Practice Tips
Those convicted of domestic violence
cannot possess firearms
Federal law prohibits persons convicted of misdemeanor
crimes of domestic violence, regardless of conviction date and
occupation, from possessing firearms and ammunition.
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).
Laura A. Przybylinski Finn, U.W. 1994,
is an assistant U.S. attorney for the Western District of Wisconsin,
Madison.
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