Oregon State Bar Bulletin — JULY 2006

Parting Thoughts
Unintended Consequences
By Velda Rogers

Imagine for a moment that three clients walk into your office one day. Client A, currently in the Army Reserve, is charged with a domestic assault and harassment. He has been in the military for several years and is about to be sent on active duty. He wants to resolve the case before he leaves the state. Client B, a police officer with 15 years of seniority, is going through a divorce and has been served with a FAPA (Family Abuse Protection Act) restraining order. He has two children, and he wants to get custody of his kids as well as contest the restraining order. Client C, a National Guard member for the past 17 years, has a prior conviction from 1997 for harassment from a domestic situation, which he wants to expunge, because he has been told he will be discharged shortly if it remains on his record. All of us know what we would normally advise each of these clients, but we would be potentially committing malpractice unless we are taking their occupations — part- or full-time — into consideration.

The Lautenberg Act, a federal anti-domestic violence piece of legislation, controls in each of these scenarios. It affects, substantially, occupations that have a requirement of possessing guns such as police officers and military personnel, which includes Army Reserve and National Guard.

In the case of Client A, in order to avoid a mandatory discharge from the military, the final disposition must either be an acquittal or, if a conviction, include the following: 1) Delete all mention of domestic violence in the charging instrument; 2) No mention of a domestic connection can be put in any plea petition, such as "my wife," "my son," etc.; 3) No mention of domestic violence can be present on the face of the judgment; and 4) No condition of probation, such as batterer treatment, can be listed. Additionally, while this case is pending, Client A is not deployable, even if the court were to grant permission.

Client B has multiple problems that arise from the Lautenberg Act. First, if he requests a hearing, whether he wins or not, Client B loses his right to possess a firearm, which would result in loss of employment. Second, if he doesn’t ask for a hearing and the restraining order remains in effect, ORS 137.137(2) creates a presumption against awarding child custody to him. Thus Client B is in a position of choosing between his child and his job. Third, if he chooses to request a hearing and has to change employment, when child support is calculated, his original salary is the one used, since he is presumed to have left the previous employment voluntarily. His parenting time is also adversely affected, since he now has the restraining order on his record with its resulting presumptions.

Client C faces immediate discharge from the military because he already has the conviction. Since there is a severe time crunch, trying to expunge the conviction won’t work. Expungement generally takes months and sometimes years, and the military simply won’t wait. It is necessary to file a motion to amend the original judgment order and plea petition. Further, you cannot simply amend, either. You must substitute a plea petition and judgment order which avoids the domestic violence language. The military now goes back and reviews all of the documents, so mere amendment will not work. In most of these cases, presume you are going to have to go all the way through a hearing to get what you want since the files are closed, most times any sentence has been completed, and it is unlikely there will be willingness up-front to remove any type of domestic violence conviction from his record. You will have to convince the court to rewrite history. When you have been successful in getting this done, don’t forget to ask the court to sign an order requiring the state police to amend their records, since in most cases they list these as domestic violence as well.

The Lautenberg Act was originally intended to aid in the fight against domestic violence, but its unintended consequences make it draconian in nature. Clients and their families in particular pay the price on a daily basis for unknowing breaches of its hidden rules.

Velda Rogers is a retired military officer with a private law practice in Salem. She is a member of the OSB Military Assistance Panel, a House of Delegates member and serves on the executive committee of the bar’s Sole and Small Firms Section.

© 2006 Velda Rogers

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