NFOA MEMBERS FORUM
General Categories => Carry Issues => Topic started by: FatCat on January 11, 2012, 08:11:33 PM
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I was convicted of domestic violence about 15 years ago. BS charges, but still. Did no time, payed a fine.
The law reads "if convicted in the last 10 years".
The form asks " if ever".
So how do you answer?
If I answer honestly on the form am I immediately disqualified? If I lie am I arrested?
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You are prohibited because you can not legally possess a firearm according to Federal law.
From WIKIPEDIA
The Domestic Violence Offender Gun Ban ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", Pub.L. 104-208,[1] 18 U.S.C. § 922(g)(9)[2]) is an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg.
The act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining (protection) order for domestic abuse in all 50 states. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such persons.
Firearms dealers are under ever increasing pressure to avoid straw purchases — a purchase made by a non-prohibited person on behalf of a prohibited person. This means that spouses, people who cohabitate with a domestic violence offender, and indeed friends can come under very close scrutiny by dealers and law enforcement during the sales process.
The definition of 'convicted' can be found in the chapter 18 U.S.C. § 921(a)(33)(B)(ii) and has exceptions:
(33) (B) (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. (ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Therefore, if a person was represented by counsel, waived that right, AND, the person was entitled to a trial by jury, but also waived that right, the person shall not be considered to have been convicted if the conviction was expunged or set aside or had his civil rights (to bear arms) restored, UNLESS the further order of the court permanently revokes that right.
Firearm Possession Prohibition
Federal law (18 U.S.C. § 922[g][1-9]) prohibits certain individuals from possessing firearms, ammunition, or explosives. The penalty for violating this law is ten years imprisonment and/or a $250,000 fine. Further, 18 U.S.C. 3565(b)(2) (probation) and 3583(g)(2) (supervised release) makes it mandatory for the Court to revoke supervision for possession of a firearm.
Specifically, 18 U.S.C. § 922(g)(1-9) prohibits the following from possessing, shipping/transporting, or receiving any firearm or ammunition:
(1) a person convicted of a crime punishable by imprisonment exceeding one year;
(2) a person who is a fugitive from justice;
(3) a person who is an unlawful user of or who is addicted to a controlled substance;
(4) a person who has been adjudicated as a mental defective or who has been admitted to a mental institution;
(5) an alien who is unlawfully in the United States or who has been admitted to the United States under a nonimmigrant visa;
(6) a person who has been discharged from the Armed Forces under dishonorable
conditions;
(7) a person who, having been a citizen of the United States, renounces his citizenship;
(8) a person subject to a court order that was issued after a hearing in which the person participated, which order restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child;
(9) a person who has been convicted of a misdemeanor crime of domestic violence.
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The important part to what Dan posted is this;
(33) (B) (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless— (I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
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If you feel that you fall into one of the exceptions, or have had your rights restored I recomend calling the State Patrol in Lincoln. As long as you are polite and friendly they really try to be helpful and will tell you how to answer and what the process for you will be.
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It would suck to not be able to own/possess a gun. If the charges against you were truly BS, you have my sympathies. I'm sure there are probably lots of people who may not really deserve the things on their records that cause problems for them (technicalities, lying witnesses, or whatever).
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Could someone in this position legally purchase a firearm and pass the ATF background check?
Wouldn't they pick up on this?
If they purchased the firearms legally and did the background check, how could the authorities come back and charge them with a crime later?
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Could someone in this position legally purchase a firearm and pass the ATF background check?
Wouldn't they pick up on this?
If they purchased the firearms legally and did the background check, how could the authorities come back and charge them with a crime later?
How did you answer this question on a form 4473 ?
i. Have you been convicted in any court of a misdemeanor crime of domestic violence? (See Important Notice 6, Exception 1 and Definition 4.)
I think you need to hire a lawyer to get these answers
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If it was a Nebraska conviction, you might consider an appeal to the Nebraska Pardons Board
and have it removed from your record: http://www.pardons.state.ne.us/index_html (http://www.pardons.state.ne.us/index_html)
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No guns for you until you spend enough lawyer money to get this expunged. Would have been cheaper not to plead guilty back then.
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I spoke with the NSP Colonel in charge of the CCW program about this question. His take is the question is worded the way it is due to the Federal rule on no firearms for persons with a misdemeanor conviction. If someone has one that does fall into the exemptions he would ask that the contact his office and they will assist with getting things handled correctly.
They do not wish to punish people that should not be, and helping to make certain that an individuals rights are upheld is one of the things they strive to do.
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The burden of proof is upon the state of nebraska to prove you cant have a license. Your answers dont really matter as long as you dont lie. Answering yes to a question just gives them a key to check into it more.
Several including me had to answer yes and I got my license in the average time. I was told several times by the NSP I cant get one because I had to answer yes. So I hired an attorney and I sent in the app and ready to pounce once denied, and it was approved.. Go figure.
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They probably treat those forms like your doctor does with the ones you fill out before seeing him for something. You know, the ones where you fill out your entire life-long medical history, plus the reason you are there to see the doctor that day. Then, you go in, and the first thing they ask you is, "So, what are you here for today?"