The Lautenberg Amendment Deputy, Military Law Branch Judge Advocate Division HQMC (703)614-4250

Domestic violence is incompatible with military service ALMAR 290/98 cancelled by MARADMIN 186/03 from 21 Apr 03 Discussion will cover the current law and how DoD implements the law

Overview The Gun Control Act of 1968 The 1994 Amendment Denied Felons ability to possess firearms Public Interest Exception Exempted state and federal employees Duty related possession only The 1994 Amendment -Protective orders – notice and court finding requirements The Gun Control Act of 1968 provided the basic framework for gun control in the United States. Among other things, the 1968 Gun Control Act made it illegal for convicted felons to possess firearms or ammunition. Until recently, this act exempted military and police personnel. This exception, commonly called the public interest exception, permitted a military, police, or government official to possess a gun for official use, even after a felony conviction. Then in 1994, Congress enacted the first domestic-violence specific amendment to the 1968 Gun Control Act (18 USC 922(d)(8)). The 1994 Amendment prohibited anyone subject to certain protective orders from owning or possessing a gun. In order to fall within this provision, the protective order must restrain harassment, stalking, or threatening of an “intimate partner.” Again, the public interest exception uniformly exempted military, police, and government officials. 1994 – applies ONLY to orders issued after notice to person, opportunity to participate and court finds: person represents credible treat to the physical safety of intimate partner or child; or by its terms specifically prohibits use of, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

Overview cont’d The Lautenberg Amendment - 1996 Amended the Gun Control Act of 1968 Makes it a felony for anyone convicted of a “misdemeanor crime of domestic violence” to ship, receive, or possess firearms or ammunition for anyone to provide firearms/ammunition to someone known to have a conviction for domestic violence Revoked the public interest exception to Gun Control Act for misdemeanor convictions of DV Revocation of public interest exception was not an oversight. Revoked public interest exception to 1994 amendment as well. Relevant laws: Title 18, U.S.Code, Crimes and Criminal Procedure 18 USC 922(g)(9) 18 USC 921(a)(33) 18 USC 922(d)(9) 18 USC 922(g)(1) ALMAR 290/98

Purpose of Amendment To get and keep firearms out of the hands of those individuals with domestic violence convictions. “All too often the difference between a battered woman and a dead woman is the presence of a gun.” – Sen. Frank Lautenberg This is a strict liability act – no waivers, no exceptions, Sen. Frank Lautenberg “All too often the difference between a battered woman and a dead woman is the presence of a gun. Congress enacted this legislation to protect women from DV by keeping firearms out of the hands of individuals who are prone to violence and to reduce the risk of fatal injury.

No Military Exception There is no military or law enforcement exception to the Lautenberg Amendment or Gun Control Act Not an oversight Retroactive application (no grandfather clause)

18 U.S.C. §922(d)(9) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person, knowing or having reasonable cause to believe that such person has been convicted in any court of a misdemeanor crime of domestic violence. APPLIES TO EVERYONE HERE! This applies to those who are not the perp of domestic violence. It applies to all of us and the majority of the population. APPLIES TO EVERYONE IN THIS ROOM Means if you give a firearm or ammunition to such individual you are subject to prosecution and possible felony. Why have this – to keep the weapons out of those who have been convicted of domestic violence! Significant deterrent for those considering “helping” or otherwise providing access to firearms.

18 U.S.C. §922(g)(9) It shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to ship, transport, or possess any firearm or ammunition; or to receive any firearm or ammunition This makes it a felony for those convicted of domestic violence to . . . convicted: guilty, nolo contendre (no contest) any court = state or federal or military special/general misdemeanor crime of domestic violence is . . . defined by statute and means . . . There is no list of “qualifying” offenses for Lautenberg convictions. One must look at the elements of the offense, the State or Federal law (to see if it is a conviction), and the relationship of the parties.

18 U.S.C. §921(a)(33) Misdemeanor crime of domestic violence means an offense that-- is a misdemeanor under Federal or State law; and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon against a “domestic victim” Misdemeanor crime of DV means an offense that has as its factual basis . . . that is 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. So what does this all mean for the layperson . . . nonlawyer . . .

