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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #201  
Old 07-08-2011, 6:22 PM
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Survival and liberty are powerful incentives...
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  #202  
Old 07-08-2011, 6:40 PM
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Quote:
Originally Posted by Lex Arma View Post
RKBA is grassroots because it has to be to survive. The political elites in both parties (mostly) are frightened by the philosophic implications of the Second Amendment.

On the Enos case, the more I reread it, the better I like our chances. This was a good day.
One of those people just responded.

Great work. Will there be oral arguments we can watch? I wasn't able to make any nordyke hearings in person but I enjoyed watching them on my computer.
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  #203  
Old 07-08-2011, 10:01 PM
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Quote:
Originally Posted by anthonyca View Post
Is anyone else suprized that they spend much of their limited free time reading legal documents and court rulings?

What's even more amusing is when one of the people I look up to, and who is a leader in our RKBA fight, answers me on this forum.

This RKBA thing has to be the most grassroots movement around.
I've learned more about the law, law enforcement, and legal procedures in the last year two years than the other 20 put together.

My friends, family, and coworkers now come to me when they have casual legal questions or need to know something about the law. If I don't know I look it up for them. haha.

It is pretty sad actually.

Last edited by Anchors; 07-09-2011 at 12:04 AM..
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  #204  
Old 07-08-2011, 10:09 PM
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Quote:
The "crime" is any touching, no matter how slight,wether it was or was not intended to cause pain or gain an advantage. You lightly toss the remote at your spouse who was complaining about you watching the game, bam your gun life is over. You want to get out of an argument so you ever so slightly move your spouses arm away from the door knob, by legal and jury instruction that is DV.

Most people get into trouble by telling the cops that they moved their spouse's hand to avoid a more heated argument. Now the cops have to arrest and the DA will prosecute even when the spouse doesn't want to press charges. It's an open and shut case and you CAN NOT win unless the jury disobeys the jury instructions and ignores the law.
Quote:
Originally Posted by J.D.Allen View Post
I've seen it more times than I care to mention. And it's fracking amazing how the presumption of innocence goes right out the window in DV cases.
My brother is a police Lt and confirms this. He has seem more incidents just like this than he can remember. His hands are tied too.
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  #205  
Old 07-09-2011, 10:13 AM
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Originally Posted by Maestro Pistolero View Post
My brother is a police Lt and confirms this. He has seem more incidents just like this than he can remember. His hands are tied too.
I really wanted to be a police officer when I was younger. When I was in the Army reserve,(mid 90s to early 2000s) the lautenberg amendment got some people discharged from the Army. We had some LEOs in the unit and I had some as family and friends. After some of the horror stories I heard about them having to arrest people for such minor things we have all done, there is no way I could do that to someone. I couldn't ruin someone's life and career for what they showed me was a mandatory charge. Many of the cops I talked to hated that they had no input.

Last edited by anthonyca; 07-09-2011 at 10:16 AM..
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  #206  
Old 07-10-2011, 2:51 PM
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Default Questions about 1st Amendment Dismissal

I have some questions on the dismissal of the 1st, 5th, and 10th amendment claims. My questions and concerns are in this font.

1st amendment dismissal.

The court wrote:

"2. First Amendment
The FAC alleges that 18 U.S.C. § 922(g)(9), 18 U.S.C.
§ 922(d)(9) and 18 U.S.C. § 921 (a)(33) violate Enos‟ First
Amendment rights, because they impose a lifetime ban on the
exercise of a fundamental constitutional right for a minor crime
without providing a statutory remedy to petition the government for
restoration of that right. However, as Defendants argue, these
allegations fail to state a claim. Defendants contend that the
First Amendment claim is devoid of merit, because it contains no
Case 2:10-cv-02911-JAM -EFB Document 24 Filed 07/08/11 Page 11 of 14
allegations that the government has restricted Plaintiffs right to
speech and to petition the government for redress. Furthermore, gun
possession is not speech
. See Nordyke v. King 319 F.3d 1185, 1190
(9th Cir. 2003). Plaintiffs conceded the weakness of this claim in
the briefs and at oral argument, by admitting that they advanced
the claim only in hopes of making new law. However, Enos has
failed to state a claim for violation of the First Amendment, and
his First Amendment claim is DISMISSED, WITH PREJUDICE."

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.


Isn't the 1st amendment claim in Enos about there being to way to petition the Government for a redress of grievances? Can there only be a redress for grievances regarding religion,speech, press or to assemble? I thought the whole point of the first amendment is to allow the people to speak freely about grievances, what ever they are, and to have an avenue for redress?

