MAINE DOMESTIC VIOLENCE CONVICTIONS & FIREARMS POSSESSION

MAINE DOMESTIC VIOLENCE CONVICTIONS & FIREARMS POSSESSION*

Posted by Edmund R. Folsom, Esq.

Date:  November 18, 2015 (updated July 7, 2016)

Recent Maine legislation, LD 600, creates new prohibitions on possession of firearms by those convicted of certain “domestic violence offenses,” and redefines the point at which a conviction of such an offense is deemed to occur.  The legislation also works changes in the application (to those convicted of certain Maine criminal offenses) of the federal law that bans possession of firearms and ammunition by prohibited persons.  Because LD 600 was billed as “An Act…to Better Align Maine Law with Federal Law Regarding Persons Prohibited from Possessing Firearms,” I will begin this review of LD 600’s effects by examining the federal law.

Title 18 of the United States Code, section 922(g), provides that “It shall be unlawful for any person…who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate commerce, or to possess in or affecting interstate commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”  Suffice it to say that the language about interstate or foreign commerce has to do with the federal government’s jurisdiction to involve itself in the matter, and that, as a practical matter, any firearm or ammunition a person is likely to possess either will be or will have been shipped, transported, possessed or received in or affecting interstate commerce.  To know whether a person is in trouble under section 922(g) for possessing a firearm or ammunition, you need to know whether that person has been “convicted” of a “misdemeanor crime of domestic violence.”  As pertains to convictions under state law, federal law defers to the law of the particular state to determine whether the person was “convicted” of a given state criminal offense.  Whether the offense at issue is a “misdemeanor crime of domestic violence,” on the other hand, is to be determined under the definition of the term found in 18 U.S.C. §921(a)(33).  That definition is as follows:

A) Except as provided in subparagraph (C) [which subparagraph has never been enacted], the term misdemeanor crime of domestic violence means an offense that-
(i) is a misdemeanor under federal, State, or Tribal law; and
(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 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.

(B)
(i) A person shall not be considered to have been convicted of such an offense for the purposes of this chapter unless-
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.

All Maine crimes discussed here are Class D, so they meet the definition of a “misdemeanor,” because they are punishable by less than 1 year in jail.  Again, to determine whether they are also “misdemeanor crime[s] of domestic violence,” we will resort to the definition of that term immediately above.

WHEN IS A PERSON “CONVICTED” UNDER MAINE LAW?

Determining whether a person has been convicted of a crime under Maine law is not as straightforward as you might imagine.  A person has clearly been convicted of a crime once the person has been sentenced for it.  But what about a person who has pled guilty to a crime under a deferred disposition agreement that calls for the person to be allowed to withdraw the plea and have the charge dismissed if the person abides by the terms of the agreement for a certain period?  Is that person “convicted” of the crime when the person enters the guilty plea?  Prior to October 15, 2015, the answer was simply “no,” that a person who pleads guilty under a deferred disposition agreement is not convicted when the plea is entered.  According to 17-A M.R.S. §1348-A(4), “For purposes of a deferred disposition, a person is deemed to have been convicted when the court imposes the sentence,” and pre-conviction bail, as opposed to post-conviction bail, applies between the time of plea and the time any sentence is imposed.  Because federal law defers to state law to determine whether a person has been convicted of a state law crime, a person who pled guilty under a deferred disposition agreement but had not been sentenced was not considered “convicted” for purposes of 18 U.S.C. §922(g).  Therefore, even if the crime for which the person was on a deferred disposition qualified as a misdemeanor crime of domestic violence, the entry of the guilty plea did not cause the person to be barred by §922(g) from possessing a firearm or ammunition while on the deferred disposition.  As discussed below, LD 600 changes that.  Those who plead guilty to certain offenses under a deferred disposition agreement, on or after October 15, 2015, are now deemed “convicted” for purposes of a newly-created 5-year State law ban on firearm possession.  As a result, those people are also “convicted” for purposes of 18 U.S.C. §922(g).

