Convicted of a misdemeanor domestic violence offense? Chances are there is a life time firearm ban against you.

In 1996, the Lautenberg Amendment was added to the Gun Control Act of 1968 and expanded the scope of persons precluded from owning or possessing firearms. In addition to felons and persons known to be addicted to controlled substances, the list now includes individuals who were convicted of a misdemeanor crime of domestic violence(or “MCDV”). 18 CFR § 922(g)(9). An MCDV is defined as a crime which has an element of physical force or threatened use of physical force or use of a deadly weapon against specific individuals including former and current spouses. 18 CFR § 922(33)(A)(i-ii). An individual is not convicted of an MCDV if they were not represented by counsel or denied the right to a jury trial(or did not knowingly and intelligently waive those rights). 18 CFR § 922(33)(B)(i)(I-II). Additionally, thereis no MCDV conviction if it has been “…expunged orsetaside, or is an offense for which the person has been pardoned or has had civil rights restored (ifthelawof theapplicable jurisdiction provides fortheloss ofcivil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” 18 CFR§922(33)(B)(ii). Unfortunately, the 9th Circuit in Chovan held that restoring the right to own or possess a gun is not a “restoration of civil rights” because it does not pertain to the “core” rights such as the right to vote. United States v. Chovan, 735 F.3d 1127, 1131-32 (2013). But See, United States v. Flower,838F. Supp544(1993), certiorari denied, 115 S.Ct. 939(holding that the defendant had the burden of bringing forth evidence that his civil rights had been restored following Utah predicate conviction). In the recent case of Voisine v. United States, 136 S. Ct. 2272(2016), the Supreme Court upheld the lesser “reckless” mens rea standard for the MCDV and affirmed Lautenberg’s lifetime ban. The Supreme Court in Beecham also held that only the federal government could restore a loss of civil rights resulting from federal law. Beecham v. U.S., 511 U.S. 368, 372 (1994). The Justice Department has noted, however, that the restoration of civil rights must be carefully researched for each defendant. 1 And while federal law technically allows individuals to apply to the Attorney General or ATF for relief, no individual has ever done so because since October 1992 Congress has prohibited any funds from being used to investigate oract uponapplicationsforrelief. 27CFR§478.144.2 The Lautenberg Amendment has been challenged numerous times without much success because preventing persons convicted of MCDVs from possessing firearms is substantially related to the important government interest of preventing violence and crime against family members and significant others. See, Chovan, supra(rejecting the claim that the Lautenberg amendment violates Second Amendment right to bear arms);See Also, United States v.Castleman,134S.Ct.1405 (2014).

California law makes it a crime for persons convicted of certain misdemeanor offenses(including PC § 273.5(a)) from owning or possessing firearms within ten years of conviction. Cal. Pen. Code § 29805. Only law enforcement and other persons who depend on carrying a firearm for their livelihood are exempted after first petitioning the court for relief. Cal. Pen. Code § 29855(a). PC § 273.5(a) is a “wobbler” offense meaning it can be charged as a felony or misdemeanor. Cal. Pen. Code§17(b). Pardons are available to individuals who have been discharged from probation or parole for at least ten years. However, a grant of a Pardon is rare even under our current governor Jerry Brown who has pardoned more individuals than previous governors (811 between 2011-2016 compared to just 28 between 1991-2010).3 However, a reference manual published on the California Department of Corrections and Rehabilitation states that a pardon can restore gun rights only after federal approval.

statute only says “….may provide…” Cal. Pen. Code § 4854.An individual may also argue that they fall under one of the narrowly drawn exceptionsdescribedin18§CFR§922(33)(B)orthatPC§273.5(a)isnotanMCDV. Thesearguments are addressed inthe“Other Arguments”section belowand arelikely unsuccessful since he had a jury trial and it appears that he was represented by counsel. The last option is to “wait and see” since the Lautenberg a highly litigated issue. The High Court(as well as other federal courts) are more conservative (read: pro-gun rights) now; that said, the government interest in preventing the escalation of domesticviolenceissocompellingthatitisunlikelythatLautenberg willnotmeetthe intermediate scrutiny standard that has been applied to it. The fact that Congress refuses to fund the ATF relief option is further evidence of just how solidified this policyis.

