Legally Armed: V20N1

By Teresa G. Ficaretta, Esq. & Johanna Reeves, Esq.

In Vol. 19, No. 8, the authors published an article titled “ATF’s Proposed Framework for Armor Piercing Ammunition Exemptions: What Happens Next.” The article gave an overview of a document published by ATF in February 2015 relating to armor piercing ammunition, the public reaction, and the agency’s possible next steps. In a portion of the article headed “Where Will ATF Go from Here?” we included the following statement:

Another important fact to consider is that ATF did not “ban” the M855 5.56x45mm cartridge. (SS109). Congress banned this round when it enacted the armor piercing ammunition restrictions in 1986, as the round is made with a steel core.

Following publication of the article we were contacted by ammunition experts who advise the above statement is inaccurate, as the core of the M855 cartridge contains both lead and steel. These experts believe that ATF incorrectly classified the M855 as “armor piercing ammunition” because the core is not made entirely of steel.

The authors did not intend to endorse ATF’s classification of the M855 cartridge as “armor piercing ammunition” and recognize there are important arguments that can be made concerning the composition of the core. Thus, we should have qualified the language in the article to make it clear it is ATF’s view, and not the author’s, that M855 ammunition fits within the statutory definition of “armor piercing ammunition.”

GCA Firearms Restrictions— Who Is a Prohibited Person?

Part I: 18 U.S.C. §§ 922(n), 922(g)(1)-(4)

The Gun Control Act of 1968 (GCA), 18 U.S.C. Chapter 44, makes it unlawful for certain “prohibited persons” to possess, receive, ship, or transport any firearm or ammunition if there is a requisite connection with interstate or foreign commerce. These Federal firearms disabilities apply to 10 different categories of persons, some of which are defined by statute and some by regulation. It is essential for Federal firearms licensees (FFLs) to have a working knowledge of this area of the law to avoid transferring firearms or ammunition to prohibited persons and aiding and abetting a prohibited person in unlawfully possessing these items. Caution must be exercised in this area not just for potential purchasers of the FFL’s products, but also for employees who possess firearms and ammunition for purposes of carrying out the FFL’s business.

This article is Part I of two, as covering all 10 categories of prohibited persons under the GCA is a tall order. Part I will cover indictments for felonies; convictions for felonies; fugitives from justice; unlawful drug users; and persons adjudicated as a mental defective or committed to a mental institution. Part II, to be published in the next edition of Small Arms Review, will cover illegal and nonimmigrant aliens; dishonorable discharges from the military; renunciations of U.S. citizenship; domestic violence restraining orders, and convictions for misdemeanor crimes of domestic violence.

I. GCA Categories of Prohibited Persons §§ 922(n), 922(g)(1)-(4)

A. Persons Under Felony Indictment – § 922(n)

Section 922(n) of the GCA makes it unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to receive, transport, or ship firearms. This disability is temporary, as it lasts only as long as the individual is under indictment for a crime punishable by more than one year of imprisonment. If the indictment is dismissed, the disability goes away. Alternatively, if the person is convicted of the offense, he or she will be subject to a different disability due to the felony conviction.

The indictment disability is not as broad as the 9 other disabilities imposed under the statute, as it prohibits only receipt, transportation, and shipment of firearms or ammunition. This disability does not extend to possession of firearms or ammunition. Consequently, a person under felony indictment may continue to lawfully possess firearms and ammunition in his or her possession prior to the date of the indictment. The indictee is prohibited only from transporting those firearms and ammunition in interstate or foreign commerce and from receiving additional firearms and ammunition.

ATF regulations implementing the GCA make it clear that the term “indictment” applies to an indictment OR information issued in any court, including a military tribunal convened for a general court martial.

B. Persons Convicted of Crimes Punishable by Imprisonment for a Term Exceeding One Year – § 922(g)(1)

This disability applies to a significant number of persons who are prohibited from possessing firearms and ammunition under Federal law. The GCA was amended in 1986 to include a statutory definition for the term “crime punishable by imprisonment for a term exceeding one year.” The definition makes it clear that State law applies in determining whether a State law conviction fits within the definition, while Federal law applies to Federal convictions. The definition also excludes certain convictions from the definition, including Federal and State antitrust violations and similar business offenses and State offenses classified as misdemeanors punishable by imprisonment for two years or less.

