Category Archives: New Colorado Domestic Violence Laws

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case

Colorado Domestic Violence Gun Ban Law

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Colorado Domestic Violence Gun Ban Law

Colorado Domestic Violence Gun Ban Law

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case – A San Diego man, Daniel Chovan, was angry that a misdemeanor domestic violence conviction from 1996 deprived him of his second amendment right to bear arms.  He filed suit in the ninth circuit federal court challenging the constitutionality of a federal law making it illegal for a person convicted of misdemeanor domestic violence to ever bear arms under the second amendment again for life.

The law in question and under constitutional attack was (and still is) United States Code 18 U.S.C. § 922(g)(9). The federal law, passed by Congress in 1996 to “combat” domestic gun violence has resulted in millions of citizens losing their right to bear arms.

United States Code 18 U.S.C. § 922(g)(9)

Under 18 U.S.C. § 922(g)(9), persons convicted of misdemeanor domestic violence crimes are barredfrom possessing any firearm for life. Section 922(g)(9) establishes two exceptions under which the statute will no longer apply:

(1) “if the conviction has been expunged or set aside”;

or

(2) if the offender “has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” 18 U.S.C. § 921(a)(33)(B)(ii).

History of United States Code 18 U.S.C. § 922(g)(9)

Originally passed to bar gun possession ONLY by those convicted of violent felonies, the law was amended and extended in 1996 to cover misdemeanor convictions of domestic violence.

Unlike Colorado, which has no method to seal – expunge a misdemeanor state conviction for a domestic violence “tagged” crime, Californians can get their convictions erased after they have completed their sentences AND persuaded the courts that they have “lived an honest and upright life” for a sufficient period of time.

The Facts of Chovan Are Simple and Familiar

The federal domestic violence gun ban was challenged by a San Diego man, Daniel Chovan, who was convicted in 1996 of assaulting his girlfriend in their mutual home. After more than a decade he attempted to buy a gun and was denied the right. Later, a new dv “complaint” was filed against him, the police went to investigate and they found several guns which they seized from his home.  He appealed.

Another case, decided in a 2008 U.S. Supreme Court ruling, held that “law-abiding, responsible citizens” have a constitutional right to possess and use guns in the home for self-defense. In that case, District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense.

The Holding Of Chovan And The Damage It Has Done To Second (2d) Amendment Rights

In a lengthy and complex decision, the Ninth Circuit Court of Appeals held, post Heller, that even a one-time perpetrator of domestic violence may no longer be considered the type of “law-abiding, responsible citizen” entitled to possess guns, based on evidence presented by the government.

The Court relied on “studies” showing that those who are considered “domestic abusers” have high rates of re-offending and often use firearms when committing their crimes and that if an invidual has been convicted of misdemeanor domestic violence assault, he or she is” likely to commit acts of domestic violence again and that, if they do so with a gun, the risk of death to the victim is significantly increased.’

A Colorado Criminal Lawyer’s View – H. Michael’s Take

Criminal attorneys in Denver, Colorado, have been criticizing the decision. This criminal lawyer in Denver believes that a federal lifetime ban on gun ownership for domestic violence misdemeanants violates the Second Amendment and that the Chovan court’s decision flies in the face of the Heller decision.

It is well known to experienced criminal attorney’s in Colorado and across the nation that when estranged wives and girlfriends call the police alleging threats of domestic violence- they are many tines false and motivated solely for reasons of vindictiveness.

Section 922(g)(9) was passed with good intentions… that guns were be kept away from domestic abusers, but the Court’s holding that the government interest extending the law to lifetime convictions – (and ignoring Heller). thus denying the right to prove an individual convicted of domestic violence can change and attain rehabilitation, is just wrong.

The important government interest of preventing domestic gun violence is not served by denying good citizens the right to bear arms, in Chovan’s case, more than 15 years after a misdemeanor conviction for dv.

The Restoration Of Gun Rights And Colorado Domestic Violence Cases

As noted above, Colorado does not have a method to restore gun rights in domestic violence convictions unless the conviction was for a municipal code domestic violence conviction.

The civil rights restoration exception under § 922(g)(9) provides legal mechanisms for which both misdemeanants and felons can qualify for restoration of their gun rights. These include pardon, expungement, and the setting aside of convictions.” In California, not Colorado, there exists a state based restoration process of civil rights that meets the requirements of the federal ban under 922(g)(9) and that process has been upheld by the Supreme Court as constitutional

In short, the fastest way to restore gun rights under federal law – would be to enact legislation in Colorado to give Colorado citizens the right to try to seal – expunge domestic violence and all other misdemeanor and felony convictions for that matter through a procedure that places in the hands of competent and elected officials the right to reverse and seal ALL misdemeanor and felony convictions more than 10 years old. Contrary to the Chovan court.

