Colorado Domestic Violence: Federal Law Firearms & Ammunition Prohibitions
The Violence Against Women Act of 1994 (VAWA) and the 1997 Omnibus Consolidated Appropriations Act contain federal firearms laws related to domestic violence. VAWA makes it a crime for a person who is the subject of a domestic abuse restraining order to transport, receive, or possess firearms or ammunition which have come across state or federal borders. The Omnibus Consolidated Appropriations Act of 1997 made several amendments to the Federal Gun Control Act of 1968. The amendments prohibit the possession of firearms and ammunition by persons convicted of state or federal misdemeanor crimes of domestic violence and the distribution of firearms and ammunition to such persons. Unlike the provisions in VAWA, law enforcement officers and other governmental officials are NOT EXEMPT from the amendments. As of the effective date, September 30, 1996, any person convicted of a domestic violence misdemeanor may no longer possess a firearm or ammunition. This technical support packet includes information on these two federal laws.
Note that the Grand Lodge Fraternal Order of Police has filed a federal lawsuit challenging the constitutionality of the 1997 amendments to the Gun Control Act of 1968. Also, legislation has been introduced to eliminate the retroactive application and add the exemption for the use of firearms for official purposes.
For information or assistance, contact the Battered Women's Legal Advocacy Project or your local ATF office.
Compiled March, 1997 with funding from the Bush Foundation and the McKnight Foundation.
There are two separate federal firearms laws which relate to domestic violence. These are the Violence Against Women Act of 1994 (VAWA) and the Omnibus Consolidated Appropriations Act of 1997 which amends the Federal Gun Control Act of 1968.
The Violence Against Women Act of 1994 contains a provision which prohibits the subject of a domestic violence restraining order from possessing firearms and ammunition. Under 18 U.S.C. § 922(g)(8), anyone subject to a qualifying restraining order cannot possess a firearm or ammunition. Intimate partners include spouses, former spouses or significant others, but do not include significant others with whom the defendant has NOT cohabited. A qualifying court restraining order is one where:
the court order must include a finding that the person represents a credible threat to the other person OR the order explicitly prohibits the use, attempted use, or threatened use of physical force against the other person.
the order was issued after a hearing. Minnesota OFPs issued under the no-hearing law provisions Minn. Stat. 518B.01 subd. 7 would NOT qualify.
the defendant had to have received actual notice of the hearing and have had an opportunity to participate in the hearing.
If a respondent of a qualifying court restraining order possesses firearms or ammunition, then they have committed a federal crime. If the restraining order expires or is dismissed, the respondent can then possess firearms again. The prohibition lasts as long as the restraining order.
A respondent does not need to be told about this prohibition against possessing firearms. They do not need to be ordered to not possess firearms. The penalty for violation of this federal firearm statute is a maximum of 10 years in prison and/or a $250,000 fine.
Although law enforcement officials are exempt from the restraining order law, the exemption applies only to department-issued firearms. 18 U.S.C. § 925(a). Therefore, a police officer who is the respondent of an OFP could still have their service revolver, even off-duty. That police officer just could not possess other guns.
MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE
The Omnibus Consolidated Appropriations Act of 1997 amended the Federal Gun Control Act, 18 U.S.C. § 922(g)(9). Under these provisions, it is unlawful for an individual convicted of a state or federal "misdemeanor crime of domestic violence" to "ship, transport, possess or receive firearms or ammunition."
A "misdemeanor crime of violence," pursuant to 18 U.S.C. § 921(33)(a), means an offense 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.
Law enforcement officers and governmental employees (such as security guards or military personnel) art not exempt from this law with respect to their receipt or possession of firearms or ammunition. Therefore, law enforcement and other government employees who have been convicted of a qualifying misdemeanor will not be able to lawfully possess or receive firearms or ammunition or any purposes, including performing their official duties.
Furthermore, the law makes it unlawful for any person, including governmental agencies, to sell or otherwise issue firearms or ammunition to any person knowing or having reasonable cause to believe that the person has been convicted of a misdemeanor crime of violence.
As of September 30, 1996, the new law went into effect. However, the prohibition also applies to persons convicted of misdemeanor domestic violence AT ANY TIME PRIOR to September 30, 1996. Therefore, as of the effective date, any person who has EVER been convicted of a misdemeanor crime of domestic violence may no longer possess a firearm or ammunition.
With respect to all persons convicted, the law would NOT apply if the conviction is defective procedurally due to representation or trial issues, such as the person's constitutional rights to counsel and/or a jury trial were not knowingly and intelligently waived. Also, the law would not apply if the conviction has been expunged, set aside, pardoned, or the person has had his or her civil rights restored and the person is not otherwise prohibited from possessing firearms or ammunition.
WORKSHEET: Federal Firearm & Ammunition Laws
1. Question: Mary received a notice to appear at a hearing regarding a domestic violence restraining order her partner had filed against her. Mary chose not to appear at the hearing. Subsequently, Mary received notice that a restraining order had been issued against her. Mary does not believe that she has to dispose of her firearm, since she did not participate in the hearing. Does she have to dispose of her firearm?
Answer: Yes. Mary did receive actual notice of the hearing, and she had an opportunity to participate. The law does not require actual participation if the defendant chooses otherwise. Therefore, the VAWA restraining order law would apply to her and she would have to dispose of her firearm.
2. Question: John was convicted of misdemeanor assault against his spouse. The criminal complaint does not make reference to domestic violence, but the complaint reflects that John assaulted his spouse. Will John have to dispose of his firearms and ammunition?
Answer: Yes. The definition of "misdemeanor crime of domestic violence" includes all misdemeanors that involve the use or attempted use of physical force (i.e. simple assault, assault and battery) if the offense is committed by one of the defined parties. This is true whether or not the State statute or local ordinance specifically defines the offense as a domestic violence misdemeanor.
3. Question: A police officer was charged with felony assault on his child in 1992. He pled guilty to a misdemeanor and the felony charge was dismissed. He was suspended from the police force and ordered to undergo counseling. After successful completion of counseling, he was reinstated. Can the police officer lawfully possess firearms and ammunition?
Answer: No. The officer may no longer lawfully possess firearms or ammunition either on or off duty. The conviction must have been expunged, pardoned, set aside, or his rights have been restored.
4. Question: Sam was convicted of a domestic abuse misdemeanor in 1987. Does this law apply to such a person?
Answer: Yes. The new law is retroactive. The prohibition applies even if the conviction occurred prior to the new law's effective date of September 30, 1996. As of the effective date, such persons may no longer possess a firearm or ammunition.
5. Question: A police officer was convicted of assault against his former wife in 1987, but he believes that his record has been expunged. Can he retain his firearms?
Answer: No. An employee's belief that he may qualify for an exception to the prohibition is not enough. He has a duty to comply with the law pending departmental review. Therefore, he must turn in his firearms and ammunition until he provides his department with proof or information which supports his claim that his record was expunged.
18 U.S.C. § 922
It shall be unlawful for any person --
who is subject to a court order that -
was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
who 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.