West Virginia Citizens Defense League, Inc.
PO Box 11371 | Charleston, WV 25339-1371
 
Defending Your Right to Defend Yourself
 

WVCDL-ALERT
Special Report
June 7, 2010
 
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4th Circuit Significantly Limits the Lautenberg Amendment
This is an e-mail you will want to keep and forward to every fellow gun owner you know.
 
Gun owners in West Virginia and many other states whose right to possess a firearm may have been denied because of a conviction for a "misdemeanor crime of domestic violence" may no longer be prohibited from possessing firearms based on a decision last week by the U.S. Court of Appeals for the 4th Circuit, which covers West Virginia.
 
In the case of U.S. v. White (PDF), the 4th Circuit held that a conviction in Virginia for simple assault, without evidence in the record of conviction showing the use or attempted use of "physical force," did not constitute a "misdemeanor crime of domestic violence" for which federal law prohibits the possession of firearms.
 
The 4th Circuit's decision in U.S. v. White is in line with decisions of the 7th, 9th, and 10th circuits on this question and several recent decisions of the U.S. Supreme Court interpreting the meaning of "physical force" as it is used in several other federal laws.
 
Read below for my extensive legal commentary on the implications of this decision in West Virginia--and West Virginia's more restrictive state law banning guns for domestic violence offenders that is not affected by this decision and remains in full force and effect.
Richmond Times-Dispatch Article on 4th Circuit Decision
 
Some fear voiding of Henrico man's gun conviction could hamper abuse cases
 
By Frank Green
 
Published: June 4, 2010
 
Authorities fear a recent appeals court ruling could cripple enforcement of a federal law barring persons convicted of misdemeanor domestic violence from possessing a firearm.
 
A three-judge panel of the 4th U.S. Circuit Court of Appeals on Tuesday tossed out a firearm conviction against William S. White, who was previously convicted in Henrico County of misdemeanor assault and battery in a domestic violence case.
 
The panel's ruling focused on the definition of "physical force." The judges held that in the federal firearm law, it means force capable of causing pain or injury, something not necessarily required for a misdemeanor domestic violence conviction under Virginia law.
 
White's lawyer, Eric H. Kirchman, said yesterday that "I'm pleased, and I'm sure Mr. White is very pleased." It was unclear yesterday if or when White, held in a federal prison in Kentucky, would be released.
 
Peter Carr, a spokesman for the U.S. attorney's office for the Eastern District of Virginia, said: "We are exploring our options, which may include an appeal." The government could ask for the full court of appeals to reconsider it, or appeal to the U.S. Supreme Court.
 
"We are reviewing the decision, which appears to hamper our ability to use a statute that has helped reduce violent crime in Richmond," Carr said.
 
In a brief filed this year, the U.S. attorney's office warned that such a ruling could mean a "very large percentage of misdemeanor domestic assault and battery convictions" may no longer be covered by the federal firearm law.
 
In addition to Virginia, the Richmond-based 4th Circuit covers appeals in Maryland, West Virginia, North Carolina and South Carolina -- all states that could be affected by the ruling.
 
The federal law, carrying punishment of up to 10 years in prison, bars the possession of a firearm after a conviction in any court for a misdemeanor crime of domestic violence. White, 25, was convicted in Henrico General District Court [JM: Virginia's equivalent of a magistrate court] in 2004.
 
In 2008, he was indicted in U.S. District Court for possessing a firearm after he was convicted of a misdemeanor crime of domestic violence. He entered a conditional guilty plea that preserved his right to appeal and was sentenced to 57 months in prison.
 
The federal law defines domestic violence, in part, as the use or attempted use of "physical force."
 
White argued that under Virginia law a person can be convicted of domestic violence without the use of "physical force," since Virginia follows the common-law definition of "battery," which can include even the slightest offensive touching.
 
Virginia general district courts are not courts of record, and as far as the facts of White's domestic assault conviction are concerned, all that is known from the record is the date, Aug. 25, 2004, and that the charge was "assault and battery" on a child.
 
The appeals court said it had to decide whether, as the government contends, "physical force" means even the slightest offensive touching, or, as White argues, the definition of "physical force" in federal law requires more than intentional touching that causes no injury.
 
U.S. District Judge Robert E. Payne, in Richmond, sided with the government.
 
But the appeals court reversed him, holding that a conviction of assault and battery in Virginia would not, in and of itself, necessarily qualify as a misdemeanor crime of domestic violence under the federal firearm law.
 
Since there is no "record" of White's Henrico crime that shows he committed a "misdemeanor crime of domestic violence," the judges reversed his conviction.
 
Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com.
Good News: Most "Domestic Violence" Convictions in West Virginia do NOT bar firearms possession as a matter of federal law under 4th Circuit's White decision
To begin, federal law (18 U.S.C. 922(g)(9)) prohibits any person who has been convicted of a "misdemeanor crime of domestic violence" from possessing firearms.
 
What is a "misdemeanor crime of domestic violence"?  under 18 U.S.C. 921(a)(33):
 
(A) Except as provided in subparagraph (B), the term "misdemeanor crime of domestic violence" means an offense that--
 
        (i) is a misdemeanor under Federal, State, or Tribal law; and
       (ii) has, as 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 cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

    (B)(i) A person shall not be considered to have been convicted of  such an offense for purposes of this chapter, unless--

        (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
        (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
            (aa) the case was tried by a jury, or
            (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

    (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the 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.
 
That may be a lot to digest.  Now, let me explain it more clearly.
 
My sole focus is on the part of 18 U.S.C.  921(a)(33)(A)(ii) that deals with "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon," since it is also the sole focus of the 4th Circuit's decision in U.S. v. White.
 
In a nutshell, a crime is only a "misdemeanor crime of domestic violence" under federal law if, for the state to get a conviction, it had to prove as part of its case that the defendant:
  1. Used "physical force"
  2. Attempted to use "physical force" or
  3. Threatened the use of a deadly weapon.
If one of those three things was not an element of the crime, then the crime does not qualify under federal law to disqualify the defendant from possessing firearms as a matter of federal law.
 
The most common domestic violence-related crime is battery.  WV Code 61-2-9(c) provides: "If any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than five hundred dollars, or both such fine and imprisonment."  (Note: There is a separate statute, WV Code 61-2-28(a), domestic battery, which has the same provisions as the general battery statute but applies only when there's a domestic relationship between the defendant and victim. However, this distinction is not relevant to this discussion.)
 
Like most states, West Virginia's battery statute follows the "common law model" that is still used in about half of the states, including Virginia, under which even the slightest touch is enough to commit the crime.
 
The 4th Circuit, at least 3 other circuits and, in cases dealing with different federal laws but in which the same "physical force" phrase was an issue, the U.S. Supreme Court, have all said that "physical force" only occurs when there is an "active, violent" level of force, not merely the insulting or provoking touch that completes the offense of battery in West Virginia, Virginia, and many other states.  Just 3 months ago, the U.S. Supreme Court, in a case called Johnson v. U.S., said "the phrase 'physical force' means violent force that is, force capable of causing physical pain or injury to another person."   The 4th Circuit quoted this decision in the second paragraph on page 17 of its decision in U.S. v. White.
 
Two paragraphs before that, in the last paragraph on page 16, the 4th Circuit said: "We see no principled basis upon which to say a 'crime of domestic violence' would include nonviolent force such as offensive touching in a common law battery."
 
The analysis of whether a particular conviction constitutes a "misdemeanor crime of domestic violence" does not stop there.  The U.S. Supreme Court has developed a test called the "modified categorical approach" under which the courts can determine whether a particular person's conviction qualifies under federal law by looking at the statute under which the person was convicted and the court records from the case in which that person was convicted to try to determine whether "physical force" was proven in that case.
 
Unfortunately, what I have to say next will unsettle some people.  The best--and only reliable--way to know for sure whether a person is actually disqualified from possessing firearms as a matter of federal law based upon a particular conviction is to consult a good attorney who is familiar with gun laws and have him or her examine your case.
 
I urge anyone who is questioning his or her ability to legally possess a firearm to consult an attorney for two important reasons: First, granting an opinion to another person about the other person's legal rights and obligations under his or per particular circumstances constitutes the practice of law, the unauthorized practice of which is itself a crime.  Second, the stakes are high: If you and your attorney do not do a thorough job of evaluating your past misdemeanor conviction(s) and you purchase or possess a firearm even though you are subject to the federal prohibition on firearms possession, you will have committed a federal felony punishable by up to 10 years in federal prison, a $250,000 fine, and a brand new, lifetime prohibition on possessing firearms (unless you subsequently manage to get a presidential pardon).
 
Finally, on federal law issues, you will notice above that there are several exceptions to what constitutes a "misdemeanor crime of domestic violence." I have not discussed those options here.  However, if a person chooses to consult an attorney about checking his or her ability to legally possess firearms as a matter of federal law, he or she should not forget to check these exceptions as part of the overall analysis of an individual case.
 
On the federal law front, this is a very positive development for gun owners.
Bad News: West Virginia state law more restrictive than federal law
Now, for the bad news (at least somewhat): West Virginia state law (WV Code 61-7-7(a)(8) imposes a much tougher firearms prohibition on domestic violence offenders than federal law.
 
WV Code 61-7-7(a)(8) prohibits a person from possessing firearms in West Virginia if he or she "Has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence."
 
