Misdemeanor Crime of Domestic Violence
No. A qualifying offense does not need to be designated as a domestic violence offense. For example, a conviction for assault may qualify as an misdemeanor crime of domestic violence even if the offense is not designated as a domestic violence assault.
[18 U.S.C. 921(a)(33) and 922(g)(9); 27 CFR 478.11 and 478.32(a)(9)]
Yes.
Yes, assuming a violation of the ordinance meets the definition of “misdemeanor crime of domestic violence” in all other respects.
Yes. The Gun Control Act was amended so that employees of government agencies convicted of misdemeanor crimes of domestic violence (MCDV) 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]
The law of the jurisdiction determines whether a conviction has occurred. Therefore, if the law of the jurisdiction does not consider the person to be convicted, they would not have the federal disability.
[18 U.S.C. 921(a)(33); 27 CFR 478.11]
No. The “as an element” language in the definition of “misdemeanor crime of domestic violence” (MCDV) 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 someone whose relationship to the victim meets the definition in the Gun Control Act (GCA).
[18 U.S.C. 921(a)(33); 27 CFR 478.11]
No, as long as the pardon, expungement or restoration does not expressly provide that the person may not ship, transport, possess or receive firearms. A restoration of civil rights, however, is only effective to remove the federal firearms disability if the law of the jurisdiction provides for the loss of civil rights for a conviction of such a misdemeanor.
[18 U.S.C. 921(a)(33); 27 CFR 478.11]
A “misdemeanor crime of domestic violence” is an offense that:
- Is a misdemeanor under federal, state, or tribal law;
- Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
- 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, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
The term “dating relationship” means a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.
Whether a relationship constitutes a “dating relationship” shall be determined based on consideration of:
- the length of the relationship;
- the nature of the relationship; and
- the frequency and type of interaction between the individuals involved in the relationship.
A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a “dating relationship.”
However, a person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
- The person was represented by counsel in the case, or knowingly and intelligently waived the right of counsel in the case; and
- In the case of a prosecution for which a person was entitled to a jury case was tried, either –
- The case was tried by a jury, or
- 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.
In the case of a person who has been convicted of a misdemeanor crime of domestic violence against an individual in a dating relationship; 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 firearms rights restored unless the expungement, pardon, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms. If the person has no more than one such conviction, and is not otherwise prohibited, the person shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm if 5 years have elapsed from the later of the judgment of conviction or the completion of the person's custodial or supervisory sentence, if any, and the person has not subsequently been convicted of another such offense, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, or any other offense that would disqualify the person. NICS shall be updated to reflect the status of the person
Restoration after 5 years, as described above, is not available for a current or former spouse, 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.
[18 U.S.C. 921(a)(33); 18 U.S.C. 921(a)(37); 27 CFR 478.11]
Individuals subject to this disability should immediately dispose of their firearms and ammunition, such as by abandonment to a law enforcement agency.
[18 U.S.C. 922(g)(9); 27 CFR 478.32]
The definition of misdemeanor crime of domestic violence in the Gun Control Act (GCA) includes any offense classified as a “misdemeanor” under federal, state or tribal 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.
[18 U.S.C. 921(a)(33); 27 CFR 478.11]