What Women Want – Why Colorado Domestic Cases Should Be Dismissed In Favor Of Evaluation And Fair Treatment Modalities

Why Colorado Domestic Cases Should Be Dismissed

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Why Colorado Domestic Cases Should Be Dismissed
Why Colorado Domestic Cases Should Be Dismissed

Why Colorado Domestic Cases Should Be Dismissed  – Experienced Colorado criminal defense lawyers who practice in the courts of Colorado are only too well aware of the problems that have arisen out of the “one size fits all” approach of Colorado Domestic Violence Laws.

When a woman (or a man – in the minority of cases) has been the alleged victim of an assault or some form of harassment, they will call the police for help. What they receive, because of a lack of education, is not help – but the destruction of their family or their relationships.

Mandatory Arrest Laws Make No Sense

Restoring the discretion of the police to separate serious acts of domestic violence from the spat that often accompanies difficult marriages or relationships, is what the police used to do when I first started as a young Colorado county prosecutor in the early1980s, Colorado domestic violence cases were treated no differently than all other misdemeanor and felony prosecutions.

What a married couple or anyone in a long term relationship well knows – the police are most often called to “settle” threats to: abscond with the children – resolve accusations of infidelity, mediate issues related to financial pressures and the resulting frustration.

But when the police or other authorities are called to break up the typical “family fight” in Colorado  – “someone is going to jail” and the alleged assailant is mindlessly arrested on an what is typically an assault or harassment charge.

No Room For “Making Up”

Every case today requires an arrest and a “no bond” hold until a judge can enter a restraining order in open court – even if the victim wants to drop the charges. For the last twenty plus years couples in Colorado are given no opportunity to just cool off and  “make up” without the impact of an immediate and mandatory arrest. Later, the alleged victims are forcefully “counseled” by both the police or the DA “victim” advocate – to obtain permanent civil restraining orders that prevent all future contact. This makes no sense.

Why Colorado Domestic Cases Should Be Dismissed – Mandatory Arrest And Prosecution – Destroys Relationships – Mediation Is Key

One of the chief rationales for mandatory arrests and no contact restraining orders  – is that these procedures “take the burden off” victims. The idea is”pro-prosecution” approaches  “remove responsibility” from the alleged victims for the decision to move forward. The truth is – by taking ALL control away from women in the criminal justice system, women then suffer the social or economic consequences of the impact of jail on their significant other and the ultimate destruction of the fabric of the entire social lives with little to show for it.

A judge in one of New York’s largest counties put it best:What these women want most is for their men to get help with their problems.”

That help, in my opinion after 30 years in Colorado courts on BOTH sides of the issue as a prosecutor and as a defense lawyer  –  is mediation and counseling, not prosecution.

What Ultimately Happens To The “Victims” – ‘Coerced Prosecution’

Forcing a woman victim of a relatively minor domestic violence “argument” into a “coerced prosecution” makes her a hostile witness. It also doubles the sheer number of cases of domestic violence that cannot be resolved without a trial. It is a meat hook approach to a delicate set of issues.

The Danger Of “Unintended Consequences”

Often what started as a small disagreement in a strained relationship – with some mutual pushing and shoving – following the impact of the Colorado domestic violence machine – leads to enhanced violence when the process has finally ended. When mostly men – humiliated and harassed by an unthinking and unfeeling system are finally released from jail – a major study of domestic violence finds them much angrier and less in control of their emotions than before the arrest…leading of course to either the destruction of their family or relationship – or further disharmony and violence.

Many studies have shown that the loss of employment – often the result of the mandatory jail sentence in these “fast tracked” cases, leads to significantly MORE violence later in time and calls into question the “wisdom” among criminologists, that arresting the alleged abusers is really the best way to protect women from future disputes with their significant others.

The evidence forces us to confront the fact that mandatory arrests in domestic violence cases may cause more violence against women in the long run,” said Lawrence W. Sherman, a criminologist at the University of Maryland

“In communities with high unemployment, the net effect of an arrest policy is more violence,”

Why Colorado Domestic Cases Should Be Dismissed – H. Michael’s Take

Taking away police discretion and flexibility – while politically attractive in Colorado – is a mistake. The police are on the scene and the have the best vantage point to”make the call” give them back their right to decide when to “cool off” the parties and when an arrest and prosecution is really necessary.. trust their judgement as we do in all other spheres of criminal investigation and prosecution. Why Colorado Domestic Cases Should Be Dismissed – because other avenues of mediation and treatment “heal” not destroy families and relationships.

