Domestic Violence

For several years, LAPD black and whites were emblazoned with bumper stickers proclaiming, “There Is No Excuse For Domestic Violence.” When it comes to law enforcement officers involved in domestic violence incidents, this phrase takes on an enhanced and ironic legal twist, as the decisions of federal courts are relentlessly limiting officers with domestic violence-type convictions from retaining their ability to carry firearms.

The most recent pronouncement in what has become a depressing line of cases came in the US v. Randy Hayes, 555 US, 129 S.Ct. 1079 (February 24, 2009), in which a West Virginia man previously convicted of battery on his ex-wife was found in possession of a firearm.

Hayes was charged with a violation of 18 U.S.C. § 922(g), which prohibits one convicted of “misdemeanor crime of domestic violence” from possessing a firearm. A “misdemeanor crime of domestic violence” is defined in 18 U.S.C. § 921(a)(33)(A) as an offense that:

“(i) is a misdemeanor under federal, state or tribal law; and

(ii) has 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 co-habitating with or has co-habitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim….” (Emphasis added)

Hayes contended that the battery statute under which he was convicted did not have as an element an allegation of a domestic relationship and, therefore, Section 922(g) did not apply. The Fourth Circuit Court of Appeals agreed with him.

However, the U.S. Supreme Court ultimately concluded that as long as the prosecution could prove beyond a reasonable doubt the fact of the requisite domestic relationship at trial, it was not necessary that the relationship itself be specified in the charging document. (Hayes, at 129 S.Ct. 1089.)

Relief From a Gun Restriction: The question is frequently asked, “Can an officer get relief from a gun restriction stemming from a domestic violence-type conviction?” At first blush, it seems that both state and federal laws offer opportunities to avoid gun restrictions. Upon further review, however, the prospects for such relief are dim in both forums.

California Law

In California, Penal Code § 12021 lists numerous statutes for which a conviction would result in the a10-year gun restriction, including PC § 242 (Battery) and PC § 273.5 (Domestic Violence). Section 12021© authorizes a court, upon a showing that someone who uses a firearm for employment is likely to use the firearm in a safe and lawful manner, to grant an exemption from the restriction if the defendant was convicted of one of three offenses – Penal Code § 273.5, Penal Code § 273.6 (disobedience to a domestic court order), and (gasp!) § 649.6 (stalking).

However, pursuant to the supremacy clause of the United States Constitution, the action of the state court in eliminating the gun restriction is trumped by the federal court’s proscription for possessing a firearm upon conviction of a misdemeanor crime of domestic violence, absent the person being able to fit within one of the federal exceptions to be discussed below.

United States Law

Under federal law, the opportunities for a California peace officer to obtain relief from a gun restriction imposed by a conviction of a misdemeanor crime of domestic violence are more illusory than real. Title 18 U.S.C. § 921(a)(33)(B)(ii) provides:

“A person shall not be considered to have been convicted of such an offense for purposes of this chapter [18 USC Sections 921, et seq.] if a conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored …unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

First, what is deemed “expunged or set aside” under the federal statute is far more restrictive than the way it is frequently thought of in California.

As a matter of right, defendants may have convictions “expunged” or “set aside” pursuant to Penal Code §1203.4, and a number of courts have actually used the word “expunged” to describe the relief granted thereunder.

Yet, as noted in People v. Frawley (2000) 82 Cal. App. 4th 784, 790-791:

“Section 1203.4 does not, properly speaking, ‘expunge’ the prior conviction. The statute does not purport to render the conviction a legal nullity.

“Instead, it provides that, except as elsewhere stated, the defendant is ‘released from all penalties and disabilities resulting from the offense.’ The limitations on this relief are numerous and substantial, including other statutes declaring that an order under 1203.4 is ineffectual to avoid specified consequences of a prior conviction.”

The Federal Ninth Circuit Court – citing Frawley with approval – emphasized that expungement under § 1203.4 does not provide for the removal of a conviction from a person’s criminal record. (Jennings v. Mukasey (2007) 511 F.3d 894, 899.) Therefore, the court reasoned, relief pursuant to Penal Code § 1203.4 does not satisfy the so-called “unless clause” of 18 U.S.C. § 922(a)(33)(B)(ii), noted above.

Next, the route of pursuing a pardon appears similarly futile. While technically empowered to grant pardons for misdemeanor offenses, California governors have rarely done so.

