Good ole Groucho Marx once said, “When you’re in jail, a good friend will be trying to bail you out.  A best friend will be in the cell next to you saying, ‘Damn, that was fun’.”  I, for one, believe there is a lot of truth to that quote!  However, I don’t think there are too many friends out there that would want to try to get back into jail after being released.  That my friends is what Daniel McCarthy tried to accomplish over the course of five years in order to complete his jail sentence.

In State v. McCarthy, 2016-Ohio-1249, Dan McCarthy started his night off right by driving while intoxicated, alluding police in his vehicle, and crashing into a residence.  Due to McCarthy’s night on the town, he was cited for OVI (Third offense within six years), driving under a suspended license, hit/skip, and failure to control.  Through plea negotiations, McCarthy pled guilty to the OVI and was sentenced to 365 days in jail with 144 days of jail suspended.  In addition, McCarthy was placed on 60 months of community control, fines, and restitution.

And that was that!  Nothing crazy and nothing out of the ordinary…..yet.  On McCarthy’s 18^th day of his 221 day jail bit, the jailer walked up to McCarthy’s jail cell and told him he was free to go.  Well, sort of free to go.  Due to jail overcrowding, McCarthy was furloughed and had to keep checking back with the jail to see if they could house him to finish his sentence.  McCarthy tried for over a year to serve the remainder of his jail sentence, but the jailer kept turning McCarthy away due to jail overcrowding.

Probably saying the hell with it, McCarthy moved on in his life and worked his community control sanctions.  In fact, McCarthy 1) successfully completed a drug court program; 2) completed inpatient and intensive outpatient rehabilitation programs; 3) consistently and timely reported to the probation department as scheduled; 4) paid all fines and court costs; 5) resolved restitution; and 6) maintained his sobriety and strengthened family relationships.  On top of all of the above, McCarthy also owned a successful business with several employees.  All in all, McCarthy was doing exactly what the court wanted him to complete…except that jail sentence!

Four years later, good ole McCarthy gets a notice in the mail saying that he is in violation of his probation because he has failed to execute his jail sentence.  Whiskey Tango Foxtrot over!  McCarthy shows up to court and raised the bullshit flag as part of his defense.  Not wanting to hear it, the trial court ordered McCarthy to finish his jail sentence.  The trial court, however, stayed McCarthy’s probation violation to allow him to appeal the decision.

Looking to State v. Zucal, 82 Ohio St.3d 215, the appellate court sided with McCarthy.  In Zucal, the Ohio Supremes found that it is “manifestly unfair, if not unconstitutional, to subject appellant, as well as others similarly situated, to restraints on [his] liberty beyond the maximum permissible period of probation.  Such a lengthy delay is unlawful deprivation of appellant’s liberty.  There comes a point in time when such a delay becomes unreasonable and fails to comport with traditional notions of fair play and substantial justice.”

Speaking of point in time, the Ohio Supremes went on to hold that, “convictions involving misdemeanor offenses, a delay in execution of sentence resulting from jail overcrowding that exceeds five years from the date that sentence is imposed is unlawful.”

But McCarthy’s probation violation was four years later not five years later…right?!?  That is correct, but by the time McCarthy’s appeal was finalized five years had elapsed.  Thus, the appellate court held that McCarthy’s sentenced was vacated.

McCarthy’s attorney deserves a high-five and a fist bump for making sure McCarthy passed that five year threshold.  Well played sir!

A little unknown fact about General William Tecumseh Sherman is that his favorite weapon of choice during the Civil War was a stun gun.  Hell that is how the Yankees took out that Rebel General by the name of Stonewall Jackson.  A Stun gun straight to the man’s chest.

Okay that is complete bullshit and made up history.  However, if said by Donald Drumpf I imagine a vast majority of Americans would believe it.  Alright, moving on, let’s talk about how the Supreme Judicial Court of Massachusetts felt that owning a stun gun is not protected by the Second Amendment of the U.S. Constitution because stun guns were not in common use at the time the Second Amendment was enacted.  I can hear Ole Tecumseh Sherman rolling in his grave over this one.