WHAT MAINE CRIMES ARE MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE UNDER FEDERAL LAW?

First, note that the §921(a)(33) definition of a “misdemeanor crime of domestic violence” requires the existence of a certain type of relationship between the defendant and the alleged victim.  The defendant must be: (1) a current or former spouse of the victim; (2) a parent of the victim; (3) a guardian of the victim; (4) a person who shares a child in common with the victim; (5) a person who has cohabited with the victim as a spouse, parent, or guardian; or (6) a person similarly situated to a spouse, parent or guardian of the victim.  If a defendant does not bear one of those relationships to the victim, it does not matter that the defendant was convicted of a “misdemeanor” and that the crime was one of “violence,” because the crime was not one of “domestic” violence, for purposes of 18 U.S.C. sections 921 and 922.  On the other hand, under federal law, if a person was convicted of a crime of violence under State law that involved a victim with whom the person did have such a relationship, it does not matter that the charging instrument didn’t allege the existence between the parties of that particular relationship.  In other words, a person who has been convicted of assault against his wife is prohibited by §922(g) from possessing a firearm whether or not the domestic relationship was alleged in the charging instrument, because the victim was in fact his wife.

Again, all crimes discussed here are “misdemeanors,” so, if the required “domestic” relationship existed, the next question is whether the State law crime at issue is one of “violence” within the meaning of §§921(a)(33) and922(g). To meet that test, the crime must be one that has: (1) as an element; (2) the use or attempted use of physical force; or (3) the threatened use of a deadly weapon.   The U.S. Supreme Court has ruled that Maine’s crime of assault meets this definition.  See Voisine v. United States, 579 U.S. __ (2016).  That means if a person is convicted of assault, in Maine, that in fact involved a victim with whom the defendant had a “domestic” relationship as defined in §921(a)(33), the convicted person is prohibited by §922(g) from possessing firearms or ammunition. This is true whether the crime of conviction is simple assault, under 17-A M.R.S. §207 (intentionally, knowingly or recklessly causing bodily injury or offensive physical contact to another person) or domestic violence assault under 17-A M.R.S. §207-A (intentionally, knowingly or recklessly causing bodily injury or offensive physical contact to another person who is a “family or household member”–  a term defined more broadly than the “domestic” relationship addressed by 18 U.S.C. §921(a)(33)).  However, before October 15, 2015, while a person convicted of assault or domestic violence assault in Maine was prohibited from possessing a firearm or ammunition under federal law, the person was not prohibited from possessing a firearm under Maine law.  That is no longer true with respect to domestic violence assault, under 17-A M.R.S. §207-A, although it does remain true for convictions of simple assault under 17-A M.R.S. §207.

Effective October 15, 2015, LD 600 amended Maine’s statute on “Possession of Firearms by Prohibited Persons,” 15 M.R.S. §393, in two significant ways: (1) by creating a new 5-year prohibition against firearm possession for anyone  convicted of violating 17-A M.R.S. §§207-A (domestic violence assault); 209-A (domestic violence criminal threatening); 210-B (domestic violence terrorizing); 210-C (domestic violence stalking); or 211-A (domestic violence reckless conduct); and (2) by stating that a person who enters a guilty plea under a deferred disposition agreement to a violation of one of these offenses is at that point deemed convicted for purposes of a new 5-year prohibition against firearm possession.  See 15 M.R.S. §393(1-B).  These provisions apply only on or after October 15, 2015, to those who plead guilty under a deferred disposition agreement or who are otherwise convicted of, or found not criminally responsible by reason of insanity for, one of these specified crimes or a crime under the laws of another state or the United States that has substantially similar elements. 15 M.R.S. §393(1-B).

THE EFFECT OF AMENDMENTS TO 15 M.R.S. §393 ON A PERSON’S FEDERAL FIREARMS PROHIBITION.

