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 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 “a 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. That decision, however, was at odds with nine other federal circuits, including the Ninth Circuit Court of Appeals, which had held in US v. Belless (2003) 338 Fed.3d 1063 that the domestic relationship was adequately provable at trial, and need not be specified as part of the underlying, “predicate” offense. To resolve the conflict between the Circuits, the US Supreme Court granted review, ultimately concluding 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 predicate offense. (Hayes, at 129 S.Ct. 1089.)
How does a court decide whether a conviction of a particular state statute is one of a “misdemeanor crime of domestic violence?”
In making this assessment, courts apply the so-called “categorical” and “modified categorical” approaches first set forth in US v. Taylor (1990) 495 U.S. 575. In the “categorical” approach, courts are directed to review, in cases tried by a jury, the fact of a conviction and the statutory definition of the predicate offense. The Taylor court allowed that in a narrow range of cases, certain additional information might be reviewed by a process that has been called the “modified categorical” approach.
A look at California Penal Code Section 415 helps to illustrate the application of Taylor and its progeny. Generally called, “disturbing the peace”, that provision has sometimes been used to resolve more marginal domestic violence filings prior to trial, as a conviction pursuant to its terms does not entail a state statutory gun restriction.
Penal Code Section 415 states:
“Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than ninety days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine:
- Any person who unlawfully fights in a public place or challenges another person in a public place to fight.
- Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.
- Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.
Suppose, years ago, an officer battered his spouse and the police reports contain witness statements to that effect. Suppose also that the officer was then able to work out a plea agreement to a misdemeanor violation of Penal Code Section 415. Under U.S. v. Hayes, can there now be a gun restriction imposed?
First, there has to be a determination as to what subsection of § 415 was the subject of the plea. On their face, neither § 415(2) (“disturbs another person by loud and unreasonable noise”) nor § 415(3) (“uses offensive words”) contains an essential element of a “use or attempted use of physical force, or the threatened use of a deadly weapon.” Absent such element, neither subsection fits the definition of a “misdemeanor crime of domestic violence” under 18 U.S.C. § 921(a)(33)(A). Under the “categorical” approach of Taylor, with the necessary “force” element absent from that statutory provision, no further inquiry is allowed, regardless of whether the case was tried by a jury, a judge, or resolved with a plea. That a witness, or even the officer himself, made statements to indicate that force was used is irrelevant, as the conviction was for an offense that lacks the essential element of “use or attempted use of physical force, or the threatened use of a deadly weapon.”
But what about a conviction for PC § 415(1)? This statute can be violated by one who either “unlawfully fights…” or “challenges another…”. If the “categorical” approach is applied, a determination of whether the conviction was for a crime of domestic violence is left uncertain, because the fact of the conviction does not reveal which part of the statute was the basis of the conviction. Conceivably, one who “unlawfully fights” with a person with whom he has a domestic relationship could be engaged in a sufficient use of force to satisfy that part of the statute, while one who merely “challenges another” would not. The court would then resort, under the “modified categorical” approach, to review the contents of a specific plea agreement or any admissions the defendant may have made in open court to determine whether the defendant actually pled to an offense that constitutes a crime of domestic violence. If the case was tried by a jury, the Court could look to specific jury findings, or in a court trial, to specific findings of the trial judge, if indeed any were made. However, if it cannot be determined from these limited materials, the Court may not advert to other evidentiary materials in the court file, such as police reports or complaint applications, to define the nature of the conviction. As the Supreme Court said in Shepard v. United States (2005) 544 U.S. 13, 21-25, the Court’s utilization of such evidentiary materials to establish the nature of the offense, absent explicit consent or agreement, may be violative of a defendant’s right to a jury trial on a disputed issue of fact.
Thus, officers who may have been convicted of §§ 415(2) or 415(3), even if police reports clearly identify them as battering their spouses, should not be subject to the reach of Hayes, simply because those provisions lack the “force” element and therefore do not meet the definition under federal law of a misdemeanor crime of domestic violence. Conversely, it is at least possible that someone convicted of § 415(1) could be deemed to have committed such an offense, if (a) information upon which the Court is allowed to rely dictates that the conviction implicated the use of force or of attempted use of a deadly weapon, as defined in 18 U.S.C. § 933(A), and (b) it can be proven beyond a reasonable doubt that the alleged victim was in a specified domestic relationship with the defendant.
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 the gun restrictions. Upon further review, however, the prospects for such relief are dim in both forums.
In California, Penal Code § 12021 lists numerous statutes for which a conviction would result in a ten-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.
In passing, we should note that we are aware of a few officers who have dodged a gun restriction, at least temporarily, by pleading guilty to PC § 242, with the PC § 273.5 charge being dismissed in the process. These officers then petitioned the Superior Court judges who heard their cases for relief under PC § 12021©, arguing that it would be a constitutional violation of equal protection for one convicted of § 273.5 to be able to have a gun restriction removed, while one convicted of battery, a lesser-included offense, could not. In the past, the pre-Hayes battery convictions were not always scrutinized by federal authorities, and absent any appeals from the DA’s office, some of these rulings were allowed to stand.
