Loss of Right to Possess a Firearm
A person can become a “prohibited possessor” of firearms, knowingly or not, and subject to federal prosecution, not just upon indictment for, or conviction of a state or federal felony, as is commonly understood, but in many cases absent any criminal charges at all. Since at least 30% of Americans own a firearm, and many firearms owners use their firearm in their profession, this is a collateral consequence that should always be taken into consideration. If you fall into one of these categories, seeking counsel soon after an incident could help mitigate these consequences, especially if your job requires you to carry a firearm.
Under 18 U.S.C.A. § 922(g), the following persons are generally prohibited from possessing a firearm:
- Persons who are unlawful users of or addicted to controlled substances (including legal marijuana users under state law)
- Persons adjudicated as mentally defective or who has been committed to a mental institution
- Aliens unlawfully present or admitted on a non-immigrant visa
- Persons with dishonorable discharges from the military
- Persons who renounce their U.S. citizenship
- Persons subject to orders of protection related to domestic violence
- Persons convicted of misdemeanor domestic violence crimes
ATF Form 4473 questions 11.b through 11.k ask prospective purchasers to indicate whether or not they are included in any of these categories. Many federal prosecutions arise, as well, solely from false statements on such forms. Licensed firearm dealers are likewise subject to prosecution for sale to such persons.
The possession element is satisfied simply by a knowing possession. As in other matters discussed below, particularly in reference to those persons subject to domestic violence restraining orders, and thus prohibited possessors as well, no knowledge that possession is in violation of the federal statute is required.
Knowing possession of the firearm may be actual or constructive. Constructive possession is “ownership, dominion, or control over the contraband itself, or dominion or control over the premises in which the contraband is concealed.” This means that if a prohibited possessor had knowledge that a weapon was present and access to the weapon, even if the gun does not belong to him or her, this could still be considered “possession.”
Most intuitively, 18 USC § 922(g)(2) prohibits from possessing a firearm those who have “been convicted in any court of, of a crime punishable by imprisonment for a term exceeding one year.”
The term “punishable” in the phrase “a crime punishable by imprisonment for a term exceeding one year,” refers to the maximum potential punishment a court could impose.
Finally, note that paradoxically, a felon may, in many cases, restore his rights to bear arms while a misdemeanant may not.
18 USC 922(g)(2) prohibits anyone from possessing a firearm “who is a fugitive from justice.” No conviction is necessary. A “fugitive from justice” is defined as “any person who has fled from any state to avoid prosecution for a crime or to avoid giving testimony in any criminal proceeding.”
At least one court has held that the government can convict, under the statute, individuals who have fled the State to avoid a misdemeanor bench warrant for DUI.
A defendant’s knowledge of his status as a “fugitive” is not an element of the offense. Instead, the only knowledge required in order to convict a defendant under the statute is:
- hat the defendant knew that charges were pending against him;
- hat he left the jurisdiction where the charges were pending and,
- hat he refused to answer those charges by appearing before the Court where the charges were pending.
It is not necessary that the defendant left the State with the intent to avoid the charges pending against him
In short, as courts have held again and again, knowledge of one’s status as a fugitive is simply not an element of § 922(g)(2).
Pursuant to § 922(g)(3), a prohibited possessor includes anyone “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)).” ATF Form 4473 question 11.e, which asks “are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?,” addresses this prohibition.
Perhaps surprisingly, many persons who have never been charged with any state or federal drug crime, much less convicted, may, if they possess a firearm, nevertheless realistically expect to be prosecuted under 18 USC § 922(g)(3) as an “unlawful” “drug user” or “addict.” This prohibition against users applies broadly to all those whose drug use is proscribed by federal law and is “current” “regular” and “contemporaneous” with possession or purchase of any firearm in the United States.
This prohibition also reaches, notably, and perhaps counter intuitively, the growing number of state-sanctioned or licensed medical and recreational marijuana users around the country. Under current federal policy, a state sanctioned licit medicinal and recreational user is treated as a federal illicit use: With current, regular and contemporaneous marijuana use, medical marijuana card holders and recreational users find themselves on precisely the same legal footing as the myriad illicit drug users.
The Mentally Ill
18 USC § 922(g)(4) prohibits from possessing a firearm all those who have been adjudicated as a mental defective or committed to a mental institution. Again, here, no underlying criminal charge or conviction is necessary to trigger subsequent federal prosecution. An adjudication or civil commitment is enough.
Federal courts look to State civil commitment law to determine if the possessor was “committed” for firearms possessory purposes.
Persons Unlawfully Present or Admitted on Non-Immigrant Visas
18 USC 922(g)(5) prohibits from possessing firearms, or ammunition, all persons “illegally or unlawfully in the United States,” or that “have been admitted to the United States under a nonimmigrant visa.” No arrest or conviction is necessary. This category includes those present on tourist visas, student visas, and non-immigrant work visas as well as persons who have received employment authorization cards and those who have applied for adjustment of status. There are limited exceptions for the rental of firearms used for hunting with a valid license.
Possession of a firearm could provide a substantial basis for arrest or deportation of these persons, even if not criminally prosecuted.
18 USC § 922(g)(6) prohibits from possessing a firearm anyone “who has been discharged from the Armed Forces under dishonorable conditions.” No underlying criminal charge or conviction is required, although in cases of military bad conduct discharges, proceedings and adjudications under the Uniform Code of Military Justice, Articles 15 & 32 are often requisite.
