Federal Firearms and Domestic Violence Law

Federal Firearms and Domestic Violence Law Roberta A. Hatcher Legal Administrative Specialist FBI CJIS Division, NICS Section 2015 Domestic Relations Seminar LOUISIANA JUDICIAL COLLEGE August 13-14, 2015 New Orleans, Louisiana

FBI Criminal Justice Information Services Division s National Instant Criminal Background Check System (NICS) Section Misdemeanor Crimes of Domestic Violence and Federal Firearm Prohibitions Roberta A. Hatcher Legal Administrative Specialist NICS Business Unit August 2015 UNCLASSIFIED The Brady Act The Brady Handgun Violence Prevention Act of 1993 (Brady Act) is the result of... The attempted assassination of former President Ronald Reagan. Permanent injuries sustained by Press Secretary James Brady. The Brady's lobby for stricter regulations in relation to the transfer of firearms. The Brady Act was approved by Congress on November 30, 1993, as an amendment to the Gun Control Act of 1968. 7/16/2015 UNCLASSIFIED 2 Who Can Access the NICS? Federal Firearms Licensees (FFL) can contact the NICS Section to conduct background checks relative to firearm transactions. State Point-of-Contact (POC) agencies can access the NICS via a portal to conduct background checks for FFLs within their state. Access to the NICS for purposes unrelated to Title 18, United States Code (U.S.C.), Section 922(t) shall be limited. 7/16/2015 UNCLASSIFIED 3 1

NICS Participation 13 Full POC Contact State/Territory for All Firearm Background Checks including permits 4 Partial-POC Contact State for Handgun and FBI for Long Gun Background Checks 3 Partial-POC Contact State for Handgun Permit and FBI for Long Gun Background Checks 36 Non-POC Contact FBI for All Firearm Background Checks Denotes that the State has at least one Alcohol, Tobacco, Firearms and Explosives (ATF) Qualified Alternate Permit. 24 The permits are issued by local or state agencies. 7/16/2015 UNCLASSIFIED 4 Types of Records Searched by NICS As of 06/17/2015 Interstate Identification Index Criminal Records 68,508,191 National Crime Information Center -Wanted Persons -Protection Orders -Immigration Violators -Protective Interest File -Foreign Fugitive -Supervised Release -National Sex Offender Registry -Gang File -Known/Appropriately Suspected Terrorist (KST) -Violent Person 5,585,614 Records NICS Index -Felony/Misdemeanor punishable by 2+ years -Indictment/Information -Fugitive from Justice -Controlled Substance -Mental Defective/Commitments -Illegal/Unlawful Aliens -Dishonorable Discharge -Renounced Citizens -Protection/Restraining Orders -Misdemeanor Crimes of Domestic Violence -State Prohibitions During the Background Check Process... 12,632,564 Records Department of Homeland Security U.S. Immigration and Customs Enforcement (ICE) -On all transactions initiated for Non-U.S. Citizens, an Immigration Alien Query will be requested through the ICE. 7/16/2015 UNCLASSIFIED 5 A Sampling of NICS Transactions As of 06/01/15 100 POTENTIAL GUN BUYERS 67 PROCEEDS AT THE CALL CENTER 33 TRANSFERRED FROM THE CALL CENTER TO THE FBI NICS SECTION 24 IMMEDIATELY GIVEN A PROCEED OR A DENY 9 DELAYED FOR ADDITIONAL RESEARCH ULTIMATELY... 1.11 DENIALS FOR EVERY 100 BACKGROUND CHECKS 7/16/2015 UNCLASSIFIED 2