However, even this avenue was closed altogether, in 2004, when a California Court of Appeal ruled that the Legislature’s limitation to relief for the three stated offenses was not a violation of equal protection, and reversed the finding of a Superior Court judge to the contrary. (People v. Conley, 116 Cal. App. 4th 566.) Assuming the facts of a domestic relationship to be provable beyond a reasonable doubt, an officer with a similar conviction is now subject to a gun restriction under Hayes, regardless of when that conviction occurred.
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 (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.”
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.
…Furthermore, by the statute’s own terms, an order under Section 1203.4 does not relieve the ex-offender of the “obligation to disclose the conviction in response to any direct question contained in any questionnaire or application for public office [or] for licensure by any state or local agency…”
The Federal Ninth Circuit Court – citing Frawley with approval – emphasized that “expungement” is defined as “the removal of a conviction…from a person’s criminal record”, and that Penal Code § 1203.4 provides no such relief. (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. Indeed, for a pardon not expressly based on innocence, the underlying conviction may be considered a prior conviction that may enhance the person’s liability for increased punishment. (People v. Dutton (1937) 9 Cal. 2d 505, 506; People v. Biggs (1937) 9 Cal. 2d 508, 514.) 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 allows for a person not to be considered as being convicted of a misdemeanor crime of domestic violence if the person has had “his civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense)…” 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 (typically defined in this context as 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. U.S. (2007) 552 U.S. ___, 128 S.Ct. 475, 478.)
Just when you might think all is lost, you could stumble upon 18 U.S.C. § 925©, which seems to allow a possible, albeit remote, reprieve from the gun restriction, allowing for an appeal to the Secretary of the Treasury to have the gun restriction lifted. This section is the legal equivalent of the Peanuts cartoon segments wherein Lucy continually pulls the football away from the flailing leg of Charlie Brown, and serves as little more than a cruel hoax on the desperate. Incredibly, after passing legislation allowing such appeals, Congress decided it could do without them, and has refused to fund ATF to hold any such hearings. With no money funded for the hearings, no hearings have been held.
Immediately, you might ask, where is the due process? Can’t someone just go to court and force ATF to give a hearing? You could do that, and you would not be the first person to try, or the first to fail. In fact, the issue has been discussed all the way to the U.S. Supreme Court. The judicial response has been that the courts have no authority to force ATF to grant an appeal. The choice to grant a hearing, it has been held, is entirely discretionary with ATF, and “firearms restoration” is not a fundamental right for which a hearing is required by due process or statute. While courts may review the findings of ATF after a hearing, they have no authority to compel one from the outset. (See U.S. v. Bean (2002) 537 U.S. 71, 123 S.Ct. 584.)
Do I have to respond to Department inquiries regarding prior convictions?
Although U.S. v. Belles has been on the books for six years, and its holding that the fact of a domestic relationship need not be stated as part of the predicate offense has been accepted by other courts for much longer than that, it seems that law enforcement agencies have for some reason been reluctant to act until forced by the Hayes decision. Many agencies are now sending out questionnaires for officers to remind the agency of previous convictions the officers may have suffered, so as to make a determination as to 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 that requires the officer to notify his agency in the event of negative contacts with other law enforcement agencies, even contacts that do not rise to a conviction. For those who wonder if there is any legal reason as to why they need not administratively respond to orders to answer such inquiries, we are aware of none.
On an ever-so-slightly more positive note, the U.S. Supreme Court has expressed significant concern about the constitutional propriety of using any debatable facts to establish a prior conviction, and has specifically rejected the Government’s attempt to resort to documents containing facts not specifically agreed to by the defendant (such as police reports), to establish a factual basis for the conviction. (Shepard, supra., 544 U.S. at 21-25.) Indeed, in the Taylor case, the Supreme Court categorized the task of attempting to determine a prior conviction beyond the mere four corners of the statute as a “daunting” one. (495 U.S. 575, 601, 110 S.Ct. 2143, 2159.) Since it appears that the circumstances of the predicate offense would have to be proven beyond a reasonable doubt, any uncertainty in the process should inure to the benefit of the accused.
In California, this gray area could help with older convictions that have flown under the radar of federal scrutiny. 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.
Can an officer do anything to fight ATF’s determination? Assuming informal channels are not fruitful, the only recourse may be an application for declaratory relief in Federal Court, under 28 U.S.C. § 2201, if a constitutional issue can be raised that could necessitate a judicial determination of the status of the predicate offense. The problem with this approach, apart from the winning-the-lottery type odds that a Federal Court would not find a way to abstain from entertaining the application, and apart from the expense, is timing. An officer identified by ATF as being subject to a gun restriction will not be allowed to use a firearm until that restriction is formally lifted, which will put his career on hold pending what might be a lengthy court battle.
While the outlook for officers involved in domestic violence situations is hardly a cheerful one, it is important to emphasize what Hayes and Taylor mean and what they do not mean. 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 the fact of a domestic relationship between the defendant and the alleged victim. However, the 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. If it cannot be determined from the fact of conviction whether such an offense has occurred, then and only then can the court resort to reviewing a limited range of materials, under the circumstances detailed above.
Without question, the courts are showing no inclination to give any special deference to officers involved in domestic violence situations to let them retain their firearms. Absent legislative action at the Federal level, we have no reason to believe that this trend will change. Accordingly, unless a jury trial is preferable, 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 gun restriction, and fashion plea agreements to negate possible findings of the “use or attempted use of force or threatened use of a deadly weapon.
Having duly described the dismal legal landscape in this area, 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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.