Last edited by anthonyca; 07-10-2011 at 10:12 PM..
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  #207  
Old 07-10-2011, 2:53 PM
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Default Questions About 5th Amendment Dismissal

5th amendment dismissal:

From Enos"4. Fifth Amendment
The FAC alleges that 18 U.S.C. § 922(g)(9), 18 U.S.C.
§ 922(d)(9) and 18 U.S.C. § 921 (a)(33) violate the Fifth Amendment
by imposing a lifetime ban on the right to own a gun without
providing a statutory remedy for restoration of that right.
Defendants‟ oppose this claim, arguing that 18 U.S.C. § 925(c)
allows any person to apply for relief from the Attorney General.
See Palma v. United States, 228 F.3d 323, 327-28 (3d Cir. 2000)
(stating that persons convicted of a misdemeanor crime of domestic
violence may apply for relief under 18 U.S.C. § 925(c)). Enos‟
opposition brief states that he is asserting an equal protection
argument, but does not set forth allegations or argument in support
of this claim or in opposition to Defendants‟ arguments.
Accordingly, the Fifth Amendment claim is DISMISSED, WITH
PREJUDICE."

Here is Palma vs US.http://law.justia.com/cases/federal/...28/323/478745/

"If so, it should then permit Rice to submit additional evidence of his fitness to have his firearms privileges restored and, thereafter, decide whether Rice's application satisfies section 925(c)'s standards for restoration of a convict's firearms privileges.68 F.3d at 710 (emphasis added). We also explicitly noted that a convicted felon seeking relief under S 925(c) "bears a heavy burden" because "possession of a firearm after a disabling conviction is a privilege, not a right." Id. (citing Lewis v. United States, 445 U.S. 55 (1980))."


In Palma, the court refires to firearms rights as "privileges" multiple times. Is the only because Palma had pleaded to the felony tax charge, or were all firearms rights considered "privileges" due to this being before Heller and McDonald?

From Palma,
"Some time after his conviction, Palma applied to the ATF for relief from his firearms disability under S 925(c). The ATF informed him that it could not act on his request because Congress' prohibition of the use of appropriated funds made the necessary background check and investigation impossible. Palma then filed a petition for relief from the firearms disability in the district court. In that petition, he conceded that Congress has prohibited the ATF from acting on petitions for relief. Petition for Relief at P 12. Nonetheless, he asked the district court to conduct its own inquiry into his fitness to own a firearm and to issue an order restoring his firearms privileges. Id. at PP 22-26."
"The government responded to Palma's petition by filing a motion to dismiss in which it asserted that the district court has "no authority to consider in the first instance the merits of a convicted felon's application for relief from his federal firearms disabilities." Government's Br. at 7.
11 The district court denied the government's motion to dismiss. The court issued an order setting a hearing on Palma's motion, and directing parties to submit proposed findings of fact and conclusions of law. The court also ordered that those proposals "should address the issue, assuming arguendo plaintiff meets his `heavy burden' on the merits, [of whether] the denial of appropriated funds to administer the law is a miscarriage of justice." App. at 31. Thereafter, pursuant to our decision in Rice v. United States, the district court asserted jurisdiction over Palma's petition and held an evidentiary hearing at which Palma and a number of character witnesses testified. At the conclusion of that hearing, the district court entered an order restoring Palma's firearms privileges. Palma v. United States, 48 F. Supp.2d 481 (E. D. Pa. 1999). This appeal followed."

