WA: 2 DUIs Lose Guns

[Lawdog]

Washington Court Says Two DUIs Can Cost You Your Gun Rights

[Blackwater 53393]

If there’s no weapon present or involved, there can be no reason for any such action!!

 

I detest DUI activity almost as much as I do child abuse and and animal cruelty!!  But if it doesn’t involve the use or misuse of firearms, there should be no legal justification for denying those rights!!

[John Kloehr]

Have this in Tennessee. No carry permit/license for a DUI in the last 5 years or 2 in the last 10. Does not affect buying guns, just carry. And permit-less carry requires ability to get a permit so no free pass there.

 

I do think Tennessee is a bit "tight" on this and also recognize the state has a long history of alcohol abuse. Too tight means there is a zero tolerance policy with driving at 0.08 and carrying at 0.02 (lowest detection level for the breathalyzers) but also with a ban on public drinking while carrying including wine tasting (not one sip).

 

Certainly Hemani is encouraging that some limitations might be excessive. Rahimi cited dangerousness, Hemani added "being completely out of it" (paraphrased).

 

Nevada used to have both driving and carry at 0.10, highways funds caused a change for driving to 0.08. Nevada recently moved to also change carry to 0.08. What activities might have different limitations? Is "not one sip" or 0.02 the right standard? And per the article and reposted suit, is DUI history a reasonable standard for carry, or more infringingly, possession?

[Blackwater 53393]

Basically, if you’re in Tennessee and you’re going to drink, you put the guns away first! No access!!

 

I seldom, if ever, drink and when I do my guns are put away.

 

I carry, consistently, anywhere that I go to eat, whether alcohol is served or not so long as carry is permitted, (I don’t go into places that prohibit carry unless it’s absolutely necessary) because I don’t drink and I’m usually the DD when I go with a group.

 

I don’t intentionally do things  that could cause me to lose my carry permit! It doesn’t make sense to me!

[Texas Joker]

How will the new Supreme Court casual use of drugs not causing prohibited person status affect this?

[El Chapo]

49 minutes ago, Texas Joker said:

How will the new Supreme Court casual use of drugs not causing prohibited person status affect this?

 

It won't because it doesn't present the issue of criminal convictions.

 

I have little doubt that using misdemeanors other than domestic violence to eliminate gun rights will not hold up in the long run, but it's going to require litigation.

[John Kloehr]

3 minutes ago, Texas Joker said:

How will the new Supreme Court casual use of drugs not causing prohibited person status affect this?

 

Hemani ruled narrowly on the question of occasional or casual use. It specifically did not rule on active or public intoxication. It also did not rule on if categorical bans on a class of people is constitutional. It did cite dangerousness as a requirement for disarming.

 

History and tradition does support temporarily disarming an intoxicated individual. At minimum, this would be until the individual sobers up. To ban carry for 5 or 10 years based on documented intoxication while driving (and arguably dangerous operation of a motor vehicle) in Tennessee is clearly a big stretch to reach firearms, but automobiles did not exist at the founding and dangerousness is part of testing for constitutional disarmament. At the same time, I note Tennessee will revoke and refuse to issue carry permits for those behind in child support. Not paying child support includes potential suspension of driver's license, professional licenses, and business certificates. A challenge under Hemani (for guns) might work as the restrictions taken together show the motivation is not dangerousness but social. Big problem for any case is the plaintiff will not get much sympathy.

 

The Washington law in the OP is not a carry ban, it is a complete possession and purchase ban for seven years. This goes far beyond the immediate period of inebriation and could also serve as a test case under Hemani. Still two problems... Lack of sympathy for a plaintiff with multiple DUIs, and while Hemani supports individual findings of dangerousness, it did not rule on a legislature finding a class is dangerous.

 

In short, the state will argue Hemani considered class bans constitutional and those convicted of DUI are a dangerous class. The plaintiffs will argue dangerousness when driving does not equate to dangerousness with firearms. While there may be a 2A win in this somewhere, I do not see it coming at a preliminary stage or at summary judgement before trial.

[Texas Joker]

@John Kloehr Until 1964 disarming  "dangerous" people only occurred during incarceration period. Prior to '64 By contrast once felons left prison they could again buy arms so there is no historical precedent.

 

DUI person convicted serves time and if they injured or killed others while inebriated are convicted of the additional crime. 

 

I see the posed current states argument but I still don't see how the logic or historical context support it.

[Texas Joker]

1 hour ago, El Chapo said:

 

It won't because it doesn't present the issue of criminal convictions.

 

I have little doubt that using misdemeanors other than domestic violence to eliminate gun rights will not hold up in the long run, but it's going to require litigation.

