Possession of a Firearm By a Person Previously Convicted of a Misdemeanor Crime Of Domestic Violence

Definition

Possession of a Firearm By a Person Previously Convicted of a Misdemeanor Crime Of Domestic Violence is characterized and defined by Federal Law as:

“any person who is charged with possessing a firearm/ammunition in or affecting commerce after having been convicted of a misdemeanor crime of domestic violence. It is against federal law for a person convicted of a misdemeanor crime of domestic violence to possess a firearm/ammunition that was connected with interstate or foreign commerce.”(18 U.S.C. § 922(g)(9)).

Requirements for Conviction

If a person previously convicted of a misdemeanor crime of domestic violence is accused of possessing a firearm, there are several requirements for conviction.  For the jury to find the accused as guilty of this crime, they must be convinced that the government has proven each of these things beyond a reasonable doubt:

1. that the defendant previously has been convicted of the predicate crime charged in the indictment.
2. that at the time of that previous crime, the defendant was that victim’s: current or former spouse,  parent or guardian, shared a child with the victim, cohabited with the victim, or was similarly situated to any of the listed relationships.
3. that on about the date charged in the Indictment, the defendant knowingly possessed the firearm/ammunition described in the Indictment, and
4. that the firearm/ammunition was connected with interstate or foreign commerce, meaning that the firearm/ammunition, at any time after it was manufactured, moved from one state to another or from a foreign country into the United States.

The travel need not have been connected to the charge in the Indictment, need not have been in furtherance of any unlawful activity and need not have occurred while the defendant possessed the firearm/ammunition.

Penalties

Any individual who violates this section will be fined under this title for up to $250,000 or imprisoned for up to 10 years, or both.

Further Facts & Considerations

The law is clear on this issue for those who have been convicted of a domestic violence crime, but is a bit more nuanced when it comes to restraining orders.  Firearm restrictions for those who are a listed as defendant in a restraining order have several requirements before the restrictions apply:

1. Hearing – the defendant must have had the opportunity to be heard at a hearing
2. Intimate Partner – the defendant and petitioner must be intimate partners
3. Restrains Future Contact – must restrain the defendant from harassing, stalking, or threatening behavior
4. Credible Threat or Physical Force – defendant must be deemed a credible threat to the petitioner or be barred from the use of physical force

If these conditions are met for the issuance of a restraining order –  particularly the fourth element – the order will be noted in the federal database indicating the prohibition of firearms for the defendant.  However, state forms that are used for restraining orders do not always specifically note whether this federal criteria applies, which could make it hard to determine if the restriction applies without a detailed reading of the order and other court related documents.  Therefore, the restriction is not automatically clear or uniform in these decisions, leaving a bit of a grey area on a case by case basis.