Under Ohio law, a misdemeanor domestic violence conviction for knowingly, attempting or recklessly causing harm to a family or household member carries a maximum penalty of six months in jail and a $1,000.00 fine.[1] In addition to facing significant collateral consequences as a result of a domestic violence conviction under both Ohio and federal law, individuals convicted of even misdemeanor domestic violence offenses can be prohibited from possessing firearms and ammunition under federal law.[2]
The federal Gun Control Act of 1968[3] has long prohibited possession of a firearm by any person convicted of a felony. 18 U.S.C. § 922(g)(8), enacted in 1994, further bars a person subject to a domestic violence restraining order from possessing or receiving a firearm.[4] Nonetheless, many gun-control advocates believed the existing laws were inadequate to keep firearms out of the hands of domestic abusers because “many people who engage in serious spousal or child abuse ultimately are not charged or convicted of felonies.”[5]
Thus, in 1996, Congress enacted a second provision (commonly known as the Lautenberg Amendment[6] to the Gun Control Act), which extended the federal Gun Control Act of 1968’s prohibition on possession of a firearm by convicted felons to include persons convicted of “a misdemeanor crime of domestic violence.”[7] In other words, the 1996 Lautenberg Amendment made it illegal for anyone convicted of a misdemeanor domestic violence offense from possessing a firearm or ammunition.[8] Notably, only the federal law prohibits gun possession by misdemeanor offenders; nearly half of the states have similar statutory provisions. While Ohio does not have any analogous laws, a convicted domestic violence offender in possession of a firearm or ammunition could face up to ten years of incarceration and a fine up to $250,000.00 if prosecuted by the federal government.[9]
Since the passage of the 1996 Lautenberg Amendment, courts and legislatures have steadily infringed on the rights of gun ownership by expanding the scope of the misdemeanor domestic violence prohibitions. In 2009, the United States Supreme Court expanded the meaning of “crime of domestic violence” for purposes of firearm disqualification by holding that a “misdemeanor crime of domestic violence” is a misdemeanor offense that (1) has, as an element, the use of force and (2) is committed by a person who has a specified domestic relationship with the victim.[10] Thus, to obtain a conviction in an 18 U.S.C.S. § 922(g)(9) prosecution, the government must prove beyond a reasonable doubt that the victim of the predicate offense was the defendant's current or former spouse or was related to the defendant in another specified way.[11] But that relationship, while it must be established, need not be denominated an element of the predicate offense.
Thus, in Ohio, the Supreme Court of the United States’ interpretation of the 1996 Lautenberg Amendment would prohibit not just offenders convicted of misdemeanor domestic violence[12] from possessing a gun, but also offenders who have been convicted of any Ohio offense that (1) includes use of force as an element of the offense, and (2) involves a victim with a domestic relationship to the offender. Thus, a conviction of any misdemeanor offense of violence[13] against a qualifying family or household member now triggers the lifetime ban on guns and ammunition under federal law.
The United States Supreme Court further broadened the scope of the 1996 Lautenberg Amendment in 2016 when it held in Voisine v. United States that even a reckless misdemeanor domestic violence conviction prohibits gun ownership under federal law.[14] The Court concluded that because “the word ‘use’ [in “use of force”] does not demand that the person applying the force have the purpose or practical certainty that it will cause harm,” someone who throws a plate at a wall, causing injury to his or her partner, or slams a door, inadvertently spraining his or her partner’s finger, has committed a qualifying domestic violence offense.[15] Under Ohio law, a person acts recklessly when he or she “disregards a substantial and unjustifiable risk that the person's conduct is likely to cause a certain result or is likely to be of a certain nature.”[16]
Individuals subject to domestic violence protection orders are also prohibited from possessing firearms and ammunition under federal law.[17] Ohio law, however, goes a step further and allows a court to order the confiscation of an alleged offender’s firearms with the issuance of a domestic violence protection order if a judge believes it is necessary to protect the family or household member.[18] The court is not even required to hold a hearing before ordering the firearms to be confiscated, which raises a number of fundamental constitutional due process issues.[19] Specifically, procedural due process dictates that if the government deprives a citizen of life, liberty or property interest, the person must first be given notice and the opportunity to be heard.[20] It should therefore not be surprising that Ohio courts routinely order the confiscation of firearms even where there is no nexus between the alleged offending conduct and the firearm prohibition because the subject of the protection order is not afforded the opportunity to be heard.[21]
Firearm prohibitions are no longer targeted towards those who have “engaged in serious spousal or child abuse.”[22] Instead, the expansion of federal law now imposes “a lifetime ban on possessing a gun for all nonfelony domestic offenses.”[23] Although the right to keep and bear arms is a fundamental constitutional right[24], the national sentiment following recent horrific mass shootings will likely encourage new legislation expanding the prohibitions under existing laws, or even new legislation imposing additional prohibitions.[25]
Individuals faced with any misdemeanor charge of domestic violence under Ohio law have only a few options to avoid losing their Second Amendment rights. The best way to avoid a lifetime firearm ban is to retain experienced legal counsel to obtain a not guilty verdict, a dismissal of the charge or have the charge amended to an offense that does not restrict gun ownership rights. Having gun rights restored after a misdemeanor domestic violence conviction is virtually impossible with recent Court decisions that held there is no avenue under Ohio law to obtain relief from the federal firearms ban for any domestic violence conviction.[26] The only other avenue to restore gun rights would be to receive an executive pardon from the Governor.[27] In other words, hiring experienced legal counsel at the earliest possible opportunity to oppose a misdemeanor charge of domestic violence currently provides the only realistic way to avoid a federal lifetime gun and ammunition ban.
