View Full Version : Domestic Violence Misdemeanor and Purchase
tonantius
01-31-2011, 16:02
I have a friend (really), that pleaded guilty to domestic violence and did not have the money to hire the attorney to fight the charge. This person now wants to purchase a firearm. She does not know if the charge has been buried or not. If she attempts a purchase and fills out the ATF form for the background check and answers truthfully, can she be arrested for attempting to purchase a firearm if the check is a no-go?
StagLefty
01-31-2011, 16:05
I am by no means a legal advisor but I thought if you'd been convicted of domestic violence you were not allowed to own firearms. There'll be someone along with more expertise soon.
Gcompact30
01-31-2011, 16:09
Based on the fact she plead guilty means she admitted guilt. I am not an attorney but that is how I understand it. So I do not think she can ever own a handgun, unless the court overturns the plea. Did she get a deferred dismissed????? Gun stores can not and will not sell her a handgun if its on her record. I would have her contact the courts to see if she can get it removed from her record or see what was the requirements to her conviction.
I have a friend (really), that pleaded guilty to domestic violence and did not have the money to hire the attorney to fight the charge. This person now wants to purchase a firearm. She does not know if the charge has been buried or not. If she attempts a purchase and fills out the ATF form for the background check and answers truthfully, can she be arrested for attempting to purchase a firearm if the check is a no-go?
She cant own guns period. No arrest unless she has warrants.
She can run the same check through the CBI website for something like $7. If it comes up she'll know without going through all the paperwork and wasting the dealer's time.
Link:
https://www.cbirecordscheck.com/Common/Terms_Limitation.aspx
Byte Stryke
01-31-2011, 16:12
Echoing the 2 prior posts I would only add that you might consider getting an attorney and having them get the conviction overturned.
This is one of those things you REALLY don't want to mess up.
My recommendation is an attorney
I say fight it and take it to the supreme court. Being a woman there is a 180 taken on the subject of DV and owning a gun.
Zundfolge
01-31-2011, 16:17
Your friend no longer has any Second Amendment rights. Period.
http://www.law.cornell.edu/uscode/18/922%28g%29%289%29.html (http://www.law.cornell.edu/uscode/18/922%28g%29%289%29.html)
TITLE 18 > PART I > CHAPTER 44 > § 922. Unlawful acts
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101 (a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is 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; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
I say fight it and take it to the supreme court.
Been done ... we lost. (http://lautenberg.senate.gov/newsroom/record.cfm?id=308546)
just as everyone else has said...she can't own firearms. period.
only thing to potentially fix this is to get a lawyer, try to get it expunged from her record, then run the CBI BG check, if it comes up clear, then go buy a gun. the process to get it expunged will probably be long and arduous.
Her only options would be a presidential pardon, or petition the Governor of the state in which the conviction occurred for a restoration of her rights.
theGinsue
01-31-2011, 17:35
just as everyone else has said...she can't own firearms. period.
only thing to potentially fix this is to get a lawyer, try to get it expunged from her record, then run the CBI BG check, if it comes up clear, then go buy a gun. the process to get it expunged will probably be long and arduous and quite expensive.
Fixed it for you.
CrufflerSteve
01-31-2011, 17:44
There is a pretty clear process for expunging. It means big lawyer bucks and a boringly law abiding life for quite some time. It especially helps if it was youthful mistake which was never repeated.
I used to know a guy who managed a pretty bad felony when 18 and around 30 he got it expunged. It allowed him to get a real estate license. Probably could have gotten a gun since the felony was sealed. It cost big bucks.
Steve
Zundfolge
01-31-2011, 17:49
Expungement is for felonies ... IIRC its either more difficult or even completely impossible to get DV convictions expunged (thus leaving you with the president or governor helping you out personally)
Presidential pardons only apply to federal crimes. DV is a state misdemeanor.
Depending on the state, there can be remedies other than a governor's pardon. Some states automatically restore rights after a period of time has passed. Other states allow you to request the sentencing court to set the conviction aside and seal the record. Every state has its own rules.
Gcompact30
01-31-2011, 21:12
If she plead to a Misdemeanor, deferred then dismissed. She would of did her classes, stayed out of trouble, for a period of time. Then case would of been dismissed and dropped and should would be able to do what ever she wanted. She should not have plead guilty to the Judge. That's what I am assuming she did, since she did not have an attorney. That is why you all should no your rights and about how the court system works.
OneGuy67
01-31-2011, 21:35
If she plead to a Misdemeanor, deferred then dismissed. She would of did her classes, stayed out of trouble, for a period of time. Then case would of been dismissed and dropped and should would be able to do what ever she wanted. She should not have plead guilty to the Judge. That's what I am assuming she did, since she did not have an attorney. That is why you all should no your rights and about how the court system works.
Not necessarily true. Each situation is different, each judicial district handles it differently. To say it should have been a D&D isn't accurate.
