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  • Michael M. Stover

Federal Implications of Misdemeanor Domestic Violence and Domestic Assault on Gun Rights

Updated: Jan 9, 2020

Implications of pleas to withholding of adjudication to domestic violence assault, effect on gun rights, and how to get them back.

An individual convicted of even misdemeanor domestic assault may not possess firearms ever again.

As enacted the statute defines "misdemeanor crime of domestic violence" (MCDV) as any state or federal misdemeanor that:

“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."

The Federal law is retroactive. See 18 U.S.C. § 922(g)(9). The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the new law's effective date, September 30, 1996. See United States v. Brady, 26 F.3d 282 (2d Cir.), cert. denied, 115 S.Ct. 246 (1994)(denying ex post facto challenge to a 922(g)(1) conviction) and United States v. Waters, 23 F.3d 29 (2d Cir. 1994)(ex post facto based challenge to a 922(g)(4) conviction).

The definition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery), if the offense is committed by one of the defined parties. This is true whether or not the statute specifically defines the offense as a domestic violence misdemeanor. 18 U.S.C. § 922(g)(9)

The law is enforceable even though the person may have been unrepresented by counsel, as long as the right to trial was knowingly and voluntarily waived.

To qualify:

  1. at the time of previous conviction, the defendant must have been represented by counsel, or knowingly and intelligently waived. The Federal Law is limited to couples that share a child in common. the right to counsel;(

  2. if the offense of previous conviction entitled the person to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise; and

  3. the conviction cannot be expunged or set aside, or be 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.

See Norman v. State, 215 So.3d 18, 21 See also 18 U.S.C. § 922(g)(9).

“Convicted” for the purposes of Federal law contemplates both a withhold of adjudication, and/or an adjudication of guilt. That is, even if adjudication was withheld by the State court, the Federal Courts will treat it as a “conviction” See Norman v. State, 215 So. 3d 18, 21(FLA. Sup. Ct) See also 18 U.S.C. § 922(g)(9). See also §921 Definitions.


Can I ever get my gun rights back?

“NO"

At Present, there is no mechanism to reinstate gun rights. U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010). The Court, In Skoien, reasoned that the Government has the burden to meet intermediate scrutiny in a showing that the Defendant’s right to bear arms, which the Court found was NOT a fundamental right, would be dispositive of the issue. At the close of evidence, the court ultimately decided the Government had met its burden and reinstated Skoien’s conviction.

In Norman v. State, 215 So.3d 18. is controlling, or as close to controlling as can be while not addressing the issue head on. The Court reasons that Florida laws regarding guns are meant to be "consistent" with federal laws, immediately after discussing the Federal law stating that individuals convicted of Domestic violence assault cannot own firearms.

The Skoien case shows that this is a situation where the law is, and will continue to be, in flux. However, Norman v. State lends to the implication that misdemeanor crimes of domestic violence WILL ultimately disqualify Florida citizens convicted of crimes as simple as misdemeanor Domestic Violence Assault from possessing firearms. Further, the law itself, the definitions and the legislative intent are clear that the intention of the Federal Government is to remove the right of any individual convicted of Domestic Violence Assault.

The contention that there is a possibility for restoration of gun rights after 3 years, advanced by some, comes from Florida Statute 790.065(2)(a)(3) and is patently incorrect. That section is regarding solely individuals who sell or deliver firearms.

Lastly, regardless of whether the client has a right to withdraw his plea is irrelevant. If over two years has elapsed since the time of the taking of the plea, the Defendant would have to show a “manifest injustice perpetrated by the presiding court. Watrous v. State, 793 So. 2d 6, 7 (Fla. Dist. Ct. App. 2001) See Williams v. State, 316 So. 2d 267, 271 (Fla. 1975).

Even if that were a possibility, the manifest injustice argument only applies to direct consequences of a plea. “The trial court is correct that a trial court and counsel are generally only required to advise a defendant of the direct consequences of a plea and not the collateral consequences.” State v. Ginebra, 511 So.2d 960 (Fla. 1987) (holding that neither the trial court nor counsel is required to advise a defendant of the collateral consequences of a plea). “In Ginebra, the supreme court defined direct consequences to include "only those consequences of the sentence which the court can impose." Id. at 961. ” Watrous v. State, 793 So. 2d 6, 8 (Fla. Dist. Ct. App. 2001).

Obviously the State cannot impose consequences only levied by Federal Courts.


Additional resources provided by the author:

Exhibit 1: 18 U.S.C. §921 Definitions.

Exhibit 2: 18 U.S.C. § 922(g)(9)

Exhibit 3: Norman v. State, 215 So.3d 18

Exhibit 4: Voisine v. United States, 136 S. Ct. 2272, 2277

Exhibit 5: U.S. v. Skoien, 614 F.3d 638 (7th Cir. 2010)

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