Domestic Violence

Voisine v. U.S.: Closing the Loophole (18 U.S.C. § 922(g)(9))

Voisine v. U.S.: Closing the Loophole

The United States Supreme court, in its decision in Voisine et al. v. United States, clarifies and narrows the application of a section of federal law that was codified more than twenty years ago. In its decision, the Court unequivocally states that the primary aim of the majority decision was to “close [a] dangerous loophole” left open by 18 U.S.C. § 922(g)(9) when it was ratified by the Lautenberg Amendment in 1996.

Specific to the issue examined by the Court, 18 U.S.C. § 922(g)(9) makes it illegal for anyone “who has been convicted in any court of a misdemeanor crime of domestic violence” to possess a firearm.  The codification of this section of the United States Code was enacted by an amendment of the Federal Gun Control Act of 1968 which expanded on the language of 18 U.S.C. § 921. The crux of the legal issue in Voisine focused on one main question: Does a misdemeanor crime that requires only a showing of recklessness qualify as a misdemeanor crime of domestic violence under federal statutes 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9)?

Factual and Procedural History

The named petitioner in this case, Stephen L. Voisine, was a resident of Kingman, Maine at the time of the precipitating event. In both 2003 and 2005, Voisine was convicted of assaulting a woman with whom he maintained a domestic relationship. Maine Revised Statute 17-A § 207 establishes that a person is guilty of assault if he or she “knowingly, intentionally, or recklessly causes bodily injury or offensive physical contact to another person.” A conviction under that section of the revised statute constitutes a misdemeanor domestic violence assault if the victim is a member of the defendant’s family or household. In 2009, Voisine was reported to the local authorities for shooting a bald eagle in Kingman township. During the subsequent investigation, officers found that Voisine was in possession of a firearm, despite his prior convictions for assault. Voisine was charged with various violations, including a violation of 18 U.S. C. § 922(g)(9).

The co-litigant in Voisine, William Armstrong III, also sustained several misdemeanor convictions for assaulting his wife in 2002 and 2008. Two years after his final conviction for assault, Armstong was arrested after a search of his residence for drugs and drug paraphernalia turned up ammunition that was later tied to several firearms that Armstrong had previously transported to another location. Armstrong was subsequently charged with violating 18 U.S.C. § 922(g)(9).

Both Voisine and Armstrong filed motions with the trial courts to dismiss the charges lodged against them, arguing that the language of the state statute covering misdemeanor domestic violence assault does not constitute misdemeanor domestic violence under the federal statute[1]. The litigants argued that, under Maine’s statute, “recklessness” is sufficient to sustain a conviction of misdemeanor domestic violence, whereas under the federal statute it is not. The litigants argued that because of this discrepancy between the state and federal statutes, they had not, in fact, violated the federal statute under which they were both charged.

The United States District Court for the district of Maine denied the defendants’ motions and the United States Court of Appeals for the First Circuit affirmed on appeal. The defendants petitioned for a writ of certiorari from the United States Supreme Court, which remanded the case due to the 2014 decision in United States v. Castleman, 695 F. 3d 582[2]. On remand, the appellate court again held that Maine’s statute constituted misdemeanor domestic violence under the federal statute.

 

Decision and Analysis

The Court in Voisine ultimately found that a conviction for misdemeanor domestic violence under a state statute that merely requires “recklessness” does qualify as a conviction for domestic violence under 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9). The Court was split 6-2 in its decision, with Justice Elena Kagan delivering the majority decision. The Court held that the relevant text of the statute regarding the use of force does not preclude an interpretation of the statute that includes an act of force carried out with recklessness or with a conscious disregard of the substantial risk of causing harm. The Court additionally found that the legislative history of the statute supports this specific reading, stating that Congress expressly intended for the statute to prevent individuals who had sustained misdemeanor convictions of domestic violence from possessing or transporting firearms specifically because many states’ statutes provide definitions of misdemeanor offenses that only reckless intent. The Court’s reasoning was that, if these alternate definitions of misdemeanor domestic violence were not included in the statutory prohibition, the federal statute would not be an effective enforcement tool in the majority of jurisdictions.

[1] The litigants also challenged that the charges violated their constitutional right to bear arms under District of Columbia v. Heller, 554 U.S. 570, however the crux of the Court’s decision rested with the litigants’ challenge to the federal statute itself.
[1] The Court is Castleman held that a conviction of misdemeanor domestic assault under Tennessee law does constitute a misdemeanor crime of domestic violence under the relevant federal statute because offensive touching satisfied the “physical force” requirement of the federal statute.

