the lautenberg amendment

1: The Lautenberg Amendment

Slide 2:ALMAR 290/98 cancelled by MARADMIN 186/03 from 21 Apr 03 Discussion will cover the current law and how DoD implements the lawALMAR 290/98 cancelled by MARADMIN 186/03 from 21 Apr 03 Discussion will cover the current law and how DoD implements the law

3: Overview The Gun Control Act of 1968 Denied Felons ability to possess firearms Public Interest Exception Exempted state and federal employees Duty related possession only The 1994 Amendment -Protective orders For more than thirty years, the Gun Control Act of 1968 provided the basic framework for gun control in the United States. Among other things, the 1968 Gun Control Act made it illegal for convicted felons to possess firearms or ammunition. Until recently, this act exempted military and police personnel. This exception, commonly called the public interest exception, permitted a military, police, or government official to possess a gun for official use, even after a felony conviction. Then in 1994, Congress enacted the first domestic-violence specific amendment to the 1968 Gun Control Act. The 1994 Amendment prohibited anyone subject to certain protective orders from owning or possessing a gun. By the by, in order to fall within this provision, the protective order must restrain harassment, stalking, or threatening of an �intimate partner.� Again, the public interest exception uniformly exempted military, police, and government officials. For more than thirty years, the Gun Control Act of 1968 provided the basic framework for gun control in the United States. Among other things, the 1968 Gun Control Act made it illegal for convicted felons to possess firearms or ammunition. Until recently, this act exempted military and police personnel. This exception, commonly called the public interest exception, permitted a military, police, or government official to possess a gun for official use, even after a felony conviction. Then in 1994, Congress enacted the first domestic-violence specific amendment to the 1968 Gun Control Act. The 1994 Amendment prohibited anyone subject to certain protective orders from owning or possessing a gun. By the by, in order to fall within this provision, the protective order must restrain harassment, stalking, or threatening of an �intimate partner.� Again, the public interest exception uniformly exempted military, police, and government officials.

4: Overview cont�d The Lautenberg Amendment - 1996 Amended the Gun Control Act of 1968 Makes it a felony for anyone convicted of a �misdemeanor crime of domestic violence� to ship, receive, or possess firearms or ammunition Revoked the public interest exception Revocation of public interest exception was not an oversight. Relevant laws: Title 18, U.S.Code, Crimes and Criminal Procedure 18 USC 922(g)(9) 18 USC 921(a)(33) 18 USC 922(d)(9) 18 USC 922(g)(1) ALMAR 290/98 Revocation of public interest exception was not an oversight. Relevant laws: Title 18, U.S.Code, Crimes and Criminal Procedure 18 USC 922(g)(9) 18 USC 921(a)(33) 18 USC 922(d)(9) 18 USC 922(g)(1) ALMAR 290/98

5: Purpose of Amendment To get and keep firearms out of the hands of those individuals with domestic violence convictions. This is a strict liability act � no waivers, no exceptions, This is a strict liability act � no waivers, no exceptions,

6: Military Exception There is no military or law enforcement exception to the Lautenberg Amendment This is not an oversight

7: 18 U.S.C. �922(d)(9) It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person-- � has been convicted in any court of a misdemeanor crime of domestic violence. This applies to those who are not the perp of domestic violence. It applies to all of us and the majority of the population. Means if you give a firearm or ammunition to such individual you are subject to prosecution and possible felony. Why have this � to keep the weapons out of those who have been convicted of domestic violence! Significant deterrent for those considering �helping� or otherwise providing access to firearms. This applies to those who are not the perp of domestic violence. It applies to all of us and the majority of the population. Means if you give a firearm or ammunition to such individual you are subject to prosecution and possible felony. Why have this � to keep the weapons out of those who have been convicted of domestic violence! Significant deterrent for those considering �helping� or otherwise providing access to firearms.

8: 18 U.S.C. �922(g)(9) It shall be unlawful for any person-- � who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport ..., or possess ..., any firearm or ammunition; or to receive any firearm or ammunition .... This makes it a felony for those convicted of domestic violence to . . . convicted: guilty, nolo contendre (no contest) any court = state or federal or military special/general misdemeanor crime of domestic violence is . . . defined by statute and means . . .This makes it a felony for those convicted of domestic violence to . . . convicted: guilty, nolo contendre (no contest) any court = state or federal or military special/general misdemeanor crime of domestic violence is . . . defined by statute and means . . .

