Misdemeanor Crimes of Domestic Violence
Worksheet: Q & A
The Federal Statute
The Violence Against Women Act of 1994 (VAWA) and the 1997 Omnibus
Consolidated Appropriations Act contain federal firearms laws related to
domestic violence. VAWA makes it a crime for a person who is the subject
of a domestic abuse restraining order to transport, receive, or possess
firearms or ammunition which have come across state or federal borders.
The Omnibus Consolidated Appropriations Act of 1997 made several amendments
to the Federal Gun Control Act of 1968. The amendments prohibit the
possession of firearms and ammunition by persons convicted of state or
federal misdemeanor crimes of domestic violence and the distribution of
firearms and ammunition to such persons. Unlike the provisions in VAWA, law
enforcement officers and other governmental officials are NOT EXEMPT
from the amendments. As of the effective date, September 30, 1996, any
person convicted of a domestic violence misdemeanor may no longer possess a
firearm or ammunition. This technical support packet includes information on
these two federal laws.
There are two separate federal firearms laws which relate to domestic
violence. These are the Violence Against Women Act of 1994 (VAWA) and the
Omnibus Consolidated Appropriations Act of 1997 which amends the Federal
Gun Control Act of 1968.
If a respondent of a qualifying court restraining order possesses firearms or ammunition, then they have committed a federal crime. If the restraining order expires or is dismissed, the respondent can then possess firearms again. The prohibition lasts as long as the restraining order.
A respondent does not need to be told about this prohibition against possessing firearms. They do not need to be ordered to not possess firearms. The penalty for violation of this federal firearm statute is a maximum of 10 years in prison and/or a $250,000 fine.
Although law enforcement officials are exempt from the restraining order law, the exemption applies only to department-issued firearms. 18 U.S.C. § 925(a). Therefore, a police officer who is the respondent of an OFP could still have their service revolver, even off-duty. That police officer just could not possess other guns.
MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE
The Omnibus Consolidated Appropriations Act of 1997 amended the Federal Gun Control Act, 18 U.S.C. § 922(g)(9). Under these provisions, it is unlawful for an individual convicted of a state or federal "misdemeanor crime of domestic violence" to "ship, transport, possess or receive firearms or ammunition."
A "misdemeanor crime of violence," pursuant to 18 U.S.C. § 921(33)(a), means an offense that:
Law enforcement officers and governmental employees (such as security
guards or military personnel) art not exempt from this law with respect to
their receipt or possession of firearms or ammunition. Therefore, law
enforcement and other government employees who have been convicted of a
qualifying misdemeanor will not be able to lawfully possess or receive
firearms or ammunition or any purposes, including performing their official
1. Question: Mary received a notice to appear at a hearing regarding a domestic violence restraining order her partner had filed against her. Mary chose not to appear at the hearing. Subsequently, Mary received notice that a restraining order had been issued against her. Mary does not believe that she has to dispose of her firearm, since she did not participate in the hearing. Does she have to dispose of her firearm?
Answer: Yes. Mary did receive actual notice of the hearing, and she had an opportunity to participate. The law does not require actual participation if the defendant chooses otherwise. Therefore, the VAWA restraining order law would apply to her and she would have to dispose of her firearm.
2. Question: John was convicted of misdemeanor assault against his spouse. The criminal complaint does not make reference to domestic violence, but the complaint reflects that John assaulted his spouse. Will John have to dispose of his firearms and ammunition?
Answer: Yes. The definition of "misdemeanor crime of domestic violence" includes all misdemeanors that involve the use or attempted use of physical force (i.e. simple assault, assault and battery) if the offense is committed by one of the defined parties. This is true whether or not the State statute or local ordinance specifically defines the offense as a domestic violence misdemeanor.
3. Question: A police officer was charged with felony assault on his child in 1992. He pled guilty to a misdemeanor and the felony charge was dismissed. He was suspended from the police force and ordered to undergo counseling. After successful completion of counseling, he was reinstated. Can the police officer lawfully possess firearms and ammunition?
Answer: No. The officer may no longer lawfully possess firearms or ammunition either on or off duty. The conviction must have been expunged, pardoned, set aside, or his rights have been restored.
4. Question: Sam was convicted of a domestic abuse misdemeanor in 1987. Does this law apply to such a person?
Answer: Yes. The new law is retroactive. The prohibition applies even if the conviction occurred prior to the new law's effective date of September 30, 1996. As of the effective date, such persons may no longer possess a firearm or ammunition.
5. Question: A police officer was convicted of assault against his former wife in 1987, but he believes that his record has been expunged. Can he retain his firearms?
Answer: No. An employee's belief that he may qualify for an exception to the prohibition is not enough. He has a duty to comply with the law pending departmental review. Therefore, he must turn in his firearms and ammunition until he provides his department with proof or information which supports his claim that his record was expunged.
18 U.S.C. § 922
DV Information/ Native American/ Legal Advocacy/ General Information