Litigation Highlight: Municipal Ordinances and Domestic-Violence Misdemeanors

Felon gun possession bans have been in the news recently, as federal appellate courts reach disparate conclusions about whether felons can challenge such prohibitions under the Second Amendment and the federal government explores restarting a gun-rights restoration program.  However, there isn’t much uncertainty about the scope of felon bans, which generally apply to those convicted of offenses with a possible punishment of more than one year in prison.  Federal law also prohibits domestic violence misdemeanants from possessing guns for life.  But misdemeanor-based prohibitions can raise thornier definitional questions: for example, do municipal ordinances count as misdemeanor offenses for purposes of the federal ban, even if not expressly labeled as such in the city code?  A Colorado appellate court recently confronted this issue and determined that the federal statute encompasses both state and municipal violations.

In the felon context, the issue is typically black-and-white because the federal definitions section refers to any “crime punishable by imprisonment for a term exceeding one year.”  In other words, federal law is concerned only with the maximum possible term of imprisonment and not with how the crime is labeled by the relevant jurisdiction.  The one exception is that state crimes “classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less” are carved out of the federal felon prohibitor by 18 U.S.C. § 921(a)(20)(B).  But, if the possible term of imprisonment is two years and one day or longer, then the fact that the state classifies the offense as a misdemeanor rather than a felony does not matter.  For example, Bryan Range—whose as-applied Second Amendment challenge was granted by the en banc Third Circuit—was subject to the federal felon ban because he pled guilty to a state misdemeanor punishable by up to five years in prison.

In 1996, Congress added domestic-violence misdemeanants to the list of prohibited persons in 922(g) through the Lautenberg Amendment (this prohibition appears at 18 U.S.C. § 922(g)(9)).  The ban applies to those convicted of a “misdemeanor crime of domestic violence,” defined in 18 U.S.C. § 921(a)(33)(A) as

an offense that . . .

(i)             is a misdemeanor under Federal, State, Tribal, or local 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, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.

This definition is, understandably, more complicated than the “felony” definition because it has to capture only those offenses that demonstrate the type of violence that Congress was concerned about when it passed the Lautenberg Amendment.  The definition also shifts the focus away from the term of imprisonment to rely, in subsection (i), on the relevant jurisdiction’s categorization of the offense as a “misdemeanor”—rather than something lower, like a mere “violation.”

In Marquez v. Cooper, the plaintiff-appellant (Andrew Marquez) was arrested in 1997 after an argument with his wife where he struck her in the forehead and inadvertently injured their child by slamming a door.  Marquez ultimately pled guilty to a Denver city assault ordinance and “admit[ed] that the assault charge was predicated on an act of domestic violence.”  The ordinance was unclassified (i.e., it did not carry a “misdemeanor” label) and had a maximum sentence of one year in prison.[1]  Around 2021, Marquez became interested in acquiring a firearm and learned that he was barred from doing so because of his earlier conviction.  He first attempted unsuccessfully to withdraw his prior guilty plea—arguing that he was unaware of the collateral consequences of the conviction and loss of gun rights.  Marquez then sought to purchase a firearm in 2023.  His application was denied due to the 1997 assault conviction and Marquez appealed that denial in court, arguing that officials acted contrary to law in denying his application and that they violated his right to keep and bear arms.

Marquez’s primary argument was that “because the municipal code does not expressly classify domestic violence assault as a misdemeanor, the [background check officer] erred by concluding that the conviction prohibited him from purchasing a firearm.”  The trial court ruled against Marquez and he appealed. 

The appellate panel spent most of its time on Marquez’s statutory interpretation arguments.  As the court noted,

Marquez does not dispute that his conviction for assault arose out of an act of domestic violence. Thus, the controlling question is whether this offense was a “misdemeanor” within the meaning of § 921(a)(33)(A)(i).

Marquez contended that, because Denver had the authority to classify municipal offenses as misdemeanors or otherwise and did not do so,[2] the city’s failure to classify the assault offense as a statutory “misdemeanor” was dispositive of its federal treatment.  Marquez also pointed to resources on the city’s website that “distinguish[] municipal ordinance violations from misdemeanor crimes,” and the trial judge’s stray remark that municipal ordinances are normally not considered misdemeanors. 

The panel observed that, prior to Congress' reauthorization of the Violence Against Women Act (VAWA) in 2022, the relevant language in § 921(a)(33)(A) referred only to misdemeanor convictions under “Federal, State, or Tribal law” and the Tenth Circuit had interpreted this language to “not include a violation of a municipal ordinance” (especially given repeated use of the word “local” in other areas of the statutory framework).  However, in 2022, Congress amended the language to add “or local law” to the list.  Noting that “misdemeanor” typically refers to all crimes less serious than a felony, the panel also found that the 2022 amendment “expand[ed] the scope of offenses covered by § 922.”  Thus, the court said, “[i]t would be incongruous with this intent to interpret § 921(a)(33)(A)(i) in a way that would effectively delegate to every local jurisdiction the authority to control the scope of § 922’s firearm purchase ban by not classifying offenses that authorize a possible jail sentence of up to a year as misdemeanors.”

The panel also found that Marquez had failed to preserve his Second Amendment argument—that application of the federal DV misdemeanor ban to him is inconsistent with history and tradition—by failing to develop it below.  Therefore, the panel affirmed the trial court’s order dismissing Marquez’s complaint. 

Marquez illustrates a concrete, if under-appreciated, way in which recent Congressional action has altered federal gun control law.  Given Tenth Circuit precedent construing the pre-2022 language to exclude municipal offenses, Marquez would not be prohibited from owning a firearm but for Congress' 2022 addition of “local law” into § 921’s definition of “misdemeanor crime of domestic violence.”  This change—which occurred in the same year that Congress passed the first major piece of federal gun legislation in nearly 30 years with the Bipartisan Safer Communities Act—may be broadly consequential for those with older convictions.  That’s because domestic violence often wasn’t treated as a criminal offense until the rise of mandatory-arrest requirements and no-drop policies in the 1980s and 1990s and, ultimately, domestic-violence-specific criminal prohibitions that have been enacted in certain states.  Leigh Goodmark traces that history here.  And, especially in the early days, whether a domestic violence offense resulted in an arrest and prosecution (and whether that proceeding included a specific finding that the defendant had committed domestic violence) may well have varied substantially within a state; specifically, local law may have had an outsized impact where progressive policies were not embraced early at the state level.

Picking up older offenses (like Marquez’s) that clearly involve domestic violence of the kind that motivated the Lautenberg Amendment is broadly consistent with legislative intent.  However, it also raises the question of whether gun rights should be restored to domestic violence misdemeanants and under what circumstances.  Mel Gibson recently had his federal gun rights, which he lost under 922(g)(9) following a 2011 no-content battery plea involving an ex-girlfriend, restored by the Justice Department.  With regard to domestic-violence offenses, one hopes that any future restoration program will set a high bar recognizing the risk of recidivism and that applicants will be treated fairly regardless of their stature. 

[NOTE:  This post has been corrected to reflect that the 2022 addition of "local law" to 18 U.S.C. § 921(a)(33)(A) occurred through Congress' reauthorization of VAWA and not as part of the Bipartisan Safer Communities Act.]