The Simmons Amendment: probation before judgment

[tangent]

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.

I think his downfall was the axle on his truck breaking. That and getting messed up in the accident.

What about Rudolf? He had an army of people searching for him for something like a year! One guy can do a lot of damage and the gvmt can't do a lot about it.

-t

 

[Dizzy]

Under immigration law, a PBJ is still considered a conviction. They justify this by saying immigration law is civil in nature, therefore they can make it retroactive AND define it anyway they want. SB281 looks like it is configured to be regulatory/civil in nature which would mean, they can easily count PBJ's as a conviction.

 

[ddeanjohnson]

Update

I have updated my original post on the Simmons Amendment to reflect the April 2 House floor debate, which clearly established that the firearms disqualification imposed by the Simmons Amendment is retroactive. It also seemed clear to me that it will remain legally binding even if the PBJ was later expunged, or is expunged in the future (which is contrary to the way that Delegate Simmons explained it at the Good Friday committee markup).

 

[buzzsaw]

With all the talk of ex-post-facto yesterday evening, does that apply to this retroactive action?

 

[Bagpiperer]

In theory, yes, it should.

I'm not a lawyer; however, I'd opine that the law is not ex post facto unless they use it to prosecute newly-prohibited persons for possession of a firearm. If they only take the weapons away, it's not, strictly speaking, an ex post facto law.

That said, the U.S. Constitution also prohibits bills of attainder. In the words of Chief Justice emeritus Rehnquist, "A bill of attainder was a legislative act that singled out one or more persons and imposed punishment on them, without benefit of trial."

While the grabbers will argue until they are blue in the face that SB281 is neither, it skirts dangerously close, and is, in my opinion, extremely suspect. Though infringements on long-held civil liberties could be viewed as ex post facto laws or bills of attainder, to date only five federal laws have been ruled unconstitutional on the latter basis, and I am aware of no state laws which have been.

In this case, forfeiture of property without compensation could constitute a punishment, the class of people to be punished (firearms owners having received probation before judgement) is specifically identified, and there is no trial before imposition of the punishment (and a second trial for the same offense would violate the double jeopardy clause of the 5th amendment). However, the state would argue that the class of persons is rationally related to a legitimate aim (preventing gun violence) and that the punishment is not the main purpose of the law.

Bottom line, I doubt this could be challenged in the courts successfully on that basis, even though it is very clearly a bad law.

 

[ddeanjohnson]

Bottom line, I doubt this could be challenged in the courts successfully on that basis, even though it is very clearly a bad law.

I concur. The legal issues seem to be similar to those that were raised by enactment of the federal Lautenberg Amendment in 1996, which created a federal disqualification based on past convictions for misdemeanors involving domestic violence. As I recall, the federal courts held that this did not violate the ex post facto prohibition. I think it is a not a bill of attainder unless it identifies a particular person or very specific group of persons, which the Simmons Amendment does not.

 

[straightsilver3]

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.

This! First Misdemeanor convictions Now PBJ'S Where does it stop. When the powers that be Have complete control and Firearms ownership is outright Banned.

 

[ddeanjohnson]

Update

During the second day of floor action, the House changed the Simmons Amendment so that it will not apply to PBJs that are expunged. I have revised my original post to reflect this change.

 

[stu929]

I may be missing it but how does this pertain to persons who have been institutionalized? Not over 30 days but for 1-7 days involuntarily?

 

[Afrikeber]

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.

Just saw your army patch. I served with the 2nd ACR on the East/West German border (Border Patrol) and stationed at Merrell Barracks in Nuremberg. 1983 to 1985. Tojours Pret!

 

[ddeanjohnson]

I may be missing it but how does this pertain to persons who have been institutionalized? Not over 30 days but for 1-7 days involuntarily?

The Simmons Amendment has nothing to do with that subject. The mental health provisions have been discussed in other threads on this forum, such as here.

 

[intobaitem]

Am I clear in understanding that these are going to be for people with PBJ'S for violent crimes only, or any ole PBJ'S?
I know others have voiced this , but I don't see how this is legal. In any criminal proceding, the defendent has several plea choices. Innocent, guilty, insanity, and no contest. No contest is not an admission of guilt. It is like saying " I am innocent, but since it's two officers word against mine, I choose not to contest the charges." It is a plea that may be used when the case is too close to call for the defendant, so they agree not to contest the case, often in return for "Withheld Adjudication". In the case of PBJ's, the verdict is withheld, and the case is dismissed when the defendent completes the agreed upon terms, ie: probation, drug treatment, violence counseling, etc. I still don't see how their argument would stand up to a challenge.

