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How can someone convicted of va code 18.2-57.2 ever regain firearm rights?
- Thread starter love4guns
- Start date
ed
Founder's Club Member - Moderator
§ 18.2-57.2. Assault and battery against a family or household member;
get an attorney, start the pardon process and present your case.
user
Accomplished Advocate
In Virginia, battery is "the offensive, unprivileged touching of the person of another without cause, justification, or excuse." Assault is the "offer or attempt to commit an immediate battery". The slightest touching that meets these criteria is sufficient. Force and violence are pretty much irrelevant. So usually a person who is convicted under that statute is found guilty in the Juvenile and Domestic Relations District Court and there is absolutely no record of the proceedings - just an order form that has blanks for the judge to fill in for the finding of guilt or acquittal and the punishment where appropriate.
If the conviction was (1) not in a court of record (i.e., circuit court or higher), AND (2) there is no record of the use of actual or attempted force or violence; THEN the person has not been convicted of a "misdemeanor crime of domestic violence" for the purposes of the federal statute. In theory one in that situation should be safe in ignoring the conviction - background checks for buying guns from dealers will take longer, because a human will have to look at the record to see whether eligibility is denied. That's all in theory, however, because they're still denying people and the police are still arresting people, because they don't know the difference.
The best approach for such a person is a suit for declaratory judgment in the circuit court in the city or county in which the person convicted resides. That way he can carry a court order around with him specifically stating that he's eligible to carry.
It is possible to be convicted under that statute and for that conviction to operate as a bar to possession. That happens when the conviction occurs in the circuit court and there is a record of the actual or threatened use of force or violence (as opposed to a mere or slight touch). I'm considering a case right now in which the person convicted in the J&DR ct. appealed to the circuit court, but it's been so long there is apparently no transcript, and the final order says nothing about what happened. Even if he had held a gun on his wife, he's not ineligible, because there's no record. If there were a record of force or violence, then his only hope would be a gubernatorial pardon followed by a petition for restoration of firearms rights in his local circuit court. (The pardon is not enough for full restoration of rights.)
If the conviction was (1) not in a court of record (i.e., circuit court or higher), AND (2) there is no record of the use of actual or attempted force or violence; THEN the person has not been convicted of a "misdemeanor crime of domestic violence" for the purposes of the federal statute. In theory one in that situation should be safe in ignoring the conviction - background checks for buying guns from dealers will take longer, because a human will have to look at the record to see whether eligibility is denied. That's all in theory, however, because they're still denying people and the police are still arresting people, because they don't know the difference.
The best approach for such a person is a suit for declaratory judgment in the circuit court in the city or county in which the person convicted resides. That way he can carry a court order around with him specifically stating that he's eligible to carry.
It is possible to be convicted under that statute and for that conviction to operate as a bar to possession. That happens when the conviction occurs in the circuit court and there is a record of the actual or threatened use of force or violence (as opposed to a mere or slight touch). I'm considering a case right now in which the person convicted in the J&DR ct. appealed to the circuit court, but it's been so long there is apparently no transcript, and the final order says nothing about what happened. Even if he had held a gun on his wife, he's not ineligible, because there's no record. If there were a record of force or violence, then his only hope would be a gubernatorial pardon followed by a petition for restoration of firearms rights in his local circuit court. (The pardon is not enough for full restoration of rights.)
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JimMullinsWVCDL
State Researcher
In U.S. v. White, 606 F.3d 144 (4th Cir. 2010), the Fourth Circuit held that the crime of "assault and battery against a family or household member" under Va. Code § 18.2-57.2 does not necessarily constitute a "misdemeanor crime of domestic violence" under federal law. Accordingly, most people who have convictions for this offense are not automatically prohibited from possessing firearms under the Lautenberg Amendment and would not need to go through any process to have firearm rights restored since those rights were never lost. However, I would strongly urge the OP to consult an attorney who practices in Virginia to ascertain both (1) whether the record of his case might support a different conclusion than the record in White and (2) the possibility of obtaining a pardon or expungement, either or both of which would eliminate any federal firearms disability, regardless of how White affects his case.
EDIT: user chimed in as I was typing the initial response. I always yield to his judgment concerning legal matters in the mother ship.
EDIT: user chimed in as I was typing the initial response. I always yield to his judgment concerning legal matters in the mother ship.
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***Can I file this suit in Circuit court myself or is there an attorney on here familar with this process? I have spoken with 7 lawyers to date and they all said under Virignia law a police officer can not arrest me for gun posession because there is nothing in the state statue prohibiting gun owernship for 18.2-57.2. However none of them know how to remove the federal restrictions..thanks***
You just quoted the best attorney I know.
user
Accomplished Advocate
Thank you, Peter!
The simple answer is, "yes." You certainly may file suit in Circuit Court yourself, though, as you point out, most attorneys don't know what they're doing on that issue, and probably you don't either - it's a matter of civil procedure and evidence - so-called "lawyer's law". And I can do that kind of case for you.
Feel free to give me a call, if you like, 540 347 2430. Or send an email - the address is on my website.
The simple answer is, "yes." You certainly may file suit in Circuit Court yourself, though, as you point out, most attorneys don't know what they're doing on that issue, and probably you don't either - it's a matter of civil procedure and evidence - so-called "lawyer's law". And I can do that kind of case for you.
Feel free to give me a call, if you like, 540 347 2430. Or send an email - the address is on my website.
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