"In Rice v. United States, 68 F.3d 702 (3d Cir. 1995), we held that, despite the congressional prohibition against spending government funds to process S 925(c) applications for relief, a district court retains subject matter jurisdiction to consider a convicted felon's petition for relief from the federal firearms disability in the first instance. We concluded that the annual congressional bans on the expenditure of funds to process S 925(c) applications "do not evidence an intent to repeal or limit the district court's jurisdiction to review BATF's . . . inaction on [a convicted felon's] section 925(c) application. . . ." Id. at 710. We also concluded that the "[]ATF 's continuing inability to process [a convicted felon's] section 925(c) application constitutes an undue delay excusing [the convicted felon] from exhausting his administrative remedies that allows him to seek judicial review." Id.
18 As a consequence of our decision in Rice, a district court entertaining a S 925(c) application for relief must "determine in the exercise of its sound discretion whether the facts [the convicted felon] alleges indicate a potential for a miscarriage of justice." Id. If so, a district court may permit the petitioner to "submit additional evidence of his fitness to have his firearms privileges restored, and, thereafter, [the court will] decide whether [the]. . . application satisfies section 925(c)'s standards for restoration of a convict's firearms privileges." Id., In Rice, we remanded with instructions to permit testimony only if the facts alleged by the petitioner indicated that a potential for a miscarriage of justice would otherwise result. We stated:
19 we will remand this case to the district court to determine in the exercise of its sound discretion whether the facts Rice alleges indicate a potential for a miscarriage of justice. If so, it should then permit Rice to submit additional evidence of his fitness to have his firearms privileges restored and, thereafter, decide whether Rice's application satisfies section 925(c)'s standards for restoration of a convict's firearms privileges.68 F.3d at 710 (emphasis added). We also explicitly noted that a convicted felon seeking relief under S 925(c) "bears a heavy burden" because "possession of a firearm after a disabling conviction is a privilege, not a right." Id. (citing Lewis v. United States, 445 U.S. 55 (1980)).
20 The government contends that Rice's holding that district courts have subject matter jurisdiction over applications for relief from firearms disabilities despite Congress' ban on appropriations for S 925(c) investigations is "fundamentally flawed." Government's Br. at 18. As the government is quick to point out, Rice has been rejected by four other Courts of Appeals that have considered the issue. See McHugh v. Rubin, 220 F.3d 53, (2d Cir. July 11, 2000); Owen v. Magaw, 122 F.3d 1350 (10th Cir. 1997); Burtch v. Department of the Treasury, 120 F.3d 1087 (9th Cir. 1997); United States v. McGill, 74 F.3d 64 (5th Cir. 1996). Cf. Saccacio v. Bureau of Alcohol, Tobacco & Firearms, 211 F.3d 102 (4th Cir. 2000)(Not taking direct issue with our analysis in Rice because of its holding that the Secretary's denial of an application for relief is a jurisdictional requirement that is not satisfied simply because of the agency's failure to process the application). However, despite its disagreement with Rice, the government realizes that Rice is binding on us1 and that the district court was bound by that decision. Therefore, as the government also concedes, the district court did not err under Rice in exercising jurisdiction over Palma's S 925 (c) application. Nonetheless, the government judiciously submits that "en banc reconsideration of Rice may be warranted at a suitable juncture, in this Court's discretion." Government's Br. at 18.
21 However, we need not now respond to the government's concerns about our analysis in Rice because, inasmuch as we conclude that Palma failed to establish the requisite "miscarriage of justice," he is not entitled to have the firearms disability removed in any event.
22 The district court held that "the government's failure to provide funds to investigate and process applications for relief as provided in the statute constitutes a miscarriage of justice, where, . . . [Palma] meets the statutory requirements for such relief and there is no way for him to obtain the relief authorized by the statute." 48 F. Supp.2d at 486. In so holding, the district court misapplied S 925(c), and misinterpreted our holding in Rice. Clearly, under the unambiguous language of the statute, it is not the absence of administrative relief that constitutes a "miscarriage of justice." Rather, the convicted felon must allege facts in his or her application for relief which "indicate a potential for a miscarriage of justice," if the petition is denied. Therefore, a showing of a "potential for a miscarriage of justice" is the threshold showing which a convicted felon must make under Rice in order for the district court to permit the applicant to submit evidence of his or her fitness to have firearms privileges restored.2 Then, and only then, can the district court receive such evidence and consider it in determining whether the applicant satisfies the other requirements of S 925(c) -- i.e., whether the applicant will not be likely to act in a manner dangerous to public safety and that the granting of relief would not be contrary to the public interest.
23 A contrary reading of S 925(c) yields absurd results. It would sanction removal of the disability based upon something tantamount to an ex parte proceeding that is controlled by the convicted felon because the district court would have to receive whatever admissible evidence the petitioner offered and render a decision based solely upon that one-sided record whenever a petition for relief is filed. For example, one who seeks to obtain assault weapons in order to launch an attack upon members of a religious or ethnic minority group or a bothersome neighbor could always establish a "miscarriage of justice" based upon the prohibition of using appropriations to investigate his/her fitness to own or possess firearms. Such a petition would thereby open the courthouse door for a hearing, in which the judge would hear positive things the petitioner chose. Accordingly, the judge may never learn the kind of information that an investigation could ferret out (i.e., the "bothersome" neighbor who may have a justifiable concern over lifting the petitioner's disability).3"


Is the court stating that there IS a statutory remedy, because the court will evaluate Enos if the ATF can not, due congress not allowing them to spend money on this?If the answer to the above question is yes, how does this from Palma come into play?

"Thus, the foundation for his attempt to gain relief from the firearms disability rests upon little more than the fact that he would feel safer, and be more comfortable in Philadelphia and the surrounding counties, if he carried a gun during his appraisals. This hardly satisfies the burden he must meet before the district court can receive evidence in support of his petition."

Does it matter why he wants the right? It's a fundamental right.

