The Simmons Amendment: probation before judgment

[ddeanjohnson]

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.

I don't want to give advice on a personal legal situation. You should consult a lawyer expert in criminal law. When you do, I bet he will tell you that the Simmons Amendment, while broad in one sense, is also very specific and does not apply to the disposition in the case that you have described.

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

It requires a "handgun qualification license" to purchase a handgun, with certain exceptions, as summarized here.

 

[cwalker3]

I received a PBJ for a malicious destruction charge back in 1976 so theoretically I shouldn't have anything to worry about with this amendment. The thing that worries me though is what if when the MSP starts going through their records and rounding people up that they'll only be looking for PBJ's and not the crimes that were involved. Like throwing out a big net and weeding out what you don't want later. In this case though, the damage to the gun owner will already be done.

 

[madness3120]

Im sure the good fellas of the MSP will follow the law as its written.

 

[Straightshooter]

The problem won't just be limited to the MSP. County gun squads love this stuff. A man spoke at the Parkton town hall meeting to inform us that the Belt Co gun squad recently confiscated his guns after matching gun range logs to court records.

 

[Dizzy]

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

If you got nolle prosequi, then you should be fine. The amendment only talks about PBJ's.

 

[Dizzy]

I received a PBJ for a malicious destruction charge back in 1976 so theoretically I shouldn't have anything to worry about with this amendment. The thing that worries me though is what if when the MSP starts going through their records and rounding people up that they'll only be looking for PBJ's and not the crimes that were involved. Like throwing out a big net and weeding out what you don't want later. In this case though, the damage to the gun owner will already be done.

Correct. The crime database doesn't necessarily have everything listed.

However, if you do a search on MD's Judiciary Search System:
http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp

You can find everything listed on the Judiciary search system.

But that doesn't mean MSP is going to pull the entire file. They may just ask to list every PBJ record instead of going further and asking the database to list the final charge that was entered. I'm not even sure if the MSP system can even do that.

If you currently have PBJ's, then you might want to consider having them expunged if they fall within the Simmons Amendment (See first page for listing).

If you are a green card holder, consult with a lawyer before having any records expunged. USCIS considers them a conviction and at some point when you apply for citizenship, you'll need to get a court certified copy of the PBJ (get at least 3 certified copies) to file with the naturalization application (Form N-400). If you have it expunged, you won't be able to fulfill that requirement and it will impact your application.

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

 

[cwalker3]

Correct. The crime database doesn't necessarily have everything listed.

However, if you do a search on MD's Judiciary Search System:
http://casesearch.courts.state.md.us/inquiry/inquiry-index.jsp

You can find everything listed on the Judiciary search system.

But that doesn't mean MSP is going to pull the entire file. They may just ask to list every PBJ record instead of going further and asking the database to list the final charge that was entered. I'm not even sure if the MSP system can even do that.

If you currently have PBJ's, then you might want to consider having them expunged if they fall within the Simmons Amendment (See first page for listing).

If you are a green card holder, consult with a lawyer before having any records expunged. USCIS considers them a conviction and at some point when you apply for citizenship, you'll need to get a court certified copy of the PBJ (get at least 3 certified copies) to file with the naturalization application (Form N-400). If you have it expunged, you won't be able to fulfill that requirement and it will impact your application.

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

I was considering expungement and went to Case Search looking for my case number. That's when I found out that their database only goes back to 1991. I've talked to people at Baltimore's district and circuit courts and no one has been able to give me any help because of how old the the case is (1976). Do you have any suggestions on how to find out what the case number was?

 

[BeardedMags]

I was considering expungement and went to Case Search looking for my case number. That's when I found out that their database only goes back to 1991. I've talked to people at Baltimore's district and circuit courts and no one has been able to give me any help because of how old the the case is (1976). Do you have any suggestions on how to find out what the case number was?

Mine is not on Case search either. I called and was told to bring valid ID and get an application for records. I'm still trying to find/get info for a mail in form for AACo..

 

[seawolf823]

According to the wording PBJ for second degree assault is not a disqualifier correct. I have one and have already applied for expungment yesterday but just want to be super safe.

 

[cwalker3]

Mine is not on Case search either. I called and was told to bring valid ID and get an application for records. I'm still trying to find/get info for a mail in form for AACo..

Who did you call?

 

[rockstarr]

does disorderly conduct fall under this amendment?

 

[madness3120]

According to the wording PBJ for second degree assault is not a disqualifier correct. I have one and have already applied for expungment yesterday but just want to be super safe.

Me too, but yes its very clear that 2nd degree assault is exempt from this new law.

 

[BeardedMags]

Who did you call?

District Court. Call the district where the incident took place. May have to ask for the clerk?

http://www.courts.state.md.us/district/directories/courtmap.html

 

[JustCuz]

This amendment is going to get some cops fired. And before you say, "They can just get it expunged," read the application for expungement. Essentially, if a 50-year-old man got a PBJ for assault from a mutual fist-fight when he was 18, then got a misdemeanor conviction for public urination a couple years later, he can't get the PBJ expunged and he will now, 32 years later with no trouble since he was a kid, be disqualified from owning a firearm.

This makes perfect sense.

 

[madness3120]

Im sure they will somehow exempt LEO ?

 

[dad4]

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.


Does this red highlighted area mean that if even if you get an expungement for a domestic offence that you will still lose youe gun ownership privledges????

 

[ddeanjohnson]

Im sure they will somehow exempt LEO ?

No, they did not.

 

[ddeanjohnson]

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. Does this red highlighted area mean that if even if you get an expungement for a domestic offence that you will still lose youe gun ownership privledges????

I'm don't see why you suggest that. It seems clear from the language that expungment takes care of either type of PBJ that is covered by the Simmons Amendment.

 

[dad4]

I'm don't see why you suggest that. It seems clear from the language that expungment takes care of either type of PBJ that is covered by the Simmons Amendment.

When I read the text it seemed to me that it was saying

"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.

But it omits the following

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

 

[ddeanjohnson]

When I read the text it seemed to me that it was saying

"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.

But it omits the following

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

No, it's worded the way it should be. Because it says "or," it definitely means the person is not disqualified from owning firearms if EITHER (1) the PBJ was expunged, or (2) the PBJ initially came out of a charge of assault in the second degree.