1. Are Misdemeanors Disabling?

The exclusion for State misdemeanors is important, as many people believe that misdemeanors never result in Federal firearms disabilities. The definition clearly does not exclude ALL misdemeanors, but only those that can result in jail time of two years or less. A number of offenses are labeled as misdemeanors by States, but if they are punishable by more than two years of imprisonment, they result in Federal firearms disabilities. As an example, a number of state codes punish certain driving while intoxicated offenses by up to 5 years of imprisonment if they are repeat offenses or other aggravating factors are present.

2. Post Conviction Events May Invalidate a Conviction

The definition also includes language invalidating convictions that are expunged, set aside, pardoned, or for which civil rights have been restored, unless the pardon, expunction, set aside, or restoration of rights expressly prohibits the person from possessing firearms. This provision allows felons who have paid their debt to society to obtain post-conviction relief that gives them back their firearms rights. This language in the definition raises complex issues of State law, particularly in the area of whether a particular restoration of rights is complete. Questions about a particular felony conviction and post-conviction relief should be discussed with qualified counsel.

If the conviction in question is one for a Federal offense, the only avenue of relief is a Presidential pardon. Presidential pardons are obtained by petitioning the Department of Justice, Office of the Pardon Attorney. Very few Presidential pardons are granted each year.

3. Foreign Convictions

Does the reference to “any court” in the language of section 922(g)(1) include convictions in foreign jurisdictions? In a 2005 decision (Small v. U.S., 544 U.S. 385 (2005)) the Supreme Court held that foreign convictions are not disabling under the GCA. The court expressed concern over the fact that a number of foreign jurisdictions do not recognize fundamental rights, such as the right against self-incrimination, right to counsel, right to confront witnesses, and the right to a jury trial.

4. Military Tribunals

Federal courts considering the issue of convictions by military courts are generally in agreement that conviction by general court-martial results in firearms disabilities under section 922(g)(1). This is because all offenses tried by general court-martial are punishable by more than one year of imprisonment. Conversely, a special court-martial may not result in imprisonment for a term exceeding one year. Accordingly, persons convicted under a special court-martial are not subject to Federal firearms disabilities under section 922(g)(1). See Halbrook, Stephen, Firearms Law Deskbook, 2014-2015 Ed., § 2:14, Thompson Reuters, 2014.

C. Fugitives from Justice- 18 U.S.C. 922(g)(2)

Persons who are fugitives from justice are prohibited from receiving, possessing, shipping, and transporting firearms and ammunition. The term “fugitive from justice” is not defined in the GCA, but implementing regulations provide the following definition:

Any person who has fled from any State to avoid prosecution for a felony or a misdemeanor; or any person who leaves the State to avoid giving testimony in any criminal proceeding. The term also includes any person who knows that misdemeanor or felony charges are pending against such person and who leaves the State of prosecution.

27 C.F.R. § 478.11.

1. Flight from the State

The regulatory definition makes it clear that the individual in question must leave the State of prosecution to be a
fugitive from justice. Federal courts have not been consistent in requiring the government to prove that the purpose of leaving the state was to avoid court proceedings. Even if Federal courts are not consistent, the Federal Bureau of Investigation (FBI), which operates the National Instant Criminal Background Check System (NICS), consistently denies firearms transfers by FFLs to unlicensed purchasers if there is an outstanding arrest warrant for the purchaser in the NICS system.

2. Military Courts

Section 922(g)(2) applies to flight from military courts. This means that a member of the armed forces who is absent without leave and left the state knowing military charges are pending, is a “fugitive.”

D. Unlawful Drug Users and Drug Addicts – 18 U.S.C. § 922(g)(3)

Section 922(g)(3) makes it unlawful for any person who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)) to transport, possess, receive, or ship firearms or ammunition. The definition of “controlled substance” is listed in regulations in 21 C.F.R. § 1308.11-1308.15. Significantly, the definition of “controlled substance” excludes distilled spirits, wine, malt beverages, or tobacco, as those terms are defined in the Internal Revenue Code.

