Legal Question

Legal Question

This is a discussion on Legal Question within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I have two counts of aggravated menacing against me in the state of Ohio. Are there any federal prohibitions against my possessing firearms?...

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  1. #1
    New Member Array slidelock's Avatar
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    Legal Question

    I have two counts of aggravated menacing against me in the state of Ohio. Are there any federal prohibitions against my possessing firearms?


  2. #2
    Distinguished Member Array lowflyer's Avatar
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    From OH penal code:

    Aggravated menacing
    § 2903.21 Aggravated menacing. 1974. Amended 2001.

    (A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family.

    (B) Whoever violates this section is guilty of aggravated menacing. Except as otherwise provided in this division, aggravated menacing is a misdemeanor of the first degree. If the victim of the offense is an officer or employee of a public children services agency or a private child placing agency and the offense relates to the officer's or employee's performance or anticipated performance of official responsibilities or duties, aggravated menacing is a felony of the fifth degree or, if the offender previously has been convicted of or pleaded guilty to an offense of violence, the victim of that prior offense was an officer or employee of a public children services agency or private child placing agency, and that prior offense related to the officer's or employee's performance or anticipated performance of official responsibilities or duties, a
    felony of the fourth degree.


    I think the italicized portion is where you might have a problem with firearms possession.

    From Federal Gun Control Act, 18 U.S.C. § 922(g)(9):

    MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE

    The Omnibus Consolidated Appropriations Act of 1997 amended the Federal Gun Control Act, 18 U.S.C. § 922(g)(9). Under these provisions, it is unlawful for an individual convicted of a state or federal "misdemeanor crime of domestic violence" to "ship, transport, possess or receive firearms or ammunition."

    A "misdemeanor crime of violence," pursuant to 18 U.S.C. § 921(33)(a), means an offense that:

    has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

    Law enforcement officers and governmental employees (such as security guards or military personnel) art not exempt from this law with respect to their receipt or possession of firearms or ammunition. Therefore, law enforcement and other government employees who have been convicted of a qualifying misdemeanor will not be able to lawfully possess or receive firearms or ammunition or any purposes, including performing their official duties.

    Furthermore, the law makes it unlawful for any person, including governmental agencies, to sell or otherwise issue firearms or ammunition to any person knowing or having reasonable cause to believe that the person has been convicted of a misdemeanor crime of violence.

    As of September 30, 1996, the new law went into effect. However, the prohibition also applies to persons convicted of misdemeanor domestic violence AT ANY TIME PRIOR to September 30, 1996. Therefore, as of the effective date, any person who has EVER been convicted of a misdemeanor crime of domestic violence may no longer possess a firearm or ammunition.

    With respect to all persons convicted, the law would NOT apply if the conviction is defective procedurally due to representation or trial issues, such as the person's constitutional rights to counsel and/or a jury trial were not knowingly and intelligently waived. Also, the law would not apply if the conviction has been expunged, set aside, pardoned, or the person has had his or her civil rights restored and the person is not otherwise prohibited from possessing firearms or ammunition.
    Last edited by lowflyer; February 11th, 2007 at 07:45 PM.
    Whatever doesn't kill you postpones the inevitable.

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    New Member Array slidelock's Avatar
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    I'm sorry

    But that didn't help. I am familiar with Ohio law as it relates to this, I asked about federal law. Specifically I understand that the length of the sentence possible may preclude me from owning a firearm.

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    Distinguished Member Array lowflyer's Avatar
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    The way I interpret the state law is that you are either guilty of a violent misdemeanor or a felony. In either case, there is a federal firearms prohibition law that would apply.

    I dunno about your case, but I would say according to what I found, you would be safe to assume that you are prohibited from firearms possession until you can check with an attorney. If I were a betting man, I would put money on what that attorney will say.
    Whatever doesn't kill you postpones the inevitable.

  5. #5
    Distinguished Member Array lowflyer's Avatar
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    Quote Originally Posted by slidelock View Post
    But that didn't help. I am familiar with Ohio law as it relates to this, I asked about federal law. Specifically I understand that the length of the sentence possible may preclude me from owning a firearm.

    I posted the state law for the benefit of other readers of this thread. Saves them from having to Google.
    Whatever doesn't kill you postpones the inevitable.

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    Quote Originally Posted by slidelock View Post
    I have two counts of aggravated menacing against me in the state of Ohio. Are there any federal prohibitions against my possessing firearms?
    Nope, sorry, you're SOL. Aggravated menacing is a misdemeanor of the first degree. The aggravated part means that there was a threat of violence or physical harm to the victim. Ohio law and Fed laws says no.