What is a Misdemeanor? Defined by Federal or State Law UCMJ offenses are not classified as misdemeanor or felony Courts-martial are NOT classified as misdemeanor or felony Generally, defined by state or Federal law, however, felonies are typically defined as offense punishable by imprisonment in excess of 1 year. However, as you will learn DoD policy includes courts-martial under this amendment.

What is a “Conviction” ? Determined by State or Federal law “Nolo Contendere” pleas same effect as a plea of guilty for sentencing but may not be considered as an admission of guilt for any other purpose. Does NOT include deferred prosecutions or similar alternative dispositions. Does NOT include NJP or Summary Court-Martial Does NOT include CRC findings Why aren’t these included? Because as you will soon learn the statute defines what is a conviction, what rights must be afforded the accused to qualify as a conviction Latin phrase for “I will not contest it” – plea in a criminal case that has the same legal effect as pleading guilty. Primary difference is that a no contest plea may not be used in a civil action based upon the same acts -can cause Lautenberg Act to become effective. First time offender statutes; criminal courts only.

Due Process Threshold: Qualifying conviction requires person to be: Represented by counsel (or knowingly/intelligently waived), and If entitled to jury trial, convicted by jury or knowingly/intelligently waived DUE PROCESS THRESHOLDS: 18 USC 921(a)(33) A person shall not be considered to have been convicted of such an offense unless-- (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case … for which a person was entitled to a jury trial..., either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

Offender/Victim relationship Domestic violence occurs when the offender is: the current spouse of the victim the former spouse of the victim the parent of the victim the guardian of the victim shares a common child with the victim someone who is cohabitating as a spouse, parent, or guardian someone who used to cohabitate as a spouse, parent or guardian Someone similarly situated has a spouse, parent, or guardian of the victim

Bottom Line Cannot own, possess, or be issued weapons/ammunition Anyone who commits a misdemeanor crime: That involves “Domestic Violence” And is subsequently convicted of this crime Whether recently or in the past (no grandfather clause) Cannot own, possess, or be issued weapons/ammunition even in the line of duty! *Expunged or set aside convictions Means they essentially will lose their job and possibly their ability to remain in the Service. Expunged/set aside/civil rights restored: See local SJA!! “Conviction of a misdemeanor crime of domestic violence has been "expunged or set aside, or is an offense for which [he] has been pardoned or has had civil rights restored." Many States have laws which suspend or revoke "civil rights" only for felony convictions, some have for misdemeanors - some only while confined. If State law does not impose a disability on civil rights for misdemeaner convictions, then a judge cannot by order give those "civil rights" back. Under various appellate court opinions, including the U.S. Supreme Ct and, for purposes of CA law as held by the 9th Circuit, one can qualify for the "civil rights" exception (which as noted before does not normally include 2d Amendment but instead focuses on serving on jury; voting; and holding public office) only if the applicable State law provided for the loss of civil rights upon conviction in the first place. See U.S. v. JAMES DAVID BRAILEY, JR., 408 F.3d 609; 2005 U.S. App. LEXIS 9039 (attached) When a defendant's "civil rights were never taken away, it is impossible for those civil rights to have been 'restored.'" As these courts have also observed, misdemeanants whose civil rights are never revoked can still qualify for the exception of § 921(a)(33) by the other enumerated methods of absolution, such as expungement or pardon. Barnes, 295 F.3d at 1368; see also Jennings, 323 F.3d at 275 (stating that the defendant "has other avenues he can pursue to fall within the . . . exception of 18 U.S.C. § 921(a)(33)(B)(ii)"). Where civil rights are not removed for a misdemeanor conviction of a crime of domestic violence, an individual convicted of such a misdemeanor "cannot benefit from the federal restoration exception." Smith, 171 F.3d at 623." I If the State law does revoke/suspend "civil rights" for misdemeanor conviction, then you need to look at who is authorized to remove that disability. Many States restore under release from confinement, or completion of sentence. Moreover, that restoration process must "substantially" restore those rights. Regarding the civil order of protection (COOP), unlike the convictions aspect of 922(g), I have not found any exception to 922(g) that allows a judge to override 922(g)(8) and permit continued access to firearms during the duration of the COOP.

