Category Archives: Domestic Violence

Domestic Violence Conviction: You Just Lost Your Right to Own a Firearm

Domestic violence charges can be devastating and embarrassing both personally and professionally. Often an accused will do anything to make these criminal charges go away even if he or she is innocent. As a result, many individuals charged of domestic violence will plead guilty without realizing all the rights he or she is relinquishing.

In a recent United States Supreme Court decision, Voisine v. United States, the Court ruled individuals convicted of a misdemeanor domestic violence charge, cannot own or possess a firearm under U.S.C. §922(g)(9). It is immaterial whether the conduct that led to the domestic violence charge involved a firearm.

Domestic Violence and Firearm Debate in the United States

In a 6-2 decision, the Supreme Court decided in Voisine an individual convicted of misdemeanor domestic violence loses the right to own or possess a firearm regardless of whether the conduct was considered reckless or intentional under the applicable state law.

Whether an individual should lose gun rights for a misdemeanor domestic violence conviction has been long debated in the United States. In 2014 the United States Supreme Court ruled in U.S. v. Castleman 134 S. Ct. 1405, 1409 (2014) that an individual loses his or her gun rights following a conviction for domestic violence if the conduct was intentional. However, it remained unsettled whether an individual should lose gun rights for unintentional, yet reckless domestic violence offense.

The petitioners in Voisine were both convicted of domestic violence under Maine Criminal Code § 207. Maine Criminal Code § 207 defines assault as “… intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person”.

Because the statute is divisible, meaning an individual can be convicted of domestic violence for intentional or reckless conduct, the petitioners asserted the conduct leading to the domestic violence conviction was reckless and should not be considered a violation of U.S.C. §922(g)(9).

Under U.S.C. §922(g)(9) “it is unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to… possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce”.

Supreme Court Rules Individuals Convicted of Domestic Violence Lose Gun Rights

In the majority opinion, Justice Kagan asserted an individual should lose his or her gun rights for both intentional and reckless domestic violence offenses. In the opinion, Justice Kagan distinguishes the difference between reckless and accidental conduct. She states an individual who accidentally drops a plate near his or her family member and causes injury is different from the individual who hurls the plate at his or her family member.

Specifically, she stated “That hurt counts as a “use” of force even if the husband did not know for certain (or have as an object), but only recognized a substantial risk, that a shard from the plate would ricochet and injure his wife.”

Because of the active employment of force during reckless conduct and conscious disregard of the substantial risk of causing harm, an individual is precluded from gun ownership under U.S.C. §922(g)(9).

Domestic Violence Law in Nevada

Under Nevada law, there is a wide array of conduct which constitutes domestic violence. An individual may be convicted of domestic violence under NRS 33.018 for engaging in the following criminal acts against a relative or person with whom he or she is in a dating relationship:

  • Battery
  • Assault
  • Sexual Assault
  • Stalking
  • Arson
  • Trespassing
  • Larceny
  • Destruction of private property
  • False Imprisonment
  • Unlawful entry to the other person’s residence

The following persons are considered a family member:

  • Spouse or former spouse
  • Blood Relatives (children, parents, siblings, cousins, aunts, uncles, grandparents, etc.)
  • Relatives by marriage (step-parents, step-siblings, step-children etc.)
  • Other person with whom the person is residing
  • Other person with whom the person is having a dating relationship
  • Other person with whom the person has a child in common

The term “dating relationship” means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement. The term does not include a casual relationship or an ordinary association between persons in a business or social context.

Conclusion

A conviction for domestic violence under Nevada law can result in the loss of the right to own or possess a firearm. It is important to consult an experienced Las Vegas criminal defense attorney to increase your chances of retaining your constitutional rights.

Joel Mann is an experienced Clark County criminal defense attorney with over 18 years of experience defending individuals facing the toughest criminal charges, including domestic violence, battery causing substantial bodily harm, battery domestic violence, and battery domestic violence with strangulation.

Contact Joel Mann of the Law Office of Joel M. Mann, Chtd. at (702) 474-6266 to schedule an initial consultation. The Law Office of Joel M. Mann, Chtd strongly defends individuals throughout Clark County, including Las Vegas, Henderson, Boulder City, Mesquite, and surrounding areas.

Additional Resources

Domestic Violence & Firearms – Visit the Smart Gun Laws website to read about the dangers of guns in the hands of domestic abusers, along with summaries of state and federal laws concerning firearm possession.

