In June of 2008, the U.S. Supreme Court issued a decision in the case of District of Columbia v. Heller. This was a gun control case with broad, but yet unknown implications for Americans and gun ownership, possession and storage. The essential holding of that case is that the Second Amendment states a personal right of citizens to own and bear arms, not a societal one or a state militia one. The decision also found that forcing citizens to disassemble or trigger lock a gun was a denial of that right as well.
The decision bears the marks of being more political than legal in its reasoning and holdings. For example, the decision states as a given, without supporting the statement that making someone use a trigger lock is an outright denial of the right to own and bear arms. It is unknown what they based that broad statement on, because they cited no facts or evidence in the record that supported that claim. How many seconds does it take to unlock a trigger locked handgun? Suppose I keep my handgun in a combination locked safe? I can get it open, load and chamber a round in less than four seconds. How fast does gun access have to be to satisfy Second Amendment rights?
Do I have to be allowed to hang it loaded around my neck to satisfy the Constitution? Where did they get the idea that it's the same as having no gun to have to spend four seconds to be ready to fire, especially if the safety of thousands of children in households with guns is at stake?
Another troubling aspect of this case is: where is it going to lead next? Since it is now made clear that the right to "Keep and bear arms" is a personal right of Americans, where do cities and states get off banning the carrying of concealed weapons? Look for an ever expanding series of cases defining gun owner rights. This Heller decision is a floodgate. We are awaiting the floods to start as appellate cases work their way upstream. When every gun owner is allowed to slip a .25 caliber semi into his coat pocket, look for mushrooming numbers of accidental shootings as kids get a hold of them.
Big changes are in the wind. I am not as anti-gun as this blog entry may sound. I am in favor of private citizens owning guns. But consider this: though assaults and robberies may well decrease when law abiding citizens all carry guns, accidental shootings will skyrocket as these guns are more easily available to children, mentally ill people, and easily accessible for criminals to steal.
I'm not anti gun. I am anti-irresponsibility. I really don't think that the two seconds fewer it will take to arm your self with NO gun control is really worth all the deaths and injuries it will bring.
Tuesday, February 17, 2009
Thursday, February 5, 2009
Factual Innocence Petitions and Civil Court Files
A very hot area of criminal law right now is expungements and Petitions for Factual Innocence (PFI). The former comes under California Penal Code Sec. 1203.4 and the latter is under P.C. Sec. 851.8. Expungement is available without too much argument to anyone convicted of crime and who successfully completes probation. It's not applicable to people sentenced to prison though.
The PFI is available to anyone who was even arrested, whether or not charges were ever filed by the D.A. In this tight job market, people are VERY interested in "cleaning up" their "record" to the maximum extent possible. The difference between a PFI and an expungement is of course, that in the former, you have to BE INNOCENT. So you need to be either a) arrested but not charged; b) charged but have charges dismissed; or c) tried and acquitted to qualify for a PFI. Even then you still have to convince a judge that you were ACTUALLY innocent, not just that you "beat the rap". If you succeed in the PFI, then they seal your arrest and court records for three years and then destroy them. That's as good as it gets.
You can find much more detail on this kind of relief at http://lawyer-expungement.com, but the purpose of this blog entry is to discuss a new issue that is yet unresolved in the law.
What if your girlfriend gets real mad at you and calls 911 and falsely accuses you of pushing her down. No injury. No evidence, but just her word. The police come and arrest you. The next morning (on the advice of the police) she goes to a Domestic Violence Counsellor who ushers her into Family Court to get a civil restraining order. Two days later, she cools down and realizes this thing has gotten way out of proportion and wants to drop everything.
Of course, the D.A. will NOT drop it. Your girlfriend cannot order them to do so, and because women frequently want to "drop charges" against true abusers, the D.A. will keep prosecuting. But eventually, with her refusal to testify or co-operate, the D.A. is forced to dismiss the case. This is not uncommon at all. All is well? Well, not quite. If you happen to work for a civilian military contractor and need a good security clearance, or you are a youth counsellor at your church, the arrest could be very problematic. Or suppose you are engaged now to another woman, and you'd really like her parents NOT to know about that false complaint?
