July 13, 2016

Updated: July 13, 2016

Supreme Court Rules Firearm Possession Prohibited After Domestic Violence Conviction

Arizona Domestic Violence Laws, Penalties, Criminal Defense

The Lautenberg Amendment in Title 18 U.S. Code § 922(g)(9) prohibits shipment, transport, ownership and use of guns or ammunition by individuals who were convicted of a misdemeanor domestic violence offense or are under a protection order (commonly referred to as a restraining order) for domestic violence. The amendment was enacted in 1996 and has been the subject of numerous court challenges.

On June 27, 2016, the United States Supreme Court further clarified that even convictions for reckless domestic assault can be construed as domestic violence offenses that prohibit firearm possession. The 6-2 decision resolved lingering questions about the nature of misdemeanor domestic violence convictions than can lead to loss of firearm rights.

Voisine v. United States involved two cases being linked in one certiorari petition. Both of the men involved pled guilty to misdemeanor assault offenses in Maine, one in 2004 and the other in 2008. Both men were later found in possession of guns were federally prosecuted under 18 U.S.C. § 922(g).

The two men alleged that their convictions did not qualify as crimes of domestic violence for the purposes of the Lautenberg Amendment because the state laws they were convicted under were the results of reckless conduct, not intentional. In writing for the majority, Justice Elena Kagan noted:

In sum, Congress’s definition of a “misdemeanor crime of violence” contains no exclusion for convictions based on reckless behavior. A person who assaults another recklessly “use[s]” force, no less than one who carries out that same action knowingly or intentionally. The relevant text thus supports prohibiting petitioners, and others with similar criminal records, from possessing firearms.

The Court agreed to hear this case specifically to resolve the “reckless conduct” question that was left unanswered following the 9-0 decision in United States v. Castleman that a conviction for misdemeanor domestic assault in state court qualified as a misdemeanor crime of domestic violence under federal law, and thereby prohibited offenders him from having guns. The Court declined to answer whether the ban on firearm possession by individuals convicted of domestic violence violated their rights under the Second Amendment, although Justice Clarence Thomas wrote in his dissent that “a single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership” and “this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors.”

Domestic Violence and Firearm Rights in Arizona

Individuals convicted of domestic violence in Arizona had already effectively lost their firearm rights under the Supreme Court’s Castleman ruling, but the Voisine case did involve some Arizona case law. Before the case reached the Supreme Court, the United States Court of Appeals for the First Circuit affirmed the judgments of guilt.

In its dissent, however, the minority on the First Circuit cited the 2006 United States Court of Appeals for the Ninth Circuit case of Fernández–Ruiz v. Gonzales. In that case, “the Ninth Circuit held that a prior Arizona assault conviction did not constitute a crime of violence under § 16(a) because that federal statute ‘covers only those crimes involving intentional conduct,’ and thus the merely reckless use of force (as covered by the Arizona statute) was insufficient to establish a violation.”

Voisine focused on the definition of the “use … of physical force,” with the two men arguing that their conduct having been committed recklessly—not knowingly or intentionally—did not constitute crimes of domestic violence as defined under the Lautenberg Amendment. The Supreme Court, however, distinguished between acts of negligence in which it would be difficult to describe injuries caused as “active employment” of force and “reckless behavior—acts undertaken with awareness of their substantial risk of causing injury.”

According to the FBI, more than half of the victims of domestic violence homicides in Arizona between 2003 and 2012—61.1 percent—were killed with guns. In addition to federal prohibitions on purchases and possession of firearms for people convicted of domestic violence offenses in Arizona, officers are also allowed to temporarily seize firearms found at the scene of domestic violence incidents.

Arizona Domestic Violence Laws

Domestic violence is defined under Arizona Revised Statute § 13-3601 as any act that is a dangerous crime against children or an enumerated violent offense in which any of the following applies:

The relationship between the alleged victim and the alleged offender is one of marriage or former marriage or of persons residing or having resided in the same household;

The alleged victim and the alleged offender have a child in common;

The alleged victim or the alleged offender is pregnant by the other party;

The alleged victim is related to the alleged offender or the alleged offender’s spouse by blood or court order as a parent, grandparent, child, grandchild, brother or sister or by marriage as a parent-in-law, grandparent-in-law, stepparent, step-grandparent, stepchild, step-grandchild, brother-in-law or sister-in-law;

The alleged victim is a child who resides or has resided in the same household as the alleged offender and is related by blood to a former spouse of the alleged offender or to a person who resides or who has resided in the same household as the alleged offender; or

The relationship between the alleged victim and the alleged offender is currently or was previously a romantic or sexual relationship.

