SAR 20#2

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• 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. <strong>SAR</strong> Vol. 20, No. 2 18 MARCH 2016
19 <strong>SAR</strong> Vol. 20, No. 2 LEGALLY ARMED
Page 1: NEW sa ARMING THE NEW! - Guns of th
Page 6 and 7: SAR STAFF PUBLISHER Chipotle Publis
Page 8 and 9: NEW PRODUCTS by Chris A. Choat SAR
Page 10 and 11: ROGERS HOLSTER OFFERS NEW QD MOUNT
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SAR 20#2

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