Legally Armed: V20N2

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

GCA Firearms Restrictions— Who Is a Prohibited Person?

Part II: 18 U.S.C. § 922(g)(5)-(9)

In Vol. 20, No. 1, we provided readers with an overview of Federal firearms disabilities imposed under the Gun Control Act (GCA), 18 U.S.C. Chapter 44. Because there are 10 categories of “prohibited persons” under the GCA, we addressed 5 of the disabilities in Part I of the article, and this article addresses the remaining 5 disabilities as Part II. As stated in Part I, 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 will discuss the prohibited persons described in 18 U.S.C. § 922(g)(5)-(9), which includes illegal and nonimmigrant aliens; persons dishonorably discharged from the military; renunciants of U.S. citizenship; persons subject to domestic violence restraining orders, and persons convicted of misdemeanor crimes of domestic violence.

I. GCA Categories of Prohibited Persons § 922(g)(5)-(9)
A. 18 U.S.C. § 922(g)(5) – Illegal Aliens and Nonimmigrant Aliens

Section 922(g)(5) includes two separate and distinct disabilities. The first applies to “aliens” who are illegally or unlawfully in the United States. The second applies to aliens who have been admitted to the United States under a nonimmigrant visa, as that term is defined in the Immigration and Nationality Act. We will discuss each of these
disabilities separately.

1. Aliens Illegally or Unlawfully in the United States–§ 922(g)(5)(A)

This provision has been in the GCA since enactment in 1968, but was not defined until ATF issued regulations implementing the Brady Law in 1997. The regulations provide that the term “alien illegally or unlawfully in the United States” means aliens who are not in valid immigrant, nonimmigrant or parole status. The definition in 27 § C.F.R. § 478.11 provides examples of aliens included in the term, such as persons who enter the United States without presenting themselves to an immigration officer, nonimmigrants whose periods of stay have expired or who violate the terms of their entry, and persons under a deportation or removal order.

Questions often arise about aliens who have applied for adjustment status and allowed to stay in the United States while the application is pending. Federal courts have held that aliens in this situation still entered the United States illegally and cannot lawfully possess a firearm. There is an exception in one federal circuit involving a case where an individual filed for and received Temporary Protected Status. Under these circumstances that court held such a person is not an illegal or unlawful alien under the GCA because he or she is allowed to remain in the United States and work in the same manner as a nonimmigrant alien. See United States v. Orellana, 405 F.3d 360, 365 (5th Cir. 2005). The Department of Justice does not extend the rationale of the case to other circuits.

2. Aliens Admitted to the United States under a Nonimmigrant Visa– § 922(g)(5)(B)

Congress added the disability for persons who enter the United States under a nonimmigrant visa to the GCA in 1998. The plain language of the statute limits the prohibition to persons who enter the United States with a nonimmigrant visa. However, when ATF issued implementing regulations in 2002, the agency interpreted the prohibition to apply to ALL nonimmigrants, whether or not they entered the United States with a visa. This is a significant expansion of the statutory prohibition, as many foreign visitors are not required under the Immigration and Nationality Act to present a visa when entering the United States. Canadian citizens are the biggest category, as well as persons from countries in the Visa Waiver Program (VWP). Information on the VWP, including a list of participating countries, can be found on the Department of State website.

In 2011, the Department of Justice’s Office of Legal Counsel (OLC) advised ATF that the agency’s interpretation of the nonimmigrant alien prohibition was overly broad. OLC advised ATF that the prohibition does not apply to all nonimmigrant aliens present in the United States, but only those aliens admitted to the United States under a nonimmigrant visa. Subsequently on December 8, 2011, ATF posted an Open Letter to All Federal Firearms Licensees on its website advising that, in accordance with direction from OLC, the agency was changing its interpretation of the law so that most Canadian visitors in the United States and aliens admitted under the Visa Waiver Program would no longer be prohibited from possessing firearms under the GCA. On June 7, 2012 (77 FR 33625), ATF amended its regulations to reflect this position.

