DV Plea Deals - Impact of SCOTUS decision?

[ForeverDad]

On 06/27/2016 the Supreme Court of the United States ruled 6-2 that there should be no distinction between types of DV convictions when applying the law limiting gun purchases (Constitution's 2nd Amendment repercussions).  No. 14–10154, Voisine et al. v. United States.  At question was whether a reckless (unplanned) domestic assault resulting in a DV conviction could be separated from a planned DV assault so that it did not infringe on the person's ability to own or purchase guns.  The majority ruled no distinction or separation of categories.

Excerpt from Justise Thomas' dissent:

Under the majority’s reading, a single conviction under a state assault statute for recklessly causing an injury to a family member—such as  by texting while driving—can now  trigger a lifetime ban on gun ownership.  And while it may be true that such incidents are rarely prosecuted, this  decision leaves  the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.

We treat no other constitutional right so cavalierly. At oral  argument  the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine... .

Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors.  Prohibiting those convicted of intentional and knowing batteries from possessing guns—but not those convicted of reckless batteries—amply carries out Congress’ objective.

Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash.

This is just a subjective observation, but it seems the two dissenting justices were more concerned with the intent of the law than the others.

Here at this site many in or leaving high conflict relationships have reported facing DV allegations and even DV charges.  Our consistent refrain has been to beware of the plea deals offered since even a lesser charge typically admits guilt at some level and agreeing to one could have serious repercussions in the years to come.  We usually mention the custody impact where it would likely put us at a disadvantage but also it could block us from certain employment.  And now more clearly gun ownership.  (I don't own guns but many do.)

The advice in Bill Eddy's SPLITTING handbook about DV allegations and court cases is clear — plea deals are to be refused in most cases.  Plea deals are for perps not innocents caught in the crossfire of a divorce or custody struggle.  As was written there, once defendants admit guilt in a plea deal, it can't be denied later.  But claiming innocence, even if a judge finds against them, leave them the ability to continue claiming innocence.

However, the decision referenced above always mentioned "convictions", not "charged".  So it is to our advantage to defend ourselves vigorously against false or 'unsubstantiated' allegations.  Also, we have a right to keep silent.  We have a right to listen to our attorneys' advice.  (My attorney always told me his first duty to his client was to sit on him, metaphorically, so his client didn't open his/her mouth and inadvertently make the case worse.)

[ForeverDad]

Excerpt from Justice Thomas' dissent:

At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine... .

This comment is quite interesting.  At oral arguments when cases are presented, Clarence Thomas has usually been silent, no questions in a decade.  Then it became news when he actively pursued a question in this case on February 29... .

"Ms. Eisenstein, one question.  Can you give me – this is a misdemeanor violation. It suspends a constitutional right. Can you give me another area where a misdemeanor violation suspends a constitutional right?" Thomas asked.

[Waddams]

I had a DV charge with the woman I dated after my divorce.  She had attacked me, even busted open a locked door to get to me.  I ended up having to physically get her off me as she was hurting me, got behind a closed door and braced it with my shoulder so she couldn't open it, and called the cops.  They arrived, she turned on the poor snowflake act, and I ended up getting arrested.

It happened during a time when XW was trying to take away my 50/50 time due to giving my son the occasional twinkie and poptart (literally written up in her complaint that way).  xBPDgf used the charge to hang over my head, promises to help get it dropped whatever if I did this or that, etc.  

At court, they did this pre-trial question thing with xBPDgf, she contradicted her statement, the cops statement (the cops statement was so full of lies that were easily proven it made my head spin), and the prosecutor basically offered a deal that I go to a DV class, complete it, and the charges get dropped and all records of everything get expunged.  Otherwise the actual trial could end up being as much as year out, costly, and I needed to get it done with quick both because of my XW's custody case AND so xBPDgf couldn't use it as blackmail.  My L recommended I take the deal because it all got expunged when it was over, it was the quickest way to get it over with and move on, and also the least expensive.

Therefore I did it.  Completed everything, and it was all expunged from court and criminal records.  Today it's like it never happened.  It did require a special "downward departure" from guidelines that the law gave the judge discretion to allow so the deal could be done without an admission of guilt.  The prosecutor recommended it to the judge and the judge signed off on it.  All without actual formal hearings in front of xBPDgf.  

I ended up getting some things improved in my custody orders in a settlement to end my XW's case (she didn't get anything she asked for).  XW's case and the DV case both resolved about the same time.  After it was all done, xBPDgf, having nothing to hang over me anymore, instigated and extinction burst style outburst.  I simply didn't go home, hit a hotel, went on a planned vacation without her, ended it, and moved on.  

I was lucky, though.  I realize it might not have gone so well.  Required xBPDgf to show her true colors to the DV advocate and prosecutor, which she did, and the prosecutor and judge to see it too, which they did.   The way the laws were structured I had to do the class to be eligible for the complete expungement, only way it could have gone better would be if it could have been dropped and expunged without the class and waiting.  

These days, if I start to see a woman get agitated and she seems likely to get physical, I leave immediately.  And if I ever find myself again in a situation where a woman is physical, I won't touch her back.  If I end up with some injuries, so be it, but I'll make certain I can show without a doubt who the aggressor is.  I also won't call the cops from an active DV scene ever again.  I'll wait until I can get away, then go to the police station to make a report on my own, away from her, then go file for a TPO with the report.

Of course, that's all hypothetical as I don't plan on being with a woman like that ever again!

[Thunderstruck]

So the law says you can be denied a gun because you:

◾Is subject to a court order restraining him or her from harassing, stalking or threatening an intimate partner, his or her child or a child of a partner or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; or

◾Has been convicted of a misdemeanor offense of domestic violence.

So if the other person files a complaint and the judge just says "I don't know who to believe... .here, just keep away from each other" and files a TRO for both people then you're ineligible to buy a gun?

Also, I wonder if uBPDbm is not allowed to buy a gun? She hit DH and he called the police. They charged her with battery and she got one year probation. (she lied about the court date so DH missed it, I think her charges were lowered because of it). She still goes shooting at the gun range though, so I guess that isn't part of the prohibition.

[Nope]

So the law says you can be denied a gun because you:

◾Is subject to a court order restraining him or her from harassing, stalking or threatening an intimate partner, his or her child or a child of a partner or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; or

◾Has been convicted of a misdemeanor offense of domestic violence.

So if the other person files a complaint and the judge just says "I don't know who to believe... .here, just keep away from each other" and files a TRO for both people then you're ineligible to buy a gun?

Also, I wonder if uBPDbm is not allowed to buy a gun? She hit DH and he called the police. They charged her with battery and she got one year probation. (she lied about the court date so DH missed it, I think her charges were lowered because of it). She still goes shooting at the gun range though, so I guess that isn't part of the prohibition.

I can tell you that in the state of MA, at least a few years ago, a TRO lasted about a month and if it didn't get turned into a longer TRO or a permanent RO then it immediately got expunged like it never happened. In that case the person the TRO was against could still buy a gun. But if it was extended or made permanent that was the end of that. But by the wording about "is subject to a CO retraining him or her"... .that makes it sound to me like they mean actively a subject of the TRO. Meaning, once the TRO is over they can then potentially make a purchase.