Supreme Court Upholds Conviction For Gun Possession In Case Of Domestic Abuser

[Purveyor]

WASHINGTON (AP) — The Supreme Court on Tuesday upheld the conviction of a West Virginia man for violating a federal law barring people convicted in domestic violence cases from possessing firearms.

In a 7-2 vote, the court ruled that a federal appeals court in Richmond, Va., wrongly threw out the conviction of Randy Edward Hayes. Justice Ruth Bader Ginsburg wrote the majority opinion. Chief Justice John Roberts and Justice Antonin Scalia dissented.

The federal government, gun control groups and women's rights advocates worried that a ruling for Hayes would have weakened the federal law enacted in 1996 that applied the 40-year-old ban on gun possession by a felon to people convicted of domestic violence misdemeanors.

The 4th U.S. Circuit Court of Appeals ruled in Hayes' favor because the West Virginia state law on battery under which he was convicted did not contain specific wording about a domestic relationship between the offender and the victim.

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AP: http://www.newsday.com/news/politics/wire/sns-ap-scotus-firearms,0,7926942.story

[happyslug]

1. The Actual opinion by Ginsburg, Roberts and Scalia Dissented

http://www.supremecourtus.gov/opinions/08pdf/07-608.pdf

[jody]

2. Hayes should have had his civil rights restored without exception then he could have legally

possessed firearms.

Of course the area is gray on whether a person loses their civil rights because of a misdemeanor domestic violence conviction.

Does a person lose their right to vote after a misdemeanor domestic violence conviction?

[happyslug]

3. In Most states, Felons do NOT even lose their right to vote

Your Right to Vote, after committing a crime, is set by state law and that varies from state to state. In fact only Virginia and Kentucky still prohibits Felons from voting once they have served their time, thus while a big issue in 2000 and right afterward is now a non-subject in most states.

http://en.wikipedia.org/wiki/Felony_disenfranchisement

[jody]

4. I oppose domestic violence but I don't know the reason only one civil right, RKBA, is lost

for a misdemeanor domestic violence conviction and apparently no others.

Perhaps misdemeanor domestic violence convictions should become felonies if the perpetrator poses such a threat to society that their RKBA should be revoked.

[happyslug]

5. The problem has to do with people with a history of Violence.

People with a history of Violence (Including Domestic Abuse) tend to repeat the abuse over and over again, furthermore spouses of such abusers are noted for NOT taking any action against such abusers (On the Average, an abuser will only file a complaint about the fourth time the victim decided to do so, the victims have a history of ENDING any action to protect themselves if the abuser says th abuse will stop, it almost never does).

One of the reason is most people have a deep emotional commitment to their mate, and as such they subconsciously want to return to that mate, even if it involved being abused (Being away from the mate is often more emotionally hurtful then the abuse by the spouse, notice I point out EMOTIONAL hurt, the abuser can only supply physical abuse). Studies have shown that mates suffer emotional hurt by being away from each other, more so then even a parent and child separation. To end this emotional hurt many abused victims go back with their abuser. It sounds dumb but that is the way it is (yes, I practice in this field and see it on a weekly basis, get a Protection from abuse and then a few weeks or months later the victim is back in my office to get it lifted so the victim can move back in with the abuser). The studies that shows we have an emotional need to return to our mates is the best explanation for this phenomenon, separation from out mates lead to emotional harm, only resolved by being back with that mate.

The courts have long recognized this problem. Till the 1970s the Courts had a policy that is was NOT the business of the courts what happens in a marriage. This sounds harsh and it was in the US, but when the rule first came into existence in England, England had "Church Courts" that had jurisdiction over marriage and what happened inside a marriage. Such Church Courts never cross the Ocean from England, but the US Courts adopted the same rule and left the Churches try to resolve abuse within the family. The Churches tried but without any enforcement power (i.e. NO church court) they failed. In the 1860s the Courts found itself force more and more to deal with family matters given the lack of a Church Court. Once Divorces stop being done by Legislature enactment (i.e. Divorce laws were passed given the Courts the ability to divorce people) the courts had to start to address the issue of abuse in addition to issue of property and support. Over the years this ability increased do to various statutes, but the Courts prefer final decisions and given the nature of the Human pair bond that is simply not possible.

