ILNews

7th Circuit upholds gun ban for domestic violence offender

Back to TopE-mailPrintBookmark and Share

A Wisconsin man who pled guilty to possessing firearms after he was convicted of a domestic battery misdemeanor is not allowed to have those firearms, even though he argued they were used for hunting, the 7th Circuit Court of Appeals ruled Tuesday following an en banc oral argument that took place May 20.

The latest opinion for United States of America v. Steven Skoien, No. 08-3770, appealed from the United States District Court for the Western District of Wisconsin, starts by stating that Steven Skoien had been found guilty of domestic violence misdemeanors on two separate occasions, and that he pled guilty to having guns even though he was not allowed to own them under the terms of his probation.

Statute 18 USC 922 (g) (9), which is a result of The Brady Handgun Violence Prevention Act (often called the Brady Bill), defines who can or cannot have guns.

That statute includes anyone who has been convicted of a felony; those who have been adjudicated to be mentally ill; someone who has had a misdemeanor conviction of domestic violence where the defendant was an intimate partner, parent, guardian, or someone who had a child with the victim; and those who are subject to a protective order.

In its Nov. 18, 2009, decision following a hearing in April 2009, the court vacated and remanded the District Court’s decision that he could not have a gun because of the past misdemeanor convictions, stating the U.S. government didn’t make a strong enough case for prohibiting Skoien from ever possessing firearms.

During the most recent hearing, one of the arguments made by the defense counsel was that the statute had only existed for about 15 years, and that it was weak because of how it was passed. During the argument, judges questioned why it mattered how a bill was passed as long as it was indeed passed and signed into law.

The defense also argued that those who are excluded from owning guns under the statute due to domestic violence misdemeanors would find it nearly impossible to again own guns.

Chief Judge Frank Easterbrook wrote in the July 13 opinion, “… some categorical disqualifications are permissible: Congress is not limited to case-by-case exclusions of persons who have been shown to be untrustworthy with weapons, nor need these limits be established by evidence presented in court.”

The opinion also addressed that because Skoien had a history of recidivism for domestic violence misdemeanors, he was “poorly situated” to argue “the statute creates a lifetime ban for someone who does not pose any risk of further offenses.”

The opinion also stated that even though Skoien’s crimes were misdemeanors, they would be considered felonies if committed against a stranger, which was why the statute included domestic violence misdemeanants among those who could not own firearms.

“The belief underpinning §922(g)(9) is that people who have been convicted of violence once—toward a spouse, child, or domestic partner, no less—are likely to use violence again. That’s the justification for keeping firearms out of their hands, for guns are about five times more deadly than knives, given that an attack with some kind of weapon has occurred,” Chief Judge Easterbrook wrote.

Judge Diane S. Sykes, who was on the panel for the November decision along with Judges William J. Bauer and John Daniel Tinder, and wrote that majority opinion, dissented, writing the government should need to make a stronger case for imprisoning Steven Skoien for exercising his Second Amendment rights.

Indiana Coalition Against Domestic Violence Legal Director Kerry Hyatt Blomquist previously told Indiana Lawyer she had followed this case because she knows of similar situations in Indiana courts where someone has been granted a protective order, which is included in the Brady disqualifiers, and then the judge questioned whether he needed to restrict the respondent from having a gun during hunting season.

She has also had clients where the victim had proof that even though the abuser was Brady disqualified, he still obtained a gun.
 

ADVERTISEMENT

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  2. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  3. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  4. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  5. I totally agree with John Smith.

ADVERTISEMENT