 

Dissent

Justice Clarence Thomas and Justice Sonya Sotomayor were the two dissenting justices on the panel. Justice Thomas drafted the dissent, in which he argued that the term “use of force” necessarily required intentional conduct to be included under statutory firearm prohibition. Justice Thomas further argued that, the Court has historically interpreted the term “use” to require intentional conduct in order to maintain consistency with the manner in which the term is used in other sections of the statute. Justice Thomas argues that the Court’s decision erroneously combines the concepts of recklessly causing force and recklessly causing harm through the intentional use of force. Because the Maine Revised Statute does include reckless conduct whereas the federal statute does not, any conviction under the state statute should not trigger the statutory ban on firearm possession. Justice Thomas also addressed the Constitutional challenge, arguing that the Court’s decision overreaches and as such is in conflict with the litigants’ second amendment rights.

 

State Sovereignty and Forced Uniformity

The 50 states that comprise the United States are all separate and sovereign entities. Each maintains its own constitution, government and court systems. Each maintains a legislative body or bodies charged with enacting state statutes, an executive body that is charged with promulgating regulations and statutes, and a judicial body charged with interpreting and enforcing those regulations and statutes. In the large majority of legal issues that come before state courts, that state’s Supreme or Appellate court is the final interpreter of those issues. State appellate courts receive an average of 270,000 cases for review annually. By way of comparison, federal appellate courts receive less than one-quarter of that amount[3].

Diversity in the promulgation and codification of state laws or statutes is one of the mainstays of state sovereignty. Diversity of codes and statues among states is integral to an individual state’s ability to maintain a functional and, hopefully, just court system. The code of each state necessarily reflects democratic sentiment as to what the current law is at the time the law is enacted or amended. And the state court’s interpretation of those laws reflects the legislative intent behind the enactment or amendment.

Unless the issue is one over which the federal government retains exclusive jurisdiction, the interpretation of a section of the state statute should be left up to the state legislature that enacted it, and the state judicial body tasked with enforcing it. States cleave to the idea that they are in control of all aspects of government over which the state itself retains jurisdiction. Even when the federal and state governments diverge on specific issues of law, a modicum of respect and deference is generally observed. Historically, efforts to create a “uniform code” have been largely unsuccessful, with the exception of the Uniform Commercial Code and the Model Penal Code. Uniform acts can only become state law if they are enacted by the state legislature, and the majority of uniform code acts have only ever been considered or adopted by a very limited number of state legislatures.

The Supreme Court of the United States is, among myriad other things, tasked with reviewing legal issues that have not been or cannot be resolved by a state court. A large majority of these issues have wide-reaching implications, or can and will set significant legal precedent. However, in recent years, SCOTUS has come under fire for overstepping its reach and unceremoniously treading on the underskirts of states’ sovereignty. In Bush v. Gore, 531 U.S. 98 (2000), Chief Justice Ruth Bader Ginsburg stated in her scathing decent that, “All respect for the office of the presidency aside, I assumed that the obvious and unadulterated decline of freedom and constitutional sovereignty, not to mention the efforts to curb the power of judicial review, spoke for itself.” Ginsburg was unabashed in her lambasting of the highest court in the nation for what she, and others, have alleged is a clear violation of the role of SCOTUS in its review of cases that necessarily require it to reexamine or interpret the original intent of a state legislature in the amendment or enactment of a code or regulation.

[1] Examining the Work of the State Courts, Court Statistics Project, National Center for State Courts, http://www.courtstatistics.org/other-pages/examining-the-work-of-state-courts.aspx

In examination of petitions that tread even reluctantly into the territory of re-interpreting the meaning behind any state code or regulation, or the definitions thereunder, SCOTUS has an obligation to each and every state in the nation to give deference to that state legislature’s intent. Re-defining a term or group of terms that underpin any state law is a slippery slope that leads sharply away from state sovereignty and towards a more totalitarian form of governing against which this nation has resisted for centuries.

Allowing SCOTUS to reinvent the legislative history behind any state code or regulation is tantamount to deciding a crucial legal issue by administrative fiat, as opposed to cogent, careful, legal analysis. For the Voisine Court, basing its decision on the idea that the federal statute does not preclude inclusion of a specific act, when it also does not specifically include it, is dangerous territory. Especially when the crux of the Court’s argument rests on a federal judiciary’s re-interpretation of a state legislature’s original intent.

