Firearm Offenses

Possession of Firearm While Subject to Order of Protection, 18 U.S.C. § 922(g)(8)

It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. The protection order must have been issued following an evidentiary hearing in which the defendant had notice and an opportunity to appear. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury. The statutory language of Section 922(g)(8), in addition to the language of Section 2262, provides additional justification for review of a jurisdiction's protection order form to determine if they conform with the federal requirements. Again, refer any questions about the applicability of this statute to the United States Attorney's Office in that district.

Transfer of Firearm to Person Subject to Order of Protection, 18 U.S.C. § 922(d)(8)

It is also illegal to transfer a firearm to a person subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner. A violation of Section 922(d)(8) must be knowing. Proof concerning knowledge on the part of the supplier may be difficult to establish absent a fully operational central registry for protection orders.

Official Use Exemption, 18 U.S.C. § 925

The restrictions of Sections 922(d)(8) and (g)(8) do not apply to firearms issued by governmental agencies to a law enforcement officer or military personnel so long as the officer or military personnel is on duty. Personal firearms do not fall within this exemption nor may these personnel possess officially issued firearms when off duty.

Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(g)(9)

As of September 30, 1996, it is illegal to possess a firearm after conviction of a misdemeanor crime of domestic violence. This prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date. A qualifying misdemeanor domestic violence crime must have as an element the use or attempted use of physical force or the threatened use of a deadly weapon. For example, a conviction for a misdemeanor violation of a protection order will not qualify, even if the violation was committed by a violent act, if the statute does not require the use or attempted use of physical force or the threatened use of a deadly weapon. The U. S. Attorney's Office can determine which misdemeanor convictions qualify.
In addition, the statute contains due process requirements regarding counsel and jury trials. Absent compliance with these due process requirements, the misdemeanor conviction will not qualify as a domestic violence conviction for purposes of Section 922(g)(9). Moreover, a person may be able to possess a firearm if the conviction has been expunged or set aside.

Transfer of Firearm to Person Convicted of a Misdemeanor Crime of Domestic Violence, 18 U.S.C. § 922(d)(9)

It is also illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence. A violation of Section 922(d)(9) must be knowing. Assistance in satisfying this requirement is provided by amendment of the Brady statement to require a purchaser of a firearm to state that he or she has not been convicted of a misdemeanor crime of domestic violence.

Official Use Exemption, 18 U.S.C. § 925

The official use exemption does not apply to Sections 922(d)(9) and 922(g)(9). This means that law enforcement officers or military personnel who have been convicted of a qualifying domestic violence misdemeanor will not be able to possess or receive firearms for any purpose, including the performance of official duties. Additional questions about this statute should be referred to the U. S. Attorney and/or to the Alcohol, Tobacco & Firearm Office in your jurisdiction.

Penalties

The maximum term of imprisonment for a violation of Sections 922(d)(8), 922(g)(8), 922(d)(9), or 922(g)(9) is 10 years.

Firearm Offenses

• 18 U.S.C. § 922(g)(8)

It is a federal crime to possess a firearm while subject to a valid protection order. The protection order must state either that the defendant poses a threat to the physical safety of the victim or that the defendant is not allowed to use any force that would cause injury to the victim. Law enforcement officers are not subject to this law.
Example: United States v. Robert Goben (D. South Dakota). A South Dakota protection order prevented the defendant from harassing or threatening his estranged wife. He was found with a loaded .22 caliber revolver. He was sentenced to 12 months.

• 18 U.S.C. § 922 (g)(9) (Enacted September 30, 1996)

It is a federal crime to possess a firearm after conviction of a qualifying state misdemeanor crime of domestic violence.
Example: United States v. William Smith (N.D. Iowa). The pending indictment charges that Smith was convicted of assaulting the mother of his child in 1994. In 1996, he shot the same victim with a .380 caliber pistol. On May 16, 1997, the District Court upheld the constitutionality of this statute and on August 12, 1997, the defendant pled guilty to the Section 922(g)(9) charge.

Firearms Offenses

• Possession of a firearm while subject to a protection order: 18 U.S.C. § 922(g)(8)
• Transfer of a firearm to a person subject to a protection order: 18 U.S.C. § 922(d)(8)
• Possession of a firearm after conviction of a misdemeanor crime of domestic violence: 18 U.S.C. § 922(g)(9)
• Transfer of a firearm to a person convicted of a misdemeanor crime of domestic violence: 18 U.S.C. § 922(d)(9)
• Official use exemption from firearms offenses (except § § 922(d)(9) and 922(g)(9)): 18 U.S.C. § 925(a)(1)

For additional information please see:

• How Dangerous is He?
• U.S. Department of Justice
• The Facts on Guns & Domestic Violence
• 2007 Indiana Domestic Gun Murders/Suicides
• Ignorance of the law is NO Excuse