1. Regulatory Definition

The term “unlawful user of or addicted to any controlled substance” is not defined in the statute, but ATF issued a very long regulatory definition of the term in 1997. The definition is relied upon by the FBI/NICS when it processes FFL requests for background checks. The regulatory definition makes it clear the unlawful drug use must be “current,” and such use “is not limited to the use of drugs on a particular day, or within a matter of days or weeks before, but rather that the unlawful use has occurred recently enough to indicate that the individual is actively engaged in such conduct.” The regulatory definition goes on to state that a person may be an unlawful user even though the substance is not being used at the precise time the person seeks to acquire a firearm or possesses a firearm. Then the definition goes on to provide examples of when an “inference of current use” may be drawn, as follows:

Conviction for use or possession of a controlled substance within the past year;

Multiple arrests for such offenses within the past 5 years if the most recent arrest occurred within the past year; or

Persons found through a drug test to use a controlled substance unlawfully, provided the test was administered within the past year.

FBI/NICS will deny a firearms transaction if there is evidence of any of the above.

The circumstances listed above merely give rise to an “inference” of current use. Inferences may be dispelled through other evidence, resulting in the disability going away. An example of an inference that may be dispelled is a positive drug test. A subsequent drug test that is negative would dispel the inference raised by the initial positive test. Successful completion of a drug rehabilitation program may also dispel the inference of current use.

2. State Legalization of Marijuana

The legalization of marijuana in a number of states has resulted in a great deal of confusion about this category of prohibited person. The statute prohibits the possession of firearms and ammunition by persons who are unlawful users of or addicted to any controlled substance as defined in 21 U.S.C. 802. Title 21 is the Federal controlled substances statute, and it continues to prohibit the possession of any quantity of marijuana for any purpose. This is true despite the enactment of State laws legalizing the possession of small quantities of marijuana for medicinal or recreational use. Accordingly, persons who possess and use marijuana do so in violation of Federal law and may not lawfully possess firearms or ammunition under the Gun Control Act.

ATF addressed the issue of State law authorizing the use of medical marijuana in an Open Letter dated September 21, 2011. The Open Letter states that possession of a card authorizing the possession of marijuana under State law gives rise to an “inference of current use” within the meaning of the regulatory definition of unlawful drug user. This means that any person who is aware that an individual holds such a card and who disposes of firearms or ammunition to the holder of the card would violate 18 U.S.C. § 922(d)(3). The Open Letter indicates that the transferee would have reasonable cause to believe the card holder is an unlawful drug user. This ATF position is a cautionary note for any FFL in Colorado, Oregon, or any other State that has legalized the possession of marijuana. FFLs who knowingly allow marijuana-using employees to possess firearms or ammunition may be violating Federal law and placing their GCA licenses in jeopardy. As noted in ATF’s Open Letter, if the FFL knows an employee holds a medical marijuana card or other State identification card authorizing the possession of marijuana under State law, the FFL must ensure the employee does not have actual or constructive possession of firearms or ammunition. FFLs in this situation should contact qualified counsel to determine whether any mitigating factors could result in dispelling the inference raised by the employee’s possession of the card.

E. Adjudication as a Mental Defective or Commitment to a Mental Institution-18 U.S.C. § 922(g)(4)

This provision of the GCA prohibits the possession of firearms and ammunition by any person “who has been adjudicated as a mental defective or who has been committed to a mental institution.” The fact the GCA was enacted in 1968 accounts for the outdated term “mental defective.” Political correctness aside, the terms “adjudicated as a mental defective” and “committed to a mental institution” are defined in implementing regulations. We will address each definition below.

1. Adjudicated as a Mental Defective

The term is defined in 27 C.F.R. § 478.11 as follows:

Adjudicated as a mental defective. (a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.

