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Domestic Violence
MISDEMEANOR CRIME OF DOMESTIC VIOLENCE QUESTIONS AND ANSWERS
As of April 28, 1997
1. What is a misdemeanor crime of domestic violence?
As defined in the Gun Control Act of 1968, a "misdemeanor crime
of domestic violence" means an offense that:
(1) is a misdemeanor under Federal or State law;
(2) has, as an element, the use or attempted use of physical force,
or the threatened use of a deadly weapon; and
(3) was 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.
However, a person is not considered to have been convicted of a misdemeanor
crime of domestic violence unless:
(1) the person was represented by counsel in the case, or knowingly
and intelligently waived the right to counsel in the case; and
(2) in the case of a prosecution for which a person was entitled
to a jury trial in the jurisdiction in which the case was tried, either--
(a) the case was tried by a jury, or
(b) the person knowingly and intelligently waived the right to have the
case tried by a jury, by guilty plea or otherwise.
In addition, a conviction would not be disabling if it 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 jurisdiction in which
the proceedings were held provides for the loss of civil rights upon conviction
for such an offense) unless the pardon, expunction, or restoration of
civil rights expressly provides that the person may not ship, transport,
possess, or receive firearms, and the person is not otherwise prohibited
by the law of the jurisdiction in which the proceedings were held from
receiving or possessing firearms.
2. What is the effective date of this disability?
The law was effective September 30, 1996. However, 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.
3. Does the new disability apply to law enforcement officers?
Yes. The Gun Control Act of 1968 was amended so that employees of Government
agencies convicted of qualifying misdemeanors would not be exempt from
this new disability with respect to their receipt or possession of firearms
or ammunition. Thus, law enforcement officers and other Government officials
who have been convicted of a disqualifying misdemeanor may not lawfully
possess or receive firearms or ammunition for any purpose, including performance
of their official duties. This disability applies to firearms and ammunition
issued by Government agencies, firearms and ammunition purchased by Government
employees for use in performing their official duties, and personal firearms
and ammunition possessed by such employees.
4. Is this provision of the law being applied retroactively in violation
of constitutional rights?
No. This provision is not being applied retroactively or in violation
of the ex post facto clause of the Constitution. This is because the law
does not impose additional punishment upon persons convicted prior to
the effective date, but merely regulates the future possession of firearms
on or after the effective date. The provision is not retroactive merely
because the person's conviction occurred prior to the effective date.
5. What is the penalty for violating this offense?
Any individual who knowingly violates this provision of the law is subject
to a fine of $250,000, imprisonment of up to 10 years, or both.
6. Does the law impose any additional duties on dealers in firearms
and ammunition?
Yes. Until the Form 4473 and Brady forms have been revised to include
the new offense, licensees should inquire of their customers whether they
have been convicted of a disqualifying domestic violence misdemeanor and
avoid transferring any firearms or ammunition to such persons. ATF is
in the process of revising the forms and will provide them to licensees
as soon as possible.
7. What should a licensee do if he has been convicted of a misdemeanor
crime of domestic violence?
Federal firearms licensees should verify that they are disabled under
the new prohibition. A licensee convicted of a disqualifying misdemeanor
may not lawfully possess firearms or ammunition. In addition, a licensee
who incurs firearms disabilities during the term of a license may not
continue operations under the license for more than 30 days after incurring
the disability unless the licensee applies for relief from Federal firearms
disabilities.
8. What should a person do if he has been convicted of a misdemeanor
crime of domestic violence?
Individuals subject to this disability should immediately lawfully dispose
of their firearms and ammunition. ATF recommends that such persons transfer
their firearms and ammunition to a third party, such as their attorney,
to their local police agency, or a federal firearms dealer. The continued
possession of firearms or ammunition by persons under this disability
is a violation of law and may subject the possessor to criminal penalties.
In addition, such firearms and ammunition are subject to seizure and forfeiture.
