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Federal Gun Laws and Colorado Domestic Violence Cases

FAQ: Will I Lose My Gun Rights If I Am Convicted in a Domestic Violence Case

The Domestic Violence Offender Gun Ban

Have you been convicted of a misdemeanor crime?

Did the crime involve the use or attempted use of physical force, or threatened use of a deadly weapon, against someone in your household or someone with whom you have a relationship?

If your answers to these questions are “yes,” then you may be subject to federal laws making it a crime for you to possess, ship, transport or receive any firearm or ammunition

If you are convicted of a “misdemeanor crime of domestic violence,” it is unlawful for you to possess, ship, transport or receive any firearm or ammunition. 18 U.S.C. § 922(g)(9). This prohibition also applies to federal, state, and local governmental employees in both their official and private capacities. Violation of this prohibition is a federal criminal offense punishable by up to ten years imprisonment.

What qualifies as a “misdemeanor crime of domestic violence” conviction?

The term “misdemeanor crime of domestic violence” means a criminal offense that:Is a federal, state, local or tribal offense that is a misdemeanor under federal or state law; Has as an element the use or attempted use of  physical force, or the threatened use of a deadly weapon; and,

At the time the misdemeanor was committed, the convicted offender was: a current or former spouse, parent, or Guardian of the victim, a person with whom the victim shared a child in common, a person who was cohabiting with or had cohabited with the victim as a spouse, parent, or guardian, or a person who was or had been similarly situ»»ated to a spouse, parent, or guardian of the victim.

For the purpose of applying this law, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless the person was represented by counsel, or knowingly and intelligently waived the right to counsel and, if entitled to have the case tried by a jury, the case was actually tried by a jury or the person knowingly and intelligently waived the right to have the case tried by a jury.

If the conviction is expunged or set aside, or if the convicted offender is pardoned for the offense, the conviction will not qualify, unless the expungement or pardon expressly provides that the person may not ship, transport, possess or receive firearms. 18 U.S.C. § 921(a)(33)(A), (B).

My qualifying misdemeanor conviction happened many years ago—does the federal law apply to me?

Since the effective date of the federal gun law, September 30, 1996, any person convicted of a misdemeanor crime of domestic violence may no longer possess a firearm or ammunition. This applies to persons who were convicted of misdemeanor crimes of domestic violence at any time, even before the passage of the law in September 1996.

What should I do if I have been convicted of a misdemeanor crime of domestic violence?

The Federal Bureau of Alcohol, Tobacco and Firearms advises that you immediately and lawfully dispose of your firearm and/or ammunition by transferring it to a third party, such as your attorney, local police agency, or a Federal firearms dealer.

The Actual Law: – the Federal “Lautenberg Amendment”

Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence”,

Pub.L. 104-208,[1] 18 U.S.C. § 922(g)(9)[2]) was an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996.

The act is often referred to as “the Lautenberg Amendment” after its sponsor, Senator Frank Lautenberg.

Summary of the Federal Gun Ban Law

The act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining (protection) order for domestic abuse. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such person.

Firearms dealers are under ever increasing pressure to avoid straw purchases — a purchase made by a non-prohibited person on behalf of a prohibited person. This means that spouses, people who cohabitate with a domestic violence offender, and indeed friends can come under very close scrutiny by dealers and law enforcement during the sales process.

The definition of ‘convicted’.

The Definition of CONVICTED is found in the chapter 18 USC ss 921(a)(33)(B)(ii) and it has important exceptions:

(33) (B)

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Therefore, if a person was represented by counsel, waived that right, AND, the person was entitled to a trial by jury, but also waived that right, the person shall not be considered to have been convicted if the conviction was expunged or set aside or had his civil rights (to bear arms) restored, UNLESS the further order of the court permanently revokes that right.

Court history

This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001).[3] See also U.S. v. Emerson, 231 Fed. Appx. 349 (5th Cir. 2007) (Same defendant seeking review of judgment). The case involved a challenge to the Constitutionality of 18 U.S.C. § 922(g)(8)(C)(ii), a federal statute that prohibited the transportation of firearms or ammunition in interstate commerce by persons subject to a court order that, by its explicit terms, prohibits the use of physical force against an intimate partner or child. Emerson does not address the portion of the Lautenberg Amendment involving conviction for misdemeanor domestic violence. It was initially overturned in 1999 for being unconstitutional, but that case was reversed upon appeal in 2001.[4]

The case Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th 1999) also challenged this law, and the case was rejected.[citation needed] The ex post facto aspects of the law were challenged with:

United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 115 S.Ct. 246 (1994)(denying ex post facto challenge to a 922(g)(1) conviction) and United States v. Waters, 23 F.3d 29 (2d Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction). Both of the challenges were denied.

Likewise this law was invoked in United States v. Jardee [5] where it was ruled that the threat of being subjected to the gun ban did not turn a otherwise “petty” crime into a “serious” one requiring a jury trial.

Application

For individuals who find their gun rights revoked by the Lautenberg Amendment, having their misdemeanor record expunged, pardoned or their civil rights restored will regain legal access to firearms. (18 U.S.C. § 921(a)(33)(B)(ii))

Opposition views

Some opponents believe that the law runs contrary to the right to keep and bear arms protected by Second Amendment to the United States Constitution, and that this law has modified the Second Amendment to be more of a revocable privilege than a fundamental protection. Other opponents believe that this is contrary to the Tenth Amendment, making firearm and ammunition possession a federal felony due to a previous state misdemeanor charge. Most opponents consider this act to be an ex post facto law, and thus, illegal under the U.S. constitution.

Proponent views

Proponents of this section of federal law use the U.S. constitution to defend its legality. The Supreme Court has consistently ruled that Congress, under the interstate commerce clause, has the authority to regulate items that enter, or could enter, the stream of commerce. Since guns can easily be transported across state lines, this justifies federal regulation. Furthermore, courts have also upheld the ability of the government to restrict the gun rights of categories of people, including criminals, the mentally ill, etc., ruling that prohibiting a narrow category of people from owning firearms does not violate the second amendment.

Effects on the United States military

This law effectively mandated the discharge of service members who had been convicted of domestic violence, and mandates the discharge of all service members who are convicted of domestic violence in the future. This is not explicitly written in the law, but a side effect of service members’ access to firearms in the course of their duties. A service member discharged this way is said to be Lautenberged.

Effects on law enforcement officers

The Bureau of Alcohol, Tobacco and Firearms (ATF) sent a notice to every law enforcement agency when this law went into effect. Police officers with prior misdemeanor convictions of domestic violence from years earlier were no longer permitted to possess firearms under the new federal law. Several officers were fired for such past misdemeanor offenses. Several of the gun magazines printed a copy of this new ATF order at the time.

Other Federal Firearms Laws and Domestic Violence:*

Possession of a firearm while subject to a • protective order: 18 U.S.C. § 922(g)(8)

Transfer of a firearm to person subject to a • protective order: 18 U.S.C. § 922(d)(8)

Transfer of a firearm to person convicted of a • misdemeanor crime of domestic violence:

18 U.S.C. § 922(d)(9)

Possession of a firearm by convicted felon: • 18 U.S.C. § 922(g)(1)

These will be addressed on other webpages:

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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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