DoD Policy Current policy approved and effective on 27 Nov 02 Policy applies to felony* and misdemeanor crimes of domestic violence, and general and special courts-martial that otherwise meet the definition of “crime of domestic violence.” Two separate memorandums (civilian and military) DoD Directive/Instruction in process They are slightly different. I’ll talk about the key parts that apply to both and the key parts of the separate policies. DoD Policy: Crime of domestic violence includes: misdemeanor crimes of domestic violence and felony crimes of domestic violence, as classified under State or Federal law. Policy provides clarifying definitions: Qualifying conviction: State or Federal conviction for a misdemeanor crime of DV or State or Federal conviction for a felony crime of DV adjudged on or after 27 Nov 02; and GCM/SPCM that otherwise meets the definition of crime of domestic violence. Reason DoD has this special language (“a felony crime of DV....) is because the revocation of the public interest exception is for DV only. It appears to be an oversight. This disconnect (more severe adverse action for misdemeanor than felony) was challenged in Fed District Court w/o success.

DoD Policy (generally) Must periodically inform personnel of amendment, consequences, and DoD policy. Actions and policy applies OCONUS Military and civilian personnel have an “affirmative, continuing obligation” to notify command/supervisor of qualifying conviction. That they currently have or later obtain - requires use of DD Form 2760 Unit-wide distribution of DD Form 2760 not appropriate. Provide ONLY if reasonable suspicion of qualifying conviction Obligation to inform about qualifying conviction that they presently have or obtain in the future. Informing personnel also includes posting information about the amendment and policy in facilities where [Government firearms for military] firearms and ammunition are stored, issued, disposed of, and transported. Requires reassignment of duties or suspension of access to firearms or ammunition Affirmative duty includes notice that statements made on the DD Form 2760 are immunized from prosecution. DD Forms are available at http://web1.whs.osd.mil/icdhome/forms.htm the DoD Publication and Forms website.

DoD Policy for Military Qualifying conviction bars applicants from military service and for current members: Requires retrieval and suspension of access to firearms and ammunition If qualifying conviction is learned while deployed, continue mission. Once off deployment weapon/ammo access prohibited. Major weapons systems are excluded from the definition of firearms and ammunition (tanks, crew-served weapons, aircraft, etc.) DD Form 2760 – provided immunity from prosecution for violating the act. Approved for use by DoJ. Requires Service policies on possession of privately owned firearms and ammunition for offenders residing on Govt controlled installations. Also, requires the same for MWR type activities with guns/ammunition. No waivers for entrance into military service for those with qualifying convictions. Services permitted, consistent with applicable law and regulations, to separate individuals with qualifying convictions. (unless in the statutorily mandated military retirement sanctuary provisions – then provided meaningful duties that do not require access to firearms or ammunition.) DoD Policy applies CONUS and OCONUS. Service implementing directives within 120 days.

DoD Policy for “Covered” Employees Requires Services to identify all “covered” civilian employees positions that include duties under Gun Control Act, including selling, disposing, receiving, possessing, shipping or transporting firearms and ammunition. Requires use of DD Form 2760. Personnel with qualifying conviction cannot be assigned or detailed to covered position. Applies to all DoD appropriated and nonappropriated fund civilian employees (5 USC 2105) DoD Use of Force instructions already changed Requirement to ID “covered positions” which are those where the position includes duties, activities, or responsibilities covered by Gun Control Act, including selling or disposing of firearms and ammunition (18 USC 922(d)) or receiving, possessing, shipping, or transporting any firearm or ammunition in or affecting interstate or foreign commerce. If Service knows or has reasonable cause to know of qualifying conviction, they cannot retain or employee in that covered position. Mandatory requirement to inform personnel in covered positions of amendment including affirmative continuing duty to inform supervisors if they have or later obtain qualifying conviction. Immunity form (DD Form 2760) filed in personnel folder. Requirement for Service implementation: USA – in process AF – in process Navy -? USMC – MARADMIN message

*Reminder* LAUTENBERG restrictions do not apply to: Summary Courts-Martial Article 15/NJP/Office Hours Administrative separations Deferred prosecutions or similar alternative dispositions Case Review Committee Findings CRC findings is not specifically mentioned in DoD policy but included here for clarity.

