In the past three articles we have looked at how easily high profile, everyday people, and our fellow officers have gotten themselves into a domestic violence situation. Of the groups, our profession has the most to lose in a domestic violence situation.
I have been very fortunate to have been married to my wonderful wife for nearly 36 years. I went to work on a Monday in 1974 and we were married on Saturday. This job is all she knows. She has had to put up a lot from me. We have had good times and bad as any couple.
Now let's say I come home from a hard day at work to find my wife wired for an argument. It develops over an underlying problem that has been there for years and she begins to hit the buttons. I lose control and knock a few holes in the wall, pull out the phone, slap her around a few times, and then put a gun to my head then hers. She calls 911 and a local sheriff's deputy responds to the call. Somebody is going to jail and it ain't her right?
After my arrest an internal investigation will kick in by the department. I lose my equipment. The sheriff's office will seize my guns. I am suspended pending the completion of the IA and a fitness for duty examination. Now I have painted myself into a corner.
I am eventually charged with a misdemeanor domestic violence charge. I could be terminated at that time or placed on administrative leave without pay. I hire an attorney and we plea it down to a plain simple assault not called domestic violence.
With this plea can I return to work as a cop and carry a firearm?
Would the Control Act of 1968 apply in this case?
In simple terms the Gun Control Act of 1968 section 933(g) delineated eight classes of individuals prohibited from possessing firearms or, ammunition. Those individuals were:
- Convicted of a crime punishable by a term of more than one year
- Fugitive from justice
- Unlawful users or addicts of any controlled substance
- Mentally defective or having been committed to a mental institution
- Illegally or unlawfully in the United States
- Discharged dishonorably from the Armed Services
- Renounced their citizenship from the United States
- Subject to a pertinent court order
The Gun Control Act of 1968, as enacted and amended, contained a public interest exception for all but one of the aforementioned disqualification categories. Specifically, except for 18 U.S.C. Section 922(g)(9), 18 U.S.C. Section 925(a)(1) exempts from prohibition "any firearm or, ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof." The practical effect of this exception is to allow for the possession of firearms in an official capacity, irrespective of criminal record. (CRS Report for Congress Order Code RL31143 Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment October 1, 2001).
In September 1996, Congress enacted the Lautenberg amendment to the Gun Control Act of 1968 as a part of the Omnibus Consolidated Appropriations Act of 1997. The Amendment made a crime of domestic violence, including misdemeanors, the ninth class of individual unable to possess a firearm. Furthermore, it abolished the public interest exception to the Gun Control Act of 1968. One further step was that it made the amendment retroactive to the Gun Control Act of 1968. I recall that year officers who had been employed with police departments being terminated as a result of the amendment. Until a couple of years ago Lautenberg amendment was not applied in a case as I have described as it was not designated as a crime of domestic violence. So, under the Gun Control Act of 1968 an officer could return to duty with the conviction as it was misdemeanor not a domestic violence conviction.
In 2004 officers from Marion County, West Virginia, responded to a domestic violence complaint at the home of Randy Edward Hayes. Consent to search yielded a rifle and that he had been in possession of several others in the past. In 2005 Hayes was indicted by a federal grand jury for possessing firearms after being convicted of a misdemeanor crime of domestic violence. The alleged offense having occurred in 1994 against his previous wife with whom he was living with. The charge was of a general battery - not specifying that it was a domestic violence charge.
Hayes moved for a dismissal on the indictment based upon his belief that the generic charge was not termed as a domestic charge. The US district court ruled against Hayes. Hayes entered a conditional plea. All the court had to prove was that the victim was related to the suspect be it spouse or other family member. The definition of misdemeanor crime of domestic violence
Contained in 921(a) (33) (A), is at issued in this case. Does that term cover a misdemeanor battery whenever the battered victim was in fact the offenders spouse (or other relation specified in 921(a) (33) (A)? Or, to trigger the possession ban, must the predicate misdemeanor identify as an element of the crime with a domestic relationship between aggressor and victim? We hold that the domestic relationship, although it must be established beyond a reasonable doubt in a 933(g)(9) firearms prosecution, need not be a defining element of the predicate offense.( UNITED STATES, Petitioner v. RANDY EDWARD HAYES, No. 07-608, SUPREME COURT OF THE UNITED STATES, 129 S. Ct. 1079; 172 L. Ed. 2d 816; 2009 U.S. LEXIS 1634; 21 Fla. L. Weekly Fed. S 643)
Based upon the Hayes case I would be subject to the seizure of all firearms in my possession. I could not serve as an armed law enforcement officer. The Hayes decision has placed new parameters on the Gun Control Act of 1968 and defined the intent of the Lautenburg amendment. It also closed a loop hole in the Gun Control Act of 1968.
Good practice for background investigators would be to delve fully into any misdemeanor that could possibly be a domestic violence related offense. Furthermore, any arrest of an officer for a domestic violence arrest should be investigated and the state certification agency notified to determine eligibility.
