Guns / Firearms and Domestic Assault / Domestic Violence Cases:   What you Need to Know

 If you are convicted of a domestic assault, even a misdemeanor, you may be permanently barred under Federal law from possessing a firearm or ammunition.


You MUST take this into account if you have a domestic violence case filed against you.


Who is affected by this law?

The 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The intended effect of this new legislation is to extend the firearms ban to anyone convicted of a "misdemeanor crime of domestic violence."

Qualifying Offenses: As enacted the statute defines "misdemeanor crime of domestic violence" (MCDV) 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 (e.g., simple assault, assault and battery), if the offense is committed by one of the defined parties. This is true whether or not the statute specifically defines the offense as a domestic violence misdemeanor. For example, a person convicted of misdemeanor assault against his or her spouse would be prohibited from receiving or possessing firearms.

Date of Previous Conviction: The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date, September 30, 1996.

Limitations on Previous Convictions -- 18 U.S.C. §  921(a)(33)(B). To qualify: (1) at the time of previous conviction, the defendant must have been represented by counsel, or knowingly and intelligently waived the right to counsel; (2) if the offense of previous conviction entitled the person to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise; and (3) the conviction can not have been expunged or set aside, or be an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

There is no law enforcement exception: One of the provisions of this new statute removed the exemption that 18 U.S.C. § 925(a)(1) provided to police and military. Thus, as of the effective date, any member of the military or any police officer who has a qualifying misdemeanor conviction is no longer able to possess a firearm, even while on duty. We now have the anomalous situation that 18 U.S.C. § 925(a)(1) still exempts felony convictions for these two groups. Thus if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may, under federal law, still be able to possess a service revolver while on duty, whereas if they are convicted of a qualifying misdemeanor they are prohibited from possessing any firearm or ammunition at any time. Currently pending before Congress are at least two bills that would substantially modify the impact of the amendment to this section.