(b) The term shall include—

(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

The portion of the definition in (b)(2) is puzzling, as it appears to cover persons found incompetent to stand trial or not guilty by reason of lack of mental responsibility only by a military court. In a January 7, 2014 Notice of Proposed Rulemaking, ATF made it clear that it interprets the regulation as meaning ALL persons found incompetent to stand trial or not guilty due to lack of mental capacity are prohibited. In ATF 51P, 79 Fed. Reg. 774, the Department of Justice proposed amending the definition of “adjudicated as a mental defective” to remove the reference to military courts and to add language making it clear that requisite findings by all Federal, state, local, and military courts result in Federal firearms disabilities.

Pursuant to the definition, there must be a determination by a court, board, commission, or other lawful authority that the person is a danger to himself or other or lacks the requisite mental capacity. This language implies some sort of proceeding with due process and a formal finding, as opposed to a finding by a single doctor or other medical professional. Social Security disability benefits awarded by an Administrative Law Judge on the basis of a mental disease or defect could result in an adjudication as a mental defective if all other requirements of the regulatory
definition are met.

2. Committed to a Mental Institution

The regulatory definition of this term is as follows:

Committed to a mental institution. A formal commitment of a person to a mental institution by a court, board, commission, or other lawful authority. The term includes a commitment to a mental institution involuntarily. The term includes commitment for mental defectiveness or mental illness. It also includes commitments for other reasons, such as for drug use. The term does not include a person in a mental institution for observation or a voluntary admission to a mental institution.

Many states have mental health laws that allow temporary involuntary hospitalization of a person for a limited timeframe based on the medical certification of a certain number of doctors. A judicial proceeding is generally necessary for further hospitalization beyond the short (48-72 hours) initial hospitalization for observation. Some states require a judicial hearing or judicial review even for a temporary hospitalization or provide an opportunity for a hearing to challenge it. These types of proceedings result in a commitment that is disabling under the GCA. What is unclear is whether state laws that provide no preliminary hearing or opportunity for a hearing likewise result in Federal firearms disabilities. Case law in Federal courts is inconsistent on this issue, with some courts holding that temporary commitments for observation with no judicial process do not result in disabilities (Fifth and Eighth circuits), while other courts hold that a temporary commitment for observation without judicial process followed by a voluntary commitment results in disabilities (First and Second circuits).

Because the regulatory definition of “commitment” appears to distinguish voluntary commitments from involuntary, the writers believe the better reasoned decisions conclude only involuntary commitments with judicial process should be disabling. Basic notions of due process should require judicial involvement before an individual suffers the permanent loss of his or her firearms rights.

ATF’s 2014 Notice of Proposed Rulemaking also proposed revision of the definition of “commitment.” The agency proposed adding language to make it clear that involuntary commitment to a mental institution includes both inpatient and outpatient treatment. ATF also solicited comment on whether commitments of individuals under the age of 18 should be considered disabling.

3. Permanent Disability

The authors note that persons who have been adjudicated as a mental defective or committed to a mental institution are permanently prohibited from receiving or possessing firearms or ammunition. Even if the person’s mental disease or defect is cured and a court or other body finds the person is restored to competence, the GCA firearms disabilities continue to apply. Federal relief from disabilities is unavailable, as appropriation riders in ATF’s annual appropriations prohibit the agency from acting on relief applications submitted by individuals. The NICS Improvement Amendments Act of 2007 allows states to establish relief programs for persons subject to disabilities under section 922(g)(4), but few have done so. Persons who require mental health treatment should not have to choose between such treatment and permanent loss of their firearms rights, but that is the unfortunate truth for most people.

II. Conclusion

The authors hope Part I of our review of Federal firearms disabilities has been informative. Look for Part II in the next edition of Small Arms Review.

About the authors:

Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (www.reevesdola.com). For more than ten years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls.

Teresa Ficaretta is one of the country’s foremost experts on ATF regulations under the Gun Control Act, the National Firearms Act, the Arms Export Control Act and Federal explosives laws. Before joining Reeves & Dola in 2013, Teresa served as legal counsel to ATF for 26 years, followed by two years as Deputy Assistant Director in Enforcement Programs and Services. They can be reached at 202-683-4200.