The Simmons Amendment: probation before judgment

[ddeanjohnson]

UPDATED: The Simmons Amendment: probation before judgment

SECOND-DAY UPDATE: The House reached agreement on an amendment that revised the Simmons Amendment so that it would not apply to PBJs that are expunged; I have incorporated the new language into the material that appears below. However, the House rejected a second amendment that would have required judges to warn defendants in the future that imposition of a PBJ, for one of the crimes covered by the Simmons Amendment, will result in firearms disqualification.

FIRST-DAY UPDATE: During the first day of House floor consideration of SB 281, April 2, the House rejected an amendment to make the Simmons Amendment non-retroactive, and to require that in the future judges advise defendants in advance that imposition of Probation Before Judgment, for any of the crimes covered by the Simmons Amendment, will result in a loss of all firearms rights. Therefore, it now seems clear that the Simmons Amendment is retroactive.

There has been a lot of interest on this forum in the Simmons Amendment, offered by Delegate Luiz Simmons (D-Montgomery), dealing with "probation before judgment," that was added to SB 281 at the Good Friday committee markup, in a vote that split both parties on the committee. The language of the Simmons Amendment is now available, but in order to understand it, some context is necessary.

The Simmons Amendment would disqualify from acquiring or possessing firearms (handgun, rifle, or shotgun) those persons who have received a "probation before judgment" (PBJ) for certain crimes. It appears to me that this disqualification would apply whether the PBJ was imposed in the past or in the future. During debate, Simmons said that it would not apply to a PBJ that was later expunged, which he said the person can apply for after three years (but it is not always granted). I am not an attorney and I will defer to the lawyers with experience in this area for more detailed discussion of how this would work, if the Simmons Amendment is enacted.

Under current Maryland law, a person who has been "convicted of a disqualifying crime" may not purchase or possess a firearm (handgun, rifle, or shotgun). He is also specifically barred, not surprisingly, from holding a firearms' dealers license. The current law defines "disqualifying crime" as any one of the following: "(1) a crime of violence; (2) a violation classified as a felony in the State; or (3) a violation classified as a misdemeanor in the State that carries a statutory penalty of more than 2 years." (There are other disqualifications under current law, as well, but this is the one that Simmons is expanding.)

The current law defines "crime of violence" as follows:

(c) Crime of violence. -- "Crime of violence" means:

(1) abduction;

(2) arson in the first degree;

(3) assault in the first or second degree;

(4) burglary in the first, second, or third degree;

(5) carjacking and armed carjacking;

(6) escape in the first degree;

(7) kidnapping;

(8) voluntary manslaughter;

(9) maiming as previously proscribed under former Article 27, § 386 of the Code;

(10) mayhem as previously proscribed under former Article 27, § 384 of the Code;

(11) murder in the first or second degree;

(12) rape in the first or second degree;

(13) robbery;

(14) robbery with a dangerous weapon;

(15) sexual offense in the first, second, or third degree;

(16) an attempt to commit any of the crimes listed in items (1) through (15) of this subsection [the list above]; or

(17) assault with intent to commit any of the crimes listed in items (1) through (15) of this subsection [the list above] or a crime punishable by imprisonment for more than 1 year.

The Simmons Amendment would add the following new language to the law:

(1) "CONVICTED OF A DISQUALIFYING CRIME" INCLUDES: (1) A CASE IN WHICH A PERSON RECEIVED PROBATION BEFORE JUDGMENT FOR A CRIME OF VIOLENCE; AND (II) A CASE IN WHICH A PERSON RECEIVED PROBATION BEFORE JUDGMENT IN A DOMESTICALLY RELATED CRIME AS DEFINED IN §6-233 OF THE CRIMINAL PROCEDURE ARTICLE.

(2) "CONVICTED OF A DISQUALIFYING CRIME" DOES NOT INCLUDE (I) A CASE IN WHICH A PERSON RECEIVED A PROBATION BEFORE JUDGMENT FOR ASSAULT IN THE SECOND DEGREE; OR (II) THAT WAS EXPUNGED UNDER TITLE 10, SUBTITLE 1 OF THE CRIMINAL PROCEDURE ARTICLE.​

To understand this language, you must also have the language of Criminal Procedure Article § 6-233, so here it is:

Domestically related crimes

(a) "Domestically related crime" defined. -- In this section, "domestically related crime" means a crime committed by a defendant against a victim who is a person eligible for relief, as defined in § 4-501 of the Family Law Article, or who had a sexual relationship with the defendant within 12 months before the commission of the crime.