Civilian courts have almost uniformly upheld this provision against a number of due process challenges. For instance, in U.S. v. Day, an individual convicted under § 922(g)(6) after a dishonorable discharge that had occurred 23 years earlier challenged the statute. The Day court upheld the statute, holding that “possession of a firearm by a person dishonorably discharged from the Armed Services, while not as dangerous, perhaps, as possession by a convicted felon, is sufficiently risky to justify Congressional regulation.”
Domestic Violence Restraining Orders
18 U.S.C. § 922(g)(8) prohibits from possessing a firearm persons subject to a domestic-relations restraining order. Although no underlying criminal charges are necessary, several strictures apply.
The order must be:
- brought by a qualifying “intimate partner”—not a casual romantic interest
and contain either a
- finding that the respondent is a credible threat ; or
- an explicit prohibition of firearm possession.
Adversarial Nature of Proceeding
Principally, the statute requires the order of protection or restraining order be issued only after a hearing of which the individual had actual notice, and at which the individual had an opportunity to participate.
The domestic relationship
Additionally, § 922(g)(8) requires that the order be issued in relation only to an “intimate partner.” The term “intimate partner” includes only “ the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.” In contrast to many state legislative provisions, this definition excludes romantic partners with whom an individual has not cohabited.
As clarified in § 1116 of the U.S. Attorney’s Manual, Criminal Resource Manual: “The term “intimate partner” is defined as including a spouse or former spouse, or a person with whom the victim has had a child, but it does not include a girlfriend or boyfriend with whom the defendant has not resided.”
Additionally, to qualify as an order of protection that prohibits possession under § 922(g)(8), the order must also either: (1) “include a finding that such person represents a credible threat to the physical safety of [an] intimate partner or child; or (2) “by its terms explicitly prohibit the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.” The two requirements are disjunctively joined; that is, if the order meets either one, the subject of the order is a prohibited possessor.
In some states, the entry of a domestic violence restraining order subjects the individual subject of the order to a mandatory prohibition on the possession of firearms. In those states where possessory prohibitions are not mandatory, like Arizona, counsel may move to modify the order, asking the court to permit the respondent, in the court’s discretion, to possess firearms. This may be especially important to military and law enforcement personnel, not accused of criminal conduct, and whose duties require possession and use of firearms.
Misdemeanor Convictions of Domestic Violence (MCDV)
Pursuant to the Lautenberg Amendment to the Gun Control Act of 1996, codified at 18 USC § 922(g)(9), like those subject to domestic violence restraining orders, those convicted of misdemeanor crimes of domestic violence (MCDV), are prohibited from possessing firearms and ammunition. MCDVs are misdemeanors under federal, state, or tribal law, committed by a person with a specified domestic relationship with the victim, hat have “as an element, the use or attempted use of physical force.”
As noted in the US Attorneys Manual, Criminal Resource Manual: “The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law’s effective date …”
If the misdemeanor crime of domestic violence is “set aside” or expunged the person is no longer a prohibited possessor. But where the misdemeanor conviction is not set aside or expunged, the prohibition remains, in some cases permanently. In contrast to many felons, who have restoration rights under most state’s laws, regaining firearm possessory and other civil rights, non-expunged MCDV’s, in contrast, may remain a permanent prohibition. This known as the “misdemeanor paradox” to 18 USC §922(g)(9).
As in the case of restraining orders, 18 USC § 921(a)(33)(A) restricts the qualifying relationship to a “ former spouse, parent, or guardian of the victim, 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. Casual romantic relationships are, again, excluded.
However, The federal statute does not require that the misdemeanor statute charge a domestic relationship as a categorical element; instead, it requires only that the misdemeanor have been committed against a person who was in fact in one of the specified domestic relationships. Thus, whether the state court labels the conviction as “domestic violence” is not determinative.
Use of Physical Force
§ 921(a)(33)(A), categorically requires “the use or attempted use of physical force, or the threatened use of a deadly weapon.”
This includes convictions for reckless domestic assault and convictions involving actions that are considered “offensive touching” such as slapping, shoving, pushing, grabbing, hair-pulling, and spitting.
Therefore, in sum, the facts must establish a qualifying domestic relationship, and the statute of conviction must involve at least reckless use of physical force.
Exceptions for Law Enforcement
18 USC § 925(a)(1) exempts military and police for felony convictions but not for convictions of misdemeanor crimes of domestic violence. This is known as the “law enforcement anomaly,” a kissing cousin of the “misdemeanor paradox.” As explained, in graphic terms, directly in the US Attorney’s Manual:
any member of the military or any police officer who has a qualifying misdemeanor conviction is no longer able to possess a firearm, even while on duty. We now have the anomalous situation that 18 USC § 925(c) still exempts felony convictions for these two groups. Thus if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may under federal law, still be able to possess a service revolver while on duty, whereas if they are convicted of a qualifying misdemeanor, they are prohibited from possessing any firearm or ammunition at any time.
Regardless of this, most law enforcement officers convicted of felonies will
still run afoul of department policies, at a minimum.
If you have been accused of being a prohibited possessor of a firearm or are facing a situation which could make you a prohibited possessor, you should seek the advice of an attorney who is familiar with this area of the law.