Assault charges are taken very seriously by law enforcement, prosecutors, and judges. If you are charged with a crime involving assault and are convicted, you could face a sentence to a term of incarceration, a monetary fine, or a required term of probation that could include intensive programming and rehabilitation. If such assault charge is a domestic assault—meaning the case involves a victim with whom you have a domestic or intimate relationship – the possible penalties following a conviction are often more severe. In addition, if the assault crime you are convicted of is a felony, you will also face consequences such as the loss of your right to possess firearms, serve on a jury, or vote.
Even if you are facing a misdemeanor domestic violence offense, not only do you face a term of incarceration or probation to include intensive programming such as a Batterer’s Intervention Program if convicted, you may become a “prohibited person”, meaning you are banned from possessing or owning firearms under both federal law pursuant to the Lautenberg Amendment and Nebraska state law. Such consequences are likely to hinder an individual’s ability to join the military or pursue employment opportunities within law enforcement or security, and can interfere with hobbies such as hunting. With such serious potential consequences, it is important to have an experienced criminal defense attorney by your side to defend the assault allegations you are facing and explain your constitutional rights and the consequences you may be facing.
What is the Lautenberg Amendment?
The Lautenberg Amendment, under 18 U.S.C. § 922(g)(9), is a federal law that prohibits individuals who have been convicted of a misdemeanor crime of domestic violence from shipping, transporting, owning, carrying, possessing, using, or receiving firearms. This law was enacted with victims of domestic violence in mind to help safeguard them from harm from individuals who have been formally convicted of violent offenses. What his means is if you are convicted of a misdemeanor crime of domestic violence, you will be a “prohibited person” and will not be permitted to possess or own firearms—not to protect yourself at home, not for your employment, not for hunting—not at all.
What causes a crime to be considered a “misdemeanor crime of domestic violence” under the Lautenberg Amendment?
Under the Lautenberg Amendment, a misdemeanor crime of domestic violence requires two qualifications—both must be satisfied in order for the firearm ban to apply.
Requirement #1: First, an offense may only be considered a misdemeanor crime of domestic violence if the elements of the offense include the use or attempted use of physical force or the threatened use of a deadly weapon.
Requirement #2: Second, an offense may only be considered a misdemeanor crime of domestic violence if there is a special qualifying relationship between the accused and the victim. Such relationship may be satisfied if any of the following scenarios exist in your case:
- The accused is a current or former spouse, parent, or guardian of the victim;
- The accused shares a child in common with the victim;
- The accused is currently cohabitating with the victim;
- The accused has a current or recently previous dating relationship with the victim;
- The accused has cohabitated with the victim in the past and at the time of cohabitation, the accused was a spouse, parent, or guardian of the victim;
- The accused is similarly situated to being a spouse, parent, or guardian of the victim.
Because Requirement #1 focuses on the elements of the charged offense that the prosecution is required to prove, rather than the name of the offense, you may still be charged with an offense that includes the use or attempted use of physical force without actually being charged with a crime that is titled “domestic assault/violence.” This is important to keep in mind because while a conviction for a crime specifically named “domestic violence” or “domestic assault” will almost certainly trigger the firearm prohibition under the Lautenberg Amendment, a conviction for simple assault that includes underlying facts showing a domestic relationship between the accused and the victim may inherently satisfy Requirement #2 and subject you to the firearm ban under the Lautenberg Amendment.
The nuances of when Lautenberg apply can be difficult to understand, especially when you are considering a plea resolution. It is important that you hire a criminal defense attorney with experience defending against domestic violence charges, who understands when and how Lautenberg could apply to your case.
Does Nebraska have a firearm prohibition under state law that is separate from the Lautenberg Amendment?
Yes, in addition to the lifetime federal firearm prohibition under the Lautenberg Amendment, Nebraska state law also prohibits individuals who have been convicted of a misdemeanor crime of domestic violence from possessing a firearm for a period of seven years under Neb. Rev. Stat. § 28-1206(1)(b). It is important to remember, even after the seven years passes, if the Lautenberg Amendment applies to you, such federal law still rules and governs your inability to possess a firearm.
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Can you ever get your firearms rights back after they have been taken away by Nebraska state law or the Lautenberg Amendment?
There are very limited ways to get your firearms rights back after they have been taken away due to a domestic violence conviction in the State of Nebraska. The primary method sought by individuals is a Governor’s Pardon through the Nebraska Board of Pardons. This avenue is typically time consuming to work towards and achieving success can be difficult. Among others, some factors that the Board of Pardons will consider in determining if you are eligible for a pardon include your criminal history since the offense, rehabilitative efforts since your conviction, and the level of your stability in certain areas of your life including employment, education, family, friends, and community involvement. Further, typically the Board of Pardons does not entertain pardon applications until 3 years have lapsed since the completion of a sentence as to a misdemeanor conviction, or 10 years have lapsed since the completion of a sentence as to a felony conviction.
Who should I contact if I am unsure whether the Lautenberg Amendment applies to me?
The right to bear arms under the Second Amendment of the United States Constitution is an important right that many people in this country and the State of Nebraska consider sacred. Therefore, it is important for such individuals to understand under what circumstances and as a result of what conduct, this right may be lawfully limited.
If you are facing a charge of domestic violence or have been convicted of an offense for which you believe you may be subject to the Lautenberg Amendment, contact Berry Law’s team of defense attorneys to discuss whether the law applies to you and whether your firearms rights have been or could be taken away. The intersection between federal and state law can be complicated and difficult to understand. It is important to obtain legal representation and rely on a criminal defense lawyer who has knowledge, training, and experience handling matters similar to yours.