2013 Colorado State Law Impacts Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases – CRS § 16-7-301

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

By Colorado Domestic Violence Criminal Defense Lawyer – Attorney – H. Michael Steinberg

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases has occurred for decades.. A little known statute – CRS § 16-7-301 – provided not only the opportunity – but the obligation – of Colorado District Attorneys to plea bargain directly with defenseless and confused unrepresented persons just arrested and most of the time held overnight.

 Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence And Other Colorado Cases

These individuals have been denied the right to have lawyers present when they are making some of the most important decisions of their lives. The new law – Colorado House Bill 13-1210 – stops this unfair practice. It is effective on January 1, 2014.

The United States Supreme Court Sends A Message To The State Of Colorado – “Stop This Practice”

House Bill 13-1210 makes Colorado criminal law consistent with recent U.S. supreme court decisions (Missouri v. Frye and Lafler v. Cooper, (U.S. 2012)). These decisions have reinforced the 6th Amendment right to counsel during the critical stages of plea bargaining. The new law repeals subsection 4 of CRS § 16-7-301 and provides the right for a person charged with a misdemeanor, petty offense, or motor vehicle or traffic offense to obtain counsel before plea bargaining with the prosecuting attorney.

Remember the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to . . . the Assistance of Counsel for his defence.”

Three distinct threshold limitations must be satisfied for the right to a lawyer under the Sixth Amendment:

First, the right to counsel must have attached;

Second, the stage during which the alleged harm to the defendant occurred must be deemed a “critical” stage;

and

Third, the defendant must able to be sentenced to actual incarceration following his trial or plea.

The OLD Colorado Plea Bargaining Law – Unfairness And Unjust Unequal Negotiations

The old law – to be changed in January of 2014 – provided that an initial appearance under Colorado Rule 5 was insufficient to trigger the attachment of the right to counsel. During the initial appearance in Colorado, referred to as a Rule 5 Advisement – (“the Crim. P. 5 proceeding,”) – the defendant is advised of the nature of the charges against him. These rights, including the right to counsel, to a jury, and the right against self-incrimination—and the terms of his bail, if he is bailable, are set at that time.

Under the Old Law – for misdemeanors, petty offenses, or offenses under title 42, C.R.S. [traffic offenses], the prosecuting attorney is obligated to tell the unrepresented defendant any plea offer at the first appearance in court that is based on the facts as known by the prosecuting attorney at that time.

These plea discussions are actually required to occur before the appointment of a lawyer.

The law states that:

“[t]he application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant” about potential plea offers.

Here’s the trick that had thousands to plead guilty before consulting a lawyer.

The person detained in jail is led to believe that his immediate release will be based on a guilty plea – and – if he or she – asserts his or her right to counsel, the prosecutor informs that person that – if they cannot post bail – ( sometimes this is NOT explained by the DA) – they may have to remain incarcerated until the second appearance. Many defendants cannot stand another night in jail. Colorado’s system of requiring misdemeanor defendants to talk with prosecutors about possible plea options before the appointment of counsel is wrong at many levels.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases – The Procedure – An Example In The Denver County Courts

1. The First Advisement

In Denver’s county courts – the plea bargaining process starts with the accused viewing a standardized set of recorded warnings. All defendants watch a video advisement, listen to an audio advisement, or read a written advisement of their rights before speaking to the district attorney.

The advisement contains an explanation of the initial appearance and provides an overview of the individual constitutional and statutory rights, including the right to counsel, to which each defendant is entitled. These other rights as described in the advisement include the right to bail, the right to a jury trial, the right to a speedy trial, and the right to remain silent.

2, The Meeting With The DA

Following the advisement, and before the judge comes out to conduct the hearing, a district attorney speaks directly with each defendant in the manner that is presently (again to be changed on Jan 1 2014) required by CRS § 16-7-301.

The plea offer occurs just before the judge comes out and is told to the defendant in the courtroom in the immediate minutes immediately prior the formal advisement an arraignment on the complaint.

3. If The Plea Bargain Is Accepted

If the unrepresented defendant accepts the plea offer – the defendant is given a written advisement of their constitutional rights known as the “Rule 11” advisement form. This form explains the enumerated constitutional and statutory rights the defendant waives by pleading guilty as well as the possible penalties for the criminal conviction agreed to.

After the defendant signs the “Rule 11 form,” the district attorney informs the court of the proposed plea bargain which includes the agreed upon penalty, and then the form is given to the judge.

The judge then gives an oral advisement of the same Rule 11 rights and makes the ironic finding on the record that the defendant’s plea was entered knowingly, voluntarily, and intelligently; and that there is a factual basis, or valid waiver of the establishment of a factual basis, for the plea.

The NEW Colorado Plea Bargaining Law – Welcome Changes To The Unfairness Of The OLD Colorado Plea Bargaining Law

New Constitutional Cases decided this year – 2013 – have held that “the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.”