So what you do is to bring a PFI, and suppose you are successful. Problem solved? Once again, not quite. Now comes the tricky part. That pesky Family Court Restraining Order docket is still on file in the Superior Court clerk's civil division with all its nasty accusations of "brutality", and guess what? They index those cases under YOUR NAME. Anyone can find it if they wish to look. Another snag: Even if you work for yourself, many businesses will check into the background of people they are considering contracting with and will check for civil lawsuits. So is "Lipstick and Blouses Boutique" going to contract with you to do their computer upgrades if they find that?
Here is the problem. The Court order finding you factually innocent and ordering your record sealed and destroyed does NOT apply to civil court files. At least, if you read the PFI statute, no mention is made of it.
I believe that sealing and destroying that Family Court File may be implicitly covered by the Factual Innocence law, and I am working on doing so in a test case right now. My research into the California Legislature's historical records when they passed and amended the PFI statute, shows that their goal was quite broad in wanting to protect the innocent arrestee's job, career, social status and reputation, so sealing civil court records that are based on the exact same event as the sealed criminal records makes good sense.
What after all, is the point of the Court Clerk putting a big "SEALED" sticker on your criminal file with his right hand and with his left hand showing the exact same information in the civil docket to anyone who asks? What kind of Factual Innocence Relief is that? What is the State of California's right and what is their interest in maintaining in public files, accusations against you which have been proved FALSE?
We're going to find out.
Brian Dinday
The PFI is available to anyone who was even arrested, whether or not charges were ever filed by the D.A. In this tight job market, people are VERY interested in "cleaning up" their "record" to the maximum extent possible. The difference between a PFI and an expungement is of course, that in the former, you have to BE INNOCENT. So you need to be either a) arrested but not charged; b) charged but have charges dismissed; or c) tried and acquitted to qualify for a PFI. Even then you still have to convince a judge that you were ACTUALLY innocent, not just that you "beat the rap". If you succeed in the PFI, then they seal your arrest and court records for three years and then destroy them. That's as good as it gets.
You can find much more detail on this kind of relief at http://lawyer-expungement.com, but the purpose of this blog entry is to discuss a new issue that is yet unresolved in the law.
What if your girlfriend gets real mad at you and calls 911 and falsely accuses you of pushing her down. No injury. No evidence, but just her word. The police come and arrest you. The next morning (on the advice of the police) she goes to a Domestic Violence Counsellor who ushers her into Family Court to get a civil restraining order. Two days later, she cools down and realizes this thing has gotten way out of proportion and wants to drop everything.
Of course, the D.A. will NOT drop it. Your girlfriend cannot order them to do so, and because women frequently want to "drop charges" against true abusers, the D.A. will keep prosecuting. But eventually, with her refusal to testify or co-operate, the D.A. is forced to dismiss the case. This is not uncommon at all. All is well? Well, not quite. If you happen to work for a civilian military contractor and need a good security clearance, or you are a youth counsellor at your church, the arrest could be very problematic. Or suppose you are engaged now to another woman, and you'd really like her parents NOT to know about that false complaint?
So what you do is to bring a PFI, and suppose you are successful. Problem solved? Once again, not quite. Now comes the tricky part. That pesky Family Court Restraining Order docket is still on file in the Superior Court clerk's civil division with all its nasty accusations of "brutality", and guess what? They index those cases under YOUR NAME. Anyone can find it if they wish to look. Another snag: Even if you work for yourself, many businesses will check into the background of people they are considering contracting with and will check for civil lawsuits. So is "Lipstick and Blouses Boutique" going to contract with you to do their computer upgrades if they find that?
Here is the problem. The Court order finding you factually innocent and ordering your record sealed and destroyed does NOT apply to civil court files. At least, if you read the PFI statute, no mention is made of it.
I believe that sealing and destroying that Family Court File may be implicitly covered by the Factual Innocence law, and I am working on doing so in a test case right now. My research into the California Legislature's historical records when they passed and amended the PFI statute, shows that their goal was quite broad in wanting to protect the innocent arrestee's job, career, social status and reputation, so sealing civil court records that are based on the exact same event as the sealed criminal records makes good sense.
What after all, is the point of the Court Clerk putting a big "SEALED" sticker on your criminal file with his right hand and with his left hand showing the exact same information in the civil docket to anyone who asks? What kind of Factual Innocence Relief is that? What is the State of California's right and what is their interest in maintaining in public files, accusations against you which have been proved FALSE?
We're going to find out.
Brian Dinday
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