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Legal Information: Federal

Federal Gun Laws

February 25, 2016

What is the definition of a domestic violence misdemeanor?

Throughout these gun law pages, we will refer to the fact that it is illegal to carry a gun if a person has been convicted of a "domestic violence misdemeanor." Basically, if the abuser is/was a family or household member and was charged with a misdemeanor because s/he abused you with physical force or the threat of physical force or a deadly weapon, s/he could have been convicted of a domestic violence misdemeanor.*

Here are the steps you can take to figure out if the abuser was convicted of a domestic violence misdemeanor:

Step 1: You first need to know if the abuser was convicted of a misdemeanor crime either in state court or in federal court.* A misdemeanor may have different definitions in each state, but basically it is a crime with a shorter possible sentence than a felony. If you are unsure if the abuser was convicted of a misdemeanor, you can call the district attorney or prosecutor who handled the criminal case and ask him/her or go to the local criminal courthouse and try to do a search of his/her convictions.

Step 2: The next step is that you need to figure out if the misdemeanor crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.* (“Force” does not have to be violent force; “offensive touching,” such as the type that comes under many crimes of battery, is considered to be force.)** Note: An issue that may arise in a federal prosecution for violating this law is proving that the violence/force was “intentional.”*** In some states, misdemeanor crimes are described as either an “intentional” or “reckless.” In these cases, if it could be interpreted that the abuser acted recklessly (instead of intentionally), a prosecution for wrongly possessing a firearm may be more complicated. Again, if you are unsure, you might want to call the prosecutor who handled the case.

Step 3: The abuser must be either:

  • your current or former spouse;
  • your parent or guardian;
  • a person with whom you have a child in common;
  • a person who is like a spouse, parent or guardian to you (whether or not you live/d with him/her). For example, this might be a long-term boyfriend or someone with whom you share an intimate, personal relationship.*

If all three of these steps apply to your situation, it is likely that the abuser was convicted of a domestic violence misdemeanor.

Note: The crime may not have to specifically mention "domestic violence" in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply.**** The relationship that the victim has with the offender could determine whether or not the misdemeanor is a "domestic violence misdemeanor." For example: If Bob is convicted of a misdemeanor assault against his wife, it is probably illegal for him to buy or have a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.

For more information, or if you are still confused, you might want to contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111, ext. 2.

* 18 USC 921(a)(33)(A); see Buster v. United States, 447 F.3d 1130 (8th Cir. 2006) (for discussion of defining "as a spouse.")
** See United States v. Castleman, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014)
*** See United States v. Nobriga, 474 F.3d 561 (9th Cir. Ct App., 2006); United States v. Belless, 338 F.3rd 1063 (9th Cir. 2003); see also Domestic Violence and Firearms: A Deadly Combination
**** See United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079 (2009)