In addition to some of the common criminal laws and statutes regarding the Commonwealth of Massachusetts, there is also a parallel system of federal laws which applies to all citizens living within any state in our nation.
One such law that may be unknowingly violated is the Lautenberg Amendment of the Gun Control Act of 1968, 18 U.S.C. § 922(g)(9), which states that it is unlawful “for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to … possess in or affecting commerce, any firearm or ammunition.”
The issue of what sorts of domestic violence convictions count under this federal law was recently reviewed by the United States Court of Appeals, First Circuit, which is the federal court to which all Massachusetts district court cases are appealed.
In the case, US v. Armstrong, 706 F. 3d 1, Ct. App., 1st Cir. (2013), the defendant had been convicted of domestic assault, as the result of a disagreement with his wife which involved pushing, and eventually hitting her “hard.”
Then, two years later, pursuant to a search warrant for drug paraphernalia and/or marijuana possession, Maine State Police conducted a search of the defendant’s residence. During the search, the police discovered six firearms and a large amount of ammunition. As the items did not fall within the scope of the warrant, the state police informed the relevant federal agency, letting them know that the defendant was a prohibited person, and had firearms in his residence. The defendant’s wife then called a family friend who removed the firearms and brought them to his residence, where he had another firearm belonging to the defendant. The relevant federal agency then executed a search warrant at the defendant’s residence, where they recovered some 1,300 rounds of various ammunition, but no firearms. After subsequent information gathering, they learned of the defendant’s friend, and were taken to that individual’s residence, where they recovered the defendant’s seven firearms being kept there.
The defendant was then arrested and charged with one count of violating § 922(g)(9). In a pre-trial motion to dismiss the indictment, the defendant argued that the statute did not apply in his case, because his prior conviction was “non-violent,” and that the statute violated his Second Amendment right to keep and bear arms. The district court denied the motion, and the defendant entered a guilty plea conditioned on his right to appeal the denial of the motion to dismiss. The defendant ultimately entered into a plea bargain, and then appealed.
The issues before the court, then, were whether 18 U.S.C. § 922(g)(9) should be construed to exclude the type of misdemeanor offenses which the defendant committed, which can be considered non-violent; and whether applying the statute to such a prior conviction would violate the defendant’s Second Amendment rights.
The court engaged in a discussion of Congress’s intent in passing the section, which was in response to a nationwide concern regarding domestic violence and gun possession.
The defendant argued that, while he “engaged in offensive physical contact with his wife,” his conduct did not meet the violence required by the federal statute. The court then stated how it has found the phrase “misdemeanor crime of domestic violence” to be unambiguous, and that Congress intended to encompass these kinds of crimes into those falling within the statute.
Regarding his second amendment challenges, the court recounted its opinion in a prior case, that “We held that § 922(g)(9) substantially promotes an important government interest in preventing domestic gun violence,” thus that the law was constitutional.
The court rejected the defendant’s attempted argument that, although he was adopting the same arguments as the individual in the prior case, in this case it was an “as applied” challenge, rather than the facial challenge in the prior case. However, the court rejected that argument, finding that the government’s interest in both cases, of keeping guns out of the hands of those known to have violent propensities, is the same, and therefore a constitutional proscription against gun ownership.
What was curiously not discussed in the case was the fact that the guns were not in the defendant’s possession, even though he was convicted under the statute as having been owner of them. This is perhaps because even though they were not in his possession, he was still the legal owner. It is also interesting that the court failed to mention the fact that the guns were discovered pursuant to a non-applicable warrant. These are factors that defense counsel could potentially challenge as having made the resulting evidence inadmissible although, as there was no evidence of wrongdoing, this might have not been a possibility in the case at hand.
If you have been arrested and charged with a Massachusetts firearm or weapon violation, consult with an attorney who has the specialized knowledge necessary to represent you in this area. A failure to do so can lead to disastrous consequences including loss of your freedom, heavy fines or loss of gun rights. Contact the Law Office of Patrick J. Murphy today to discuss your firearms or weapons violation case. Call Attorney Murphy today at 617-367-0450 or contact us through this website.
More Blog Posts:
U.S. Supreme Court Rules in Favor of Defendant in Mandatory Minimum Case Alleyne v. U.S., Boston Criminal Defense Lawyer Blog, published December 19, 2013
Court of Appeals Ruling Affirms Prior Conviction Record Insufficient to Establish Identity, Boston Criminal Defense Lawyer Blog, published December 11, 2013