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"I sleep with two guns under my pillow; one gives me a stiff neck!"
Pancho Vilos
WARNING to Criminal Defense and Domestic Relations Attorneys!
Your advice to a client charged with domestic violence or seeking a mutual protective order in a domestic case could set the
client up to be charged with a federal felony!
The Problem
I was sitting in District Court in West Valley one afternoon waiting for my client's case to be called and noticed no less than half a dozen people stand up and plead guilty to
misdemeanor domestic violence (MDV). Some were represented by counsel and others weren't. Although the court informed those pleading guilty they were waiving their right to be represented by an
attorney at trial, to trial by jury, to cross examine witnesses etc., neither the judge nor the attorneys told these defendants that they were giving up the right to possess a firearm. Unbeknownst to
many lawyers, judges and lay persons, Congress, in September of 1996, passed the "Lautenberg Amendment" of the Gun Control Act of 1968 making it a federal felony for a person who has been
convicted of MDV to possess a firearm or ammunition, 18 U.S.C. ¤ 922(g) (9). A sister provision of "Lautenberg," 18 U.S.C. ¤922(g)(8), makes it a felony for anyone to possess a firearm who,
as a cohabitant, has had a civil protective order granted against him or her. This article discusses some of the problems ¤922 (g)(8) and (9) have caused for gun owners and how to advise your clients
to avoid the pitfalls.
What's the Beef?
So what's the beef? After all, should anyone who inflicts serious bodily injury on his wife or kids be trusted with a gun? Of course not. But a closer look at Utah's MDV
laws reveals "domestic violence" is very broadly defined and doesn't just include "wife beaters" or child abusers. A person could be charged with MDV for breaking a plate on the
floor during a domestic argument while shouting "you've had it" (see U.C.A. 77-36-1) or for not letting a spouse enter a workshop or sewing room. (U.C.A. 76-5-304). If the "tea cup
spats" on I Love Lucy had taken place today in Utah, both Ricky and Lucy would have been guilty of MDV.
The Right to Possess Firearms is Important to Many Utahns
Gun ownership is extremely important to many Utahns. Brady "background check" statistics show that Utahns purchased
approximately 130,000 firearms from gun dealers during the past two years. This doesn't count sales between private individuals. Numbers from the Utah Bureau of Criminal Identification (BCI) reveal
there are presently over 40,000 concealed weapon permit holders in Utah, the majority of which reside in Weber, Davis, Salt Lake and Utah counties. The number of permit holders in Utah increases at a
rate of over 500 per month. Last year the Utah Division of Wildlife Resources reported 102,950 big game licenses sold authorizing hunters to hunt deer and elk with a firearm. There were 85,931 small
game licenses sold. A gun owner charged with MDV, whose criminal defense attorney does not advise him that he is giving up the right to possess firearms by entering into a plea bargain, will feel
betrayed when he later discovers it's a felony for him to possess his favorite deer rifle. If your criminal client is a police officer, a plea to MDV could result in the loss of his or her career.
The same problems arise if your client has a civil protective order granted against him or her. Unfortunately, many lawyers advise their clients to stipulate to mutual protective orders without
assessing whether domestic abuse is really a threat or if possessing a gun is important to the client.
Traps for Those Unfamiliar With Firearms Law
With the information recited above, an attorney might assume that advising his or her client to avoid pleading to an MDV or stipulating to a
protective order would suffice to protect the client. Unfortunately there are provisions in state law that can mislead attorneys, judges and clients.
Plea bargaining a MDV to disorderly conduct - The Utah Legislature attempted to create a "safe haven" for firearms owners who plea bargain a MDV to disorderly conduct. U.C.A. 77-36-1 (o)
says " if a conviction of disorderly conduct is the result of a plea agreement in which the defendant was originally charged with . . . domestic violence, [then the] conviction of disorderly
conduct as a domestic violence offense . . . does not constitute a misdemeanor crime of domestic violence under . . . the federal Firearms Act . . ."
Judges and attorneys should be able to rely on this, right? Wrong. Unfortunately counsel at the Bureau of Alcohol Tobacco and Firearms (ATF) have concluded that the definition of MDV under the federal
statute includes any crime that has, as an element, the use or attempted use of physical force against a domestic partner, 18 U.S.C. ¤921(a)(33)(A)(ii). Utah's disorderly conduct statute includes the
elements "engag[ing] in fighting or in violent, tumultuous, or threatening behavior." ATF concludes that a conviction of disorderly conduct, where the victim is a domestic partner,
constitutes a MDV under federal law. Because federal law preempts state law, the "safe haven" intended by the Utah Legislature is not "safe." Consequently plea bargaining your
client from an MDV to a disorderly to save his or her right to possess a firearm will not work. The crime the client pleads to may not have as an element the use of or attempted use of physical
force. Plea bargains from a MDV to a simple assault or simple battery will cause a client to lose his or her right to bear arms. The search for a crime not involving the use or threat of force is
like looking for a "non-moving violation" in the context of plea bargaining a traffic offense. A dismissal with an apology would be the safest route. Pleading your client to disrupting a
meeting, U.C.A. 76-9-103 or a privacy violation under U.C.A. 76-9-402 are plausible choices for a plea bargain from an MDV if the prosecutor will agree.
