The Top 10 Things You Need to Know About Federal Gun Law
2. No guns after misdemeanor criminal domestic violence convictions and no guns during the time that a DVPO is in effect.
Under federal law, anyone who has a criminal domestic violence conviction is barred from possessing a gun. Forever. As 18 U.S.C. § 922(g)(9) says,
"[i]t shall be unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to possess in or affecting commerce any firearm or ammunition."
Under 18 U.S.C. § 921(a)(33),
a "misdemeanor crime of domestic violence" is any misdemeanor 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."
What does that mean? If someone has a state court conviction for simple assault, assault on a female, or any other misdemeanor assault, and if the victim is the client's spouse, live-in partner, child, or anyone else "similarly situated," then the client is forever barred by federal law from possessing a gun. The same applies to convictions for communicating threats, when the client threatens to use a deadly weapon against one of the victims named above. The client can never again possess a gun; if he does, he can be prosecuted in federal court and receive up to ten years in federal prison.
What if, in state court, a client is charged with misdemeanor assault but the magistrate fails to put the "domestic violence" label on the case? That makes no difference in federal court. If the client and the victim are related or connected as described above, the case will still qualify as a "crime of domestic violence" in federal court.
Domestic violence protective orders (DVPO's) also fall within the federal firearms ban, but only for the length of time that the DVPO isin effect in state court. Anyone who "is subject" to a DVPO is barred from possessing a firearm, per 18 U.S.C. § 922(g)(8)
. Once the DVPO expires in state court (usually after one year, but it can be extended), the federal firearms ban goes away, because the person no longer "is subject" to the DVPO.
if you have someone charged with a civil DVPO as well as a misdemeanor domestic violence crime in state court, try to arrange a deal in which you agree to the DVPO in exchange for a dismissal of the criminal charge. After the DVPO expires, your client will be able to get his guns back.