By H. Michael Steinberg – Colorado Domestic Violence and Gun Rights Criminal Defense Lawyer – Email the author at [email protected]

US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – In the US Supreme Court decision of United States v. Castleman, (2014), federal gun restrictions law and state domestic violence law clash once again and the result is even greater restrictions on the Second Amendment Right To Bear Arms.

The Relevant Federal Gun Rights Restrictions – 18 U.S.C. § 922[g][1-9]

Firearm Possession of Weapons Prohibitions are found for the most part under Federal Law 18 U.S.C. § 922[g][1-9]. This law prohibits certain individuals from possessing firearms, ammunition, or explosives. Under federal law 18 USC Sec. 922(g)(9)) an individual convicted of a misdemeanor domestic violation charge may not legally own or possess a firearm.

It is a very serious felony with a statutory penalty for violating this law is ten years imprisonment and/or a $250,000 fine.

Specifically, Section 922(g)(1-9) prohibits the following individuals from possessing, shipping/ transporting, or receiving any firearm or ammunition:

(1) a person convicted of a crime punishable by imprisonment exceeding one year;

(2) a person who is a fugitive from justice;

(3) a person who is an unlawful user of or who is addicted to a controlled substance;

(4) a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;

(5) an alien who is unlawfully in the United States or who has been admitted to the United States under a non-immigrant visa;

(6) a person who has been discharged from the Armed Forces under dishonorable conditions;

(7) a person who, having been a citizen of the United States, renounces his citizenship;

(8) a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child;

(9) a person who has been convicted of a misdemeanor crime of domestic violence.

The Definition of ‘Convicted’

The definition of “convicted” is found in the chapter 18 U.S.C. § 921(a)(33)(B)(ii) and has exceptions:

(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, 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 of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, 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.

(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

The Definition of “Possession of a Firearm” (Very Broad)

Possession exists when a person knowingly has the power and intention at a given time of exercising dominion and control over the object or over the area in which the object is locate….”

Therefore if you know that a firearm is present in your residence, vehicle, etc., and you have access to it and can exercise control over that firearm personally or through another individual, – you are “in possession” of a firearm.

Section 922(g)(9) – What Is The Definition of “Violent” Misdemeanor Domestic Violence?

The kinds of domestic violence crimes that are applicable crimes are limited to those that have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon” and that are committed by persons with a specified relationship to the victim, such as a current or former spouse or a parent.

In the Castleman case – the Supreme Court interpreted another state’s domestic violence laws – but Colorado’s domestic violence laws of Harassment 18-9-111 and Assault in the third degree 18-3-204 – the most typically charged Colorado domestic violence charges – are similar to the states laws in question.

So if the application of the Lautenberg Amendment – 18 U.S.C 922 (g)(9) turns on the requirement of “physical force” in the context of a domestic violence charge, what degree of physical force is enough? In the past – (pre-Castleman) – physical force has been interpreted to require the degree of force that supports a common-law battery conviction—known generally as “offensive touching.” [Lautenberg bans the acquisition or possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence.]

Federal Jurisdictions Did Not Agree On What Amount Of Force Was Needed

Effective criminal defense lawyers have successfully taken advantage in the fact that courts interpreted the degree of “physical force” that was necessary to “trigger the disability”. If the act of misdemeanor domestic violence did not actually involve “violence” – there was a way around the law.

After Castleman, one of these questions has now been resolved in a way that gives the federal prohibition its broadest possible reading.

Castleman Expands The Definition Of Offensive Touching

Castleman has greatly expanded the definition of offensive touching. After Castleman – if you are convicted of a misdemeanor crime of domestic violence, the kind of violent touching which previously was believed to be a “substantial degree of force,” now includes ..

Some Degree Of Offensive Physical Contact Is Enough

Castleman’s holding is that a domestic violence statute that requires “some degree of offensive physical contact for a violation to occur…triggers Lautenberg

The Court’s Reasoned…

[that]… any injury, no matter how slight, must require the use of at least some “physical force.”

[that] domestic violence” is not violence in the commonly understood sense but in the broader sense of an accumulation of acts over time that established one person’s control over another.

[that] even inor physical acts including hitting, slapping, shoving, pushing, grabbing, pinching, scratching, shaking, twisting, spitting, or restraining contribute to the idea that “most physical assaults committed against women and men by intimates are minor ….”

[A]nd even a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a ‘misdemeanor crime of domestic violence.'”

US Supreme Court Directly Impacts Colorado Gun Rights In 2014 Decision On Domestic Violence Cases – 18 U.S.C. § 922(g)(9)

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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Domestic Violence – Gun Rights Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

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