WASHINGTON, DC - On Tuesday, January 12, 1998, the National
Association of Police Organizations (NAPO) and Denver Police Officer Alex Woods filed a
lawsuit in the U.S. District Court for Colorado to declare unconstitutional the
"Lautenberg Amendment" to the federal Gun Control Act and also the application
of that provision to Woods, as a denial of his due process rights. (Civil Action No.
99-S-71) In addition, Woods separately asked the court for injunctive relief to reinstate
him. The City and County of Denver mistakenly interpreted federal law to believe that
Woods could no longer carry a gun based on a misdemeanor conviction of third degree
assault in an isolated incident 3 years ago involving his former girlfriend at the time.
Woods had been prepared to ask for a temporary restraining order to prevent the City from
firing him, but just before the lawsuit was filed, Woods was rapidly terminated from
employment. A hearing has been scheduled for Monday, February 23, 1999.
Under the Lautenberg Amendment (named after Sen. Frank Lautenberg (D-NJ)), misdemeanants,
including police officers, cannot carry arms if convicted of domestic violence against
either a spouse or someone similarly situated to a spouse if both parties are domiciled
together. Woods, who holds an exemplary record as a police officer, has never been
convicted of domestic violence because the victim in this incident, a former girlfriend at
that time, was not in an intimate spousal relationship with him.
NAPO's Executive Director, Robert T. Scully, said, "This case presents one of the
more egregious cases of a Federal agency, the Bureau of Alcohol, Tobacco, and Firearms
(BATF), being overruled in its reasonable interpretation of a criminal law by senior
Treasury Department officials, in response to blatant political pressures from a U.S.
Senator and a Congresswomen. Unless the court grants relief in this case, the career of
man who is not even covered by this law may be finished, sacrificed on the alter of
political correctness."
Scully also stated, "Treasury has decided to apply an unconstitutional law providing
for criminal penalties (made retroactive to cover police officers for incidents which may
have occurred 20 to 30 years ago, for which there has been no recurrence) in an
unconstitutional fashion, because of serious political considerations. In fact, it appears
that BATF is not criminally enforcing this provision in the firearms law in the Denver
area against anyone but police officers, and even as to them, BATF is arranging for the
municipalities to 'do the dirty work for them', in violation of a Supreme Court
case."
Background: Enacted on September 30, 1996, the Lautenberg
Amendment applied the Federal gun control firearms "disabilities", Title 18 U.S.
Code § 925(a) and (g) to law enforcement officers for the very first time. Previously
under the "law enforcement and military exemption" law enforcement officers were
exempt from 8 firearms "disability" (or prohibition) categories, based on a
recognition that state and local governments have jurisdiction to decide whom they want to
hire and retain, and therefore to arm as law enforcement officers. An amendment by
Congressman Bob Barr (R-GA) to the Lautenberg provision removed that exemption and
subjected officers to the firearm statute's prohibitions, even if they only carry a gun
when they are on duty, if such officers were ever at any time convicted of a crime of
domestic violence involving a spouse or a person similarly situated to a spouse,
irrespective of the number of years which may have passed or the recent behavior of the
officer. This is because the act was made entirely retroactive.
If an officer is covered by the Amendment, he is technically in violation of the act (a
federal crime) when carrying a firearm, and therefore he is prohibited from carrying a
gun, even if it were limited to while on duty. Therefore municipalities, such as the City
of Denver, have terminated officers on the ground that they cannot be police officers if
they are not able to carry a handgun, relying completely on a BATF's advisory opinion,
without any independent investigation by the municipality, the case here. While the
statute is narrowly drawn, BATF has sought to broaden its coverage to include law
enforcement officers not otherwise covered by the statute or regulations, one of the
issues in this case.
Woods' claim for relief is especially meritorious. In response to a request from the City
and County of Denver to BATF, BATF conducted an investigation to determine if Woods was
covered by "firearms disability". On November 26, 1997, BATF responded that
Woods "was not subject to the firearms disability, because he had not been convicted
of a misdemeanor crime of domestic violence against a spouse or a person similarly
situated to a spousal relationship", one of the requirements of the Lautenberg
provision, and therefore could carry a gun. (At the time giving rise to the misdemeanor
incident, Woods and the victim were not domiciled together in a relationship
"similarly situated to a spouse".)
BATF was severely criticized in the press for its November 26th opinion by Senator
Lautenberg and Denver's U.S. Representative, Diana DeGette (D-CO). In response to this
criticism and apparent behind-the-scenes pressure brought on by the Treasury Department,
BATF was directed to reopen its investigation of the applicability of the Lautenberg
Amendment to Woods.