In Caetano v. Massachusetts, 577 U.S. ___(2016), Jaime Caetano, like too many women in this country, found herself fearing for her life due to an abusive boyfriend.  Caetano took out multiple restraining orders against her boyfriend, but that did not stop the abuse and at one point the abuse landed her in the hospital.  Due to the abuse, Caetano’s friend offered her a stun gun for self-defense.

Leaving work one evening, Caetano’s boyfriend confronted her and began to scream at Caetano.  This jackass was upset because Caetano was working and not tending to their children.   Being completely over the jackass, Caetano produced her stun gun and told her boyfriend that she will use the stun gun on him if he did not leave her alone.  Being the big strong man he claimed to be, Caetano’s boyfriend took off with his tail between his legs.

A few short days or weeks later, Caetano was stopped by police officers regarding a shoplifting incident.  Caetano was accused of being an accomplice to the shoplifting.  When approached by the police officers, Caetano consented to a search of her purse.  The police officers found no evidence of shoplifting, but found Caetano’s stun gun.  Caetano was subsequently arrested for violating a Massachusetts’ law that prohibits possession of an electrical weapon.  Caetano moved to have the charge dismissed on Second Amendment grounds, but was ultimately denied.  The case eventually made its way up to the Supreme Judicial Court.  Supreme Massachusetts Demi-Football God Tom Brady, writing for the majority, held that a stun gun is not the type of weapon that is eligible for Second Amendment protection.*

The Supreme Judicial Court of Massachusetts found three explanations to support its holding that the Second Amendment does not extend to stun guns.  Those explanations are below.

1)         Stun guns are not protected because they “were not in common use at the time of the Second Amendment’s enactment.”

2)        Stun guns are unusual because they are a thoroughly modern invention.

3)        Stun guns are not readily adaptable to use in the military.

In their per curiam opinion, the U.S. Supremes opened up with “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”  District of Columbia v. Heller, 544 U.S. 570 (2008).

Using Heller, the U.S. Supremes reject the Supreme Judicial Court of Massachusetts’ three explanations.  The Court held that the first explanation is inconsistent with Heller’s clear statement about the Second Amendment.  Moving on to the second explanation, the Court found that equating “unusual” with “in common use at the time of the Second Amendment’s enactment,” is inconsistent with Heller.  Lastly, the Court found that Heller rejected the proposition “that only those weapons useful in warfare are protected.”  Based on the above reasoning, the U.S. Supremes vacated the judgment and remanded the case back to the lower court for further proceedings.

Backing up a bit, a per curium opinion is traditionally used for a case that is uncontroversial, obvious, and did not require a substantial opinion.  Basically, “Hey Supreme Judicial Court of Massachusetts, did you even read the Heller decision?!? It is real simple, just follow it and you won’t have this mess!”

Justice Alito and Justice Thomas, in their concurring opinion, however, felt that the Court did not go far enough.  In fact, both Justice Alito and Justice Thomas seemed to go out of their way to chastise the Supreme Judicial Court of Massachusetts for defying Heller and allowing Caetano’s conviction stick.  In addition, I felt that they were calling out the other Justices for not beefing up the Heller decision to give further protection to individuals who want to bear arms.

Justice Alito wrote, “the Court’s grudging per curiam now sends the case back to the same court.  And the consequences for Caetano may prove more tragic still, as her conviction likely bars her from ever bearing arms for self-defense.”  Justice Alito went on to write, “If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than keeping them safe.”

Although Justice Alito and Justice Thomas wanted more from their Court, you and General Sherman can rest easy knowing that stun guns, under Heller, are protected by the Second Amendment.

*          I don’t even know if Tom Brady can read let alone write in complete sentences.  However, I am pretty sure that he is not on the Supreme Judicial Court of Massachusetts.  Just a joke…I still don’t like the man though.

