Issues of domestic-violence crimes within governmental employment

Government attorneys may on occasion have cause to review the effects of domestic-violence convictions or the issuance of restraining-orders upon their office’s workforce. In particular, for those positions in law enforcement, military service, or other occupations that require the capability to carry a firearm as a condition of employment, a domestic-violence conviction very well may affect an employee’s ability to continue in his or her position. The Gun Control Act of 1968, 18 U.S.C. Chapter 44, provides generally that felons (normally persons convicted of a crime punishable by imprisonment of more than one year (18 U.S.C. §922)) cannot possess a firearm or ammunition. The Gun Ban For Individuals Convicted of a Misdemeanor Crime of Domestic Violence (18 U.S.C. §921 et seq. (1996)) adds, as the amendment’s title reflects, individuals convicted of misdemeanor domestic-violence crimes (assault and/or battery) to the prohibition on possessing firearms or ammunition. This additional restriction, in part, attempts to prevent the escalation of hostilities in domestic-violence situations by removing access to firearms (both personally-owned and government-issued) from any future conflict. The measure is commonly referred to as the “Lautenberg Amendment” named after the legislation’s primary sponsor, Senator Frank Lautenberg of New Jersey, who served several terms in Congress from 1982 through 2013.

The interplay between the prohibitions enacted for felony convictions and misdemeanor domestic-violence convictions, however, provides for some initial perplexity in application due to a statutory gap. While there is a governmental exception to the felony conviction restriction that technically enables public law enforcement or military service-members with a felony conviction to still use a government-issued weapon in the line of duty (18 U.S.C. §925), the same exception does not exist for a law enforcement employee or military service-member convicted of a domestic-violence crime. As a result, an anomalous situation is hypothetically possible for one to be convicted of felony domestic-violence and be allowed to carry an issued firearm on duty, while a co-worker convicted of a misdemeanor domestic-violence crime could be discharged or assigned to a non-firearm carrying position. In practice, however, most hiring jurisdictions, personnel laws, or human-resource policies prohibit the employment of individuals in law enforcement or in the military if a felony conviction occurs. There are several reasons for this, including: (i) suspect duplicity in future enforcement actions; and (ii) personnel being subject to impeachment during official testimony.

To avoid the possibility of such anomalous situations arising, Army Command Policy, AR 600-20 and Department of Defense Instruction, 6400.06 expand the prohibition on firearm possession to both felony and misdemeanor domestic-violence convictions for members of the armed forces. As may be surmised, there are very few positions as a sworn-officer or as a military service-member that do not require the possession of a firearm. Therefore, a domestic-violence conviction often forces a career change. Of note is the domestic-violence restriction on possessing a firearm which applies retroactively to any conviction and is not limited to only those convictions occurring after the effective date of the law. Thus, the prohibition also applies to certain domestic-violence convictions imposed before the passage of the Lautenberg Amendment, as long as the conviction complied with due process, legal representation, and jury requirements.

Federal law defines a crime of domestic violence to include offenses consisting of “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.” 18 U.S.C. §921. While the federal definition is broadly worded to capture most jurisdictional provisions for these types of crimes, each State has differing elements or terms within its domestic-violence statutes. For example, after receiving a conviction of domestic battery or aggravated domestic battery in Illinois, sections 12-3.2 and 12-3.3 of the Criminal Code of 2012 (720 ILCS 5/12-3.2, 12-3.3) mandate that the court admonish the offender that “an individual convicted of domestic battery may be subject to federal criminal penalties for possessing, transporting, shipping, or receiving any firearm or ammunition in violation of the federal Gun Control Act of 1968.”

Federal law also criminalizes the actions of anyone who transfers firearms to a person subject to the prohibition, if the transferor knew or had reason to know that the receiver had a domestic-violence conviction. 18 U.S.C. §922. This provision generally requires knowledge of credible, substantive information by the transferor and would apply to the employee or commander who authorizes or assigns service-weapons or issues these weapons. To alleviate the burden on the prospective transferor of the weapon, most jurisdictions require affirmative disclosure by the offender of both felonies and domestic-violence convictions.

In addition to felony and domestic-violence convictions, the firearm prohibition applies to certain restraining or protective orders issued in domestic-violence cases. In the case of these orders (as with felonies), the law still allows for a restraining-order exception for governmental units, 18 U.S.C. §925, but only for use of government-issued service-weapons. Possession of personal firearms could still be prohibited while the order is effective. For this restriction to apply, the restraining/protective order must have been issued by the court after a two-party hearing with proper notice and an opportunity to be heard given to the defendant. Thus, the federal prohibition on firearms possession would not necessarily be enforced as a result of a temporary restraining order issued by the court after an ex parte hearing. Additionally, the court order must include a determination paralleling that the person presents a credible threat to the partner or child and must explicitly prohibit “the use, attempted use or threatened use of physical force.” 18 U.S.C. §922. Most courts’ forms for these types of orders generally have an option to also specifically prohibit the use or possession of firearms by the subject of the order.

As has been introduced in this synopsis, domestic-violence convictions and restraining orders may affect the government workforce in several distinct ways. Please note that the cited federal and State statutes are merely a starting point from which to begin associated legal research. Please consult the subject law and the pertinent rules and regulations directly for further details on the applicable requirements and obligations generally affecting governmental employees, as well as their public employers. Please also note that in describing the effects on the careers of the convicted domestic-violence offenders, this article in no way seeks to lessen the focus upon the more significant effects on the victims of the underlying crimes. ■

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December 2014Volume 16Number 1PDF icon PDF version (for best printing)