Second Amendment: Domestic Violence Misdemeanants Suffer More than Convicted Felons

by Tim Baldwin

The Second Amendment of the United States Constitution protects the people’s right to keep and bear arms. The issue of firearm possession and use was not highly regulated and litigated prior to the 20th century. Since then, state and federal governments have passed many laws regarding the use of firearms. Over the decades, the judiciary has ruled on many issues and explained how the state and federal legislatures may restrict the use of firearms. The judiciary has developed rules of constitutional construction to determine whether laws regulating firearms are constitutional or not. One federal law that has been litigated frequently is 18 USC 922.

Under 18 USC 922, Congress made it unlawful for persons convicted of felonies and misdemeanor domestic violence to own, possess, transport, and ship firearms (see definition of “firearm,” 18 USC 921(a)(3)). However, Congress carved out exemptions to this prohibition in 18 USC 921; namely, where the person has his conviction pardoned, set aside, expunged or had his civil rights completely restored. If the State imposes any restrictions on his right to possess a firearm (e.g. cannot carry concealed), his rights are not fully restored (see discussion below regarding carry concealed permit).

This exemption clause raises a big question, particularly for people convicted of misdemeanor domestic violence (misdemeanants). That issue is this: what if the misdemeanor conviction for domestic violence does not divest or affect the rights of the person? In other words, what happens to the misdemeanant’s ability to “restore his civil rights” when his rights were never divested in the first place?

The misdemeanant can qualify for the exemption clause, but not on the basis that his rights were restored. Instead, he may qualify under the exemption clause only if he receives a pardon, expungement or setting aside of the conviction. These options pose a big problem for the misdemeanant, however, because it is more difficult to get a pardon than it is to restore a person’s rights, and sometimes, expungement and setting aside convictions are impossible.

In many states, a convicted felon’s civil rights are automatically restored once he completes his sentence. For example, Montana’s constitution and statute state that a person whose civil rights are disabled due to a felony conviction has his rights automatically restored once he successfully completes his sentence.

Thus, if a person is convicted of, say, felony theft and he completes his sentence, his rights are automatically restored, and he can apply for a concealed weapon permit or purchase a firearm because his rights are restored and thus, he qualifies for the exemption clause under 18 USC 921.

However, Montana residents need to be aware of this: if the charge for which the person was convicted has an element of committing or attempting to commit one of the following acts, then he cannot obtain a concealed carry weapon permit (CCW) under Section 45-8-321, MCA: intentional homicide, serious bodily harm, unlawful restraint, sexual abuse, or sexual intercourse or contact without consent. This CCW restriction means that such a person convicted of committing one of those acts cannot qualify to own or possess a firearm under federal law, because his firearm rights are restricted. This means his civil rights have not been fully restored, and thus he does not meet the exemption under 18 USC 921.

Going back to the misdemeanant convicted of domestic violence: he cannot have his rights automatically restored because he never lost his civil rights. So, to meet the exemption clause, he must alternatively have his conviction pardoned, expunged, or set aside.

This takes affirmative action to petition the executive branch of the state government to pardon his conviction, or the judiciary branch to expunge or set aside his conviction. This is easier said than done and much more difficult than having one’s rights restored automatically by operation of law.

First, to receive a pardon, the misdemeanant must file a petition with the executive branch (each state has its own process). The governor has discretion on whether to pardon the conviction or not. As one can imagine, pardons are not given arbitrarily. Next, for expungements, the judiciary can do this only if state law permits it. Many states do not permit expunging convictions except in limited circumstances. Finally, to set aside a conviction, there must be some constitutional or legal grounds to request this from the court; for example, the defendant did not enter his plea of guilty “freely, voluntarily and knowingly,” the sentence imposed was illegal or there was some fundamental unfairness. As one can imagine, proving these elements to set aside a conviction is very difficult.

This leaves the misdemeanant with the primary and perhaps only option of petitioning for a pardon. The chances of success with receiving a pardon are obviously lower than the convicted felon who has his rights automatically restored.

This disparity seems fundamentally unfair, but the Ninth Circuit Court of Appeals confirmed that it is constitutional. Here is what the court said in U.S. v. Chovan on the issue.