The chief effect of the amendments to 15 M.R.S. §393 on the federal firearms prohibition of 18 U.S.C. §922(g) is to make the entry of a guilty plea under a deferred disposition agreement a §922(g) “conviction” as to the particular offenses addressed by 15 A M.R.S. §393(1-B)(A)(1).  Again, because the §922(g) prohibition is triggered by “conviction” of certain offenses; because federal law defers to State law in determining when a State law conviction occurs; and because 15 M.R.S. §393 now declares that a person is deemed to be convicted of certain offenses when a guilty plea is entered under a deferred disposition agreement, people who enter a guilty plea to one of these offenses under a deferred disposition agreement are now, at that point, “convicted” of that offense for purposes of §922(g).  The chief effect is to trigger the federal prohibition on firearms possession for many people as soon as they plead guilty to domestic violence assault, under 17-A M.R.S. §207-A, under a deferred disposition agreement.  As discussed above, Maine’s crime of simple assault (§207) is considered a crime of “violence” for §922(g) purposes, and domestic violence assault (§207-A) contains the same elements as simple assault.  The one additional element in domestic violence assault, not contained in simple assault, is the requirement that “the victim is a family or household member as defined in Title 19-A, section 4002, subsection 4.”  To complicate matters, the definition of “family or household member” in 19-A M.R.S. §4002(4) is not the same as that of the 18 U.S.C. §921(a)(33)(ii) relationship that qualifies a State crime of violence as one of “domestic violence.”  For one thing, 19-A M.R.S. §4002(4) states that “‘Family or household members’…for the purposes of…Title 17-A sections…207-A, 209-A, 210-B, 210-C [and] 211-A…includes individuals presently or formerly living together and individual who are or were sexual partners.”  That means a person might be convicted of committing domestic violence assault, for example, for recklessly causing offensive physical contact to a college roommate from 30 years ago, or to someone with whom the person had a single sexual encounter 10 years ago.  Those relationships would not, though, qualify to make the crime one of “domestic violence” under the 922(g) definition, which is why many people, but not all, who plead to or are found guilty of domestic violence assault under a deferred disposition agreement in Maine will at that point be prohibited from possessing firearms under  18 U.S.C. §922(g).

Although many who enter into a deferred disposition on a charge of domestic violence assault will at that point be barred by federal law from possessing firearms or ammunition, the same is not true of those who enter into a deferred disposition on the other offenses affected by the recent amendments to 15 M.R.S. §393: domestic violence criminal threatening (17-A §209-A); domestic violence terrorizing (17-A §210-B); domestic violence stalking (17-A §210-A); and domestic violence reckless conduct (17-A §211-A).  Recall that the federal prohibition only comes into play for those who are convicted of a “misdemeanor crime of domestic violence,” which only includes crimes that have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.”  None of the offenses affected by the amendment to §393, other than domestic violence assault, contain such an element and so none gives rise to a federal firearms possession prohibition, even though a person who enters a guilty plea to one of them under a deferred disposition agreement is deemed to be convicted of the offense, and even if the defendant bears a “domestic” relationship to the victim for §922(g) purposes.  And, anyone who enters into a deferred disposition agreement on a charge of simple assault is not deemed to be convicted at that point because the amendments to 15 M.R.S. §393 do not address simple assault.  A person in that circumstance falls under the general rule of 15 M.R.S. section 1348-A(4) that a person on a deferred disposition is not convicted unless and until the person is sentenced.  All of this means that the recent amendments to 15 M.R.S. §393 have a very limited effect in broadening the application of the federal firearms prohibition for those convicted of a misdemeanor offense against a person with whom the defendant had a “domestic” relationship.  To summarize, the only people affected are those who enter a guilty plea under a deferred disposition agreement to a charge of domestic violence assault, under 17-A M.R.S. §207-A, involving a victim whose relationship to the defendant fits the particular “domestic” relationship addressed by 18 U.S.C. §922(g).

EFFECT OF AMENDMENTS TO 15 M.R.S. SECTION 393 ON PROHIBITED FIREARMS POSSESSION UNDER MAINE LAW.

