A Domestic Violence Conviction Could Get You Fired, Even if You Aren’t Married

Posted on Thursday, July 01, 2021 at 12:00AM


Senior Counsel
Messing Adam & Jasmine LLP

There are multiple off-duty situations that could cause the U.S. Department of Justice to impose a “firearms prohibition” against a peace officer, which would prohibit them from carrying a firearm. A firearms prohibition may include involuntary mental health commitments (which is why it is critical to care for your mental health on your own terms) and restraining orders.
A firearms prohibition is governed by both state and federal law. Under California Family Code §6389(a), for example, a person who is subject to a domestic violence restraining order cannot own, possess, purchase or receive a firearm and must immediately relinquish any firearm in their possession during the period the orders are in effect. California law typically provides a mechanism for appeal or modification that will allow a peace officer, at the very least, possession rights in the course and scope of employment while on duty. (See Family Code § 6389[h].)
Federal law, in comparison, may have more severe consequences. A federal firearms prohibition generally has no time limitations, resulting in a lifetime ban. (See 18. U.S.C. § 922.) Setting aside, for the moment, domestic violence incidents, federal law provides an “official use” exemption to the prohibition on receiving or possessing firearms or ammunition. (See 18 U.S.C. § 925[a].) This provision has been interpreted as an exception for law enforcement and armed forces personnel, to allow firearms owned by a government agency and used exclusively for its purposes to be excepted from the firearms restrictions. (Of course, whether a department will be willing to use the exemption to keep the peace officer on, particularly in light of the public perception issues currently plaguing law enforcement, is another story.)
However, federal law makes an exception to the exception for official use of firearms when it comes to domestic violence convictions. In other words, an officer convicted of domestic violence, even misdemeanor charges, may not possess a firearm at all. Ever. Period. Thus, a federal firearms prohibition resulting from a domestic violence incident is likely career-ending, as there is also currently no appeals process to get the restriction lifted. Therefore, law enforcement officers whose job duties require them to carry a firearm or who must maintain eligibility to possess a firearm, even if they do not regularly have to carry (as is frequently the case for correctional officers), may be terminated for not meeting the minimum qualifications of the position.
In a recent California appellate decision, Hernandez v. State Personnel Board (2021) 60 Cal.App.5th 873, the Fourth District Court of Appeal ruled that the term “domestic violence” in the federal law includes relationships between unmarried persons, even when they do not live together. Hernandez was a state correctional officer arrested for choking his girlfriend. He pled no contest to a misdemeanor violation of Penal Code § 273.5, infliction of bodily injury on a spouse, cohabitant or another intimate partner who has had “an engagement or dating relationship.” The California Department of Corrections and Rehabilitation terminated his employment because he no longer met the minimum qualification of being able to carry a firearm at work based on the federal firearms prohibition. The State Personnel Board upheld his termination. Hernandez then appealed to the courts, claiming that he and his girlfriend did not meet the definition of a “domestic relationship” and thus he could not have committed “domestic violence” under federal law so as to invoke the lifetime firearms prohibition.
While the California Penal Code includes a casual “dating relationship” to apply to the crime of domestic violence, the federal definition of a “domestic relationship” begins with: (a) a current or former spouse, or (b) a person who is cohabitating or has cohabitated with the victim. Neither of these categories applied to Hernandez’s case. However, there is a third category: (c) “a person similarly situated to a spouse … of the victim.” The Court of Appeal analyzed federal court decisions and found that a relationship “similarly situated to a spouse” does not require a long relationship, shared finances or an intent to marry. The court concluded that the federal definition simply requires a “sexual relationship that involves regularly spending the night together.” The court speculated that there may be cases where the relationship is too brief to qualify, such as a “single-night tryst,” but that was not the situation for Hernandez and his girlfriend. For these reasons, the court affirmed the State Personnel Board’s decision upholding Hernandez’s termination.
The law holds a peace officer to a higher standard off duty as well as on duty. One bad day, one lapse in judgment, even a momentary loss of control can have devastating consequences. The Hernandez decision demonstrates the importance of managing stress, mental health and personal relationships before the situation gets to a point that it will destroy a peace officer’s career.
If you are arrested on domestic violence charges, it is critical to consider the potential employment implications of your legal path. Make sure your criminal attorney understands the consequences of a misdemeanor domestic violence conviction — including a no contest plea. Your criminal attorney may need to consult with a public safety labor attorney who has familiarity with these issues.
With a domestic violence restraining order (which can be issued without arrest or criminal charges), you should also immediately consult with an attorney familiar with firearms law.
Your department will only tolerate assigning you to desk duty or the mail room for so long. It is significantly faster (and cheaper) to get a modification to authorize carrying a firearm while on duty during the temporary restraining order (TRO) stage. Once the court orders a permanent restraining order, it typically can only be modified by formal motion. A modification motion is time-consuming and expensive, requiring a showing, “by a preponderance of the evidence, that the officer does not pose a threat of harm.” (Family Code § 6389[h].) The statute also requires the officer to undergo a full psychiatric evaluation, which takes more time and incurs more expense.
It goes without saying that any domestic violence arrest has serious emotional, physical and legal consequences. The Hernandez decision is a reminder that these consequences are even more unforgiving of peace officers.

About the Author
Lina Balciunas Cockrell is senior counsel at Messing Adam & Jasmine LLP. She has been practicing law for more than 15 years, specializing in peace officer labor issues, such as defending internal affairs investigations and disciplinary appeals. She has handled numerous cases in federal and state court to restore law enforcement firearms rights.