Landmark ruling used to challenge gun case

mrreynolds · July 8th, 2008, 08:41 AM

Quote:

A Schenectady man accused of lying to buy a shotgun is seeking dismissal of the charges based on a landmark U.S. Supreme Court decision in June upholding the right to bear arms.

Lamar D. Erwin, 35, of Crane Street, is one of the first to use the ruling to challenge the constitutionality of a federal statute that makes it a felony for a person under a protective order to buy and possess a firearm, said Lee C. Kindlon, his attorney.

Erwin was arrested last September and charged in federal court with failing to disclose that he was the subject of a protective order when he filled out a form used to conduct background checks for people purchasing a firearm. He was later indicted on two felony counts by a federal grand jury in Albany.

The protective order pertained to an assault charge filed against him by his former girlfriend.

In a 5-4 ruling on June 26, the Supreme Court struck down a District of Columbia law that banned handguns and set strict rules on the possession of rifles and shotguns.

Nationwide, similar local laws that ban assault weapons or set limits on who can possess firearms are also being challenged by gun advocacy groups in the wake of the court decision.

"We believe that the Supreme Court finally clarified the Second Amendment and really to the benefit of our client, who truly believes he did nothing wrong," Kindlon said.

The defense attorney's legal argument is built around the high court's finding that a person has a right to bear and possess arms if he is not a convicted felon.

Assistant U.S. Attorney Carlos A. Moreno, who is prosecuting the case, could not be reached for comment.

Erwin was charged with assault in February 2007 following a fight with his girlfriend. A judge issued an order of protection against Erwin prohibiting him from harassing or stalking the victim. Erwin subsequently pleaded guilty to a reduced charge of harassment, which is a violation and not a criminal offense.

Then, on June 4, 2007, Erwin went to a Schenectady gun store, Taylor & Vadney, where he wrote "no" on a federal background form to a question about whether he was the subject of a protective court order. It is a felony to lie on the form, which must be completed by anyone buying a gun and also asks questions such as whether the customer is a convicted felon, a drug user or a fugitive.

Kindlon said Erwin believed the order of protection had been lifted when he bought his Mossberg Maverick shotgun.

Typically, if the federal background check is not completed within three days, the gun dealer may complete the sale and the customer is allowed to take the firearm he purchased. That routinely happens, according to people familiar with the process.

In a two-count felony indictment handed up against Erwin in December, it's not clear whether his background check was approved or whether he was able to purchase the gun because the federal background check had not been completed within three days.

Either way, Kindlon contends in his motion to dismiss the indictment that the Supreme Court decision may make it clear that felons are not allowed to possess firearms, but the ruling "clearly does not extend to allowing a ban on firearm possession by those convicted of lesser offenses or by those with no convictions at all."

Erwin has been free on his own recognizance since his arrest by ATF agents last September. Federal prosecutors have asked U.S. District Senior Judge Lawrence Kahn for two weeks to respond to Kindlon's motion.

ARTICLE

MIKEV · July 8th, 2008, 11:54 AM

Is this prohibition from posession due to "leutenberg"?
If so I think it needs to be looked at. I mean, I can throw a pb&J sandwich against a counter top and I don't even think the jelly has to splatter outside of the confies of the bread to be charged with domestic violence and loose my 2a rights. esp if a protective order is issued.

MikeV

Kerbouchard · July 8th, 2008, 01:38 PM

I agree with Erwin. It is way to easy to get 2A rights restricted, and way to difficult to get them reinstated. Innocent until proven guilty should still mean something.

gddyup · July 8th, 2008, 07:38 PM

I believe there may already be a case similar to this going to SCOTUS in the next session. I read it in Shotgun News not to long ago and it mentioned a case like this with close similarities. I'm at work right now but I'll take apeek when I get home tomorrow and see if I can find more info about it.

Hopyard · July 8th, 2008, 08:10 PM

I think the guy is toast and the lawyer is stretching. He is apparently accused of lying. That has nothing whatsoever to do with his right to keep except that he was asked to fill out an application, which perhaps was not necessary under the present court ruling. Still, if he lied, he lied.

A few years back--a decade maybe- a man in our neighboring community's wife died under suspicious circumstances. He was never charged with the murder, but was charged with perjury because he didn't tell the truth to a GJ about insurance issues.

SelfDefense · July 8th, 2008, 08:27 PM

Quote:

Originally Posted by Hopyard

He was never charged with the murder, but was charged with perjury because he didn't tell the truth to a GJ

I think I remember a former President who acted similarly.

bandit383 · July 8th, 2008, 08:32 PM

I have mixed emotions on this one...he gets charged with assault, pleads to a lesser charge, gets a retraining order, then llies on the form (and I don't buy the "I thought it was lifted" story) and finally goes and buys a shot gun? Sounds to me like the system worked...

Rick

dukalmighty · July 8th, 2008, 10:25 PM

Lying on a form 4473 is a felony in itself if I'm right,

July 8th, 2008, 01:38 PM	#3
Kerbouchard VIP Member Join Date: Dec 2007 Location: Texas Posts: 2,531	I agree with Erwin. It is way to easy to get 2A rights restricted, and way to difficult to get them reinstated. Innocent until proven guilty should still mean something. __________________ Money can be lost or stolen, health and strength may fail, but what you have committed to your mind is yours forever. http://miscmusings.townhall.com/ Who is John Galt?

July 8th, 2008, 07:38 PM	#4
gddyup Senior Member Join Date: Jan 2006 Location: Derry, NH Posts: 896	I believe there may already be a case similar to this going to SCOTUS in the next session. I read it in Shotgun News not to long ago and it mentioned a case like this with close similarities. I'm at work right now but I'll take apeek when I get home tomorrow and see if I can find more info about it. __________________ Firefighter/EMT My own piece of the web... The Right of Defense It is better to be the widow of a hero than the wife of a coward. - Dolores Ibarruri

July 8th, 2008, 10:25 PM	#8
dukalmighty VIP Member Join Date: Feb 2008 Location: texas Posts: 3,424	Lying on a form 4473 is a felony in itself if I'm right, __________________ I like Poetry,Long Walks On The Beach,And Poking Dead Things With A Stick

Thread Tools
Show Printable Version Email this Page
Display Modes
Linear Mode Switch to Hybrid Mode Switch to Threaded Mode

July 8th, 2008, 11:54 AM	#2
MIKEV Member Join Date: Jul 2006 Location: PDRMD Posts: 268	Is this prohibition from posession due to "leutenberg"? If so I think it needs to be looked at. I mean, I can throw a pb&J sandwich against a counter top and I don't even think the jelly has to splatter outside of the confies of the bread to be charged with domestic violence and loose my 2a rights. esp if a protective order is issued. MikeV

July 8th, 2008, 08:10 PM	#5
Hopyard Senior Member Join Date: Jun 2006 Location: College Station Posts: 1,178	I think the guy is toast and the lawyer is stretching. He is apparently accused of lying. That has nothing whatsoever to do with his right to keep except that he was asked to fill out an application, which perhaps was not necessary under the present court ruling. Still, if he lied, he lied. A few years back--a decade maybe- a man in our neighboring community's wife died under suspicious circumstances. He was never charged with the murder, but was charged with perjury because he didn't tell the truth to a GJ about insurance issues.

July 8th, 2008, 08:32 PM	#7
bandit383 Senior Member Join Date: Jun 2007 Location: Oklahoma Posts: 1,070	I have mixed emotions on this one...he gets charged with assault, pleads to a lesser charge, gets a retraining order, then llies on the form (and I don't buy the "I thought it was lifted" story) and finally goes and buys a shot gun? Sounds to me like the system worked... Rick