Many people understand that felons can’t possess guns because they are subject to a federal firearms prohibition. What most do not realize is that federal gun laws make it a crime for many others, even those with no criminal convictions, to possess firearms. This article will address these issues and explain who is prohibited from doing what. You can use the links below to jump to a specific section of the article.
- Definition of Firearm
- Prohibition for all felony convictions
- Prohibition for some misdemeanors convictions
- Definition of “conviction”
- Prohibition caused by civil restraining order
- Prohibition for defendants indicted for felonies
- Other people subject to federal gun ban
- Sentences for violation
Federal Definition of Firearm
Federal law 18 USC § 921 defines “firearm” to mean:
- Any weapon (including a starter gun) which is designed to, or may readily be converted to, expel a projectile by the action of an explosive;
- The frame or receiver of any such weapon;
- Any firearm muffler or firearm silencer; or
- Any destructive device (generally speaking, an explosive or incendiary device).
- This term does not include an antique firearm.
Further definition of terms can be found at the Electronic Code of Federal Regulations. This article takes definitions from those regulations and from 18 USC § 921. The categories of prohibited persons discussed below are further described in 18 U.S.C. § 922(g)(1-9).
Felons
Federal Law defines felonies as crimes punishable by imprisonment exceeding one year. People convicted of such crimes are ‘felons’ subject to a federal firearms ban. It does not matter that the sentence imposed was less than one year so long as the crime could have have been punished by a sentence of over one year.
Misdemeanor Crimes of Domestic Violence
Misdemeanors have a maximum sentence of less than one year. Still, a federal firearm prohibition is triggered for those convicted of Misdemeanor Crimes of Domestic Violence (MCODV). That term is defined by § 921(32)(A) as a misdemeanor crime that:
- Has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon; and,
- At the time of the offense, the defendant was:
- A current or former spouse, parent, or guardian of the victim;
- A person with whom the victim shared a child in common;
- A person who was cohabiting with or had cohabited with the victim as a spouse, parent, or guardian; or,
- A person who was or had been similarly situated to a spouse, parent, or guardian of the victim
In Maine, that means that Domestic Violence Assault, Attempted DV Assault, and some kinds of domestic violence threatening or terrorizing charges can trigger the prohibition. The U.S. Supreme Court has agreed to hear United States v. Castleman which may limit the application of this section. The case will likely be decided in the spring or summer of 2014. You can read more about that case here.
What is a “Conviction”?
The federal law defers to the state on this issue, as explained by § 921(20):
- What constitutes a conviction is determined in accordance with the law of the jurisdiction in which the proceedings were held.
- Any conviction which has been expunged, set aside or pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter,
- Unless such pardon, expungement, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Generally, one is convicted once there is a guilty verdict or guilty plea. In Maine, Misdemeanor Domestic Violence Crimes are often resolved with a “Deferred Disposition.” This requires the defendant to plead guilty but allows sentencing to be deferred for some time, usually one year. If the defendant avoids new charges and complies with conditions over that period, the defendant returns to court for a ‘sentencing’ date but no sentence is imposed and the charge is reduced or dismissed.
Luckily, the deferred disposition statute, 17-A MRSA §1348-A(4), provides that: “For purposes of a deferred disposition, a person is deemed to have been convicted when the court imposes the sentence.” If one is successful on the deferred, usually no sentence will be imposed on the Domestic Violence charge and so no conviction and no gun ban will attach. Also, while the misdemeanor deferred disposition is pending, no sentence has yet been imposed and so no federal prohibition applies.
Defendants in Civil Protection From Abuse Cases
In Maine, people call these orders “PFAs.” They are filed by a Plaintiff seeking to restrain a Defendant from doing certain things. § 922(g)(8) prohibits firearm possession by a person subject to a court order that:
- Was issued after a hearing of which the defendant received actual notice, and at which such person had an opportunity to participate,
- 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
- Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
- 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
This means that anyone who has a Maine ‘PFA’ against them probably commits a federal crime by possessing a firearm. Some lawyers think that the prohibition is triggered only if you lose a contested hearing on the PFA and that there is no prohibition if you agree to a protection order without a finding of “abuse.” That is wrong because the federal law does not turn on a finding of abuse. If you are subject to an order after having “actual notice” of a hearing and an “opportunity to participate,” that is enough. The fact that you choose to waive that opportunity and agree to an order, will not save your gun rights. This prohibition is not a lifetime ban, you are only banned while “subject to” the order. PFAs generally expire in 2 years unless the court grants an extension.
Defendants Under indictment for a Felony
Here is something a lot of people, including lawyers, don’t know. Federal law limits the gun rights of people who are not convicted, but simply indicted for a felony. 18 U.S.C. § 922(n) provides:
It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
While this is not a ban on possessing guns, it does mean that you can’t buy or receive a gun while you’re under indictment.
Other People Subject to the Federal Firearm Prohibition
That’s not all. There are a bunch of other people who can be federally prosecuted for possessing firearms.
- A person who is a fugitive from justice. § 921(15) defines this as “any person who has fled from any State to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.”
- An unlawful user of, or person addicted to a controlled substance. This is a confusing category. The regulations define this, in part, as: “A person who uses a controlled substance and has lost the power of self-control with reference to the use of controlled substance; and any person who is a current user of a controlled substance in a manner other than as prescribed by a licensed physician….” Stay tuned for more prosecutions of these people. This may be an expanding area of criminal law.
- A person adjudicated as a mental defective or who has been admitted to a mental institution. The regulations define this as people whose mental health condition rendered them incompetent or not criminally responsible as part of a criminal case. It also includes those who have “been determined by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
- Is a danger to himself or to others; or
- Lacks the mental capacity to contract or manage his own affairs.” This includes anyone who has been involuntarily committed by the court.
- An alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
- a person who has been discharged from the Armed Forces under dishonorable conditions;
- a person who, having been a citizen of the United States, renounces his citizenship;
Federal Sentences for Firearm Possession by a Prohibited Person
18 U.S.C. § 924 covers the penalties. The maximum prison sentence is 10 years for most violations. For violations involving § 922(n), the “under indictment” prohibitions, the maximum prison sentence is 5 years.
Could you tell me what date the laws regarding firearms prohibition and domestic abuse began?
The law was originally passed in 1968 but contained no prohibition for Misdemeanor Crimes of Domestic Violence. That prohibition was added in by the “Lautenberg Amendment” in 1996. Even though that amendment was passed in 1996, it does prohibit firearms possession by people convicted prior to the amendment. In US v. Haynes, the Supreme Court also found that, even where the crime of conviction does not alledge a domestic relationship between the defendant and victim, the federal prohibition will still apply where the circumstances of the offense demonstrate that such a relationship existed.