Moreover, there is a serious question as to whether a pardon by the governor of California for a misdemeanor crime of domestic violence would satisfy the federal authorities. California recognizes both “traditional” pardons and pardons based upon a Certificate of Rehabilitation, both of which are deemed “full” pardons (Penal Code §§ 4852.17, 4853).

Absent the receipt of a traditional pardon granted on the basis of factual innocence, however, neither pardon “expunges” a conviction any more than does Penal Code § 1203.4. Thus, California peace officers seeking a pardon not based on factual innocence would likely (a) receive no consideration from the governor, and/or (b) find that federal authorities would not recognize the pardon as satisfying the “unless clause” of 18 U.S.C. § 922(a)(33)(B)(ii).

Section 18 U.S.C. § 921(33) also has an exception for a person who had his “civil rights restored. . .” However, someone convicted of a misdemeanor domestic violence statute does not qualify for the exception in California, as those convicted of misdemeanors do not lose all of their “core” civil rights (including the rights to vote, serve on a jury, and possess firearms). The U.S. Supreme Court has held that those who have not lost all of their civil rights cannot later claim that their rights have been “restored,” and thus are not entitled to relief under this section. (Logan v. the U.S. (2007) 552 U.S. ___, 128 S.Ct. 475, 478.)

Do I have to respond to department inquiries regarding prior convictions? Many agencies are now sending out questionnaires for officers to remind the agency of previous convictions the officers may have suffered, to allow a determination whether their case falls within the ambit of Hayes. Officers placed in a position to have to respond to such questionnaires should immediately contact legal counsel to assist in that response.

In virtually every instance, the notification would have been previously made to the department, either as part of the pre-hire process or based on the department’s general order requiring officers to notify the agency if they have negative contacts with other law enforcement agencies. For those who wonder if there is any legal basis to refuse to respond to orders to answer such inquiries, we are aware of none.

In California, older convictions that have flown under the radar of federal scrutiny may escape review. Many courts and police departments have purged their files of cases over 15 years old.

While the fact of a prior conviction (e.g., battery) may be recoverable, victim information, jury findings, and plea agreements which may have provided a factual basis for a finding of a misdemeanor crime of domestic violence may have disappeared forever, making the prosecution’s burden of proof of a predicate offense unattainable.

How can I challenge my department’s proposal to terminate me if it claims that I have suffered a conviction for a misdemeanor crime of domestic violence? In every case that we have seen, departments have relied on ATF’s determination as to whether an officer is subject to a gun restriction.

Since ATF is, under federal law, the arbiter of who is subject to a gun restriction, and since the supremacy clause of the U.S. Constitution dictates the primacy of federal law, any determination by ATF will be considered by a local agency as dispositive.

The local agency will notify the officer of ATF’s determination and will take no other action until a court tells it to do otherwise. While the agency is not legally obligated to terminate the officer, most will, since the officer would be severely restricted in the duties he could perform without a firearm.

Conclusion

While the outlook for officers involved in domestic violence situations is hardly a cheerful one, it is important to emphasize what Hayes and its progeny stand for and what they do not. Simply put, exposure to the loss of a firearm may be extended in those cases where there was a conviction under a statute which contains an element of “the use or attempted use of physical force, or the threatened use of a deadly weapon,” provided that the prosecution can prove beyond a reasonable doubt that there was a domestic relationship between the defendant and the alleged victim.

However, the firearm restriction will not apply where no element of the statute implicates such finding, regardless of the initial charge against the officer, or any specific evidence alleged against him.

Without question, the courts are showing no inclination to give any special deference to officers involved in domestic violence situations to allow them to retain their firearms. Absent legislative action at the federal level, we have no reason to believe that this trend will change.

Accordingly, counsel for involved officers must be more creative and diligent than ever in orchestrating dispositions of criminal cases to avoid offenses that potentially could carry a firearm restriction, and fashion plea agreements to negate possible findings of the “use or attempted use of force or threatened use of a deadly weapon.”

It seems clear that the most important investment that an officer in a troubled relationship can make is in the preventative measure of professional counseling. In our practice, the overwhelming number of clients who have sought assistance have been gratified by the results, and achieved an enhanced sense of personal control, not to mention in many cases, a modified disciplinary penalty.

Counseling is likely to be your best defense against the eruption, and disruption, of a domestic incident, and in turn, your best means of protecting your three most important assets: family, liberty and career.

Editor’s Note

This is a condensed version of William Hadden’s article on domestic violence convictions and the effect they have on a peace officer’s career. See the LDF website for the full, unabridged version of this article.