Expert: Robert P. Firriolo - 2/25/2009

Question
Robert P.Firriolo:

I am considering joining the military services. Six years ago I was charged for misdemeanor domestic abuse. I pled guilty to a lesser charge of simple assault, completed probation and received a deffered sentence. The case is expunged. Court files are sealed. There are no FBI records. The local Sheriff's office disposition tag reads "dismissed." On 2/24/2009, the Supreme Court upheld the "broad reach" of the federal gun-control law and said "that no one who has a conviction for any crime of domestic violence may own a firearm. Including, simple assault." Does this "broad reach" include simple assault expungements? Though expunged, I did plead "guilty" to simple assault. Before yesterday, I was certain I could join the military. Now, just don't know and worried. I would appreciate your response. Thank you.

Answer
In United States v. Hayes, the United States Supreme Court ruled yesterday that a predicate offense under 18 USC sec. 922(g)(9) need not have as an element a domestic relationship between offender and victim. That is, a "misdemeanor crime of domestic violence" can include a statute like simple assault that does not have a domestic violence component, where the victim was a domestic relation of the offender.

18 USC sec. 921(a)(33) defines "misdemeanor crime of domestic violence." That definition contains the following exception to such a crime:

(B)(ii) 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.

Thus, where one has has been convicted of a "misdemeanor crime of domestic violence" (which now certainly includes a simple assault against a domestic relation), but where that conviction has been expunged or set aside, one is not a prohibited person for purposes of the federal Gun Control Act unless the expungement was conditional.