How A Plea Bargain From A Domestic Violence Charge to A Non-Domestic Violence Charge Still Carries A Federal Gun Ban
Domestic violence is never an easy subject to talk about or, in my line of work, to defend. To be honest, there really is no run of the mill domestic violence case. Some domestic violence cases have no defense and I just work out the best possible deal for my client. For other domestic violence cases, after reading the police report and witness statements, I ask myself “how the hell did this person get charged with domestic violence?”
Or my favorite scenario, a responding police officer charges both individuals involved with the incident with domestic violence. Then when both accused individuals show up to their respective arraignments, the prosecutor will approach the less aggressive of the two (no idea how that is accomplished), and ask if he/she would be willing to testify against the other in exchange for dismissing their domestic violence charge.
No matter the scenario or your feelings surrounding domestic violence, the bottom line is that a domestic violence conviction carries with it severe collateral consequences. For one, domestic violence is an enhanceable offense. Meaning the first domestic violence charge and conviction is a misdemeanor, but a second charge of domestic violence will land you in felony court. The collateral consequence that I will focus on in this blog article, however, is the lifetime gun ban a domestic violence conviction carries under the federal Gun Control Act of 1968.
Before diving into legal arguments, I feel a little background on the subject matter might be helpful. The Gun Control Act of 1968, 18 U.S.C. § 921, was enacted to prohibit the possession of firearms by any person convicted of a felony. Some 28 years later, Congress extended this prohibition to include persons convicted of a “misdemeanor crime of domestic violence,” under 18 U.S.C. § 922(g)(9). During the debate over § 922(g)(9), Senator Wellstone stated that “the only difference between a battered woman and a dead woman is the presence of a gun.” 142 Cong. Rec. 22986 (1996). Senator Lautenberg argued that the current laws were not keeping firearms out of the hands of domestic abusers because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies. Id. At 22985. The United States Supreme Court in U.S. v. Hayes, which will be discussed later, stated that “by extending the federal firearm prohibition to persons convicted of misdemeanor crimes of domestic violence, proponents of § 922(g)(9) sought to close this dangerous loophole.” 555 U.S. 415.
Sounds good to me! If you are convicted of misdemeanor domestic violence you can’t own a gun….right? I wish it was that simple, but it is not. Let’s take a look 18 U.S.C. § 922(g)(9) and 18 U.S.C. § 921(a)(33)(A).
18 U.S.C. § 922(g)(9) makes it “unlawful for any person…who has been convicted in any court of a misdemeanor crime of domestic violence…to possess in or affecting commerce, any firearm or ammunition.”
18 U.S.C. § 921 (a)(33)(A) states:
“The term ‘misdemeanor crime of violence’ means and offense that –
“(i) is a misdemeanor under Federal, State, or Tribal law; and
“(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly gun, 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 cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
Reading the above definition of “misdemeanor crime of violence” I am still on board that a domestic violence conviction means a lifetime ban for owning a firearm. Well what about criminal charges that involves a domestic relationship, but are not filed under a domestic violence statute? For example, how about simple assault? As you can imagine, federal courts began to issue decisions of their interpretation of “misdemeanor crime of violence” and these decisions had conflicting views. Not wanting the lower courts to have all of the fun determining gun rights, the United States Supreme Court decided to step in with U.S. v. Hayes.
A West Virginia man, by the name of Randy Edward Hayes, received a knock on his door one evening by the local police for a 911 call reporting domestic violence. Hayes, being the proud man he is, allowed the officers to search his home. The officers discovered a rifle and various other firearms. A West Virginia man with firearms….shocking. Unfortunately for Hayes, he had a 1994 conviction for battery in violation of West Virginia law. The victim of the battery was Hayes’ then-wife; a person who shared a child in common with Hayes and who was cohabitating with him as a spouse. In 2005, Hayes was indicted by a federal grand jury for being in violation of § 922(g)(9). The indictment identified Hayes’ predicate misdemeanor crime of violence his 1994 battery conviction.
Raising the bull**** flag, Hayes had a problem with the federal government telling him that not only can he not have his guns, but he is now facing a federal charge that carries a possible 10 year bit in federal prison. West Virginia would not forgive a man who is not willing to stand up against the federal government, so Hayes took his case up through the courts and eventually had his say with the U.S. Supremes.
