__________
2. The
term “civil rights” in 18 U.S.C. § 921(a)(33)(B)(ii), which provides
several exceptions to the prohibition in 18 U.S.C. § 922(g)(9) on the right
of a person convicted of a misdemeanor crime of domestic violence to possess
a firearm, generally refers to the rights to vote, hold elective office, and
sit on a jury.
3. A
violation of 18 U.S.C. § 922(g)(9), which prohibits the possession of a
firearm by one who has a prior misdemeanor conviction for domestic violence,
does not require that the underlying statute include as an element of the offense
a domestic relationship between the victim of the domestic violence and the misdemeanant.
It requires only that the misdemeanor was committed against a person who is enumerated
in one of the domestic relationships with the misdemeanant specified in 18 U.S.C. § 921(a)(33)(A)(ii).
Maynard, Justice:
Appellant,
Robert Adam Parsons, appeals the July 19, 2004, order of the Circuit Court of
Ohio County that denied Appellant's petition to regain the ability to possess
a firearm based on the court's finding that the grant of such relief would violate
federal law. For the reasons that follow, we affirm the circuit court's order.
After
Appellant's probationary period expired, he filed a petition pursuant to W.Va.
Code § 61-7-7(c) in the Circuit Court of Ohio County to regain the ability
to possess a firearm. Subsequent to a hearing on the matter, the circuit court
dismissed Appellant's petition after finding that the grant of the relief requested
would violate federal law. Appellant now appeals this order.
Any
person prohibited from possessing a firearm by the provisions of subsection (a)
of this section may petition the circuit court of the county in which he or she
resides to regain the ability to possess a firearm and if the court finds by
clear and convincing evidence that the person is competent and capable of exercising
the responsibility concomitant with the possession of a firearm, the court may
enter an order allowing the person to possess a firearm if such possession would
not violate any federal law.
The circuit court denied the relief sought by Appellant after finding that
Appellant's possession of a firearm would violate the Gun Control Act of 1968
which provides that a person convicted of a misdemeanor crime of domestic violence
is prohibited from, inter alia, possessing a firearm. Specifically,
according to 18 U.S.C. § 922(g)(9),
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 or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.
The circuit court concluded that Appellant's conviction of domestic assault
constitutes a conviction of a misdemeanor crime of domestic violence under
the federal statute so that Appellant is now prohibited from possessing a firearm. (See
footnote 1)
Appellant
challenges the circuit court's conclusion on several grounds. First, Appellant
cites the language of 18 U.S.C. § 921(a)(33)(B)(ii), which states:
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.
According to Appellant, the restoration exception in the above provision applies
to him so that restoration of his civil rights would only violate federal law
if the restoration order specifically denied firearm or ammunition possession. (See
footnote 2) We reject this argument.
By its
plain terms, 18 U.S.C. § 921(a)(33)(B)(ii) provides that a person shall
not be considered to be convicted of such an offense “if the conviction
. . . 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).” Federal case law indicates that a person who has
not lost his or her civil rights cannot have them “restored” for the
purpose of 18 U.S.C. § 921(a)(33)(B)(ii). In United States v. Jennings, 323
F.3d 263 (4th Cir. 2003), cert. denied, 540 U.S. 1005, 124
S.Ct. 531, 157 L.Ed.2d 412 (2003), the defendant was convicted in the United
States District Court for the District of South Carolina of possessing
a firearm after a conviction in state court of a misdemeanor crime of domestic
violence. Because the defendant was not incarcerated for his misdemeanor domestic
violence conviction, he lost none of his civil rights under South Carolina
law. The defendant appealed the firearm possession conviction. The Fourth Circuit
framed the issue as “whether a person convicted of a [misdemeanor crime
of domestic violence] but never stripped of his civil rights under state law
is thereafter subject to prosecution under 18 U.S.C. § 922(g)(9).” Jennings, 323
F.3d at 266. The court noted that it was the defendant's contention that he
could not be convicted of violating 18 U.S.C. § 922(g)(9) because, regarding
his domestic violence conviction, his civil rights, even though they had never
been taken away, were nevertheless “restored” under 18 U.S.C. § 921(a)(33)(B)(ii).
