30 Jan Just get my guns back
Let’s talk about potential criminal consequences in federal court from a common fact situation in state court. Our client is charged with assault, communicating threats, and injury to personal property after a confrontation with her husband. Her husband prepared a civil petition for a Domestic Violence Protective Order pursuant to N.C.G.S. §50B and filed it while our client waited in jail to appear before a District Court Judge on the criminal charges. In the petition, the husband alleges that our client assaulted and threatened to shoot him with the gun she keeps under her pillow.
“I need by guns to protect myself.”
When we meet with our new client, she is especially riled that the Sheriff’s deputies took her guns. “Isn’t this America? I haven’t been convicted of anything. I need my guns to protect myself from that sorry son of a bitch. I don’t care how you handle it, just get my guns back.”
Of course, we want to keep our client out of jail, minimize the consequences of any conviction, and avoid a conviction altogether, if possible. In addition to potential criminal and civil consequences, we know that 18 U.S.C. §922(g) prohibits a person from possessing a firearm if she “(8)… is subject to a court order that … restrains [her] from harassing, stalking, or threatening an intimate partner … or (9) … has been convicted in any court of a misdemeanor crime of domestic violence.”
A straight-forward interpretation of this statute leads us to conclude that our client will lose her right to possess a firearm forever if she is convicted in this case of North Carolina’s assault statute, N.C.G.S §14-33. If her husband succeeds in his petition for a domestic violence restraining order, she will lose her right to possess a firearm for the period of the order.
So, let’s assume her husband cools off and decides keeping the children full time is harder than he expected. He dismisses the petition for a domestic violence protective order. Without the threat of a domestic violence protective order, we solved one problem, right? We will come back to that issue later.
The prosecutor is stubborn, however, and refuses to dismiss all the charges against our client. Without mentioning the goal of regaining her guns, we reach a compromise with the prosecutor. On her court date, our client pleads guilty to injury to personal property. The State dismisses the assault and communicating threats charges. The Court sentences our client to thirty days in jail and suspends the sentence for eighteen months on the conditions that she completes an alcohol program, performs community service, and “does not threaten, assault, or harass her husband.“ While we would have preferred a clean sweep, we are criminal defense lawyers and accustomed to defining victory broadly.
Most important to our client, (and no doubt peace in the community) we conclude that she regains her right to possess firearms immediately. Our client avoided a conviction for assault, which we understand would have prevented her from possessing a gun for a conviction of a “misdemeanor crime of domestic violence” pursuant to 18 U.S.C. 922(g)(9). The husband dismissed the civil petition for a domestic violence protective order, so our client is not subject to an order contemplated by 18 U.S.C. 922(g)(8). As it turns out, these conclusions are partially correct, but our analysis is completely wrong.
We are correct that our client is not permanently prohibited from possessing a firearm based on a conviction for a “misdemeanor crime of domestic violence” pursuant to 18 U.S.C. §922(g)(9). According to Fourth Circuit precedent, however, that would be true even if she pleaded guilty to the assault. The Fourth Circuit Court of Appeals held in United States v. Vinson, 805 F.3d 120, 125 (2015) that North Carolina’s assault statute does not qualify as a “misdemeanor crime of domestic violence.”
A crime qualifies as “misdemeanor crime of domestic violence” if it “(i) is a misdemeanor and (ii) has, as an element, the use or attempted use of physical force… committed by” someone within a domestic relationship. 18 U.S.C. §921(a)(33)(A). While the existence of a domestic relationship is an element of 922(g)(9), it does not have to be an element of the underlying misdemeanor offense. Vinson, 805 F.3d at 122. The underlying misdemeanor offense, however, must have “as an element” the “physical force” or “threatened use of a deadly weapon” portion to qualify as a “misdemeanor crime of domestic violence.” Id. The degree of force that supports a common law battery—offensive touching— satisfies the physical force element of 18 U.S.C. §921(a)(33)(A). United States v. Castleman, ___U.S.___, 134 S.Ct. 1405, 1410-13 (2014).
The Fourth Circuit in Vinson applied the “categorical approach” to determine whether a North Carolina assault conviction constitutes a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §921(a)(33)(A). Vinson, 805 F.3d at 123. When using the categorical approach, the Court considers only the fact of conviction and the elements of the offense, rather than the conduct supporting the conviction. Id. Applying this approach, the Vinson Court concluded none of the forms of the North Carolina assault offense require the level of intent–use or threatened use of force–necessary to qualify as a “misdemeanor crime of domestic violence” because the intent necessary for a conviction under North Carolina’s assault statute can be established through culpable negligence. Id. at 125; See State v. Jones, 353 N.C. 159, 538 S.E.2d 917,923 (2000). As a result, assaults under North Carolina law do not qualify “categorically” as “misdemeanor crimes of domestic violence” under federal law. Vinson, 805 F.3d at 126.