    Now that I'm done with that, the internet is the worse place you seek legal advice. Consult your attorney. ***disclaimer over****
    Last edited by SIXTO; February 11th, 2007 at 09:44 PM. Reason: to make lowflyer happy
    "Just blame Sixto"

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    Fed Prohibited from NRA Site

    Ineligible Persons

    The following classes of people are ineligible to possess, receive, ship, or transport firearms or ammunition:

    Those convicted of crimes punishable by imprisonment for over one year, except state misdemeanors punishable by two years or less.

    Fugitives from justice.

    Unlawful users of certain depressant, narcotic, or stimulant drugs.

    Those adjudicated as mental defectives or incompetents or those committed to any mental institution.

    Illegal aliens.

    Citizens who have renounced their citizenship.

    Those persons dishonorably discharged from the Armed Forces.

    Persons less than 18 years of age for the purchase of a shotgun or rifle.

    Persons less than 21 years of age for the purchase of a firearm that is other than a shotgun or rifle.

    Persons subject to a court order that restrains such persons from harassing, stalking, or threatening an intimate partner.

    Persons convicted in any court of a misdemeanor crime of domestic violence.

    Persons under indictment for a crime punishable by imprisonment for more than one year are ineligible to receive, transport, or ship any firearm or ammunition.

    Under limited conditions, relief from disability may be obtained from the U.S. Secretary of the Treasury, or through a pardon, expungement, restoration of rights, or setting aside of a conviction.

  8. #8
    Distinguished Member Array lowflyer's Avatar
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    Quote Originally Posted by SIXTO View Post
    Nope, sorry, your SOL. Aggravated menacing is a misdemeanor of the first degree. The aggravated part means that there was a threat of violence or physical harm to the victim. Ohio law and Fed laws says no.

    Now that I'm done with that, the internet is the worse place you seek legal advice. Consult your attorney. ***disclaimer over****
    I dunno, I think that was pretty good legal advice over the Internet. That is except for the misspelling of the contraction you're (as in you're SOL).
    Whatever doesn't kill you postpones the inevitable.

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    Member Array Optimistic Paranoid's Avatar
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    Quote Originally Posted by SIXTO View Post
    Now that I'm done with that, the internet is the worse place you seek legal advice. Consult your attorney. ***disclaimer over****
    I like to say that "the Internet" is the equivalent of "some guy I met in a bar". Would you accept medical, legal, or financial advice from "some guy you met in a bar"?
    Regards
    John


    Life Member - American Society of Armed Political Malcontents

    Question Authority. Hang As Necessary!

    In God I Trust. Everybody Else Keep Your Hands Where I Can See Them!

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    VIP Member Array JimmyC4's Avatar
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    Quote Originally Posted by lowflyer View Post
    I dunno, I think that was pretty good legal advice over the Internet. That is except for the misspelling of the contraction you're (as in you're SOL).
    Come now lowflyer, since you're taking it to the extreme, shouldn't it be SOOL, thereby avoiding use of the slang word outta?

  11. #11
    New Member Array slidelock's Avatar
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    I still dont get it. Does the aggravated menacing charge carry a possible penalty of more than two years prison time in the State of Ohio, thereby activating the federal prohibition? My conviction is due for expungement in six months. (Written into the plea bargain.)

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    VIP Member Array Rob72's Avatar
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    Quote Originally Posted by slidelock View Post
    I still dont get it. Does the aggravated menacing charge carry a possible penalty of more than two years prison time in the State of Ohio, thereby activating the federal prohibition? My conviction is due for expungement in six months. (Written into the plea bargain.)
    Talk. To. Your. Lawyer. Unless you want to chance an opportunity to make new friends in the state pen for being a felon in possession of a firearm. It would be well worth a $100 consultation to be sure, if your lawyer isn't "yours" any more. I would not ask the judge, at the expungement hearing ( I assume you have a hearing, and that this isn't automatic), if you may go buy a gun.

  13. #13
    Member Array denverd0n's Avatar
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    Ditto and ditto again!!! You need to talk to an attorney, not rely on what some stranger on an internet forum tells you! This is the sort of thing that could get you sent to prison for a very long time. The analogy to "some guy I met at a bar" is a perfect one. For God's sake, do NOT rely on any legal advice you get here! Even if it comes from someone who claims to be an attorney, or a judge, or whatever. You are still just talking to a bunch of strangers.

  14. #14
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    Wait the six months for your expungment and then worry about the issue. Once it has been removed from your record you should then be able to own a firearm again.

    Of course, calling a lawyer is the way to go.
    "The only people I like besides my wife and children are Marines."
    - Lt. Col. Oliver North

  15. #15
    New Member Array slidelock's Avatar
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    Call a lawyer

    All good advice, and that is on the agenda, I just wanted to know in advance what my chances were. My charges did not involve domestic abuse and were misdemeanors. So as I read it, the answer hinges on the possible length of sentence I could have gotten. If over a year then I am indeed SOL. Remember there were two counts. If somebody could direct me to where on the ORC the length of sentence would be, I would be grateful.

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