Practice Tips

Those convicted of domestic violence cannot possess firearms

By Laura A. Przybylinski Finn

Did you know that if your client faces charges of misdemeanor battery or disorderly conduct in a domestic violence situation, a conviction may mean that he or she may never legally possess a firearm? If you're a judge in the process of returning a firearm because a protection order has expired or been vacated, are you aware that you must first determine that the person is not prohibited under any state or federal law from possessing firearms?

These prohibitions, amendments to the Gun Control Act of 1968, passed as part of the Omnibus Consolidated Appropriations Act of 1997. Although they have been in effect for two years, the U.S. Attorney's Office still receives many inquiries regarding these prohibitions.

Omnibus Act Definitions and Prohibitions

The Omnibus Act prohibits those convicted of a misdemeanor crime of domestic violence from possessing firearms or ammunition.¹ The Act defines "misdemeanor crime of domestic violence" as a misdemeanor under federal or state law that has "as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."²

There is no exception for employees of law enforcement, state, or federal agencies, and the statute covers all misdemeanor crimes of domestic violence regardless of the date of conviction. The statute carries a maximum penalty of 10 years in prison.

A person is not considered to have been convicted of such an offense unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case.³ If the person was entitled to a jury, the case must have been tried by a jury unless the person knowingly and intelligently waived that right. Finally, a person is not considered to have been convicted of such an offense if the conviction has been expunged, set aside, or is for an offense for which the person has been pardoned or has had civil rights restored.

An individual is prohibited from selling or otherwise disposing of a firearm or ammunition to any person, if the seller knows or has reasonable cause to believe that the recipient has been convicted of a misdemeanor crime of domestic violence.⁴ Violation of this section is a felony punishable by 10 years in prison.

A State Disorderly Conduct Conviction May Qualify as a Misdemeanor Crime of Domestic Violence

One of the most commonly asked questions the U.S. Attorney's Office receives is whether a state disorderly conduct conviction is viewed as a misdemeanor crime of domestic violence. The answer is "yes," if the conviction fits the definition provided in 18 U.S.C. section 921(a)(33). The nature of the relationship between the defendant and the victim need not be an element of the actual law violated. For example, if a person is convicted of misdemeanor battery, and the victim is his or her spouse, that person would be prohibited from receiving or possessing firearms and ammunition.

It may be necessary to examine the entire record, including the transcript of any plea or sentencing hearing, for a disorderly conduct conviction to be considered a misdemeanor crime of domestic violence. A large number of disorderly conduct complaints contain the catch-all phrase "or other disorderly conduct." These convictions will almost never meet the requirements of section 921(a)(33) because there is no requirement that the prosecutor prove force. In a rare number of situations, a conviction may count because the fact section of the complaint alleges only use of force; or at a plea hearing, the defendant agrees there was use of force; or the judge acknowledges use of force as an element the prosecutor must prove.

In Wisconsin, there has been one federal conviction.⁵ United States v. Lewitzke involved an individual who possessed a firearm after having been convicted of a misdemeanor crime of domestic violence for battery of his wife. The defendant was sentenced to 15 months in prison. The 7th Circuit upheld the conviction and found the statute constitutional on equal protection grounds.

If you have any questions about the federal firearms law, contact the U.S. Attorney's Office in Madison at (608) 264-5158.

Endnotes

¹ 18 U.S.C. § 922(g)(9).

² 18 U.S.C. § 921(a)(33).

³ 18 U.S.C. § 921(a)(33).

⁴ 18 U.S.C. § 922(d)(9).

⁵ 176 F.3d 1022 (7th Cir. 1999).

Wisconsin Lawyer