Sunday, December 6, 2009

Does A Misdemeanor Domestic Violence Conviction Justify A Gun Ban?

A few days ago, I informed a prospective CCW Class student that he was ineligible for a state of Michigan Concealed Pistol License (CPL). He was surprised at my disclosure because the issue at hand was a misdemeanor domestic violence (DV) conviction on his record.

It didn't make sense to him that a misdemeanor offense would have such a drastic consequence on his future ability to own a firearm. In response, I told him about the Lautenberg Amendment to the 1968 Gun Control Act and urged him to research it. Apparently, there are a lot of uninformed or unscrupulous firearms trainers neglecting to mention this provision of federal law to their prospective students.

The Lautenberg Amendment
Effective September 30, 1996, the federal Gun Control Act of 1968 (GCA) was amended to make it a federal offense for a person with a misdemeanor domestic violence (DV) conviction to possess, ship, transport, or receive either a firearm or ammunition for a firearm. Furthermore, it is also a federal offense to knowingly provide access to a firearm or ammunition to a person with a misdemeanor DV conviction.

The Lautenberg Amendment in some circles is viewed as controversial. For example, in many cases persons who were convicted of a misdemeanor DV charge prior to the law's enactment were not "grandfathered in" the law. Thus, some police officers and active duty soldiers were forced to resign their current positions because of an old DV conviction, which at the time of disposition did not have dire consequences with respect to firearms possession. Such persons have come to be known as having been "Lautenberged."

Perhaps, the most unfair aspect of the provisions of the Lautenberg Amendment is that people who plead guilty to a misdemeanor DV charge are not being made fully aware of the consequences - a potential lifetime ban on firearms possession and federal prosecution. A person who violates the provisions of the Lautenberg Amendment faces a hefty maximum fine of $250,000 and a term of imprisonment not to exceed 10 years.

Are All Domestic Violence Convictions Equal?
First and foremost, I want to state that I do not condone domestic violence in any form. In my personal opinion, it is a scourge in our society that should be eradicated. In fact, during my CCW Class when we cover "Defense of Third Persons," we inform and admonish students to be careful if they choose to intervene in a domestic disturbance because the rescued "victim" might see their actions unfavorably.

It is not uncommon for victims of DV to not want any serious repercussions to happen to their assailant, regardless of the injuries they have suffered. Many times, these battered victims don't want to see their violent loved ones go to jail and will refuse to cooperate with authorities. They would rather see a light penalty imposed: Anger Management classes, counseling, or a small fine.

Thusly, a person with a CPL who is carrying a firearm should think "hard and long" before getting involved in a domestic issue because if a violent confrontation occurs, the victim's feelings about the rescuer may not play favorably when recounted for attending police officers.

Persons who feel the need to physically abuse their loved ones, in my opinion, are sick and are in need of an intervention. No one has the right to abuse and to inflict physical suffering upon another regardless of whether it is a domestic situation or not. It is unacceptable.

In contrast, many people are pleading to a DV charge to quickly get past an unfortunate incident that does not rise up to the level typically thought of a domestic violence offense. For example, the prospective student I wrote about earlier told me the back story on his conviction.

He told me that on one eventful night, he and his wife got into a heated argument about household finances. By his own admission, he related that their argument was the worse they had ever experienced, however, at no time did he put his hands on his wife. His wife, whether she actually felt threatened or just wanted to be vindictive, called the police. When the police arrived, the husband was arrested - standard protocol in many jurisdictions.

Sometime thereafter, the husband was released but was contacted by the attending Prosecutors. They offered him an opportunity to plead guilty to "just a misdemeanor" charge of domestic violence and to take one Anger Management class. They told him that this solution would lead to a speedy resolution and would not involve the high expense of an attorney. Accordingly, he jumped at the opportunity to "get on" with his life, without being told of the consequences of the Lautenberg Amendment of the GCA.

Thus, this man is no longer able to legally own or possess a firearm because he and his spouse had a heated argument one night. Fortunately, in this case, it appears that he may have grounds for an expungement in a couple of years. However, in many other circumstances such as this, a "set-aside" is not an option; their misdemeanor DV conviction triggers a life-time ban on firearms possession.

Domestic Violence Is Not Just About Wife-Beaters
Often times when the average person hears the phrase "domestic violence" images rapidly form in his mind about a man in a white tank-top battering his spouse. However, a DV charge can arise in a parenting situation. For example, in 1997 a Novi, Michigan mother was convicted of DV for slapping her 14 year-old daughter.

In this case, the "victim" testified that her mother should not have been prosecuted because the slap was deserved after a couple of years of the daughter engaging in unruly behavior which included the following: stealing, under-age drinking, smoking, sneaking out of the house, and vulgar obscenities. The incident that served as the "last straw" was the teen leaving the home without permission to spend an entire weekend with her boyfriend.

In the end, the mother was convicted of DV and was given probation. Although the immediate penalty imposed was not severe, the Lautenberg Amendment guarantees that the mother will not be able to own and possess a firearm for her life-time.

Bottom Line:
Domestic violence in it purest form is despicable crime. However, there are circumstances and mitigating factors that in my opinion suggest that all DV convictions are not equal.

For example, over zealous prosecutors interjecting themselves needlessly into a parenting issue that many would agree required action from the parent and persons copping a plea of DV to make a one-time heated argument disappear are two instances where a life-time gun ban are unacceptable.

The general public needs to be aware of the consequences of a domestic violence conviction, for the biggest penalty - a gun ban - is not disclosed to persons found guilty of the offense. Certainly, abusers need to be held to account for their transgressions, however, everyone with a DV conviction should not be forever barred from owning a firearm.

What do you think?

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