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Official Opinion 96-25

Official Opinion 96-25

December 27, 1996
To: 

Acting Executive Director
Georgia Peace Officer Standards and Training Council

Re: 

Questions regarding Pub. L. 104-208, amending the Gun Control Act of 1968, under the Omnibus Consolidated Appropriations Act of 1997.

This is in response to your request for an opinion regarding certain provisions amending the Gun Control Act of 1968, 18 U.S.C. § 921 et seq., which amendments were made part of the Omnibus Consolidated Appropriations Act of 1997.

These amended provisions of the Gun Control Act (The Act) affect all individuals and public employees. Law enforcement personnel are specifically included. The legislation is entitled GUN BAN FOR INDIVIDUALS CONVICTED OF A
MISDEMEANOR CRIME OF DOMESTIC VIOLENCE. The statute provides:

[T]he 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.

An individual who has been convicted of a "misdemeanor crime of domestic violence" may not "ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922. Further,

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.

18 U.S.C. § 921(a)(33)(B)(ii).

The responses to your questions which relate to how the Act affects the Peace Officer Standards and Training Council's (POST) responsibilities in certification matters are addressed separately below.

1. Are persons who have not lost the right to bear arms affected by this act?

As your question implies, under Georgia law, misdemeanants do not generally lose their major civil rights. These rights include the right to possess firearms, the right to vote, to hold public office or to serve on a jury. However, this new amendment under federal law specifically pertains to the right to possess a firearm. The pertinent language which addresses the issue is quoted above in 18 U.S.C. § 921(a)(33)(B)(ii) wherein the loss of the right to ship, transport, possess, or receive firearms is only restored by being

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.

Of interest is the discussion regarding this new law by Senator Lautenberg in his address to the Senate on September 30, 1996, which address is recorded in the Congressional Record. Senator Lautenberg states:

Mr. President, another new provision in the final agreement clarifies that a conviction will not lead to a firearm disability if the conviction has been expunged or set aside, or is for an offense for which the person has been pardoned or has had civil rights restored. This language mirrors similar language in current law that applies to those convicted of felonies.

I would note that the language on civil rights restoration, as it has been applied in the past, and as it should be interpreted in the future, refers only to major civil rights, such as the right to vote, to hold public office, and to serve on a jury. Loss of these rights generally does not flow from a misdemeanor conviction, and so this language is probably irrelevant to most, if not all, of those offenders covered because of the new ban. But I want to make it clear that the restoration of any firearm rights under state law would not amount to a civil rights restoration for these purposes. In fact, any such State law effectively would be preempted by this language, and so could not have any legal effect.

142 Cong. Rec. S11,876, 11,877-78 (daily ed. Sept. 30, 1996) (statement of Sen. Lautenberg).

From the above it may be inferred that federal law preempts any state restoration of the right to possess firearms. However, anyone in Georgia who has a misdemeanor conviction for a crime of domestic violence who is pardoned or who has the conviction expunged or set aside "shall not be considered to be convicted" under the new federal statute. I believe the sounder conclusion to be that derived from the express language of the statute. Hence upon expungement, pardon or set aside, the law enforcement officer, or any other citizen otherwise authorized, may once again carry a firearm.

2. What limitations does this act place on the certification of peace officers, and what are the responsibilities of the Council in relation to those officers currently certified who may be in violation of this Act?

Under O.C.G.A. § 35-8-7(14), POST has the authority to "refuse to grant a certificate to or to discipline a certified peace officer." Official Code of Georgia Annotated § 35-8-7.1 sets forth the grounds upon which denial or discipline is authorized. Because the recently amended Gun Control Act of 1968, 18 U.S.C. § 921 et seq., requires that a person convicted of a misdemeanor crime of domestic violence surrender all firearms and ammunition, any affected law enforcement personnel who are required to carry firearms may be rendered unable to perform as peace officers, thus raising certification issues.

The provisions of O.C.G.A. § 35-8-8 outline the qualifications for peace officer. There is no requirement of possessing a firearm that is specifically listed. However, as I understand it, for initial, mandatory peace officer training there is a specific firearms course which must be satisfactorily completed. This requirement of firearms training is part of the POST approved Basic Law Enforcement Training Course and is a thirty- two (32) hour segment of the Basic Training taught about four (4) weeks into the nine (9) week course. Because an applicant who has been convicted of a misdemeanor crime of domestic violence cannot possess a firearm, the applicant could not successfully complete the Basic Training Course. Granting such an applicant the right to take the Basic Training would be futile.

For peace officers who currently have a certificate, the inability to possess firearms will have the practical effect on law enforcement units of deciding whether to continue to employ these officers who do not have all the means potentially necessary to make an arrest. This employment decision will initially be made by the respective law enforcement units. When these decisions by the law enforcement agencies result in actions that are forwarded to POST, the POST Council will have the option of determining whether and what kind of sanction should be imposed under O.C.G.A. § 35-8-7.1. Since each individual case may present different options, a review of each case will be required.

The various federal constitutional questions, to include but not be limited to federalism and ex post facto concerns, were not considered in the preparation of this opinion.

Prepared by:

CAROL A. CALLAWAY
Senior Assistant Attorney General