Before the recent amendments to 15 M.R.S. §393, there was no prohibition against firearms possession under Maine law for a person convicted of a Class D or E crime (misdemeanor) whether the crime was specifically denominated as a domestic violence offense or not.  The recent amendments to §393 change that by providing that a person who is either convicted of, or found not criminally responsible for, domestic violence assault, domestic violence criminal threatening, domestic violence terrorizing, domestic violence stalking, or domestic violence reckless conduct is barred for 5 years from possessing firearms.  See 15 M.R.S. section 393(1-B)(B).  For a person who is placed on a deferred disposition, the 5-year period begins at the start of the deferred disposition period.  For all others, the 5-year period begins when the person is finally discharged from the sentence imposed for the conviction or (in the case of a juvenile) adjudication for the offense. Id.  If the person has no new criminal convictions within the 5-year period, the prohibition expires at the end of the period. Id.  If the person is convicted or adjudicated of a new crime or juvenile offense within the original 5-year prohibition period, the period begins anew from the date of the new conviction. Id.  [Note: legislation effective July 29, 2016 provides that the Maine firearms ban ends, for those on a deferred disposition, at the point the person is allowed to withdraw the guilty plea and the State dismisses “the pending charging instrument with prejudice.” Read more here: https://edfolsomlaw.com/2016/07/domestic-violence-firearms-bans-whats-new-maine/ ].

The combined effects of the amendments to 15 M.R.S. §393, under Maine and federal law, are as follow. A person who is convicted and sentenced for domestic violence assault will be barred from possessing firearms under Maine law for 5 years and, as discussed above, most people in that circumstance will also be barred from possessing firearms or ammunition under federal law.  A person who pleads guilty to domestic violence assault under a deferred disposition agreement will “convicted” at that point and be barred from possessing firearms under Maine and federal law, but the Maine ban will end and the conviction will be set aside, under legislation effective July 29, 2016, when the person withdraws his or her plea and the State dismisses “the pending charging instrument with prejudice” (read more here: https://edfolsomlaw.com/2016/07/domestic-violence-firearms-bans-whats-new-maine/ ).  A person convicted and sentenced for domestic violence criminal threatening, domestic violence terrorizing, domestic violence stalking or domestic violence reckless conduct will be barred from possessing firearms under Maine law for 5 years but will not be barred from possessing a firearm or ammunition under federal law.  A person who pleads guilty to domestic violence criminal threatening, domestic violence terrorizing, domestic violence stalking or domestic violence reckless conduct under a deferred disposition agreement will be “convicted” at that point.  Such a person will not be barred from possessing a firearm under federal law but will be barred under Maine law, but the Maine ban will end and the conviction will be set aside, under legislation effective July 29, 2016, when the person withdraws his or her plea and the State dismisses “the pending charging instrument with prejudice” (read more here: https://edfolsomlaw.com/2016/07/domestic-violence-firearms-bans-whats-new-maine/).   A person convicted of simple assault that in fact involves a victim in a “domestic” relationship addressed by 18 U.S.C. section 922(g) will be barred by federal law, but not by Maine law, from possessing a firearm or ammunition.  A person convicted of simple criminal threatening, terrorizing, stalking or reckless conduct will not be barred from possessing a firearm under Maine or federal law.

WHAT HAPPENS AT THE END OF MAINE’S 5-YEAR BAN ON FIREARMS POSSESSION (AND DIDN’T THE LEGISLATURE DO A MARVELOUS JOB ALIGNING MAINE WITH FEDERAL LAW)?