The initial appearance of the defendant, where the defendant is informed of the “formal accusation” against him, triggers the attachment of the Sixth Amendment right to counsel.

The OLD Colorado law does not provide for the appointment of counsel at the defendant’s first appearance even in cases where the defendant has a right to counsel.

These new cases held – what we – in the criminal justice know only too well – “[p]lea bargaining is [a] critical stage, not only because it is ‘an essential component of the administration of justice,’ but also because ninety-five percent of convictions end in plea bargains.”

The NEW Law Strikes The Language (Section 4) In The OLD Statute (CRS § 16-7-301) That Permitted the Unjust Procedure Outlined Above

The striking of the language of Section 4 of CRS § 16-7-301 means – in Colorado – that the Sixth Amendment now applies to the critical stage of any criminal case – the process of evaluating a plea offer AND therefore – the appointment and presence of counsel are constitutionally required. The entire plea bargaining process is a critical stage to which the full protections of the Sixth Amendment apply.

Justice Anthony M. Kennedy writes that the “Criminal justice today is for the most part a system of pleas, not a system of trials,”wrote for the majority. “The right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining takes in securing convictions and determining sentences.”

Some 97 percent of convictions in federal courts were the result of guilty pleas. In 2006, the last year for which data was available, the corresponding percentage in state courts was even higher.

“In today’s criminal justice system the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant.”

§ 16-7-301. [Effective 1/1/2014] Propriety of plea discussions and plea agreements

(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. The district attorney should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for appointment of counsel because the defendant is not indigent or the charged offense does not include a possible sentence of incarcerationor because the defendant refuses appointment of counsel and has not retained counsel.

(2) The district attorney may agree to one or more of the following, depending upon the circumstances of the individual case: (a) To make or not to oppose favorable recommendations concerning the sentence to be imposed if the defendant enters a plea of guilty or nolo contendere (no contest);

(b) To seek or not to oppose the dismissal of an offense charged if the defendant enters a plea of guilty or nolo contendere (no contest) to another offense reasonably related to the defendant’s conduct;

(c) To seek or not to oppose the dismissal of other charges or not to prosecute other potential charges against the defendant if the defendant enters a plea of guilty or nolo contendere (no contest);

(d) To consent to diversion, as provided in section 18-1.3-101, C.R.S.;

(e) To consent to deferred sentencing, as provided in section 18-1.3-102, C.R.S.

(3) Defendants whose situations are similar should be afforded similar opportunities for plea agreement.

(4) [Repealed by 2013 amendment.]

(5) Any plea agreement in a case involving a plea to a violation of article 18 of title 18, C.R.S., may not require a waiver by the defendant of the right to petition to have the defendant’s criminal conviction records sealed pursuant to part 3 of article 72 of title 24, C.R.S.

The Law (That Will Be) Stricken As Of January 2014:

(4) (a) In misdemeanors, petty offenses, or offenses under title 42, C.R.S., the prosecuting attorney is obligated to tell the defendant any offer that can be made based on the facts as known by the prosecuting attorney at that time. The defendant and the prosecuting attorney may engage in further plea discussions about the case, but the defendant is under no obligation to talk to the prosecuting attorney. The prosecuting attorney shall advise the defendant that the defendant has the right to retain counsel or seek appointment of counsel. The application for appointment of counsel and the payment of the application fee shall be deferred until after the prosecuting attorney has spoken with the defendant as provided in this subsection (4). Upon completion of the discussions, the prosecutor shall inform the court of whether a plea agreement has been reached, and:

(I) If a plea agreement has been reached, the prosecutor shall inform the court of the terms of the proposed plea agreement and the recommended penalty. If the court determines that the proposed plea agreement is acceptable, the court shall, in addition to any other advisement required by law, advise the defendant of the right to a court-appointed attorney prior to acceptance of the defendant’s plea. The court shall also advise the defendant prior to acceptance of the defendant’s plea that the court exercises independent judgment in deciding whether to grant charge and sentence concessions made in the plea agreement and that the court may therefore sentence the defendant in a manner that is different than that discussed during the plea discussions.

(II) If a plea agreement has not been reached and the defendant chooses to retain an attorney, or the defendant meets the requirements of section 21-1-103, C.R.S vytorin 10 20., the court shall appoint counsel and all discussions with the defendant outside of the presence of counsel shall cease.

(b) After completion of discussions as described in paragraph (a) of this subsection (4), if counsel is retained by the defendant, or if counsel is appointed for the defendant, when it appears that the effective administration of justice will thereby be served, the prosecutor may engage in additional plea discussions with the counsel for the defense for the purpose of reaching a plea agreement.

Unfair Plea Bargaining By Prosecutors In Misdemeanor Domestic Violence and Other Colorado Cases

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