The disability for nonimmigrant aliens present in the United States pursuant to a nonimmigrant visa has a number of statutory exceptions. The exceptions, listed in 18 U.S.C. § 922(y)(2), include the following:

aliens admitted to the United States for lawful hunting or sporting purposes (e.g., an organized shooting competition);
aliens in possession of a hunting license or permit lawfully issued in the United States;
official representatives of a foreign government who are accredited to the United States Government or the Government’s mission to an international organization headquartered in the United States;
officials of a foreign government or a distinguished foreign visitor so designated by the Department of State; and
foreign law enforcement officers of a friendly foreign government entering the United States on official law enforcement business.

The easiest exception to satisfy is the hunting license exception. Any alien may easily avoid the prohibitions of the statute by obtaining a hunting license from any State, and the possession of firearms or ammunition need not be in the State where the hunting license was issued. This exception has been criticized because of its ease in avoiding the statutory disability.

The GCA also includes a “waiver” provision that allows a nonimmigrant alien to apply for a waiver from the restrictions of the statute by submitted a petition to the Attorney General. We note, however, that neither ATF nor the Department of Justice have published regulations or any other guidance implementing the waiver provisions. Consequently, it is likely easier and more expedient to obtain a hunting license than to submit a petition to the
Department of Justice.

Even if a nonimmigrant alien fits within an exception listed above, the alien may not lawfully purchase a firearm from a Federal firearms licensee unless he or she (1) has a valid alien admission number issued by the Department of Homeland Security (required on the Form 4473); and (2) is able to provide documentation that he or she is a resident of the State where the
FFL is located.

B. Persons Dishonorably Discharged from the U.S. Armed Forces- 18 U.S.C. § 922(g)(6)

This provision of the GCA has been in the statute since 1968, but was not defined in the regulations until 1997. The term “discharged under dishonorable conditions” is defined in 27 C.F.R. § 478.11 as “Separation from the U.S. Armed Forces resulting from a dishonorable discharge or dismissal adjudged by a general court-martial. The term does not include any separation from the Armed Forces resulting from any other discharge, e.g., a bad conduct discharge.” ATF also does not consider a general discharge as one that results in Federal firearms disabilities.
C. Persons Who Have Renounced U.S. Citizenship – 18 U.S.C. § 922(g)(7)

This is a fairly straight-forward category of prohibited persons and one that is rarely encountered. That is because it is fairly difficult to renounce U.S. citizenship in a way that satisfies the requirements under the regulatory definition of “renounced U.S. citizenship.” The definition requires that a person renounce his or her citizenship (1) before a diplomatic or consular officer of the United States in a foreign country; OR (2) Before an officer designated by the Attorney General when the United States is in a state of war. The first method, requires completion of a State Department form before a U.S. consular officer while in a foreign country. The second method has been delegated to the Department of Homeland Security, although the agency has not issued regulations implementing the authority. Renunciations of U.S. citizenship are permanent and irrevocable, absent an overturn based on involuntariness or lack of intent. Individuals who lose U.S. citizenship must reacquire it through naturalization.

D. Persons Subject to Domestic Violence Restraining Orders – 18 U.S.C. § 922(g)(8)

Congress enacted Section 922(g)(8) as part of the Violent Crime Control and Law Enforcement Act of 1994. The statute prohibits persons subject to certain domestic violation restraining orders from receiving or possessing firearms and ammunition. The disability is temporary, lasting only as long as the restraining order is in effect. It applies to a significant number of persons at any given time, as restraining orders that meet the requirements of the statute are issued by State courts routinely as part of divorce proceedings.

Not every domestic violence restraining order issued by a State or tribal court results in Federal firearms disabilities. The statute has specific requirements:

the order was issued after a hearing of which the person received notice and had an opportunity to participate in the hearing;
the order restrains the person from harassing, stalking, or threatening an intimate partner (e.g., spouse, former spouse, cohabitant) or child of the intimate partner or engaging in conduct that would place the partner in reasonable fear of bodily injury; and the order includes a finding that the person represents a credible threat to the physical safety of the intimate partner or child OR explicitly prohibits the use, attempted use, or threatened use of physical force against an intimate partner or child.

The disability is problematic because many (if not most) restraining orders meeting the requirements of the statute are never reported to NICS and are not used by the FBI as a basis for denying a firearms sale. A 1996 amendment to the Violence Against Women Act requires states to certify that its judges are required to provide notification to all domestic violence offenders of the requirements of section 922(g)(8) (and 922(g)(9), discussed below). This requirement has allowed more Federal prosecutions of violators for “knowing” violations of the GCA, but it has not resulted in more information being provided to the FBI/NICS.

