Does “Lautenberged” mean a TKO in the military?

Military service members and recruits should become familiar with the “Lautenberg Amendment” and the term of “Lautenberged.”^a These terms are the result of the laws passed to deter military service members from committing domestic violence, and to punish domestic violence offenders. One such step was the Gun Control Act. Victims’ advocates were upset that the Gun Control Act left open a loophole by including the public service exemption for military and law enforcement personnel.

The government’s solution to close the loophole was to amend the Gun Control Act in September 1996, resulting in the domestic violence amendment, 18 U.S.C. § 922(d)(9) and 18 U.S.C. § 922(g)(9), commonly known as the “Lautenberg Amendment.” The Lautenberg Amendment prohibits all persons convicted of misdemeanor crime of domestic violence from shipping, transporting, possessing or receiving firearms or ammunition. Furthermore, it also prohibits knowingly selling or providing a firearm to a person who is known to have a domestic violence conviction. The constitutionality of the law was unsuccessfully challenged in a couple of cases.^b

The Gun Control Act, specifically the Lautenberg Amendment, applies retroactively and prospectively to the previously exempt groups of current military service members and recruits. The Department of Defense has taken the Lautenberg Amendment seriously by distributing memorandums that direct the military branches to alert service members of their continuing affirmative obligation to report qualifying convictions. The Department of Defense does allow branches to determine whether to give a reasonable time to seek expungement or pardon of a qualifying conviction.

There are possible exceptions that allow service members to avoid discharge due to a qualifying conviction of domestic violence. The Department of Defense interprets the Lautenberg Amendment to not apply to major military weapon systems or “crew served military weapons and ammunition (tanks, missiles, aircraft, etc.).” In addition, it is conceivably possible to receive reassignment to a position that does not involve use of weapons or ammunition, but this likely mean a loss of rank. These are exceptions in cases of domestic violence, and the Department of Defense will not easily allow a service member to escape discharge.

In North Carolina, domestic violence includes more than just physical assault. N.C. Gen Stat. § 50B-1 defines domestic violence in relevant part as:

a) Domestic violence means the commission of one or more of the following acts upon an aggrieved party or upon a minor child residing with or in the custody of the aggrieved party by a person with whom the aggrieved party has or has had a personal relationship, but does not include acts of self-defense:

(1) Attempting to cause bodily injury, or intentionally causing bodily injury; or

(2) Placing the aggrieved party or a member of the aggrieved party’s family or household in fear of imminent serious bodily injury or continued harassment, as defined in G.S. 14-277.3, that rises to such a level as to inflict substantial emotional distress; or

(3) Committing any act defined in G.S. 14-27.2 through G.S. 14-27.7.

The definition likely includes harassment on the Internet or phone. The divorce process can create tension and arguments, and many people vent on the Internet. It is important to keep a cool head rather than sending a threatening email or posting “fighting words.”

Domestic violence is an especially serious issue for service members returning from combat. Prosecution of these acts by a civilian or military court can lead to devastating consequences. For instance, if left undiagnosed or untreated, post traumatic stress disorder (PTSD) may lead to physical and verbal aggression. The flashbacks associated with PTSD can lead to threats against spouses and/or children. In 2007, a Navy doctor sent a memorandum to colleagues that warned, “If adjudication of misconduct charges results in a less-than-honorable discharge, the Marine may lose eligibility for ongoing treatment in the Veterans Administration health care system.” Not only will the service member lose their job, they may lose veterans benefits and discontinue treatment for PTSD.

All military service members should carefully consider that a plea bargain of guilty will trigger the Lautenberg Amendment. It is unlikely to stop prosecution of a serious domestic violence incident. However, in cases of mere heated arguments, a “no fault” settlement is a possible way to prevent triggering the Lautenberg Amendment. Your attorney can immediately contact opposing counsel and suggest methods of “no-fault” settlement, including possession of the residence, division of items of personal property and, if necessary, some measures of interim support for the wife or children. The parties may want to agree to a consent order that discourages harassment and threats. You should carefully consider your attorney’s advice to give a little extra to your spouse because it is likely a better option than losing your livelihood.

Both service members and spouses may seek limited assistance from the JAG office, but usually only the first spouse to consult the office will receive assistance. Take the initiative to get treatment and counseling for PTSD, but if you are accused of domestic violence then consult your JAG office and/or a licensed criminal or family law attorney. An upcoming Rice Law blog article will discuss several laws that assist domestic violence victims to continue to receive government benefits and to enforce court orders on military property.^c

Footnotes

a) Frank Raleigh Lautenberg is a United States Senator from New Jersey that introduced and sponsored the Domestic Violence Offender Gun Ban, known as the “Lautenberg Amendment.”

b) The purpose of this article is to impress on military service members some of the important provisions of the Lautenberg Amendment. The reader interested in learning more should contact a licensed attorney in their jurisdiction.

c) The US Army reports that 27,973 of its troops were dismissed from service on punitive discharges from October 2002 to May 2009.

References

See United States v. Emerson, (No. 99-10331) (5th Cir. 2001); Gillespie v. City of Indianapolis, Indiana, 185 F.3d 693 (7th Cir. 1999); and, United States v. Waters, 23 F.3d 29 (2d Cir. 1994) (ex post facto based challenge to a 922(g)(4) conviction).

An accusation of domestic violence against a law enforcement officer will likely lead to an interrogation. North Carolina has considered more procedural protections for accused officers in the legislation entitled The Law Enforcement Officer Discipline Act. Law enforcement personnel are protected in some states and departments by a peace officer’s bill of rights. Not all states have adopted the peace officer’s bill of rights. The bill of rights usually ensures that the officer is questioned in a civil and reasonable manner. Law enforcement officers accused of domestic violence should take advantage of their right to have representation present at an interrogation. The lawyer should ensure that the officer receives a recording or transcript of the proceeding. (Source: When the Batterer is a Law Enforcement Officer: A guide for Advocates, http://www.bwjp.org, Battered Women’s Justice Project, Diane Wetendorf.)

Department of Defense Policy Memorandum on the Lautenberg Amendment, David S. C. Chu (Source: www.ricefamilylaw.com.)

Military misconduct may be sign of PTSD, http://www.washingtontimes.com, Amanda Carpenter.

Domestic Violence Problems, Protections and Practice Tips, http://www.washingtontimes.com, Mark Sullivan.