Commentary: Ever heard of the Lautenberg Amendment? You're not

Matthew A. Radefeld

Many criminal defense attorneys have never heard of the Lautenberg Amendment. Some know of its ramifications, just not its name. Because there are so many avid hunters, gun collectors and military personnel in Missouri, it is something every criminal defense attorney should keep in mind when representing a client accused of a domestic violence offense.

The Lautenberg Amendment to the Gun Control Act of 1968

The Lautenberg Amendment to the Gun Control Act of 1968 became effective Sept. 30, 1996. The amendment makes it a federal offense for anyone convicted of a misdemeanor crime of domestic violence to ship, transport, possess or receive firearms or ammunition. Also, it prohibits the knowing sale or disposition of any firearm or ammunition to a person with such a conviction.

There is no exception for military personnel or law enforcement officers.

The Gun Control Act of 1968 (GCA) is codified in 18 U.S.C. Sect. 922. Section 922(g) of the GCA delineates nine classes of individuals who are prohibited from shipping, transporting, possessing or receiving firearms or ammunition in interstate commerce.

These targeted individuals include persons convicted of a crime punishable by a term of imprisonment exceeding one year; fugitives from justice; individuals who are unlawful users or addicts of any controlled substance; persons legally determined to be mental defective, or who have been committed to a mental institution; aliens illegally or unlawfully in the United States, as well as those who have been admitted pursuant to a nonimmigrant visa; individuals who have been discharged dishonorably from the Armed Forces; persons who have renounced United States citizenship; individuals subject to a pertinent court order (i.e. a restraining order); and finally, persons who have been convicted of a misdemeanor domestic violence offense.

It is this ninth disqualification category that is commonly referred to as the Lautenberg Amendment.

Violators of the Lautenberg Amendment face a maximum term of imprisonment of 10 years and/or a fine up to $250,000.

Elements of the Offense

Pursuant to the amendment, a misdemeanor conviction for domestic violence triggers the firearm possession prohibition only if the underlying offense has as its factual elements the use or attempted use of physical force, or the threatened use of a deadly weapon committed by a defendant against a current or former spouse, child or another similarly situated person.

Similarly situated individuals may include stepchildren or cohabiting significant others. Although crimes may be charged as domestic violence in some jurisdictions the crime will be charged as assault, battery (for those that practice in Illinois) or similar offenses and would still fall under the amendment.

Exemptions?

Basically there are none.

Under the Lautenberg Amendment, if a law enforcement officer or a member of the military is convicted of a misdemeanor crime of domestic violence they cannot possess a firearm ever again. Such a conviction may result in loss of employment or permanent reassignment to a position that does not involve carrying or possessing a firearm.

Accordingly, a police officer convicted of a qualifying misdemeanor crime of domestic violence at any time in the past may likely be terminated from employment, since they may not possess a firearm under any circumstances.

If you ever represent a servicemember, you must inform your client that pleading guilty and being convicted of a misdemeanor crime of domestic violence could have serious consequences to their military career.

Each branch of the Armed Forces have been handling this issue in different ways, but the consequences vary from reassignment, loss of military occupational specialty (MOS) and in some cases possible discharge with a less than favorable characterization.

Another group of people that this amendment has significantly affected is the blue collar worker, such as the forklift operators, truck drivers and various other personnel who manufacture, transport, receive or somehow come in contact with firearms and ammunition.

If these persons have a qualifying conviction, they will not be allowed to maintain their employment if they are considered to be in possession of firearms and/or ammunition. Generally, if an employee has the ability to put their hands on firearms or ammunition or otherwise has the ability to control firearms or ammunition, they possess them.

Rationale Behind the Amendment

According to Senator Frank Lautenberg (R-NJ), the amendment's namesake, the purpose of the legislation was to close loopholes in state law that allowed persons convicted of domestic violence offense to have firearms. (See, 142 Cong. Rec S10377-01 (daily ed. Sept. 12, 1996). Lautenberg's rationale behind this law is to prevent firearms from falling into the hands of those who are more likely to use them to commit domestic violence.

Opponents of the amendment, such as the National Rifle Association, argue that this law infringes on a person's right to bear arms because the amendment is so broad and over reaching.