Federal Firearm Prohibitions 18 U.S.C. 922(g)(1)-(9) & (n) Convicted of a crime punishable by imprisonment for a term exceeding one year Fugitives from justice the subject of an active warrant Unlawful users of or addicted to any controlled substance Adjudicated as a mental defective or involuntarily committed to any mental institution Illegal or unlawful aliens Dishonorable discharge from the U.S. Armed Forces Renunciation of U.S. Citizenship Subjects of protection/restraining orders Misdemeanor crimes of domestic violence Under information or indictment for a crime punishable by imprisonment for a term exceeding one year 7/16/2015 UNCLASSIFIED 7 Federal Denials Reasons Why the NICS Section Denies November 30, 1998 May 31, 2015 Program-to-date 1,208,933 Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years 671,475 Fugitive from Justice Misdemeanor Crime of Domestic Violence Conviction Unlawful User/Addicted to a Controlled Substance State Prohibitor Protection/Restraining Order for Domestic Violence Under Indictment/Information Adjudicated Mental Health Illegal/Unlawful Alien Federally Denied Persons File Dishonorable Discharge Renounced U.S. Citizenship 136,274 115,980 104,068 60,245 49,073 31,391 18,405 15,204 5,834 918 66 Active Records in the NICS Index As of May 31, 2015 Program-to-date 13,455,423 Illegal/Unlawful Alien 6,478,871 Adjudicated Mental Health 3,974,895 Convicted of a crime punishable by more than one year or a misdemeanor punishable by more than two years 2,107,510 Fugitive from Justice State Prohibitor Misdemeanor Crime of Domestic Violence Conviction Protection/Restraining Order for Domestic Violence Under Indictment/Information Federally Denied Persons File Renounced U.S. Citizenship Unlawful User/Addicted to a Controlled Substance Dishonorable Discharge 475,153 117,514 117,219 50,485 39,453 30,132 29,956 23,598 10,637 3

Federal Misdemeanor Crime of Domestic Violence Prohibitor 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 receive, possess, or transport any firearm This prohibitor is responsible for almost 12 percent of all federal denials. 7/16/2015 UNCLASSIFIED 10 Federal Prohibitor 922(g)(9) Three criteria requirements for federal prohibition: Misdemeanor Conviction Qualified Relationship Convicting Statute/Physical Force Element 7/16/2015 UNCLASSIFIED 11 Federal Prohibitor 922(g)(9) The Department of Justice s (DOJ) Office of Legal Counsel (OLC) rendered an opinion, dated July 7, 2005, concerning the legal interpretation of a Misdemeanor Crime of Domestic Violence (MCDV) under the Gun Control Act. 7/16/2015 UNCLASSIFIED 12 4

Federal Prohibitor 922(g)(9) The OLC ruled that the element of the use or attempted use of physical force as used in the Gun Control Act's definition of an MCDV cannot be proven through reliance on case law. The OLC opinion indicates that a firearm background check transaction may not be denied based on any statute unless the element of use or attempted use of physical force appears in the wording of and is a core component of the convicting statute or it must appear as part of a jury instruction. The OLC has also ruled that police reports are no longer sufficient evidence to deny a transaction based upon facts demonstrating the use or attempted use of physical force. 7/16/2015 UNCLASSIFIED 13 Criteria #1 MISDEMEANOR CONVICTION LEVEL Conviction level is a misdemeanor under local, state, tribal, or federal law, OR In states which do not classify offenses as misdemeanors, is an offense which is punishable by imprisonment for a term of one year or less, and includes offenses that are punishable by a fine; 7/16/2015 UNCLASSIFIED 14 Criteria #1 MISDEMEANOR CONVICTION LEVEL The conviction must be at a misdemeanor level. There are states that do not classify their offenses as misdemeanors, such as New Jersey who uses degrees and Maine who uses class crimes. In these instances, the NICS Section looks for an offense that is punishable by imprisonment for one year or less and includes offenses that are only punishable by a fine. 7/16/2015 UNCLASSIFIED 15 5

Criteria # 2 QUALIFIED RELATIONSHIP Current or former spouse of victim (can be same sex) Parent/stepparent of victim Guardian of victim Child in common (child must be born) Person is cohabiting or has cohabited as spouse of victim (can be same sex) Person is cohabiting or has cohabited as parent of victim Person is cohabiting or has cohabited as guardian of victim Person similarly situated to spouse (can be same sex) Person similarly situated to parent of victim Person similarly situated to guardian of victim 7/16/2015 UNCLASSIFIED 16 Criteria # 2 QUALIFIED RELATIONSHIP Where is relationship information found? Incident/offense reports Court documentation III records State Information Sharing Initiative (SISI) 7/16/2015 UNCLASSIFIED 17 Criteria # 2 QUALIFIED RELATIONSHIP Examples of Qualified Relationship From an Incident Report: On October 27, 2002, at about 2:12 am, I was dispatched to a domestic disturbance at 3454 Maple Street. Upon arrival, I found a white female subject sitting at the bottom of the steps. She identified herself as Sharon A. Child. She was upset and had a large cut on her forehead. Sharon stated that her live-in boyfriend, Ray Zincane, threw her down the stairs. Sharon stated that the couple s five-year-old daughter saw it all. 7/16/2015 UNCLASSIFIED 18 6

