Gun ban for domestic violence offenders means cities must take new steps.
In its final funding bill for this year, Congress added provisions that make it illegal for anyone who has been convicted of a misdemeanor crime of domestic violence to possess, ship, transport, or receive any firearm or ammunition whether it be government-issued or privately owned. The new law also makes it illegal for any person to sell or otherwise dispose of a firearm or ammunition to any person knowing or having reasonable cause to believe that the recipient has been convicted of such a misdemeanor. The law applies to persons at any time prior to or after the passage of the law, which took effect September 30, 1996. There is no exemption for any law enforcement officer and agent or military personnel. The penalty to an individual for failure to comply - which includes municipalities or police chiefs - could result in felony criminal penalties, including a sentence of imprisonment of up to ten years and a fine of up to $250,000 as well as administrative action. While compliance requirements fall mainly on the shoulders of the convicted officer, there is potential for civil or criminal liability on the part of police chiefs, other police personnel and local governments.
Under the new law, the term "misdemeanor crime of domestic violence" means an offense that is a misdemeanor under Federal or State law. It must also have, 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 be a person similarly situated to a spouse, parent, or guardian of the victim.
This definition includes all misdemeanors that involve the use or attempted use of physical force (e.g. simple assault, assault and battery) if the offense is committed by one of the defined persons. This is true whether or not the State as a domestic violence misdemeanor.
For one who has been convicted of a misdemeanor crime of domestic violence, the prohibition on the possession of firearms and ammunition does not apply if the individual has received a pardon for the crime, the conviction has been expunged or set-aside, or the person has had civil rights restored (if there was a loss of civil rights) AND the person is not otherwise prohibited from possessing firearms or ammunition.
Impact on Local Law Enforcement
Law enforcement officers and other government officials who have been convicted of a qualifying misdemeanor can not lawfully possess or receive firearms or ammunition for any purpose - including performing their official duties. This applies to firearms and ammunition issued by government agencies, firearms and ammunition purchased by officials for use in performing their official duties, and personal firearms and ammunition possessed by such officials.
The new law amends the Brady Handgun law with respect to background checks and waiting periods. Under the Brady law, the Chief Law Enforcement Office (CLEO) is to take "reasonable effort" to determine whether a prospective buyer's receipt of a hand-gun would be in violation of the law, what constitutes a "reasonable effort" is determined by each law enforcement agency based on its own circumstances. In other words, the availability of resources, access to records, and the law enforcement priorities of the jurisdiction.
The "reasonable effort" standard remains unaltered by these new provisions. According to John Mcgaw, Director of the Bureau of Alcohol, Tobacco and Firearms (ATF), it remains the discretion of the CLEO to determine what effort is reasonable. For example, even if the CLEO determines a misdemeanor assault conviction has occurred, it remains fully within the CLEO's discretion to determine whether to make further inquiry.
ATF has issued guidance to employers (i.e. chiefs of police) of persons authorized to possess government-issued firearms and ammunition. In this notice, a law enforcement officer that is affected by the new law may not possess any firearm or ammunition and must return any government-issued firearm or ammunition to his or her immediate supervisor. Any previously issued authorization to possess a firearm or ammunition is revoked. The AFT guidance packet includes a "Qualification Inquiry" to be completed by all federal law enforcement officers and a "Model Letter to State and Local Agencies."
ATF recommends that local law enforcement agencies check to see if any of their officers or employees are affected by the new law. They encourage officials subject to this new law to surrender their firearms and ammunition to a third party, such as an attorney, local police agency, or a firearms dealer. The agency is advised to temporarily and for a reasonable time, assign the individual to duties that do not require the use of a firearm, advise the individual that he or she has a certain time frame during which they might have either the conviction expunged or set aside by the court - receive a pardon, advise the local ATF office, terminate the individual if within a responsible amount of time the conviction is not expunged or a pardon obtained. If the individual refuses to do so their firearm or ammunition, and the agency is without authority to retain or seize the firearm or ammunition, then the local ATF office should be notified.
The officer or employee should also be advised that if he or she possesses personal firearms or ammunition, they should deliver it to an authorized party until the matter is resolved.
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|Title Annotation:||includes related article on liability of municipalities|
|Publication:||Nation's Cities Weekly|
|Date:||Jan 13, 1997|
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