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Thread: Domestic Violence Conviction

  1. #1
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    Domestic Violence Conviction

    I am holding firearms that belong to a person who has been convicted of domestic violence (a misdemeanor). Can I legally give him these firearms back? I thought the law was pretty clear on saying that any person who has been convicted of a felony or a domestic violence misdemeanor could not possess a firearm. However, I spoke with a Fairfax County Police Detective (who was working the case) and the Commonwealth Attorney's Office, and both of them said that there is nothing that would prevent him from possessing a firearm. I brought up the law (the Lautenberg amendment) and they said that this law only applies when the crime committed actually involved the use of a weapon. That's not how I understand the law to read. So what am I missing here??

    Qualifying Offenses: As enacted the statute defines "misdemeanor crime of domestic violence" (MCDV) as any state or federal misdemeanor that -
    "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, 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, or by a person similarly situated to a spouse, parent, or guardian of the victim."

    http://www.justice.gov/usao/eousa/fo...9/crm01117.htm

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    You know better than to ask a cop about the law. A prosecutor is only slightly better.

    Read the statute for yourself. Ask a defense attorney for advice if uncertain.

    Or, hash it out with us experts here.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. (Because that is the only way freedom can work. We have to respect all rights, all the time--for each other and everybody else--and strive to win the rights of the other guy as much as for ourselves.)

    Equality and consent of the governed: We're all equal. How can another legitimately govern me without my express consent?

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    Accomplished Advocate peter nap's Avatar
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    You asked a two part question.

    Can you legally give them back and can he possess them?

    IMO, they are his and he can ask for them at ant point. You're not selling them, he already owns them. The crime would be his, not yours.
    That's just an opinion though.

    I was under the same impression as you, the domestic violence conviction was the end of the road.
    Last edited by peter nap; 08-21-2012 at 08:31 PM.

  4. #4
    Regular Member ProShooter's Avatar
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    With a DV conviction, they cannot possess a firearm.
    James Reynolds

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    Campaign Veteran skidmark's Avatar
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    Can I legally give him these firearms back?
    You know that he was convicted of a DV misdemeanor, and you know that such is a disqualifier for possessing firearms. So giving them to him would be transferring firearms to a prohibitted person.

    While they remain his property he is prohibitted from possessing them. It is in his interst to appoint someone to dispose of them for him. What's he got and how much does he want for it? (OK, I know we cannot fo "for sale" posts on OCDO, but there are several forums designed just for that.)

    As for the cop and the Commonwealth Attorney's office person telling you that you could give the firearms to your friend - I would be filing formal written complaints with Internal Affairs and the Commonwealth Attorney. If it was the CA himself you said you could give the firearms to your friend I's send my written complaint to the Attorney General. The despised and hated Lautenberg Amendment has been around long enough that even grade-school kids know about it, so there is no excuse for those two not to be aware of it and its restrictions. They need to be called on the carpet!

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Activist Member nuc65's Avatar
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    IANAL - but....

    I think that User should be consulted. It was my understanding from case law that the DV conviction must contain an element of violence. It isn't enough to be convicted of DV but the crime must contain the element of violence as DV in order for the Lautenburg Amendment to apply. I also am not a lawyer and don't know what any of that means. It is possible to be convicted of DV and not be covered under the violence part especially as a misdemeanor. I think the felony must have an element of violence to be a felony. I don't have the cites, so I would recommend talking to User or another before deciding on a course of action. It may be that you could get sued for the return of the firearms and cost associated with making you turn them over.

    Also note that if it were a state conviction the qualifiers are not necessarily the same as what the federal statute covers so the definition may be different. It really depends on what the conviction says, what the statute convicted under says and what the comparison to federal law is. I think...
    Last edited by nuc65; 08-21-2012 at 10:14 PM. Reason: added some text
    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

    excerpt By Marko Kloos (http://munchkinwrangler.wordpress.com/?s=major+caudill)

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    Regular Member Riana's Avatar
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    If you are unsure, perhaps going to an FFL and doing a 'full paperwork' transfer of one of the firearms would answer the question? If the purchase request does not get denied, then go ahead and give him the rest of the firearms back.

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    Regular Member paramedic70002's Avatar
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    Maybe I'm oversimplifying things, but, how can a Domestic Violence conviction NOT involve violence?
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

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    Campaign Veteran skidmark's Avatar
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    http://en.wikipedia.org/wiki/Domesti...fender_Gun_Ban

    Read through it.

