Courts Continue to Sustain the Constitutionality of Federal Laws Addressing Domestice Violence

November 1, 2000

Jennifer DeCarli

This article focuses on the constitutional challenges lodged against federal firearm laws. In the next issue of the Legal Services Journal, New York State laws specifically addressing firearms and orders of protection (FCA §842-a, CPL §530.14 and DRL §240(3) and §252,) and the interplay of federal firearm law and New York laws will be discussed.

The federal laws addressing firearms were enacted as part of the 1996 amendments to the Gun Control Act of 1968. The laws are contained in 18 U.S.C. §922(d)(8), (d)(9), (g)(8) & (g)(9) and address the possession and transfer of firearms to individuals convicted of qualifying misdemeanor crimes of domestic violence and to individuals subject to court orders restraining such individuals from harassing and threatening intimate partners.

Definitions Relevant to Federal Firearm Laws

The definition of firearms under federal law is contained in 18 U.S.C. §921(a)(3) and is much broader than the New York definition, contained in Penal Law §265.00. The federal definition of firearms includes any weapon which will or is designed to, or may readily be converted to, expel a projectile by the action of an explosive; the frame or receiver of any such weapon, any firearm muffler or firearm silencer or a destructive device. Only antique firearms are specifically excluded from this definition.

The definition of intimate partner defined in 18 U.S.C. §921(a)(32) means the spouse of the person, a former spouse of the person, an individual who is a parent of a child of such person, and an individual who cohabits or has cohabited with such person. This definition is broader than New York's limited definition of a family and household member. (See F.C.A. §812 and C.P.L. §530.11) As such, the federal laws will apply to both Family Court, Supreme Court and Criminal Court orders of protection issued between family and household members as well as those issued in Criminal Court to individuals that live together or have lived together in the past.

Specific Federal Firearm Laws Addressing Domestic Violence

According to 18 U.S.C. §922(g)(8), it is unlawful for any person to possess a firearm who is subject to a court order that was issued after a hearing of which such person received actual notice and had an opportunity to participate and the order restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child AND the order includes a finding that the person represents a credible threat to the physical safety of such intimate partner or child OR by its terms the order explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

Applying the above to the standard order of protection issued in New York, any order of protection issued in a court proceeding in which the individual had notice and an opportunity to participate and the order of protection is a restrain from order that prohibits the use, attempted use or threatened use of physical force against an intimate partner or child is subject to this federal prohibition against the possession of firearms. Importantly, as consent orders are typically entered in Family Court, whereby no finding of wrongdoing is entered but the respondent consents to an order being entered against him, this provision is being interpreted as applying to such consent orders(1). The argument is that as long as the respondent had notice of the order and an "opportunity" to participate, he/she chose to consent to the order and as such the federal law does apply.

There is an official use exemption to the above provision, which is contained in 18 U.S.C. §925. It states that the above restriction does not apply to firearms issued to a law enforcement officer or military personnel as long as the officer is on duty. As police departments have varying definitions of on duty, it is important to check with the specific police department as to what their definition of on duty is.

The counterpart to the above provision is 18 U.S.C. § 922(g)(9) which prohibits the possession of a firearm after a conviction of a qualifying misdemeanor crime of domestic violence. The qualifying misdemeanor crime of domestic violence must have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon and due process requirements must be met. This is a retroactive statute and there is no official use exemption for this statute. Thus, any law enforcement officer or military personnel who has ever been convicted of a qualifying misdemeanor crime of domestic violence can not possess a firearm unless the conviction has been expunged or set aside.

Lastly, there are two federal firearm laws that address the transfer of firearms. 18 U.S.C. §922(d)(8) prohibits any person from knowingly transferring a firearm to a person subject to an order of protection that restrains such person from harassing, stalking or threatening an intimate partner or the child of such intimate partner. It may be challenging to establish a violation of this section as the supplier must knowingly transfer the firearm. Again, there is an official use exemption to this provision, contained in 18 U.S.C. §925, which states that this restriction does not apply to any firearms issued to a law enforcement officer or military personnel as long as the officer is on duty. Lastly, 18 U.S.C. §922(d)(9) prohibits the transfer of a firearm to a person convicted of a qualifying misdemeanor crime of domestic violence. This transfer must be knowing and there is no official use exemption for this section.

