Possible Way To Get Around Misdemeanor DV Firearm Prohibition in CA

This topic will be explored more later, but it should be thrown out their for comment and contemplation now:

Since the federal probation on misdemeanor domestic violence cannot be lifted by the state unless (1) the state took away the firearm rights and (2) the state took an action to restore the rights, those convicted of a misdemeanor DV in CA are in worse shape when it coms to firearm rights than those convicted of felony DV in CA.

This anomaly is created by the fact that the federal prohibition on firearm ownership of those convicted of domestic violence only applies to misdemeanors— and apparently not misdemeanors that were pled down after sentencing. So someone convicted of felony DV can have their case reduced from a felony to misdemeanor (which eliminates CA's prohbition on felon's owning a firearm) and the federal law will not apply to the reduced misdemeanor conviction because it was reduced post-sentencing.

Here is where the possible way around the federal prohibition comes into play. A CA court and change the classification of a sentence pursuant to Penal Code section 17(b). Though it has probably never been attempted, but a person can ask a court— even many years after completing the sentence, to increase the sentence from a felony to misdemeanor, and the reduce it back from felony to misdemeanor.

So, the state would take away the person's firearm rights by making the case a felony, and then restore the rights by making it a misdemeanor. This action, as contrived as it may seem, very well may take the petitioner out of the purview of the federal firearm ban.

More soon...

Domestic Violence Firearm Rights Part II

The question of how to restore firearm rights after a domestic violence conviction is easily one of the top five questions received by any attorney who practices post-conviction relief.

I published a comprehensive memo on analyzing a misdemeanor DV case under the federal law at the domestic violence expungement web site http://www.expungedomesticviolence.com

Please feel free to email me any questions or post them here.

Firearm Rights Restoration After Domestic Violence Convictions Part II

The topic of restoring firearm rights after a misdemeanor conviction of domestic violence will probably be an ongoing topic for a few years as the courts sort out the difference between the plain language of the Lautenberg Amendment and the bizarre interpretations given by U.S. Department of Justice (DOJ), Bureau of Alcohol, Tobacco and Firearms (BATF), and various state courts and agencies.

A client of ours wanted to purchase a firearm in CA after having a misdemeanor conviction for Domestic Violence in Washington vacated. He also had his firearm rights restored by a WA court using WA's firearm restoration statute. We contacted the California Department of Justice's Bureau of Firearms to see if the client would be eligible to own a firearm in CA. Having not have faced that fact pattern before, the CA DOJ referred me to the National Crime Information Center (NCIC).

The NCIC is a division of the DOJ that screens applicants for firearm ownership. Most states require that the NCIC clear a person before the state will allow the person to purchase or possess a firearm. The legal analyst I spoke with gave me a surprising interpretation that is so bizarre that I have yet to formulate a response.

He said that a state government "cannot restore what it did not take away." Meaning, that despite the plain language of the Lauthenberg Amendment, which says that expungement, vacating, or setting aside a conviction will restore firearm rights— and, despite what seemed to be the previous position of the feds, that a state could restore firearm rights if the expungement remedy clearly stated rights were restored, the feds were now saying the rights can only be restored by the state if the state also took them away for the misdemeanor domestic violence.

This interpretation seems very strained and illogical. We will do some analysis on it soon, but I wanted to throw this out there to let other people start attacking it and incorporating it into any state legislation.

-Mathew Higbee