Last edited by anthonyca; 07-10-2011 at 10:17 PM..
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  #208  
Old 07-10-2011, 2:53 PM
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Default Questions About 10th Amendment Dismissal

10th Amendment Dismissal:
From Enos

"3. Tenth Amendment
The FAC alleges that 18 U.S.C. § 922(g)(9) 18 U.S.C.
§ 922(d)(9) and 18 U.S.C. § 921 (a)(33) violate the Tenth
Amendment, by usurping the States‟ powers to define and provide for
the rehabilitation of minor public offenses. 1 Defendants move to
dismiss the Tenth Amendment claim, arguing that the Ninth Circuit
in United States v. Andaverde, 64 F.3d 1305 (9th Cir. 1995) held
that Congress may regulate possession of firearms without violating
the Tenth Amendment. Though Andaverde discussed 18 U.S.C.
§ 922(g)(1) (regulating the possession of firearms by felons),
courts addressing 18 U.S.C. § 922(g)(9) have likewise found the
statute to be constitutional under the Tenth Amendment. See, e.g.,
Fraternal Order of Police v. United States, 173 F. 3d 898 (D.C.
Cir. 1999); Hiley v. Barret, 155 F.3d 1276 (11th Cir. 1998).
Accordingly, Enos‟ claim for violation of the Tenth Amendment is
1 The Court has considered Bond v. United States, 2011 WL 2369334
(2011), the supplemental authority recently submitted by counsel
for Plaintiffs (Doc. #23), and finds it unpersuasive. Bond is
unrelated to the issue of firearms regulation under the Tenth
Amendment, and to the extent that Plaintiffs‟ cite it in support of
their argument for standing, it is entirely distinguishable from
the case at hand, because the plaintiff in Bond was convicted and
incarcerated under the law she challenged on Tenth Amendment
grounds.
Case 2:10-cv-02911-JAM -EFB Document 24 Filed 07/08/11 Page 12 of 14
DISMISSED, WITH PREJUDICE."


I do not fully understand the Bond reference by the court with regard to Bond incarcerated. Is that a Habeas corpus reference?

http://caselaw.findlaw.com/us-9th-circuit/1305091.html
United States v. Andaverde
"On January 31, 1991, Andaverde was convicted in state court of first degree burglary and was subsequently imprisoned.   At the time of the events at issue here, he had been released and was on probation."
"Andaverde is incorrect.   In determining whether a felon continues to suffer a civil rights disability, the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office.  United States v. Meeks, 987 F.2d 575, 578 (9th Cir.), cert. denied, 510 U.S. 919, 114 S.Ct. 314, 126 L.Ed.2d 261 (1993);  United States v. Dahms, 938 F.2d 131, 133 (9th Cir.1991).   Andaverde contends that this restoration analysis should turn on whether state law restores the right to bear arms.   Even if, in determining whether a felon's civil rights have been restored, the court should look to state law giving felons the right to bear arms, the restoration of this single right does not prevent prosecution under § 922(g)(1).   A restoration of rights must be “substantial,” not merely de minimis.  Meeks, 987 F.2d at 578;  Dahms, 938 F.2d at 133.   We held in Meeks that, under Missouri law which allowed convicted felons to vote and hold office, but which did not restore the right to serve on a jury, to hold office as a sheriff, or to be a highway patrol officer, the defendant had not had his civil rights “substantially restored” and thus could be prosecuted under § 922(g)(1).  Meeks, 987 F.2d at 578.   In contrast, the Dahms court ruled that a defendant who had been restored the right to vote, hold public office, and serve on a jury had had his rights substantially restored within the meaning of § 921(a)(20).  Dahms, 938 F.2d at 134."


Is being able to be a highway patrol officer a fundamental civil right? Do Heller and McDonald make a difference here?


"Under Washington state law, a felon's civil rights are restored in full when he completes the requirements of his sentence and is thereby discharged.   Wash.Rev.Code § 9.94A.220.   However, until a felon is discharged, state law prevents him from serving on a jury, holding public office, and voting.   Wash.Rev.Code §§ 2.36.070(5) (Supp.1995), 29.65.010(3);  Wash. Const. Art. 6, § 3.   There is no evidence in the record that Andaverde has been discharged.   Andaverde thus substantially lacked civil rights when he was prosecuted under § 922(g)(1).   Cf. Dahms, 938 F.2d at 134.   Therefore, the district court did not err in ruling that he could be prosecuted under that statute.
A.
 Andaverde further contends that his conviction under § 922(g)(1) violates the equal protection assurances contained in the Due Process Clause of the Fifth Amendment because § 922(g)(1) differentiates between convicted felons who are on probation and those who are not.
This argument is unpersuasive.   Congress could rationally conclude that convicted felons who have successfully completed their probation, and, presumptively, have been reintegrated into society may better be trusted with the right to possess firearms than convicted felons who have yet to prove themselves rehabilitated.   Andaverde's equal protection claim must fail."