Domestic Abusers Owning Guns – Read more about why domestic abusers frequently get to keep their guns

Safe Nest – Read more about how Safe Nest is Nevada’s largest and most comprehensive charity devoted solely to domestic violence issues.

 

When the Police are Called for Domestic Violence: Someone is Going to Jail

domestic violenceWhether the person calling 911 wants their significant other to go to jail or not, the police already know, before they even arrive, that they are arresting someone.  For the police, it is just a matter of who it will be.  If you were arrested for

If you were arrested for domestic violence, battery causing substantial bodily harm, battery domestic violence, or battery domestic violence with strangulation in the state of Nevada, it is important to seek out the services of a qualified criminal defense attorney, as it is important to fetter out all of the nuances involved in an arrest of battery constituting domestic violence.

With very little to no investigation on what actually happens, the police just want to remove the “primary physical aggressor” and leave.

Why an arrest occurs in a domestic violence situation?

When a police officer in Nevada responds to a domestic violence call, the law requires the officer to arrest someone, even if the physical contact is minuscule. In particular, NRS 171.137(1) states that a police officer must “arrest a person when the peace officer has probable cause to believe that the person to be arrested has, within the preceding 24 hours, committed a battery upon his or her domestic partner.”

Subsection 2 of NRS 171.137 deals with mutual battery in domestic violence. Mutual battery occurs when two domestic partners use physical force on each other. NRS 171.137(2) states that in the case of mutual battery, the police officer must determine whom the primary physical aggressor because the primary aggressor must go to jail. According to the statute, the officer is not required to arrest the person who is not the primary aggressor.

Does it matter who hits first?

The primary physical aggressor is not always the person who hits first, but the person who causes the greater injury. Beyond relative physical injury, in determining who the primary physical aggressor is, officers will consider prior domestic violence arrests and any other factor they might think is relevant.

The statute NRS 171.137(1) says a police officer can decide not to arrest anyone if mitigating circumstances exist, which means the law does not require the officer to make an arrest if he or she does not think it is necessary. In theory, this sounds like a major exception, especially since the statute is titled “Arrest required for suspected battery constituting domestic violence.”

However, Las Vegas Police officers rarely, if ever, seem to think mitigating circumstances exist—even when the alleged battery is minor, the alleged batterer has no criminal record, and the alleged victim does not want the arrest to happen.

Can Domestic Violence Charges be dropped After Being Filed?

Once the police are called in a domestic violence case, and the district attorney or another prosecuting agency decides to file charges, there is generally nothing the alleged victim can say or do to make the police or prosecutor believe that the charges are exaggerated.

With very few exceptions, when an alleged victim admits to giving a false statement to the police, the police and district attorney will almost always believe that the alleged victim is lying to protect the defendant.

If you have been charged with domestic violence, you should not count on having your charges dismissed just because the alleged victim does not want to press charges.

A prosecutor, and sometimes even a Judge, believes allegations of domestic violence are nothing more than a “gateway” to a domestic violence murder.  The Nevada Legislature even took most of the discretion out of the hands of the executive branch, the prosecutor, and ordered them to vigorously pursue any domestic violence charge.

It is believed, by the government, that without the help of the government’s prosecutors the defendant will continue to batter the alleged victim.  Because of this all-encompassing belief that all domestic violence cases will eventually result in horrific results, the law often brings in couples that have absolutely no history, no injuries, and no desire to have the government regulate their relationship.  With this wide-reaching law, a defendant must take any accusation of domestic violence very seriously.  It is important to seek out the services of a qualified criminal defense attorney that can navigate the criminal justice system.

Conclusion

The criminal defense attorneys in Las Vegas, Nevada at Law Office of Joel M. Mann represent clients charged with domestic violence, battery causing substantial bodily harm, battery domestic violence, and battery domestic violence with strangulation. Contact our offices at (702) 474-6266 to schedule an initial consultation, either in the office or on the phone.

Additional Resources

Nevada Domestic Violence Resource Manual – Read more about domestic violence laws, law enforcement, and prosecution in Las Vegas, Nevada.

A Culture of Abuse – Read more about Nevada ranks among worst states for domestic violence

Safe Nest – Read more about how Safe Nest is Nevada’s largest and most comprehensive charity devoted solely to domestic violence issues.