The court gave short shrift to this argument, reasoning as follows:
As
the court noted in McGrath v. United States, 60 F.3d 1005 (2d
Cir. 1995) [cert. denied, 516 U.S. 1121, 116 S.Ct. 929, 133 L.Ed.2d 857
(1996)], the “word 'restore' means 'to give back (as something lost or taken
away).'” Id. at 1007 (quoting Webster's Third New International
Dictionary 1936 (1976)). And, the “'restoration' of a thing never lost
or diminished is a definitional impossibility.” McGrath, 60 F.3d
at 1007. Because Jennings' civil rights were never taken away, it is impossible
for those civil rights to have been “restored.”
Jennings, 323 F.3d at 267.
The Jennings court
then addressed the defendant's argument that it is absurd to treat those misdemeanants
who never lost their civil rights more harshly than those
misdemeanants who temporarily lost their civil rights while incarcerated and
had them restored upon release from incarceration. In answering the question
whether a literal application of the word “restored” to the defendant
produces an absurd result, the court carefully reviewed case law from other
federal circuit courts and found the decisions reached by four of these courts, McGrath,
supra, United States v. Smith, 171 F.3d 617 (8th Cir. 1999), United
States v. Hancock, 231 F.3d 557 (9th Cir. 2000), cert. denied, 532
U.S. 989, 121 S.Ct. 1641, 149 L.Ed.2d 500 (2001), and United States v. Barnes, 295
F.3d 1354 (D.C.Cir. 2002), to be persuasive. Thus, the court concluded that,
the
literal application of the word “restored” as contained in 18 U.S.C. § 921(a)(33)(B)(ii)
to Jennings, i.e., requiring him to demonstrate that his civil rights
were lost and restored, does not produce an absurd result. First, as recognized
by the McGrath, Smith, Hancock, and Barnes courts, Congress knew
when it enacted the restoration exceptions of 18 U.S.C. §§ 921(a)(20)
and 921(a)(33)(B)(ii) that the several states had drastically different laws
governing the restoration of civil rights and that drastically different, perhaps
anomalous, results were bound to occur. However, Congress intentionally keyed
the restoration of civil rights to state law so it follows that Congress consciously
made the decision to accept anomalous results _ like a result that favors incarcerated
midemeanants over misdemeanants that were not incarcerated. Second, Jennings
has other avenues he can pursue to fall within the restoration exception of 18
U.S.C. § 921(a)(33)(B)(ii); namely, pardon and expungement. Third, to accept
Jennings' position would allow the restoration exception of 18 U.S.C. § 921(a)(33)(B)(ii)
to swallow the rule. Under Jennings' formulation, all persons who are convicted
of a [misdemeanor crime of domestic violence] and who do not lose their civil
rights would be permitted to possess a firearm. Such a construction would allow
almost all persons convicted of a [misdemeanor crime of domestic violence] to
possess a firearm, thereby substantially undercutting the federal policy
aimed at trying to take firearms out of the hands of persons convicted of a
[misdemeanor crime of domestic violence].
Jennings, 323 F.3d at 274 (citations omitted). (See
footnote 3)
We concur
with the reasoning in Jennings and the cases on which it relies. Therefore,
we hold that a person who has been convicted of a misdemeanor crime of domestic
violence and who does not lose his or her civil rights as a result of the conviction
cannot have his or her civil rights “restored” for the purpose of 18
U.S.C. § 921(a)(33)(B)(ii) so as to fall within that provision's restoration
exception to the prohibition on firearm possession in 18 U.S.C. § 922(g)(9).
Appellant
further avers that his right to possess a firearm is a “civil right” which
was taken away upon his domestic assault conviction and is therefore a right
that may be restored. We reject this contention. Generally, federal courts have
held that the “civil rights” in question under 18 U.S.C. § 921(a)(33)(B)(ii) “are
those which most states extend by virtue of citizenship within their borders:
(i) the right to vote; (ii) the right to hold elective office; and (iii) the
right to sit on a jury.” McGrath, supra, at 1007 (citation omitted).