When determining whether the relationship between an alleged victim and the alleged offender is currently or was previously a romantic or sexual relationship, the following factors may be considered:

The type of relationship;

The length of the relationship;

The frequency of the interaction between the victim and the defendant; and

If the relationship has terminated, the length of time since the termination.

Many crimes of domestic violence are classified as felony offenses, but one of the most common misdemeanor charges is domestic assault. If an alleged offender commits assault against a child or family or household member, the crime becomes domestic assault.

Under Arizona Revised Statute § 13- 1203, a person can be charged with domestic assault if he or she commits any of the following against a child or family or household member:

Intentionally or knowingly causing any physical injury to another person is a class 1 misdemeanor;

Recklessly causing any physical injury to another person is a class 2 misdemeanor;

Intentionally placing another person in reasonable apprehension of imminent physical injury is a class 2 misdemeanor; or

Knowingly touching another person with the intent to injure, insult or provoke such person is a class 3 misdemeanor.

Convictions for domestic assault can result in jail time, fines, domestic violence classes, and loss of the right to possess a firearm.

What to Do After a Domestic Violence Arrest

When police officers respond to a call relating to a domestic violence matter, chances are high that one person will usually be placed under arrest. Alleged offenders in these instances should absolutely refuse to say anything to authorities until they have legal counsel.

It is not uncommon for the alleged victims in domestic violence arrests to express a desire to want to “drop the charges.” Alleged offenders should not interpret these wishes as meaning that the incidents will simply be forgotten about.

A prosecutor is the only party that has the power to drop criminal charges. Even if an alleged victim does not want to cooperate, the prosecutor can still pursue a case against an alleged offender when he or she feels there is enough evidence to support the charges.

Anybody who has been arrested for a domestic violence offense in Arizona should immediately contact an experienced Mesa criminal defense lawyer. An attorney will not only advise the alleged offender on how to answer certain questions, but can also begin negotiating a plea agreement that can help secure a favorable outcome with the fewest possible penalties.

An alleged offender who has been arrested for domestic violence will not only have to appear in court to answer criminal charges, but he or she could also have to appear in court if the alleged victim has sought an order of protection. In such cases, judges often err on the side of caution and prefer to keep orders of protection in effect if they will keep alleged victims safe.

Orders of protection can result in several consequences in addition to criminal penalties, such as possible loss of child custody or access to a shared home. When people are accused of any kind of domestic violence in Arizona, it is critical to understand that judges will not accept a claim that an alleged victim’s accusations are exaggerated or fabricated without evidence to support the belief.

Criminal Defense Attorney for Domestic Violence Charges in Mesa, AZ

A conviction for any crime of domestic violence can have serious and long-lasting consequences for an alleged offender. Individuals with these offenses on their criminal records not only face harsh immediate penalties in the forms of incarceration and fines, but possibly also several years or even a lifetime of struggles obtaining employment, housing , or professional licensing.

Anybody charged with a domestic violence offense will want to be sure to seek aggressive and experienced legal representation for help exploring all possible defenses. An alleged offender may have a valid self-defense claim, or perhaps the prosecution does not have enough evidence to support the criminal charges.

As a former prosecutor in Maricopa County, James Novak of The Law Office of James E. Novak understands how these cases are handled. He has a thorough understanding of the best possible defenses against domestic violence and can use his experience to fight to get the criminal charges reduced or dismissed.

The Law Office of James E. Novak represents clients who have been accused of domestic assault, aggravated domestic violence, child abuse, child endangerment, stalking, and many other domestic violence offenses. James Novak works tirelessly to achieve the most favorable outcomes for clients all over Maricopa County, including Phoenix, Tempe, Scottsdale, Chandler, Mesa, and many other surrounding communities.

You can receive an honest and thorough evaluation of your case as soon as you call The Law Office of James Novak at (480) 413-1499 or complete an online contact form to schedule a free, confidential consultation.

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