Va District Cts & "crimes of domestic violence"

[user]

If you are arrested for anything related to assault or battery where the victim is related to you or someone you live with, here's a REALLY IMPORTANT TIP: do not, repeat, DO NOT sign the "waiver of counsel" form they will shove at you and tell you to sign. You do not have to sign it, you are not required to waive your right to counsel, and you should not, under any circumstances, sign that form!!! There's a place at the bottom of the form where the judge can sign it saying the court rules that you have, by refusing to sign, waived your right to counsel, but that doesn't matter.

Here's why: if you are convicted of a "misdemeanor crime of domestic violence", you lose your right to defend yourself with firearms. Forever. And there's a recent U.S. Supreme Court opinion in which members of the majority expressed the opinion that any assault on a family member (remember, "assault" does not require actual touching) constitutes "violence". That opinion is what's called, "mere dicta", things the court talked about in the opinion that have nothing to do with the holding in the case, and in this case, members of the Court were sort of spouting off from amicus curiae briefs that contained nothing but other people's anti-gun opinions and anecdotal evidence. In other words, not legally binding as precedent.

Nevertheless, the Virginia State Police, acting on instructions from the carpetbagger who's opposed to the individual's right to defend himself, his home and his family from criminal violence, are treating the dicta as if it were law and refusing CHP's and gun sales without there having ever been any actual crime involving force or violence directed against a family member or co-habitant. There is an exclusion in the statute for people who were not represented by counsel and who did not knowingly, voluntarily, and intelligently waive their right to counsel. So DON'T SIGN THE FORM.

 

[va_tazdad]

As always, thank you for continuing to educate us. It is appreciated greatly.

 

[Grapeshot]

Would this not apply in all states?

 

[user]

No idea. Aspects of it, in terms of what federal law says, do, but what I'm focusing on is an element of practice in Virginia district courts (J&DR and GDC) and how the VSP are doing things. I'd hesitate to put this somewhere (1) of general application where I'm not competent to pontificate and (2) where people in Virginia would be less likely to see it.

 

[user]

BTW, to those who have already been convicted (the usual thing is for the prosecutor to tell the defendant, "You don't need a lawyer, this can all be handled today; just agree to take a class and this will all go away.") but who did sign that form, and who are now in the position of not being able to buy a gun, there is a way out. If you go to buy a gun, do the background check form truthfully (answer "yes" when it says, "have you been convicted"), and on the "explanation" page, say, "I didn't knowingly, voluntarily, and intelligently waive my right to counsel." Then, when you get denied, appeal the decision on the ground that you didn't know what that form was about, no one explained it to you, and you were ordered to sign it. If that's true, of course, don't make stuff up, that can get you into real trouble.

 

[jsfrederick]

User, Thank you for this very important information. As always, you are keeping all of us up to date on the deviousness of the sneaky individual who back doored his way into the Governors office.


Sent from my iPad using Tapatalk

 

[peter nap]

User, Thank you for this very important information. As always, you are keeping all of us up to date on the deviousness of the sneaky individual who back doored his way into the Governors office.


Sent from my iPad using Tapatalk

That^

 

[scooter348]

That^

What does this mean?

 

[skidmark]

What does this mean?

Just a different form of "+1"

stay safe.

 

[scooter348]

Just a different form of "+1"

stay safe.

Ah. I got it. Thanks.

 

[UVA_undercover]

If you are arrested for anything related to assault or battery where the victim is related to you or someone you live with, here's a REALLY IMPORTANT TIP: do not, repeat, DO NOT sign the "waiver of counsel" form they will shove at you and tell you to sign. You do not have to sign it, you are not required to waive your right to counsel, and you should not, under any circumstances, sign that form!!! There's a place at the bottom of the form where the judge can sign it saying the court rules that you have, by refusing to sign, waived your right to counsel, but that doesn't matter.

Here's why: if you are convicted of a "misdemeanor crime of domestic violence", you lose your right to defend yourself with firearms. Forever. And there's a recent U.S. Supreme Court opinion in which members of the majority expressed the opinion that any assault on a family member (remember, "assault" does not require actual touching) constitutes "violence". That opinion is what's called, "mere dicta", things the court talked about in the opinion that have nothing to do with the holding in the case, and in this case, members of the Court were sort of spouting off from amicus curiae briefs that contained nothing but other people's anti-gun opinions and anecdotal evidence. In other words, not legally binding as precedent.

