The Lautenberg Amendment 18 U.S.C. Section 922(g)(9)

What is the Lautenberg Amendment to the Gun Control Act of 1968 and how does it affect law enforcement officers?

The amendment was passed in Congress with almost unanimous support, despite lobbying by the Fraternal Order of Police and other law enforcement organizations in an attempt to exempt law enforcement officers from the amendment. (There is also no exemption for military personnel.) The amendment bans the possession of firearms by anyone convicted of a “misdemeanor crime of domestic violence”. A “misdemeanor crime of domestic violence” is defined as “any state or federal misdemeanor that 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 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.”

If convicted of a misdemeanor crime of domestic violence, Sections 922(d)(9) and 922(g)(9) of the amendment prohibit any police or other law enforcement officer from possessing a firearm, even while on duty. If an individual who has been convicted of a misdemeanor crime of domestic violence retains or later purchases a firearm, he can be subject to imprisonment for up to ten years and a fine of up to $250,000, although the actual penalties imposed for each of these violations is determined by application of the Federal Sentencing Guidelines.

The Justice Department has made it a high priority to enforce this law. All United States Attorneys have been directed to ferret out and pursue violations of this amendment, and every Federal jurisdiction has assigned a task force of Assistant United States Attorneys for these prosecutions, called Project Backfire.

Frequently asked questions:

Q. Does the entry of a Protection From Abuse Order, whether by consent or finding, constitute the equivalent of a “misdemeanor crime of violence” under the Lautenberg Amendment?

A. No. It is not a conviction, nor is a Protection From Abuse action a criminal proceeding.

Q. Does the violation of a Protection From Abuse Order, which constitutes a crime of indirect criminal contempt under Section 6114 of Title 23 (Pennsylvania statutes) constitute the equivalent of a “misdemeanor crime of violence” under the Lautenberg Amendment.

A. No. The underlying basis of conviction under Section 6114 of Title 23 is the violation of a Protection From Abuse Order, rather than commission of a crime of domestic violence.

Q. If charged with a misdemeanor under state law for a crime of domestic violence, does acceptance into ARD or any equivalent pre-trial intervention program resulting in dismissal of the charges constitute a “misdemeanor crime of domestic violence”?

A. No. If the perpetrator is accepted into ARD and successfully completes the program such that the charges are dropped, there will be no conviction of a misdemeanor crime.

Q. If charged with a misdemeanor under state law for a crime of domestic violence, can the perpetrator plead to a different misdemeanor, which does not involve a domestic crime of violence, and be allowed to retain his firearms?

A. No. As long as the underlying facts as contained in the police report, plea agreement, criminal complaint, pre-sentence report or transcript, contain facts which constitute a crime of domestic violence as defined under Federal law (see definition above), the Lautenberg Amendment applies and the perpetrator will be prohibited from owning any firearms.

If you are a law enforcement officer who is charged with a misdemeanor crime of domestic violence, it is vitally important that you seek the advice of competent legal counsel before making any decisions about your case – your job depends on it.