Domestic Violence Increases Over the Holidays

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Domestic violence doesn’t take a holiday. In fact, the holiday season brings about a dramatic increase in domestic violence cases throughout Las Vegas and the surrounding areas of Clark County, Nevada.

Domestic violence increases over the holidays for a variety of reasons including:

  1. Families spend more time together;
  2. Families travel for holiday gatherings to another city or state;
  3. Extended relatives gather together for holiday celebrations;
  4. Individuals increase their consumption of alcohol and drugs during this time period; and
  5. Financial stress increases with gift buying and spending for entertainment.

The combination of family and celebration also causes tempers to flare and arguments to ensue. In addition to an increase in the number of arrests for domestic violence, the courts also see an increase in petitions for protection against domestic violence during the holiday season and into the New Year.

Law enforcement officers in Las Vegas and the surrounding areas in Clark County, NV, treat any violence within a family seriously. According to the Violence Policy Center, until recently, Nevada had been ranked in the top ten for about two decades for the most females murdered by men in domestic violence cases.

An allegation of domestic violence often results in a misdemeanor charge of battery under NRS 200.485 (often called “domestic violence battery”). The misdemeanor charge is punishable by a fine of up to $1,000 and/or 180 days in jail.

Misdemeanor domestic violence cases that occur within the city of Las Vegas are prosecuted by the City Attorney’s Office. If the case involves a dangerous weapon or serious injury then a felony charge of domestic violence can occur.

The Clark County District Attorney’s Office, prosecutes all felony cases and any misdemeanor cases that occur outside of the cities of Las Vegas, North Las Vegas, Henderson, Boulder City and Mesquite.

Under Nevada law, related charges can include: violations of protective or restraining orders, stalking, aggravated stalking, spousal abuse, domestic violence battery with strangulation, domestic assault, aggravated domestic assault, sexual assault, and kidnapping.

Attorney Joel Mann represents clients charged with felony and misdemeanor domestic violence charges throughout Las Vegas, Mesquite, Boulder City, and North Las Vegas, NV.

Joel Mann is particularly experienced with the tactics used by officers in the Domestic Violence Unit of the Las Vegas Metropolitan Police Department and other area agencies.

If you need an experienced criminal defense attorney focused on defending domestic violence charges in Las Vegas, NV, then contact the Law Office of Joel M. Mann to discuss your case today.

Ninth Circuit Upholds Gun Ban for Those Convicted of Domestic Violence

Beretta HandgunThe U.S. Court of Appeals for the Ninth Circuit, which includes Nevada, last month upheld a federal law banning firearm possession for any person convicted of domestic violence, including misdemeanor charges, for life.  The Court ruled that the law does not violate a person’s rights under the Second Amendment.

Under 18 U.S.C. § 922(g)(9), a person convicted of a misdemeanor charge of domestic violence, including a state charge, may not possess a firearm. A person convicted of a felony domestic violence charge may not possess a gun under another section of the same law, which prohibits people convicted of any felony from firearm possession.

The Ninth Circuit case is U.S. v. Chovan. In the case, Daniel Chovan, a California resident, had been convicted of a domestic assault charge in 1996. In 2010, the FBI and the ATF executed a search warrant and found a .22 caliber handgun and 532 rounds of ammunition in his home. He was indicted on two charges of violating § 922, one for possession of a firearm and one for making a false statement in the acquisition of a firearm.

Chovan moved to dismiss the first count, which was denied. He pled guilty and was sentenced to five years probation. He appealed the conviction, arguing that his civil rights had been restored, and that the federal ban violated his fundamental right to bear arms under the Second Amendment. He argued that the 2008 Supreme Court case D.C. v. Heller established that the Second Amendment guaranteed an individual right to bear arms.

The Ninth Circuit rejected his argument. In his opinion for the court, Judge Harry Pregerson wrote that  Chovan had never lost his “core civil rights,” the right to vote, hold public office or serve on a jury, and therefore did not qualify to have his civil rights restored. He wrote that the Heller case did not create an unlimited Second Amendment right, and that the ban addressed an important government interest and therefore met the intermediate level of scrutiny applied.

The case could be appealed to the U.S. Supreme Court, who could uphold the ruling or strike down the law. However, for now, defendants facing domestic violence charges in Las Vegas must accept that the loss of a right to bear arms is one of the punishments they face if convicted. A domestic violence charge will result in jail time of at least two days for a first offense, along with possible fines and court costs, community service and counseling sessions at the defendant’s expense. 

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