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You may have heard the term "Lautenberg" before, or even known someone who was "Lautenberged". This is the term commonly used when a soldier is discharged from the military based on the effects of the Lautenberg Amendment as it pertains to domestic violence misdemeanors and the possession of a firearm. What is the Lautenberg Amendment? How does it effect military personnel, and regular citizen's rights to possess a firearm under the Second Amendment?
In September of 1996, an amendement to the Gun Control Act of of 1968 (GCA) was passed establishing a comprehensive Federal ban on the possession of firearms by person convicted of a misdemeanor act of domestic violence1. This amendment to the GCA, commonly referred to as the "Lautenberg Amendment" (Lautenberg), prohibits persons convicted of misdemeanor or felony crimes of domestic violence from shipping, transporting, possessing or receiving firearms or ammunition.Lautenberg also prohibits knowingly selling or providing a firearm to a person who is known to have a domestic violence conviction.
Prior to the passage of Lautenberg, there was a public service exemption that included "any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision therof." This public interest exemption loophole has also been closed by Lautenberg, and now applies to all persons that have been convicted of domestic violence charges including Federal and State law enforcement officers, and military personnel.2
In Colorado, domestic violence means, "An act of or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. 'Domestic violence' also includes any other crime against a person or against property or any municipal ordinance violation against a person or against property, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved with in an intimate relationship."3
Under Colorado law, "Domestic violence" covers a wide range of criminal activity, including any crime used for coercion, control, punishment, intimidation or revenge of a current or past initmate partner. It is important to note that domestic violence only refers to intimate relationships, it does not cover parent and child, or sibling relationships. An "intimate relationship" in Colorado is described as, "a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time."4 This means that domestic violence is not only between spouses, but can be against a girlfriend/boyfriend or even against an ex. It also includes homosexual partnerships.
Every day members of the military are charged with acts of domestic violence. These acts range from acts of violence such as shoving, kicking or hitting, which is often charged as harassment or third degree assault where there are no weapons or serious bodily injury. It also includes computer or phone harassment, violation of restraining orders, menacing, or even criminal mischief (damaging property).
If you are charged with domestic violence, it is not uncommon to be offered a plea bargain on your first appearance in Court. If you are in the military, you must be aware that any sort of plea agreement to a domestic violence charge can have a devastating impact on your military career and your future. If you are not in the military, you must be aware that a plea of guilty in a domestic violence case can keep you from ever owning a firearm again under Lautenberg.
In January of 2004, Fort Carson (Colorado) released an information paper on the implementation of the Lautenberg Amendment . It can be found in it's entirety here. The paper provides instruction on how to handle military personnel convicted of domestic violence under Lautenberg. It states in part:
2. SUMMARY: The Lautenberg Amendment to the Gun Control Act makes it unlawful for any person who has been convicted of a misdemeanor or felony crime of domestic violence to ship, transport, possess or receive firearms or ammunition. The amendment also makes it a crime for any soldier, including armorers and commanders, to issue a firearm to anyone they know, or have reason to believe, has a conviction for domestic violence. The M-60 machine gun and squad automatic weapons are considered individual weapons for the purpose of this law. However, the Lautenberg Amendment does not affect crew served weapons such as tanks, missiles and aircraft.
3. DEFINITIONS:
a. Effected soldiers: Those soldiers known to have, or whose commanders have reason to believe have, a “qualifying conviction” for a misdemeanor or felony crime of domestic violence.
b. Qualifying conviction: A person has a qualifying conviction if:
(1) The person was convicted, in state or federal court or any general or special court-martial, of a misdemeanor or felony crime and the offense has, as an element, the use or attempted use of physical force or threatened use of a deadly weapon;
(2) The convicted offender was, at the time of the offense, a current or former spouse, parent, or guardian of the victim, or a person with whom the victim shared a child, or a person who was living with the victim as a spouse, parent or guardian, or a person with whom the victim cohabited in an intimate relationship;
(3) The prosecution has not been deferred or the conviction has not been expunged or set aside, or the convicted offender has not been pardoned for the offense.
(4) Colorado law authorizes deferred sentences for persons who plead guilty to committing an act of domestic violence. Participation in this “Diversion Program,” administered by the El Paso County District Attorney’s Office, requires a guilty plea and constitutes a qualifying conviction for purposes of the Lautenberg Amendment. The qualifying conviction exists for the duration of the Program, and upon successful completion the guilty plea is withdrawn and the charge is dismissed. Once the charges are dismissed there is no longer a “qualifying conviction” for purposes of the Lautenberg Amendment.
c. What does not qualify:
(1) Summary Court-Martial convictions, non-judicial punishment under Article 15 of the UCMJ, and deferred prosecutions from certain other states are not qualifying convictions.
(2) Pending charges of domestic violence are not qualifying convictions.
(3) A Case Review Committee (CRC) determination that allegations of abuse are substantiated does not mean that a soldier has a qualifying conviction. Commanders determine whether a qualifying conviction is the factual basis for substantiated abuse.5
As you can see, soldiers that have a qualifying domestic violence conviction can no longer possess a firearm or ammunition under Lautenberg. Even a deferred sentence or a Diversion program can trigger Lautenberg. The Information Paper states that once the deferred sentence or the diversion program is complete and the case is dismissed, that the charges are no longer a "qualifying conviction" for Lautenberg purposes. However, all military personnel should be mindful of the possible consequences to their career upon entering a deferred sentence or other program that can often last several years and could also lead to a discharge. It is strongly advisable to consult the Legal Assistance/JAG or a private attorney regarding the specific situation.
Remember that Lautenberg amendment applies to civilians as well. If you plead to any felony or even a misdemeanor domestic violence offense you will be prohibited under Federal law from possessing a firearm. What's more, is the ban is retroactive, meaning, if you have ever had a domestic violence conviction in your past, even before the passage of Lautenberg, you are prohibited from possessing, trading, shipping, receiving or transporting a firearm or ammunition.
If you have been charged with a domestic violence offense in Colorado speak to an attorney immediately before you make any decisions that can greatly effect your future, your career and your rights under the Second Amendment.
1. See 18 U.S.C. §922.
2. See 18 U.S.C. §925(a)(1).
3. See C.R.S. §18-6-800.3(1)
4. C.R.S. §18-6-800.3(2)
5. Information Paper, Guidance on HQDA message 16 October 2003 SUBJECT: Final Implementation of the Lautenberg Amendment.
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