By Bruce E. Chase
If you practice Family Law, if you handle
Domestic Violence matters, and if your client list includes law enforcement
officers, take note, knowledge of the Federal Firearms Law and the accompanying
Lautenberg Amendments is essential.
Federal law now makes it unlawful for any
person who has a prior conviction for a "misdemeanor crime of domestic
violence" to ship, transport, or receive firearms or ammunition. Federal
law further makes it unlawful for any person to sell or provide firearms or
ammunition who has a prior conviction for any such offense, if the provider
knows or has reasonable cause to believe that the person has such prior
conviction. 18 U.S.C.A 922 d(9), g(9). Federal, state and local officers and
employees who carry firearms in the course of the performance of their duties
are not exempt from this law. 18 U.S.C.A. 925. The law imposing these new
restrictions became effective on September 30, 1996. However, the restrictions
imposed apply regardless of the date of the conviction and regardless of the
date of the commission of the "misdemeanor crime of domestic
violence."
What is a "misdemeanor crime of domestic
violence?" That determination is based upon federal law. The perpetrator
and the victim must have a relationship covered by the law and the offense must
have specified violent elements. The offense must be a "misdemeanor"
within the meaning of federal law. The offender must have been represented by
counsel or waived the right to counsel. Finally, the conviction must be one that
has not been expunged, set aside, or pardoned.
RELATIONSHIP. The federal law applies
only if the perpetrator is (1) the current or former spouse of the victim, (2)
the parent or guardian of the victim, (3) a person with whom the victim shares a
child in common, (4) a person who is cohabiting or has cohabited with the victim
as a spouse, parent, or guardian, or (5) a person who is similarly situated to a
spouse, parent, or guardian of the victim.
ELEMENTS OF VIOLENCE. The law applies
to offenses involving (1) the use or attempted use of physical force, or (2) the
threatened use of a deadly weapon. If a particular offense under state law has
alternate elements (for example, simple assault pursuant to N.J.S.A. 2C:12-1 can
be committed by negligently causing injury with a deadly weapon or by attempting
by physical menace to put another in fear of imminent serious injury) then the
conviction is based upon facts that illude the use or attempted use of physical
force or the threatened use of a deadly weapon.
MISDEMEANOR. The federal law applies to
an offense that is a misdemeanor under federal or state law. While New Jersey
does not have misdemeanors, it is anticipated that disorderly persons offenses
will be construed as misdemeanors.
COUNSEL AT TIME OF TRIAL OR PLEA. A
conviction for a misdemeanor crime of violence does not give rise to application
of the federal law if the person was not represented by counsel or if the person
did not knowingly and intelligently waive the right to counsel at the time of
trial or guilty plea.
EXPUNGEMENT AND PARDON. If a conviction
has been set aside or expunged, it is not considered a conviction under the
federal law.
Every state and local government agency that
requires or permits officers to carry firearms in the course of performance of
their duties has taken steps to determine whether any of its officers are
subject to these federal restrictions. The Federal Firearms Qualification
Inquiry Form has been distributed by each of these agencies. In the event that
an officer is covered by the federal law, the officer (1) may not possess any
firearm and (2) must return any Government issued firearm to the officers
immediate supervisor. Since the federal statute makes it illegal for the officer
to possess any firearm, such person is no longer qualified to obtain a firearms
purchaser identification card or permit to purchase a handgun under N.J.S.A.
2C:58-3c; and (3) any previously issued firearms purchaser identification card
is revoked and must be returned.
If your client has previously been found to
have committed an act of domestic violence under our Domestic Violence Law,
(Title 2C): and has been notified of the application of the federal law, you
must first secure a transcript of the prior proceedings. Was your client found
to have committed a misdemeanor crime of domestic violence? Was your client
represented by counsel? If not,was your client properly advised of the right to
counsel and was the waiver made knowingly and intelligently?
If you have consulted with a member of law
enforcement involved in a divorce action or considering a divorce action, you
must advise that client of the dire consequences that may result from any act of
domestic violence. Advise your client that generally, judges hearing domestic
violence cases err on the side of protecting the victim and finding that an act
of domestic violence occurred. While economic realities may not allow it, any
member of law enforcement involved in a divorce action would be wise to move
from the marital residence. Finally, should your client’Äôs spouse file a
domestic violence action, it would be wise to consider negotiating a consent
order using the docket number of the divorce action, and incorporating the
domestic violence restraints, in exchange for a voluntary withdrawal of the
domestic violence complaint.
Bruce E. Chase is President of the Bergen
County Bar Association and a partner with Chase and Chase, Esq. in Hackensack,
New Jersey.
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