[1] R.C. 2919.25
[2] 18 U.S.C. § 922(g).
[3] 18 U.S.C. § 921, et seq.
[4] The order must meet certain requirements, including actual notice to the respondent and an opportunity to participate in the hearing that leads to the order’s issuance. 18 U.S.C. § 922(g)(8) (2012).
[5] United States v. Hayes, 555 U.S. 415, 426 (2009), quoting 142 Cong. Rec. 22985 (1996) (statements of Sen. Lautenberg).
[6] The 1996 extension of the federal Gun Control of 1968 was done through the 1996 Lautenberg Amendments, named for their proponent, Senator Frank Lautenberg of New Jersey.
[7] 18 U.S.C. § 922(g)(9). See also Tom Lininger, An Ethical Duty to Charge Batterers Appropriately, 22 Duke J. Gender L. & Pol’y 173, 177–82 (2015) (describing the passage of the Lautenberg Amendment).
[8] 18 U.S.C. §§ 922(g)(9).
[9] 18 U.S.C. § 924(a)(1)(D)(2).
[10] United States v. Hayes, 555 U.S. 415, 415–17 (2009).
[11] Id.
[12] R.C. 2919.25.
[13] R.C. 2901.01(A)(9).
[14] Voisine v. United States, 136 S. Ct. 2272 (2016) ((holding that petitioners’ possession of guns following conviction under a Maine misdemeanor assault statute that encompassed reckless conduct violated 18 U.S.C. § 922(g)(9), and affirming that even “reckless” domestic violence offenders should lose their gun rights under the Lautenberg Amendment).
[15] Id. at 2279.
[16] R.C. 2901.22(C).
[17] 18 U.S.C. § 922(g)(8) (2012). A qualifying restraining order must meet four requirements. First, the defendant/respondent must have actual notice and an opportunity to participate in the hearing that led to the issuance of the order. Id. § 922(g)(8)(A). Second, the petitioner must be an “intimate partner” of the defendant/respondent. Id. § 922(g)(8)(B). To satisfy this requirement, the parties must be spouses, ex-spouses, parents of a common child, or present or former cohabitants. Id. § 921(a)(32). Third, the protection order must restrain the defendant/respondent from either: (a) harassing, stalking, or threatening the intimate partner, child of the defendant/respondent, or child of the defendant/respondent’s intimate partner; or (b) “engaging in other conduct that would place [the] intimate partner in reasonable fear of bodily injury to the partner or child.” Id. § 922(g)(8)(B). Finally, the order must include a finding that the defendant/respondent poses a “credible threat to the physical safety of [the] intimate partner or child,” or expressly prohibit the “use, attempted use, or threatened use of physical force against [the] intimate partner or child that would reasonably be expected to cause bodily injury.” Id. § 922(g)(8)(C)(i)–(ii).
[18] R.C. 3113.31(D)(1).
[19] U.S. Const. amend. V; U.S. Const. amend. 14, § 1.
[20] See, e.g., Mathews v. Eldridge, 424 U.S. 319, 334 (1976).
[21] See, e.g., Cee v. Stone, 3d Dist. Union No. 14-17-06, 2017-Ohio-8687 (Nov. 27, 2017)
[22] See United States v. Hayes, 555 U.S. 415, 426 (2009), quoting 142 Cong. Rec. 22985 (1996) (statements of Sen. Lautenberg).
[23] Voisine, 136 S. Ct. at 2291 (Thomas, J., dissenting).
[24] District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010).
[25] See, e.g., Florida Senate Bill 7026, Marjory Stoneman Douglas High School Public Safe Act (2018).
[26] In re Wells, 11th Dist. Lake No.: 2014-L-040, 2015-Ohio-2606; Terry v. Ohio, 12th Dist. Clermont No.: CA2016-11-078, 2017-Ohio-7805.
[27] 18 U.S.C. § 921(a)(B)(ii).
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from the Tyack Law Firm Co., L.P.A., or the individual author, nor is it intended to be a substitute for legal counsel or representation on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, county, or other appropriate licensing jurisdiction.
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