We rejected Brailey’s argument, concluding that his civil rights had never been “lost” because his misdemeanor conviction had not taken away his “core civil rights”: the right to vote, to sit as a juror, or to hold public office. Because Brailey’s civil rights had never been lost, we reasoned that they could not have been restored. We noted that most other circuits had also concluded that, “where civil rights are not divested for misdemeanor convictions, a person convicted of a misdemeanor crime of domestic violence cannot benefit from the federal restoration exception.” Thus, we concluded that Brailey failed to meet § 922(g)(9)’s civil rights restored exception

United States v. Chovan, 735 F.3d 1127, 2013 U.S. App. LEXIS 23199, 2013 WL 6050914 (9th Cir. Cal. 2013) (citations omitted). The Chovan court continued its analysis of this issue, stating,

Applying rational basis review, we rejected Hancock’s equal protection claim. First, we explained that when Congress enacted § 922(g)(9), it “was aware of the discrepancies in state procedures for revoking and restoring civil rights . . . . [D]isparate treatment of some offenders was the inevitable result of Congress’ decision to ‘look to state law to define the restoration exception.'”  Second, we noted that in addition to the civil rights restored exception, § 922(g)(9) provides “several adequate legal mechanisms” for which both misdemeanants and felons can qualify: “pardon, expungement, and setting aside of convictions.” Viewing the two exceptions together, we found that “Congress reasonably could conclude that felons who had been through a state‘s restoration process and had regained their civil rights . . . were more fit to own firearms than domesticviolence misdemeanants who had not had their convictions expunged or been pardoned.” Id. We therefore upheld the civil rights restored exception under rational basis review as at least “minimally rational.”

Here, we apply Brailey and conclude that Chovan’s 1996 misdemeanor domestic violence conviction did not divest him of civil rights because it did not divest him of the right to vote, the right to serve on a jury, or the right to hold public office. Because Chovan never lost these “core” civil rights, he cannot qualify for the civil rights restored exception to § 922(g)(9). Further, we reject Chovan’s argument that the civil rights restored exception violates the Equal Protection Clause for the same reasons we articulated in Hancock.

(citations omitted).

To recap, a convicted felon (in states were rights are automatically restored upon completion of his sentence) is in a better position to meet the exemption clause under 18 USC 921 than a misdemeanant convicted of domestic violence (in states where the conviction does not divest the misdemeanant of his civil rights). While the misdemeanant may still seek the other exemptions (pardon, expungement, setting aside conviction) if available under state law, the chances of success are less than the automatic restoration of civil rights allowed by some states (e.g. Montana).

For convicted felons who are denied a CCW or purchase of a firearm, the denial may be illegal or unconstitutional, depending on the circumstances. There are ways of challenging and appealing these denials, but they must be determined on a case by case basis.

If you need to consult with an attorney on your gun rights, call Tim Baldwin (406-248-7000) or email him at timbaldwin@outlook.com.

Who Do You Trust?

by Tim Baldwin

I have practiced law now for 13 years and have helped hundreds of clients and worked as a public employee for 4 of those years. I have learned that there is one major reason that drives most people to hire a particular attorney: trust.

When people come to an attorney for legal help, they are normally very anxious, nervous, upset and do not know what to expect. They simply know they need help. Many of them have an innate fear that they will not be treated fairly. They think that their own attorney could play a part in their not being treated fairly. Of course, many attorneys help contribute to this distrust in the legal system, and since the potential client normally does not know the attorney personally, he enters the attorney-client relationship without a full reliance on the attorney’s work and advice.

So, how does a client come to reasonably trust his attorney so that he can rely on his advice and make good decisions in his case? Consider a number of ways to make that determination.

First, consider the attorney’s reputation. Admittedly, reputation is subjective and depends on the person you ask, but it can be helpful. For example, in criminal cases, defense attorneys may be disliked among some police and prosecutors because the defense attorney’s job is to test the credibility of, many times, public employees, such as police officers. If you challenge the credibility of a police officer, prosecutors can take this personally because police and prosecutors are a sort of team.

To challenge police is, in a sense, challenging prosecutors themselves because prosecutors rely on the testimony and investigations of police to prosecute crimes. Naturally, prosecutors who file criminal charges based on the work of police will resist any notion or claim that police or their investigation is unreliable and incredible.

