4th Circuit Significantly Limits the Lautenberg Amendment

[Kevlar]

Gun owners in West Virginia and many other states whose right to possess a firearm may have been denied because of a conviction for a "misdemeanor crime of domestic violence" may no longer be prohibited from possessing firearms based on a decision last week by the U.S. Court of Appeals for the 4th Circuit, which covers West Virginia.

In the case of U.S. v. White (PDF), the 4th Circuit held that a conviction in Virginia for simple assault, without evidence in the record of conviction showing the use or attempted use of "physical force," did not constitute a "misdemeanor crime of domestic violence" for which federal law prohibits the possession of firearms.

The 4th Circuit's decision in U.S. v. White is in line with decisions of the 7th, 9th, and 10th circuits on this question and several recent decisions of the U.S. Supreme Court interpreting the meaning of "physical force" as it is used in several other federal laws.....

http://archive.constantcontact.com/fs061/1102955222215/archive/1103458275768.html.

Authorities fear a recent appeals court ruling could cripple enforcement of a federal law barring persons convicted of misdemeanor domestic violence from possessing a firearm.

A three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday tossed out a firearm conviction against William S. White, who was previously convicted in Henrico County of misdemeanor assault and battery in a domestic violence case.

The panel's ruling focused on the definition of "physical force." The judges held that in the federal firearm law, it means force capable of causing pain or injury, something not necessarily required for a misdemeanor domestic violence conviction under Virginia law.

White's lawyer, Eric H. Kirchman, said yesterday that "I'm pleased, and I'm sure Mr. White is very pleased." It was unclear yesterday if or when White, held in a federal prison in Kentucky, would be released.

Peter Carr, a spokesman for the U.S. attorney's office for the Eastern District of Virginia, said: "We are exploring our options, which may include an appeal." The government could ask for the full court of appeals to reconsider it, or appeal to the U.S. Supreme Court.

"We are reviewing the decision, which appears to hamper our ability to use a statute that has helped reduce violent crime in Richmond," Carr said.

In a brief filed this year, the U.S. attorney's office warned that such a ruling could mean a "very large percentage of misdemeanor domestic assault and battery convictions" may no longer be covered by the federal firearm law.

In addition to Virginia, the Richmond-based 4th Circuit covers appeals in Maryland, West Virginia, North Carolina and South Carolina -- all states that could be affected by the ruling.....

http://www2.timesdispatch.com/rtd/news/local/crime/article/DOME04_20100603-222804/348950/

 

[jcr]

a statute that has helped reduce violent crime in Richmond," Carr said.

Nice try Peter. You're making this up. You have no idea if it "helped reduce" even one incident of violent crime.

You don't even know how many DV misdemeanants tried and were rejected via the InstantCheck in Richmond -- let alone of those who were which of them couldn't not otherwise obtain some other weapon. I doubt you even know whether DV crime has gone down (though there is probably data on that). To be fair you seem to imply that DV misdemeanants would be involved in other "violent crime". Perhaps, but I'd suggest that those who are, probably have felonies already, anyway.

 

[terraformer]

A small but consequential ruling. It still sidesteps the larger issue, that 209As don't require any evidence at all to restrict a person's rights, but important nonetheless. Here there is a conviction, so hopefully whomever argues it, does so narrowly as to preserve the 209A issue which is a far larger miscarriage of justice. But if this goes the right way, a ruling here would spell a death knell for the 209A restrictions as how could one argue that an assault conviction requires evidence of the domestic component of the crime before they can be considered under the law and still with a straight face support 209A restrictions.

Another problem. If this goes through, the feds may make ANY assault conviction a statutory DQ in order to preserve the intended effect. Thereby making it that much worse.

 

[terraformer]

See Carachuri-Rosendo v. Holder decided this morning. You will note the similarities in the rulings. The court is making it clear that any punishment enhancements need to be found as fact by juries. In Carachuri-Rosendo v. Holder, it was a punishment enhancement for multiple drug convictions. The court states that the jury needs to both be told of and confirm the circumstances surrounding the enhancement. So the above wasn't a challenge on Lautenberg, but one of due process.

ETA: http://www.scotuswiki.com/index.php?title=Carachuri-Rosendo_v._Holder