[DV_listserv] 9th Circ. Case on Federal Firearms prohibition

[Domestic Violence issues]

Good Morning,

I've pasted a link to a recent case issued by the Ninth Circuit, US v. Rolando Roman Sanchez.

FACTS: D was convicted in January, 2009 in Arizona for two DV charges. He was placed on probation with a no-contact order with his girlfriend, the victim in the case. In March, law enforcement agencies were patrolling the area around a gun show. D was stopped in the area for failing to signal and for failure to stop at a traffic light. D consented to a search of his vehicle which revealed a handgun and a lot of ammunition. In June, D was indicted federally for violating 18 USC 922(g)(9)--(persons convicted of misdo crime of DV cannot possess firearms). D argued that the indictment was defective based on US v. Nobriga, 474 F.3d 561, 565-565 (9th Cir. 2006) because his underlying DV conviction lacked "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon". The feds re-indicted D based on 18 USC 922(g)(8)--(persons subject to a court order that, among other requirements, either includes a finding that the individual represents a credible threat to the physical safety of an intimate partner or child OR by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonable be expected to cause physical injury.")

The case went to trial in February, 2010. At the end of the government's case, D moved for acquittal, arguing that the no-contact order did not satisfy the language of 18 USC 922(g)(8). The District Court denied D's motion. D was convicted.

The Ninth Circuit accepted review and now REVERSES.

HOLDING: While a conviction under 18 USC 922(g)(8) does not require that the precise language of the statute be contained in the no-contact/court order, a no-contact/court order must contain explicit terms substantially similar in meaning to the language of the statute.


**Oregon's Restraining (and other Protective) Orders DO contain the requisite findings/language about a respondent representing a "credible threat to the physical safety of" a petitioner and/or prohibiting the use, attempted use, or threatened use of physical force against a petitioner. In Oregon, usually the problem with "triggering" federal firearms prohibition is the federal requirement that the respondent had a "noticed" hearing or opportunity for a hearing since Oregon is an "ex-parte" State in terms of a petitioner's ability to obtain a protective order.

However, other "no-contact" order COULD qualify D for federal firearms prohibition if the correct findings were made and memorialized.



--ERIN


http://www.ca9.uscourts.gov/datastore/opinions/2011/05/05/10-10229.pdf

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