Domestic Violence and Alleged Abusers

The United States military protects and defends the peace and safety of the United States, its commonwealths and territories and areas occupied by the U.S. Servicemembers are combat trained in order to fulfill the military's purpose and defend against aggressive acts as well as immediately mobilize in a national emergency. In order to fulfill their duties, servicemembers in all branches of the military have access to and possession of firearms and ammunition. Despite the need to access weaponry, servicemembers who have engaged in certain acts, such as perpetrating domestic violence against an intimate partner or being convicted of a felony, may be prohibited from possessing firearms or ammunition. Any such prohibition would have an impact on their military service. What the impact is depends upon the act as well as when it occurred (before enlistment or during the term of service). Read more to understand the Federal Gun Control Act of 1968 and how it may apply to a servicemember.

Implications of Domestic Violence on Firearms

The Federal Gun Control Act of 1968 (18 USCS §922 et seq) applies to military personnel as well as civilians. This federal law addresses many issues related to firearms, including automatic prohibitions against possessing a firearm and/or ammunition by certain individuals having been found to have committed specific acts. Domestic violence triggers two of these automatic prohibitions.

Definition of Firearm:

You must first know what a firearm is. For purposes of the Federal Gun Control Act, "firearm" is defined at 18 USCS § 921(a)(3).
A firearm is "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; the frame or receiver of any such weapon; any firearm muffler or firearm silencer; or any destructive device." Destructive device is defined at 18 USCS § 921(a)(4). A firearm under federal law does not include an antique firearm. It also does not include a BB or air compressed pellet gun. For specific definitions of antique firearm, firearm silencer, handgun, machinegun, rifle, semiautomatic rifle, short barreled rifle, short-barreled shotgun, and shotgun are also found at 18 USCS §921(a).

Ammunition is defined at 18 USCS § 921(a)(17) and is also covered by the automatic prohibitions. See 18 USCS § 922(d).

Automatic Prohibitions:

Title 18 USCS § 922(g) addresses the automatic prohibitions regarding firearm and ammunition possession for persons who fall under one of the enumerated categories. Some of the non-domestic violence related categories are listed here. A lifetime ban applies to persons who:

  • are under indictment for, or have been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year (see 18 USCS § 921(a)(20)). "Any court" means a domestic court and not a foreign court. See Small v. U.S., 544 U.S. 385. Case law is clear that the trigger is not the actual sentence imposed but rather the punishable term of incarceration of the charge against Defendant. Case law varies on determining if a "nolo contendere" plea is considered a conviction, but interpretations rely heavily on how state law classifies such a plea.
  • are a fugitive from justice, defined at 18 USCS § 921(a)(15);
  • have been adjudicated as "a mental defective" or have been committed to any mental institution. "Mental defective" is not defined under the federal statute, and courts have applied different interpretations of the term, including a finding of insanity by a criminal court or a finding of a lack of mental capacity to contract and manage one's affairs. Other courts have found a finding of "incompetent to stand trial" is not an adjudication of a "mental defective;" and
  • have been discharged from the Armed Forces under dishonorable conditions.

Domestic Violence related Prohibitions:

Title 18 USCS § 922(g)(8) specifically addresses the firearm/ammunition prohibition for those persons who have a restraining order issued against them if an intimate partner or child of an intimate partner is the Plaintiff. The duration of the prohibition is for the length of the court order only. The Court Order must include the following language for the federal prohibition to apply:

  • a finding that such person represents a credible threat to the physical safety of an intimate partner or child; or
  • by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury; or
  • restrains such person from harassing, stalking, or threatening an intimate partner or child of an intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.
    However, the defendant in the Court Order must have received actual notice of the action and must have had an opportunity to participate. If the defendant defaults after notice or waives a hearing, the prohibition still applies. Under the federal law, an ex parte temporary order with the explicit finding and/or language above would not trigger the automatic prohibition because the Defendant would not have received actual notice and the opportunity to participate in the hearing at the time the temporary order issued. It is important to note however, that state law may allow for a firearm prohibition as part of the ex parte phase of a protection order proceeding.

Under federal law, full faith and credit applies to restraining orders (whether ex parte, temporary or final) issued in one state or tribe. The Orders are enforceable as if they were orders of the court of another state or tribe. For enforcement purposes, registration of the court order in the second state or tribe is not required. See 18 USCS § 2265.