After the second investigation of Woods was completed, apparently in May 1998, BATF's
local office sent its investigative findings and proposed opinion through the chain of
command, eventually arriving in the office of the Under Secretary of Treasury
(Enforcement). Because of apparent congressional pressure, BATF's findings and
recommendation were in a state of limbo for many months.
During this period, the Treasury Department issued a temporary rule on June 30, 1998, in
which it defined the phrase "similarly situated to a spouse" as "two
persons who share the same domicile in an intimate relationship", with a
"domicile" defined as "one's fixed place of dwelling, where one intends to
reside more or less permanently". (63 Federal Register 35520-21) This limited
"definition" was not available when local BATF representatives were
reinvestigating Woods' relationship with the victim. Thus, neither Woods nor the BATF
agents had this information for guidance when interviewing witnesses. In any event, it is
factually undisputed that Woods was not domiciled with the victim and therefore not in a
spousal relationship at the time of the incident, the requirement before the statute
applies. In fact, Woods and the victim had no intimate relationship at the time of the
incident. They had broken up many months earlier.
In the interim, on August 28, 1998, the Court of Appeals for the D.C. Circuit, issued an
opinion in Fraternal Order of Police v. United States of America, holding
unconstitutional that provision of the Lautenberg Amendment removing the exemption
previously available to law enforcement officers from the gun disability provisions of the
Gun Control Act (thereby applying the firearms disability only to officers convicted of
domestic violence). The Court of Appeals stated:
…We think that the most appropriate remedy is consequently to hold that § 925
[title 18 U.S. Code] is unconstitutional insofar as it purports to withhold the public
interest exception from those convicted of domestic violence misdemeanors. The Government
may not bar such people from possessing firearms in the public interest while it imposes a
lesser restriction on those convicted of crimes that differ only in being more serious.
152 F.3d 998 (1998).
On October 6, 1998, NAPO sent a letter to the Under Secretary of Treasury inquiring as to
the status of BATF's proposed advisory opinions in two other cases involving Denver police
officers, which were being handled with the opinion concerning Woods. These advisory
opinions, as well as the one involving Woods, had been significantly delayed. While NAPO
did not recommend any particular legal conclusions, NAPO's Executive Director, Robert T.
Scully stated in his letter to Under Secretary Johnson, "[I]t is my understanding
that BATF is making a good faith effort to apply the statute fairly and reasonably . . . I
would hope that, should you make any changes in those advisory opinions interpreting the
statute, you would continue to closely follow the letter of the law, as I believe would be
your intention."
On October 28, 1998, BATF sent a letter to the Denver Police Department advising that a
"reinterpretation" of the Lautenberg Amendment brought Woods under the firearms
disability section, even though none of the facts surrounding Woods' relationship with the
victim in the incident had changed. However, BATF refused to share its investigative
findings with either the Denver Police Department or Woods, causing one to wonder whether
the Treasury Department had overruled BATF's own interpretation of the statute. The
Treasury's temporary rule clearly limited the Lautenberg Amendment's coverage to that
specifically intended by the Amendment's statutory language. Ironically, by changing its
position on Woods, Treasury disregarded the June 30th regulation it had promulgated only
months earlier.
On November 3, 1998, the City and County of Denver then decided to enforce this federal
law on behalf of BATF, and took away Woods' gun. And on January 12, 1999, Woods'
employment was terminated as a police officer.
This lawsuit filed by NAPO and Woods seeks to restore him to his job and seeks to declare
unconstitutional the Lautenberg Amendment, based on the following grounds:
First, the Lautenberg Amendment is unconstitutional on the grounds that,
as an amendment to criminal law, it is vague and indefinite. This is especially the law,
as interpreted by the Treasury Department. Individuals must guess at its specific meaning,
and it is in violation of the Fifth and Fourteenth Amendments to the Constitution.
Second, the Lautenberg Amendment violates the Equal Protection Clause and
the Due Process Clause of the of the Fifth and Fourteenth Amendments, because it infringes
on law enforcement officers' fundamental right to bear arms as a member of the modern day
equivalent of a military and because it creates impermissible burdens on different classes
of persons, depriving them of equal protection and due process. (This was the basis for
the D.C. Circuit's decision.)
Third, the Lautenberg Amendment violates the Second Amendment right of
the States to establish a well-regulated militia in the furtherance of state security. The
Lautenberg provisions works to remove a portion of the State's ability to preserve the
peace and security of their citizens and modern society by being able to rely upon
"peace officers".