Nevertheless, the Virginia State Police, acting on instructions from the carpetbagger who's opposed to the individual's right to defend himself, his home and his family from criminal violence, are treating the dicta as if it were law and refusing CHP's and gun sales without there having ever been any actual crime involving force or violence directed against a family member or co-habitant. There is an exclusion in the statute for people who were not represented by counsel and who did not knowingly, voluntarily, and intelligently waive their right to counsel. So DON'T SIGN THE FORM.

First, I must say I am glad to see this topic being discussed and have some questions and a couple of points Id like to make. I among others feel that the L. Amendment is highly unconstitutional and should be repealed. I will say that this situation does affect me personally as my father is a victim of this ridiculous law from an incident dating back from 1988 when he was 19. After speaking with 2 lawyers, one from the VCDL site, my father was giving the following advice. 1) There is no State Law prohibiting him from possessing a gun cause due to a Misdemeanor A&B. After being told that he went and applied for a CHP and was granted one from the local court. I understand that a CHP does not say he can posses under federal law but only state law. However, he was pulled over last week and the officer simply gave him his CHP back and didn't even write him a ticket for failing to signal. So if our government says Gays should able to have their marriages recognized from state to state with out federal interference. Why not the same for guns?? Also, 2) in Heller vs. US it was decided that gun ownership is an absolute right. So based on the fact that local police in VA do not enforce the L. law and considering Heller vs. US. I feel my father can carry but I know if he travel on federal land or comes across a fed somehow while armed the result may be a criminal charge.

Secondly, there was federal case earlier this year that another lawyer told me could affect the L. ban if ever presented under the right circumstances. A man won a case against the feds involving being banned from gun ownership. He went to a hospital to be mentally evaluated and I believe he was admitted as well. When the L. ban was created there was also included in the bill a system for restoration via the ATF. The same was for people who were considered mentally unsuitable to own guns. Congress defunded this restoration process in 1993 and it has never be funded since. That is why the L. amendment is a lifetime ban and felons may can restore their guns after 5 yrs. in Virginia. One of the primary reasons the man won his case and got his gun rights back was because of the defunded ATF department which created a lifetime ban for him. There has to be something useful in this case to help those under the L. amendment.

Can someone that's actually informed on the L ban particularly Mr Hawes provide an opinion or some insight on the listed above? It seems as though local police and state police only enforce VA gun laws. Such a policy makes getting a gun via FFL impossible but of course a private sell in Virginia doesn't require FFL procedures.

 

[skidmark]

Welcome to OCDO UVA_undercover.

If your user name means what I think it does, I'd like to find out a) if you are aware of the exemption that you are eligible for should you ever fall into this morass, and b) if you are aware of the number of others who are working under that exemption?

State-level LEOs enforce state laws. They might be aware of federal laws that they believe are being violated, in which case they have to refer the matter to the US Attorney to decide if they want to prosecute. The problem I see is that while the SP-65 form dos not ask about "misdemeanor crimes of domestic violence" it does have a statement in the certification section:

I certify that the above answers and answers on the corresponding Federal Firearms Transaction Record (ATF F 4473) form are true and
correct. I understand that I may not receive a firearm if I am prohibited by federal or state law. I understand that the making of a false statement on this form and/or the corresponding federal form is punishable as a felony. I hereby consent to having the transferor (seller) request a criminal history record information check be performed by the Department of State Police about me in connection with this transaction.

that would make it a state law violation if your father were to attempt to purchase a firearm from a FFL.

Fortunately, private sales do not require a background check.

stay safe.

 

[user]

Actually, under the Constitution of the United States, the United States has no law enforcement authority at all. The police power is one of those reserved to the states. That's why, in order to get the FBI created, the agreement had to be that all it would do is investigation. Of course the pressing need to control bootlegging put an end to that theory, and it's been downhill ever since, such that every federal agency seems to have its own police department.

So the idea that local cops can't enforce federal law is very new. Either Virginia is in the United States or it isn't. If it is, then federal law is Virginia law, and unless a specific code section divests state courts of jurisdiction with respect to federal issues, then every county court in the U.S. is a federal court of competent jurisdiction. I've thought it was funny, by the way, that people assume that a local county sheriff in Arizona doesn't have the power to enforce immigration laws.