Not sure even domestic violence is solid grounds. As distasteful as it is historically it wasn't a reason to remove a Civil right.

[John Kloehr]

54 minutes ago, Texas Joker said:

@John Kloehr Until 1964 disarming  "dangerous" people only occurred during incarceration period. Prior to '64 By contrast once felons left prison they could again buy arms so there is no historical precedent.

 

We may be entering an age where rights restoration returns, though as a formalized and individualized process rather than automatic. There is history supporting banning of classes though those may not hold up to scrutiny. Examples include natives who were not part of the people, and Catholics who would not take a loyalty oath.

 

As for incarceration, probation and parole are new in constitutional (historical) terms. Starting in the late 1800s with wide adoption by the mid 1900s.  When on probation or parole, an individual is still under sentence and can have limited rights. Not just firearms, consent to search is a typical waived right as a condition of supervised release.

 

Not only are these post-incarceration restrictions new, prisons did not exist at the founding. It was not just murder, but also theft, burglary, counterfeiting, and other crimes could invoke the death penalty by  hanging. As this country changed to use prisons instead of physical death, the ancient practice of civil death came with it. Loss of voting rights is an older example. Loss of firearms rights is more recent. And as in the previous paragraph, no warrant required for search while under court supervision. Civil death can also mean loss of public assistance including food stamps, inability to get professional licenses, and more.

 

With Hemani not giving an opinion on disarming dangerous groups, the legislature might be able to define certain criminals as dangerous, especially when considering recidivism and age. The following two charts also support restoration at certain ages:

 

 

3/4 of violent offenders commit another crime within a decade.

 

 

Younger criminals are more likely to re-offend.

 

I don't foolishly think any firearms restriction will stop a criminal, it is at best an additional charge or enhancement to extend prison time. The Supreme Court seems to bless disarming genuinely dangerous people, both individually and as definable groups. Young violent criminals is such a group. Old violent criminals, not so much. Young non-violent criminals (still at felon levels)... Violence was not required for civil death, there are other criminal thresholds.

[El Chapo]

9 hours ago, John Kloehr said:

 

Hemani ruled narrowly on the question of occasional or casual use. It specifically did not rule on active or public intoxication. It also did not rule on if categorical bans on a class of people is constitutional. It did cite dangerousness as a requirement for disarming.

 

History and tradition does support temporarily disarming an intoxicated individual. At minimum, this would be until the individual sobers up. To ban carry for 5 or 10 years based on documented intoxication while driving (and arguably dangerous operation of a motor vehicle) in Tennessee is clearly a big stretch to reach firearms, but automobiles did not exist at the founding and dangerousness is part of testing for constitutional disarmament. At the same time, I note Tennessee will revoke and refuse to issue carry permits for those behind in child support. Not paying child support includes potential suspension of driver's license, professional licenses, and business certificates. A challenge under Hemani (for guns) might work as the restrictions taken together show the motivation is not dangerousness but social. Big problem for any case is the plaintiff will not get much sympathy.

 

The Washington law in the OP is not a carry ban, it is a complete possession and purchase ban for seven years. This goes far beyond the immediate period of inebriation and could also serve as a test case under Hemani. Still two problems... Lack of sympathy for a plaintiff with multiple DUIs, and while Hemani supports individual findings of dangerousness, it did not rule on a legislature finding a class is dangerous.

 

In short, the state will argue Hemani considered class bans constitutional and those convicted of DUI are a dangerous class. The plaintiffs will argue dangerousness when driving does not equate to dangerousness with firearms. While there may be a 2A win in this somewhere, I do not see it coming at a preliminary stage or at summary judgement before trial.

 

All states suspend licenses for unpaid child support, based on federal law.

 

A categorical ban broad enough to cover a person with DWIs from decades ago probably wouldn't survive even at the TRO stage, much less preliminary and at trial.

[John Kloehr]

39 minutes ago, El Chapo said:

 

All states suspend licenses for unpaid child support, based on federal law.

 

A categorical ban broad enough to cover a person with DWIs from decades ago probably wouldn't survive even at the TRO stage, much less preliminary and at trial.

Decades? Sure. And did not know about the federal law, will try to learn more about it. I thought it was at the state level.*

 

Tennessee is carry permit for 1 DUI in the last 5 years or two in the last 10. And it is a sliding window.

 

The Washington law is a possession ban for 7 years for the 2nd DWI. I'm not sure if it is a sliding window or simply triggered by the 2nd conviction.

 

I am not sure the Tennessee restriction would withstand a serious challenge, and Washington is more severe. But Washington has other higher priorities. Like the Gator's challenge at the Supreme Court. We should be vigilant and give attention to all infringements, helps if the infringed person gets public sympathy.

