04012002 - MCL 769.4A: Michigan's Loophole To The Lautenberg Amendment - Federal DV Gun Ban - 18 U.S.C. § 921

Also See:

Lautenberg DV Gun Ban - US Representative Bart Stupak's attempt to have police officers exempt from Lautenberg Amendment

18 U.S.C. § 921: Lautenberg Amendment; Federal Domestic Violence Gun Ban

MCL 769.4A: Michigan's Loophole To The Lautenberg Amendment - Federal DV Gun Ban - 18 U.S.C. § 921

MCL 769.4a and ACT 550: Closed criminal proceedings

BULLARD-PLAWECKI ACT: Internal Investigation Of Criminal Complaints - OIDV

"Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime."


18 U.S.C. § 921: Lautenberg Amendment; Federal Domestic Violence Gun Ban

THE CODE OF CRIMINAL PROCEDURE (EXCERPT)
Act 175 of 1927
769.4a Assault on spouse, former spouse, individual with child in common, dating relationship, or household resident; plea or finding of guilty; deferral of proceedings and order of probation; previous convictions; adjudication of guilt upon violation of probation; mandatory counseling program; costs; circumstances for entering adjudication of guilt; discharge and dismissal; limitation; nonpublic record; definitions.

Sec. 4a.
(1) When an individual who has not been convicted previously of an assaultive crime pleads guilty to, or is found guilty of, a violation of section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a, and the victim of the assault is the offender's spouse or former spouse, an individual who has had a child in common with the offender, an individual who has or has had a dating relationship with the offender, or an individual residing or having resided in the same household as the offender, the court, without entering a judgment of guilt and with the consent of the accused and of the prosecuting attorney in consultation with the victim, may defer further proceedings and place the accused on probation as provided in this section. However, before deferring proceedings under this subsection, the court shall contact the department of state police and determine whether, according to the records of the department of state police, the accused has previously been convicted of an assaultive crime or has previously availed himself or herself of this section. If the search of the records reveals an arrest for an assaultive crime but no disposition, the court shall contact the arresting agency and the court that had jurisdiction over the violation to determine the disposition of that arrest for purposes of this section.

(2) Upon a violation of a term or condition of probation, the court may enter an adjudication of guilt and proceed as otherwise provided in this chapter.

(3) An order of probation entered under subsection (1) may include any condition of probation authorized under section 3 of chapter XI of the code of criminal procedure, 1927 PA 175, MCL 771.3, including, but not limited to, requiring the accused to participate in a mandatory counseling program. The court may order the accused to pay the reasonable costs of the mandatory counseling program. The court also may order the accused to participate in a drug treatment court under chapter 10A of the revised judicature act of 1961, 1961 PA 236, MCL 600.1060 to 600.1082. The court may order the defendant to be imprisoned for not more than 12 months at the time or intervals, which may be consecutive or nonconsecutive and within the period of probation, as the court determines. However, the period of imprisonment shall not exceed the maximum period of imprisonment authorized for the offense if the maximum period is less than 12 months. The court may permit day parole as authorized under 1962 PA 60, MCL 801.251 to 801.258. The court may permit a work or school release from jail.

(4) The court shall enter an adjudication of guilt and proceed as otherwise provided in this chapter if any of the following circumstances exist:
(a) The accused commits an assaultive crime during the period of probation.
(b) The accused violates an order of the court that he or she receive counseling regarding his or her violent behavior.
(c) The accused violates an order of the court that he or she have no contact with a named individual.

(5) Upon fulfillment of the terms and conditions, the court shall discharge the person and dismiss the proceedings against the person. Discharge and dismissal under this section shall be without adjudication of guilt and is not a conviction for purposes of this section or for purposes of disqualifications or disabilities imposed by law upon conviction of a crime.

(6) There may be only 1 discharge and dismissal under this section with respect to any individual. The department of state police shall retain a nonpublic record of an arrest and discharge and dismissal under this section. This record shall be furnished to a court or police agency upon request pursuant to subsection (1) or to an office of prosecuting attorney for the purpose of showing that a defendant in a criminal action under section 81 or 81a of the Michigan penal code, 1931 PA 328, MCL 750.81 and 750.81a, or a local ordinance substantially corresponding to section 81 of that act has already once availed himself or herself of this section or for the purpose of determining whether the defendant in a criminal action is eligible for discharge and dismissal of proceedings by a drug treatment court under section 1076

(5) of the revised judicature act of 1961, 1961 PA 236, MCL 600.1076.

(7) As used in this section:
(a) "Assaultive crime" means 1 or more of the following:
(i) That term as defined in section 9a of chapter X.
(ii) A violation of chapter XI of the Michigan penal code, 1931 PA 328, MCL 750.81 to 750.90g.
(iii) A violation of a law of another state or of a local ordinance of a political subdivision of this state or of another state substantially corresponding to a violation described in subparagraph (i) or (ii).

(b) "Dating relationship" means frequent, intimate associations primarily characterized by the expectation of affectional involvement. This term does not include a casual relationship or an ordinary fraternization between 2 individuals in a business or social context.

History: Add. 1978, Act 353, Imd. Eff. July 14, 1978 ;-- Am. 1980, Act 471, Eff. Mar. 31, 1981 ;-- Am. 1994, Act 68, Eff. July 1, 1994 ;-- Am. 2001, Act 208, Eff. Apr. 1, 2002 ;-- Am. 2004, Act 220, Eff. Jan. 1, 2005 ;-- Am. 2006, Act 663, Imd. Eff. Jan. 10, 2007

© 2009 Legislative Council, State of Michigan

18 U.S.C. § 921, Lautenberg Amendment, Domestic Violence Gun Ban, MCL 769.4a, Michigan's loophole to the Lautenberg Amendment, MCL 750.81, MCL 750.81a, Michigan misdemeanor and felony domestic assault crimes dismissed under MCL 769.4a.