She needs to get a copy of the courts findings and plea arrangement from the court clerk. Her criminal history is only going to show the arrest and not necessarily the conviction or plea bargain, if any. Most felonies and their dispositions are being reported on their criminal histories, but misdemeanors are still hit and miss, depending upon the jurisdiction.
theGinsue
01-31-2011, 22:56
If she plead to a Misdemeanor, deferred then dismissed. She would of did her classes, stayed out of trouble, for a period of time. Then case would of been dismissed and dropped and should would be able to do what ever she wanted.
The problem with this thinking is that more often than not, the statement below is taken to mean "if you have EVER been convicted in any court..."
So, even if the charges were eventually dismissed, the fact is that you HAD been convicted and are thus not allowed to possess a firearm. There is a different code for charges that were dismissed after court requirements were met and charges that were simply dismissed without a conviction/plea.
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
Can she own a black powder rifle?
Gcompact30
01-31-2011, 23:50
That's the problem, no consistency in the system [Rant1][Rant1][Rant1] I probably would have a CBI check done and see if it even shows up first. If she had an attorney the first time, they would have probably asked for a D&D. The majority of citizens have no idea about what they can plead to in a court setting.
Not necessarily true. Each situation is different, each judicial district handles it differently. To say it should have been a D&D isn't accurate.
She needs to get a copy of the courts findings and plea arrangement from the court clerk. Her criminal history is only going to show the arrest and not necessarily the conviction or plea bargain, if any. Most felonies and their dispositions are being reported on their criminal histories, but misdemeanors are still hit and miss, depending upon the jurisdiction.
OneGuy67
02-01-2011, 11:45
That's the problem, no consistency in the system [Rant1][Rant1][Rant1] I probably would have a CBI check done and see if it even shows up first. If she had an attorney the first time, they would have probably asked for a D&D. The majority of citizens have no idea about what they can plead to in a court setting.
Of course not. We have human involvement, human discretion and the ability to determine based upon circumstances. Would you prefer a system where there is a blanket outcome for every input? I personally wouldn't, as there is always circumstances to events. Even domestics.
tonantius
02-02-2011, 15:54
She did a check at the state website and it turned up nothing.
She did a check at the state website and it turned up nothing.
Was it a Colorado conviction, or out of state?
OneGuy67
02-02-2011, 18:38
She did a check at the state website and it turned up nothing.
CBI only holds the records forwarded to them from Colorado state law enforcement agencies through CCIS. The only records they hold are those that are attached with a fingerprint card. Colorado is an open record state, which is why you can get a copy of someone's criminal record for any reason. However, they will only give you Colorado's record.
The FBI has a 'clearing house' in NCIC, which will let a law enforcement officer know that the person they are conducting the name search on has a record in X state or states and automatically requests those states to send a copy of the record to the requestor. NCIC doesn't hold records.
So, if she was arrested out of state, she would need to request a record from that state. However, when CBI conducts the background check, they utilize NCIC, which will provide them the record from another state.
Make sense?
Gcompact30
02-02-2011, 19:03
It don't cost anything, just go try to purchase one then act surprised if it don't work :-)
She did a check at the state website and it turned up nothing.
It don't cost anything, just go try to purchase one then act surprised if it don't work :-)
From the 4473 form you fill out to get a gun-
"I also understand that making any false or written statement ... is a crime punishable as a felony under Federal law,and may also violate State and/or local law."
That's from just above where you sign the form. I would be leary of signing anything that isn't true.
I think the advice that OneGuy67 gave is a good start. She should try to get a copy of the court records to find out exactly what she plead guilty to and go from there.
Gcompact30
02-02-2011, 22:25
Why can't she attempt to see. Wont they just turn her down if something comes on her record. Oh yeah forgot there is something on the form about domestic violence. Well if she plead guilty she has to answer yes to that question. May the other state court dropped the charges. I guess it is best she go to the state of conviction to be on the safe side. Thanks for the info.... just for the record I was not telling her to lie on the 4473 I just said go try to purchase a weapon and see.
From the 4473 form you fill out to get a gun-
"I also understand that making any false or written statement ... is a crime punishable as a felony under Federal law,and may also violate State and/or local law."
That's from just above where you sign the form. I would be leary of signing anything that isn't true.
I think the advice that OneGuy67 gave is a good start. She should try to get a copy of the court records to find out exactly what she plead guilty to and go from there.
My point is don't sign the form. If someone is willing to run a check without a signed form that would be fine. I don't know the regulations concerning running the checks. If I were a dealer I would be suspicious of anyone that didn't know if they could pass a check.
I would still advocate going to the source records to find out what exactly she plead guilty to. Maybe she got arrested for domestic violence but plead guilty to something that isn't, like disturbing the pease or something. Unless she sees the original records she won't know for sure.
Gcompact30
02-02-2011, 23:06
Good point.....
My point is don't sign the form. If someone is willing to run a check without a signed form that would be fine. I don't know the regulations concerning running the checks. If I were a dealer I would be suspicious of anyone that didn't know if they could pass a check.
