Can you buy a firearm with a domestic violence charge

Lautenberg Amendment: federal ban on gun rights for a domestic violence conviction

A domestic violence conviction can have a devastating effect on your life. You could go to jail. You could get a permanent criminal record. And you could lose your gun rights… for life.

California and federal law both prohibit people with domestic violence convictions from possessing guns. And courts have repeatedly ruled that such restrictions do not violate your Second Amendment right to bear arms.

The loss of gun rights can also come at the beginning of the case, before the person is even convicted. Judges at the arraignment will almost always issue a domestic violence restraining order. A term of the order is that the person may not own, possess or use a firearm.

California crimes of domestic violence

California law defines “domestic violence” as the abuse of:

• your current or former spouse,
• a person with whom you live or have lived (a “cohabitant”),
• the mother or father of your child,
• anyone you are or were dating, and
• a current or former fiancé(e).

When such abuse results in physical injury, domestic violence may be filed as a felony. However, the majority of domestic violence charges are filed as misdemeanors.

Penal Code 29800 – California’s “felon with a firearm” law

Penal Code 29800 PC is commonly referred to as California’s “felon with a firearm” law. It makes it a felony for anyone convicted of a felony anywhere in the world to possess a gun. Thus if you have been convicted of felony domestic violence in any jurisdiction, you are prohibited for life from possessing a gun in California.

Violation of Penal Code 29800 is punishable by:

1. 16 months, or two (2) or three (3) years in the California state prison, and/or
2. a maximum $10,000 fine.

Penal Code 29805 — California’s 10-year firearms ban

Under Penal Code 29805 PC, about 40 misdemeanor convictions carry a ten-year firearms ban. And a misdemeanor conviction of violating Penal Code 273.5 PC carries a lifetime firearms ban.

These include battery, threats and stalking against any of the people listed above.

If you are convicted of misdemeanor domestic violence (other than Penal Code 273.5 PC), you are prohibited under California law from possessing a gun for ten years. After the 10-year period is up, your right to possess a gun is automatically restored. The only condition is that during that time you have not otherwise become subject to a firearms ban. Recall there is a lifetime firearms ban for people convicted of violating Penal Code 273.5 PC as a misdemeanor. (California Assembly Bill 3129 (2018))

18 United States Code 922(g) – the federal firearms ban

Unfortunately, the California 10-year ban isn’t the end of the story. Under federal law, most domestic violence convictions trigger a lifetime firearms ban. And where federal and California laws conflict, federal law takes precedence.

Most people convicted of a California crime of domestic violence will never legally be able to own a gun anywhere in the United States.

And if you are convicted of possessing a gun in violation of federal law, you face:

1. a fine of up to $250,000, and/or
2. up to 10 years in federal prison.

We are a firm of former cops and prosecutors turned criminal defense lawyers. We have considerable experience in both California domestic violence laws and California firearms laws.

To help you understand the nuances of how a domestic violence conviction affects your gun rights, our California criminal defense lawyers discuss the following, below:

A domestic violence conviction can have a devastating effect on your life. You could potentially lose your gun rights for life.

1. Loss of California gun rights after a domestic violence conviction

1.1. California’s legal definition of “domestic violence”

In California, domestic violence is defined as the abuse of:

• your current or former spouse,
• a person with whom you live or have lived (a “cohabitant”),
• the mother or father of your child,
• anyone you are or were dating, and
• a current or former fiancé(e).

This is a broader definition than under federal law. As discussed in Section 2.5., below, federal law does not define offenses against people you have dated as domestic violence.

1.2. Penal Code 29800 PC, California’s “felon with a firearm” law

Penal Code 29800 PC is California’s “felon with a firearm” law. Despite its name, this law actually covers more than just felonies. PC 29800 prevents four groups of people from owning, possessing, purchasing, or receiving firearms:

1. people who have been convicted of a felony offense in any state or country,
2. people who are addicted to a narcotic drug,
3. people with two or more convictions for Penal Code 417(a)(2), brandishing a firearm, and
4. people with just one conviction for certain weapons-related misdemeanors.

The law also applies to minors who were convicted of any of the above offenses when they were tried as adults.

Domestic violence that results in an injury – even a minor one – as the result of physical force can be filed as a felony. This includes both wounds and injuries from strangulation or suffocation.