    The definition of 'convicted' can be found in the chapter 18 U.S.C. § 921(a)(33)(B)(ii) and has exceptions:
    (33) (B)
    (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
    (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
    (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
    (aa) the case was tried by a jury, or
    (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
    (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction 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 applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
    ######
    (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.
    The problem is that there is no crime called "Domestic Violence" in Virginia. At best you might get an idea of what it might be by looking at the crime of Assault and battery against a family or household member http://leg1.state.va.us/cgi-bin/legp...+cod+18.2-57.2 .

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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  10. #10
    Regular Member TFred's Avatar
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    Quote Originally Posted by paramedic70002 View Post
    Maybe I'm oversimplifying things, but, how can a Domestic Violence conviction NOT involve violence?
    We're talking about legislators here. Why would you expect things to mean what they appear to mean?

    TFred

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    Regular Member Walt_Kowalski's Avatar
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    This, and any law that strips a free person of their right to keep and bear arms is unconstitutional.
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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by TFred View Post
    We're talking about legislators here. Why would you expect things to mean what they appear to mean?

    TFred
    How can a Brandishing a Firearm charge....not involve a firearm?

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    Quote Originally Posted by peter nap View Post
    How can a Brandishing a Firearm charge....not involve a firearm?
    You could point your finger at someone. Just ask skidmark.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

  14. #14
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by grylnsmn View Post
    You could point your finger at someone. Just ask skidmark.
    That was different. According to Poindexter, that was a hate crime.

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    Activist Member nuc65's Avatar
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    Also note that the statue quoted only applies to interstate commerce. The law may not apply to a firearm already owned by such a person unless they travel with it.

    I still suggest letting a lawyer and maybe a judge determine this.

    Brandishing may involve a firearm (or finger) but it does not involve violence against...
    When I carry a gun, I don't do so because I am looking for a fight, but because I'm looking to be left alone. The gun at my side means that I cannot be forced, only persuaded. I don't carry it because I'm afraid, but because it enables me to be unafraid. It doesn't limit the actions of those who would interact with me through reason, only the actions of those who would do so by force.

    excerpt By Marko Kloos (http://munchkinwrangler.wordpress.com/?s=major+caudill)

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    alos could be that the commonwealth attorney is only used to and required to prosecute state law and since there is no state law that says a domestic conviction would deny him the right to own firearms gave you the answer he did. The domestic law is a federal prohibitor that most local pds, attorneys do not totally understand.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by tkd2006 View Post
    alos could be that the commonwealth attorney is only used to and required to prosecute state law and since there is no state law that says a domestic conviction would deny him the right to own firearms gave you the answer he did. The domestic law is a federal prohibitor that most local pds, attorneys do not totally understand.
    I expect that's right.

  18. #18
    Regular Member ProShooter's Avatar
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    Quote Originally Posted by skidmark View Post


    The problem is that there is no crime called "Domestic Violence" in Virginia. At best you might get an idea of what it might be by looking at the crime of Assault and battery against a family or household member http://leg1.state.va.us/cgi-bin/legp...+cod+18.2-57.2 .

    stay safe.
    57.2 is the charge of Domestic Assault. Domestic Violence is the concept. If you are convicted of 57.2, you are said to have committed a crime of Domestic Violence.
    James Reynolds

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  19. #19
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by ProShooter View Post
    57.2 is the charge of Domestic Assault. Domestic Violence is the concept. If you are convicted of 57.2, you are said to have committed a crime of Domestic Violence.
    That brings us back to the violence aspect Jim.

    There has to be Battery to fall under that statute. While the battery could be a simple touch, I can't say I ever remember anyone being convicted of anything other than a violent touch.
    Last edited by peter nap; 08-22-2012 at 10:40 AM.