9: 18 U.S.C. �921(a)(33) "misdemeanor crime of domestic violence" means an offense that-- (i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, Misdemeanor crime of DV means an offense that has as its factual basis . . . that is 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. So what does this all mean for the layperson . . . nonlawyer . . . Misdemeanor crime of DV means an offense that has as its factual basis . . . that is 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. So what does this all mean for the layperson . . . nonlawyer . . .

10: Three Elements of a Qualifying Conviction  1. Misdemeanor crime 2. Domestic Violence 3. Conviction All must be present, under the definitions provided by the statute, to be a qualifying conviction. Domestic Violence requires a specific offender/victim relationshipAll must be present, under the definitions provided by the statute, to be a qualifying conviction. Domestic Violence requires a specific offender/victim relationship

11: What is a Misdemeanor? Defined by Federal or State Law Does NOT include NJP/Office Hours/ Captain�s Mast Does NOT include Summary Court-Martial Does NOT include CRC findings Courts-martial are NOT classified as misdemeanor or felonies Generally, defined by state or Federal law, however, felonies are typically defined as offense punishable by imprisonment in excess of 1 year. However, as you will learn DoD policy includes courts-martial under this amendment. Why aren�t these included? Because as you will soon learn the statute defines what is a conviction, what rights must be afforded the accused to qualify as a conviction. Under the statute: A person shall not be considered to have been convicted of such an offense unless-- (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case � for which a person was entitled to a jury trial..., either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. Generally, defined by state or Federal law, however, felonies are typically defined as offense punishable by imprisonment in excess of 1 year. However, as you will learn DoD policy includes courts-martial under this amendment. Why aren�t these included? Because as you will soon learn the statute defines what is a conviction, what rights must be afforded the accused to qualify as a conviction. Under the statute: A person shall not be considered to have been convicted of such an offense unless-- (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case � for which a person was entitled to a jury trial..., either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

12: Offender/Victim relationship Domestic violence occurs when the offender is: the current spouse of the victim the former spouse of the victim the parent of the victim the guardian of the victim shares a common child with the victim someone who is cohabitating as a spouse, parent, or guardian someone who used to cohabitate as a spouse, parent or guardian Someone similarly situated has a spouse, parent, or guardian of the victim

13: What is a �Conviction� ? Determined by State or Federal law �Nolo Contendere� pleas same effect as a plea of guilty for sentencing but may not be considered as an admission of guilt for any other purpose. Due process thresholds Does not include deferred prosecutions or similar alternative dispositions. No contest; first time offender statutes; criminal courts only. DUE PROCESS THRESHOLDS: 18 USC 921(a)(33) A person shall not be considered to have been convicted of such an offense unless-- (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case � for which a person was entitled to a jury trial..., either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. No contest; first time offender statutes; criminal courts only. DUE PROCESS THRESHOLDS: 18 USC 921(a)(33) A person shall not be considered to have been convicted of such an offense unless-- (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case � for which a person was entitled to a jury trial..., either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.

14: Bottom Line Anyone who commits a misdemeanor crime: That involves �Domestic Violence� And is subsequently convicted of this crime Cannot own, possess, or be issued weapons � even in the line of duty! Means they essentially will lose their job and possibly their ability to remain in the Service.Means they essentially will lose their job and possibly their ability to remain in the Service.

15: DoD Policy Current Policy approved and effective on November 27, 2002 Policy applies to felony* and misdemeanor crimes of domestic violence, and general and special courts-martial that otherwise meet the definition of �crime of domestic violence.� Two separate memorandums (civilian and military) DoD Directive/Instruction in process They are slightly different. I�ll talk about the key parts that apply to both and the key parts of the separate policies. DoD Policy: Crime of domestic violence includes: misdemeanor crimes of domestic violence and felony crimes of domestic violence, as classified under State or Federal law. Policy provides clarifying definitions: Qualifying conviction: State or Federal conviction for a misdemeanor crime of DV or State or Federal conviction for a felony crime of DV adjudged on or after 27 Nov 02; and GCM/SPCM that otherwise meets the definition of crime of domestic violence. They are slightly different. I�ll talk about the key parts that apply to both and the key parts of the separate policies. DoD Policy: Crime of domestic violence includes: misdemeanor crimes of domestic violence and felony crimes of domestic violence, as classified under State or Federal law. Policy provides clarifying definitions: Qualifying conviction: State or Federal conviction for a misdemeanor crime of DV or State or Federal conviction for a felony crime of DV adjudged on or after 27 Nov 02; and GCM/SPCM that otherwise meets the definition of crime of domestic violence.