Once 15 M.R.S. §393’s 5-year ban on firearms possession expires (or, as of July 29, 2016, the person is allowed to withdraw his or her guilty plea under a deferred disposition agreement and “the State dismisses the pending charging instrument with prejudice” [read more here:  https://edfolsomlaw.com/2016/07/domestic-violence-firearms-bans-whats-new-maine/ ]) the person is simply no longer barred from possessing firearms under Maine law.  On the other hand, the ban on possession of firearms and ammunition under 18 U.S.C. §922(g) has no time limit.  Does the expiration of Maine’s 5-year ban have any effect on the ban imposed by §922(g) based on a Maine misdemeanor crime of domestic violence?  First of all, for reasons discussed above, the answer can only have bearing on those convicted of domestic violence assault, under 17-A M.R.S. §207-A.  Recall that 18 U.S.C. §921(a)(33) states that a person is not considered to have been convicted of a misdemeanor crime of domestic violence “if the conviction has been expunged or set aside, or is an offense for which the person has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense).” Let’s first consider the position of a person who pleads guilty under a deferred disposition agreement.  If the terms of the deferred disposition agreement call for the person to withdraw his or her plea at the end of the deferment period and have the charge dismissed, once the dismissal is entered, isn’t the conviction “set aside” for purposes of 18 U.S.C. sections 921(33) and 922(g)?   If so, the 922(g) prohibition ends at that point, while the Maine prohibition lingers until the 5-year period expires (but, as of July 29, 2016, the ban ends when the  person is allowed to withdraw his or her plea under a deferred disposition agreement and the State dismisses “the pending charging instrument with prejudice” [read more here: https://edfolsomlaw.com/2016/07/domestic-violence-firearms-bans-whats-new-maine/]) .  On the other hand, is the conviction actually “set aside” when the dismissal is entered, given that there remains, under Maine law, a prohibition on firearms possession as a consequence of the conviction?  If so, the federal prohibition of 18 U.S.C. §922(g) on possession of firearms and ammunition ends at the same time Maine’s §393 prohibition ends.

Now let’s consider a person sentenced on a charge of domestic violence assault either after entering a guilty plea or after being convicted at trial.  At no point will this person’s charge be dismissed, because a judgment will be entered and a sentence imposed.  Section 393 now takes away for a 5-year period the right of this person to possess firearms. Is the right to possess firearms a civil right?  If it is, it is also a civil right that the State of Maine restores upon expiration of its 5-year ban on firearms possession.  Therefore, when Maine’s 5-year ban expires, does the offense become one for which the person “has had civil rights restored” in a jurisdiction that provides for the loss of civil rights under such an offense, for purposes of 18 U.S.C. §921(33)?  If so, 15 M.R.S. §393 now has the effect of limiting the duration of the federal firearms ban under 18 U.S.C. section 922(g) to the duration of the firearms ban under 15 M.R.S. §393.  This is true for those convicted and sentenced for domestic violence assault in addition to those whose conviction is “set aside” by dismissal of the charge under a deferred disposition agreement, because those who are convicted and sentenced for domestic violence assault will now have their right to keep and bear arms (a “civil right”?) taken away, which is not something that used to occur before the recent amendments to 15 M.R.S. §393.  Because Maine also restores that right at the end of the 5-year term,  if the right is considered a “civil right,” 18 U.S.C. section 921(33)(B)(ii) dictates that the offense is at that point no longer deemed a conviction of a misdemeanor crime of domestic violence, which removes the §922(g) ban on firearms possession.   Of course, things only work this way if the right to possess firearms is considered a “civil right” for purposes of 18 U.S.C. §§921(33) and 922(g), which is an issue that will have to be litigated.

Returning to the stated purpose of LD 600– to better align Maine law with federal law regarding persons prohibited from possessing firearms– I guess we cleared that up.

Link to LD 600: http://legislature.maine.gov/legis/bills/bills_127th/billtexts/HP041301.asp

Note:  As referenced in the text above, legislation effective July 29, 2016 ends the Maine ban on firearms possession for those on a deferred disposition at the point they are allowed to withdraw their guilty plea and State dismisses “the pending charging instrument with prejudice.”  Read more here:  https://edfolsomlaw.com/2016/07/domestic-violence-firearms-bans-whats-new-maine/

 

DISCLAIMER.  This post is for informational purposes only.  It is expressly not intended as legal advice.  Nobody should, in any way, take it as legal advice or act upon it as if it constitutes legal advice.

 



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