Challenges to Federal Domestic Violence Firearm Laws

Since their inception, there has been a substantial amount of litigation challenging the constitutionality of two of the above provisions - 18 U.S.C. 922(g)(8) & (9). The main constitutional arguments set forth by defendants convicted of these two offenses are that Congress exceeded its authority under the Commerce Clause when it passed the provisions and that the statutes violate their due process rights. The overwhelming majority of courts have rejected these arguments and affirmed the constitutionality of 18 U.S.C. 922(g)(8) & (9).

A recent case is illustrative of the courts' rulings on defendants' arguments under the Commerce Clause. In U.S. v. Visnich, 2000 WL 1141063 (N.D. Ohio), the Court denied the Defendant's motion to vacate his guilty plea and to reconsider his motion to dismiss the count of his indictment charging him with 18 U.S.C. 922(g)(8) in light of the recent Supreme Court decision in U.S. v. Morrison (120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)) (2). In denying the Defendant's motion, the Court found that the jurisdictional element contained in 18 U.S.C. §922(g)(8) that specifically prohibits individuals under a domestic relations restraining order from "shipping or transporting in interstate or foreign commerce, or possessing in or affecting commerce, any firearm or ammunition or receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce" satisfies the requirement under Morrison that a connection must exist between the regulated conduct and interstate commerce. Id at 2. Thus, based on this connection, 18 U.S.C. § 922(g)(8) and (9) pass constitutional muster under the Commerce Clause.

Further, the Court in Visnich rejected the Defendant's argument that courts should look into the actual connection between firearm possession and interstate commerce. It cited Justice Souter's dissent in U.S v. Morrison in rejecting this argument. Souter stated Morrison actually reaffirmed that for legislation to be constitutionally enacted pursuant to the Commerce Clause, there need only be a showing that "some item relevant to the federally regulated activity has at some time crossed a state line" (Id at 4, citing Morrison, supra at 1749-50). Thus, even in light of U.S. v. Morrison, the Court held that Congress acted within its Commerce Clause power when enacting 18 U.S.C. §922(g)(8).

The due process argument has generated the most litigation. Defendants argue that 18 U.S.C. §922(g)(8) & (9) violate their due process rights under the 5th Amendment since they did not have actual notice that the federal law prohibits the possession of firearms while subject to a state order of protection or that they can not possess a firearm after being convicted of a misdemeanor crime of domestic violence. As the statute requires the prosecution to prove that the defendant knowingly violated 18 U.S.C. §922(g)(8) and (9), defendants' argue that they did not know their conduct was in violation of this federal law.

Three recent Court of Appeals decisions have rejected the defendants' arguments that their convictions under 18 U.S.C. §922(g)(8) and (9) violated their due process rights. U.S. v. Kafka, 2000 WL 1191056 (9th Cir. (Wash.)), U.S. v. Hutzell, 217 F.3d 966 (C.A. 8 (Iowa) 2000), U.S. v. Bunnell, 106 F.Supp.2d 60 (D. Maine, 2000). In Kafka, the Court affirmed Defendant's conviction under 18 U.S.C. §922(g)(8) and rejected the Defendant's argument that his due process rights were violated because he was not given notice that he was prohibited from possessing firearms under federal law. Supra at 1. In U.S. v. Hutzell, the Court rejected the Defendant's argument that his conviction under 18 U.S.C.§922(g)(9) violated due process as he was not aware that his conduct was illegal. Lastly, in U.S. v. Bunnell, the Court rejected the Defendant's argument that his due process rights were violated as the order of protection was issued after a hearing at which he had notice of but chose to not attend.

These recent Court of Appeals decisions are in agreement with every circuit court that has ruled on this issue as well as most district courts. U.S. v. Reddick, 203 F.3d 767 (10th Cir. 2000), U.S. v. Beavers, 2000 WL 174861, (6th Cir. (Mich.), cert denied by Beavers v. U.S., 120 S.Ct.1989 (U.S.May 15, 2000), U.S. v. Mitchell, 2000 WL 309298, (4th Cir. (Va.) 2000), U.S. v. Baker, 197 F.3d 211 (6th Cir. 1999), cert denied by Baker v. U.S., 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000), U.S. v. Lewitzke, 176 F.3d 1022 (7th Cir., (Wisc.) 1999), U.S. v. Meade, 175 F.3d 215 (1st Cir., 1999), U.S. v. Spruill, 61 F.Supp. 2d 587 (W.D. Texas, 1999), U.S. v. Wilson, 159 F.3d 280 (7th Cir. 1998), cert denied, 527 U.S. 1024, 119 S.Ct. 2371, 144 L.Ed.2d 774 (1999).

