Advice on Domestic Violence Expungement
One of the most common questions attorneys who practice record clearing law receive is how a person convicted of DV can restore their firearm rights.
The answer to this question not only involves analyzing complex federal and state laws, it also involves trying to make sense of shifting interpretations of law from courts and agencies.
In 1996 the federal government enacted Title 18, United States Code, Section 922(g)(9) (the Lautenberg Amendment) . This provision amends the Federal Gun Control Act of 1968 by banning the possession of firearms by individuals convicted of a misdemeanor crime of domestic violence. The law was applied retroactively to anyone who was ever convicted of domestic violence as defined by the Lautenberg Amendment.
There have been unsuccessful challenges to the retroactive application: see United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 115 S.Ct. 246 (1994)(denying ex post facto challenge to a 922(g)(1) conviction) and United States v. Waters, 23 F.3d 29 (2d Cir. 1994)(ex post facto based challenge to a 922(g)(4) conviction). More challenges are in the courts.
Question 1: Does the Conviction Meet the Federal DV Definition?
The starting point on the analysis of whether a person can have their rights restored should be if their offense meets the federal definition of domestic violence. If it does not, the federal law is not applicable.
This is the Lautenberg amendment’s definition of misdemeanor conviction of domestic violence (MCDV):
"has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, 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."
This definition is narrower than those of many state laws as it does not automatically include boyfriends or girlfriends, if there is no shared child. The NIC’s interpretation of a person similarly situated to a spouse includes a common-law spouse or a person who cohabitates with a person in an intimate way and with intent to make it their home. The NIC will look at things, such as does the victim have another address or home, amount of time spent at the home, and steps taken toward making it their home, such as receiving mail, registering to vote, etc.
Many state laws also include the threatened use of force, even if no deadly weapon was part of the threat. Such acts are not included in the federal law.
If the state definition mirrors the federal definition, the defendant would have the burden of showing that the victim does not meet the federal definition.
Question 2: Does the Conviction Meet One of the Three Exemptions?
If the federal law applies, the analysis turns to whether or not the person meets any of the three exemptions listed in 18 U.S.C. § 921(a)(33)(B). The first two are exceedingly rare:
“(1) at the time of previous conviction, the defendant must have been represented by counsel, or knowingly and intelligently waived the right to counsel;(2) if the offense of previous conviction entitled the person to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise .”
The third exemption can be met in some jurisdictions. (3) the conviction can not have been expunged or set aside, or be an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. The issue of restoration of civil rights must be carefully researched for each potential defendant. For example, in some states a person automatically loses his/her civil rights upon the execution of a sentence of imprisonment (felony or misdemeanor) only to have the rights restored upon the defendant's release from prison or sentence.
Simply put, Section 3 says, expungement or a pardon cannot restore your right to own a firearm if the state did not take away your right to own a firearm as part of the conviction. So, if the offense was a felony or resulted in a prison sentence, then firearm rights can be restored by the state. However, if it was a MCDV for which the state did not impose a ban on firearm rights, the state cannot restore firearm rights.
If the state took away firearm rights as a result of the MCDV and expungement, pardon or similar remedy provided by the state does restore the right at the state level, then the federal ban can be will be lifted when the state restores the right.
While that interpretation of Section 3 does make procedural sense, it does create some odd results and interesting incentives. For instance, if the state does not restrict firearm rights for a MCDV, a MCDV will mean a permanent loss of firearm rights under the federal law, because, as stated above, the state cannot restore what it does not take away. However, if the person was convicted of a felony violation of domestic violence, the person could have their rights restored by the state (either by having the offense reduced to a misdemeanor or through a separate restoration of rights procedure, if one is offered in the state). So, a person who is concerned with maintaining their firearm rights may be better off taking a felony conviction than a misdemeanor conviction. As one client said, I should have said I hit her harder.
If the MCDV cannot meet the exception of Section 3, the person is probably not going to get their firearm rights back unless the law or the interpretation of the law changes. There is no exception for military or law enforcement.
Section 18 U.S.C. § 925(a)(1) still exempts felony convictions for law enforcement and military. So if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may, under federal law, still be able to possess a firearm while on duty, whereas if they are convicted of a MCDV they are prohibited from possessing a firearm while on duty. There are two bills in Congress that would substantially modify the impact of the amendment to this section.
For more information see; http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm01117.htm