Service Implementation Marine Corps - MARADMIN 186/03 Navy - NAVADMIN 085/98 Air Force – HQ USAF/DPP policy memo of 20 Feb 04 Army – HQDA message of 16 Oct 03 and DA PAM 600-8-200

MARADMIN 186/03 Marines/Sailors have an affirmative, continuing duty to notify commanders of qualifying convictions (DD Form 2760) TECOM directed to modify common skills order and ITS order Recruiting command will screen all enlisted and officer applicants for qualifying conviction Notification is if they have now or later get a qualifying conviction TECOM individual training standards will reflect new policy “Commanders will not routinely screen Marines and Sailors for DV convictions”. However, once they suspect or know of such a conviction they must act IAW DOD/USMC policy

Commander’s Responsibilities Once Commanders know or suspect that a member has a qualifying conviction: Provide DD Form 2760 Immediately retrieve Government issued firearms/ammunition Suspend future access to Government firearms/ammunition Secure access to privately owned firearms/ammunition kept on base Advise member to take immediate action to lawfully dispose of the same Refer member to SJA Commanders: May process member for administrative separation Shall not routinely screen for DV convictions Of deployed units shall take appropriate actions upon return from deployment Retention sanctuary provisions apply for adsep. Members will be assigned meaningful duties until retirement.

Additional USMC policy Commander’s shall continue to take appropriate measures . . to protect spouses and children from domestic violence Applies to Reserves These measures are in addition to Lautenberg compliance. See paragraph 4a of MARADMIN which states “In addition to the actions directed below to comply with the Lautenberg Amendment, commanders shall continue to take appropriate measures, to include restricting access to weapons, whenever they deem it necessary to protect military spouses and children from domestic violence.” Appropriate measures apply, for instance, if incident occurs, but conviction or protective order has not been issued.

Armed Forces Domestic Security Act 10 USC 1561a – enacted 2 Dec 02 Gives civilian protection orders full force and effect on military installations “Protection Orders” include temporary an final orders issued by civilian or criminal courts. Civilian Protection Order, under this Act, is defined at 18 USC 2266(5): As an order issued by a state court with (1) jurisdiction over the parties; (2) notice and a fair opportunity to be heard was given to the person against whom the order is directed; and (3) in the cas of an ex parte order, notice and opportunity to be heard must be provided within the time required by State or tribal law, and in any event within a reasonable time after the order is issued, sufficient to protect the respondent’s due process rights. Act includes temporary and final orders, any injunction, or other order issued for the purpose of preventing violent or threatening acts or harassment against, or contact or communication with or physical proximity to, another person. Act includes both Civil and Criminal court orders Act removes the jurisdictional defense a person subject to a civilian protective order once had on an exclusive Federal jurisdiction installation. 18 USC 2265 requires that all States must give full faith and credit to another States’ valid order of protection. The order will be enforced as if it was an order issued by the State in which the infraction occurred. Commanders: counsel member once notice of protective order is known; If order prohibits certain actions (residing with spouse/ no access to weapons/ no transfer from area) then command must enforce. Violations of a civilian protective order may be tried by court-martial or punished by NJP under Art 134, if the conduct is PGODSD. Violations, violate State or Federal law. Protective orders herein do not necessarily have same “procedural rights” as described in 1994 amendment for prohibition of weapons/ammo.

DoD Implementation DoD memo of 10 Nov 03 implemented this Act Violators of civilian protective orders risk civilian and/or military adverse action Commanders shall take all reasonable measures necessary to ensure orders are given full force and effect Commanders may issue MPO that is more restrictive There is no requirement for civilian orders be registered on installations. Installations may establish registration procedures, failure to register to order shall not be reason for a commander or law enforcement person, having knowledge of an order, to fail to give full force and effect to the order.

When in doubt contact your SJA