Criteria # 2 QUALIFIED RELATIONSHIP Examples of Qualified Relationship State III Record: ARREST-01 2008-11-07 SID 3356973 ARREST TRACKING #ARREST AGENCY-AR0040100 BENTONVILLE POLICE CASE #: 000000000 OFFICER: STROGEN CHARGE: (MA)DOMESTIC BATTERING - 3RD DEGREE DISTRICT COURT BENTON BENTONVILLE MC DOCKET # : 0X0X DIV:00 TRIAL TYPE: UNKNOWN FILED: 01 CNTS DOMESTIC BATTERING FINAL: 01 CNTS DOMESTIC BATTERING -PLEA: GU 01 DISPOSITION: DATE 2009-02-09 GUILTY - 1 NOT GUILTY - NOL PROS - DISMISS ** THIS ABOVE CHARGE HAS DOMESTIC VIOLENCE ** ** RELATIONSHIP IS - CURRENT SPOUSE ** 7/16/2015 UNCLASSIFIED 19 Criteria # 3 CONVICTING STATUTE/PHYSICAL FORCE ELEMENT The convicting statute has as an element, the use or attempted use of physical force (e.g., assault, battery, disorderly conduct); OR The threatened use of a deadly weapon. Note: The physical force element can only be established by the conviction. (Ex: Arrested for Battery and convicted of Disorderly Conduct) 7/16/2015 UNCLASSIFIED 20 Criteria # 3 CONVICTING STATUTE/PHYSICAL FORCE ELEMENT The state does not have to classify the offense as domestic violence. This prohibitor includes all misdemeanors that involve the use or attempted use of physical force. What is a deadly weapon? Any firearm, or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury. These elements must be present in the convicting statute. 7/16/2015 UNCLASSIFIED 21 7

Criteria # 3 CONVICTING STATUTE/PHYSICAL FORCE ELEMENT Where is the physical force element found? III records Convicting Statutes all meets Subsections of the convicting statutes all meets Record of Conviction Judgments of Conviction Court-accepted Plea Agreements Sentencing Orders Transcripts 7/16/2015 UNCLASSIFIED 22 Information Needed on Court Documents to Determine Criteria #3 Elements Specific subsection or phrase of convicting statute Specific facts adopted by court or pled by defendant demonstrating: Use or attempted use of physical force Threatened use of deadly weapon 7/16/2015 UNCLASSIFIED 23 DISJUNCTIVE AND NON-DISJUNCTIVE STATUTES What is a disjunctive element? When portions or subsections of a statute contain both physical force and non-physical force elements What is a non-disjunctive element? When portions or subsections of a statute contain only physical force or non-physical force elements 7/16/2015 UNCLASSIFIED 24 8