Does this change after Heller and McDonald? What about Enos having been "discharged"?


The court referenced Fraternal Order of Police v. United States,http://caselaw.findlaw.com/us-dc-circuit/1115866.html
From FOP v US
"We note, finally, that the treatment of domestic violence misdemeanants intersects with certain anomalies in Congress's provision for deferring to state law on restoration of civil rights.   For the purposes of the firearm disability generally, 18 U.S.C. § 921(a)(20) provides that convictions for which civil rights have been restored do not trigger the disability.   See United States v. Bost, 87 F.3d 1333, 1335 (D.C.Cir.1996) (discussing state restoration of rights).   An equivalent provision, § 921(a)(33)(B)(ii), allows state restoration of civil rights to lift the federal disability from domestic violence misdemeanants.   But few states (if any) deprive such misdemeanants of civil rights.   With no deprivation, there can be no “restoration” in the ordinary sense of the term.   See McGrath, 60 F.3d at 1007-10 (holding that felon whose civil rights were not revoked could not argue that they had been restored).   Thus the plain text of the statute seems to put misdemeanants who have never lost their rights in a worse situation than felons whose rights are restored, often by automatic operation of state law.   See, e.g., United States v. Caron, 77 F.3d 1, 2-4 (1st Cir.1996) (holding that individualized restoration of civil rights is not required to lift firearm disability)."


All of this was before the 2nd was ruled by SCOTUS as a right. Isn't revocation of the second now a loss of rights?


"From the same case Because we find §§ 922(g)(9) and (d)(9) in violation of equal protection requirements independently, we need not address the interpretive and other issues posed by the “restoration” provisions.
*   *   *
 This brings us to the question of remedy.   The Order makes various alternative requests, one of which is that we hold § 925 inoperative.   Section 928 of the Gun Control Act explicitly provides that the invalidation of one provision shall not affect the remainder of the Act.   We think the most appropriate remedy is consequently to hold that § 925 is unconstitutional insofar as it purports to withhold the public interest exception from those convicted of domestic violence misdemeanors.   The government may not bar such people from possessing firearms in the public interest while it imposes a lesser restriction on those convicted of crimes that differ only in being more serious.   Of course we do not decide whether a broader revocation of the public interest exception-for example, from all those convicted of any crime of domestic violence-would be constitutional.
So ordered."


I am lost here, can someone explain this?

I can't seem to find Hiley v. Barret, 155 F.3d 1276 (11th Cir. 1998)
Searches led me to this.http://www.justice.gov/osg/briefs/19...-0106.resp.pdf
The court of appeals rejected petitioner’s Tenth
Amendment claim. Pet. App. 15-17. The court explained
that “[petitioner’s] Tenth Amendment challenge
fails because § 922(g)(9) does not force state
officials to do anything affirmative to implement its bar
on domestic violence misdemeanants’ possession of
firearms.” Id. at 15. The court also observed:"

Is this all that is required for a dismissal of a 10th amendment claim?

The 10th amendment.
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Under the 10th amendment the federal government can not force a state to make or enforce a law, but they can just make a federal law that a state does not want?

Last edited by anthonyca; 07-15-2011 at 8:28 PM..
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  #209  
Old 07-15-2011, 6:35 PM
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Does anyone have any input on my 3 posts above?
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  #210  
Old 07-15-2011, 8:10 PM
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The judge is wrong on the 10th amendment dismissal but it's not worth fighting about that here. On appeal (should that be necessary) then the error of his reading of SCOTUS precedent would be pointed out.

-Gene
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  #211  
Old 07-15-2011, 9:55 PM
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Originally Posted by hoffmang View Post
The judge is wrong on the 10th amendment dismissal but it's not worth fighting about that here. On appeal (should that be necessary) then the error of his reading of SCOTUS precedent would be pointed out.

-Gene
Thanks Gene.

Is there a way to have one plaintiff break off and appeal the 10th amendment claim? It just seems with the changes in attitudes about the 10th amendment, many groups and individuals would support that financially.

This case has generated a lot of interest so far and that is good to see.

You can probably guess my next question. Do we have to wait two weeks?
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Old 07-15-2011, 10:48 PM
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Quote:
Originally Posted by anthonyca View Post
Is there a way to have one plaintiff break off and appeal the 10th amendment claim?
No.

Should the plaintiffs prevail, the 10A claim is likely to never resurface in this case as courts don't go beyond a minimum necessary to end a dispute.

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  #213  
Old 07-16-2011, 6:30 AM
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Quote:
Originally Posted by hoffmang View Post
No.

Should the plaintiffs prevail, the 10A claim is likely to never resurface in this case as courts don't go beyond a minimum necessary to end a dispute.