Summit Defense Criminal Attorneys handles domestic violence cases in San Jose, CA and with 6 bay area offices to better serve you.

DOMESTIC VIOLENCE IN THE BAY AREA – ROLE OF COMPLAINING WITNESS

Arrested for Domestic Violence in the Bay Area?

One of the most common questions Domestic Violence arrests provoke is what is the role of the complaining witness in deciding to or influencing charging and prosecution.

DOES VICTIM HAVE TO TESTIFY?

It is well known that a victim of domestic violence does not choose whether charges are brought against his or her significant other. The questions of whether a domestic violence victim have to testify in a domestic violence trial depends on several factors.

You can be sure that the District Attorney will subpoena the victim to appear on the day of trial.

WHAT HAPPENS IF WITNESS DOES NOT SHOW UP?

Any individual that does not respond to a subpoena properly served, will be subject to a bench warrant and an Order to show cause as to why that witness did not appear in court. This applies to domestic violence victims. If no good cause is shown for non-appearance, the court will hold the witness in contempt of court.

CAN I SHOW UP AND NOT TESTIFY?

If the witness appears in court but refuses to testify, California Civil Code section 1219(b) limits the penalties the court can impose on the person. That is, a court can not imprison a victim of domestic violence for contempt of court and can refer the that person to a domestic violence counselor.

IF I REFUSE TO TESTIFY, WILL THE DISTRICT ATTORNEY DISMISS THE CHARGES?

Unfortunately, the answer to this question is…. IT DEPENDS. The District Attorney will have to consider the strength of the evidence given the refusal to testify. Factors such as injuries (and photographs of those injuries), witnesses, prior testimony/statement of Complaining witness and defendant’s statement will be evaluated. It may be that the prior statement of the victim of Domestic violence is admissible as an exception to the hearsay rule.

If you or your significant other have been arrested or charged with Domestic Violence, contact Summit Defense Domestic Violence Lawyer for a free consultation. (800) 929-0451

Santa Clara Mandatory Domestic Violence Arrest Policy (CA Penal Code 273.5)

California Penal Code section836(d) allows an arrest by an officer of a  crime that does not take place in their presence if:

  1. The peace officer has probable cause to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.
  2. The peace officer makes the arrest as soon as probable cause arises to believe that the person to be arrested has committed the assault or battery, whether or not it has in fact been committed.

While this section could, in theory apply to any crime committed, law enforcement agencies will, in fact, make an arrest in virtually every domestic violence case.  The most common domestic violence arrest in Santa Clara is for violation of penal code section 273.5 or 243e.  However, any crime which is made against a “domestic partner” will trigger an immediate arrest under this section. 

According  to a manual published in 2014, (DOMESTIC VIOLENCE PROTOCOL FOR LAW ENFORCEMENT), any Santa Clara Agency must make an arrest if called in to a domestic violence investigation whether they believe charges will be filed or not.  The following agencies are obligated under this protocol.

  • · CALIFORNIA HIGHWAY PATROL
  • · PALO ALTO POLICE DEPARTMENT
  • · CAMPBELL POLICE DEPARTMENT
  •  · SAN JOSE POLICE DEPARTMENT
  • · GILROY POLICE DEPARTMENT
  • · SAN JOSE STATE UNIVERSITY PD
  • · LOS ALTOS POLICE DEPARTMENT
  • · SANTA CLARA COUNTY DISTRICT ATTORNEY’S OFFICE
  • · LOS GATOS- MONTE SERENO POLICE DEPARTMENT
  •  · SANTA CLARA COUNTY SHERIFF’S OFFICE
  • · MILPITAS POLICE DEPARTMENT
  • · SANTA CLARA POLICE DEPARTMENT
  •  · MORGAN HILL POLICE DEPARTMENT
  • · SUNNYVALE DEPARTMENT OF PUBLIC SAFETY
  •  · MOUNTAIN VIEW POLICE DEPARTMENT Chief Scott Vermeer

 

The protocol makes a “Pro Arrest policy” in domestic violence incidents and DEMANDS that an arrest be made.  Further, in circumstances of “mutual combat”, the officers must determine who the “primary aggressor” is and arrest that person. 