02282002 - Officer David Mitchell - Domestic Abuse And Obstructing Police Officer - Suspended - Detroit PD

DETROIT COP GETS SUSPENSION
March 1, 2002 •• 445 words •• ID: 0203010503. Detroit Free Press

A Detroit police officer was suspended without pay Thursday for allegedly assaulting a woman and a Southfield police officer who was dispatched to help her during a recent domestic incident. Detroit Officer David Mitchell, 39, of the 9th (Gratiot) Precinct is accused of domestic violence and resisting and obstructing a police officer, both misdemeanors, in connection with an incident Saturday at a North Park Drive apartment in Southfield. The charges were read Thursday at a Detroit Police.











BOARD OF POLICE COMMISSIONERS
Minutes of the Regular Board of Police Commissioners Meeting
Thursday, February 28, 2002
The regular meeting of the Detroit Board of Police Commissioners was held on Thursday, February 21, 2002, at 3:00 p.m., at Police Headquarters, 1300 Beaubien – Rm. 328-A, Detroit, MI 48226.

SECRETARY REPORT– EX. DIR. MCDONALD

Suspension

On February 28, 2002, Police Officer David Mitchell, badge 2278, assigned to the Ninth Precinct was suspended without pay by Chief of Police Jerry A. Oliver, Sr.

On February 23, 2002, Sergeant Melvin Williams, badge S-63, of the Internal Affairs Unit Alert Team, was notified by Sergeant Arthur Williams, badge S-1293, of the Notification and Control Unit, that off-duty Police Officer David Mitchell, badge 2278, assigned to the Ninth Precinct, was arrested by the Southfield Police Department for "Assault and Battery/Domestic Violence" and "Resisting and Obstructing a Police Officers in the Performance of Their Duties." Sergeant Williams was informed that Officer Mitchell was incarcerated at the Oakland County Jail.

On February 23, 2002, Police Officer Walter Menzel, and Police Officer Autumm Kennedy, both of the Southfield Police Department responded to a hang up 911 call for assistance. Ms. Pamela Reid, B/F/38, of 16300 North Park Drive Apt #613, informed the Southfield officers that she and Officer Mitchell had an argument and Officer Mitchell threatened to kill her if she reported the incident to the police. Ms. Reid also reported that Officer Mitchell struck her and threw her onto a computer table breaking the table. She further stated that Officer Mitchell grabbed her hair pulling parts of her hair out. When she attempted to call 911 for help Officer Mitchell yanked the phone from the wall. Officer Menzel and Officer Kennedy both observed Ms. Reid’s hair on the bedroom floor and the broken computer table. Officer Menzel and Officer Kennedy observed a weapon on the couch of the house.

They attempted to secure the weapon while they were conducting their investigation. Officer Mitchell blocked the officers attempt to secure his .9mm semi-automatic weapon. Officer Mitchell ran toward the gun and sat on it. Officer Mitchell was ordered to step away from the gun and he replied, "Nobody is going to take my gun, call a supervisor. I’m not giving you my gun." Officer Mitchell at one point flexed his right arm while sitting on the gun and the Southfield officers stepped toward him to secure the gun. Once Officer Menzel secured the gun, Officer Mitchell with a closed fist struck Officer Menzel in the face several times.

The Southfield officers attempted to subdue Officer Mitchell who then grabbed the face of Officer Menzel and with his forefinger attempted to stick his thumb into his eye. Officer Mitchell was sprayed with pepper spray. Officer Mitchell continued his attempt to injure Officer Menzel and he was sprayed again a second time until it took effect. Officer Menzel suffered abrasions to his left cheek and throat and obvious swelling and soreness to the left jaw and he was bleeding. Officer Mitchell was arrested and conveyed to the Oakland County Jail for incarceration. Ms. Reid and Officer Menzel were treated for their injuries at Providence Hospital. Photographs were also taken.

On February 25, 2002, Officer Mitchell was arraigned before Magistrate Eugene Friedman, of the46th District Court. Officer Mitchell stood mute and a plea of "Not Guilty," was entered in his behalf a $5000.00 (10%) bond was posted. Officer Mitchell’s Pre-examination date is scheduled for February 28, 2002, and his Examination date is scheduled for March 4, 2002.

It should be noted that Commander Frazier Shaw, of the Ninth Precinct stated that due to the seriousness of the charges against Officer Mitchell that upon his return to work he will be suspended. Officer Menzel and Officer Kennedy of the Southfield Police department confiscated and placed on evidence two privately owned weapons belonging to Officer Mitchell. Officer Mitchell department approved weapon was not confiscated by the Southfield Police Department.
On February 25, 2002, at approximately 5:30 p.m. Officer Mitchell appeared at the Ninth Precinct and was suspended by his command.

Based upon the above facts, it is recommended that Officer Mitchell be charged with, but not limited to, the following violation of the Detroit Police Rules and Regulations:
CHARGE: CONDUCT UNBECOMING AN OFFICER

Unless contravened by this Commission, the suspension without pay will stand.
There were no contraventions to the above suspension.
CITIZEN COMPLAINTS RECEIVED
2002
2001

During the past week: 24
During the past week: 19

Year to Date: 159
Year to Date: 133

Chairperson Head asked what happened to the officer’s own revolver or his 9mm? Was it confiscated later?
Chief Oliver stated he did not know.