 

[Dizzy]

In effect, the Simmons Amendment has created a legal consequence out of a PBJ where one did not exist before. It has destroyed the whole intent of a PBJ as a middle ground. I suspect the court system will now be clogged because no one who ever wants to keep or own a firearm would ever agree to a PBJ now.

There are now an additional constitutional challenge to the bill because if one unknowingly agreed to PBJ without being legally advised that he would lose his 2nd Amendment right, the case can now be reopened via Writ of Coram Nobis based upon a violation of their 6th Amendment right.

All we need is a volunteer who had a PBJ from either a "crime of violence" or "domestic violence" to apply for a license on October 1, 2013, produce the PBJ, and then get denied. Then we will have standing to challenge the new law. My buddies in the criminal defense specialties are presently going over the bill to prepare for this eventuality. Gura isn't going to be the only one filing lawsuits over this law

Disclaimer: I am an attorney licensed to practice law in MD.

 

[madness3120]

There are now an additional constitutional challenge to the bill because if one unknowingly agreed to PBJ without being legally advised that he would lose his 2nd Amendment right, the case can now be reopened via Writ of Coram Nobis based upon a violation of their 6th Amendment right.



Disclaimer: I am an attorney licensed to practice law in MD.

1 of the amendments that got thrown out was to required judges to notify a defendant if he accepts a pbj his firearms right would be taken away. Why it got thrown out is beyond me. But remember even if you do take a pbj, then after the 3 years is up and you get it expunged then you can legally own a firearm again

 

[madness3120]

All we need is a volunteer who had a PBJ from either a "crime of violence" or "domestic violence" to apply for a license on October 1, 2013, produce the PBJ, and then get denied. Then we will have standing to challenge the new law. My buddies in the criminal defense specialties are presently going over the bill to prepare for this eventuality. Gura isn't going to be the only one filing lawsuits over this law

Disclaimer: I am an attorney licensed to practice law in MD.

But If you knowingly fill out the 77r which I believe the new pbj language is going to be on incorrectly you risk being prosecuted for perjury correct?

 

[motoman172]

This is going to be real interesting for me... Ever since this thing passed I have been searching all over the net for clarification.

I was able to obtain a handgun in 2010 but not until after a extensive 40 day process while the state police reviewed a 20 yr old "Prayer before Judgement" I was given in NC for "Assault on a Female"

In north carolina a NJP is passed down by the judge even if you plead NG. It is not a conviction and it is neither expungable nor can it be appealed. The paperwork cleary states it was not Domestic Violence.

However with this new law I am wondering how Maryland will proceed and if I should expect the police to come to my home and confiscate my weapons that I acquired legally.

Now does the new law require licensing for "all" firearms or just handguns? That part I was not sure about...

In anycase I would be willing to put forth myself to apply for a weapon on October 1st 2013.

 

[ke3gk]

So I would reckon that a Nol Pros would be safe, but one can never tell with these people and what they are thinking.

 

[madness3120]

Good question, I would thank its for PBJS in Maryland, and not out of state. Im not sure though..

 

[ddeanjohnson]

Am I clear in understanding that these are going to be for people with PBJ'S for violent crimes only, or any ole PBJ'S?

Read the Original Post on this thread -- it contains the verbatim text of what it applies to.

 

[ddeanjohnson]

In any criminal proceding, the defendent has several plea choices. Innocent, guilty, insanity, and no contest. No contest is not an admission of guilt. It is like saying " I am innocent, but since it's two officers word against mine, I choose not to contest the charges." It is a plea that may be used when the case is too close to call for the defendant, so they agree not to contest the case, often in return for "Withheld Adjudication". In the case of PBJ's, the verdict is withheld, and the case is dismissed when the defendent completes the agreed upon terms, ie: probation, drug treatment, violence counseling, etc. I still don't see how their argument would stand up to a challenge.

Similar arguments were made in the House committee, on the House floor, and on the Senate floor. In all three venues, the supporters of the Sommons Amendment prevailed. It was a convergence of legislators who want to take guns away for any reason, and some who think the judges are too soft on bad guys and hand out PBJs too often.