Case Summaries: Weapons

Gun Ban For DV Offenders Does Not Violate Second Amendment:

The federal district court ruled that the federal statute, 18 U.S.C. Section 902(g)(9), prohibiting those persons convicted of a misdemeanor crime of domestic violence from possessing firearms, does not violate the Second Amendment as applied to defendant.  Government has a compelling interest in preventing domestic violence or lessening its severity, and the statute was reasonably tailored in proportion to that interest.  United States v. Tooley II, 717 F.Supp.2d 580 (S.D. W.Va. 2010).

Keywords: weapons, Brady Law, gun prohibition

Date: 3/28/11

Deadly Weapon Prohibition In DV CPO Reversed Because Of Insufficient Nexus To Respondent’s Conduct:

The court of appeals held that the trial court’s imposition of a deadly weapons prohibition in the DV CPO should be reversed because that term was not supported by the evidence.  Although there was evidence introduced regarding a physical altercation between respondent and petitioner, neither weapons nor the threat to use weapons were involved.  Therefore, the weapons restriction imposed upon respondent in the civil protection order lacked a sufficient nexus to the conduct at issue and was, therefore, unreasonable.  Butcher v. Stevens, 182 Ohio App.3d 77, 2009-Ohio-1754 (4^th Dist., Athens, 4/07/2009).

Keywords: gun prohibition, Brady Law, domestic violence, gun restriction, firearms

Date: 3/28/11

Weapons Restriction in DV CPO is Unreasonable

The court of appeals reversed the trial court’s imposition of a deadly weapons restriction (prohibition) in the DV CPO because weapons played no part in the domestic violence that served as the basis for the granting of the CPO at issue. Although there was a physical altercation between appellant and appellee, neither weapons nor a threat to use weapons was involved. Therefore, the weapons restriction in the CPO lacks a sufficient nexus to the conduct at issue and is, therefore, unreasonable. Butcher v. Stevens, 182 Ohio　App.3d　77, 2009-Ohio-1754.

Keywords: "civil protection order" "Brady Law" firearms guns

Date: 3/19/2010

The trial court committed plain error in imposing a weapons restriction (prohibition) as part of a DV CPO because the weapons restriction lacked a sufficient nexus with the stalking conduct the trial court was attempting to prevent. No evidence was presented that the respondent used or threatened to use a deadly weapon to harm the petitioner. Doran v. Doran, 2009-Ohio-5521 (12^th Dist., Warren, 10/19/09). 

Keywords: "civil protection order" "Brady Law" firearms guns

Date: 3/19/2010

Reference To Gun Constituted DV Under Facts of Case

The court of appeals affirmed defendants DV conviction arising from defendants reference to his recently purchased gun and the victim-wifes belief that he would use that gun to harm her. At the time of the incident, two weeks had passed since the victim had filed for divorce against defendant. Defendant entered the house in an intoxicated state and began screaming obscenities at the victim, threatening to destroy property in the house. Defendant then spoke of a gun he had recently shown to the victim. ("Well, you remember the gun I showed you before.") Under the facts presented, a reasonable person would have been placed in fear of imminent physical harm following defendants reference to the firearm. State v. Simcox, 2007-Ohio-1217 (9th App. Dist., Wayne, 3/19/07).

Keywords: threat weapon

Date: 3/27/2008

Concealed Weapon Possession Barred Even When CPO Does Not Say That

The applicant for a license to carry a concealed handgun, who was the subject of a CPO, was not entitled to a license. The sheriffs denial of applicants license did not violate applicants Second Amendment rights, , even if the CPO stated that it did not affect applicants right to possess, carry, or use firearms. The statute governing licenses to carry a concealed weapon required that the applicant not be the subject of a CPO, and applicant was not prohibited from purchasing and possessing all handguns, only concealed ones. R.C. 2923.125(D)(1). Marten v. Phalen, 2005WL1871190, 2005-Ohio-4076 (5th Dist., Fairfield, 8/03/06)

Keywords: guns, deadly weapon

Date: 6/5/2006

Possession of Firearm After Being Convicted of DV:

Defendant pleaded guilty to menacing in the second degree under N.Y. Penal Law 120.14. There was no information in the indictment, the plea hearing transcript, or the statement of conviction describing the nature of the relationship between defendant and his victim. Defendant contended that his state conviction did not qualify as a predicate offense of a misdemeanor crime of domestic violence, as defined in 18 U.S.C.S. 921(a)(33)(A), to support the federal indictment charging possession of a firearm by someone who has previously been convicted of a misdemeanor crime of domestic violence. The court of appeals addressed the question of first impression before it of whether 18 U.S.C.S. 922(g)(9) required that a domestic relationship between the assailant and the victim be included as an element of the predicate state offense as defined in 18 U.S.C.S. 921(a)(33)(A). The court agreed with other courts of appeals that such a relationship was not required, relying on legislative history. The court found that 921(a)(33)(A) was not ambiguous and was sufficiently clear to avoid any vagueness problems. Therefore, proof that the victim's prior offense of menacing in the second degree was in a domestic relationship with defendant would establish the predicate offense for federal felony prosecution for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence. United States v. Kavoukian, 315 F.3d 139; 2002 U.S. App. LEXIS 27235 (2d).