The
United States Court of Appeals for the Fourth Circuit has indicated that “[i]n
determining whether a defendant's civil rights have been restored, we look
to the whole of state law to determine whether the state has returned to the
defendant the rights to vote, to hold public office, and to serve on a jury.” United
States v. King, 119 F.3d 290, 293 (4th Cir. 1997) (internal
quotation marks and citations omitted). Accordingly, we hold that the term “civil
rights” in 921(a)(33)(B)(ii), which provides several exceptions to the
prohibition in 922 U.S.C. § (g)(9) on the right of a person convicted
of a misdemeanor crime of domestic violence to possess a firearm, generally
refers to the rights to vote, hold elective office, and sit on a jury.
Under
West Virginia law, Appellant's misdemeanor conviction of domestic assault did
not cause him to lose his civil rights to vote, hold elective office, or sit
on a jury. (See footnote
4) Because Appellant did not lose these civil rights, he cannot have
them restored within the
meaning of 18 U.S.C. § 921(a)(33)(B)(ii). Consequently, the restoration
exception in 18 U.S.C. § 921(a)(33)(B)(ii) is not applicable to Appellant.
Appellant
next contends that the Legislature did not intend to disqualify domestic assault
misdemeanants from ever possessing a firearm. Again, we disagree. West Virginia
Code § 61-7-7(c) clearly prohibits the restoration of a disqualified person's
ability to possess a firearm “if such possession would . . . violate any federal
law.” “It is a settled principle of statutory construction that courts
presume the Legislature drafts and passes statutes with full knowledge of existing
law.” In re Sorsby, 210 W.Va. 708, 714, 559 S.E.2d 45, 51 (2001)
(citations omitted). Section 922(g)(9) was added to the Gun Control Act of 1968
in 1996 and, despite the fact that W.Va. Code § 61-7-7 has been amended
twice since that time, the Legislature has not seen fit to amend the language
of W.Va. Code § 61-7-7(c) which makes the restoration of a disqualified
person's right to possess a firearm contingent on such possession not violating
any federal law. Further, it is notable that when the Legislature amended W.Va.
Code § 61-7-7 in 2000, it added language specifically disqualifying persons
convicted of domestic violence from possessing a firearm. Therefore, we believe
that the Legislature has indicated its intent that persons convicted of domestic
violence should be disqualified from possessing firearms.
Finally,
Appellant asserts that elements of a misdemeanor crime of domestic violence under
the federal statute are not the same as the elements of the crime of domestic
assault under our State law. According to 18 U.S.C. § 921(a)(33)(A)(i) and
(ii),
(33)(A)
Except as provided in subparagraph (C), the term “misdemeanor crime of domestic
violence” means an offense that _
(i)
is a misdemeanor under Federal or State 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.
As noted above, Appellant was convicted of domestic assault the elements of
which are set forth in W.Va. Code § 61-2-28(b) (2004) as follows:
Any
person who unlawfully attempts to commit a violent injury against his or her
family or household member or unlawfully commits an act which places his or her
family or household member in reasonable apprehension of immediately receiving
a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall
be confined in a county or regional jail for not more than six months, or fined
not more than one hundred dollars, or both.
“Family or household members” is defined, in relevant part, in W.Va.
Code § 48-27-204 (2002), as persons who:
(1)
Are or were married to each other;
(2)
Are or were living together as spouses;
(3)
Are or were sexual or intimate partners;
(4)
Are or were dating: Provided, That a casual acquaintance or
ordinary fraternization between persons in a business or social context does
not establish a dating relationship;
(5)
Are or were residing together in the same household;
(6)
Have a child in common regardless of whether they have ever married or lived
together[.]
Although Appellant's argument on this issue is summary and vague, he apparently
contends that the definition of “family or household members” in
W.Va. Code § 48-27-204 is broader than the list of domestic relationships
in 18 U.S.C. § 921(a)(33)(A)(ii).
Instructive
on this issue is the case of United States v. Belless, 338 F.3d 1063 (9th Cir.