Section 922(g)(8) was challenged in Federal court repeatedly after enactment on the basis of the Second Amendment, due process, equal protection, and lack of notice arguments. Courts have consistently upheld the constitutionality of the statute, finding that preventing acts of domestic violence involving firearms is a reasonable restriction on firearms possession.

E. Persons Convicted of a Misdemeanor Crime of Domestic Violence – 18 U.S.C. § 922(g)(9)

Section 922(g)(9) of the GCA is often called “the Lautenberg Amendment,” because Senator Lautenberg of New Jersey was the sponsor of the legislation. The amendment was enacted in 1996 as part of the Omnibus Consolidated Appropriations Act of 1997. This provision makes it unlawful for any person convicted of a “misdemeanor crime of domestic violence” (MCDV) to possess firearms or ammunition. The term “misdemeanor crime of domestic violence” is defined in section 921(a)(33) as an offense that—

is a misdemeanor under Federal, State, or Tribal law; and
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, someone who has cohabited with the victim, or another individual specified in the statute.

The statutory definition also provides that, even if the requirements above are established, a person is not considered convicted of a MCDV if the person was not represented by counsel and, if the person was entitled to a jury trial, he or she was tried by jury or waived the right to a jury trial. In addition, the statute has language similar to that for felony convictions providing that post-conviction events may invalidate the MCDV conviction. If the MCDV is expunged, set aside, pardoned, or the person has had civil rights restored, the MCDV will not be disabling under section 922(g)(9).

ATF’s regulations implementing the statute interpret the term “misdemeanor” to include, in States which do not classify offenses as misdemeanors, offenses punishable by imprisonment for a term of one year or less and includes offenses punishable by only a fine. Thus, even if a State does not label a particular offense as a misdemeanor, it will result in Federal firearms disabilities if the offense meets the statutory definition.

Many state misdemeanor statutes for simple assault and other misdemeanors that may qualify as MCDVs contain multiple subparts or clauses within the subparts only some of which contain the element of physical force. For example, assault statutes frequently provide that a person commits assault either by using physical force against the person OR by making verbal threats. Only the first qualifies as a MCDV. There is a great deal of case law on the evidence the government may use to determine whether a misdemeanor conviction qualifies as a MCDV. This is a complicated area of the law, and if you are unsure whether a particular offense is disabling, contact your local ATF
office for guidance.

An interesting wrinkle to the Lautenberg Amendment is that it includes language that makes this disability applicable to law enforcement officers and the military. These categories of persons are generally exempted from most of the restrictions of the Federal firearms laws because of the general government exemption in 18 U.S.C. § 925(a)(1). This results in police officers and other law enforcement officers being able to acquire firearms from FFLs in interstate commerce free of the interstate controls, Form 4473 requirements, and NICS checks required of other firearms purchasers. It also means that police officers who happen to be prohibited persons (e.g., felons, dishonorable discharges, etc.) may lawfully possess firearms and ammunition for purposes of carrying out their official duties. However, the Lautenberg Amendment added language to the GCA to carve out misdemeanor crimes of domestic violence from the general exemption. Accordingly, police officers who have been convicted of such misdemeanors may not lawfully possess firearms or ammunition for any purpose. This provision of the GCA was challenged by police organizations and individual police officers immediately after enactment and was upheld. See Fraternal Order of Police v. United States, 173 F.3d 898 (D.C. Cir. 1999). The statute has also survived a variety of constitutional challenges in the Federal courts of appeal under the Sixth Amendment, Commerce Clause, Second Amendment, Due Process Clause, and ex post facto clause.

As with domestic violence restraining orders, not all misdemeanor crimes of domestic violence are reported to NICS. Although states routinely report felony convictions to the FBI, few have the resources to report misdemeanor convictions. Accordingly, it is unlikely that all persons subject to this disability are prevented from acquiring
firearms from FFLs.

II. Conclusion

The Federal firearms disabilities imposed by the GCA are numerous and complex. The overview provided in this article cannot adequately cover all the legal issues raised by the lengthy statutory and regulatory definition. FFLs and others who have questions about a particular situation, person, or disability should contact qualified counsel or ATF for guidance.

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.