So, if a defense attorney has a not-so-good “reputation” among prosecutors or police, this may not necessarily be a bad thing. Just the opposite: it may be the kind of defense attorney a person needs who is being prosecuted by the government. So, as they say, consider the source when learning about an attorney’s reputation.

Second, consider the attorney’s prior work for other clients. Most of the time, a potential client does not have the ability to conduct an investigation into the prior cases of an attorney, but the client can inquire at a consultation of the attorney’s prior cases and ask how he handles his cases. The attorney should be able to give examples of how the attorney puts his client’s interests before his desire to be liked by everyone in the legal system.

The attorney should be able to point to specific cases where the attorney had to challenge the government (or opposing party) for his client, even where it causes those in government or in the legal community not to like that attorney for his zealous representation of his clients. If the potential client can see that the attorney holds his client’s interests in the highest regard, he will be more likely to trust the attorney and what he advises during the case.

Third, consider the attorney’s forthrightness in assessing the case. Most people seeking legal advice want to hear the attorney tell them that they are right in every regard and that there are no weaknesses in their case. This is hardly reality. In almost every case, there are weaknesses that could have a negative impact on the client’s case.

An honest attorney will assess the case from an objective standpoint and inform the client of the hurdles and possible outcomes. A trustworthy attorney is not necessarily one that tickles the ears of his clients but is rather one who tells the client realities that the client needs to hear, even though it may cause the client to find another who will be less than objective in his analysis.

Fourth, consider any ethics complaints and determinations made by the Office of Disciplinary Counsel. These determinations may not be a tell-all of the attorney because we all make mistakes and even judges can judge incorrectly. But the complaints may reveal the character of the attorney where the determinations involve the honesty of the Attorney and how he treats his clients.

Fifth, consider the attorney’s community involvement. With whom does the attorney associate or identify? If the attorney’s primary associations do not reflect that he identifies with the community in common or reflect that he prefers only the rich and powerful, it may be an indication that his goals in life have more to do with his desire to be successful than it does looking out for ordinary folks who simply need an attorney to identify with them and their plight and to fight for their cause.

Sixth, consider the number of trials the attorney has tried. Trials are very hard and exhausting. Many attorneys do not like going to trial for that reason and will attempt to avoid them if at all possible. If the attorney has no record of going to trial to fight for his clients, it may be an indication that the attorney will always advise his client to settle simply to avoid the hard work of going to trial.

Seventh, consider how the attorney attempts to keep the client involved in his case. Practicing law is a mixture of art and science because it is based on knowing the law, how the legal system works and how human nature affects the perceptions of all people involved. If the attorney works hard at keeping his clients informed about the case given all of these factors, it may be an indication that the attorney wants the client to be as well equipped as possible to make a good decision and not simply based on what the attorney says is a good decision.

Eighth, consider how the attorney listens to you. If the attorney thinks more of himself than he does the client, it may be an indication that the attorney’s primary interest is not the client.

In conclusion, the best way the attorney-client relationship works is for the client to trust the attorney and the attorney to honor his duty of loyalty to his client. The client should conduct as much of an inquiry as possible when choosing his attorney. The above considerations are a number of ways to do that.

If you need to consult with an attorney about your legal issue, call Tim Baldwin at (406) 248-7000 or email him at timbaldwin@outlook.com.

Wrongful Termination of Employment Cases

Under the Montana Wrongful Discharge Act (MWDA), an employer cannot terminate an employee except for good cause. Otherwise, the employment termination is wrongful with remedies available to the employee.

Section 39-2-904, MCA defines wrongful termination this way:

(1) A discharge is wrongful only if:

(a) it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy;

(b) the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or

(c) the employer violated the express provisions of its own written personnel policy.

Below is discussed a few of the issues that commonly arise in wrongful termination cases. (For a detailed discussion of issues, see William Corbett, Resolving Employee Discharge Disputes Under The Montana Wrongful Discharge Act (MWDA), Discharge Claims Arising Apart From The MWDA, And Practice And Procedure Issues In The Context Of A Discharge Case, 66 Mont. L. Rev. 329).