16: DoD Policy (generally) Must periodically inform personnel of amendment, consequences, and DoD policy. Military and civilian personnel have an �affirmative, continuing obligation� to notify command/supervisor of qualifying conviction. That they currently have or later obtain. Requires use of DD Form 2760 Obligation to inform about qualifying conviction that they presently have or obtain in the future. Informing personnel also includes posting information about the amendment and policy in facilities where [Government firearms for military] firearms and ammunition are stored, issued, disposed of, and transported. Requires reassignment of duties or suspension of access to firearms or ammunition Affirmative duty includes notice that statements made on the DD Form 2760 are immunized from prsecution.Obligation to inform about qualifying conviction that they presently have or obtain in the future. Informing personnel also includes posting information about the amendment and policy in facilities where [Government firearms for military] firearms and ammunition are stored, issued, disposed of, and transported. Requires reassignment of duties or suspension of access to firearms or ammunition Affirmative duty includes notice that statements made on the DD Form 2760 are immunized from prsecution.

17: DoD Policy for Military Qualifying conviction bars applicants from military service and for current members: Requires retrieval and suspension of access to firearms and ammunition DD Form 2760 � provided immunity from prosecution for violating the act. Approved for use by DoJ. Requires Service policies on possession of privately owned firearms and ammunition for offenders residing on Govt controlled installations. Also, requires the same for MWR type activities with guns/ammunition. No waivers for entrance into military service for those with qualifying convictions. Services permitted, consistent with applicable law and regulations, to separate individuals with qualifying convictions. (unless in the statutorily mandated military retirement sanctuary provisions � then provided meaningful duties that do not require access to firearms or ammunition.) DoD Policy applies CONUS and OCONUS. Service implementing directives within 120 days. DD Form 2760 � provided immunity from prosecution for violating the act. Approved for use by DoJ. Requires Service policies on possession of privately owned firearms and ammunition for offenders residing on Govt controlled installations. Also, requires the same for MWR type activities with guns/ammunition. No waivers for entrance into military service for those with qualifying convictions. Services permitted, consistent with applicable law and regulations, to separate individuals with qualifying convictions. (unless in the statutorily mandated military retirement sanctuary provisions � then provided meaningful duties that do not require access to firearms or ammunition.) DoD Policy applies CONUS and OCONUS. Service implementing directives within 120 days.

18: DoD Policy for �Covered� Employees Requires Services to identify all �covered� civilian employees positions that include duties under Gun Control Act, including selling, disposing, receiving, possessing, shipping or transporting firearms and ammunition. Requires use of DD Form 2760 Personnel with qualifying conviction cannot be assigned or detailed to covered position. Applies to all DoD appropriated and nonappropriated fund civilian employees (5 USC 2105) DoD Use of Force instructions already changed Requirement to ID �covered positions� which are those where the position includes duties, activities, or responsibilities covered by Gun Control Act, including selling or disposing of firearms and ammunition (18 USC 922(d)) or receiving, possessing, shipping, or transporting any firearm or ammunition in or affecting interstate or foreign commerce. If Service knows or has reasonable cause to know of qualifying conviction, they cannot retain or employee in that covered position. Mandatory requirement to inform personnel in covered positions of amendment including affirmative continuing duty to inform supervisors if they have or later obtain qualifying conviction. Immunity form (DD Form 2760) filed in personnel folder. Requirement for Service implementation: USA � in process AF � in process Navy -? USMC � MARADMIN messageApplies to all DoD appropriated and nonappropriated fund civilian employees (5 USC 2105) DoD Use of Force instructions already changed Requirement to ID �covered positions� which are those where the position includes duties, activities, or responsibilities covered by Gun Control Act, including selling or disposing of firearms and ammunition (18 USC 922(d)) or receiving, possessing, shipping, or transporting any firearm or ammunition in or affecting interstate or foreign commerce. If Service knows or has reasonable cause to know of qualifying conviction, they cannot retain or employee in that covered position. Mandatory requirement to inform personnel in covered positions of amendment including affirmative continuing duty to inform supervisors if they have or later obtain qualifying conviction. Immunity form (DD Form 2760) filed in personnel folder. Requirement for Service implementation: USA � in process AF � in process Navy -? USMC � MARADMIN message

19: DoD Policy Excludes: Summary Courts-Martial convictions and nonjudicial punishment from the definition of qualifying conviction. Major weapons systems from definition of firearms and ammunition (tanks, crew-served weapons, aircraft, etc.) Policy is unclear on pilots with T/O weapons. Tankers with T/O weapons Policy is unclear on pilots with T/O weapons. Tankers with T/O weapons

20: Q u e s t i o n s ?