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    Regular Member Steeler-gal's Avatar
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    Domestic Violence Conviction

    Quote Originally Posted by hunter45 View Post
    I am holding firearms that belong to a person who has been convicted of domestic violence (a misdemeanor). Can I legally give him these firearms back? I thought the law was pretty clear on saying that any person who has been convicted of a felony or a domestic violence misdemeanor could not possess a firearm. However, I spoke with a Fairfax County Police Detective (who was working the case) and the Commonwealth Attorney's Office, and both of them said that there is nothing that would prevent him from possessing a firearm. I brought up the law (the Lautenberg amendment) and they said that this law only applies when the crime committed actually involved the use of a weapon. That's not how I understand the law to read. So what am I missing here??
    If the CA says its OK, get a letter or email stating so as a way to support your defense if it ever comes to light that you shouldn't have been given firearms back.
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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by Steeler-gal View Post
    If the CA says its OK, get a letter or email stating so as a way to support your defense if it ever comes to light that you shouldn't have been given firearms back.
    And be sure to let us know what time you are free on visiting day. I'd sure hate to interrupt your arts & crafts time.

    BTW, would you prefer your file in a chocolate or yellow cake?

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
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  22. #22
    Regular Member Tanner's Avatar
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    Quote Originally Posted by skidmark View Post
    And be sure to let us know what time you are free on visiting day. I'd sure hate to interrupt your arts & crafts time.

    BTW, would you prefer your file in a chocolate or yellow cake?

    stay safe.
    Sounds like he is about to make two legal mistakes. One being giving him the firearm when he know he is disqualified and the other being an accessory to his friends on going crime of posessing the firearms. An accessory is a person who assists in the commission of a crime, but who does not actually participate in the commission of the crime. I think the ownership is not the question anymore since he cannot legally own them any longer. Am I right, wrong, or just plain stupid?

  23. #23
    Regular Member The Airframer's Avatar
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    It seems clear to me-- you get convicted of Domestic Violence and you lose your gun rights.

    BUT, I have been in court a few times for divorce/custody issues and seen poor old farts petitioning the courts and asking the judge to get their guns back. They usually had their miss' with them proclaiming that no threat exists. Not sure if these guys were convicted of DV or if the guns were confiscated during the initial DV police response. A few times the judge allowed them to get em back!
    It's better to have it and not need it then to need it and not have it...

  24. #24
    Campaign Veteran skidmark's Avatar
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    There are ways to do it, but it is such a minefield that going pro se is not recommended. Being able to stay out of federal prison is worth the price for a knowledgeable attorney's assistance. An attorney that advertizes that they specialize in domestic relations is not going to necessarily be knowledgeable about this subject. Ask how many cases they have handled and what the results were. Iicking the tires is well advised.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  25. #25
    Regular Member ncwabbit's Avatar
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    in response to a previous poster...DV does not necessarily encompass violent acts against someone's intimate but DV swings from mental or physical to sexual or combination of abuse(s).

    This issue centers around and is truly a power and control situation between two intimates. Perpetrators exercise coercion and threats (leaving, or going to hurt, etc.), intimidation (smashing things, hitting walls, displaying weapons), emotional (name calling, putting down, etc.) or economic (controlling or taking their $$) abuse, isolation tactics (controlling when and who they talk to), minimizing or denying abuse occurred, using the children (using children to relay messages, etc), and from some cultures - male privilege (they are chattel treating and them like a servant). If it exists in an intimate’s environment there is a real possibility for severe injury escalating to death for one or both intimates involved in the DV situation.

    I will point out domestic violence traits are LEARNED and can with psychoeducational sessions and therapy can be unlearned so intimates can enjoy a violence free relationship. Unfortunately, when perps are provided these remedial solutions they are already under judicial direction to participate which exacerbates their displeasure towards their intimate as well as makes remedial efforts a real uphill battle for the psychotherapist providing remediation. (tho quite satisfying to see the perp’s mental light switch turn on so they finally understand both the actual and potential harm they are doing to their intimate)
    Some states are quite proactive on their DV enforcement w/no adjudication through the courts – you are guilty if police were called as someone is mandated to be arrested.

    the majority of perps are men (<80%) but women are now being charged (>20%) as well. It is also a heterosexual as well as same sex intimates. With the great recession ongoing, DV charges are on the rise as frustrations within the relationship rise until arguments arise where police are called by concerned neighbors.

    I will not entertain why intimates stay together in a violent relationship!

    And the results as you have read in previous posts…you lose your right to own or access a firearm and very few attorneys I worked with will entertain working w/the perb to get their firearms returned as it is a like trying to corral 300 cats in a confined space.

    wabbit
    Last edited by ncwabbit; 08-23-2012 at 08:26 AM.
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