Federal vs. California Gun Ownership Rights

Federal vs. California Gun Ownership Rights

Posted By Mark Raymond McDonald || 26-Aug-2010

We have been seeing an increasing number of clients who, while allowed to own a firearm under California law, nevertheless are prohibited under federal law.  In California, if a person is convicted of a misdemeanor simple battery, that person can not possess a firearm in California for the next 10 years.  This 10 year restriction also includes misdemeanor convictions for simple assault  and brandishing a firearm.  A list of the 10 year offenses is listed in Penal Code Section 12021(c)(1).

Even when the 10 years is up, and even if your case has been expunged, federal law still bars you from owning a firearm.  The following is an outline of how your right to gun ownership in California can be affected by a misdemeanor conviction:

 Convictions that trigger loss of gun rights

Penal Code 12021 PC California's law against owning, possessing, purchasing, or receiving firearms applies to three groups of people:

     *People who have been convicted of a felony offense, regardless of where the            conviction took place, and


  1. people who have been convicted of specific misdemeanors, and


  2. people who are addicted to a narcotic drug.1

If convicted of any felony offense (including domestic violence), Penal Code 12021 PC imposes a lifetime ban against possessing a firearm.

But it's the second category that most frequently affects domestic violence offenders, since most California D.V. cases are prosecuted as misdemeanors. If convicted of a misdemeanor offense for



Penal Code 12021 PC imposes a ten-year ban on owning, possessing, purchasing, or receiving firearms.2

California law defines an "intimate partner" as


  1. your current or former spouse,


  2. a person with whom you live or lived (otherwise referred to as a current or former "cohabitant" which includes minor and adult children),


  3. the mother or father of your child,


  4. anyone you are or were dating, and


  5. a current or former fiancé or fiancée.3

If you suffer a misdemeanor domestic violence conviction for any of the above offenses, your California gun rights will automatically be restored ten years after the conviction date. This assumes that you haven't suffered a felony conviction in the meantime, which carries a lifetime firearms' ban.


What if I expunge my California domestic violence conviction?


While California expungement law certainly provides benefits to the individual who expunges his/her criminal record, restoring the right to own, possess, purchase, or receive firearms isn't one of them.4

However, if you are convicted of a felony domestic violence offense...and you successfully obtain a certificate of rehabilitation or a governor's pardon...your Second Amendment right to bear arms will be restored. That is, unless you have ever been convicted of a felony that involved theuse of a "dangerous weapon".5 In the latter case, the lifetime ban will remain in effect.

If you are convicted of a misdemeanor domestic violence offense, you just have to wait out the ten-year prohibition. However, you will still be prevented from exercising your gun rights under federal law, as explained below.


The Lautenberg Amendment and its affect on misdemeanor convictions for domestic violence and gun rights


The Lautenberg Amendment, enacted in 1996, is part of the United States Code. It is a federal law that prohibits anyone who is convicted of a misdemeanor crime of domestic violence (otherwise referred to as an MCDV) from possessing a firearm.

The law also prohibits knowingly selling a firearm to someone falling under this category. Selling a firearm to someone who hasn't passed a criminal background check could subject you to a forfeiture of your California firearms dealer's license.6

When applicable, the Lautenberg Amendment federal restriction trumps California's ten-year ban on restoring gun rights.

This is because you can't legally possess a gun in California unless both your state and federal criminal records are clear of restrictions. Because a conviction for an MCDV triggers a lifetime ban on your federal criminal record, you are still prevented from owning a firearm once your California ten-year ban is lifted.


The specifics of the Lautenberg Amendment


The Lautenberg Amendment isn't applicable to all misdemeanor crimes of domestic violence. In fact, there are a few key differences that set it apart from the domestic abuse crimes that were listed above under Penal Code 12021 PC.

Before your firearms' rights can be revoked under the Lautenberg Amendment for an MCDV, the conviction


  • must have been for an offense that was committed against one of the people listed above under California's definition of "intimate partner", except that the Lautenberg Amendment restricts its definition of "intimate partners" by excluding those who are or were merely dating,


  • must have been for an offense where you used or attempted to use physical force or threatened to use a deadly weapon,


  • must have been one where you were represented by counsel or knowingly and intelligently waived that right, and


  • must have been one where you were entitled to a jury trial and either (1) the case was tried by a jury, or (2) you knowingly and intelligently waived that right.7

If your misdemeanor crime of domestic violence doesn't meet these criteria, the Lautenberg Amendment does not apply. If it doesn't, California law alone dictates when your California gun rights will be restored.

