[Malum Prohibitum]

Plain English, this bill adds on to the possession of firearms by convicted felons law, 16-11-131. It has enhanced sentencing for those convicted of forcible felonies who possess a firearm. It has an enhanced penalty for those convicted of family violence felonies who possess a firearm.

Here is what else it does: Anybody convicted of any domestic violence crime, even a misdemeanor, is now subject to being arrested under state law and is subject to the same penalties as a person who previously committed murder, armed robbery, and rape, if that person has also previously been convicted of a felony or is on probation as a first offender probationer that involved any act of family violence. See lines 43 and 69-70.

This is an expansion of gun control in Georgia.

This is not quite bringing the Lautenburg Amendment brought to Georgia, something Moms Demand Action and Everytown have been demanding for years, but it is a step in that direction. And Republicans are giving to to them.

Only Section Two relates to the right to bear arms.

 

[Malum Prohibitum]

So, a person who is arrested for 30 grams of marijuana (which is one hundredth of an ounce over one ounce, so felony) is arrested when the police find the marijuana in her purse after they are called by her husband, whose dress shirt pocket is torn during a little tussling pushing match.

She is charged with felony drug possession and simple battery, FV. The judge sentences her to first offender probation.

She works in a dangerous part of town, at night.

She keeps a pistol in her purse for self defense.

She risks 5-10 years in prison under this bill by Rep. Albers. Does that strike you as government doing the right thing?

 

[Malum Prohibitum]

(2) A person convicted of possession of a firearm by a convicted felon or first offender ​

probationer as provided in paragraph (1) of this subsection shall be imprisoned for not ​

less than five years nor more than ten years, provided that:​

(A) The felony for which the person is on probation or has been previously convicted​

is a forcible felony; or​

(B) The offense for which the person is on probation or has been previously convicted was a domestic violence felony or involved the occurrence of an act of family violence."​

 

[Malum Prohibitum]

Now, to be completely transparent here, she is, under current law, risking 1-10 years in prison, which I also think is wrong, but that is the current law. If this bill passes, however, and the offense "involved the occurrence of an act of family violence," then it is 5-10. Note that the word "or" between "a domestic violence felony" and the phrase "involved the occurrence of an act of family violence." Note also the definition of family violence in line 43, which points back to all domestic violence crimes under 19-13-1. There is no requirement of an injury or even actual violence, and no requirement of a felony.

Does she deserve an extra four years in prison as a sentencing enhancer?

This is Lautenburg as a camel getting his nose under the tent.

And it is the fault of Republicans, which means this is going to pass if you do not get to work early.

 

[Malum Prohibitum]

The words in red refer to 19-3-1 only. Sorry if I was not clear. SB12 does require a previous felony, but not a domestic violence felony. It can be a felony that "involved the occurrence of an act of family violence," see line 69, which as you know, under 19-13-1, see line 43, does not need to involve "violence," as most think of it, nor does the felony need to be violent or family violence (due to the word "or" on line 69).

As I said in post #2, "This is not quite bringing the Lautenburg Amendment brought to Georgia, something Moms Demand Action and Everytown have been demanding for years, but it is a step in that direction."

There is no reason for a mere misdemeanor to be a sentencing enhancement that costs a minimum of an additional 4 years.

 

[Malum Prohibitum]

Then why have the word or and anything after that?

Your explanation makes it meaningless.

 

[Malum Prohibitum]

I'm still not with you on a misdemeanor causing a sentence enhancement. Mind you, I think the bill could (and should) be written better to avoid this confusion, but I don't reach the misdemeanor conclusion that you do. I think you're looking at Lines 68-69, "The offense for which the person is on probation or has been previously convicted was a domestic violence felony or involved the occurrence of an act of family violence."

You are reading, I believe, the blue language to include misdemeanor acts of family violence. I would agree with you that it otherwise would include misdemeanors, but the red language refers back to the existing 16-11-131(b)(1), which only includes felonies. Because the proposed 16-11-131(b)(2) specifically refers back to the existing 16-11-131(b)(1) (which only applies to felonies), the "offense for which the person is on probation has been previously convicted" can only applies to felonies. So the occurrence of an act of family violence only applies to felonies.

That would be correct if "domestic violence felony" were redundant with "occurrence of an act of family violence [that was a felony]". But it's not. there are two separate definitions of domestic violence and family violence and they do not completely coincide. As I said, this could be written much better. But your interpretation ignores the words. Mine just accommodates very significant (but incomplete) overlap.

I have tried and tried and tried to see this your way, and I still don't. I respect you. You are very smart. I just disagree about what this bill says.

The bill says a person on probation as a felon or a felony first offender caught with a weapon will be subject to a sentencing enhancement if (A) the felony for which he was given first offender treatment was a forcible felony, or (B) it was a domestic violence felony "or involved the occurrence of an act of family violence."

Family violence is defined in the bill, which points to 19-13-1.

19-13-1 includes misdemeanors, including even simple assault, which does not even require touching. It also includes criminal damage to property.

So, yes, a misdemeanor leads to a sentencing enhancement.

I have written the author of the bill to ask him which his intention is and suggested that the language be clarified.

Obviously that did not work.

 

[Malum Prohibitum]

2021 Georgia Code :: Title 19 - Domestic Relations :: Chapter 13 - Family Violence :: Article 1 - Granting of Relief by Superior Courts :: § 19-13-1. "Family Violence" Defined

Justia Free Databases of US Laws, Codes & Statutes

law.justia.com

"involved"

to have as a part of

related /connected

Choose the Right Synonym for involve

INCLUDE, COMPREHEND, EMBRACE, INVOLVE mean to contain within as part of the whole.
INCLUDE suggests the containment of something as a constituent, component, or subordinate part of a larger whole.
the price of dinner includes dessert
COMPREHEND implies that something comes within the scope of a statement or definition.
his system comprehends all history
EMBRACE implies a gathering of separate items within a whole.
her faith embraces both Christian and non-Christian beliefs
INVOLVE suggests inclusion by virtue of the nature of the whole, whether by being its natural or inevitable consequence.
the new job involves a lot of detail

 

[Malum Prohibitum]

So, a person who is arrested for 30 grams of marijuana (which is one hundredth of an ounce over one ounce, so felony) is arrested when the police find the marijuana in her purse after they are called by her husband, whose dress shirt pocket is torn during a little tussling pushing match.

She is charged with felony drug possession and simple battery, FV. The judge sentences her to first offender probation.

She works in a dangerous part of town, at night.

She keeps a pistol in her purse for self defense.

She risks 5-10 years in prison under this bill by Rep. Albers. Does that strike you as government doing the right thing?

Was Mrs. Smith on probation as a felony first offender for a crime that "involved" an act of family violence, or not?

What does the judge do when the prosecutor asks for enhanced sentencing of 5-10 years?