 

* New York decided to help inmates learn a trade by preparing them to be barbers or stylists, simply to cut hair. The state spent a lot of money on a training program. Inmates learned and passed the program. Inmates were released and applied for licenses so they could earn a living and redeem themselves. The state licensing department said nope, criminal history precludes issuing a professional license.  XXX? Not saying civil death does not apply, but why did the state spend the money on training in the first place?

 

Anyway. see: https://docs.dos.ny.gov/ooah/decisions/barber/alvarez.pdf

 

 

 

Edited June 27 by John Kloehr
No actual edit, just learned an acronym can not rhyme with "duck" I'll just write "XXX" in the future to not trigger the auto-censor

[Cypress Sun]

In Florida, the third DUI is a felony. If you happen to have a firearm in your vehicle or on your person, you have committed a felony while in possession of a firearm. Very bad juju and if you do manage to get the charges reduced, it's going to cost a buttload of money.

[El Chapo]

22 hours ago, Cypress Sun said:

In Florida, the third DUI is a felony. If you happen to have a firearm in your vehicle or on your person, you have committed a felony while in possession of a firearm. Very bad juju and if you do manage to get the charges reduced, it's going to cost a buttload of money.

 

Probably not going to matter soon enough.  Forgery has been a felony for over 300 years, but in light of the last few years of 2A decisions, it would be a serious uphill battle to convince me that there is a historical analogue for banning those who write bad checks from possessing firearms.  At common law, all felonies were capital offenses, but once we stopped executing all felons, it is a very modern idea to prohibit firearms for all with felony convictions, especially for non-violent things like tax evasion, repeat offense DWI, shoplifters and so on.  We are just going to have to decide if we are serious about seeing the second amendment as a second class right or if we're going to rubber stamp the government taking it away.  Really, the concept of classifying people as "felons" and then extinguishing any constitutional right on that basis (besides voting, which is addressed by the constitution directly) should be presumptively invalid in the first place.

 

At common law, there was a short list of crimes that were felonies like murder, manslaughter, rape, sodomy, etc.  Now, the government classifies all sorts of things as felonies that never would have been felonies when this country was founded, for example, in my state, providing alcohol to minors or contributing to the delinquency of a minor, which could be as petty an act as encouraging them to fight or shoplift a pack of gum from a gas station.   In almost every state, possessing even a petty amount of cocaine or even prescription pain medication without a valid prescription is a felony since the DEA quietly made all the schedule III painkillers Schedule II in 2015 or so.  The effect in my state was that what used to be a misdemeanor (possessing a schedule III or IV narcotic if it wasn't prescribed to the person) became a felony overnight as soon as those drugs were rescheduled.

 

Under the current status quo, the government has carte blanche to classify any crime it wants as a "felony" and then extinguish someone's second amendment rights.  That makes no sense.  Even if you accept the idea that "felons" shouldn't be able to possess firearms, the ability of a legislature to classify new crimes as felonies necessarily creates a situation where a simple majority of a legislature gets to make constitutional level decision, and I can't think of any other examples in American law where that is the case.  Constitutional politics is supposed to require a significant supermajority to avoid that situation.  I thought that was a serious problem even before Bruen because the legislature gets to decide who is in the category of "felon" and has in fact made crimes that previously had much pettier penalties into felonies in recent times.

 

That is, of course, aside from whether the government can categorize everyone convicted of tax evasion, possession of some substance the government prohibits, contracting without a license, and so on, as "felons" and extinguish any constitutional right.  The real test case for that issue should have been the misdemeanor restraining order/domestic violence cases, but unfortunately the Supreme Court got that one wrong about 10 years ago.  All they would have had to say there is that no misdemeanor can extinguish one's second amendment rights and every felon in possession statute would have been suspect.  And those convicted of misdemeanor DV weren't prohibited possessors until the 1990s, so this country seemed to do just fine for over 200 years without that being a crime.

 

Another thing that a lot of people don't realize is that virtually nobody who works in criminal justice seems to believe being a felon in possession is a serious crime.  I have hardly ever seen someone go to prison for that if it was the only crime they were convicted of.  They are routinely, even for repeat offenders, pled to probation because I think everyone realizes it's somewhat of a farce to punish someone for possessing an inanimate object if they don't harm someone else with it.  If the feds charge someone, all bets are off and people go to prison for a long time for things like that.  But at least in my state, they hardly see a jail, much less a prison.  If they commit a new violent crime with the gun, that's a totally different story.  But for the mere possession itself, prison sentences are extremely uncommon in my experience.