The manual (link below) describes the various crimes that may be considered “domestic Violence” thus triggering mandated arrest upon a probable cause determination.  These are:

  • 136.1 – Intimidating or dissuading a witness
  • 148 – Resisting arrest
  • 166 – Violation of a court order – typically criminal court order
  • 187 – Murder
  • 207 – Kidnapping
  • 236/237 – False imprisonment
  • 236.1 – Human Trafficking
  • 240 – Assault
  • 243 (a) – Battery
  • 243 (e) – Battery – Spousal/cohabitant/parent of suspect’s child/former spouse/fiancée/fiancé/dating and former dating relationship abuse
  • 243 (d) – Battery with serious bodily injury
  • 243.25 – Battery of an elder or dependent adult, who knew or should have known that the victim is an elder or dependent adult
  • 245(a)(1) – Assault with a deadly weapon
  • 245(a)(4) – Assault by means of force likely to produce great bodily injury
  • 246(a) – Shooting at an inhabited dwelling
  • 261.5 – Unlawful sexual intercourse
  • 262 – Spousal rape, eliminates the reporting and corroboration 10 requirements. Now consistent with P.C. 261
  • 270.6 – Leaving California with the intent to avoid paying spousal support, after having notice that a court has made a temporary or permanent order
  • 273.5 – Abuse of spouse, former spouse, cohabitant, former cohabitant, parent of suspect’s child, fiancé, current or previous dating relationship
  • 273.6 – Violation of a protective order (Cross ref to CCP 527.85 pg 8) Typically family law or civil protective orders 20. 273a – Child abuse / endangerment
  • 368 – Crimes against elder or dependent adults
  • 417 – Brandishing a weapon
  • 418 – Forcible entry into the home of another
  • 422 – Criminal threats
  • 591 – Malicious destruction of a telephone line
  • 591.5 – Unlawful removal, damage of wireless communication device, or obstructing use of such device to summon law enforcement
  • 594 – Vandalism
  • 597a – Cruelty to Animals
  • 603 – Forcible entry with damage to property
  • 646.9 – Stalking
  • 653m (a) – Obscene or threatening calls or electronic contacts
  • 653m (b) – Making repeated, annoying telephone calls or electronic contacts.
  • 653m (e) – 653m (a) and (b) are violated when a person knowingly permits any telephone or electronic communication under the person’s control to be used for the purposes prohibited by these subdivisions.
  • 29825 – Restrained person possess or attempt to purchase firearm
  • 25400 – Possession of a concealed firearm
  • 18250 – Confiscation of firearms (Authority for seizure).
  • 25850(a) – Possession of a loaded firearm
  • 653.2 – Electronically distributing, publishing, e-mailing, or making available for download, personal identifying information of an electronic message of a harassing nature, about another person, with the intent to place the person in reasonable fear for his or her safety, or his or her immediate family’s safety, and for the purpose of imminently causing the person unwanted physical contact, injury or harassment by a third party.
  • 528.5m – Knowingly and without consent, credibly impersonating another actual person through or on an Internet Web site or by other electronic means, for purposes of harming, intimidating, threatening, or defrauding another person.
  • 664 – Attempt of any of the above

 

A full copy of the manual can be seen here: goo.gl/qFOAqi

 

Bay Area Domestic Violence Bail schedules – Should I Bail Out? (CA Penal Code 273.5)

Bay Area Domestic Violence Bail schedules – Should I Bail Out?

Often, a domestic violence arrest triggers an immediate dilemma of whether to bail out or wait for a court proceeding.  Bail is the system by which those accused of a crime can essentially mortgage their freedom by posting a bond in court.  The amount of the bond depends on the  crimes alleged as well as the county the crime is alleged to have occurred in and is set by the county jail officials in charge of the  booking process.

What is unique about domestic violence arrests(CA Penal Code 273.5) is that while the offense is often charged as a misdemeanor, the initial arrest is almost always a felony arrest.  As such, the bail amount initially set by the jail is likely to be reduced dramatically and often a defendant can be released without bail.  Additionally, the District Attorney may opt not to file charges at all in which case bail is no longer necessary.

In Santa Clara, the initial bail set for domestic violence by the county’s bail schedule is $25,000.  In San Mateo and Alameda and San Francisco, bail for a felony domestic violence arrest is $50,000.

