Persons with non felony domestic violence
convictions for violating a statute or municipal ordinance containing an element
of force, or threat to use force, or deadly weapon committed before
Whereas the federal statute provides that a person is not prohibited if the conviction has been (1) expunged or (2) set aside or the offender has been (3) pardoned or (4) has had civil rights restored, the FBI has taken the position that the 1st, 2nd and 4th remedies as they exist in Washington state are insufficient to remove the disability under federal law.
Persons who fall within this category may be able to possess muzzleloaders.
(1) Expungement typically means that the conviction record is destroyed
and cannot be used for any purpose whatsoever. Convictions cannot be expunged
in
(2) Setting aside a conviction is, for all practical purposes, the
same as vacating a plea or verdict . The conviction is removed from "reportable"
criminal history and permits the offender to state for all purposes that he
or she has not been convicted of the offense. In other words, law enforcement agencies maintain
a record of conviction information, but are prohibited from disseminating
conviction information to the public. However, the offense may be used in a subsequent
prosecution. For example, if a person
is convicted of Assault 4th Degree - Domestic Violence in 1995
and obtains an order in 2001 vacating the conviction, she can state that she
has not been convicted of the offense. Still,
she cannot possess a firearm until that right has been restored by a superior
court. If her firearm rights have not
been restored and she is caught with a firearm, she could be prosecuted for
unlawful possession of a firearm, a class C felony. Hence, the federal position is that vacating
a conviction is not the equivalent of setting aside or expunging and therefore
does not remove the firearm disability under federal law.
The problem for persons with non felony domestic violence offenses
committed before
(3) A Pardon based upon rehabilitation or innocence will remove the firearm disability under state and federal law unless the pardon expressly provides that the person may not ship, transport, possess, or receive firearms. Federal courts have held that any restriction on firearm possession, e.g. may not possess firearms with a barrel shorter than xx inches, will not serve to remove the firearm disability under federal law.
(4) Restoration of right to possess
firearms does not remove the disability under federal law, since 18 USC
921(33)(B)(ii) provides such restoration is only
effective "if the law of the applicable jurisdiction provides for the
loss of civil rights under such an offense". In the words of the NICS appellate department,
the state of
The FBI (& NICS) position is that neither a vacation of the conviction nor an order restoring firearm rights removes the firearm disability under federal law. Accordingly, the only remedy is a pardon. The Lautenberg amendment is retroactive - it applies as much to a 67 year old man who may have incurred a domestic violence misdemeanor 40 years ago as much as it applies to someone who presently poses a threat.
The status of HR 276, a bill introduced in Congress to repeal the Lautenberg Amendment, can be checked here . The information below was obtained on May 31, 2003:
H.R.276
Title: To repeal section 658 of Public Law 104-208, commonly referred to as the Lautenberg amendment.
Sponsor: Rep Goode, Virgil H., Jr. [VA-5] (introduced 1/8/2003)
Latest Major Action: 3/6/2003 Referred to House subcommittee.
Status: Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
COSPONSORS(6), :Rep Cubin, Barbara
- 3/31/2003 [WY], Rep Jones, Walter B., Jr. - 1/8/2003 [NC-3], Rep Ney, Robert
W. - 3/31/2003 [OH-18], Rep Otter, C. L. (Butch) - 3/31/2003 [ID-1] Rep Paul,
Ron - 1/8/2003 [TX-14] Rep Wicker, Roger F. - 5/8/2003 [MS-1]
(A) Except as
provided in subparagraph (C)*, the term "misdemeanor crime of domestic
violence" means an offense that:
(i) is a misdemeanor
under Federal or State law; and
(ii) has, as an element, the use or attempted use
of physical force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a person with
whom the victim shares a child in common, 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.
(B) (i) A person shall not be considered to have been
convicted of such an offense for purposes of this chapter [18 USCS Sec.921
et seq.], 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 [18 USCS Sec.921 et
seq.] 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.
[Section "C"omitted]