Man wins appeal in gun case
MADISON — Since 1996, the federal government has been prosecuting individuals for possessing a firearm if they previously were convicted of misdemeanor domestic violence offenses, but a Janesville man’s case has changed that.
A federal appeals court in Chicago on Wednesday reversed Steven Skoien’s conviction, finding the law he was prosecuted under might violate Skoien’s constitutional right to bear arms.
The government needs to prove that its interest in preventing domestic violence is related to the ban on firearms possession imposed on those convicted of misdemeanor domestic violence, according to the opinion.
Skoien, 30, was on probation in 2007, a year after being convicted in Rock County Court of misdemeanor domestic battery. Skoien’s probation agent learned his client had obtained a deer hunting license, and a search of Skoien’s truck recovered a 12 gauge shotgun.
Skoien admitted the gun was his father’s and that he had used it that morning to shoot a deer.
Skoien was charged with unlawful possession of a firearm and pleaded guilty on the condition he could appeal the conviction on Second Amendment grounds. His two-year prison sentence began in July.
Writing for a three-judge panel, Judge Diane Sykes said the firearms prohibition is too broad.
“No one questions the importance of the government’s interest in protecting against domestic-violence gun injury and death.
“The dispute here is about the fit between this important objective and (the) blanket ban on firearms possession by persons who have been convicted of a domestic-violence misdemeanor,” Sykes wrote in the 27-page opinion.
Sykes noted that the Second Amendment protects a law-abiding individual’s right to possess firearms for self-defense and hunting. Laws that infringe on constitutional rights must do so in the least restrictive manner, which is lacking in the broad, permanent ban Skoien was prosecuted under, according to the opinion.
Skoien’s attorney didn’t returned calls seeking comment on the case.
Assistant U.S. Attorney Tim O’Shea said further appeal of the ruling was under review. He said he expected the government ultimately would prevail.
Dec 1, 2009 at 6:12 p.m.
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Can anyone tell me who was Steven Skoien's attorney for the appeal? Where is his office, and anyone have a firm name? I have a similar case and would like to contact him.
Nov 23, 2009 at 1:01 p.m.
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"The fact that it is classified as a misdemeanor just tells me the law needs changing"
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This is why I was against the original law as written. We have a situation where a right is infringed for a non felony. It would be more difficult but the original law should have re-defined domestic violence as different levels - to include felony domestic violence. There are too many instances of domestic arguments being ended with the police arresting all concerned to "let the judge sort it out" (can't blame them for that). I don't have a problem with disarming the violent, just a problem applying it to a misdemeanor level.
Nov 23, 2009 at 11:37 a.m.
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I would rather see a "convicted felon of a non violent offense" carry a gun than somebody convicted of domestic violence. The fact that it is classified as a misdemeanor just tells me the law needs changing. The person with the domestic violence charge has already shown his propensity toward violence. The felon has not.
Nov 22, 2009 at 2:24 p.m.
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The term domestic violence law is very broad also an argument with you child or spouse or any relative can get you a D.V. and that is wrong. Do not raise you voice in your own home as it may cost you. My son and i had a disagreement and no acts of violence nor threat,just a simple disagreement on our porch we were both sited for DV. So before you look at charge listen to the case before you judge someone and think it is more then it really is.
Nov 22, 2009 at 10:20 a.m.
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The appeals judges may have other rulings in mind, but the Supreme Court recently addressed this specific 1996 law (the "Lautenberg Amendment") in the case United States v. Hayes.
http://topics.law.cornell.edu/supct/cert...
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That ruling, however, addressed the meaning of the statute, and this ruling addresses whether the statute itself is constitutional. Devilsadvocate is correct that Skoien believed his position was strengthened by the Heller ruling. At the same time, his defense is narrowly drawn in that he asserts his constitutional right to bear arms for hunting, not for self-defense. These factors will bear into any Supreme Court review. The Appeals Court is essentially saying they feel that the new standard of constitutionality ("intermediate scrutiny") set by Heller requires them to rule thusly, but asks the Supreme Court to establish a clearer standard of constitutionality review for applicable federal restrictions on firearms ownership. At the moment, however, Skoien's conviction is vacated and the DOJ will have to seek a new trial, with indications from this ruling on how to proceed while satisfying the Heller precedent.
http://www.law.cornell.edu/supct/html/07...
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Note also that Skoien was on probation and was prohibited from possessing weapons as a condition of his probation. This aspect appears to be excluded from legal arguments.
Nov 22, 2009 at 9:19 a.m.
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You have to read the article. They are talking about misdemeanor charges. A person convicted of a felony cannot possess a gun. If they do, they are subject to a $10,000 fine and 10 years in jail.
Nov 22, 2009 at 9:12 a.m.
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Madman, thanks, you saved me from asking the same question.
ozzman, asking if the same standard will be applied to a convicted FELON and someone convicted of a misdemeanor is comparing apples to oranges.
Nov 22, 2009 at 9:07 a.m.
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Ummm....popcorn?
Did you read the same article that I did? Because I saw NOTHING about anyone not knowing how to use a firearm in THIS article.
And who was being "nutty"?
Can you help me out here? I'm just curious.
Nov 22, 2009 at 8:22 a.m.
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i think it stinks when all these nutty people uses guns that dont know how to use them
Nov 22, 2009 at 7:30 a.m.
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What about felons who were convicted of non violent offenses such as bank fraud? Will the same standard apply in those cases as well?
Nov 22, 2009 at 12:58 a.m.
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The appeals Judges undoubtedly felt their position was strengthened by recent Supreme Court decisions, supporting the right to bear arms. DC handgun ban overturn etc. It wouldn't surprise me if this one went all the way to the Supreme Court.
Nov 21, 2009 at 10:28 p.m.
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The law is overkill. It might make a bit of sense if the ban on firearms affected only those convicted of Domestic Violence, that involved a firearm. However not the case, any conviction, even for misdemeanor domestic violence, triggers the ban. Hopefully this is the start needed, down the road to correct this issue.
Nov 21, 2009 at 10:22 p.m.
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All one has to be is a loyal and informed citizen in knowing Judge Sykes is absolutely right and therefore, this Tim O'Shea moron is talking treason!
Who appointed that idiot?? The Comrade In Chief? Thought so.
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