Somethings to consider when deciding whether to bail out after a domestic violence arrest:

1. What is the court date assigned to my case if I stay in custody?

2. What is the likelihood of the District Attorney filing charges against me?

3. What is the likelihood of an Own Recognizance release assuming I am charged?

4. Would the bail premium preclude financial ability to retain counsel

The answers to these questions will often dictate a person’s decision to post bail or not.  Summit Defense Criminal Attorneys offers a free consultation and can help you prioritize these and other decisions if you are arrested for domestic violence. 

Immigration Advise for Criminal Arrests

You were arrested for DUI (CA Vehicle Code section 23152 or 23153), but the case got dismissed because the police officer made a mistake.  Or maybe you were arrested for domestic battery (penal code 243E or penal code 273.5), but the District Attorney didn’t file charges after your husband sent a letter saying it was all a misunderstanding.  Or perhaps the DA did file charges, but then dropped them after you stayed out of trouble for 6 months and completed anger management classes.  Now you needs to travel overseas.

You should be good to return, right?  At least if you give her something from the court saying the charges were not filed or dismissed?  Maybe not.  Not all immigration consequences require a conviction.  And a noncitizen admitted on a nonimmigrant visa, such as the H-1B work visa, E-2 investor visa, F-1 student visa, B-1/B-2 visitor visa, etc., is in a more precarious situation than a permanent resident (green card-holder).

This blog post discusses the health grounds of inadmissibility that potentially apply to a nonimmigrant arrested for DUI or domestic violence.  Consult with an immigration attorney for advice on the consequences specific to a particular client.

Prudential Revocation: Cancelling a nonimmigrant visa for suspected ineligibility or for virtually any reason at all if done in the exercise of the Secretary of State’s discretion.

 

DUI Arrests

An arrest or conviction for driving under the influence of alcohol (or another crime committed while under the influence) raises the issue of whether a noncitizen is inadmissible to the U.S. for having a mental disorder with an associated harmful behavior.  This potential ground of inadmissibility can cause problems for both visa applicants and nonimmigrants who already have a visa.

Visa Applicants

A consular officer will refer a nonimmigrant visa applicant for a medical exam by a designated physician (panel physician) if the applicant has one alcohol-related arrest or conviction in the last 5 years, 2 or more alcohol-related arrests or convictions in the last 10 years, or other evidence to suggest an alcohol problem.  9 FAM 302.2-7(B)(3) (unless otherwise noted, all citations are to the Department of State Foreign Affairs Manual, available at https://fam.state.gov/Fam/FAM.aspx).  Alcohol-related arrests include not only DUI, but also public intoxication and other arrests where alcohol was a factor.

At the medical exam, the physician will determine whether the applicant is “Class A,” which is regulation-speak for medically ineligible for a visa.  There are various grounds of medical ineligibility (inadmissibility).  The one relevant to an alcohol-related arrest is section 212(a)(1)(A)(iii) of the Immigration and Nationality Act, which makes a noncitizen inadmissible if he or she has:

  • A current mental disorder with an associated harmful behavior, or
  • A past mental disorder with an associated harmful behavior, if the harmful behavior is likely to recur or lead to other harmful behavior in the future.

9 FAM 302.2-7(B)(1).  The mental disorder must be one recognized by the current version of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5 at present).  The disorder could be Alcohol Use Disorder (Mild, Moderate, or Severe), Depression, or any other recognized disorder so long as there is an association between the disorder and the applicant’s harmful behavior.  See 9 FAM 302.2-7(B)(2), (5)(a).  Harmful behavior consists of actions that cause “(a) Serious psychological or physical injury to the alien or to others (e.g., suicide attempt or pedophilia); (b) A serious threat to the health or safety of the alien or others (e.g., driving while intoxicated or verbally threatening to kill someone); [or] (c) Major property damage.”  9 FAM 302.2-7(B)(2).

The panel physician applies his or her clinical judgment to determine whether a visa applicant has a mental disorder with an associated harmful behavior.  See 9 FAM 302.2-7(B)(2).  In making that determination, the panel physician knows the visa applicant has a motive to minimize or misrepresent her alcohol use and any negative consequences of it.  The physician therefore does not necessarily take the applicant’s answers at face value.   This injects a significant amount of subjectivity into the diagnosis.  Whether the nonimmigrant engaged in harmful behavior can also be a subjective determination if there was no conviction and the nonimmigrant denies that she actually drove under the influence or otherwise engaged in harmful behavior.  The physician must decide whether to believe the applicant or not.  Even more subjective is the physician’s determination of whether the harmful behavior is likely to recur in the future.  Crystal ball, anyone?