9. X was convicted of misdemeanor assault on October 10, 1996. The
crime of assault does not make specific mention of domestic violence,
but the criminal complaint reflects that X assaulted his wife. May X still
possess firearms or ammunition?
No. X may no longer possess firearms or ammunition.
10. X was convicted of the same crime on September 20, 1996, 10 days
before the effective date of the new statute. He possesses a firearm on
October 10, 1996. May X lawfully possess firearms?
No. If a person was convicted of a crime at any time, he or she may not
lawfully possess firearms or ammunition on or after September 30, 1996.
11. What State and local offenses are "misdemeanors" for
purposes of 18 U.S.C. • 922(d)(9) and (g)(9)?
“Misdemeanor” as used in 18 U.S.C. sections 922(d)(9) and (g)(9)
includes any offense that is classified as a misdemeanor under federal
or state law. In addition, the definition includes any state or local
offense punishable only by a fine or by imprisonment for a term of one
year or less.
12. In determining whether a conviction in a State court is a "conviction"
of a misdemeanor crime of domestic violence, does federal or state law
apply?
State law applies. If a conviction for a qualifying misdemeanor does
not occur under State law, the person has not been "convicted"
of a misdemeanor crime of domestic violence. The law states that a person
must be convicted of a State misdemeanor to be under firearms disabilities.
Therefore, if the State does not consider the person to be convicted,
the person would not have Federal firearms disabilities.
13. Is a person who received "probation before judgment"
or some other type of deferred adjudication subject to this disability?
What is a conviction is determined by the law of the jurisdiction in
which the proceedings were held. If the State law where the proceedings
were held does not consider probation before judgement or deferred adjudication
to be a conviction, the person would not be subject to Federal firearms
disabilities.
14. Are local criminal ordinances "misdemeanors under State law"
for purposes of sections 922(d)(9) and (g)(9)?
Yes, assuming a violation of the ordinance meets the definition of "misdemeanor crime of domestic violence" in all other respects.
15.X was convicted of misdemeanor assault on October 10, 1996. The
crime of assault does not make specific mention of domestic violence but
the criminal complaint reflects that he assaulted his wife. May X still
possess firearms or ammunition?
No. X may no longer possess firearms or ammunition.
16. X was convicted of the same crime on September 20, 1996, 10 days
before the effective date of the new statute. He possesses a firearm on
October 10, 1996. May X lawfully possess firearms?
No. If a person was convicted of the crime at any time, he or she may not lawfully possess firearms or ammunition on or after September 30, 1996.
17. Officer C was charged with felony assault on her child in 1989.
She pled guilty to a misdemeanor and the felony charge was dismissed.
She was suspended from the police force and ordered to undergo counseling.
After successful completion of the counseling, she was reinstated. May
Officer C lawfully possess firearms or ammunition?
No. Officer C may no longer lawfully possess firearms or ammunition either
on or off duty.
18. Are Convictions for misdemeanor crimes of domestic violence entered
by an Indian tribal court disqualifying under 18 U.S.C. 922 (d) (9) and
(g) (9)?
Convictions for misdemeanor crimes of domestic violence entered by "tribal
courts" are not disqualifying under 18 U.S.C. 922 (d) and (g) (9)
since the statute expressly refers to federal and state court convictions,
but does not reference tribal court convictions. However, Courts of Indian
Offenses operated by the Bureau of Indian Affairs under 25 C.F.R. Part
11 are federal instrumentalities. Therefore, convictions for purposes
of 18 U.S.C. 922 (d) and (g) (9).
Note: For one who has been convicted of a misdemeanor crime of domestic
violence, the prohibition on the possession of firearms and ammunition
DOES not apply if the-individual has received a pardon for the crime,
the conviction has been expunged or set-aside, or the person has had civil
rights restored (if there was a loss of civil rights) AND the person is
not otherwise prohibited from possessing firearms or ammunition.