One example that opponents of the amendment bring up often is the case of Kathi Herren of Novi, Mich. who slapped her wayward 14-year old daughter and was convicted of misdemeanor assault and battery. Although she never went to jail and was sentenced to only pay a small fine, she has forever forfeited her Second Amendment rights for a mere swat given as discipline.

Statutory Defenses

18 U.S.C. Sect. 921(a)(33) establishes two statutory defenses to the application of the Lautenberg Amendment, extending procedural protections that are generally only available to individuals charged with felonies to those charged with misdemeanor crimes of domestic violence. Specifically, Sect. 921(a)(33)(B) provides that the underlying misdemeanor offense may not be used as a predicate to a violation of Sect. 922(g)(9) unless the individual in question was represented by counsel or they knowingly and intelligently waived their right to counsel, and, that in the instant case, the individual was entitled to a trial by jury, the case was indeed tried by jury or they knowingly and intelligently waived this right.

Constitutionality

Since its enactment, there have been several challenges to the amendment's constitutionality. Opponents of the amendment have unsuccessfully argued that Sect. 922(g)(9) violates the Second and Tenth Amendments and operates as a bill of attainder.

Others have made arguments relating to the amendment's violation of the Commerce Clause, the Equal Protection Clause and the Ex Post Facto Clause. Only the Equal Protection Clause argument has achieved even marginal success.

Equal Protection Argument

In the case of Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998), the court held that it was an Equal Protection violation to treat those with misdemeanor convictions more harshly than those with felony convictions. However, one year later the same three-judge panel reheard the case because of procedural irregularities in the first decision. This time the court reversed itself because it felt that Congress was permissibly addressing a serious problem one step at a time.

In F.O.P v. United States, 173 F.3d 898 (D.C. Cir. 1999) (FOP II), the court ruled that the Lautenberg Amendment was fixing a loophole in state law and it satisfied the rational basis test of the Equal Protection Clause.

Ex Post Facto Argument

The reality of the amendment is that if anyone has ever been convicted of a misdemeanor domestic violence offense, they can never possess, receive, transport, etc. a firearm or ammunition, regardless of how long ago the person was convicted. Much like arguments surrounding the Sex Offender Registration Laws that exist today, opponents of the Lautenberg Amendment propose that its provisions make it an ex post facto law and therefore unconstitutional.

An ex post facto law is any law that makes criminal an act that was not criminal when done, or which inflicts a greater punishment than the law annexed to the crime when committed. Critics argue that the Lautenberg Amendment adds a punishment that did not exist at the time of the crime. The argument is that innocent men might take into consideration the slight punishment they were then facing and plead guilty simply to avoid a trial. Later, they would be confronted with an additional punishment of not being able to ever own a gun.

Sen. Lautenberg defends his amendment and has argued that the provision is not being applied in violation of the ex post facto clause of the Constitution. The law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession of firearms on or after the effective date. The amendment is a remedial measure to keep firearms out of the hands of people who might use them to commit domestic violence offenses. He states that the amendment is not retroactive merely because the person's conviction occurred prior to the effective date.

The Supreme Court has not resolved this issue, but they have previously validated this reasoning, by upholding seemingly criminal, yet actually civil measures that protect the public.

For example, in Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court held that civil confinement of a predatory sex offender following the completion of his criminal prison sentence does not violate either double jeopardy or ex post facto notions.

Conclusion

Although the Lautenberg Amendment has been around for some time, it is a severe collateral consequence that many criminal defense attorneys fail to advise their clients of when they are facing a domestic violence conviction. Neither the judge nor the prosecutor will advise your client as to the ramifications of a conviction for domestic violence, that is something you must do.

More and more criminal cases are being filed in the federal courts every year. It would not be a surprise to see more federal prosecutions of violators of the Lautenberg Amendment. Therefore, in the best interests of your clients, be sure to tell those who have been convicted of or are facing a conviction of a misdemeanor domestic violence that they risk federal prosecution if they ever possess a firearm or ammunition.

This article was originally published in Missouri Lawyers Weekly, another Dolan Media publication.

Matthew A. Radefeld is a Senior Associate at the criminal defense firm of Frank & Juengel, Attorneys at Law in Clayton, MO. He is also a Captain in the U.S. Army Reserves JAG Corps where he handles military justice and legal assistance matters for soldiers.

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