Good Cause

“‘Good cause’ means reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason.” Whidden v. John S. Nerison, Inc., 1999 MT 110, P12, 294 Mont. 346, 349, 981 P.2d 271, 273 (Mont. 1999). “The most common legitimate reasons for a discharge are based on: (1) employee conduct-employment ‘rule’ violations and/or failure to perform in conformity with the employer’s legitimate expectations ; and (2) business needs unrelated with employee conduct (e.g., economic slowdown resulting in layoffs, business reorganization resulting in loss of positions, contracting out the work resulting in loss of positions, etc).” Corbett, Resolving Employee Discharge Disputes, 66 Mont. L. Rev. at 337.

Discharge

The MWDA defines “discharge” as constructive discharge or any other termination of employment, including resignation, elimination of the job, layoff for lack of work, failure to recall or rehire, and other cutbacks in the number of employees for legitimate business reasons. Section 39-2-903(2), MCA. This definition includes two kinds of discharge: (1) where the employer severs the employment relationship, and (2) in the case of constructive discharge, where the employee severs the relationship.

Actual discharge is apparent because it happens when the employer terminates the employment. On the other hand, constructive discharge “means the voluntary termination of employment by an employee because of a situation created by an act or omission of the employer which an objective, reasonable person would find so intolerable that voluntary termination is the only reasonable alternative.” Section 39-2-903, MCA. But “[c]onstructive discharge does not mean voluntary termination because of an employer’s refusal to promote the employee or improve wages, responsibilities, or other terms and conditions of employment.” Id.

“In determining whether an employee has been constructively discharged, the fact finder must decide whether the employer has rendered working conditions so intolerable that resignation is the only reasonable alternative. This determination must be based on the totality of the circumstances, not on the employee’s subjective judgment that working conditions are intolerable.” Jarvenpaa v. Glacier Elec. Coop., 898 P.2d 690, 691, 1995 Mont. LEXIS 135, *1, 271 Mont. 477 (Mont. 1995). “A determination of constructive discharge ‘depends on the totality of circumstances, and must be supported by more than the employee’s subjective judgment that working conditions are intolerable.’” Kestell v. Heritage Health Care Corp., 259 Mont. 518, 524, 858 P.2d 3, 7 (Mont. 1993). A demotion is not considered a “discharge” but potentially could qualify for hostile work environment depending on the circumstances.

Probationary Period

Employees on probation may be terminated at will by the employer or employee for any or no reason at all. “[The] employer must define the probationary period at the outset of an employment relationship, and the employer has the burden of showing that a probationary period was in effect at the time of a discharge.” Hunter v. City of Great Falls, 2002 MT 331, P16, 313 Mont. 231, 235, 61 P.3d 764, 767 (Mont. 2002) (citations omitted).

Probationary periods are presumed to be six months but can be longer if it is specifically stated upon hire. See Mitchell v. V-1 Propane, 19 Mont. Fed. Rep. 409 (1995). Also, an employer may extend the employee’s probation period to determine the employee’s competence if the employee’s performance during his probation is unsatisfactory. See Hunter, PP 13, 18.

In general, a probationary employee may still bring a claim for a “public policy” violation or a violation of the employer’s own written “personnel policies.” The Montana Supreme Court has stated,

The statutory prohibition on termination in retaliation for the employee’s refusal to violate public policy does not distinguish between probationary and non-probationary employees. Section 39-2-904(1), MCA. In fact, as long as an employer’s conduct is consistent with the employer’s personnel policies, the only basis for challenging the discharge of a probationary employee is that the employer discharged the employee in retaliation for refusing to violate public policy or for reporting a violation of public policy.

Motarie v. Northern Mont. Joint Refuse Disposal Dist., 907 P.2d 154, 156, 1995 Mont. LEXIS 270, *6, 274 Mont. 239 (Mont. 1995). One distinction to be made here, however, is that public employees may be precluded from bringing any of the three claims for relief. See Ritchie v. Town of Ennis, 2004 MT 43, 320 Mont. 94, 86 P.3d 11.

Remedies

If an employee is wrongfully terminated, his damages are limited to 4 years lost wages and benefits and reasonable costs for finding new employment, minus the wages he earned or could have earned with reasonable diligence during that time. Section 39-2-905 provides for the employee’s remedies in a wrongful termination as follows.

