Many folks have found themselves subject to a prohibition on the receipt, possession, purchase, and transport of firearms under 18 U.S.C. 922(g)(9) due to a conviction for a “misdemeanor crime of domestic violence. So what, precisely, qualifies as a misdemeanor crime of domestic violence?
Under 18 U.S.C. 921(33), except for certain exceptions, a misdemeanor crime of domestic violence means an offense that:
- Is a misdemeanor under Federal, State, Tribal, or Local law; and
- Has as an element of the offense, the use or attempted use of physical force, or the threatened use of a deadly weapon; and
- Was 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, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
The term “dating relationship” means a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.
Determining whether a relationship constitutes a dating relationship, includes consideration of the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the individuals involved in the relationship.
Casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship.
Under 18 U.S.C. 921(33)(B) A person is not considered to have been convicted of a misdemeanor crime of domestic violence unless:
- The person was represented by an attorney in the case, or knowingly and intelligently waived their right to an attorney; and
- If the person was entitled to a jury trial in the case, the case was tried by a jury, or, the person knowingly and intelligently waived the right to have a jury trial, by pleading guilty or otherwise.
Also, the misdemeanor crime of domestic violence does not apply if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had firearm rights restored unless the expungement, pardon, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms: Provided, That, in the case of a person who has not more than 1 conviction of a misdemeanor crime of domestic violence against an individual in a dating relationship, and is not otherwise prohibited under this chapter, the person shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm under this chapter if 5 years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any, and the person has not subsequently been convicted of another such offense, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, or any other offense that would disqualify the person under section 922(g). NICS shall be updated to reflect the status of that person.
This restoration after five years is not available for a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.