Friday, May 26, 2017

10th Circuit holds Municipal Court Convictions of Domestic Violence do not Eliminate Second Amendment Rights

The 10th Circuit has issued an opinion that convictions of municipal and local ordinances for domestic violence do not remove a person's rights under the Second Amendment. Current federal law makes a person who has been convicted of domestic violence under "Federal, State, or Tribal law" a prohibited possessor who may not legally purchase or possess firearms or ammunition. In this case, U.S.A. v. Pauler, the defendant, Alexander J. Pauler, had been convicted of violating a Wichita, Kansas municipal ordinance against domestic violence. From
WICHITA – A Kansas man convicted of misdemeanor domestic battery under a city ordinance can legally carry a gun, an appeals court found in a ruling that could have broader implications for firearm sales.

The 10th U.S. Circuit Court of Appeals’ ruling came in the case of Alexander Pauler, a Wichita man who was accused of violating a federal law that prohibits someone from owning a gun if they’ve been convicted of misdemeanor domestic violence “under federal, state or tribal law.”
The opinion is fairly short and well written. It essentially says that the statutory language is clear, and means what is written. It is unclear if the state will apply for an en banc ruling, appeal the case to the Supreme Court, or elect to accept the 10th Circuit decision. From
We interpret “State” to have the same meaning in § 921(a)(33) that it has throughout the rest of §§ 921 and 922 and therefore conclude that “a misdemeanor under Federal, State, or Tribal law” does not include a violation of a municipal ordinance. In these sections, when Congress refers only to “State” law, it does not also include the laws of a state’s political subdivisions. Accordingly, because Defendant’s prior violation of a Wichita municipal ordinance was not a “misdemeanor crime of domestic violence” as defined by § 921(a)(33), the government has not demonstrated that he was prohibited from possessing a firearm under § 922(g)(9).
It is unknown how many people have been convicted of domestic violence under municipal or local ordinances. In some areas, large percentages of domestic violence cases are tried in municipal or local courts. Plea bargains where part of the deal is to plead guilty to a municipal ordinance rather than a state statute, are known to occur.  From
About 43 percent of new domestic violence cases are heard in municipal court.
The case opens up a new strategy for defendants who are charged with domestic violence.  Those who wish to avoid the expense of a trial have an option that may avoid loss of Second Amendment rights, by pleading to a municipal ordinance. Those who have been convicted under municipal or other local ordinances now have a reasonable case to appeal their status as prohibited possessors.

©2017 by Dean Weingarten: Permission to share is granted when this notice and link are included.

Gun Watch

1 comment:

Anonymous said...

All of these laws are based on unconstitutional laws and acts that violate the Shall not be infringed clause of the second amendment. there is nothing in the constitution that requires or limits a person that has served their time. everyone not in jail has a right to self defense. terrorists never check to see if you are an ex con. there is no age limit in the second amendment. recently a 13 year old girl defended herself with a shot gun. Under existing law she committed a felony, even if it was self defense.