Thursday, July 19, 2012

Domestic Violence, Protection from Abuse Orders and Other ways to Loose Your Guns

No gun rights for you...under certain conditions.

Some folks probably know that certain convictions can prevent you from possessing firearms. Few realize how many different legal proceedings can trigger the prohibition and completely torpedo your second amendment right to posses guns or ammunition.

Federal Law, 18 USC § 921 defines some of the important terms including "firearm":
The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
Further definition of terms can be found at the Electronic Code of Federal Regulations. This article takes definitions for 18 USC § 921 and from those regulations. 18 U.S.C. § 922(g)(1-9)lists the the categories of prohibited persons discussed below.

People Convicted of Felonies:

Many people know that felons can't posses firearms. Felons are, under 18 U.S.C. § 922(g)(1) people convicted of a crime punishable by imprisonment exceeding one year. It does not matter that the sentence imposed was less than one year so long as the crime could have lead to a sentence of over one year.

People Convicted of Misdemeanor Crimes of Domestic Violence:

Misdemeanors, by definition, have a maximum sentence of less than one year. Still, the federal prohibition kicks in under § 922(g)(9) if you are convicted of a Misdemeanor Crime of Domestic Violence (MCODV) as defined by § 921(32)(A):

  1. Has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon; and, 
  2. At the time of the offense, the defendant was:
  • A current or former spouse, parent, or guardian of the victim;
  • A person with whom the victim shared a child in common;
  • A person who was cohabiting with or had cohabited with the victim as a spouse, parent, or
  • guardian; or,
  • A person who was or had been similarly situated to a spouse, parent, or guardian of the victim
In Maine, that means that Domestic Violence Assault, Attempted DV Assault, and some kinds of DV Threatening or Terrorizing charges can trigger the prohibition.

What is a "Conviction"? Does a Deferred Disposition Count?

The federal law defers to the state on this issue, as explained by § 921(20):
"What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms."
Generally, one is convicted once the court finds you guilty and that finding is made with a guilty verdict or guilty plea. In Maine, Misdemeanor Domestic Violence Crimes are often resolved with a "Deferred Disposition." This requieres the defendant to plead guilty but allows sentencing to be deferred for some time, usually one year. If the defendant avoids new charges and complies with conditions over that period, the defendant returns to court for a 'sentencing' date but no sentence is imposed and the charge is reduced or dismissed.

Luckily, the deferred disposition statute, 17-A MRSA §1348-A(4), provides that: 
"For purposes of a deferred disposition, a person is deemed to have been convicted when the court imposes the sentence." 
If one is successful on the deferred, usually no sentence will be imposed on the Domestic Violence charge and so no conviction and no gun ban will attach. Also, while the misdemeanor deferred disposition is pending, no sentence has yet been imposed and so no federal prohibition applies.

Defendants in civil Protection From Abuse proceedings:

In Maine, people often call these orders "PFAs" and they are filed by a Plaintiff seeking to restrain a Defendant from doing certain things. The parties must be "family or household members" as defined by Maine Law. 18 U.S.C. § 922(g)(8) prohibits firearm possession by a person 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
(C) (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
This means that anyone who has a Maine 'PFA' against them probably commits a federal crime by possessing a firearm. Some lawyers think that the prohibition is triggered only if you have a contested hearing on the PFA and that the prohibition does not kick in if you agree to a protection order without a finding of "abuse." That is wrong. If you have "actual notice" of a hearing and an "opportunity to participate," that is enough. The fact that you choose to waive that opportunity and agree to an order, will not save your gun rights. This prohibition is not a lifetime ban, you are only baned while "subject to" the order. PFAs generally expire in 2 years unless the court grants an extension.

Defendants Under indictment for a Felony:

Here is something a lot of people, including some lawyers, don't know. Federal law limits the gun rights of people who are not convicted, but simply indicted for a felony. 18 U.S.C. § 922(n) provides:
It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
While this is not a ban on possessing guns, it does mean that you can't buy a gun or receive a gun while you are under indictment.

Other People who May be Federally Prohibited from Possessing Firearms:

There are a bunch more categories under 18 U.S.C. § 922(g) and these include:

  • a person who is a fugitive from justice. § 921(15) defines this to mean "any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding."
  • a person who is an unlawful user of or who is addicted to a controlled substance. This is a confusing category. The regulations define this, in part, as: "A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician...."
  • a person who has been adjudicated as a mental defective or who has been admitted to a mental institution. The regulations define this as people whose mental health condition rendered them incompitent or not criminally responsable as part of a criminal case. It also includes those who have "been determined by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease: (1) Is a danger to himself or to others; or (2) Lacks the mental capacity to contract or manage his own affairs." This includes anyone who has been involuntarily committed by the court. 
  • an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
  • a person who has been discharged from the Armed Forces under dishonorable
  • conditions;
  • a person who, having been a citizen of the United States, renounces his citizenship;

What Sentences can be Imposed?

18 U.S.C. § 924 covers the penalties that apply for violation. The maximum prison sentence is 10 years for violating 18 U.S.C. § 922(g). For violations involving § 922(n), the "under indictment" prohibitions, the penalty is a maximum prison term of 5 years.

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