-Gene
Gene is correct about the plaintiffs that will stay in the suit, but remember the judge dismissed one plaintiff the day of the hearing. He was the guy convicted of a 415 (disturbing the peace). He actually has the best 10th Amendment claim. 415 is not even a DQ misdemeanor under CA law. So this guy really is in the Alice-Wonder-Land situation of no rights lost, so none to restore. And having not been convicted of a felony, he has NO remedy for ever restoring his 2A rights. CA offers no remedy. Feds say look to state remedy for misdemeanors and federal remedies for felonies as part of a program that Congress refuses to fund. Would you like your Kafka with cream, sugar or LSD?

The judge did not dismiss on 10th Amendment grounds, he did so on venue and because the case was too dissimilar. So I can't appeal the 10th Amendment ruling for this client. I think the judge wrong on the venue ruling, but I don't want to waste time on that issue.

Looking at new options for this client. Anybody got any ideas?
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Old 07-16-2011, 6:48 AM
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Gene is correct about the plaintiffs that will stay in the suit, but remember the judge dismissed one plaintiff the day of the hearing. He was the guy convicted of a 415 (disturbing the peace). He actually has the best 10th Amendment claim. 415 is not even a DQ misdemeanor under CA law. So this guy really is in the Alice-Wonder-Land situation of no rights lost, so none to restore. And having not been convicted of a felony, he has NO remedy for ever restoring his 2A rights. CA offers no remedy. Feds say look to state remedy for misdemeanors and federal remedies for felonies as part of a program that Congress refuses to fund. Would you like your Kafka with cream, sugar or LSD?

The judge did not dismiss on 10th Amendment grounds, he did so on venue and because the case was too dissimilar. So I can't appeal the 10th Amendment ruling for this client. I think the judge wrong on the venue ruling, but I don't want to waste time on that issue.

Looking at new options for this client. Anybody got any ideas?
I started this thread for a few reasons. Two reasons are many people feel the DV laws are wrong and loosing a fundamental right for such a minor crime is appalling.

This thread received over 13,000 views before it even got to the MTD. The interest level is high and people are interested, on both sides. Some of the feedback from people pretty prominent in the RKBA community thanking me for publicizing this case has been suprizing, and this case is still so new.

I firmly believe if that 415 dismissal is properly "marketed" there will be a large amount of donations nation wide for the fight. I know this is not cheap and you spend many long hours on these cases. I have heard that you spent much of your own time on nordyke. I am not sure if that is true, but I'm just here to let you know that people will donate to this cause if they know about it.
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Old 07-16-2011, 9:32 AM
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You get that check Lex! I will email you monday on the 415 guy. I have ideas!
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Old 07-16-2011, 9:52 AM
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You get that check Lex! I will email you monday on the 415 guy. I have ideas!
Everyone knows someone who has had a DV or restraining order, even if they never told you. I have a job with VERY strict security clearance and credit checks. Some accounts make us list all bills and income. People would be shocked to know how many people have these problems.
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Old 07-16-2011, 2:36 PM
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I was convicted 15 years ago when my ex-wife at the time, came over to re assure herself that she was going to retain custody of our 2 children. She started a arguement where neighbors could here, picked up the phone in front of me, called 911 and told them that I pushed her. I felt hurt and got in my car to leave my own home and was stopped and arrested by police. She claimed that I pushed her and I went to jail...period! This is the punishment I get for loving and wanting my children in my life. Kids are grown now and on their own now, been remarried for 14 years without any more run ins with the law, but makes no difference,still banned for life. I was robbed at gun point 4 months ago and was almost killed, unable to defend myself... Thank god I didn't have any loved ones with me!!
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Old 07-16-2011, 2:50 PM
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I guess we're supossed to go along with fed's law interpetation, where only the cops and robbers have guns...pretty pathetic!!
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Old 07-16-2011, 3:04 PM
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Also... I want to thank everyone that's involved in and around this lawsuit! Thank you very much!! I've been struggling with this lifetime prohibition for years... I'm a avid hunter and shooter and this is the way of life I enjoy so much. At least I know there is few (probably millions) in the same boat and know there may finally be a remedy to this situation. Thanks to all involved!
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  #220  
Old 07-16-2011, 3:06 PM
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Originally Posted by Lex Arma View Post
Gene is correct about the plaintiffs that will stay in the suit, but remember the judge dismissed one plaintiff the day of the hearing. He was the guy convicted of a 415 (disturbing the peace). He actually has the best 10th Amendment claim. 415 is not even a DQ misdemeanor under CA law. So this guy really is in the Alice-Wonder-Land situation of no rights lost, so none to restore. And having not been convicted of a felony, he has NO remedy for ever restoring his 2A rights. CA offers no remedy. Feds say look to state remedy for misdemeanors and federal remedies for felonies as part of a program that Congress refuses to fund. Would you like your Kafka with cream, sugar or LSD?