Our state law is tougher than the federal law in 4 ways:
 
  1. The federal law does not apply to "antique firearms," such as muzzle-loaders.
  2. The state law applies to cases in which the victim was a "current or former sexual or intimate partner," which is a category of covered victims not included in the federal law.
  3. The state law applies to all assault and battery convictions, regardless of the level of force involved, without the nuance of federal law.
  4. The state law does not contain the federal law exceptions for cases in which the person has received a pardon or expungement of the conviction.
 
I was not involved in the legislative process at the time the current state law domestic violence disqualifier was passed in 2000.  Obviously, at that time, everyone (including lawyers) made the badly-mistaken assumption the federal law covered all assaults and batteries. That obviously is not the case.  The other differences I attribute to general legislative sloppiness and incompetence. and the lack of a WVCDL 10 years ago.
 
The state law also provides a procedure for individuals who are prohibited from possessing firearms to petition the circuit court of the county in which the person resides to grant the person relief from the state law firearms disability.  In my private law practice, I am currently representing a client who is petitioning his circuit court for relief from disability.  We just filed this petition last week, so there is nothing yet to report on how the case has proceeded or its outcome.  these petitions are not filed frequently, largely because the state law requires a petitioner to show that he or she is not prohibited by federal law from possessing firearms and, until now, the overreach of the state law over the federal law was not apparent.
 
Unless a person has been granted relief from disabilities by the circuit court as provided by WV Code 61-7-7(c), he or she may not, as a matter of state law, legally possess a firearm in West Virginia even the person is not prohibited by federal law from doing so.
 
Unfortunately, even if a person is granted relief from disabilities by the circuit court, he or she remains disqualified from obtaining a West Virginia concealed handgun license. WV Code 61-7-4(a)(6) provides as one of the conditions of eligibility for a concealed handgun license: "That the applicant has not been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine, article two of this chapter in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense; or a misdemeanor offense with similar essential elements in a jurisdiction other than this state[.]"  There is no exception for individuals who have been granted relief from disabilities by the circuit court.
 
DUCT TAPE ALERT!
 
To add insult to injury, only a handful of states have passed legislation copying or attempting to copy the federal law.  Most have done so only to the extent they incorporate federal law by reference into their concealed weapon licensing laws; few go as far as to restrict or prohibit the simple ownership and possession of firearms as West Virginia does.  Even Maryland has not gone down this road!
 
To end bad news with good, WVCDL is exploring options for amending the language in WV Code 61-7-7(a)(8) and WV Code 61-7-4(a)(6) to apply only to the extent of federal law.
 
There are tens of thousands of honest, decent fellow West Virginians who are being separated from their right to defend themselves and their families, by past acts of legislative incompetence and the need to spend hundreds (if not thousands) of dollars in legal fees to get relief from disabilities under the current law.
 
As I hope you have discovered by now, changing laws is not easy.  WVCDL needs your help now and during the next legislative session.
Conclusion: If in Doubt, Seek Legal Advice from an Attorney
Although I mentioned it above in the piece about federal law, I will repeat it in closing: If you have any reason to suspect you may be prohibited by either federal or state law from possessing firearms, the only viable option you have is to seek legal advice from a licensed, practicing attorney who has the knowledge and skill to help you through what, at least on the federal law level, is a legal minefield.
 
Remember:
 
  1. Only licensed, practicing attorneys may give another legal advice about his or her legal rights and obligations in light of that person's specific factual situation.
  2. The consequences of an incorrect determination that a person is not prohibited by federal law from possessing firearms are severe: up to 10 years in federal prison and/or a $250,000 fine.
  3. All the information I presented above is intended to give a mere overview of the law and is not legal advice applicable to any one person's specific situation.  If you want legal advice, you will need to contact an attorney to represent you individually, who will then be able to look at all the facts of your case and carefully research and analyze all the potential legal implications of your specific situation before giving you legal advice.
  4. WVCDL's 2010 Legislative Candidate Surveys are here.
  5. Election Day is Tuesday, November 2, 2010.
  6. WVCDL Lobby Day 2011 will be on Monday, February 21, 2011, at the State Capitol.
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James M. "Jim" Mullins, Jr., Esq.
 
Founder, Past President, Legislative Director, and General Counsel
West Virginia Citizens Defense League, Inc.
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In This Issue
4th Circuit Significantly Limits the Lautenberg Amendment
Richmond Times-Dispatch Article on 4th Circuit Decision
Good News: Most "Domestic Violence" Convictions in West Virginia do NOT bar firearms possession as a matter of federal law under 4th Circuit's White decision
Bad News: West Virginia state law more restrictive than federal law
Conclusion: If in Doubt, Seek Legal Advice from an Attorney
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