The best argument(although not likely a winning one) is that you fall within one of the exceptions to MCDV convictions under 18 § CFR 922(33). Specifically, it could be argued that the individual has had his “civil rights restored” because PC§ 29805 expressly forbid himfrom owning orpossessing a firearm within ten years of his PC § 273.5 conviction. Since ten years have passed, it is no longer a crime under state law for him to own or possess a firearm, so he has been given back something that was previously taken away. See, Logan v. U.S., 552 U.S. 23, 23-24(2007)(“The ordinary meaning of the word “restored”—giving back something that has been taken away—does not include retention of something never lost.) However, since the Chovan court explicitly stated that gun rights are not a core civil right like voting, this argument is likely to fail(Chovan would have to be overturned by Supreme Court). Expungement is also of little use because California law explicitlyprohibitsexpungementsfromrestoringgunrights.Cal.Pen.Code§1203.4.

Any argument that a PC § 273.5(a) conviction is not an MCDV is a stretch because it specifically lists a spouse or other cohabitant as persons covered by the statute. Cal. Pen. Code § 273(b). The “willful infliction of corporal injury” language in PC § 273.5(a) also makes it difficult to argue that there was not the required “force” involved (although it may warrant to reviewing the police report to understand the specific circumstances of the offense). Cal. Pen. Code § 273(a). Moreover, the Voisine recently affirmed “reckless” as sufficient (thoughyoumaybeabletosplithairsandsaythat“willful”islesserthan“reckless”).

The last option is the “gun show loophole” which Senator Lautenberg has spoken out against and which Politifact has rated as “true” in 2012. However, because this is a gray area of the law it would likely be unwise to explicitly advise individuals to take advantage of it.

BACKGROUND CHECKS OF CALIFORNIA CRIMINAL RECORDS (LIVE SCAN)

Background checks (especially criminal background checks) are a reality facing any individual seeking employment, citizenship or changes in immigration status, adoption and especially for licensing of professionals including attorneys and doctors. Approximately 2 million background checks are processed each year (including 1.2 million federal level background checks)

Cleaning up your California criminal record and understanding the criminal background check process can be difficult; hiring an experienced criminal defense attorney to help you clear up charges, arrests or other entries can increase your chances of getting a job or even securing citizenship. Arrests which did not result in conviction or aquittal including letting the applicble filing deadline lapse, alternatively, can be sealed and destroyed under Penal Clode 851.91 which is covered in detail in a prevous post about records of arrest which can be sealed under new California law (CARE Act

In California, a request for Live Scan service(BCIA 8016) can reveal criminal records and information about an individual's criminal background held by both the California Department of Justice (DOJ) or the Federal Breau of Investigation(FBI). The DOJ compiles records of arrest and prosecution ("RAP Sheet") by compiling information from courts, police, probation departments, and district attorneys offices. If there are no records of arrest or conviction, turnaround time is typically 48 to 72 hours. If the background check reveals criminal records, the DOJ manually reviews them for a corresponding disposition and prepares the response according to the application type.

Should your Live Scan background check reveal incorrect or incomplete criminal records (including arrests and conviction) you can challenge them by filing a "Claim of Alleged Inaccuracy or Incompleteness" with the California DOJ or, if arrests or other court disposition information, by court order or at the discretion of the arresting law enforcement agency. Expungement of criminal convictions, findings of factual innocence and other relief are available if the records are accurate but are eligible to be sealed or destroyed. A knowledgeable defense attorney can help you understand all legal options available for cleaning up your criminal record and the results of any Live Scan background check. Lossing a job or employment opportunity because of a criminal record which should not be there is sensless so don't hesitate to call us today!

TENANTS RIGHTS LAWSUITS AGAINST CALIFORNIA LANDLORDS

California tenant's rights are numerous and substantial under California landlord tenant law. Lawsuits against California landlords include numerous legal actions authorizing courts to award money damages and up to three times a tenant's damages. California Civil Code 1940 et. al. These California state laws are in addition to federal housing laws prohibiting landlord discrimination against tenants(ADA, FHEA) as well as local city laws providing renters with relocation fees, rent control, and eviction protection. California Proposition 10 recently expanded these renters rights by overturning California Supreme Court case Costa Hawkins.

Tenants should first ask their landlord about the security deposit since most landlords almost always violate the crystal clear language requiring landlords to return deposits or provide an accounting within 21 days of the tenant moving out("21-day rule"). California Civil Code 1950.5. Courts can order landlords to pay a tenant money damages up to twice the amount of the security deposit amount in addition to returning the original deposit amount.