(b) Finding by court; burden of proof. --

(1) If a defendant is convicted of or receives a probation before judgment disposition for a crime, on request of the State's Attorney, the court shall make a finding of fact, based on evidence produced at trial, as to whether the crime is a domestically related crime.

(2) The State has the burden of proving by a preponderance of the evidence that the crime is a domestically related crime.

(c) Record of the court. -- If the court finds that the crime is a domestically related crime under subsection (b) of this section, that finding shall become part of the court record for purposes of reporting to the Criminal Justice Information System Central Repository under § 10-215 of this article.

 

[madness3120]

Interesting... Thanks

 

[Alex]

Thanks for the write up! Inquiring minds wanted to know! Any guesses on the likelihood of this making it in the final bill? Seems from first glance not to have a whole lot of support.

 

[ddeanjohnson]

Thanks for the write up! Inquiring minds wanted to know! Any guesses on the likelihood of this making it in the final bill? Seems from first glance not to have a whole lot of support.

If my notes on the committee markup are correct, it passed the joint committee 28-15, despite strong objections from the Judiciary Chairman Vallario. The usual ideological divisions broke down on this amendment more than any other amendment offered during the eight-hour session. The same thing may well happen on the House floor, in which case it will stay in the bill that passes the House. But the bill passed by the Senate contains no such provision, so in the conference committee, your guess is as good as mine.

 

[KD999]

But shouldn't the fact that the judge giving a PBJ has actually reviewed the facts of the case and determined not to convict count for something? Who cares what the original charges were if it was determined an individual should NOT be found guilty? I think the list of crimes are disturbing enough for people to overlook the fact of what a PBJ means and what it says about the details of the case. I just don't like anything that doesn't allow for the facts and cases to be adjudicated on a case by case basis.

 

[3/2ACR Vet]

This part will be very easy to defeat, should it become part of the bill.

It is pretty clear that restricting someone's rights when they have not been convicted of a crime is a violation of the 5th and 14th amendments. The Due Process clases were built to prevent these things

Probation BEFORE Judgement is not a conviction, and I don't see how they can treat it as one.

 

[SomeGuy]

During the all night session - some time after midnight, a senator - i do not remember his name - used this logic to explain the concept:

When a person gets a PBJ, what happens is that they are judged guilty, then the guilty finding is withdrawn, and the PBJ is put into its place.

The problem with this is that it is not any part of the conversation during the hearing of the case, but the final decision of the Judge. The concept of 'innocent until proven guilty' should carry some weight in this event.

A person who has not been judged, should be viewed as guilty of a crime.

But it is easier to legislate using the courts, so the legislative branch of govt, lets the judicial branch do their job.

 

[Dr Dano HPR]

A PBJ is given by a Judge after reviewing the facts of the case and if the defendent meets the conditions of the probation they are not convicted of the crime. Many people are overcharged and it is up to the Judge to bring sanity back to the case. I know of several people who went through the Divorce From Hell and it was up to the Judges to figure out what was really going on. If there is a problem with PBJs being given too freely then correct it. I think the antis are really trying to expand the number of ways to exclude people from owning guns. Parking tickets and overdue library books are next.

 

[tangent]

(3) assault in the first or second degree;

Brandishing a weapon in your own home, in defense of yourself or another can get you charged with first degree assault. So if you ever have to use your firearms in self defense, you loose them under this law.

(12) rape in the first or second degree;

Not sure on the degree here, but in legalize, "rape" is "unwanted touching". It doesn't have to be with a sexual part of the body and it doesn't have to be intentional touching. You could trip or otherwise accidentally run into another person. Likewise, if you hooked up with someone that was kind of intoxicated, and they had problems with it the next day, even though they were coming on to you, can also get you charged with rape because they could claim they were too drunk to consent.

(15) sexual offense in the first, second, or third degree;

Getting caught urinating behind a bush or having a wardrobe malfunction like a nipple slip or the knot on your towel in a public sauna coming loose can get you charged. Likewise, changing the diaper of your GF/Fiance's child can get you charged with molestation because you are not yet related to that child.

