U.S. v. Hayes and collateral consequences of a domestic violence plea
The United States Supreme Court today in U.S. v. Hayes held that a conviction for simple assault and battery, if the defendant has a domestic relationship with the victim, is the same as a conviction for criminal domestic violence for purposes of the federal gun laws.
18 U.S.C. §922(g)(9) prohibits the possession of a firearm by any person who has been convicted of a misdemeanor crime of domestic violence (other provisions prohibit the possession of any person convicted of certain felonies, but the specific provision was added for domestic violence because CDV is typically a misdemeanor that would not fall under the other provisions). §921(a)(33)(A) defines "misdemeanor crime of domestic violence" as any crime that involves the use of force or threatened use of force, against a person that the defendant has a domestic relationship with (spouse, child in common, lives together). This definition under federal law encompasses not only state CDV laws, but also state assault and battery laws when the victim is someone that the defendant has a domestic relationship with.
The definition of a crime of domestic violence under federal law is important because the fact that a person is subject to later federal prosecution for possession of a weapon is a collateral consequence of the conviction; another important collateral consequence that attorneys often do not consider is that a conviction for a misdemeanor crime of domestic violence can have immigration consequences as well. Many attorneys routinely plead CDV's down to assault and battery charges, under the mistaken assumption that this will exempt them from the federal gun laws, to their clients' detriment. Because these are collateral consequences, there is no remedy on appeal for an attorney's failure to inform their client that they can no longer own a gun or that they could potentially be deported or denied citizenship following a guilty plea to domestic violence - or - following a plea to simple assault and battery where the spouse is the victim.
Post conviction relief, based on ineffective assistance of counsel, could be a remedy depending on the circumstances. South Carolina courts have held that PCR will not be granted if an attorney simply does not advise a client as to collateral consequences before advising them to plead guilty, but if the attorney gives advice and it is wrong then it is considered ineffective assistance of counsel. The most common example is parole eligibility - if an attorney does not advise a client as to parole eligibility there are no grounds for relief, but if an attorney does advise a client and gives the client incorrect advice it may be grounds for PCR. For example, if the attorney tells the client they will be eligible for parole after 1/4 of their sentence on an armed robbery charge and the client, thinking that he will be released on parole after 3 years, accepts a plea to 12 years, PCR may be an available remedy. Armed robbery is a no-parole offense, and that person will serve 85% of the 12 year sentence before they can be considered for release.
Although there are no cases on point in South Carolina that I have seen, the same should be true regarding the prohibition on owning a gun and the immigration consequences of a plea to CDV or assault and battery. When attorneys spot a potential immigration issue we need to consult an immigration attorney when the client can afford it - immigration law is too complex to take chances on giving faulty advice. In general, attorneys need to be aware that any conviction for a crime of moral turpitude can cause problems when an individual is applying for citizenship and it can potentially result in deportation as well. A conviction for domestic violence, or a conviction for assault and battery against a spouse, is considered a crime of moral turpitude under federal law.
South Carolina courts have taken the position that it is not ineffective assistance of counsel to remain silent regarding collateral consequences, but in my opinion every attorney needs to be advising their clients that if they plead guilty to CDV or assault and battery against a spouse, they will lose their right to own a gun and, if they are not a citizen, they could be deported or denied citizenship as a result of the guilty plea.
Comments
Bobby,
Very insightful post. I think criminal domestic violence cases are one of the most overlooked and more complex criminal cases that exist today. Where I am, many of the defendants represent themselves and see the chance to plead to simple assault as a way to get out from under the gun restriction. While that might have been true in the past, the case you site certainly changes things.
Posted by: Nicholas Robinson | March 17, 2009 8:40 AM
It does not change things; assault and battery where the spouse is the alleged victim was treated as a crime of domestic violence before for purposes of federal gun restrictions.
You point out that many of the defendants represent themselves, and yet on your site that you link to you go on about how we need more money to hire special prosecutors to prosecute domestic violence, which is "everywhere." When you have been doing this for a while, whether you prosecute or defend, you'll realize that true domestic violence cases are few and far between. The police are telling people that they must arrest someone if the police are called, and they are not considering whether there is truly a crime that needs prosecuting or a domestic violence situation before they slap the cuffs on one or both. Whether this is just incompetence or whether it is instructions that are coming down to justify grants that the local agencies are receiving, there are many situations where it is an abuse of power and an injustice.
Do not buy into the attorney general's political hype on domestic violence.
Posted by: BFrederick | March 17, 2009 10:22 AM
You make a good point. Many domestic violence cases are not actually domestic violence according to the law. I think education and training are key to effectively addressing domestic violence cases. It starts with the police making an effective assessment of the incident. While I am new to all of this, it does seem that there needs to be statewide training on what the domestic violence law really is today. I think there are some officers that don't want to deal with it so they just do as you say and make an arrest. However, I do think there are some officers that really do care and really are trying to do what is right and just don't fully understand how the law works. With education and awareness comes understanding. Hopefully, that will lead to a more efficient system and we can focus on the true domestic violence cases that need to be addressed.
Posted by: Nicholas Robinson | March 17, 2009 11:53 AM
It's not just the officers that don't want to deal with it. There are good officers who are willing and able to make a determination as to whether a crime has occurred and who the primary aggressor is, but their instructions from higher up are to take someone to jail, regardless of what they find.
There is an unwritten policy in place that if the police are called someone must be arrested. The lesson learned from this policy is do not call the police. I have CDV victims who are arrested, I have cases where both are arrested, and I have cases where no crime occurred but the officer informed them that someone has to go to jail.
There are prosecutors who feel that they cannot dismiss the most ridiculous cases for fear that they will lose their job, or be seen as "not tough."
The system will not focus on the true domestic violence cases because it is driven by politics. The attorney general has made CDV his platform, and many elected solicitors and police departments have fallen in line.
Posted by: BFrederick | March 17, 2009 12:08 PM
Lets face it. We lost our country, constituon, and bill of rights to the highest financial bidders(lobbyist/special interest groups) by greedy politicions.
Posted by: JA Miller | May 6, 2009 7:07 AM