Landlords in California are also bound by the Covenant of Quiet Enjoyment and the Implied Warranty of Habitability which are included in every California lease. Cal. Civ. Code 1927, 1940.1, 1941. Where an apartment, condominium or another rental unit becomes unfit for the purpose for which it was leased, a landlord may be liable for the difference between the fair market value of the rental unit and the value of the unit with the condition(s). California Civil Code 1940.1. Bed Bug and Cockroaches (vermin infestation) and inadequate weatherproofing are among many of the per se violations which can entitle tenants to certain rights. Tenants may bring also bring a nuisance action where there is a reasonably offensive condition(high-voltage security lights in a bedroom window, noxious fumes filling home living areas) which interferes with use and enjoyment of the property. Cal. Civ. Code 731; Stoiber v. Honeychuck, 10 Cal.App.3d 903, (1980)

Landlords may also be liable for retaliation by evicting tenants with a 3-day notice to pay or quit or raising a tenant's rent after tenant exercises a legal right respecting his home. These renters rights include contacting the city housing authority or other building and safety department about the rental, using the repair and deduct method to fix an uninhabitable condition in the apartment or home Cal. Civ. Code 1942.5. Landlords can be liable up to $2000 in punitive damages for each retaliatory act against a tenant. A Landlord harassment lawsuit may also be included in a tenant's complaint, especially when the harassing behavior was done with the intent to get the tenant to vacate. California courts may order landlords to pay tenants up to an additional $2,000 per incident of landlord harassment. Cal. Civ. Code 1940.2.

State and Federal law also protect tenants from landlord discrimination based on race, gender, familial or another protected status by holding property owners liable for up to $4,000 per discriminatory act. Federal Housing and Employment Act ("FHEA");

In addition to these federal and California landlord tenant law, local laws such as the Los Angeles Municipal Ordinance provide additional tenants rights and remedies. Apartments, homes and other rental units in Los Angeles, for example, are governed strictly by the Rent Stabilization Ordinance (RSO). In addition to providing statutory tenant relocation monies to qualified and eligible tenants and restricting legal causes for eviction, the RSO provides grounds to sue like a legal action for a bad faith landlord eviction. With public policy strongly against slumlords and landlords who illegally try to remove their rental unit(s) from rent control, courts may award treble damages. LAMC

Other actions available to tenants under the Civil Code include Failure to disclose allocation of utilities (Cal. Civ Code 1940.9), Failure to correct building code and other municipal violations within 35 days (1942.4), Unlawful entry (no 24 hours notice)(1954) and failure to install deadbolt locks (1941.3).

A constructive eviction results when a landlord consistently violates one or more of these tenant protection laws and the apartment, home or other rental property is unfit for the purpose for which it was rented. If the tenant vacates the affected unit within a reasonable time of first discovering the condition(s) or issue(s), a tenant is relieved of future obligations to pay rent and be awarded damages related to being evicted. Pierce v. Nash, 126 Cal.App.2d 606 (1954).

Before filing a lawsuit against your landlord, consult with an experienced California landlord tenant attorney or eviction lawyer to get legal advice and possibly a free lawyer consultation about your rights.

Pass California Criminal Background Checks By Sealing Records of Arrest Under New Law!

Californians wanting to clean up their California arrest or other criminal records for employment and other background checks now have new options for relief! Arrest records, including felony records, may be sealed and destroyed if the arrest did not result in a criminal conviction. The California Arrest Records Equity Act (CARE Act, SB 393 ) requires California courts to seal and destroy records of arrest where the prosecutor did not file criminal charges within the statute of limitations, or the defendant was acquitted of the charges trial or no criminal conviction otherwise resulted from the arrest. California Penal Code 851.91. This criminal justice reform is in keeping with the federal government which, dispute being embroiled over a shut down, managed to pass one of the most comprehensive criminal justice reform bills in decades. A federal law aimed meanly at mandatory minimum sentencing laws for non violent drug offender, it does not effect the majority of America’s incarcerated who are overwhelming at jails and state prison facilities.

Before, these arrests would turn up criminal background checks and be used as cause to deny people employment, citizenship, housing, and other immigration statuses. An arrest record is merely evidence of Police contact and suspicion of criminal activity without any involvement from the court or prosecuting agency. Thus, to treat an arrest and a conviction for a crime as even remotely similar is a violation of the arrestee's constitutional right to due process. To deny an individual a living or a place to raise their family just because one Police officer arrested them, is a perversion of our criminal justice system and violates the presumption of innocence at its core. Sealing arrest records is similar to the expungement process for criminal records except that there is no conviction. Like expungment, the contact with police is deemed to have never occurred and disclosed only in rare circumstances of applying to be a police officer or other public official. California Penal Code 851.91; See Also, California Penal Code 1203.4.

Millions of Californians with criminal records of arrest records are eligible for relief and can pass employer background checks for getting hired.. If you were arrested by the Police and have a criminal history in California, and are concerned about criminal records search that could impact your employment, housing or other legal issues, attorneys at Reccius Law are skilled defense lawyers who understand how to use the Court system to clean up your criminal record.