What is clear, though, is that avoiding a Class A finding is more difficult if the DUI or other alcohol-related offense occurred within the last 12 months.  Why?  Because a current mental disorder with an associated harmful behavior will always make the visa applicant Class A and thus inadmissible.  9 FAM 302.2-7(B)(7).  Sustained, full remission of a mental disorder with an associated harmful behavior requires showing that for the past 12 months (minimum) there has been either: no substance use, no mental disorder, or no associated harmful behavior.  9 FAM 302.2-7(B)(2).  So, if the panel physician finds the visa applicant currently has a mental disorder, then her only shot at avoiding inadmissibility is to show she does not currently have an associated harmful behavior and that the harmful behavior likely will not recur in the future.  See 9 FAM 302.2-7(B)(7).  That is impossible if the applicant has a DUI or other harmful behavior within the last 12 months.  See 9 FAM 302.2-7(B)(2).

Visa Revocations

What about a nonimmigrant arrested for DUI after she receives a visa?  Well, the Department of State continues to keep tabs on nonimmigrants after visa approval.  The FBI forwards rap sheet data to it on a daily to weekly basis.  Discovery of a DUI arrest or conviction within the last 5 years will almost always result in prudential revocation of an existing nonimmigrant visa.  9 FAM 403.11-5(B).

Only offenses involving driving under the influence trigger this near-certain revocation; more discretion exists for other types of alcohol-related arrests.  9 FAM 403.11-5(B).  (Also, persons traveling on a diplomatic or official visa are not subject to the health grounds of inadmissibility, so any revocation of those visas is done on a purely discretionary basis.  9 FAM 403.11-4(C)(2).)

Unfortunately, the Department of State is not required to notify a nonimmigrant of revocation, either in advance or upon making the decision.  9 FAM 403.11-4(A)(1), 403.11-5.  In practice, visa-holders rarely seem to receive advance notice.  A nonimmigrant often does not discover that her visa is worthless until an airline denies her boarding to return to the U.S.  (Airlines must submit their passenger lists in advance and are told to deny boarding to a passenger with a revoked visa.  9 FAM 403.11-4(A)(2).  The airlines do this scrupulously because they face a fine of up to $1,000 and the cost of flying the passenger back to the country of origin if they don’t.  See 9 FAM 403.11-4(A)(2).)

The visa likely will be physically voided (cancelled) in the nonimmigrant’s passport if she goes to the consulate to inquire about why she could not board her flight.  The visa will be cancelled even more quickly if U.S. Customs and Border Protection has a presence at the foreign airport, as it does in Canada; Abu Dhabi, UAE; Dublin, Ireland; and many European countries.  One of my clients told me how this happened to him at an airport in Europe on his way back from vacation: A U.S. CBP officer (in uniform, but without a sidearm) appeared at the ticket counter, took the passport from the airline employee, ordered my client to stand 20 feet away, used a pen to cancel the visa without prejudice, and then told him to “take it up with the Embassy.”

Taking it up with the Embassy after cancellation can be a lengthy process.  It requires going through the entire visa application process again with the addition of a medical exam.  9 FAM 403.11-6(B).  The process may take anywhere from a few weeks to several months.  For example, work visa interviews in India during the summer of 2016 had to be scheduled more than 2 months in advance.  The medical exam that follows the visa interview may take a week or two, and administrative review by the consular officer upon receipt of the exam could take days or weeks longer.  This delay could result in termination of an H-1B worker from her job or an F-1 student missing the start of classes.

Domestic Violence Arrests

Arrests for Domestic Violence can have consequences for a nonimmigrant.  The arrest will result in questions the next time the nonimmigrant applies for a visa.  The nonimmigrant’s answers to the questions at the visa interview may or may not trigger inadmissibility for admission to a crime involving moral turpitude, but here I will focus on how the answers also raise the issue of medical inadmissibility.

Medical Inadmissibility – Shanghai, China

The U.S. Consulate in Shanghai now appears to require a medical exam for every nonimmigrant visa applicant who has an arrest for domestic violence.  As with DUIs, the purpose of the exam is to determine whether the visa applicant has a current mental disorder with an associated harmful behavior or a past disorder with an associated harmful behavior that is likely to recur or lead to other harmful behavior.  This development has not been previously reported in American Immigration Lawyers Association (AILA) liaison reports or message boards.  It also is not the policy at the other consulates where I practice, or at least not yet.