If you are convicted of domestic violence as a felony or of violating Penal Code 273.5 PC as a misdemeanor, California law prohibits you from ever legally possessing a gun.

Violation of Penal Code 29800 is also a felony. Conviction subjects you to:

1. 16 months, or two (2) or three (3) years in the California state prison, and/or
2. a maximum $10,000 fine.

You may also be required to forfeit your weapon.

1.3. Penal Code 29805 — California’s 10-year firearms ban

Many domestic violence charges do not involve physical injuries. These offenses can only be charged as misdemeanors. In addition, prosecutors will sometimes allow you to plea to a misdemeanor when felony domestic violence has been charged.

Under Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.

These include the following crimes of domestic violence:

• Penal Code 243(e)(1) PC California’s domestic battery law,
• Penal Code 243.4 PC California’s law against sexual battery,
• Penal Code 422 PC PC California’s criminal threats law,
• Penal Code 646.9 PC California’s stalking law, and
• Penal Code 273.6, violation of a protective order.

Note that a misdemeanor conviction under Penal Code 273.5 PC (corporal injury on a spouse or cohabitant) will carry a lifetime loss of gun rights. See California AB 3129.

If you are convicted of… or you plead guilty to… one of these misdemeanor crimes (other than PC 273.5), California laws prohibits you from possessing a firearm for 10 years. When the 10 years are up, you do not need to do anything. Your California gun rights are automatically restored as long as you are not otherwise prohibited from owning a firearm.

However, as discussed below, federal law still most likely prohibits you from possessing a gun.

In addition, if you violate Penal Code 29805, you face possible:

1. imprisonment of up to one year in county jail or California state prison, and/or
2. up to a $1,000 fine.

1.4. California protective or restraining orders

Protective orders are commonly issued in connection with domestic abuse allegations.

California Penal Code 29825 PC makes it a crime to possess or purchase a firearm if you are subject to a protective order that bars you from possessing a gun.

A “protective order” is one that:

• forbids specific acts of abuse;
• excludes you from a dwelling; and/or
• forbids other specified behaviors the court determines necessary to effectuate either of the first two types of orders. For purposes of California restrictions on gun possession, it does not matter whether the protective order was ex parte, after notice and hearing, or as part of a judgment.

1.5. Confiscation of your firearm after a domestic violence arrest

If you are arrested for a California domestic violence offense, the investigating law enforcement officer is legally required to confiscate any firearms or other weapons that were:

• allegedly used during the commission of the offense,
• in plain sight, or
• discovered during a lawful search of your person/premises.

If your gun is considered evidence, law enforcement will keep it until the resolution of your case. If you are acquitted…and you lawfully possessed your weapon…it will likely be returned to you.

However, the firearm will most likely be declared a nuisance and subject to destruction if:

• you possessed the gun illegally, or
• you are convicted of the charges.

If your offense qualifies as a misdemeanor crime of domestic violence (“MCDV”) under federal law, you are banned from owning firearms for life.

2. Federal firearms law and domestic violence

2.1. The conflict between federal and California law

Under the Supremacy Clause of the United States Constitution, federal law prevails over California law.

Therefore, even if you are only subject to a 10-year ban under California law, if your offense qualifies as a misdemeanor crime of domestic violence (“MCDV”) under federal law, you are banned from owning firearms for life. And a misdemeanor conviction under Penal Code 273.5 PC (corporal injury on a spouse or cohabitant) carries a lifetime loss of gun rights. See California AB 3129.

2.2. The Gun Control Act of 1968 – 18 USC 921-930

The Gun Control Act of 1968 is set forth in sections 921 – 930 of Title 18 of the United States Code.

Since it was passed, this act has prohibited convicted felons and certain other people from:

• possessing guns in or affecting commerce, or
• receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

You meet the commerce requirement if your gun was shipped or transported from another state or country, and you know that you have the weapon.

2.3. The Lautenberg Amendment – 18 USC 922(g)(8) and (9)

In 1996, the Lautenberg Amendment to the Gun Control Act expanded the list of people federally prohibited from possessing a gun. Added were:

• people under restraining orders for harassing, stalking, or threatening an intimate partner or his/her child, and
• people convicted of a misdemeanor crime of domestic violence.

Let’s take a closer look at these two categories.

2.4. Domestic violence protective orders and federal firearms law

Domestic violence protective orders are sometimes referred to as “DVPO,” restraining orders, or “no contact” orders.

