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Domestic Violence Conviction

hunter45

Regular Member
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Dec 6, 2008
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969
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Myrtle Beach, SC
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/foia_reading_room/usam/title9/crm01117.htm
 

Citizen

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Fairfax Co., VA
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. :D
 

peter nap

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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.
 
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skidmark

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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.
 

nuc65

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Nov 22, 2009
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Lynchburg, Virginia, USA
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...
 
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Riana

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Fairfax County, VA
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.
 

skidmark

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http://en.wikipedia.org/wiki/Domestic_Violence_Offender_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/legp504.exe?000+cod+18.2-57.2 .

stay safe.
 

nuc65

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Lynchburg, Virginia, USA
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...
 

tkd2006

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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.
 

peter nap

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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.

I expect that's right.
 

ProShooter

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www.ProactiveShooters.com, Richmond, Va., , USA
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/legp504.exe?000+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.
 

peter nap

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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.
 
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Steeler-gal

Regular Member
Joined
Oct 29, 2011
Messages
560
Location
Fairfax County, VA
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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