(1) If an employer has committed a wrongful discharge, the employee may be awarded lost wages and fringe benefits for a period not to exceed 4 years from the date of discharge, together with interest on the lost wages and fringe benefits. Interim earnings, including amounts the employee could have earned with reasonable diligence, must be deducted from the amount awarded for lost wages. Before interim earnings are deducted from lost wages, there must be deducted from the interim earnings any reasonable amounts expended by the employee in searching for, obtaining, or relocating to new employment.

(2) The employee may recover punitive damages otherwise allowed by law if it is established by clear and convincing evidence that the employer engaged in actual fraud or actual malice in the discharge of the employee in violation of 39-2-904(1)(a).

(3) There is no right under any legal theory to damages for wrongful discharge under this part for pain and suffering, emotional distress, compensatory damages, punitive damages, or any other form of damages, except as provided for in subsections (1) and (2).

An employee has one year from the date of discharge to file a lawsuit for wrongful termination. Some employers have employees agree to follow an employee handbook as a condition of hiring or during employment. Employee handbooks sometimes requires a discharged employee who seeks remedy to follow internal procedures with the employer before being able to file a civil lawsuit against the employer for wrongful termination. Generally speaking, the one year statute of limitations is tolled during the internal procedures. Section 39-2-911, MCA prescribes the procedures in this regard, stating,

(1) An action under this part must be filed within 1 year after the date of discharge.

(2) If an employer maintains written internal procedures, other than those specified in 39-2-912, under which an employee may appeal a discharge within the organizational structure of the employer, the employee shall first exhaust those procedures prior to filing an action under this part. The employee’s failure to initiate or exhaust available internal procedures is a defense to an action brought under this part. If the employer’s internal procedures are not completed within 90 days from the date the employee initiates the internal procedures, the employee may file an action under this part and for purposes of this subsection the employer’s internal procedures are considered exhausted. The limitation period in subsection (1) is tolled until the procedures are exhausted. In no case may the provisions of the employer’s internal procedures extend the limitation period in subsection (1) more than 120 days.

(3) If the employer maintains written internal procedures under which an employee may appeal a discharge within the organizational structure of the employer, the employer shall within 7 days of the date of the discharge notify the discharged employee of the existence of such procedures and shall supply the discharged employee with a copy of them. If the employer fails to comply with this subsection, the discharged employee need not comply with subsection (2).

At the time of discharge, the employee has the statutory right to demand the employer to provide a written statement for his discharge. Section 39-2-801(1), MCA says,

It is the duty of any person after having discharged any employee from service, upon demand by the discharged employee, to furnish the discharged employee in writing a statement of reasons for the discharge.

This demand must also advise the employer that the statements can be used against the employer in a lawsuit. Section 39-2-801(2), MCA says, “A written demand under this part must advise the person who discharged the employee of the possibility that the statements may be used in litigation.” This same statute also prohibits an employer from blacklisting the employee if the employer “refuses to [provide a written statement of the reasons for termination] within a reasonable time after the demand.” Id.

The employer’s response “may be modified at any time and may not limit a person’s ability to present a full defense in any action brought by the discharged employee. Failure to provide a response as required under subsection (1) may not limit a person’s ability to present a full defense in any action brought by the discharged employee.” Section 39-2-801(3), MCA.

Another aspect of the employee’s remedies includes arbitration. Sections 39-2-914 and -915, MCA provide a way for the parties to arbitrate instead of litigate the dispute. If one party offers to arbitrate but the other party rejects the offer and later loses in a civil action, the prevailing party is entitled to reasonable attorney’s fees and costs incurred subsequent to the date of the offer.

Conclusion

Many employees are terminated without good cause. Under Montana law, these employees have a remedy for damages. Employees who have been wrongfully discharged should consult with an attorney experienced in this area of law because there are many issues to be addressed that have an impact on how the case should be handled to maximum the amount of damages the employee can recover for the wrongful termination.

If you need a consultation regarding your wrongful termination case, call Billings Legal at (406) 248-7000 or email Jeff Simkovic at jeff@billingslegal.net.