Reccius Law on the Daily Zeitgeist Podcast Discussing the Rescission of the Cole Memo

On January 4, Reccius Law general partner and founder Benjamin Reccius was a guest on the popular podcast The Daily Zeitgeist were he discussed US Attorney General Jeff Session's decision to rescind the Cole Memo--a document which had previously provided protection to state-legal medical cannabis businesses.  Click HERE and jump to minute 22 to hear the interview!  

 

Yet Another Government Study Shows Declining Marijuana Use Among Kids

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Absurd attempts to conflate marijuana use with the deadly opioid crisis continue despite yet more conclusive government research showing declining youth use rates in the wake of cannabis legalization and emerging recreational cannabis markets. The National Institute on Drug Abuse at the National Institutes of Health published the longitudinal study which tracked 5 generations (1975-2016) of adolescent drug use across a number of variables. Monitoring the Future, National Survey Results on Drug Use, 2016 Overview: Key Findings on Adolescent Drug Use. http://www.monitoringthefuture.org//pubs/monographs/mtf-overview2016.pdf.

Authors of the study say that the waning marijuana use rates among kids are likely tied to decreased accessibility. As such, the data suggest that the non-diversion and public safety concerns at the heart of most all cannabis legislation are being addressed by effectively restricting sales to individuals 21 and older or persons 18 or older who have a valid doctor’s recommendation

A closer look at the numbers reveals a more nuanced picture where only 8th graders saw a significant reduction in cannabis use rates (down 2.4% to 9.4%).  9th and 10th grader use saw a dip as well (down 1.5%), but not beyond chance variation.  12th graders, some of whom are 18 and can access medical cannabis, remained virtually unchanged over recent years (non-significant 0.7% rise).  At the very least, this and other recent studies on youth drug use are compelling data that cannabis legalization did not facilitate any significant spike in underage use.

These results portend an even greater uphill battle for prohibitionists who have increasingly relied on the “what about the children” argument to stifle cannabis legalization and economic activity. However, in the “alternative facts” era where opinions are confused for “evidence”, the prohibitionists will surely find some way to torture the data into contradicting this clear, downward trend in youth marijuana consumption.  Regardless, the prohibitionists’ nightmare, worst-case scenario, at least for now, is not only unfounded but completely discredited by the substantial body of data on drug use and kids. If anything, the Study provides considerable support to the legalization movement because it shows that kids are not picking up cannabis—as some might fear—like cigarettes or alcohol.  Parents, therefore, should be more concerned with novel trends like vaping e-juice for which there is little evidence and significant possible health concerns.  Surely, there are products out there that are harmful to children; cannabis, it appears, just isn’t one of them….

California Weed Czar Lori Ajax Says That State Cannabis License Application Will Be Available Online Before January; Temporary Permits Available Even Sooner.

Earlier this month, KQED interviewed California Weed Czar Lori Ajax about the impending state license applications and regulation of cannabis. Click the following to download and listen to the interview:

KQED Interview w/ Lori Ajax (September 8, 2017)

One of the more noteworthy moments came when Ajax said that they are aiming to have an application online before January.  Ajax agreed that this is an "aggressive" timeline for cannabis licensing and regulation in California, but seemed upbeat and confident in its promises.  To be clear--as of the date of this blog post, there are no state licenses.  The only government authorization for marijuana is at the local levels where counties and cities across California are passing ordinances allowing for, in some locals, banning all commercial cannabis activity entirely.

Then, just a few days later, Ajax announced a temporary state licensing program for marijuana businesses during her keynote address before the California Cannabis Business Conference in Anaheim.  While application requirements appear to be minimal, they are issued with the caeviat that temporary license holders may deal in cannabis and cannabis products only with temporary license holders. Click the following to read more about it in MJBusiness Daily:

MJBusiness Daily, "California Plans to Issue Temporary Marijuana Business Licenses" (September 21, 2017)

California City (Kern County) and Port Hueneme (Ventura) are among some of the more recent additions.  Fees and requirements vary so each local's application must be carefully evaluated to properly budget time and money.  Click on the following below to see the ordinances and associated local commercial cannabis business permit and local Conditional Use Permit can be found by clicking on the following:

California City Ordinance, California City Application

Port Hueneme Ordinance, Port Hueneme Application

The long and the short of it is that now is the time to get your local authorization.  Without a local permit or other authorization you are ineligible for a state license (temporary or permanent) so this first step toward full compliance is happening now!