Just a few short days ago, I wrote a beautiful blog article entitled Federal Gun Control Act And A Misdemeanor Crime Of Domestic Violence: How A Plea Bargain From A Domestic Violence Charge to A Non-Domestic Charge Still Carries A Federal Weapons Ban.  And let me tell you something about writing blog articles…I went to UCLA and UD Law School.  I’m very highly educated.  I know words, I have the best words!  Sorry, I couldn’t resist a good Donald Drumpf jab.  What an ass.  That is right Donald!  I called you an ass!  And now, I will wait patiently for his lawsuit against me.

Alright, back to the mission at hand.  In the above mentioned blog article, I discussed the definition of a “misdemeanor crime of violence” under 18 U.S.C. § 921 (a)(33)(A) and how it relates to a lifetime gun ban for domestic violence charges and plea bargains.  As a quick refresher, the Court in U.S. v. Hayes, 555 U.S. 415, found:

IF

1)  The misdemeanor offense has, as an element, the use or attempted use of physical force, or the threatened use of a deadly gun;

AND

2)  Is committed by a person who has a specified domestic relationship with the victim

THEN

The misdemeanor offense has the element of domestic violence.

To sum it up, a misdemeanor offense has the element of domestic violence that will lead to a lifetime gun ban under the Federal Gun Control Act.

After this decision came down, defense attorneys scrambled to find ways to avoid having their clients fit the definition of a “misdemeanor crime of violence.”  One argument, out of Tennessee, stated that the crime in question must have an element of “use of physical force.” Loving a good gun rights battle, the United States Supreme Court took on another case dealing with the Federal Gun Control Act and “misdemeanor crimes of violence.”  In U.S. v. Castleman, 572 U.S. ____ (2014), the U.S. Supremes were tasked with defining “use of physical force.”

In 2001, a Tennessee man, by the name of James A. Castleman, was charged and convicted of having “intentionally or knowingly caused bodily injury to” the mother of his child.  Seven years later, the fuzz learned that Castleman was selling firearms on the black market.  I imagine the black market in Tennessee is asking your neighbor if you can by a gun.  In any event, Castleman was indicted on two counts of violating 18 U.S.C. § 922(g), Federal Gun Control Act.

Thinking this Drumpfed up charge was complete horse shit, Castleman moved to have the indictment dismissed because his conviction from 2001 did not have the element of “the use of physical force.”  Agreeing with Castleman, the District Court found that the use of physical force must entail violent contact with the victim.  The court further held that Castleman’s conviction cannot qualify as a “misdemeanor crime of violence” because one can cause bodily injury without violent contact.  The court tossed out the idea of “deceiving a victim into drinking a poisoned beverage.”  That would cause bodily injury without physical contact.

The U.S. Court of Appeals for the Sixth Circuit got ahold of this case and affirmed the lower court’s ruling.  Applying Johnson v. U.S., 559 U.S. 133, (holding 18 U.S.C. § 924 requires violent force), the court held that Castleman’s conviction did not qualify as a “misdemeanor crime of domestic violence” because Castleman could have been convicted for causing a slight, non-serious physical injury with conduct that cannot be described as violent.

Justice Sotomayor, writing for the majority, opened up with “well ladi-frickin-da Sixth Circuit!”  Justice Sotomayor followed that up with “it is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well settled meaning of the common-law terms it uses.” Sekhar v. U.S., 570 U.S., ____ (2013).  And that tidbit was followed up with, “seeing no other indication here, we hold that Congress incorporated the common-law meaning of ‘force’ – namely, offensive touching – in § 921(a)(33)(A)’s definition of a ‘misdemeanor crime of domestic violence.’”  OUCH!  NOT GOOD!

After dissecting Johnson v. U.S., and looking at the words “violent” and “violence,” the Court states that domestic violence is not merely a type of violence; it is a term of art encompassing acts that one might not characterize as violent in nondomestic contexts.  The Court also looked to the Office on Violence Against Women’s domestic violence definition, which defined physical forms of domestic violence as hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling.  The Court went on to state that “if a seemingly minor act(s) like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a ‘misdemeanor crime of violence.’”

With all of that said, the U.S. Supremes held that “the requirement of ‘physical force’ is satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction.”