I learned of Shanghai’s policy the hard way.  One of my clients applied for renewal of a visa there after an arrest for misdemeanor domestic battery that was not prosecuted.  The consular officer did not find him criminally inadmissible, but referred him for a medical exam.

In addition to the standard TB and blood tests, the exam consisted of an interview by the panel physician plus two separate interviews by psychologists and a multiple-choice diagnostic test.  At least they didn’t make him do a Rorschach inkblot test!  Fortunately, the panel physician declared my client “normal” and he eventually received his visa, albeit more than a month after the visa interview.

Staff at the medical clinic stated that medical exams are now required for all visa applicants in Shanghai with a domestic violence-related arrest.  This is an unsettling development because whether a visa applicant is medically inadmissible turns on the panel physician’s subjective clinical judgment.  Thus, an “immigration-safe” result in criminal court, such as non-filing, diversion, or dismissal of the charges, provides no protection.

(Source: Scott Mossman/Immigration attorney)

Bay Area Proposal to Allow Landlords to Evict Tenants Solely on Arrests

Under a proposed program currently debated in San Jose (Crime Free Multi Housing Program), Police Departments would share crime arrest data with Landlords who would than be able to evict tenants based solely on arrests.  Proponents of the program suggest that landlords should not have to wait for a conviction prior to eviction as these are often delayed and the goal is to make the neighborhood safe as soon as possible.  Under the proposal, an entire family could be evicted from their residence if one of the family members were arrested for a drug crime (CA Health and Safety Code 11357-11362)  or prostitution (CA Penal Code 647(b)) or charges of domestic violence (CA Penal Code 273.5)

One can imagine that bay area landlords are delighted at any excuse to evict long term tenants from their property.   Given the booming rental market, landlords already have an incentive to evict tenants with below market rents.  This proposal would allow large scale evictions based on allegations of a crime.   The pitfalls of this proposal are many:

This proposal would allow a landlord to evict victims of crime as residents and those arrested for crime often reside in the same home.  For example, if a man were arrested for domestic violence against his spouse, this proposal would allow the landlord to evict the entire family including the victim of the crime.

The proposal allows for discriminatory action and creates an incentive for false allegations of crime meant to result in arrests and proper evictions of otherwise compliant tenants.

Most importantly, an arrest does not amount to a finding of guilt.  Indeed, many arrests do not result in conviction or even a charging by the District Attorney’s office.  Our system of laws depends on reverence to the principle of innocent until proven guilty and this proposal leads to severe consequences (eviction) based on an allegation alone.

We need to decide what sort of society we want to live in and at what costs.  We cannot always justify sacrificing civil liberties at the expense of safety.

Man Wanted in Truckee in Conjunction with Domestic Violence Case (CA Penal Code 273.5 and 243(e)(1))

A 30-year-old man is currently being sought by the Truckee Police Department in conjunction, not only with an incident in a parking lot with a woman, but also for domestic violence, kidnapping, robbery, and child endangerment. Local law enforcement officials were alerted to the case by a woman who called for help from the parking lot of the Gateway shopping center, located on Donner Pass Road. Although the suspect fled the scene, police are still on the lookout for this allegedly dangerous man.

The state of California takes claims of domestic violence quite seriously. In fact, there is no one law prohibiting ‘domestic violence’ specifically, it is made illegal by a number of different portions of the Penal Code. For example, CA Penal Code 273.5 makes it illegal to perpetrate any kind of corporal (bodily) injury upon a spouse or someone you live with. Even if you do not currently live with that person, if you have ever lived with them, this may be considered domestic violence and covered under this section of the law. On the other hand, CA Penal Code 243(e)(1) prohibits what is called ‘domestic battery,’ or enacting any type of force or violence on a spouse or cohabitant.

Violations of CA PC 273.5 are treated as ‘wobblers,’ meaning that the facts of each particular case dictate whether or not prosecutors will try it as a misdemeanor or as a felony. A misdemeanor conviction could mean up to 1 year in county jail and a $6,000 fine, whereas a felony domestic violence conviction could mean facing up to 4 years in state prison. Furthermore, a violation of CA PC 243(e)(1) is usually treated as a misdemeanor, bringing with it a possible $2,000 fine and up to 1 year in county jail.

