PRIOR MISDEMEANOR CONVICTION FOR FEDERAL GUN BAN NEED NOT BE FOR DOMESTIC VIOLENCE

The Supreme Court, back from its winter vacation decided United States v. Hayes, In 1996 Congress extended the law banning ex-felon from possessing a gun to include people convicted of misdemeanors involving domestic violence. Under Hayes the prior misdemeanor need not be charged as a crime of domestic violence but it merely be an assault or a threat against one who is in a domestic relationship with the defendant.

The term a “crime of domestic violence” is a term of art referring to a particular charge. For example in California Penal Code Section 273,5(a) defines the crime as:

Any person who willfully inflicts upon a person who is
his or her spouse, former spouse, cohabitant, former cohabitant, or
the mother or father of his or her child, corporal injury resulting
in a traumatic condition, is guilty of a felony, and upon conviction
thereof shall be punished by imprisonment in the state prison for
two, three, or four years, or in a county jail for not more than one
year, or by a fine of up to six thousand dollars ($6,000) or by both
that fine and imprisonment.

Certainly Congress knew this when it passed the statute and by using the term it must have meant one convicted of domestic violence.

But the Court’s reading of the statute has a number of problems. As Chief Justice Roberts says, in dissent, the majority’s view will make it much more difficult to get a conviction. If the predicate offense is one in which the defendant is convicted of domestic violence, it would be fairly easy to get a conviction by bringing into the courtroom the defendant’s rap sheet or other documents to show that there is a conviction for a charge of domestic violence. But when the conviction is for a crime other than domestic violence, let us say simple battery, as in Hayes it will be necessary to retry the predicate offense before a jury and to have that jury under >Apprendi find the that the defendant committed the act of domestic violence beyond a reasonable doubt. As any prosecutor will tell you it is hard enough to get a victim in a domestic violence case to testify once and it will be impossible to get the victim to testify a second time in a weapons case that may not even involve the victim.

Many defendants have entered into plea bargains, pleading to battery instead of domestic violence because they did not want the particular consequences of a domestic violence conviction. Now as a result of Hayes they will not get the benefit of the bargain. This will make it harder to plea bargain cases in the future.