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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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  #1  
Old 12-19-2018, 1:46 PM
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Default Current cases in process for firearm rights restoring for Misdemeanor DV?

Are there any current cases being heard or working thru the system regarding 2nd Amendment firearm rights restoration for misdemeanor DV?

Last time I checked years ago, it seemed there was a case Enos? I would assume Enos was not successful?

Is there any future traction or possibility to having gun rights restored for an expunged 10+ year old misdemeanor DV plea deal with no run in's with the law?

Did CA recently change to a lifetime ban for new cases? I thought CA only had a 10 year ban for firearm ownership?

Thank you.

Last edited by walter181; 12-19-2018 at 6:38 PM..
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Old 12-19-2018, 1:49 PM
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Moderators: Looks like I mistakenly put this in the wrong forum. How can I move the thread to 2nd Amend Litigation Updates and Legal Discussion?
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Old 12-19-2018, 3:08 PM
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Ask, and it shall be given you; seek, and ye shall find; knock, and it shall be opened unto you:
Done.
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There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.


Gregg Easterbrook’s “Law of Doomsaying”: Predict catastrophe no later than ten years hence but no sooner than five years away — soon enough to terrify people but distant enough that they will not remember that you were wrong.


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Old 12-19-2018, 3:16 PM
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Thank you.

Was I correct to assume that I had placed it in the incorrect forum and that this is the correct forum?
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Old 12-21-2018, 11:10 AM
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There are none in the Ninth Circuit right now.
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Old 12-21-2018, 9:12 PM
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Ok, thank you for the reply.

Guessing Enos was not successful at all?
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Old 12-21-2018, 9:40 PM
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SCOTUS denied cert in 2015 - see http://www.calguns.net/calgunforum/s...&postcount=864
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I've been saying that for years ...

There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.


Gregg Easterbrook’s “Law of Doomsaying”: Predict catastrophe no later than ten years hence but no sooner than five years away — soon enough to terrify people but distant enough that they will not remember that you were wrong.


Not a lawyer, just Some Guy On The Interwebs.


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Old 12-21-2018, 10:10 PM
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Yeah, I read somewhere that CA changed the law so that domestic violence convictions after 1/1/2019 result in a lifetime prohibition not a 10 year prohibition. One of the bills that was passed this year IIRC.
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Old 12-22-2018, 7:59 AM
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Originally Posted by lightcav View Post
Yeah, I read somewhere that CA changed the law so that domestic violence convictions after 1/1/2019 result in a lifetime prohibition not a 10 year prohibition. One of the bills that was passed this year IIRC.
Does that even matter? They're already prohibited for life at the Federal level.
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Old 12-23-2018, 11:31 AM
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Thanks for the info and replies.

So with nothing currently in process and recent changes in alignment of CA law to fed law, should one assume that any possibility of gun rights restoration is DOA?
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Old 12-23-2018, 12:08 PM
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Quote:
Originally Posted by walter181 View Post
Thanks for the info and replies.

So with nothing currently in process and recent changes in alignment of CA law to fed law, should one assume that any possibility of gun rights restoration is DOA?
No actually due to CA's recent change in law there is now a viable claim

Read this case http://cdn.ca9.uscourts.gov/datastor...5/14-16514.pdf
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Old 12-23-2018, 12:28 PM
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Originally Posted by wolfwood View Post
No actually due to CA's recent change in law there is now a viable claim

Read this case http://cdn.ca9.uscourts.gov/datastor...5/14-16514.pdf
Does this have to do with none of
Quote:
the mechanisms listed in section 921(a)(33)(B)(ii)(expungement,set-aside, pardon, and civil rights restoration) are available to restore Second Amendment rights.
are actually available in CA?
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Old 12-23-2018, 12:40 PM
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Originally Posted by walter181 View Post
Did CA recently change to a lifetime ban for new cases? I thought CA only had a 10 year ban for firearm ownership
It's not California, it is Federal.

Senator Lautenberg (D-NJ) pushed an amendment into an appropriations act in 1996 that retroactively created a lifetime firearms prohibition for *any* conviction of DV.
A lot of people (including police officers) became prohibited persons the day this went into effect.

It has been challenged at least 6 times, most have been rejected or denied cert.
One case was overturned in 1999, but reversed on appeal in 2001, but this case did not involve a misdemeanor conviction.

