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Handgun Use Banned for Misdemeanor Domestic Violence Conviction
By Richard Alexander
Convicted felons cannot legally own handguns, but four out of five criminal convictions in the United States are for misdemeanors and a misdemeanor conviction, until recently, had no impact on the right to own or use a handgun.
Today anyone who has ever been convicted of a misdemeanor crime of domestic violence can no longer legally own, ship, transport, possess, or receive firearms or ammunition and no one can sell or otherwise dispose of a firearm or ammunition to any person knowing or having reasonable cause to believe that the recipient has been convicted of a domestic violence misdemeanor.
It has all came about through an obscure provision of the U.S. Omnibus Consolidated Appropriations Act of 1997 that is taking many by surprise. It is clear that a major change in public policy efforts to end domestic violence has occurred and it is significant because it not only attaches penalties to a misdemeanor conviction but it exempts no one and covers everyone who owns or uses a handgun, including federal, state and local law enforcement officers, Police officers, deputy sheriffs, federal drug enforcement officials, customs officers, game wardens, campus police, private police, security guards, warehouse guards, railroad police, prison guards and everyone in any type of law enforcement is covered under the new law. Those who have been convicted of a domestic violence misdemeanor will not be able to lawfully possess or receive firearms or ammunition for any purpose, including using guns in their official duties.
For those police departments that have allowed the continued employment of officers previously convicted of domestic violence misdemeanors, usually after the offender has completed private counseling, attended classes and participated in group support sessions, these officers will have to be re-assigned. But a small number of law enforcement officers are facing discharge unless they can have their previous misdemeanor convictions expunged or pardoned.
The impact of this this law will be significant because of the millions of misdemeanor convictions that have been entered across the United States in the past twenty years involving family violence.Often prosecutors following an arrest will charge the wrongdoer with felonies that are punishable by sentences for years to state prison, and misdemeanors, usually with lesser sentences to county jail for periods of less than a year.
For many years the overwhelming majority of domestic violence cases were closed with a guilty plea to a misdemeanor charge and felony charges were stricken or held in abeyance. Many pleas of "no contest" to misdemeanor charges, especially in the domestic violence context, were taken and the case was concluded without imposing jail sentences if the offender completed a program of probation, counseling, or community service.
Even though a "no contest" plea under California law has the same legal effect as a plea of guilty, it allowed a violent husband to save face, gave the court the power to sentence and promoted counseling, rehabilitation and family reunification.
Unlike a felony conviction, a misdemeanor conviction need not be reported on a job application under California law, does not result in the loss of any rights and did not impact the employment of the wrongdoer. Ironically, domestic violence cases resolved as misdemeanors allowed the convicted abuser to legally own a handgun, which could readily be used in another domestic violence offense.
This new prohibition applies to everyone without exception and broadly defines crimes of domestic violence to include cases involving not only current and former spouses, parents and children, but current and former cohabitants, including putative spouses, common law spouses and the children of such persons and persons with whom the wrongdoer shares a child in common.
The broad definition of domestic violence misdemeanor 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 State statute or local ordinance specifically defines the offense as a domestic violence misdemeanor.
For example, a person convicted of misdemeanor assault, i.e., attempted harm, as opposed to actual physical contact, against his or her spouse would be prohibited from receiving or possessing firearms or ammunition.
These amendments to the GCA were intended to look behind the title of charges and to consider the substance of the offense. For example if an individual was convicted of misdemeanor assault on October 10, 1996, even though the crime of assault does not make specific mention of domestic violence, but the criminal complaint reflects that he assaulted his wife, that misdemeant may no longer possess firearms or ammunition.
The law covers all past misdemeanor offenses. Even if the wrongdoer was convicted of a domestic violence related misdemeanor in 1986, 10 years before the effective date of the new statute, and attempts to buys a firearm on October 10, 1996, because he has been convicted of a spousal abuse crime, he may not lawfully possess firearms or ammunition on or after September 30, 1996.
Additionally if a police officer was charged with felony assault on her child in 1989, pled guilty to a misdemeanor,was suspended from the police force, successfully completed counseling, was reinstated and has since provided laudatory service, the officer may not lawfully possess firearms or ammunition, unless the conviction is set-aside, expunged or pardoned.
Any gun owners previously convicted of a domestic violence misdemeanor must immediately dispose of all firearms and ammunition in their possession. The continued possession of firearms and ammunition by such people is a violation of law and can subject the possessor to criminal penalties. In addition, such firearms and ammunition are subject to seizure and forfeiture.
Anyone who has been convicted of a spousal abuse misdemeanor should relinquish all firearms and ammunition in their possession immediately to a third party, such as their attorney, local police, or a firearms dealer.
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18 United States Code Section 921, PUBLIC LAW 104-208, SEC. 658, GUN BAN FOR INDIVIDUALS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE, provides: (a) DEFINITION-Section 921(a) of title 18, United States Code, is amended by adding at the end the following: (33)(A) Except as provided in subparagraph (C), the term 'misdemeanor crime of domestic violence' means an offense that- (i) is a misdemeanor under Federal or State law; and (ii) 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. (B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise, (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is 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.".
© Richard Alexander, 2000-2007.
Richard Alexander is a specialist in personal injury litigation with 30 years in-depth experience. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander Hawes, LLP.
Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.
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