Now in the 1990s it was found that a lot of abused victims were being killed by their mates AFTER a Protection from Abuse Order had been issued. Thus Congress made it illegal to have a firearm while subject to a PFA. In addition, if you were ever convicted of a crime of violence against someone you lived with, the same ruled applied, even if the crime was a misdemeanor. Congress viewed this small step as needed to resolved a problem when a couple breaks up, and it can lead to problems if the couple even gets back together again. Thus the rational for the law and why it is on the books.

Now, personally, I wish they would go back to the old rule, i.e. as part of the agreement under a PFA, a ban on firearm could be added, but it was NOT mandatory. I have had cases that a Judge under the old Rules would have entered a PFA just to be on the safe side, but leave the abuser have the abuser's weapons to go hunting with. If the abuser came near the victim for any reason the abuser would be arrested. If the abuser's intentions were harmful, whether he had a gun or not was almost never a factor. If the abuser comes near the victim's house the abuser can be arrested and charged (weather the abuser had or did not have a weapon). If the abuser, with intention to do harm, gets to the victim, all the PFA is, is a piece of paper. The PFA permits the police to pick up the abuser if the abuser gets anywhere near the victim. If the Victim is careful and calls the police, hopefully no harm will occur. In the situation where the Victim can not or is late in calling the police, there is not much we can do. A knife can be as deadly as a firearm, so can punches and bats. I would prefer my clients to have the PFA so if the Abuser comes near them for any reason they can be and will be arrested. Do to the fact the ban in firearms exists, I have had Judges deny PFAs just do to the ban on Firearm possession. That undoes the whole rationale for a PFA statute. A PFA is to protect someone from abuse, if it is NOT entered the police can not just pick up the Abuser if the abuser violates the Order. On the other hand if a PFA is in place, an abuser can be arrested just being on the same street as the Victim. That provides much better protection then a ban on firearms to someone who is subject to a PFA. As I said, I have seen judges turn down a PFA based on the fear the Abuse may lose the abuser's job do to the abuser no longer able to carry a firearm. I have had cases, denied simply because the Abuser wanted to go hunting and thus fought the entrance of the ORDER (Most PFA's are entered by consent, the Abuser rarely wants to go on the stand and object, but will if made award of the ban on firearms even for hunting.

Basically in my experience, I would prefer to make it as easy as possible to get a PFA on someone. All a PFA is an Order for the alleged abuser to stay away from the Victim. If the abuser agrees to it, rarely is there a problem and even rarer involving a firearms (Through Pistols are much more common then rifles and shotguns). Once the PFA expires evey thing goes back to normal, and both parties have gone on with their lives.

If on the other hand the Abuser again abuses the Victim, all any police officers has to do is see them together and the Abuser gets arrested. The Police Officer does NOT have to decide if anyone is or not in danger, the Officer does not have to see any crime, all the Officer has to see is the two people together when the Abuser knows of a PFA against such meeting. Simple, easy and solves the problem of abuse better then anything else we have tried. Firearms are a concern, but if NOT the method of abuse in the past rarely a problem in the Future, but I can accept a ban on pistols but rifles and shotguns I have my question on, I have found the ban on firearms have NOT protected more people, but less, given Judges reluctance and defendants increase reluctance to enter into a PFA.

Yes, I can see where the law comes from, but like some other laws I have seen it do more harm (Less PFAs being issued) then good (Less holders of PFAs being killed).

[jody]

7. Thanks so very much for your post. IMO however you make a case for a felony conviction rather than

a misdemeanor.

Current practices are not very effective in reducing domestic violence in my area.

As you point out part of the problem is the reluctance of the abused person to report an incidence.

Thanks again, :hi:

[Scout]

6. could it be because the victims aren't being held hostage by their right to vote?

how dense can you be for fuck's sake.

[jody]

8. You need to reread my post more carefully. Have a nice day. n/t