2003). In Belless, the defendant pleaded guilty to committing assault
and battery on his wife. However, the Wyoming assault and battery statute under
which he was charged did not include as an element that the victim share one
of the domestic relationships specified in 18 U.S.C. § 921(a)(33)(A)(ii).
It said only that “A person is guilty of battery if he unlawfully touches
another in a rude, insolent or angry manner or intentionally, knowingly or recklessly
causes bodily injury to another.” Belless, 338 F.3d at 1065 (footnote
omitted). Thus, one who engaged in conduct prohibited by the statute was guilty
of the crime whether the victim was a spouse or a perfect stranger. Several years
later, the defendant was convicted of violating 18 U.S.C. § 922(g)(9) for
possessing a firearm after having been convicted of a misdemeanor crime of domestic
violence. The defendant challenged the conviction, inter alia, on the
issue whether a domestic relationship must be an element of the
predicate crime. The court concluded that,
The
federal statute does not require that the misdemeanor statute charge a domestic
relationship as an element. It requires only that the misdemeanor have been committed
against a person who was in one of the specified domestic relationships. It is
uncontested in this case that the victim named in the Wyoming citation, Kristen
Belless, was Belless's wife, but he could have been convicted of the crime even
had he grabbed a perfect stranger by the arm and angrily shoved him against his
car. We find no indication that Congress intended to exclude from the misdemeanors
that may trigger 18 U.S.C. § 921(a)(33)(A)(ii) those crimes that are in
fact committed against persons who have a domestic relationship specified in
the statute, even if the triggering crime does not include such a relationship
as an element. Our construction is consistent with the position taken by all
seven of our sister circuits to have spoken to the issue. (See
footnote 5)
Id., at 1066.
We adopt
the reasoning of the Belless court and its sister courts and hold that
a violation of 18 U.S.C. § 922(g)(9), which prohibits the possession of
a firearm by one who has a prior misdemeanor conviction for domestic violence,
does not require that the underlying statute include as an element of the offense
a domestic relationship between the victim of the domestic violence and the misdemeanant.
It requires only that the misdemeanor
was committed against a person who is enumerated in one of the domestic relationships
specified in 18 U.S.C. § 921(a)(33)(A)(ii). The question here, then, is
whether the person against whom Appellant committed domestic assault was in
one of the domestic relationships with Appellant specified in the federal statute.
Included
in the record below is the criminal complaint against Appellant (See
footnote 6) which indicates that Kristin Conrad, the victim of Appellant's
domestic assault, lived at the same address with Appellant at the time of the
events that gave rise to Appellant's domestic assault conviction. Several courts
have concluded that a live-in girlfriend qualifies as a domestic relationship
under 18 U.S.C. § 921(a)(33)(A)(ii). See United States v. Shelton, 325
F.3d 553 (5th Cir. 2003), cert. denied, 540 U.S. 916, 1245
S.Ct. 305, 157 L.Ed.2d 210 (2003) (finding that live-in girlfriend of two months
qualified as a domestic relationship under the statute); United States v.
Denis, 297 F.3d 25 (1st Cir. 2002) (affirming conviction under
18 U.S.C. § 922(g)(9) where victim of predicate misdemeanor assault charge
was appellant's live-in girlfriend at the time of the offense). At least one
court has found that the fact that the victim was the misdemeanant's girlfriend
for several years satisfies the “similarly situated requirement” of § 921(a)(33)(A)(ii). See
Eibler v. Dept. of Treasury, 311 F.Supp.2d 618
(N.D. Ohio 2004). We therefore believe that the record herein contains a sufficient
factual basis for finding that the victim and Appellant met the domestic relationship
requirement of § 921(a)(33)(A)(ii).
In summary,
we find that Appellant committed a misdemeanor crime of domestic violence as
defined in 18 U.S.C. § 921 (a)(33)(A)(ii) and is therefore prohibited from
possessing a firearm under 18 U.S.C. § 922(g)(9). Because Appellant's possession
of a firearm would violate federal law, the circuit court properly dismissed
Appellant's petition to regain the ability to possess a firearm.
Affirmed.