Under 18 USC 922(g)(8), you are prohibited from possessing a firearm if you are subject to a DVPO restraining you from:

• harassing, stalking, or threatening an intimate partner and/or his or her child, or
• engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury.

For purposes of this law, an “intimate partner” is:

• your current or former spouse,
• the mother or father of your child, or
• someone with whom you live or have lived (a “cohabitant”).

In order for the firearms prohibition to apply, you must have received actual notice of the DVPO hearing and had an opportunity to participate. An ex-parte order… that is, an order issued in emergency circumstances which does not give you notice and an opportunity to participate… does not subject you to the federal ban.

In addition, for the federal ban to apply the protective order must also:

• include a finding that you represent a credible threat to the physical safety of such intimate partner or child; or
• by its terms explicitly prohibit the actual, attempted, or threatened use of physical force that would reasonably be expected to cause bodily injury to your intimate partner or child.

This precise language does not need to be contained in the court order. However, the order must contain explicit terms that are substantially similar in meaning. A court order that merely requires “no contact” does not meet this requirement.

As you can see, the requirements for the federal ban based on a DVPO are much stricter than the California ban. However, the penalties are more severe.

If you are convicted in federal court of illegal possession of a firearm based on a DVPO, you face:

1. a fine of up to $250,000, and/or
2. up to 10 years in federal prison.

2.5. Domestic violence convictions

2.5.1. The legal definition of a felony under federal firearms law

The federal definition of a felony covers anyone who has been convicted, in any court, of a crime punishable by imprisonment for a term exceeding one year.

It is not necessary that you actually have been sentenced to more than a year imprisonment. If you are convicted of a felony, you are covered by the federal definition, even if you were granted probation.

Felony domestic violence can be punished by more than one-year imprisonment in California. As a result, if you are convicted of California felony domestic violence, you are subject to a lifetime federal firearms ban (as well as the lifetime ban under California law).

2.5.2. The federal definition of “misdemeanor crime of domestic violence”

Federal law defines “misdemeanor crime of domestic violence” (“MCDV”) as an offense that:

1. is a misdemeanor under Federal, State, or Tribal law;
2. has, as an element:
   • the use or attempted use of physical force, or
   • the threatened use of a deadly weapon; and
3. is committed by:
   • a current or former spouse of the victim,
   • a parent or guardian of the victim,
   • a person with whom the victim shares a child in common,
   • a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or
   • a person similarly situated to a spouse, parent, or guardian of the victim.

Note that this definition is more expansive than that of “intimate partner” for purposes of the section of the law applicable to protective orders.

Additionally, this definition differs from the California definition of domestic violence in several important respects:

• you must have been represented by counsel, or have knowingly and intelligently waived that right;
• you must have been entitled to a jury trial and either (1) been tried by a jury, or (2) knowingly and intelligently waived that right;
• offenses against people you have dated (but never married, never lived with, and never had children with) do not count as MCDV; and
• to qualify as an MCDV under federal law, the offense must have involved the use or attempted use of force, or the threatened use of a deadly weapon.

So as you can see, an offense that counts as a crime of domestic violence under California law is not necessarily one under the federal statute.

Example: Bob threatens to choke his ex-wife the next time she takes their kids somewhere without his permission. He gets convicted of making criminal threats California Penal Code 422 PC. Under California law, this conviction triggers a 10-year firearms ban.
But this conviction does not generate a federal ban on Bob’s gun rights. This is because there was no actual physical force or threatened use of a deadly weapon. As a result, unless Bob does something else that legally restricts his gun rights, Bob will be entitled to possess a firearm in 10 years-time.
Conversely, there may be some offenses that qualify as federal crimes of domestic violence, even though they do not meet the California definition.

Example: Janet is convicted of Penal Code 415 PC, California’s “disturbing the peace” law for shoving her husband in public. This is not a crime that triggers a California firearms’ ban. But it could conceivably trigger the federal lifetime ban because it:
1. was committed against a spouse, and
2. involved the use of physical force.
But… the Ninth Circuit U.S. Court of Appeals has held that simple battery under California Penal Code section 242 is not a misdemeanor crime of domestic violence. The court explained that the federal ban requires conduct more serious than mere offensive touching. A state conviction in which no force… or only minimal force… was used or attempted does not qualify.