California has its own list of 10-year (and lifetime) prohibitions that are not completely consistent with Federal law. In some cases, Federal law is more restrictive, in most cases, Federal law is silent... in which case the California prohibition does not apply outside of California.
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A just government will not be overthrown by force or violence because the people have no incentive to overthrow a just government. If a small minority of people attempt such an insurrection to grab power and enslave the people, the RKBA of the whole is our insurance against their success.
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Old 12-23-2018, 12:45 PM
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Originally Posted by ajb78 View Post
Does that even matter? They're already prohibited for life at the Federal level.
But it means that even if a challenge against Lautenberg is accepted and ruled favorably by SCOTUS, a separate challenge would be needed against California law, meaning it would need to go through the 9th.
California likely passed this in anticipation of a future favorable ruling from a SCOTUS comprised of 6 Bush/Trump appointments.
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A just government will not be overthrown by force or violence because the people have no incentive to overthrow a just government. If a small minority of people attempt such an insurrection to grab power and enslave the people, the RKBA of the whole is our insurance against their success.
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Old 12-23-2018, 4:49 PM
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Does this have to do with none of are actually available in CA?
Correct. The Ninth Circuit is open to a challenge to Lautenburg and CA state law because there is currently no way to get a conviction set aside or expunged
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Old 12-23-2018, 4:49 PM
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Originally Posted by Cokebottle View Post
But it means that even if a challenge against Lautenberg is accepted and ruled favorably by SCOTUS, a separate challenge would be needed against California law, meaning it would need to go through the 9th.
California likely passed this in anticipation of a future favorable ruling from a SCOTUS comprised of 6 Bush/Trump appointments.
You could just challenge both in one case.
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Old 12-31-2018, 12:07 PM
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Correct. The Ninth Circuit is open to a challenge to Lautenburg and CA state law because there is currently no way to get a conviction set aside or expunged
So, what would that need to look like, money-wise and plaintiff-wise?
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Old 12-31-2018, 12:45 PM
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Perhaps related:

https://reason.com/blog/2018/12/26/c...with-vacated-o
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Old 01-01-2019, 12:35 PM
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So, what would that need to look like, money-wise and plaintiff-wise?
You'd want one or more people with a single county of misdemeanor DV. from years in the past and no convictions afterwards.

If you were paying a private lawyer to do it I'd suspect around 40-50k to take it all the way up to the Ninth Circuit.

You'd get your money back if you won.
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Old 01-01-2019, 2:26 PM
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Originally Posted by wolfwood View Post
You'd want one or more people with a single county of misdemeanor DV. from years in the past and no convictions afterwards.
And preferably a conviction that stemmed from "BS" accusations from a now-ex-spouse that was plea bargained down to misdo on advice from counsel that it was not worth the cost and risk of taking before a jury, and would have no impact on future firearms ownership or state licensing status.
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Originally Posted by dantodd View Post
A just government will not be overthrown by force or violence because the people have no incentive to overthrow a just government. If a small minority of people attempt such an insurrection to grab power and enslave the people, the RKBA of the whole is our insurance against their success.
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Old 01-01-2019, 3:11 PM
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Quote:
Originally Posted by wolfwood View Post
You'd want one or more people with a single county of misdemeanor DV. from years in the past and no convictions afterwards.

If you were paying a private lawyer to do it I'd suspect around 40-50k to take it all the way up to the Ninth Circuit.

You'd get your money back if you won.
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Originally Posted by Cokebottle View Post
And preferably a conviction that stemmed from "BS" accusations from a now-ex-spouse that was plea bargained down to misdo on advice from counsel that it was not worth the cost and risk of taking before a jury, and would have no impact on future firearms ownership or state licensing status.
I know of someone who plead to a misdemeanor battery when he was about 19. He was in the Army Reserve at the time. His lawyer did a horrible job and he didn't know about the Federal Lautenberg ban at the time and she never mentioned that. We were throwing people out of the reserves because of this law but he made it through his first 6 year enlistment with an honorable discharge and decorations.

His lawyer actually told him, in a letter dated after she entered his plea of no contest, that it "occurred to her" that he would be banned for 10 years under California law and he still has that letter.

He never went to court as the lawyer went for him. The TAHL form only lists a possibility of lost gun rights on one side and he just signed the back because he was a dumb kid who had never ben in trouble and he just spent his life savings on a lawyer he thought had his best interests in mind.

He is now a early 40 something successful manager of a large team at work and is thinking of challenging this. He has never had any kind of negative law enforcement contact before or after.
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I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 01-02-2019, 11:34 AM
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Interesting reading. Looking forward to seeing what develops, as I fit the bill, single M-DV from over a decade ago with no other run ins with the law of any kind, but don't have a spare 40-50k to drop on this. Also fit the description of what Cokebottle laid out.

Last edited by walter181; 01-09-2019 at 11:26 AM..
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Old 01-09-2019, 7:10 PM
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Quote:
Originally Posted by Cokebottle View Post
But it means that even if a challenge against Lautenberg is accepted and ruled favorably by SCOTUS, a separate challenge would be needed against California law, meaning it would need to go through the 9th.
California likely passed this in anticipation of a future favorable ruling from a SCOTUS comprised of 6 Bush/Trump appointments.
Wouldn't a challenge to CA law only be needed if the conviction was for PC 273.5, and the conviction occurred after January 1, 2019?

https://leginfo.legislature.ca.gov/f...ctionNum=29805.

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Originally Posted by 29805
[snip]
(b) Any person who is convicted, on or after January 1, 2019, of a misdemeanor violation of Section 273.5, and who subsequently owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.
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Old 06-23-2019, 6:15 AM
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Originally Posted by walter181 View Post
Interesting reading. Looking forward to seeing what develops, as I fit the bill, single M-DV from over a decade ago with no other run ins with the law of any kind, but don't have a spare 40-50k to drop on this. Also fit the description of what Cokebottle laid out.
I know someone who has the money and is in this situation. Who should he contact?
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Originally Posted by Wherryj View Post
I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 06-23-2019, 2:50 PM
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http://www.sdslaw.us/contact



My business partner does all the client intake. He'd be happy to look at it.
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