dv-4 and the law

[realsoldier]

I have a question for the LEO's and or legal eagles out there.
In 2001 I was set up by my ex wife and got convicted of DV-4 which, much to my chagrin is touching some one that doesn't want to be touched. At the time of the conviction the court didn't ask for my guns, and I have been rather unsure about whether I can still buy or legally own any. The charge is a misdemeanor here in Washington state, Can I still buy new firearms?content

[Frank Ettin]

The best advice I can give you is to get off the Internet and find a qualified local lawyer to help you.

* Communications with your lawyer are confidential. What you post on the Internet is not. It's generally a bad idea to discuss your legal matters with strangers in public.
* You have no idea what the qualifications are of the anonymous people offering you advice on the Internet. They may or may not know what they are talking about, but your interests are at stake in real life. That's just not a good situation.
* If you have problems, your lawyer will be around to help sort things out.

[maestro pistolero]

May I suggest you delete your post until you are sure of your legal status.

[blume357]

Sounds to me like you are fine.

You could probably call the state police or who ever they are called over there and ask them.

You might get more specific answers on a sight dedicated to Washington state firearms.

the problem with consulting a lawyer in my experience is that they may not know the right answer either... and on top of that you get to pay them for the wrong answer.... heck, believe it or not a judge might not even know.

My experience is you usually have a better chance of getting the right answer on the internet as long as you weed out the extreme ones.


I'll tell you one way to find out... apply for a concealed weapons license... and list the conviction on the application... sounds strange but your state will let you know.

I see no need to delete this post. Moderators? What say you?

[Bartholomew Roberts]

Here is what 18 U.S.C. 922 (g)(9) of federal law says:

Originally Posted by 18 U.S.C. 922

(g) It shall be unlawful for any person -
...(9) has been convicted in any court of a misdemeanor crime of
domestic violence,
to ship or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or to receive
any firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.

Not a lot of wiggle room there as far as I can see....

Also, here is the Justice Department guidance to prosecutors on prosecuting such crimes:

Originally Posted by Justice Department

Qualifying Offenses: 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."

This 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. For example, a person convicted of misdemeanor assault against his or her spouse would be prohibited from receiving or possessing firearms. It is anticipated that this issue will be subject to litigation. In the event of such litigation, the Terrorism and Violent Crime Section should be notified so that assistance can be provided.

Date of Previous Conviction: 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).

Limitations on Previous Convictions -- 18 U.S.C. § 921(a)(33)(B). To qualify1) at the time of previous conviction, the defendant must have been represented by counsel, or knowingly and intelligently waived 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 can not have been 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. The issue of restoration of civil rights must be carefully researched for each potential defendant. For example, in some states a person automatically loses his/her civil rights upon the execution of a sentence of imprisonment (felony or misdemeanor) only to have the rights restored upon the defendant's release from prison or sentence. However, in those states, a person who does not serve a sentence of imprisonment may not lose their civil rights and, therefor, this limitation may not be applicable. But, in United States v. Indelicato, 97 F.3d 627 (1st Cir. 1996), the Court held that in at least some instances if one group of felons may possess a firearm because their rights were automatically taken away and then restored then those who do not have their rights taken away may also possess a firearm. The Terrorism and Violent Crime Section can provide assistance in analyzing particular cases.

There is no law enforcement exception: One of the provisions of this new statute removed the exemption that 18 U.S.C. § 925(a)(1) provided to police and military. Thus, as of the effective date, any member of the military or any police officer who has a qualifying misdemeanor conviction is no longer able to possess a firearm, even while on duty. We now have the anomalous situation that 18 U.S.C. § 925(a)(1) still exempts felony convictions for these two groups. Thus if a police officer is convicted of murdering his/her spouse or has a protection order placed against them, they may, under federal law, still be able to possess a service revolver while on duty, whereas if they are convicted of a qualifying misdemeanor they are prohibited from possessing any firearm or ammunition at any time. Currently pending before Congress are at least two bills that would substantially modify the impact of the amendment to this section.

Prosecution Considerations: In determining whether a particular case merits federal prosecution, you should consider the following factors: the date of the previous conviction; under what circumstances the firearm was obtained; whether there are indications of current potential for violence (i.e., recent incidents of domestic violence would be a stronger argument for prosecution than if a number of years had passed since any domestic problems had occurred); alternatives available to federal prosecution (state prosecutions, voluntary removal of the weapons); whether the potential defendant was "on notice" that his/her possession of a firearm was illegal; whether the potential defendant had made any false statements in obtaining the firearm.

Even if a determination is made that prosecution is not warranted, steps should be taken to assure that the firearm is removed from the possession of the prohibited individual. Depending upon the situation, this might be done by having a local/state/federal law enforcement officer notify the individual of the application of the new law and offer to take temporary custody of the firearm. In other, more volatile situations, it may be necessary to obtain a search and seizure warrant to assure that the firearm is removed immediately.

I second the advice to get a lawyer.

Originally Posted by blume357

You could probably call the state police or who ever they are called over there and ask them.

Unfortunately for those seeking legal advice about possible crimes, the police have no obligation to hold information confidential. In fact, they have the opposite obligation, to seek out crimes and prosecute them.

[Frank Ettin]

Originally Posted by Bartholomew Roberts

....Unfortunately for those seeking legal advice about possible crimes, the police have no obligation to hold information confidential. In fact, they have the opposite obligation, to seek out crimes and prosecute them.

That's exactly right. And, realsoldier, you may have a real problem. Right now you need a lawyer and not the police.

[maestro pistolero]

blume357,
The 'internet warning squad' has given better advice in this case that you have.
To expose ones-self to LE scrutiny while in a potentially vulnerable legal position as you have suggested is foolhardy.

[orangello]

Sorry for your legal complications & best of luck with them. I would take what you've heard hear & find an in-state attorney to consult with about this matter.

As an aside, i wonder what percentage of people convicted of violating this portion of the law who were: "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" other than ex-husbands/future ex-husbands. I'm guessing that percentage would be awfully small.

[maestro pistolero]

The pitfall of the Lautenburg amendment, is that it abridges a fundamental right with very little due process, and a very low level of scrutiny. Whatever the pure motivation to protect victims of domestic violence, this law goes too far, too fast.

If there is ample, solid, verifiable evidence of a DV threat (not just the sour-grapes, vindictive lies of an ex-spouse or lover), I'm all for temporarily suspending 2A rights, but only until very speedy due process determines the actual threat level, at which point, rights must be mandatorily immediately restored, and firearms returned.

[realsoldier]

Well until I can afford an attorney I'll just stay away from guns. Odd though, that there was no violence implied or otherwise. The conviction really was for touching her. Her father hired a very expensive attorney prior to the incident.
So much for public defenders. Mine that is.

Thanks again.

[blume357]

get this silly conviction expunged with out much trouble. It might even be possible to do it with out paying for a lawyer.

Oh, and to give an excuse of sorts... I totally missed that the 'DV' in DV-4 meant domestic violence... the only part in the original poster's question I saw was misdemeanor conviction for touching someone.

[Bartholomew Roberts]

The conviction really was for touching her.

In many jurisdictions, touching someone when they do not wish to be touched is battery and involves "the use of force" by definition.

Her father hired a very expensive attorney prior to the incident.

The state would be the one bringing criminal charges, not any attorney hired by your ex-wife's father. So I am not sure how this is relevant to your situation?