“You are prohibited from owning firearms for the rest of your life” . . . For a Misdemeanor?

March 11, 2016

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This is the warning that judges give as a person pleads guilty or no contest to a felony. Generally, people are aware that felons are prohibited from ever owning firearms. The Supreme Court has upheld these laws.[1]  What few people understand is that certain misdemeanors in California can also result in a lifetime ban on owning firearms. California judges do not give the admonition for those pleading to misdemeanor domestic violence but people should be aware of the consequences.

What is a misdemeanor?

By way of background, misdemeanors are crimes that can lead to one-year in jail and felonies are crimes that have a minimum exposure over one-year. Felonies also cause loss of many rights, including possessing firearms, voting, and participating as a juror. Many crimes can be charged and prosecuted as either a misdemeanor or a felony. These are commonly referred to as “wobblers.” A common wobbler in California is Penal Code section 273.5 for corporal injury on a spouse or cohabitant. Plainly stated–domestic violence.

How long do I lose my guns for a misdemeanor?

Felons are prohibited for life from owning firearms under both California[2] and federal law[3]. Most misdemeanors do not result in a firearms ban. However, California has a 10-year firearm ban on certain misdemeanor convictions. These include:

(See complete list at the California Department of Justice website, available at: http://oag.ca.gov/sites/all/files/agweb/pdfs/firearms/forms/prohibcatmisd.pdf)

Some Misdemeanors Result in a Lifetime Firearms Ban

These misdemeanors involve common assault, many crimes involving improper use/possession of a firearm, and crimes of domestic violence. When a person pleads to one of these misdemeanors, they are generally admonished by the judge that the conviction carries a 10-year California firearms ban. What many fail people to realize is that the domestic violence crimes carry a lifetime ban under federal law. There is rarely any advisement of the federal consequences.

In 1997, the Domestic Violence Offender Gun Ban (commonly referred to as the Lautenberg Amendment) was signed into law. The law added a subsection that states it is unlawful for any person “ who has been convicted of a misdemeanor crime of domestic violence” to posses a firearm. This means that people convicted of misdemeanor domestic battery under Penal Code section 273.5 actually have a lifetime ban on owning firearms. There has been much litigation surrounding the Lautenberg amendment but it has survived the challenges posed so far.

Can I Own Guns if I Get My Misdemeanor Domestic Violence Conviction Expunged?

A common question is whether a motion to withdraw a plea and have the conviction set aside (commonly referred to as expungement[4]) under Penal Code 1203.4 offers relief from the federal firearms ban. The answer is no. If you receive a misdemeanor conviction for domestic violence and get an expungement under section 1203.4, the conviction remains for federal Gun Control Act purposes. (Jennings v. Mukasey (2007) 511 F.3d 894, 898-99.)

This is odd and concerning for a few reasons. First, many Californians pled to domestic violence charges before the Lautenberg Amendment was passed. The ex post facto consequences of the federal ban are troubling. Some defendants may not have taken plea deals if they knew about the lifetime ban on firearms possession.

Second, the Lautenberg Amendment was not meant to result in an absolute lifetime ban. Congress drafted it with a specific provision for restoring firearm rights but Californians cannot take advantage of this provision. In 18 U.S.C. § 921(a)(33)(B)(ii), the Lautenberg Amendment provides that expungements do restore rights under the Gun Control Act. California, however, does not have an expungement process for misdemeanor convictions that satisfies the federal law. The closest thing to an expungement in California is the procedure under section 1203.4 which does not satisfy the federal requirements.

California does have process that allows certain felons to have their convictions reduced to misdemeanor and potentially have their firearms rights restored. But, it is not clear that this reduction satisfies federal law either.

The common admonition that “You are prohibited from owning firearms for the rest of your life” is given to people who receive felony convictions. However, some people who are convicted of felonies can get their firearm rights restored and some people who are convicted of misdemeanors face a lifetime ban. Maybe the admonition should be: “You may or may not be facing a firearms ban.”

[1] (District of Columbia v. Heller (2008) 554 U.S. 570 (“nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill”).)

[2] Penal Code § 29800(a)(1).

[3] 18 U.S.C. § 922 (g)(1).

[4] Courts have held that Penal Code 1203.4 does not meet the definition of “expungement” for purposes of the Federal Sentencing Guidelines. (See United States v. Hayden (2001) 255 F.3d 768.)

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Drive Safe During the Storm

December 12, 2014

The Sacramento area is in the midst of a major storm from December 10, 2014, through Friday, December 12, 2014. Sacramento Police Department has issued a helpful press release that can be found here giving tips on how to stay safe on the wet roads.

The tips include:

Maintain your vehicle, including your tire tread and windshield wiper blades.
Drive slower and allow more time to reach your destination.
Make sure all of your vehicle lights are working because so you can see and be seen in the bad weather.
Stay safe!