Diversion Agreement - Diversions are not allowed under domestic violence law, U.C.A.77-36-2.7(6).
Pleas in abeyance -
A plea in abeyance, U.C.A. 77-2a-1 et.seq., to DV is arguably not a conviction and shouldn't result in a firearm disability under Lautenberg. This argument is not "bullet proof," however, because a plea in abeyance (whether the plea is "guilty" or "nolo contendere") is considered a conviction under at least two sections of the Utah Code - (1) it is counted as a domestic violence conviction for subsequent DV offenses (U.C.A. 77-36-1.1(2)), and (2) it is considered a conviction when applying for a concealed weapon permit (U.C.A.53-5-702(1)(c)). Your client probably will not be able to buy a firearm during the period of abeyance, and will not be able to get a concealed weapon permit during or after the abeyance period, even after a dismissal. If your client is really unlucky, a federal prosecutor may take the position that because a plea in abeyance is deemed a conviction under two sections of Utah law, it is a conviction!
Other Options
Dismissal -
If the case against your client is weak, you may be able to talk the prosecutor into a dismissal (Lotsa Luck!). If your client is charged with more than one crime and the prosecutor offers to dismiss the MDV in return for a plea on the other charges, be careful . . . a plea to other charges may result in the loss of the right to possess a firearm. Felons cannot possess a firearm under federal law (18 U.S.C. 922(g)). Crimes of violence or involving drugs or alcohol may result in denial, revocation or suspension of a concealed weapon permit (U.C.A. 53-5-704(2)). Attorneys who represent gun owners should be familiar with the firearms prohibitions under federal law 18 U.S.C. ¤922(g), and state law U.C.A. 76-10-500 et. seq. particularly section 503.
Try the case - The safest option, if you are convinced of your client's innocence, is to win the case at trial.
PROTECTIVE ORDERS
Like a DV conviction, a civil protective order causes a firearms "disability" under federal law, 18 U.S.C. ¤922(g)(8). Likewise, there are "traps" for
those misled by provisions of state law. For example, U.C.A. 30-6-4.2(d) states that a domestic court may prohibit a cohabitant from purchasing or possessing a firearm. The form provided by the
district court clerks contains a "checklist." One of the choices gives the petitioner the option of asking the court to prohibit the respondent from purchasing, using, or possessing a
firearm. The fact that there are options gives the litigants the impression that if these options are not requested, a person against whom a protective order has been issued may possess a firearm.
This may even mislead the lawyers and judge to believe that litigants may buy and possess guns if permitted by the court (e.g. a divorce judge tells a husband he may possess a firearm to deer hunt as
long as he does not possess a firearm around his estranged wife). As stated earlier, however, these state law provisions are preempted by federal law. Under federal law, any subject of a protective
order who possesses a firearm commits a federal felony.
Many domestic relations attorneys stipulate to mutual restraining orders whether there is a threat of abuse or not. They do so without ascertaining if owning, possessing or buying firearms is
important to their clients. As soon as BCI receives notice of a protective order against a person, that person will be prohibited from purchasing a firearm and, if he or she is a concealed weapon
permit holder, his or her permit will be revoked. However, if the attorney is careful to explain in the protective order that none of the elements of 922(g)(8) apply (the client hasn't harassed,
stalked or threatened his intimate partner or child and the client is not a credible threat to such persons), then the protective order may not trigger the 922(g)(8) firearms "disability."
An attorney would be well advised to get BCI to approve the language of the protective order in advance. Protective orders remain in effect until the parties agree otherwise or until the respondent
convinces a court that the order is no longer necessary. Domestic relations clients who are the subjects of protective orders that contain the disabling elements of 922(g)(8) should be advised to
immediately dispossess themselves of all firearms or risk being charged with a federal felony.
Conclusion
Members of the "from-my-cold-dead-hands" crowd ain'ta gonna take kindly to lawyers failing to tell them of the consequences of a plea or stipulation that deprives them
of what rocks their world. Perhaps some shouldn't possess a firearm, but others pose no real threat to their spouses or society. All should be fully informed so that they can make intelligent choices
about whether to plead, stipulate or take their chances at a hearing or trial.
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