NOTICE REGARDING PERSONS WITH MISDEMEANOR DOMESTIC VIOLENCE CONVICTIONS IN WASHINGTON STATE AND THE RIGHTS UNDER FEDERAL LAW

There has been a reversal in the position of the Bureau of Alcohol, Tobacco and Firearms (ATF) and the National Instant Check System (NICS) regarding Washington State court orders restoring firearm rights to persons convicted of misdemeanor crimes of domestic violence. Many Washington State citizens with misdemeanor DV convictions followed established procedures in pursuing relief from federal prohibition by obtaining a state court order restoring firearm rights. This procedure for relief was typically recommended by NICS in appeal letters. A state court order restoring firearm rights removed the federal prohibition because the federal statute expressly contained an exception for offenders whose right to possess had been restored:

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.

The issues lies in the interpretation of "civil rights". The federal government had been treating the right to possess firearms as a civil right lost upon conviction of a misdemeanor DV crime. Typically, civil rights refers to core rights such as voting, holding elected office and serving on a jury. Recent federal court decisions in many circuits hold that the right to possess firearms is not a civil right. Thus, ATF and NICS now take the position that a Washington State court order restoring firearm rights to misdemeanants does not remove firearm prohibitions under federal law because the conviction does not result in the loss of civil rights.

Not all circuits have taken this position. However, Washington State is in the 9th Circuit and a violation of federal firearm laws in this state could be prosecuted in federal district court under precedents in this jurisdiction. It is important to note that a state court order restoring firearm rights is still necessary and valid to remove prohibitions under state law for domestic violence misdemeanors. Without one, an offender would be subject to prosecution by the State of Washington for a felony charge - unlawful possession of a firearm in the second degree - if found in possession of a modern firearm or muzzleloader.

Offenders with a misdemeanor DV conviction and a court order restoring firearm rights have no restrictions under state law and are only prohibited from possessing modern firearms under federal law if the following conditions are met:

  1. The offender was represented by an attorney or waived the right to an attorney.
  2. The offender was tried by a jury or waived the right to trial by jury.
  3. The offense has the element of force or threatened use of force.

Typically, this means that anyone convicted under the state statute, RCW 9A.36.041, Assault in the 4th Degree, is prohibited under federal law. A person convicted of violating a similar municipal code is not prohibited unless the particular ordinance has an element of force. If there are multiple ways of violating a municipal ordinance, the charging document (i.e. information, ticket) must specify a violation of the provision containing the element of force.

This development is the result of ill-conceived legislation without regard for conflict of law issues. Federal laws can never work effectively or be applied equally when they rely on state law to determine when and whether federal law applies. This change affects thousands of Washington residents. It affects countless others in every state. The Wyoming Attorney General recently filed a lawsuit in federal district court over the federal government's refusal to honor Wyoming state procedure for restoring gun rights in domestic violence misdemeanor cases. Perhaps our legislators will soon realize the fiasco created by the Lautenberg Amendment and join the efforts to repeal it. Please contact your representatives and encourage them to become educated about this issue and respond appropriately.

Support political candidates who uphold and preserve the rights of law-abiding gun owners. If you are not a member, join the NRA. This organization is the strongest, most effective voice for ensuring the protection of our 2nd Amendment right. You can find more information at the following websites: Institute for Legislative Action, www.nra-ila.org and Political Victory Fund, www.nrapvf.org . You can also join online at www.nra.org .

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