Listen, the feds are very serious about stripping gun rights away from people who are convicted of misdemeanor crimes of violence.  As I stated in my last blog article, you can avoid a lifetime ban by not hitting your loved one!  And according to Castleman, hit (physical force) means offensive touching!

Domestic violence is never an easy subject to talk about or, in my line of work, to defend.  To be honest, there really is no run of the mill domestic violence case.  Some domestic violence cases have no defense and I just work out the best possible deal for my client.  For other domestic violence cases, after reading the police report and witness statements, I ask myself “how the hell did this person get charged with domestic violence?”

Or my favorite scenario, a responding police officer charges both individuals involved with the incident with domestic violence.  Then when both accused individuals show up to their respective arraignments, the prosecutor will approach the less aggressive of the two (no idea how that is accomplished), and ask if he/she would be willing to testify against the other in exchange for dismissing their domestic violence charge.

No matter the scenario or your feelings surrounding domestic violence, the bottom line is that a domestic violence conviction carries with it severe collateral consequences.  For one, domestic violence is an enhanceable offense.  Meaning the first domestic violence charge and conviction is a misdemeanor, but a second charge of domestic violence will land you in felony court.  The collateral consequence that I will focus on in this blog article, however, is the lifetime gun ban a domestic violence conviction carries under the federal Gun Control Act of 1968.

Before diving into legal arguments, I feel a little background on the subject matter might be helpful.  The Gun Control Act of 1968, 18 U.S.C. § 921, was enacted to prohibit the possession of firearms by any person convicted of a felony.  Some 28 years later, Congress extended this prohibition to include persons convicted of a “misdemeanor crime of domestic violence,” under 18 U.S.C. § 922(g)(9).  During the debate over § 922(g)(9),  Senator Wellstone stated that “the only difference between a battered woman and a dead woman is the presence of a gun.”  142 Cong. Rec. 22986 (1996).  Senator Lautenberg argued that the current laws were not keeping firearms out of the hands of domestic abusers because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.  Id. At 22985.  The United States Supreme Court in U.S. v. Hayes, which will be discussed later, stated that “by extending the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence, proponents of § 922(g)(9) sought to close this dangerous loophole.” 555 U.S. 415.

Sounds good to me!  If you are convicted of misdemeanor domestic violence you can’t own a gun….right?  I wish it was that simple, but it is not.  Let’s take a look 18 U.S.C. § 922(g)(9) and 18 U.S.C. § 921(a)(33)(A).

18 U.S.C. § 922(g)(9) makes it “unlawful for any person…who has been convicted in any court of a misdemeanor crime of domestic violence…to possess in or affecting commerce, any firearm or ammunition.”

18 U.S.C. § 921 (a)(33)(A) states:

“The term ‘misdemeanor crime of violence’ means and offense that –

“(i) is a misdemeanor under Federal, State, or Tribal law; and

“(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly gun, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”

Reading the above definition of “misdemeanor crime of violence” I am still on board that a domestic violence conviction means a lifetime ban for owning a firearm.  Well what about criminal charges that involves a domestic relationship, but are not filed under a domestic violence statute?  For example, how about simple assault?  As you can imagine, federal courts began to issue decisions of their interpretation of “misdemeanor crime of violence” and these decisions had conflicting views.  Not wanting the lower courts to have all of the fun determining gun rights, the United States Supreme Court decided to step in with U.S. v. Hayes.

A West Virginia man, by the name of Randy Edward Hayes, received a knock on his door one evening by the local police for a 911 call reporting domestic violence.  Hayes, being the proud man he is, allowed the officers to search his home.  The officers discovered a rifle and various other firearms.  A West Virginia man with firearms….shocking.  Unfortunately for Hayes, he had a 1994 conviction for battery in violation of West Virginia law.  The victim of the battery was Hayes’ then-wife; a person who shared a child in common with Hayes and who was cohabitating with him as a spouse.  In 2005, Hayes was indicted by a federal grand jury for being in violation of § 922(g)(9).  The indictment identified Hayes’ predicate misdemeanor crime of violence his 1994 battery conviction.