I would still advocate going to the source records to find out what exactly she plead guilty to. Maybe she got arrested for domestic violence but plead guilty to something that isn't, like disturbing the pease or something. Unless she sees the original records she won't know for sure.
tonantius
02-03-2011, 09:54
Question 11.i. covers the domestic violence issue. The instructions state that if the record has been removed then answer the question with a 'no'. She is going to try and purchase a gun sometime in the future.
Gcompact30
02-03-2011, 22:13
Stop back in the site and advise how it turns out.
Question 11.i. covers the domestic violence issue. The instructions state that if the record has been removed then answer the question with a 'no'. She is going to try and purchase a gun sometime in the future.
Title 18, Part 1, Chapter 44, Section 922 is important, as quoted above. If you have a such a conviction, you are not permitted to possess a firearm or buy one. The definition of Domestic Violence matters too though, and here it is from Section 921:
[FONT=Times New Roman][B][SIZE=3][COLOR=#5f6168]18 U.S.C.
[FONT=Times New Roman][SIZE=3]Title 18, Part 1, Chapter 44, Section 922 is important, as quoted above. If you have a such a conviction, you are not permitted to possess a firearm or buy one. The definition of Domestic Violence matters too though, and here it is from Section 921:
[size=3][font=Times New Roman][b][color=#5f6168]18 U.S.C.
hey new guy...take a look at the date of the post just before yours!!!!!!
KevDen2005
05-19-2012, 11:32
The real question is why do people say, "I don't have the money so I will take the plea." Has anyone ever heard of a public defender.
Police have a mandatory arrest requirement if there is probable cause in domestic situations. However, it doesn't mean the state will prove the case in court. A friend of mine told me about a DV arrest he had and he got advice from the family "will" attorney to take a plea. Don't do that. Get a public defender.
Off my high horse now. Sorry.
kidicarus13
05-19-2012, 11:36
You have to qualify for a public defender (basically be broke).
BushMasterBoy
05-19-2012, 11:57
You almost have to be indigent sleeping under a bridge before the state will provide a public defender. Get all copies of information under the Privacy Act then get an attorney. If you have enough money, you can get anything done you want. We have the best justice system money can buy!
KevDen2005
05-19-2012, 12:36
You have to qualify for a public defender (basically be broke).
I'm gonna go ahead and disagree with this. I know lots of people that use the public defenders regularly. I work with them (or should I say against them, pretty often).
KevDen2005
05-19-2012, 12:38
You almost have to be indigent sleeping under a bridge before the state will provide a public defender. Get all copies of information under the Privacy Act then get an attorney. If you have enough money, you can get anything done you want. We have the best justice system money can buy!
Also not true. If you need one they will get you one. Just don't expect them to be like a high priced attorney and be available for every phone call you have and probably won't be there when you plea...they are very busy
kidicarus13
05-19-2012, 12:46
I'm gonna go ahead and disagree with this. I know lots of people that use the public defenders regularly. I work with them (or should I say against them, pretty often).
Not sure where you work but check out #7:
http://coloradodefenders.us/index.php?option=com_rubberdoc&view=category&id=82&Itemid=121
I don't see what the big deal is. Gun ownership and a DV charge are pretty much a tie when it comes to street cred.
I don't see what the big deal is. Gun ownership and a DV charge are pretty much a tie when it comes to street cred.
that's the only way to roll homie
KevDen2005
05-19-2012, 14:29
Not sure where you work but check out #7:
http://coloradodefenders.us/index.php?option=com_rubberdoc&view=category&id=82&Itemid=121
I checked that out. Of course the government would make the documents vague in nature. I also did a little other research and a lot of information again seems vague. I happen to be close friends with a public defender and he has always told me it was easy to get one. I also had a civil rights law professor who was also a public defender and he again told me it was easy to get a public defender. Now I am wondering what their definition of "easy" is. I just emailed both of them asking for some clarification on the process. They both work/worked in different districts so I am also wondering what the process is like in different districts. It does seem that I see a lot of people represented by the public defender in court.
On a side note, the regarding dv and gun ownership drive me crazy. How is someone charged with harassment now restricted from owning a gun because his/her wife told the courts "I didn't like him touching me" or "I felt afraid when he yelled at me."?
My personal opinion is if you commit a crime against a person you should be restricted from owning one and those crimes are generally felonies so it doesn't matter. That's just my opinion. I hate how a person makes a slight mistake and they make him out to be a violent preditor that is out to kill everyone.
I love to tell all the advocates out there that I arrest the woman about 60 percent of the time and she is usually the one that called the police attempting to get her man in trouble. The law was made to protect women from serious abuse however the pieces of crap now use it to get their significant other in trouble when they are pissed at them.
BushMasterBoy
05-19-2012, 14:43
Don't drink the koolaid...
http://www.cobar.org/opinions/opinion.cfm?opinionid=6311&courtid=1
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