Misdemeanor Crime of Domestic Violence

  1. What is a “misdemeanor crime of domestic violence?”
  2. What is the effective date of this disability?
  3. Does application of the law to persons convicted prior to the law’s effective date violate constitutional rights?
  4. X was convicted of misdemeanor assault on October 10, 1996, for beating his wife. Assault has as an element the use of physical force, but is not specifically a domestic violence offense. May X lawfully possess firearms or ammunition?
  5. X was convicted of a misdemeanor crime of domestic violence on September 20, 1996, 10 days before the effective date of the statute. He possesses a firearm on October 10, 2004. Does X lawfully possess the firearm?
  6. 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?
  7. What State and local offenses are “misdemeanors” for purposes of 18 U.S.C. 922(d)(9) and (g)(9)?
  8. Are local criminal ordinances “misdemeanors under State law” for purposes of sections 922(d)(9) and (g)(9)?
  9. In order for an offense to qualify as a “misdemeanor crime of domestic violence,” does it have to have as an element the relationship part of the definition (e.g., committed by a spouse, parent, or guardian)?
  10. Is a person who received “probation before judgment” or some other type of deferred adjudication subject to the disability?
  11. What should a licensee do if he or she has been convicted of a misdemeanor crime of domestic violence?
  12. What should an individual do if he or she has been convicted of a misdemeanor crime of domestic violence?
  13. Does the disability apply to law enforcement officers?
  14. Is an individual who has been pardoned, or whose conviction was expunged or set aside, or whose civil rights have been restored, considered convicted of a misdemeanor crime of domestic violence?
Q: What is a “misdemeanor crime of domestic violence?”

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 of 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 —
    1. the case was tried by a jury, or
    2. 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.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]

Q: 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 law’s effective date.

Q: Does application of the law to persons convicted prior to the law’s effective date violate 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 and receipt 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.

Q: X was convicted of misdemeanor assault on October 10, 1996, for beating his wife. Assault has as an element the use of physical force, but is not specifically a domestic violence offense. May X lawfully possess firearms or ammunition?

No. X may not legally possess firearms or ammunition.

[18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]

Q: X was convicted of a misdemeanor crime of domestic violence on September 20, 1996, 10 days before the effective date of the statute. He possesses a firearm on October 10, 2004. Does X lawfully possess the firearm?

No. If a person was convicted of a misdemeanor crime of domestic violence at any time, he or she may not lawfully possess firearms or ammunition on or after September 30, 1996.

[18 U.S.C. 922(g)(9), 27 CFR 478.32(a)(9)]

Q: 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. Therefore, if the State does not consider the person to be convicted, the person would not have the Federal disability.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]

Q: What State and local offenses are “misdemeanors” for purposes of 18 U.S.C. 922(d)(9) and (g)(9)?

The definition of misdemeanor crime of domestic violence in the GCA includes any offense classified as a “misdemeanor” under Federal or State law. In States that do not classify offenses as misdemeanors, the definition includes any State or local offense punishable by imprisonment for a term of 1 year or less or punishable by a fine. For example, if State A has an offense classified as a “domestic violence misdemeanor” that is punishable by up to 5 years imprisonment, it would be a misdemeanor crime of domestic violence. If State B does not characterize offenses as misdemeanors, but has a domestic violence offense that is punishable by no more than 1 year imprisonment, this offense would be a misdemeanor crime of domestic violence.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]

Q: 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.

Q: In order for an offense to qualify as a “misdemeanor crime of domestic violence,” does it have to have as an element the relationship part of the definition (e.g., committed by a spouse, parent, or guardian)?

No. The “as an element” language in the definition of “misdemeanor crime of domestic violence” only applies to the use of force provision of the statute and not the relationship provision. However, to be disabling, the offense must have been committed by one of the defined parties.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]

Q: Is a person who received “probation before judgment” or some other type of deferred adjudication subject to the 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 judgment or deferred adjudication to be a conviction, the person would not be subject to the disability.

[18 U.S.C. 921(a)(33), 27 CFR 478.11]

Q: What should a licensee do if he or she has been convicted of a misdemeanor crime of domestic violence?

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 by reason of such a misdemeanor conviction 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.

[18 U.S.C. 922(g)(9) and 925(c), 27 CFR 478.144 (i)]

Q: What should an individual do if he or she has been convicted of a misdemeanor crime of domestic violence?

Individuals subject to this disability should immediately dispose of their firearms and ammunition. ATF recommends that such persons transfer their firearms and ammunition to a third party who may lawfully receive and possess them, such as their attorney, a local police agency, or a Federal firearms dealer. The continued possession of firearms and 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.

[18 U.S.C. 922(g)(9) and 924(d)(1), 27 CFR 478.152]

Q: Does the disability apply to law enforcement officers?

Yes. The Gun Control Act was amended so that employees of government agencies convicted of misdemeanor crimes of domestic violence would not be exempt from disabilities 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. The disability applies to firearms and ammunition issued by government agencies, purchased by government employees for use in performing their official duties, and personal firearms and ammunition possessed by such employees.

[18 U.S.C. 922(g)(9) and 925(a)(1), 27 CFR 478.32(a)(9) and 478.141]

Q: Is an individual who has been pardoned, or whose conviction was expunged or set aside, or whose civil rights have been restored, considered convicted of a misdemeanor crime of domestic violence?

No, as long as the pardon, expungement, or restoration does not expressly provide that the person may not ship, transport, possess, or receive firearms.