Why People Should Study Court Cases

by Tim Baldwin

Many, if not most, people (regardless of their profession and occupation) feel they have little power to change laws respecting the expansion of individual liberty and rights. Our laws are governed first by our constitutions: state constitutions control state laws and the United States Constitution controls federal laws–and to some degree, state laws. These fundamental documents provide the framework for how government operates and how laws are passed and enforced. The branch of government designed to pass laws is the legislative branch; the branch designed to enforce laws is the executive branch; and the branch designed to interpret and apply laws is the judicial branch. While these branches act independently of each other, the people have ultimate power to change how government operates and how laws can be applied.

Even though our constitutions provide the basic framework of government limitation, the practice of government and law reveals that the judicial branch has tremendous power to expound upon and apply constitutional provisions. Over time, court decisions put flesh on the bones of the constitution. The more general in nature the constitutional provision, the more flexibility courts have in interpreting and applying the law. Since there is more than one way of interpreting law, including our constitutions, the development of constitutional law can take a variety of twists and turns. The more time that passes, the more changes can be made by courts in applying our constitutions.

Thus, when it comes to limiting government power, the people may become dissatisfied with how courts interpret those laws designed to protect the people. This dissatisfaction could relate to how courts apply the Second Amendment—a more obvious and notable body of law to the public; but it may relate to a less-known body of law relative to criminal and civil procedure. For example, many people may not be aware of how federal courts have limited an accused’s rights of discovery in a criminal case until that person has been charged.

When people study court decisions, they can determine if they believe the court decisions on a particular area of law or concerning particular rights protect individual liberty and limit government sufficiently. When a sufficient number of people realize that the way court decisions have interpreted the constitution does not protect liberty or sufficiently limit government, they can educate others about that body of law and work to changing those court decisions.

So, how do the people change court decisions that do not sufficiently protect liberty and limit government? There are two basis ways. First, people can elect legislators who believe similarly and who are willing to pass legislation to effectively overturn court decisions through statute. While not all court decisions are subject to being overturned by statute, many decisions can be overturned by statute. Second, people can amend our constitutions to overturn bad court decisions. The Founding generation did this with, for example, the Eleventh and Fourteenth Amendment. The Eleventh Amendment to the USC amended a United States Supreme Court decision in Chisholm v. Georgia, 2 U.S. 419 (1793), which stated that States can be sued in their sovereign capacity by individuals. The Eleventh Amendment overturned that decision. The Fourteenth Amendment overturned, among other decisions, the United States Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 (1857) that said black Americans could be denied citizenship.

While there are some who claim that all people have to do is “enforce” the constitution and that people need not amend the constitution or the law to correct court decisions, the practice and history of America’s constitutional system proves otherwise. The Founders and other pivotal generations knew this, which is why they amended the constitution.

People are the ultimate source of political power. The constitution was designed to create government, and government has certain powers to act regarding law. It so happens that the judicial branch is given the power to interpret and expound the meaning of the constitution, which James Madison and Alexander Hamilton recognized in the Federalist Papers. For example, Hamilton said, “[l]aws are a dead letter without courts to expound and define their true meaning and operation…Their true import, as far as respects individuals, must, like all other laws, be ascertained by judicial determinations” (Federalist Paper 22).

Until the people make such changes in the law through statute or the constitution, courts will continue to expound the law within their powers. This means that every time issues are raised in court in an effort to more sufficiently limit government power, courts will decide the issue based on judicial methods of interpretation. One well-known way of interpreting law is by applying previous cases (known as precedent). Precedent is given heavy weight, especially when the precedent comes from a higher court. Thus, previous decisions that do not adequately protect liberty or limit government power will self-perpetuate, and people will have little success in changing the law to their benefit. People can argue all they want in court about how they believe the constitution should be applied, but their efforts will likely be fruitless in court.

In sum, people have a responsibility in a free society to study court decisions in all areas of law that affect our rights and liberty. When they realize that the courts’ decisions do not adequately protect our liberty and rights, the people have a duty to take necessary steps in changing that law through statutes or amending the constitution. When these changes are made to our system of government, it has tremendous impact in changing the course of how laws are applied. To do nothing about bad court decisions is to implicitly consent to how courts decide those issues.

Self-government: it’s a powerful concept, but it only works when people understand the system and do what it takes to change it.

If you need help with your criminal defense matter, email Tim Baldwin at timbaldwin@outlook.com.

