So, Hayes was accused of a domestic violence battery charge that, according to Virginia statutes, did not have a “domestic relationship” element (something not present in the original Fourth Circuit Court decision, but is now present since the court reversed itself), and is making the case that the Lautenberg Amendment thus doesn’t apply to him? Simplified version, but I think still correct.
Here is the law they’re referring to:
(33)(A) Except as provided in subparagraph (C), the term
“misdemeanor crime of domestic violence” means an offense that -
(i) is a misdemeanor under Federal or State law; and
(ii) has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim.
If this is the case, it sounds to me like a case of judicial activism on the part of the Fourth Circuit Court. They’re adding something that just isn’t there. I don’t see this ruling favorably for Hayes, and I do see the Supreme Court siding with Judge Williams’ dissenting opinion that the “element” addressed in Section 921(a)(33)(A) does not refer to a separate element of domestic relationship, and refers instead to the element of “use or attempted use of physical force, or the threatened use of a deadly weapon” as it presently reads. I just don’t see how the Lautenberg Amendment is going to be turned over here. I’m of the opinion that if the Courts want to treat certain crimes as felonies, make them felonies, not misdemeanors with felony effects, but that’s my opinion and worth what you paid for it.
The Wyoming v. BATF is a lot more juicy. Shown here.
Jennings’ misdemeanor conviction was expunged using the State of Wyoming’s 7-13-1501. The BATF is arguing that the Wyoming law does not restore firearm ownership rights because it does not satisfy the criteria described in here in 921(a)(33)(B)(ii), shown below:
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Here’s the Wyoming law in question:
7 13 1501. Petition for expungement of records of conviction of misdemeanors; filing fee; notice; objections; hearing; definitions.
(a) A person who has pleaded guilty or nolo contendere to or been convicted of a misdemeanor or misdemeanors arising out of the same occurrence or related course of events may petition the convicting court for an expungement of the records of conviction for the purposes of restoring any firearm rights lost, subject to the following limitations:
(i) At least one (1) year has passed since the expiration of the terms of sentence imposed by the court, including any periods of probation or the completion of any program ordered by the court;
(ii) Other than convictions arising out of the same occurrence or related course of events, the petitioner has not previously pleaded guilty or nolo contendere to or been convicted of a misdemeanor for which firearm rights have been lost;
(iii) The misdemeanor or misdemeanors for which the person is seeking expungement shall not have involved the use or attempted use of a firearm.
When Wyoming first passed the law, the ATF sent them a letter saying only federal, not state, law determined the definition of “expungement”, and anyone who through that new law had their criminal records expunged would still be criminally liable via 18 USC 922. They sent another letter a year later saying Wyoming had one of two choices: stop issuing concealed-carry license those who’ve had their records expunged under Wyoming law or draft a law fixing the disparity between federal and state definitions of “expunge”, or else the ATF would run background checks on everyone with Wyoming concealed carry licenses. Wyoming took the issue straight to the district court, who ruled that their law did not comply with the earlier definition. Wyoming is appealing and trying to take this higher.
On this one, I think the ATF is blowing smoke up everyone’s ass and would get trounced in court. I really hope the Supreme Court decides to hear this case.
-B