Both 12 and 15 will put you on the sexual predator list for life, if convicted.

The laws in this country are sooo F'd up!

This part will be very easy to defeat, should it become part of the bill.

It is pretty clear that restricting someone's rights when they have not been convicted of a crime is a violation of the 5th and 14th amendments. The Due Process clauses were built to prevent these things

Probation BEFORE Judgement is not a conviction, and I don't see how they can treat it as one.

As it's so unconstitutional, I'm wondering if it might be good to leave it in there. Thinking that it will probably pass both houses and be taken to court, wouldn't the bill being as UN-constitutional as possible be a positive thing? It would also help to end some incumbents careers.

Remember that in any divorce case where custody of children is involved, her lawyer will ALWAYS have her get a restraining order against you and the cops will seize your guns.

-t

 

[madness3120]

(2) "CONVICTED OF A DISQUALIFYING CRIME" DOES NOT INCLUDE A CASE IN WHICH A PERSON RECEIVED A PROBATION BEFORE JUDGMENT FOR ASSAULT IN THE SECOND DEGREE.

Thats interesting...

 

[squirrels]

(2) "CONVICTED OF A DISQUALIFYING CRIME" DOES NOT INCLUDE A CASE IN WHICH A PERSON RECEIVED A PROBATION BEFORE JUDGMENT FOR ASSAULT IN THE SECOND DEGREE.

Thats interesting...

As I've said in other threads, "assault" in Maryland is defined as touching anyone without their permission. We get in an argument, all I'd have to do is inadvertently brush up against you while gesturing wildly and you could charge me with 2nd Assault.

In many of these cases, where there is some doubt as to how violent the intent was, I can see a judge handing out PBJ. That should NOT be grounds for firearms disqualification. As I've said before, if you are on supervised probation for anything and they are concerned for the safety of the probation agent, I can understand temporary firearm prohibitions. However, once the PBJ is served, just its presence on your record should not be sufficient to vacate your 2A rights.

1st degree assault is for cases where a deadly weapon is used, or serious injuries are sustained, or there is a threat/intent of serious bodily harm. It's a felony, not a misdemeanor. I don't see how any judge can in good conscience give PBJ for a felony.

The solution is to fix the busted PBJ system and its abuses, not to work around it by treating PBJ as a conviction when it's clearly and legally not a conviction.

Everyone insists on a merciless judicial system (mandatory minimum sentences, no PBJs, etc) until they find themselves on the wrong side of the argument. PBJ in misdemeanor cases gives a judge a way to determine whether you're a "bad guy" or just a "good guy who made a mistake", and if the latter, gives you an opportunity to prove it.

 

[madness3120]

As I've said in other threads, "assault" in Maryland is defined as touching anyone without their permission. We get in an argument, all I'd have to do is inadvertently brush up against you while gesturing wildly and you could charge me with 2nd Assault.

In many of these cases, where there is some doubt as to how violent the intent was, I can see a judge handing out PBJ. That should NOT be grounds for firearms disqualification. As I've said before, if you are on supervised probation for anything and they are concerned for the safety of the probation agent, I can understand temporary firearm prohibitions. However, once the PBJ is served, just its presence on your record should not be sufficient to vacate your 2A rights.

1st degree assault is for cases where a deadly weapon is used, or serious injuries are sustained, or there is a threat/intent of serious bodily harm. It's a felony, not a misdemeanor. I don't see how any judge can in good conscience give PBJ for a felony.

The solution is to fix the busted PBJ system and its abuses, not to work around it by treating PBJ as a conviction when it's clearly and legally not a conviction.

Everyone insists on a merciless judicial system (mandatory minimum sentences, no PBJs, etc) until they find themselves on the wrong side of the argument. PBJ in misdemeanor cases gives a judge a way to determine whether you're a "bad guy" or just a "good guy who made a mistake", and if the latter, gives you an opportunity to prove it.

Yeap thats exactly what happen in my case.

 

[livefreeordie]

Dean, thanks for posting and with the clarifications but I am still lost on the seriousness of this. My main concern is that there is no such thing as "temporary firearms prohibition" if you currently own one of the newly banned (but grandfathered - think AR15) firearms and have a PBJ for a disqualifying crime sitting on your record. Come October 1st, if you have not already legally transferred them to someone else, they will be confiscated and destroyed (not temporary).