The judge did not dismiss on 10th Amendment grounds, he did so on venue and because the case was too dissimilar. So I can't appeal the 10th Amendment ruling for this client. I think the judge wrong on the venue ruling, but I don't want to waste time on that issue.

Looking at new options for this client. Anybody got any ideas?
Is he allowed to refile a separate case apart from the main case since he was only dismissed on venue and there was no judgement made in regard to his claim?

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Originally Posted by hoghunter7mm View Post
I was convicted 15 years ago when my ex-wife at the time, came over to re assure herself that she was going to retain custody of our 2 children. She started a arguement where neighbors could here, picked up the phone in front of me, called 911 and told them that I pushed her. I felt hurt and got in my car to leave my own home and was stopped and arrested by police. She claimed that I pushed her and I went to jail...period! This is the punishment I get for loving and wanting my children in my life. Kids are grown now and on their own now, been remarried for 14 years without any more run ins with the law, but makes no difference,still banned for life. I was robbed at gun point 4 months ago and was almost killed, unable to defend myself... Thank god I didn't have any loved ones with me!!
That is so terrible man.
I really hope these things will change.
Some of the other prohibited categories are going to be harder to attack, but I seriously think any reasonable person can see that lifetime ban for a misdemeanor DV is just wrong (especially with how easy it is to get a DV these days. I know why it is like that, because people in abusive relationships won't tell on their spouses a lot of the time, but still. We can't sacrifice everyone's rights. I bet like 15% of the guys with DV convictions were actually beating their wives.)
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  #221  
Old 07-16-2011, 3:27 PM
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Alot of women use it as a weapon these days to get back at their partners for one reason or another. I personally know of two women that hitted themseves in order to get back at their boyfriends. When they talk about it, they just laugh and brag about it. This goes on alot, i'm sure. They are'nt always innocent and frail, like the fed's act like they are so they can take a backdoor step to disarming America. Now womeb are getting arrested for it as well... Our government really cares about the poor,little 'ol women that they take them to jail also? I think they care more about disarming us than protecting us.
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  #222  
Old 07-16-2011, 3:52 PM
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I'm sure there has been federal officials and Batfe officers that have also been disarmed.. The same people taking the general to jail for mcdv are also going to jail themselves. There was 2 leos and a juvenile probation officer in class with me, how absurd! I guess the fed's and cops will keep arresting until there is no one left to take us too jail. I called Nics one time, to discuss a dros denial that I recieved and talked with a batfe agent and what I took from the conversation was that the agents dont like this law either and they still fight the lawsuits and come up with their own interpertation of the law...what a joke!
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  #223  
Old 07-16-2011, 9:16 PM
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Originally Posted by hoghunter7mm View Post
I'm sure there has been federal officials and Batfe officers that have also been disarmed.. The same people taking the general to jail for mcdv are also going to jail themselves. There was 2 leos and a juvenile probation officer in class with me, how absurd! I guess the fed's and cops will keep arresting until there is no one left to take us too jail. I called Nics one time, to discuss a dros denial that I recieved and talked with a batfe agent and what I took from the conversation was that the agents dont like this law either and they still fight the lawsuits and come up with their own interpertation of the law...what a joke!
Many of the early challenges to this law were in fact brought by officers and their unions.

This needs to be fixed.
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  #224  
Old 07-16-2011, 9:21 PM
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There were recent senate hearing about the false accusations in these DV cases.

http://www.fathersandfamilies.org/?cat=11

http://www.washingtontimes.com/news/...ic-violence-l/
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  #225  
Old 07-16-2011, 9:35 PM
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Donating money here http://madison-society.org/donation.html would really help this case and a possible future case for the plaintif who was dismissed by the judge. According to Donald Kilmer, that plaintiff had the best 10th amendment claim.

The 10th amendment claim will get more people interested than just gun people
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  #226  
Old 07-16-2011, 10:19 PM
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Default Law Enforcement Unions.

Many police officers get divorces and the Lautenberg bill puts them at a significant disadvantage in "divorce proceedings".

This is a very sore point with Law Enforcement Officers because many have gotten "screwed" in divorce proceedings because their soon to be ex spouses threaten the DV card.

Just curious, what is the source of jurisdiction for the Federal Law. I don't see how a "domestic violence" charge relates to interstate commerce.