But this can become very complicated, because even though the Lautenberg Amendment seems like it's more restrictive, it actually encompasses misdemeanor crimes that aren't included under Penal Code 12021 PC, California's firearm prohibition.

This stems from the fact that this federal law applies to any misdemeanor that (1) was committed against one of the listed victims, and (2) involved the use or attempted use of physical force or the threatened use of a deadly weapon.

Examples: Bob is convicted of Penal Code 422 criminal threats because he threatened to choke his ex-wife the next time she took their kids somewhere without his permission. Under California law, this conviction triggers a ten-year firearms' ban.

But because there was no actual physical force or threatened use of a deadly weapon, this conviction does not generate a federal ban on Bob's gun rights. Once the ten-year period has passed, Bob will be entitled to own, possess, purchase, or receive a gun.

Now let's switch the facts-

Bob is convicted of Penal Code 415 PC, California's "disturbing the peace" law 8 for shoving his wife in public. This is not a crime that triggers any California firearms' ban. But because the crime was


  1. committed against Bob's wife, and


  2. involved physical force,

it falls under the Lautenberg Amendment and therefore subjects Bob to a lifetime federal ban on his gun rights.

But...

If Bob's disturbing the peace conviction was for shoving his girlfriend instead of his wife, he would not be subject to a firearms' ban under California or federal law, since


  1. Penal Code 415 PC isn't one of the crimes listed under Penal Code 12021 PC, and


  2. a girlfriend does not count as an "intimate partner" under federal domestic violence law.


How does the Lautenberg Amendment affect expunged or pardoned convictions?


The Lautenberg Amendment states that it does not apply to expunged or pardoned convictions unless the expungement, pardon, or certificate of rehabilitation specifically denies firearms' rights.9 In California, none of these options will restore firearm rights.

So while it would logically follow that an individual who


  1. waits-out his/her ten-year period,


  2. regains his/her firearm rights, and


  3. then obtains an expungement

would be entitled to federal relief, this isn't the case. Unfortunately, federal law doesn't recognize a California "expungement" as such, since it doesn't fully relieve an individual of all criminal disabilities.10

And because certificates of rehabilitation and governor's pardons only apply to felonies and specific misdemeanor sex offenses, they won't help restore your federal gun rights either.11


How can I preserve my gun rights following a California domestic violence arrest?


As you can see, federal law prohibits restoring your gun rights following a domestic violence conviction. So the goal is to prevent these rights from being taken away in the first place. There are two steps that we take to try to achieve this goal:


  1. Fight the case

  2. The first step is to fight your underlying domestic violence charge. Our California criminal defense attorneys12 will evaluate all of the available legal defenses to challenge the allegation in the hopes of securing a dismissal or acquittal.


    Unfortunately, sometimes the evidence against you is simply too strong to fight the charge successfully. When this is the case, we turn to step two.


  3. Negotiate a plea bargain

  4. Plea bargaining is a useful tool for both sides...it allows the prosecution to obtain a conviction and allows you to plead guilty to an offense that (1) carries a lesser sentence, and (2) a lesser social stigma.


    If preserving your Second Amendment right to bear arms is important to you, your lawyer may be able to negotiate a plea bargain to a misdemeanor charge that won't subject you to a lifetime federal firearms' ban.


As Ventura criminal defense attorney Darrell York explains,13 "We usually try to plea bargain cases down to California Penal Code 602 trespass...a common plea bargain charge.14 When that's not possible, we'll at least do our best to plead you to a charge that is unrelated to domestic violence so that you are not subject to the lifetime federal firearms' ban that is imposed in connection with MCDV convictions."


Additional information about domestic violence and gun rights


The following are some miscellaneous, though important, facts about domestic violence and gun rights.


Your weapon will be confiscated during a domestic violence arrest


If you are arrested for a California domestic violence offense, the investigating law enforcement officer is legally required to confiscate any firearms or other weapons that were


  1. allegedly used during the commission of the offense,


  2. in plain sight, or


  3. discovered during a lawful search of your person/premises.15

If the gun was used during the commission of the offense and is evidence in the case, law enforcement will keep your firearm until the resolution of your case. If you are acquitted...and you lawfully possessed your weapon...it will likely be returned to you.

If, however, officers confiscated your weapon and (1) discovered you possessed the gun illegally, or (2) you are convicted of the charges, the firearm will most likely be declared a nuisance, thereby subject to destruction.16


California domestic violence protective orders and gun possession


Persons who are the subject of a temporary restraining order or other protective order are not generally permitted to own, possess, purchase, or receive firearms during the duration of the order.17 Protective orders are commonly issued in connection with domestic abuse allegations, which is why this law is relevant.

