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7th Circuit upholds gun ban for domestic violence offender

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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.
 

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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