Vol. 24 No. 7- “Federal law upheld barring guns from those convicted of domestic violence”

February 25, 2009

On February 24, 2009, on a 7-2 vote, the United States Supreme Court, in the case of United States v. Hayes,  upheld the provision of the federal Gun Control Act of 1968 (Act) which prohibits anyone convicted of a “misdemeanor crime of domestic violence” from possessing a weapon.  The Act, which originally prohibited felons from possessing weapons, was extended in 1996, pursuant to what was known as the “Lautenberg Amendment,” to also cover those persons convicted of a domestic violence misdemeanor.

In 2004, Marion County, West Virginia, law enforcement responded to a 911 call reporting domestic violence involving Hayes.  He consented to a search of his home where the officers discovered a rifle, and subsequently discovered he owned four other weapons.  Because he had been convicted, ten (10) years before, of a misdemeanor crime of domestic violence, a federal grand jury indicted him under the federal Gun Control Act of 1968, 18 U.S.C. sec. 922(g)(9).
He moved to dismiss the indictment on the basis that the underlying misdemeanor from 1994 was not a “domestic violence” misdemeanor, but was West Virginia’s “generic battery law.”  As a result, Hayes argued, he had not, in fact, been convicted of domestic violence and, therefore, was not barred from possessing a weapon.

The Supreme Court stated that “section 922(g)(9) makes it “unlawful for any person … who has been convicted in any court of a misdemeanor crime of domestic violence … [to] possess … any firearm or ammunition.”  Section 921(a)(33)(A) defines “misdemeanor crime of domestic violence” as follows:  “(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, 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 cohabitating with or has cohabitated with the victim as a spouse,  parent,  or  guardian, or  by a person  similarly situated to a spouse, parent, or guardian of the victim.”

The Court then held that the underlying statute need not specifically refer to a domestic relationship existing between the offender and victim, but that “instead, in a section 922(g)(9) prosecution, it suffices for the Government to charge and prove a prior conviction that was, in fact, for “an offense … committed by” the defendant against a spouse or other domestic victim.”

Although the Court held that a domestic relationship must be proven by the prosecution, it also concluded that it need not be articulated as a requirement in the charge for which the abuser is convicted or pleads guilty.  “More sensibly read, then, section 922(a)(33)(A) defines “misdemeanor crime of domestic violence” as 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.”

Furthermore, said the Court, to construe “section 922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute … would frustrate Congress’ manifest purpose.  Firearms and domestic strife are a potentially deadly combination nationwide.”


This decision establishes that a conviction under a “generic” battery statute will be considered a conviction of domestic violence if it involves actual or threatened force against a person who is considered a domestic victim.  If the elements of the crime, as set forth in section 922(g)(9), are present, the prohibition on possessing weapons and/or ammunition will apply.

It is also imperative to note that this applies to law enforcement officers and there are no exemptions for them contained in the federal law.   As a result, if peace officers are convicted of battery against a domestic victim, they are barred forever more from possessing weapons or ammunition.  Peace officers with such a conviction, therefore, would be unable to thereafter fulfill the essential elements of their job.

We urge that you confer with your agency’s legal advisor on all matters involving legal interpretation.  As always, if you wish to discuss this case in greater detail, please do not hesitate to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.