Hayes moved to dismiss his indictment under § 922(g)(9), arguing that it only applies to persons previously convicted of an offense that has an element of a domestic relationship between the aggressor and victim. The statute in question, Hayes argued, was a generic battery proscription and not a law designating a domestic relationship between an offender and a victim as an element of the offense.
Justice Ginsburg, writing for the majority, was not picking up what Hayes was putting down. I imagine Justice Ginsburg thoughts were something like this, “Mr. Hayes, what you’ve just said is one of the most insanely idiotic things I have ever heard. At no point in your rambling, incoherent response were you even close to anything that could be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, may God have mercy on your soul.” Rumor has it that Justice Ginsberg is a Billy Madison fan.
The U.S. Supremes held that “the domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.” After conducting some fancy statutory interpretation the U.S. Supremes came up with a somewhat two part test to see if an offense falls under a “misdemeanor crime of domestic violence.” This test is below:
1) The misdemeanor offense has, as an element, the use or attempted use of physical force, or the threatened use of a deadly gun;
2) Is committed by a person who has a specified domestic relationship with the victim
The misdemeanor offense has the element of domestic violence.
The U.S. Supremes went on to say, “to obtain a conviction in a § 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant’s current or former spouse or was related to the defendant in another specified way. But the relationship, while it must be established, need not be denominated an element of the predicate offense.”
The Court then went on to note that they “find it highly improbably that Congress meant to extend § 922(g)(9)’s firearm ban only to the relatively few domestic abusers prosecuted under laws rendering a domestic relationship an element of the offense.”
With all of that said, federal courts have used Hayes to find that a charge of domestic violence amended to disorderly conduct, assault or any other criminal charge produces a lifetime gun ban, under § 922(g)(9), for a defendant.
So if an amended charge of domestic violence to a non-domestic violence charge is no bueno, how can a defendant avoid a lifetime gun ban? The defendant will either have to receive a not guilty verdict, have the domestic violence charge dismissed, or have the domestic violence charge dismissed and be re-charged for a new offense.
For example, the defendant has his domestic violence charge dismissed and is re-charged under Ohio Revised Code 2917.11, Disorderly Conduct. Now even before accepting this plea bargain it is very important that the defendant has the prosecutor specify what section of the R.C. 2917.11 he is pleading guilty to in court.
R.C. 2917.11 (A)(1) states that “No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: Engaging in fighting, in threatening harm to persons or property, or in a violent or turbulent behavior.”
I believe that it can be easily argued that R.C. 2917.11 can bring about a lifetime gun ban because there is an element of the use or attempted use of physical harm (fighting) and there defendant had a specified domestic relationship with the victim (remember this new charge is stemming from the original domestic violence charge). So R.C. 2917.11 (A)(1) does not work.
R.C. 2917.11 (A)(2) might work. That subsection states, “Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person.”
Even so, I still think that having the domestic violence charge dismissed and pleading to a new charge under R.C. 2917.11 (A)(2), might not protect a person from a lifetime gun ban. The U.S. Attorney’s office could find some way to link the dismissed domestic violence charge back to the new disorderly conduct.
I personally believe that the only thing that will save a person from a lifetime gun ban under § 922(g)(2) is to receive a not guilty verdict or an outright dismissal of the domestic violence charge.
Avoid Domestic Violence Charge and a Lifetime Gun Ban
As a side note, your loved ones are just that…loved ones! There is no need to raise your hand and strike your wife, husband, boyfriend, girlfriend, or child! We, as humans, have the capability to talk and to talk in a non-abusive manner. I get that life can become difficult, relationships can become heated, and that home life is not the greatest sometimes, but domestic violence is never the answer. There is nothing wrong with walking away from the situation in order to cool off. There are plenty of agencies that provide counseling to help get through those difficult times. Use those agencies to avoid a domestic violence charge!
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Thomas G. Kopacz
Thomas Kopacz is an associate attorney with Dayton, Ohio, lawfirm, Holzfaster, Cecil, McKnight & Mues and the managing editor of the Ohio Criminal Defense Law Blog. He is also a member of the Association of Ohio Criminal Defense Lawyers.