In rejecting the argument that 18 U.S.C. §922(g)(8) and (9) violate due process, the courts have looked to Supreme Court precedent interpreting the knowledge requirement of a statute. See Bryan v. United States, 524 U.S. 184, 193, 118 S. Ct. 1939. Based on Bryan, the courts have held that the prosecution need only prove the defendant had knowledge regarding the facts of the offense and not that the defendant knew his conduct was illegal.

Further, the courts have consistently adhered to the old legal maxim "ignorance of the law is no excuse" and refused to find 18 U.S.C. §922(g)(8) & (9) as falling within the narrow exception to this maxim carved out by the Supreme Court in Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957). In Lambert, the Supreme Court found unconstitutional a Los Angeles Municipal Code provision which made it unlawful for any person convicted of a felony in California to be or remain in Los Angeles for a period of more than five days without registering with the Chief of Police. Id at 226. The Court recognized a narrow exception to this deep rooted legal maxim if two prerequisites are met: the conduct of the person who runs afoul of the law must be "wholly passive" and there must be an "absence of circumstances that would alert the person to the consequences of his deed." Id at 228.

In finding that 18 U.S.C. §922(g)(8) and (9) do not fall within the above Lambert exception, the courts have emphasized the difference between the statute in Lambert and 18 U.S.C. §922(g)(8) and (9). Lambert applies to wholly passive behavior whereby there is no reason the individual should suspect that he/she may be in violation of the law. Although the courts agree that the possession of firearms appears to be innocent conduct, the courts have found that the mere fact an order of protection has been issued against such person is sufficient to place that person on notice that their conduct may be subjected to increased government regulation. See U.S. v. Baker, 197 F.3d 211, 220 (6th Cir. 1999) (upholding 18 U.S.C. §922(g)(8) against due process challenge stating "The fact that Baker had been made subject to a domestic violence protection order provided him with notice that his conduct was subject to increased government scrutiny. Because it is not reasonable for someone in his position to expect to possess dangerous weapons free from extensive regulation."), U.S. v. Meade, 175 F.3d 215, 225-226 (1st Cir. 1999) (upholding 18 U.S.C. §922(g)(8) against due process challenge because an individual subject to protective order "would not be sanguine about the legal consequences of possessing a firearm"), U.S. v. Bostic, 168 F.3d 718, 722 (4th Cir. 1999) (upholding 18 U.S.C. §922(g)(8) against due process challenge stating that "like a felon, a person subject to a protective order cannot reasonably expect to be free from regulation when possessing a firearm.")

Only two lower level District Courts have reversed defendants' convictions under 18 U.S.C. §922(g)(8) and (9) as violating the defendants' due process rights. See U.S. v. Emerson, 46 F.Supp.2d 598 (N.D. Texas, 1999), U.S. v. Ficke, 58 F.Supp.2d 1071 (D. Neb. 1998). However, there have been strong dissents in two of the decisions that rejected the defendants' due process arguments. See U.S. v. Wilson, Supra at 293 -296 and U.S. v. Hutzell, Supra at 969 - 983. The dissents have emphasized the obscurity of the federal laws addressing domestic violence and the lack of notice and publication of the law. As such, the dissents have held that the laws should fall within the exception carved out by the Supreme Court in Lambert. Supra.

Conclusion

Recent Court of Appeals decisions continue to uphold the constitutionality of 18 U.S.C. §922(g)(8) and (9) and agree with all other circuit courts that have ruled on this issue. Further, certiorari continues to be denied in such cases. As such, it is unlikely that the defendants' constitutional challenges will ever be successful.

It is imperative to be knowledgeable about the federal firearm laws, especially in light of the fact that 18 U.S.C. §922(g)(8) is applicable in every order of protection proceeding in New York state at which the individual had notice of and an opportunity to participate. As long as the order of protection restrains the individual from harassment, stalking and/or threatening an intimate partner and/or a child of such intimate partner and it prohibits the use, attempted use or threatened use of physical force against an intimate partner or child, the individual is subject to this federal prohibition against the possession of firearms.

(1) Phone Conversation with Kathleen Mehltreter, Esq. Assistant U.S. Attorney, U. S. Attorney's Office, Western District of New York, April 26, 2000.

(2) The Supreme Court held that the civil rights remedy contained in the Violence Against Women Act was unconstitutional as Congress exceeded its authority under the Commerce Clause.