SAR 20#2

• the order includes a finding that
the person represents a credible
threat to the physical safety of
the intimate partner or child OR
explicitly prohibits the use, attempted
use, or threatened use of
physical force against an intimate
partner or child.
The disability is problematic because
many (if not most) restraining orders
meeting the requirements of the statute
are never reported to NICS and are not
used by the FBI as a basis for denying
a firearms sale. A 1996 amendment to
the Violence Against Women Act requires
states to certify that its judges are
required to provide notification to all domestic
violence offenders of the requirements
of section 922(g)(8) (and 922(g)
(9), discussed below). This requirement
has allowed more Federal prosecutions
of violators for “knowing” violations
of the GCA, but it has not resulted
in more information being provided
to the FBI/NICS.
Section 922(g)(8) was challenged
in Federal court repeatedly after enactment
on the basis of the Second Amendment,
due process, equal protection,
and lack of notice arguments. Courts
have consistently upheld the constitutionality
of the statute, finding that preventing
acts of domestic violence involving
firearms is a reasonable restriction
on firearms possession.
E. Persons Convicted of a Misdemeanor
Crime of Domestic Violence
– 18 U.S.C. § 922(g)(9)
Section 922(g)(9) of the GCA is often
called “the Lautenberg Amendment,”
because Senator Lautenberg of New
Jersey was the sponsor of the legislation.
The amendment was enacted in
1996 as part of the Omnibus Consolidated
Appropriations Act of 1997. This provision
makes it unlawful for any person
convicted of a “misdemeanor crime of
domestic violence” (MCDV) to possess
firearms or ammunition. The term “misdemeanor
crime of domestic violence”
is defined in section 921(a)(33) as an
offense that—
• is a misdemeanor under Federal,
State, or Tribal law; and
• 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, someone
who has cohabited with the victim,
or another individual specified in
the statute.
The statutory definition also provides
that, even if the requirements above are
established, a person is not considered
convicted of a MCDV if the person was
not represented by counsel and, if the
person was entitled to a jury trial, he or
she was tried by jury or waived the right
to a jury trial. In addition, the statute has
language similar to that for felony convictions
providing that post-conviction
events may invalidate the MCDV conviction.
If the MCDV is expunged, set
aside, pardoned, or the person has had
civil rights restored, the MCDV will not
be disabling under section 922(g)(9).
ATF’s regulations implementing the
statute interpret the term “misdemeanor”
to include, in States which do not
classify offenses as misdemeanors,
offenses punishable by imprisonment
for a term of one year or less and includes
offenses punishable by only
a fine. Thus, even if a State does not
label a particular offense as a misdemeanor,
it will result in Federal firearms
disabilities if the offense meets the
statutory definition.
Many state misdemeanor statutes for
simple assault and other misdemeanors
that may qualify as MCDVs contain
multiple subparts or clauses within the
subparts only some of which contain the
element of physical force. For example,
assault statutes frequently provide that
a person commits assault either by using
physical force against the person
OR by making verbal threats. Only the
first qualifies as a MCDV. There is a
great deal of case law on the evidence
the government may use to determine
whether a misdemeanor conviction
qualifies as a MCDV. This is a complicated
area of the law, and if you are
unsure whether a particular offense
is disabling, contact your local ATF
office for guidance.
An interesting wrinkle to the Lautenberg
Amendment is that it includes
language that makes this disability applicable
to law enforcement officers and
the military. These categories of persons
are generally exempted from most of
the restrictions of the Federal firearms
laws because of the general government
exemption in 18 U.S.C. § 925(a)
(1). This results in police officers and
other law enforcement officers being
able to acquire firearms from FFLs in interstate
commerce free of the interstate
controls, Form 4473 requirements, and
NICS checks required of other firearms
purchasers. It also means that police
officers who happen to be prohibited
persons (e.g., felons, dishonorable discharges,
etc.) may lawfully possess
firearms and ammunition for purposes
of carrying out their official duties. However,
the Lautenberg Amendment added
language to the GCA to carve out misdemeanor
crimes of domestic violence
from the general exemption. Accordingly,
police officers who have been convicted
of such misdemeanors may not
lawfully possess firearms or ammunition
for any purpose. This provision of the
GCA was challenged by police organizations
and individual police officers
immediately after enactment and was
upheld. See Fraternal Order of Police v.
United States, 173 F.3d 898 (D.C. Cir.
1999). The statute has also survived a
variety of constitutional challenges in
the Federal courts of appeal under the
Sixth Amendment, Commerce Clause,
Second Amendment, Due Process
Clause, and ex post facto clause.
As with domestic violence restraining
orders, not all misdemeanor crimes
of domestic violence are reported to
NICS. Although states routinely report
felony convictions to the FBI, few
have the resources to report misdemeanor
convictions. Accordingly, it is
unlikely that all persons subject to this
disability are prevented from acquiring
firearms from FFLs.
II. Conclusion
The Federal firearms disabilities imposed
by the GCA are numerous and
complex. The overview provided in this
article cannot adequately cover all the
legal issues raised by the lengthy statutory
and regulatory definition. FFLs
and others who have questions about a
particular situation, person, or disability
should contact qualified counsel or ATF
for guidance.
About the authors –
Johanna Reeves is the founding
partner of the law firm Reeves & Dola,
LLP in Washington, DC (www.reevesdola.com).
For more than ten years
she has dedicated her practice to advising
and representing U.S. companies
on compliance matters arising
under the federal firearms laws and
U.S. export controls.
Teresa Ficaretta is one of the country’s
foremost experts on ATF regulations
under the Gun Control Act, the
National Firearms Act, the Arms Export
Control Act and Federal explosives
laws. Before joining Reeves & Dola in
2013, Teresa served as legal counsel to
ATF for 26 years, followed by two years
as Deputy Assistant Director in Enforcement
Programs and Services. They can
be reached at 202-683-4200.
SAR Vol. 20, No. 2 18 MARCH 2016