Fourth, the Lautenberg Amendment violates the Tenth Amendment to the Constitution and the
system of dual sovereignty inherent in our Nation in two ways.
The Amendment usurps the legislative and executive functions of the States regarding the
hiring criteria and qualification of law enforcement officers. Departments should not be
prevented from retaining experienced and well-trained police officers who might have been
involved in a domestic violence incident years ago, and smaller departments will be
significantly impacted from this disqualification of officers. For example, there have
been some spouses who were the earlier victims of domestic violence abuse from officer
spouses (incidents such as throwing an object at the spouse), opposed to the termination
from employment of their officer spouses, because there have been no recurring incidents
for many years. Such spouses, the intended beneficiaries of the Amendment, will often be
seriously financially harmed if their officer spouses are fired. The Lautenberg Amendment
thus seriously interferes with the administration of local government personnel polices.
The provision also conscripts State and local officials in a Federal regulatory scheme. In
a late 1996, the Director of BATF sent a form letter to all law enforcement officials,
advising departments to "make a reasonable" effort to determine whether an
officer's carrying of a gun would violate the Lautenberg provision, suggesting that they
take away their guns or turn them into the BATF if they refused to do so. This letter
effectively scared local officials into thinking that their refusal to enforce the law
could subject them to prosecution, and it therefore conscripted local officials to carry
out a federal regulatory scheme, in violation of the 1997 Supreme Court case of Printz
v. United States (which held unconstitutional the directive to local law enforcement
to conduct a background check for gun applicants, contained in the Brady bill.) As the
Supreme Court stated in Printz, "The Federal Government may neither issue
directives requiring the States to address particular problems, nor command the States'
officers, or those of their political subdivisions, to administer or enforce a federal
regulatory scheme." 64 U.S.L.W at 4742. In violation of yet another Supreme Court
case, BATF is using the States as "implements of regulation."
Fifth, the Lautenberg Amendment is an impermissible exercise of the congressional power to
regulate commerce under Article I of the Constitution. Intrastate possession of a firearm
by a police officer in the public interest does not have substantial impact on interstate
commerce.
This lawsuit was filed by Marc Colin, an attorney with the firm of Bruno, Bruno &
Colin, which represents members of the Denver Police Protective Association (a NAPO
member), of which Woods is a member. Stephen McSpadden, General Counsel for NAPO and the
National Law Enforcement Officers' Rights Center, is providing backup support and is
assisting Mr. Colin during the lawsuit.
Notice of another lawsuit: The reader should be aware that it is very
likely that a second lawsuit will soon be filed in Denver challenging the Lautenberg
Amendment. Another Denver Police officer, Jim Ward, was denied his right to a jury trial
in a past case involving what could have been a misdemeanor crime of domestic violence but
is not. Some explanation follows: Before the firearms disability applies, the Lautenberg
Amendment provides that a "person shall not be considered to have been convicted of
such an offense for purposes of [the Amendment]" unless that person "knowingly
and intelligently waived the right to have the case tried by a jury." While we do not
yet have all of the facts, it appears that Ward definitely requested a jury trial and paid
to the court a fee for that right. When he appeared at time of trial, there were no jurors
present because the court had inadvertently overlooked his request. But rather than
respect his request, the court proceeded to a judge trial, violating his right to a jury
trial under the Lautenberg Amendment. As with Woods, BATF initially advised Ward that he
was not covered by the firearms disability, because Ward had a copy of the check showing
that he had paid the fee required to ask for a jury trial. After the congressional
pressure referred to earlier, BATF reversed itself and indicated that because a court
document was missing, it had determined that he had never asked for a jury trial,
notwithstanding a cancelled check showing that he had. It is anticipated that Ward will be
terminated shortly, based on BATF's advisory opinion, and that thereafter a second lawsuit
will likely be filed, with Ward and NAPO as plaintiffs. The federal lawsuit is expected to
raise most of the same constitutional challenges to the statute and to ask for a
preliminary injunction.
The National Association of Police Organizations (NAPO) is a coalition of police
unions and associations from across the United States that serves in Washington, DC to
advance the interests of America's law enforcement officers through legislative and legal
advocacy, political action and education. Founded in 1978, NAPO now represents more than
4,000 police unions and associations, 250,000 sworn law enforcement officers, 3,000
retired officers and more than 100,000 citizens who share a common dedication to fair and
effective crime control and law enforcement.
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