Now that the United States has arrogated unto itself law enforcement authority, it wants to own it. But it actually has no authority to do so. It's just a matter of the naked exercise of power. Why do they do it? Because they can. What's a constitution among friends, anyway?

 

[Grapeshot]

--snipped--What's a constitution among friends, anyway?

I may have to borrow that

It might have to do with one's definition of friends.

 

[ChristCrusader]

Congress defunded this restoration process in 1993 and it has never be funded since. That is why the L. amendment is a lifetime ban and felons may can restore their guns after 5 yrs. in Virginia. One of the primary reasons the man won his case and got his gun rights back was because of the defunded ATF department which created a lifetime ban for him. There has to be something useful in this case to help those under the L. amendment.

I think that they may have recently voted to restore funding to that dept., but I also think that it only serves to restore rights involving federal cases/charges.

 

[slick84pb01]

Thought I'd add my experience in this matter here: A conviction giving a person a federal firearms disability that is a state level conviction is considered removed when the conviction or disability is removed by the state. For instance: a misdemeanor CDV conviction results in a federal firearms disability, but once pardoned or expunged, by the state, the disability is considered removed by the federal government. I'd have to dig for relevant case law, etc. A federal firearms disability placed due to a federal charge is what the ATF was charged with overseeing, and subsequently not funded essentially making it an unenforced law. I have seen case law relating to the ATF and the lack of funding that essentially found this isn't challengeable because, being defunded, it is considered an unenforced law.

I can look up all these references later if anyone is interested.

 

[user]

Thought I'd add my experience in this matter here: A conviction giving a person a federal firearms disability that is a state level conviction is considered removed when the conviction or disability is removed by the state. For instance: a misdemeanor CDV conviction results in a federal firearms disability, but once pardoned or expunged, by the state, the disability is considered removed by the federal government. I'd have to dig for relevant case law, etc. A federal firearms disability placed due to a federal charge is what the ATF was charged with overseeing, and subsequently not funded essentially making it an unenforced law. I have seen case law relating to the ATF and the lack of funding that essentially found this isn't challengeable because, being defunded, it is considered an unenforced law.

I can look up all these references later if anyone is interested.

That's all consistent with my understanding. However, after twenty years, a conviction for domestic A & B is expunged from the J&DR courts. But the "record" persists; it is a crime for anyone to use expunged information in Virginia, but like, who's going to arrest the Va. State Police for denying a background check application? And once they send the information to NICS, well, that's like a black hole, it ain't never coming out.

 

[slick84pb01]

That's all consistent with my understanding. However, after twenty years, a conviction for domestic A & B is expunged from the J&DR courts. But the "record" persists; it is a crime for anyone to use expunged information in Virginia, but like, who's going to arrest the Va. State Police for denying a background check application? And once they send the information to NICS, well, that's like a black hole, it ain't never coming out.

VAF is the route I was presented post pardon/expungement. NICS will contact whoever initiated the disability to verify and, disability removed, should get the all clear. NICS pin may be a necessity for future purposes. Or a CHP if VA CHP exempts a buyer from the NICS check.

I'm a little outside the VA aspects of this being in SC. It will be interesting to see how the feds and courts treat the new SC law passed this year. It states, with some stipulation, after 3 years of a misdemeanor CDV and upon receipt of a letter stating the relevant information, SLED *shall notify* NICS that a person is no longer prohibited. Creates a situation where the state has obviously restored the right but under the federal act a person should be still prohibited by the conviction.

 

[slick84pb01]

That's all consistent with my understanding. However, after twenty years, a conviction for domestic A & B is expunged from the J&DR courts. But the "record" persists; it is a crime for anyone to use expunged information in Virginia, but like, who's going to arrest the Va. State Police for denying a background check application? And once they send the information to NICS, well, that's like a black hole, it ain't never coming out.

Is it expunged or pardoned? Expunged means there is no longer a record. While there may be a record of the expungement, there should, in essence, be no record of a charge. Running a background check through a state agency may let you see exactly what is showing up.

 

[UVA_undercover]

I think that they may have recently voted to restore funding to that dept., but I also think that it only serves to restore rights involving federal cases/charges.

I think there is bill proposed to do so and if it makes into law then it must include restoration for L law as well.