So, even if our client had been convicted of assault, the Vinson analysis appears to exclude her as a member of the class of people prohibited from possessing a firearm because of a conviction for “misdemeanor crimes of domestic violence.” But see, Voisine v. United States, ___U.S.___, 136 S.Ct. 2272 (2016) (reckless assaults may qualify as misdemeanor crimes of domestic violence).
What about the conclusion that the dismissal of the domestic violence protective order takes her outside the group of people prohibited from possessing a firearm while subject to a restraining order?
The question for our purposes is whether this provision applies to criminal judgments as well as formal domestic violence protective orders. The Fourth Circuit n United States v. Larson, 502 Fed. Appx. 336 (2013) upheld a U.S. District Court’s conclusion that 18 U.S.C. §922(8) can apply to criminal judgments that restrain people from harassing, threatening, or committing acts of violence against someone from a domestic relationship.
The government prosecuted Mr. Larson for possession of a firearm by a prohibited person in violation of 18 U.S.C. §922(g)(8). Larson, 843 F.Supp.2d 641 (2012), affirmed by 502 Fed. Appx. 336 (2013). Mr. Larson was accused of assault against a family member. In addition to the criminal charge, a civil domestic violence protective complaint was filed, but allowed to lapse. After Mr. Larson was convicted, the state court imposed a suspended sentence for two years that prohibited “violent, threatening or abusive contact” with the family member. Id.
The District Court held in Larson that the statute does not require a formal domestic violence protective order issued under state law. Id. at 646. The statute requires only a court order that satisfies the elements of 18 U.S.C. §922(g)(8)(A)-(C). Id. The state court judgment was imposed after a hearing where Mr. Larson had the opportunity to contest the allegations, so the due process guarantees of the statute were satisfied. Id. Mr. Larson conceded that he fit within the definition of people used to limit the statute to a domestic relationship. Id. Finally, the judgment prohibited the use or threatened use of physical force by prohibiting “violent, threatening, or abusive contact” with the family member. Id. at 650. The District Court concluded that whether the statute prohibits possession of firearms while subject to a court order that restrains a person from harassing, stalking, or threatening an intimate partner is not determined by the title or type of order, but whether the order satisfies the elements of the statute. Id.
So, our client would violate the federal statute by possessing a firearm during the period of her suspended sentence. She is subject to a court order entered after she had the notice and the opportunity to participate in the hearing. The judgment prohibits her from threatening, assaulting or harassing her husband. Of course, the prohibition would be limited to the period of the suspended sentence. Id. at 646.
What about civil consent orders entered pursuant to Rule 65 of the North Carolina Rules of Civil Procedure? Usually, these are negotiated in lieu of a formal domestic violence protective order as injunctions that prohibit particular behavior. Again, the Larson analysis could apply to these orders, if the restraint included in the order meets the elements of 18 U.S.C. §922(g)(8).
Maybe, you are aware of the Fourth Circuit’s treatment of 18 U.S.C. §922(g). I believe many people accused of domestic violence offenses are unaware of potential consequences in federal criminal court for convictions or their decisions to enter into civil and criminal agreements. I can see how lawyers, especially lawyers who limit their practices to state district court, could overlook these potential problems. Even now, the Fourth Circuit may reconsider Vinson in light of the Voisine case to determine whether assaults that require only culpable negligence can qualify as crimes of domestic violence. We should take care to ensure that our clients understand the current state of the law, but that a different interpretation could change their status. In other words, people convicted of assaults related to a domestic relationship would be prudent to avoid possessing a firearm. Most important, the easy path to a resolution may not be the best solution, especially if our primary instructions from the client are to “just get my guns back.”
Amos Tyndall is a criminal trial lawyer, who represents people accused of serious crimes in state and federal courts throughout North Carolina. He has successfully defended people against a wide range of charges, including vehicular homicides, white collar offenses, and first-degree murder. Amos has taught trial practice with the National Institute of Trial Advocacy and Gerry Spence’s Trial Lawyer’s College and been listed in ©The Best Lawyers in America since 2013. (t) (919) 967-0504; firstname.lastname@example.org.