Keywords: Brady law, Brady, gun ban, guns, weapons

Date: 5/16/2003

Gun Ban For DV offend Afers Is Consitutional:

To the extent plaintiff sought to hold the county attorney responsible for his role in the prosecution of child abuse or assault charges against plaintiff, such claims were barred by absolute prosecutorial immunity. Also, plaintiff's claims against defendants in their individual capacity were barred by qualified immunity because the constitutional rights claimed by plaintiff were not clearly established. The Second Amendment only protects weapon possession reasonably related to preservation of militia. Plaintiff made no showing whatsoever regarding a relationship between his firearms possession and the preservation of a militia. Also, 18 U.S.C.S. 922(g)(9) does not violate the Equal Protection Clause, the Commerce Clause, or the Eighth Amendment's Cruel and Unusual Punishment Clause. Because plaintiff failed to establish a constitutional violation, the claims against defendants in their official capacity failed as well. Blackburn v. Jansen, 241 F. Supp. 2d 1047; 2003 U.S. Dist. LEXIS 545 (U.S. Dist. Neb.)

Keywords: Brady law, Brady, guns, weapons

Date: 5/16/2003

Police Seizure of Abuser's Weapons Was Valid:

Defendant's wife made a 911 call complaining that defendant had hit her. The wife told police that defendant was drunk and that he had numerous guns in the home. Police went to the house and took the guns, including a assault riffle, into custody for safekeeping pursuant to the Prevention of Domestic Violence Act, N.J. Stat. Ann. 2C:25-17 to 2C:25-35. Neither the police nor the prosecutor sought a warrant for the seizure of the weapons. The appellate court held that the search of the home and the seizure of the guns was valid under the New Jersey domestic violence statute, as the police had probable cause to believe that defendant committed an act of domestic violence. However, the appellate court held that the trial court properly suppressed the rifle in the prosecution of the offenders for possession of an illegal assualt weapon. A search pursuant to N.J. Stat. Ann. 2C:25-21d(1), (2) was deemed reasonable and passed constitutional muster only so long as the results were not used to facilitate a criminal prosecution. Further, the facts did not establish the necessary requirements for a constitutionally permissible plain view seizure. State v. Perkins, 817 A.2d 364; 2003 N.J. Super. LEXIS 82.

Keywords: gun ban, weapons, guns

Date: 5/16/2003

Firearms Prohibitions

The federal firearms prohibition triggered by a upon domestic violence conviction was upheld as constitutional. U.S. v. Smith, 964 F. Supp. 286 (N.D. Iowa 1997). Federal law prohibits return of firearm where an order of protection is pending. State v. S.A., 675 A.2d 678 (N.J. Super. AD. 1966). Other federal district courts upholding the constitutionality of the weapons prohibition are: U.S. v. Meade, 968 F.Supp. 66 (D. Mass. 1997); U.S. v. Smith, 964 F.Supp. 286 (N.D. Iowa 1997); Nat'l. Assoc. of Gov't. Employees v. Barrett, 968 F.Supp. 1564 (N.D. Ga. 1997); U.S. v. Hicks, 1997WL832796 (D. Kan. 1997).

Keywords: gun ban

Date: 4/23/2002

Police Gun Ban Ruled Unconstitutional

Certain provisions of the 1996 amendments to the Gun Control Act of 1968 were found unconstitutional by a federal circuit court of appeals. The law provides a public interest exception from its provisions for law enforcement officers, but withholds that exception from those officers convicted of domestic violence misdemeanors. The court ruled the government cannot grant a public interest exception for law enforcement officers who commit more serious crimes, and withhold that exception for those who commit misdemeanors. Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir., 1998). However, the court of appeals has decided to rehear this case.

Keywords:

Date: 4/17/2002

Law Barring Firearm Possession Upheld

A federal appeals court rejected a constitutional challenge to 18 U.S.C. 922(g)(8), which makes it unlawful for any person subject to a domestic abuse protection order to "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition.' A state trooper found several firearms in Carlton Wilson's truck and a handgun on his person, while arresting the man on a warrant for failure to appear in court. At the time Wilson was subject to a protection order obtained by his divorcing wife. Finding that the federal statute is clear, and that Wilson's ignorance of the new law is not a defense, the circuit court upheld his sentence for possession for firearms while subject to a domestic violence protection order of 41 months in prison and a $7,500 fine. U.S. v. Wilson, No. 98-1256 (CA 7, 10/16/98), 24 FLR 1628. Another federal court of appeals has upheld the constitutionality of this weapons prohibition. U.S. v. Pierson, 1998WL18443 (5th Cir. 1998).

Keywords: gun ban

Date: 4/17/2002