Pursuant to 18 USCS § 922(g)(9), a life time ban applies to those persons who have been convicted in any court of a misdemeanor crime of domestic violence, defined at 18 USCS § 921(a)(33). The Defendant must have had a right to counsel and if applicable, a right to a jury trial. Defendant's knowing waiver of counsel and/or trial is not a defense to the firearm prohibition. In 2009, the Supreme Court in U.S. v. Hayes, 555 U.S. 415, 129 S. Ct. 1079, 172 L.Ed. 2d. 816, held that the term "domestic violence" need not be named in the title of the crime, and the domestic relationship between the offender and victim need not be included in the element of the crime. However, the relationship of intimate partner or child must be proven beyond a reasonable doubt. Intimate partner is defined at 18 USCS § 921(a)(32) and means, with respect to a person, the spouse or former spouse of the person, or an individual who is a parent of a child of the person, or an individual who cohabitates or has cohabited with the person. The element of the crime however, must include the use or threat of use of physical force or a deadly weapon. Therefore, a misdemeanor conviction for violating a protection order does not trigger the prohibition under this section if the element of the crime does not involve the use or threat of use of physical force or deadly weapon.

See here for more information on how a conviction of a misdemeanor crime impacts a servicemember's service.

Possession:

The Gun Control Act of 1968 prohibits a person from possessing a firearm or ammunition. Possession includes both actual and constructive possession. Ownership of a firearm or ammunition is irrelevant. Although there is not a Supreme Court decision that directly addresses constructive possession under the Federal Gun Control Act, state court decisions have consistently found that having access to a gun (i.e., passenger in a car with a firearm, visiting a home with a firearm in plain view and unlocked, access to a firearm owned by a spouse, actual possession of key to gun cabinet, etc.) is sufficient for a conviction. In addition, courts have found that circumstantial evidence is sufficient for a conviction.

Exceptions:

There is an exception to the prohibition against possessing a firearm and/or ammunition, which is found at 18 USCS § 925(a). It is oftentimes referred to as the "official use" exception and applies to federal or state (including local municipal) employees who require a firearm to perform their official duties; in other words, military, law enforcement and correction officer personnel. However, the government employee may only possess his or her firearm and/or ammunition in the course of duty. This exception does not apply to non-official-work activities. Importantly, this exception also does not apply to those persons who are prohibited from possessing a firearm and/or ammunition because of a conviction for a misdemeanor crime of domestic violence. There is no exception that applies to that category of prohibited persons.

Furthermore, DOD policy has extended the prohibition to convictions for crimes of domestic violence tried by general or special court-martial, as well as civilian criminal felony convictions adjudged on or after November 2, 2002. The restrictions do not apply to the actions as a result of summary court-martial, nonjudicial punishment pursuant to Article 15, UCMJ, or deferred prosecutions or similar alternative dispositions in civilian courts.

Although the federal law allows this official use exception in cases involving a restraining order, a commanding officer can decide that the servicemember shall not possess a firearm. This is not grounds for discharge from the military. However, if the servicemember disobeys a commanding officer's order, he or she may be subject to discipline, such as an Article 15. Punishment under Article 15 is not a conviction. It can include punitive action such as a demotion in rank, loss of pay and extra work assignments. A written reprimand will be placed in the member's service record. Depending upon the nature of the servicemember's action, he or she may face discipline under the Uniform Code of Military Justice (UCMJ), which does involve a judicial process. There will be a military investigation, and the servicemember will be appointed a JAG attorney. Possible sanctions include a court martial resulting in incarceration, forfeiture of pay, or dismissal/discharge from the military.

In addition to the "official use" exception, the prohibited person may seek relief from the prohibition by making an application to the Attorney General. The Attorney General must find to his or her satisfaction that the circumstances regarding the prohibition, and the applicant's record and reputation, are such that:

  • the applicant will not be likely to act in a manner dangerous to public safety, and
  • the granting of the relief would not be contrary to the public interest.
    The applicant may appeal a denial by the Attorney General by filing for judicial review in federal district court. See 18 USCS § 925(c).

Application:

The law does not apply to:

  • Major military weapons systems or "crew served" military weapons, such as tanks, missiles and aircraft,
  • Individuals who have had the misdemeanor conviction expunged, set aside, or pardoned or an individual who has had his or her civil rights restored, unless the terms of expungement, pardon or restoration of civil rights expressly prohibits the individual from possessing firearms or ammunition.

Penalties:

The penalty for violating the Federal Gun Control Act of 1968 is found at 18 USCS § 924(a)(2). Punishments may include a fine, up to 10 years in prison, or both. A more severe penalty of no less than 15 years imprisonment and a fine is applied to a person subject to the prohibition who has three or more convictions for violent felonies or serious drug offenses. See 18 USCS § 924(e). In all cases, the sentencing court will most likely look to sentencing guidelines.

January 2012


Source URL: https://statesidelegal.org/domestic-violence-and-alleged-abusers