Nicki
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  #227  
Old 07-16-2011, 10:40 PM
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All I see is abunch of scared judges too scared to prove Congress wrong. The law violates so many rights...it's pretty scary that were not as free and guaranteed rights as once believed! What a mess!! I can't own a gun but I can sure pay the taxes that take my rights away...land of the free
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Old 07-16-2011, 10:54 PM
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I'm starting to think that it's much easier to be a criminal than a law abiding citizen. In the eyes of these jokers running our country, i'm still a criminal and will always be one. And to the Leos that took me to jail that nite (without asking me what happened) you can kiss my arse! Even though atleast probably 2 out of 4 probably already have lost there guns... Hypocrit scum!! Sorry to the rest of us...i've had many years of built of resentment over this
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Old 07-16-2011, 11:24 PM
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I'm starting to think that it's much easier to be a criminal than a law abiding citizen. In the eyes of these jokers running our country, i'm still a criminal and will always be one. And to the Leos that took me to jail that nite (without asking me what happened) you can kiss my arse! Even though atleast probably 2 out of 4 probably already have lost there guns... Hypocrit scum!! Sorry to the rest of us...i've had many years of built of resentment over this
You are not alone. This is more common than people know, both for men and women. Now with mandatory arrest laws, women are arrested MUCH more often than they were in the past.
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Old 07-16-2011, 11:32 PM
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Many police officers get divorces and the Lautenberg bill puts them at a significant disadvantage in "divorce proceedings".

This is a very sore point with Law Enforcement Officers because many have gotten "screwed" in divorce proceedings because their soon to be ex spouses threaten the DV card.

Just curious, what is the source of jurisdiction for the Federal Law. I don't see how a "domestic violence" charge relates to interstate commerce.

Nicki
Haven't you heard? Everything is interstate commerce, even if it's actually intrastate commerce, as intrastate commerce means you affected interstate commerce by not engaging in interstate commerce, even if there is no kind of commerce involved.

Crazy how we let that happen.
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Old 07-17-2011, 5:09 AM
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The sadest part is how alot of people me can defend themselves,family and home wheras I cannot protect my family. And if I do, I become a felon. Not to mention that my wife can't legally protect herself around me either. I guess our elected officals don't need a gun to protect themsevles....they got our money to pay for their bodyguards
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Old 07-17-2011, 5:13 AM
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Sounds more and more how the laws are in England...go to jail if you protect yourself. Just a different approach.
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Old 07-17-2011, 5:57 AM
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Would you like your Kafka with cream, sugar or LSD?
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  #234  
Old 07-17-2011, 6:15 AM
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Atleast I don't have to worry about being drafted into the Army anytime soon
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Old 07-17-2011, 7:59 AM
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I was looking for any new news about this: http://www.ktvu.com/news/27549809/detail.html

it can happen to anyone.
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It makes it bigger and longer.
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  #236  
Old 07-17-2011, 8:14 AM
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If there were a draft, the mcdv prohibition would be one of the first things 'they' would make an exception for.

Anyone have stats on how many lautenberg prohibited males in the states there are?
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Old 07-17-2011, 8:20 AM
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If there were a draft, the mcdv prohibition would be one of the first things 'they' would make an exception for.

Anyone have stats on how many lautenberg prohibited males in the states there are?
That is info I would like to see. I did see some interesting stats on the violence against women act and female DV arrest numbers, they have skyrocketed!
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Old 07-17-2011, 8:36 AM
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I googeled women arrested for dv and read that 25% of arrests are now woman. But are often not prosecuted as swiftly as men, but I think that view of poor woman is changing. It used to be if a woman slapped,hit or scratched a man was considered ok but when a man had enough of the abuse and stood up for himself...he is a criminal. Two out of the last three relationships my girlfriends were the violent ones and I prayed that I wouldn't end up in jail again. When I say violent I mean what the feds consider dv but my ex girlfriends considered playful. The antis just used these and threw em away after getting this law passed
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Old 07-17-2011, 8:51 AM
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It amazes me how many people have been affected and only some care about their rights being lost. I think as more and more people fear for their safety and wanna carry for protection, and find out they can't, then maybe we will have a bigger voice. I'm also surprised that 2 laws were entered this year and neither politican has any co sponsors, where they had in the past. Many may feel it's a lost cause but obivously alot of the public do not along with many states that have tried to rectify this problem. Atleast now I feel that we are making some strides and questioning this unfair law
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  #240  
Old 07-17-2011, 8:56 AM
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Quote:
Originally Posted by BigBamBoo View Post
I was looking for any new news about this: http://www.ktvu.com/news/27549809/detail.html

it can happen to anyone.
What happened in that case? Was he charged? I can't find an update.

The judge was arrested for felony DV. I have no idea what happened and he is innocent until proven guilty. The cases this thread is about could never be a felony since misdemeanor DV can be for "the least touching", and some prohibiting DV arena charges don't involve touching at all.
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