Domestic Violence Offender Gun Ban

This article is about a United States law. For other related topics, see Outline of domestic violence. For the gun violence restraining order, see Extreme Risk Protection Order.

The Domestic Violence Offender Gun Ban, often called "the Lautenberg Amendment" ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", Pub.L. 104–208, 18 U.S.C. § 922(g)(9)), is an amendment to the Omnibus Consolidated Appropriations Act of 1997, enacted by the 104th United States Congress in 1996, which bans access to firearms by people convicted of crimes of domestic violence. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg (D - NJ).

Summary

The act bans shipment, transport, possession, 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 that falls within the criteria set by 18 U.S.C. § 922(g)(8). The 1968 Gun Control Act and subsequent amendments had previously prohibited anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such persons.

The definition of 'convicted' can be found in 18 U.S.C. § 921(a)(33)(B)(i) and has exceptions:

(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.

Restraining order restrictions

File:Temporary Order of Protection.jpg

Restraining order noting the potential firearms ban

For restrictions arising from a restraining order there are several requirements before the restrictions apply as follows:

Hearing--the defendant must have had the opportunity to be heard at a hearing
Intimate Partner--the defendant and petitioner must be intimate partners
Restrains Future Contact--must restrain the defendant from harassing, stalking, or threatening behavior
Credible Threat or Physical Force--defendant must be deemed a credible threat to the petitioner or be barred from the use of physical force

The hearing requirement ensures that the firearms restrictions will not apply after an initial ex parte hearing during which a temporary order is granted, but only after a longer term order is granted following a hearing in which both parties have the opportunity to be heard. The intimate partner requirement says that the relationship must be both sexual and involve cohabitation or a child in common. A Brady indicator trigger is generated when the requirements apply, resulting in the restraining order being noted in a federal database as prohibiting the possession of firearms. However, the state forms used for restraining orders do not always clearly indicate whether the specific federal criteria apply, making it difficult to determine whether the firearms restriction applies without a detailed reading of the order, the petition, and other court records.

Court history

This law has been tested in federal court with the case United States v. Emerson (No. 99-10331) (5th Cir. 2001). 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.

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

• United States v. Brady, 26 F.3d 282 (2nd 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 (2nd 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 where it was ruled that the threat of being subjected to the gun ban did not turn an otherwise "petty" crime into a "serious" one requiring a jury trial.

Most recently, United States v. Castleman (2014) challenged the application of the law to misdemeanor convictions which did not involve "the use or attempted use of physical force". In a 9-0 decision, the United States Supreme Court held that Castleman's conviction of "misdemeanor domestic assault" did qualify as a "misdemeanor crime of domestic violence" under Tennessee state law. Specifically holding that the ""physical force" requirement is satisfied by the degree of force that supports a common-law battery conviction — namely, offensive touching", thereby preventing him from possession of firearms.

A current challenge to the application of the Lautenberg Amendment is ongoing in the domestic battery case of Nassau County vs Michael Steven Bell. This challenge will focus heavily upon the theory that the application of this law constitutes wanton cruel and unusual punishment in response to a simple mistake that nearly all of us have made.

See also

• Gun Control Act
• Firearm Owners Protection Act

External links

• Department of Justice Criminal Resource Manual
• The Consumer Law Page Article
• Misdemeanor Crime of Domestic Violence archive
• The Emerson Case