Witness Intimidation Found in Domestic Violence Case (CA Penal Code 136.1)

A 31-year-old man has recently been convicted of having intimidated a witness in a domestic violence case.  Authorities claim that this man was in a romantic relationship with a woman who accused him of having been psychologically abusive.  After ending the relationship, the man sent the woman an inordinate amount of text messages and tried to call her continually.  Once, according to witnesses, he attempted to intimidate the victim’s mother and children.  After this incident, things seemed to only get worse.  The man followed the woman, her mother, and her children into their home, vandalized expensive property belonging to the victim, and threatened them repeatedly with a firearm.

Having been influenced by what we seen on television, we often think of intimidation of witnesses to be something relegated to members of organized crime.  However, this violation of the law is more common that one might think.  California Penal Code 136.1 makes it a crime to attempt to or succeed at preventing a witness from reporting a crime or testifying about that crime.  This violation of the law is considered a California ‘wobbler,’ meaning that it is up to the discretion of the prosecutors to determine whether they will treat it as a misdemeanor or as a felony.  Usually, this decision is made by taking into consideration all the facts of a particular case.

If convicted of intimidating a witness as a misdemeanor, you may be sentenced to up to 1 year in county jail and be subject to a $1,000 fine.  However, if you are convicted of a felony count of the same, you may expect to spend up to 4 years in state prison and pay a $10,000 fine.  In the above case, there will likely be what are known as ‘sentencing enhancements’ due to the fact that the assailant used a firearm to accomplish the crime.  These enhancements include a maximum additional 10 years to an individual’s sentence.

Man Convicted of Felony Domestic Violence (CA Penal Code 273.5)

A 61-year-old man has recently been convicted of several felony offenses related to a June 2013 incident in which he stabbed his girlfriend with a screwdriver.  Although the victim was able to eventually escape, it was not before he managed to stab her 32 times on her face, neck, stomach, back, and arms.  He was taken into custody on charges of felony corporal injury of an intimate partner with a deadly weapon causing great bodily injury, assault with a deadly weapon with great bodily injury, and a DUI.

California law provides for specific offenses to be applied when it comes to cases of domestic violence.  For example, CA Penal Code 273.5  (“Corporal Injury on an Intimate Partner) makes it a crime to inflict bodily injury on someone who is your spouse or intimate partner, and it is not treated lightly, as victims often experience long-lasting effects from the trauma of such events.  In California, the phrase ‘intimate partner’ may apply to several persons:  a spouse, ex-spouse, cohabitant, former cohabitant, a fiancé or ex-fiancé, the parent of your child, or someone you are dating or used to date.

Though lesser charges of domestic violence exist, when serious bodily injury is done to an intimate partner, the violation falls under CA PC 273.5.  It is a California ‘wobbler,’ meaning that prosecutors may treat it either as a misdemeanor or as a felony, depending on the facts of the case.  While misdemeanor penalties amount to 1 year in county jail and a $6,000 fine, felony consequences are harsher, you could spend up to 4 years in state prison.  For the man in the case above, sentencing considerations will surely take into consideration his use of a deadly weapon in the attack; enhancements may apply.

 

Domestic Violence Charges and Restraining Orders (CA Penal Code 273.5)

According to California Partnership to End Domestic Violence of Sacramento, at least 1 woman out of every 4 (and 1 man out of every 7) has experienced some type of physical abuse or violence by their intimate partner.  Although domestic violence is more common than you may think in all types of intimate partnerships, there are certain legal maneuvers that anyone either dealing with domestic violence, or has been accused of domestic violence charges or violating a restraining order (CA Penal Code 273.5). One such way in which the law assists those who are affected by domestic violence is the Domestic Violence Restraining Order (DVRO).

In general, a restraining order is a legal document that is meant to protect individual persons from being harmed, whether this be physical harm, financial harm, or emotional harm.  Restraining orders can also protect you from being harassed or stalked.  A Domestic Violence Restraining Order, however, is a particular kind of restraining order.  You may ask for such a restraining order if the person who is harming you (or threatening to harm you) is someone that are or used to be intimate with (someone you are dating/dated or someone you are married to, separated from, or are divorced from).  You can even get a DVRO if the person harming or threatening you is also the parent of your child or that you simply live with.

Getting a DVRO means that you can legally order that an individual stay away from you, avoid contacting you, leave the place where you both live, and stay away from your workplace and car.  Such a restraining order can last for up to 5 years and it’s free to file, unlike other types of restraining orders.