Thus it is not entirely clear whether a federal court would consider shoving to be force significant enough to meet the federal requirement.

What is clear, however, is that if even one of the elements required under the federal statute is not met, California law alone dictates whether… and when… your gun rights will be restored.

2.6. Penalties for possessing a firearm in violation of the federal ban

If you possess a firearm when you are subject to a DVPO or have a domestic violence conviction that subjects you to the federal ban, you face:

1. a fine of up to $250,000; and/or
2. up to 10 years in a federal prison.

Note that there is no parole in the federal prison system. If you are convicted of violating the federal firearms ban, you will serve your full sentence, less only a possible good behavior reduction of approximately fifteen percent.

3. Expungements and California governor’s pardons

California expungement law restores most rights lost after a conviction. However, the right to possess firearms is not one of them.

In addition, an expunged conviction still counts for purposes of federal firearms restrictions. So even if your California domestic violence conviction is expunged, you are still subject to a federal lifetime ban on possessing a gun.

A California gubernatorial pardon, on the other hand, can restore gun rights. But not all pardons do so. The pardon must either be “full and unconditional,” or expressly provide that you are entitled to exercise the right to possess a gun.

If you receive a pardon that restores your gun rights, federal law will excuse you from the lifetime ban.

However, governor’s pardons are only available for felonies and specific misdemeanor sex offenses. As a result, a pardon won’t restore your federal gun rights after a misdemeanor domestic violence conviction.

Even a presidential pardon will not help you if you are convicted of MCDV. The President is unable to pardon you for a state crime.

Thus the only way to ensure that you don’t lose your gun rights is not to be convicted of a crime of domestic violence in the first place.

The first step to protecting your gun rights is to fight your domestic violence charge.

4. How can I preserve my gun rights following a California domestic violence arrest?

As discussed, federal law prohibits restoring your gun rights following a domestic violence conviction. So the goal is to prevent these rights from being taken away in the first place. There are two steps we take to try to achieve this goal following a client’s arrest on domestic violence charges:

1. fight the case, and/or
2. negotiate a plea bargain.

4.1. Fighting domestic violence charges

The first step is to fight your domestic violence charge. Our California criminal defense attorneys will evaluate all available legal defenses to challenge the allegation. If there is a good defense available, we may be able to secure a dismissal or acquittal.

Unfortunately, sometimes the evidence against you is simply too strong to fight the charge successfully. When this is the case, we try to negotiate a plea bargain.

4.2. Negotiating a plea bargain

Plea bargaining is a useful tool for both sides. It allows the prosecution to obtain a conviction and allows you to plead guilty to a lesser offense. In addition to carrying a less severe sentence, a lesser offense often carries less of a social stigma.

Just as importantly, some lesser offenses do not trigger a firearms ban.

As Ventura County criminal defense attorney Nicole Valera explains:

“We usually try to plea bargain cases down to California Penal Code 602 trespass…a common plea bargain charge. When that’s not possible, we’ll at least do our best to plead you to a charge that is unrelated to domestic violence. If the charge is unrelated to domestic violence, you will not be subject to the federal lifetime firearms ban.”

Example: Julien barges into his ex-wife’s office and wraps his hands forcefully around her throat. He is charged with a misdemeanor violation of Penal Code 273.5 for intentionally inflicting corporal injury on a former spouse. PC 273.5 is one of the misdemeanors that triggers a lifetime firearms ban in California (for convictions on or after January 1, 2019). In addition, because this crime involves physical force, a conviction on this charge would subject him to the lifetime federal firearms ban.

If instead, however… Julien is able to plead to simple battery under Penal Code 243, he should be able to avoid the federal ban. Since simple battery does not require the use of force, the Ninth Circuit has held that it does not meet the federal definition of a misdemeanor crime of domestic violence. It is, however, a charge that triggers California’s 10-year firearms ban. So Julien will be able to possess a gun once the California 10-year period has expired.

But… let’s say that Julien is allowed, instead, to plead to Penal Code 602 trespass. Trespass triggers neither the California 10-year ban nor the federal lifetime ban on possessing a gun. Thus as long as Julien is not otherwise legally prohibited from owning a gun, the trespassing conviction will allow him to possess a firearm without restriction.

Call us for help…

Call us for help

If you or loved one is charged with possession of a gun and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada battery domestic violence convictions and gun rights. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.