Domestic Abuse Allegations: Consider the Source

by Tim Baldwin

A recent video shows a Florida judge holding a complaining witness in an alleged domestic assault in contempt for not appearing at trial after she was served with court order to be present. The judge asked the woman if the allegations she made were true. She said, yes. The judge then asked, so why didn’t you appear for trial? The woman blamed anxiety for her failure to appear. Since the complaining witness failed to appear for trial, the prosecutor could not attempt to prove the charge; the case was dismissed consequently.

So, what reasons are common in domestic abuse cases for a complaining witness not to appear or not to participate in the prosecution?

Many domestic abuse cases originate because a complaining witness calls 911 during or after domestic arguments within a private home. Police arrive to investigate. Under the laws of many, if not all states, the police MUST arrest one of the parties. This normally translates into police arresting the male because of the difference in size and presumption that the male was the aggressor.

I recently handled a case that demonstrates this. There, the woman claimed that my client hit and pushed her without provocation in their home. Multiple police arrived on scene. The police arrested my client after talking to her. Later, at the booking station, one officer interviewed my client while another officer interviewed the complaining witness who maintained that he hit and pushed her without provocation. My client explained to the officer that the complaining witness stabbed him with a pair of scissors twice, once in the arm and once in the chest, and that when she attempted to attack him a third time, he defended himself.

He took off his shirt and showed him his arm to police. Behold, there were puncture marks on his chest and arm. She, on the other hand, had no signs of being assaulted. Guess what, the officer who interviewed the woman told the other officer to arrest my client even before he heard my client’s story. The police let her go free.

When the case was forwarded to the prosecutor, she continued to prosecute my client in spite of what the evidence proved. I tried to get the prosecutor to dismiss the case before trial, but she didn’t. So, we took the matter to a bench trial where I offered evidence of self-defense. Despite the complaining witness giving a story to the contrary (under oath), the judge found my client NOT GUILTY by reason of self-defense, thankfully. Justice was done.

However, in many domestic abuse cases, the physical evidence does not make it easy to determine or prove what actually happened, unlike the case I shared above, which allowed me to prove self-defense. Most cases are his-word-versus-her-word cases. This forces the defendant to choose either to enter into a plea agreement or face the risk of going to trial and being found guilty for something he did not do or for doing something much less than what the accuser claimed. In many cases, the defendant feels his best option is to accept a plea agreement instead of being subject to the maximum penalties by a judge at a sentencing hearing. He chooses the lesser of two evils.

So, why do complaining witnesses make unfounded or exaggerated claims? There are many. For example, the complaining witness:

  • may be a drug addict and unable to perceive and recount reality accurately;
  • is trying to gain an advantage over the defendant in a family law matter, such as child custody or support;
  • is trying to put herself in a better position or light while being investigated by child protective services;
  • feels substantiated only when playing the role of a victim;
  • has post traumatic stress disorder from a previous abusive relationship and responds to any conflict by associating her current partner with the previous abusive partner;
  • has a mental or personality disorder;
  • has a hyper-sensitive personality and exaggerates conflicts;
  • is trying to manipulate or dominate the defendant in their relationship;
  • was the actual aggressor in the dispute and doesn’t want to face cross-examination or lie under oath;
  • is being influenced by other friends or family members who have convinced her to rid herself of the spouse or partner; or
  • is cheating on the spouse and is using the legal system to shift personal responsibility.

In these circumstances, it becomes critically important for the defendant to hire a defense attorney who knows what to look for and how to handle the allegations. This includes knowing how to interview witnesses, prepare applicable defense motions, find and analyze physical evidence and witness statements, work with a private investigator to learn underlying facts of the relationship and personalities at play, dig into the complaining witness’ mental and psychological history, learn of previous false reports made by the complaining witness, and try a jury trial.

Keep in mind: being accused of domestic abuse is no small thing, even if it is a misdemeanor. For example, under federal law, if a person is convicted of domestic abuse by assault, the person loses his federal firearms rights: a subsequent possession of a firearm with that conviction could be prosecuted as a federal felony. Too, being convicted of domestic abuse may prevent a person from being issued a concealed carry permit, hired at a security job, or issued travel or clearance permits. Any person charged with domestic abuse needs to hire the right defense attorney for the job.

For your criminal defense, email Tim Baldwin at timbaldwin@outlook.com.