Raising the bullshit flag, Hayes had a problem with the federal government telling him that not only can he not have his guns, but he is now facing a federal charge that carries a possible 10 year bit in federal prison.  West Virginia would not forgive a man who is not willing to stand up against the federal government, so Hayes took his case up through the courts and eventually had his say with the U.S. Supremes.

Hayes moved to dismiss his indictment under § 922(g)(9), arguing that it only applies to persons previously convicted of an offense that has an element of a domestic relationship between the aggressor and victim.  The statute in question, Hayes argued, was a generic battery proscription and not a law designating a domestic relationship between an offender and a victim as an element of the offense.

Justice Ginsburg, writing for the majority, was not picking up what Hayes was putting down.  I imagine Justice Ginsburg thoughts were something like this, “Mr. Hayes, what you’ve just said is one of the most insanely idiotic things I have ever heard.  At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought.  Everyone in this room is now dumber for having listened to it.  I award you no points, may God have mercy on your soul.”  Rumor has it that Justice Ginsberg is a Billy Madison fan.

The U.S. Supremes held that “the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.”  After conducting some fancy statutory interpretation the U.S. Supremes came up with a somewhat two part test to see if an offense falls under a “misdemeanor crime of domestic violence.”  This test is below:

1)  The misdemeanor offense has, as an element, the use or attempted use of physical force, or the threatened use of a deadly gun;

AND

2)  Is committed by a person who has a specified domestic relationship with the victim

THEN

The misdemeanor offense has the element of domestic violence.

The U.S. Supremes went on to say, “to obtain a conviction in a § 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant’s current or former spouse or was related to the defendant in another specified way.  But the relationship, while it must be established, need not be denominated an element of the predicate offense.”

The Court then went on to note that they “find it highly improbably that Congress meant to extend § 922(g)(9)’s firearm ban only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense.”

With all of that said, federal courts have used Hayes to find that a charge of domestic violence amended to disorderly conduct, assault or any other criminal charge produces a lifetime gun ban, under § 922(g)(9), for a defendant.

So if an amended charge of domestic violence to a non-domestic violence charge is no bueno, how can a defendant avoid a lifetime gun ban?  The defendant will either have to receive a not guilty verdict, have the domestic violence charge dismissed, or have the domestic violence charge dismissed and be re-charged for a new offense.

For example, the defendant has his domestic violence charge dismissed and is re-charged under Ohio Revised Code 2917.11, Disorderly Conduct.  Now even before accepting this plea bargain it is very important that the defendant has the prosecutor specify what section of the R.C. 2917.11 he is pleading guilty to in court.

R.C. 2917.11 (A)(1) states that “No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: Engaging in fighting, in threatening harm to persons or property, or in a violent or turbulent behavior.”

I believe that it can be easily argued that R.C. 2917.11 can bring about a lifetime gun ban because there is an element of the use or attempted use of physical harm (fighting) and there defendant had a specified domestic relationship with the victim (remember this new charge is stemming from the original domestic violence charge).  So R.C. 2917.11 (A)(1) does not work.

R.C. 2917.11 (A)(2) might work.  That subsection states, “Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person.”

Even so, I still think that having the domestic violence charge dismissed and pleading to a new charge under R.C. 2917.11 (A)(2), might not protect a person from a lifetime gun ban.  The U.S. Attorney’s office could find some way to link the dismissed domestic violence charge back to the new disorderly conduct.

I personally believe that the only thing that will save a person from a lifetime gun ban under § 922(g)(2) is to receive a not guilty verdict or an outright dismissal of the domestic violence charge.

As a side note, your loved ones are just that…loved ones!  There is no need to raise your hand and strike your wife, husband, boyfriend, girlfriend, or child!  We, as humans, have the capability to talk and to talk in a non-abusive manner.  I get that life can become difficult, relationships can become heated, and that home life is not the greatest sometimes, but violence is never the answer.  There is nothing wrong with walking away from the situation in order to cool off.  There are plenty of agencies that provide counseling to help get through those difficult times.  Use those agencies!