Louisiana Revised Statute (LSA-R.S.) 14:33 Battery defined Battery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another. **NON-DISJUNCTIVE STATUTE** All elements of statute meets federal standards for use of force under 922(g)(9) 7/16/2015 UNCLASSIFIED 25 LSA-R.S. 14:103 Disturbing the peace A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public: (1)Engaging in a fistic encounter; or (2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or (3) Appearing in an intoxicated condition; or (4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or (5) Holding of an unlawful assembly; or (6) Interruption of any lawful assembly of people; or (7) Intentionally engaging in any act or any utterance, gesture, or display designed to disrupt a funeral, funeral route, or burial of a deceased person during the period beginning one hundred twenty minutes before and ending one hundred twenty minutes after the funeral or burial, within three hundred feet of the funeral or burial. (8)(a) Intentionally blocking, impeding, inhibiting, or in any other manner obstructing or interfering with a funeral route. (b) Intentionally blocking, impeding, inhibiting, or in any other manner obstructing or interfering, within five hundred feet, with access into or from any building or parking lot of a building in which a funeral or burial is being conducted, or any burial plot or the parking lot of the cemetery in which a funeral or burial is being conducted, during the period beginning one hundred twenty minutes before and ending one hundred twenty minutes after the funeral or burial. **DISJUNCTIVE STATUTE** Subsection 1 All meets federal standards for use of force Subsection 3 Contains elements that POSSIBLY meet federal standards for use/attempted use of force All other subsections DO NOT MEET federal standards for use/attempted use of force 7/16/2015 UNCLASSIFIED 26 Supreme Court Decisions and 922(g)(9) Supreme Court U.S. v. Castleman, 134 S.Ct. 1405 (2014) What constitutes use of force for 922(g)(9)? Original decision in U.S. v. Castleman at the 6th Circuit Court level indicated that: intentionally or knowingly cause[d] bodily injury to, does not necessarily constitute the use of force... bodily injury can be cause by means other than force Supreme Court decided that: The common-law concept of force encompasses even its indirect application, making it impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a use of force. Battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance, such as a laser beam. 7/16/2015 UNCLASSIFIED 27 9

A New Service for Criminal Justice Agencies Disposition of Firearms (DOF) As of January 20, 2015, Title 28, Code of Federal Regulations, Part 25, allows law enforcement agencies (including federal agencies) to access the NICS to conduct background checks for the purpose of returning firearms in their possession to an individual (e.g., at the conclusion of a case). Criminal justice agencies may now access the NICS to conduct a background check on a firearm in their possession which they intend to return to an individual. DOF background checks via the NICS are not required by law. The NICS is not accessible to criminal justice agencies for investigative purposes. 7/16/2015 UNCLASSIFIED 28 Activated States for DOF AK WA OR ID NV UT CA HI AZ N. Mariana Islands Guam American Samoa MT WY CO NM NH VT ND ME MN MA SD WI NY RI MI CT NE IA PA IL IN OH NJ DE WV KS VA MO KY MD NC TN OK AR DC SC MS AL GA TX LA Puerto Rico FL Virgin Islands NICS E-Check for Handguns and Long guns NCIC QNP for Handguns and NICS E-Check for Long guns Non-POC State NCIC QNP for Handguns and Long guns Full or Partial POC State NCIC QNP for Handguns and Long guns State Law prohibits participation 4/8/2015 Contact Information for State DOF Questions Contact state the Louisiana Chief Security Officer to determine availability in your state Ms. Kimberly Pierce, at (225) 925-1897 or <kimberly.pierce@la.gov> Tracy A. Hicks, NICS Liaison Specialist, NICS Section, at (304) 625-7541 or <tracy.hicks@ic.fbi.gov> 10

What You Can Do For the NICS Section 7/16/2015 UNCLASSIFIED 31 Update Criminal History Records Submit final dispositions Make sure relevant case information regarding statutes, subsections, conviction elements are present in conviction records Provide requested dispositions/case information to the NICS when they contact your agencies Submit to the NICS Index NICS Index entries can be submitted on any individual prohibited from receiving firearms under state and federal law Entries can be submitted: Telecommunication network utilizing NCIC interface Batch data transfer through Law Enforcement Enterprise Portal 7/16/2015 UNCLASSIFIED 32 Questions? 7/16/2015 UNCLASSIFIED 33 11

Contact Information Roberta A. Hatcher Legal Administrative Specialist NICS Section (304) 625-7363 roberta.hatcher@leo.gov E-mail: NICS_LegalResearch@ic.fbi.gov 7/16/2015 UNCLASSIFIED 34 12

Roberta A. Hatcher, Legal Administrative Specialist- FBI Ms. Hatcher has been with the FBI for over 18 years. She has served as a Legal Administrative Specialist with the FBI NICS Section since 2005. Ms. Hatcher is the senior specialist dealing with legal issues relative to federal and state firearms laws and is assigned to the states of Arkansas, Louisiana, North Dakota, South Dakota, Nebraska, Kansas, and Oklahoma. Ms. Hatcher has specialized in Louisiana criminal law and firearms issues for over 16 years.