General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 6
September 2000



By Richard A. Ginkowski

Your client is arrested for domestic violence battery and disorderly conduct. A deal is cut with the prosecutor to drop the domestic violence battery charge if the defendant pleads guilty to the disorderly conduct charge, pays a fine, and attends batterers’ counseling. You think you got a great deal for your client, and he’s happy to have stayed out of jail. But did you tell him that he can no longer lawfully possess a firearm or ammunition—and if he does, he could be sentenced to up to 10 years in a federal prison?

This scenario is played out every day across the country. Attorneys who may not have seen the inside of a federal courtroom since they were admitted to the bar must understand the potential collateral consequences of even a simple misdemeanor disorderly conduct conviction in order to represent their clients properly.

The Gun Control Act of 1968 was amended by Congress in 1996 to prohibit anyone convicted of a "misdemeanor crime of domestic violence" from possessing a firearm or ammunition. A person convicted of knowingly violating this law could be fined up to $250,000 and/or imprisoned for not more than 10 years. Although the law became effective on September 30, 1996, the prohibition applies regardless of the date of conviction. Exceptions are few.

To determine whether an offense falls under the Gun Control Act’s definition of a "misdemeanor crime of domestic violence," the attorney must know the substance and potential penalty of the alleged offense as well as the facts and circumstances of the case. First, is the alleged offense a misdemeanor under federal or state law? The primary source of this information is the applicable code. Second, is the misdemeanor a "crime of domestic violence"? In order to be considered a "misdemeanor crime of domestic violence" under the Gun Control Act, the misdemeanor must include as an element "the use or attempted use of physical force, or the threatened use of a deadly weapon." Further, the crime must have been committed by "a current or former spouse, parent, or guardian of the victim; by a person with whom the victim shares a child in common; by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian; or by a person similarly situated to a spouse, parent, or guardian of the victim." There is no exception for members of the military or law enforcement officers. In fact, in Gillespie v. City of Indianapolis, the termination of a veteran Indiana-polis police officer, fired after a 1995 domestic violence battery charge because he could no longer legally possess a firearm, was recently upheld. The Gillespie court also rejected several constitutional challenges to the new law, as did an earlier Seventh Circuit decision, United States v. Lewitzke, in which the defendant received a 15-month federal prison term for unlawful possession of six firearms and some 3,000 rounds of ammunition—nearly 10 years after his conviction for a domestic violence battery. The U.S. Supreme Court has yet to consider a case under the new law.

The few exceptions to the firearms possession prohibition include convicted defendants who were not represented by an attorney, did not knowingly and intelligently waive the right to counsel, or did not knowingly and intelligently waive the right to a jury trial in jurisdictions where the defendant was so entitled by law. Also exempt are persons who were pardoned or whose convictions were set aside or expunged.

Armed with this knowledge, a creative defense attorney can, in appropriate cases, ensure that his or her client escapes these far-reaching prohibitions. How? First, in order for the prohibitions to become effective, the defendant must have been convicted of a "misdemeanor crime of domestic violence" as defined in 18 U.S.C. § 921(a)(33). If the defendant is not convicted of a predicate offense, the prohibitions do not apply. In many jurisdictions, diversion programs exist in which charges can be "held open" or "deferred" for a period while the accused undergoes counseling and demonstrates that he or she can lead a nonviolent, crime-free life. If the defendant successfully completes the conditions, the charge or charges will be dismissed or amended. If this disposition does not count as a conviction under the applicable law, then it does not operate as a bar to firearms possession (assuming, of course, that the defendant is not prohibited from firearms possession under other statutes, i.e., unlawful possession of a firearm by a convicted felon or a person subject to a domestic violence restraining order).

If the defendant is to be convicted of a crime, a creative defense attorney might be able to persuade the prosecutor to charge or amend a charge to a crime not contemplated in the Gun Control Act’s definition of "misdemeanor crime of domestic violence." Nonetheless, before doing so, a responsible prosecutor needs some assurance that this will not compromise public safety. Successful completion of appropriate counseling and treatment programs could go a long way toward easing the prosecutor’s legitimate fears that the reduction may backfire if the defendant reoffends. Although there is never an ironclad guarantee, defense attorneys certainly don’t want to buy a pig in a poke.

Also, defense attorneys need to be careful when the offense is either charged out as or amended to a crime such as disorderly conduct. Whether a defendant convicted of this offense is subject to the domestic violence prohibitions depends whether the elements of the crime, as charged, involve the use or attempted use of force or the threatened use of a dangerous weapon. Not every disorderly conduct case involves the use of violence, but merely applying the "disorderly conduct" label to criminal misconduct does not dodge the bullet. In order to avoid the prohibitions, the language of the pleadings describing the disorderly conduct must not refer to violent criminal behavior.

Particularly challenging is the retroactive application of the domestic violence-related prohibitions. It is not difficult to imagine how a police officer with 20 successful years on the force would feel if his 1974 disorderly conviction for a fight with a parent suddenly meant he would lose his job because he could no longer carry his duty weapon. Obviously, getting a conviction that old overturned on appeal would in all likelihood be next to impossible. On the other hand, situations like this could be construed as the reason why pardons exist. A person with a strong history of being a law-abiding, contributing member of society with a legitimate need for a pardon probably stands a fair chance of securing a governor’s favorable attention, especially if there is support from the employer or within the community. A competent defense attorney should have a thorough working knowledge of his or her state’s pardon process.

Richard A. Ginkowski is a state prosecutor in Kenosha, Wisconsin, and co-chair of the editorial board of Criminal Justice magazine.

This article is an abridged and edited version of one that originally appeared on page 59 of Criminal Justice, Winter 2000 (14:4).

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