Gun ban for those convicted of domestic violence upheld

Federal law prohibits anyone convicted of battery against a spouse or domestic partner from possessing a gun, even if the victim was uninjured, a California appeals court ruled Tuesday.

The 2-1 decision by the Fifth District Court of Appeal in Fresno waded into a dispute that has divided state and federal courts: whether a 1996 federal law, which imposes a lifetime ban on firearms possession by those convicted of a "misdemeanor crime of domestic violence," requires evidence that the victim was actually beaten or seriously harmed.

The case involved a Tulare County man, Scott James, who pleaded no contest in 1996 to the misdemeanor battery of his wife and was placed on probation. James applied to be a reserve police officer in 2008, and later tried to buy a gun, but he was turned down because the state classified his crime as domestic violence.

The court did not give details of James' crime. California law defines battery as the "willful and unlawful use of force or violence" against another person, but also says it can be violated by "the slightest touching."

In another case, a different state appellate court ruled in May that a misdemeanor battery conviction, by itself, did not amount to an act of "domestic violence" that barred gun ownership. A federal appeals court in San Francisco had reached the same conclusion in a 2003 ruling about a similar law in another state.

The majority in Tuesday's ruling, however, said those decisions gave too little weight to the intent of the 1996 federal law. Its author, the late Sen. Frank Lautenberg, D-N.J., said during floor debate that he was proposing "a policy of zero tolerance when it comes to guns and domestic violence."

"A zero-tolerance policy is not furthered" by requiring agencies that issue gun licenses "to differentiate between, for example, a slap and a punch, or a poke to the chest and a poke in the eye," said Justice Jennifer Detjens in the majority opinion.

She quoted Lautenberg as saying that domestic cohabitants face a risk of violence in surroundings where "a firearm in the hands of an abuser all too often means death."

Dissenting Justice Gene Gomes said he read the federal law as covering only those crimes that involve force "capable of causing physical pain or injury."

James' lawyer, Leonard Herr, said he was considering an appeal to the state Supreme Court. The ruling, he said, "makes any sort of touching result in a federal prohibition against owning firearms."