Many people want to know if they are able to obtain or possess a firearm if they have been convicted of domestic violence or currently have an injunction for protection against domestic violence ordered against them.
The 1968 Gun Control Act at 18 U.S.C. § 921 prohibits anyone convicted of a felony or subject to a domestic violence protective order from possessing a firearm. The intended effect of this legislation is to extend the firearms ban to anyone convicted of a "misdemeanor crime of domestic violence."
Under Federal law, more specifically Title 18, United States Code, Section 922(g)(9) (the Lautenberg Amendment), it is a federal crime to possess a firearm if you have been convicted of domestic violence or there is an injunction issued against you. The federal government also considers a withhold of adjudication a conviction for purposes of possessing a firearm.
Title 18, United States Code, Section 922(g)(9) (the Lautenberg Amendment) states:
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
What is a qualifying criminal offense that would prohibit you from possessing a firearm?
A “Qualifying Offense” that constitutes a "misdemeanor crime of domestic violence" is defined as any state or federal 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."
This definition includes all misdemeanors that involve the use or attempted use of physical force, such as assault or battery, if the offense is committed by a defendant that meets the definition for domestic violence or relationship for domestic violence. It does not matter if the statute you are being charged under defines the offense as "domestic violence”.
This prohibition applies to anyone convicted of such an offense regardless of when the offense occurred. That means individuals convicted of a domestic violence crime prior to this law being enacted are still prohibited from carrying or possessing a firearm. There are a few limited exceptions to domestic violence convictions prior to September 30, 1996. Please call for more information if you fall under this category.
There is no exception for law enforcement personnel. So if you want to be a police officer or deputy in the future and are facing a domestic violence charge, call and speak to Thomas C. Grajek, an experienced domestic violence defense attorney immediately.
Do not go to court alone when facing a serious criminal charge. Speak to a criminal defense attorney before you go to court.
Protect your right to possess a firearm!
THOMAS C. GRAJEK
POLK COUNTY CRIMINAL LAWYER
Office - Lakeland, Florida
Experienced Polk county criminal defense attorney fighting for citizens accused of domestic violence, stalking, harassment, and injunctions in felony and misdemeanor court.