive gun gifts from your parents or adult children. Failing that, maybe you could move to another state for a while and legally buy guns in private transactions without a background check. But I think you have to officially live in the other state for something like 90 days. I suppose you could then legally bring them into California.

I'm not a lawyer, and I could easily be wrong about all this, and there is a big chance it doesn't apply to your case, so don't take any of this as legal advice.

G-Man WC
12-26-2009, 2:35 AM
Leave the gun, take the cannoli.
;)
-g

anthonyca
12-26-2009, 12:28 PM
Sorry it was pc415 http://law.onecle.com/california/penal/415.html he was charged with.

I brought up US v Hayes because someone mentioned that if it was not charged as domestic violence the federal lautenberg ban would not apply. US v Hayes only disputed wether the state code had to as an element the relationship, SCOTUS ruled that the relationship did not have to be mentioned, it only has to meet the broad federal definition. The constitutionality or the actual physical actions were not argued.

I don't see any of the elements of disorderly conduct (http://codes.lp.findlaw.com/cacode/PEN/3/1/15/2/s647) in California that list the use of force or threatened use of force, so I don't see how it could be a disqualifying offense under Lautenberg. From what I've read of US v Hayes, I don't think Hayes applies to disorderly conduct, at least as disorderly conduct is defined in California. In some states, disorderly conduct may involve physical fighting, but it doesn't seem to in California.

The FBI has a pdf (http://www.fbi.gov/hq/cjisd/nics/mcdvbrochure.pdf) that goes into this. It states:


Of course the California DOJ might just declare you prohibited without legal basis, but I would think you could prevail on appeal if you could afford it. If you cant afford a suit and likely never will, then you could file suit without a lawyer. Some individuals have simply scribbled a note on a piece of paper, saying what their legal issue was, and handed it to the judge's clerk. The court held that the judge had to hear the case despite the violation of procedure, because people couldn't be deprived of justice based on their inability to afford a lawyer or figure out court procedure. Though I think you would be much less likely to piss off the judge if you put some time into figuring out how to follow procedure.

You could probably also legally receive gun gifts from your parents or adult children. Failing that, maybe you could move to another state for a while and legally buy guns in private transactions without a background check. But I think you have to officially live in the other state for something like 90 days. I suppose you could then legally bring them into California.

I'm not a lawyer, and I could easily be wrong about all this, and there is a big chance it doesn't apply to your case, so don't take any of this as legal advice.