The talk about inheritance is only if you die, correct? Can it be inheritance if you simply have to give them away?

 

[madness3120]

I dont think they will come after you and confiscate. I dont think this amendment will even make it to the final bill so lets wait and see what the final bill says, no need to worry yet.

 

[ddeanjohnson]

This part will be very easy to defeat, should it become part of the bill. It is pretty clear that restricting someone's rights when they have not been convicted of a crime is a violation of the 5th and 14th amendments. The Due Process clases were built to prevent these things
Probation BEFORE Judgement is not a conviction, and I don't see how they can treat it as one.

They already do. For several years already, Maryland law has allowed judges to remove firearms upon issuance of a temporary protective order sought by a family member. These temporary orders are issued without any due process for the person on whom the order is served. Under the bill, protective orders issued by courts in other states, including temporary orders issued without any advance notice to the targeted person, would also result in loss of firearms rights in Maryland.

 

[ddeanjohnson]

The talk about inheritance is only if you die, correct? Can it be inheritance if you simply have to give them away?

I am not a lawyer. But I think I am on pretty solid ground in affirming that for somebody to inherit your stuff, you have to die first.

 

[tangent]

Dean, thanks for posting and with the clarifications but I am still lost on the seriousness of this. My main concern is that there is no such thing as "temporary firearms prohibition" if you currently own one of the newly banned (but grandfathered - think AR15) firearms and have a PBJ for a disqualifying crime sitting on your record. Come October 1st, if you have not already legally transferred them to someone else, they will be confiscated and destroyed (not temporary).

The talk about inheritance is only if you die, correct? Can it be inheritance if you simply have to give them away?

Put them in a living trust and just change the custodian? A trust is a corporate entity, in the eyes of the law. You don't technically "own" the gun, you're just the custodian for it.

-t

 

[livefreeordie]

I am actually quite worried, even before final passage. There is nothing to prevent them from running a simple database inquiry to round us up and send us registered letters seeking to have them turned in or face additional charges. There is very little resources needed for this and it fits their confiscation as the only legitimate means argument perfectly. They could care less if a few more of our rights were violated as long as they get what they want. Then it is "oops", We had to pass it without reading it because we were in a crisis situation that needed quick action. Relying on a referendum or future courts is hopeless in this current culture.

How long will the expungement process take- probably post 10/1. How long to relocate family to friendly 2a state, probably sooner.

 

[tangent]

I am actually quite worried, even before final passage. There is nothing to prevent them from running a simple database inquiry to round us up and send us registered letters seeking to have them turned in or face additional charges. There is very little resources needed for this and it fits their confiscation as the only legitimate means argument perfectly. They could care less if a few more of our rights were violated as long as they get what they want. Then it is "oops", We had to pass it without reading it because we were in a crisis situation that needed quick action. Relying on a referendum or future courts is hopeless in this current culture.

How long will the expungement process take- probably post 10/1. How long to relocate family to friendly 2a state, probably sooner.

That sounds like a recipe for a bunch of dead citizens and a bunch of dead cops. Very BAD PR!

Remember Borner? I'm really surprised we haven't seen a copycat.

I remember someone talking about NYC where the cops were being really heavy handed and roughing people up during random stops. Someone started killing them at random and for some reason their behavior got better...

Didn't the MSP and county sheriffs state that the law was unenforceable? I just don't see mass SWAT raids happening.

-t

 

[livefreeordie]

That sounds like a recipe for a bunch of dead citizens and a bunch of dead cops. Very BAD PR!

Remember Borner? I'm really surprised we haven't seen a copycat.

I remember someone talking about NYC where the cops were being really heavy handed and roughing people up during random stops. Someone started killing them at random and for some reason their behavior got better...

Didn't the MSP and county sheriffs state that the law was unenforceable? I just don't see mass SWAT raids happening.

-t

They don't need raids. Just simply add your name to the "NEVER LAWFULLY OWN AGAIN LIST"

Yes, I followed Dorner well and it turns out he was pretty bad at his plan or the amount of resources devoted were too overwhelming. It would take dozens of copycats to get the message across and there just isn't enough crazies in the "law-abiding citizen" department to be effective. Quite frankly, if you have vowed to open fire against those that come to take your guns, your talking out your a$$ because they are already there and you haven't done $hit. I am not condoning the action.