Call us for help...

For more information about California domestic violence convictions and gun rights, or to discuss your case confidentially with one of our attorneys, please don't hesitate to contact us at Shouse Law Group.

Our California criminal law offices are located in and around Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

Additionally, our Las Vegas Nevada criminal defense attorneys are available to answer any questions about Nevada battery domestic violence convictions and gun rights. For more information, we invite you to contact our local attorneys at one of our Nevada law offices, located in Reno and Las Vegas.18

You may also find helpful information in our related articles on California Domestic Violence; California Firearms Offenses; Penal Code 12021 PC Felon with a Firearm; California Expungement Law; Restoring the Right to Own, Possess, Purchase, or Receive Firearms; and California Legal Defenses.

Legal References:

1Penal Code 12021 PC -- California's law against owning, possessing, purchasing, or receiving firearms. ("(a)(1) Any person who has been convicted of a felony under the laws of the United States [including a felony crime of domestic violence], the State of California, or any other state, government, or country or of an offense enumerated in subdivision (a), (b), or (d) of Section 12001.6, or who is addicted to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her possession or under his or her custody or control any firearm is guilty of a felony.")

2Penal Code 12021 PC lists a variety of specific crimes that subject an individual to a ten-year firearms' ban. With respect to misdemeanor crimes of domestic violence, these include Penal Code 273.5 PC California's "corporal injury on a spouse / mate" law, Penal Code 243(e)(1) California's "domestic battery" law, Penal Code 243.4 California's law against sexual battery, Penal Code 422 PC California's "criminal threats" law, and Penal Code 646.9 PC California's stalking law.

3California Penal Code 273.5 PC -- Domestic violence. ("(a) Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.")

See also California Penal Code 243(e)(1) PC -- Domestic battery. ("(e)(1) When a battery is committed against a spouse, a person with whom the defendant is cohabiting, a person who is the parent of the defendant's child, former spouse, fiancé, or fiancée, or a person with whom the defendant currently has, or has previously had, a dating or engagement relationship, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail for a period of not more than one year, or by both that fine and imprisonment.")

4California Penal Code 1203.4 PC -- Change of plea. ("Dismissal of an accusation or information pursuant to this section does not permit a person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Section 12021.")

5California Penal Code 4852.17 PC -- ("Whenever a person is granted a full and unconditional pardon by the Governor, based upon a certificate of rehabilitation, the [California governor's] pardon shall entitle the person to exercise thereafter all civil and political rights of citizenship, including but not limited to: (1) the right to vote; (2) the right to own, possess, and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored [by a governor's pardon], and Sections 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.") So long as neither the domestic violence conviction nor any prior felony conviction involved the use of a dangerous weapon, your gun rights will be restored upon the granting of a certificate of rehabilitation or governor's pardon.

See also California Penal Code 4854 PC -- Firearms; restoration of rights; exceptions. ("In the granting of a pardon to a person, the Governor may provide that the person is entitled to exercise the right to own, possess and keep any type of firearm that may lawfully be owned and possessed by other citizens; except that this right shall not be restored, and Sections 12001 and 12021 shall apply, if the person was ever convicted of a felony involving the use of a dangerous weapon.") So long as neither the domestic violence conviction nor any prior felony conviction involved the use of a dangerous weapon, your gun rights will be restored upon the granting of a certificate of rehabilitation or governor's pardon.

6Penal Code 12071 PC lists a variety of conditions that subject a firearm's dealer to a forfeiture of his/her California firearms dealer's license including ("(D) Whenever the dealer is notified by the Department of Justice that the person is prohibited by state or federal law from processing, owning, purchasing, or receiving a firearm. The dealer shall make available to the person in the prohibited class a prohibited notice and transfer form, provided by the department, stating that the person is prohibited from owning or possessing a firearm, and that the person may obtain from the department the reason for the prohibition.") This means that if a dealer knowingly sells to a person who has been convicted of a misdemeanor crime of domestic violence, he may forfeit his dealer's license.

718 U.S.C. 921 -- Unlawful acts. ("(33)(A) Except as provided in subparagraph (C), [FN2] the term "misdemeanor crime of domestic violence" [as used in the Lautenberg Amendment 18 U.S.C. 922(g)(9)] means an offense that-- (i) is a misdemeanor under Federal, State, or Tribal [FN3] law; and (ii) 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 (B)(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless--(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and (II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.")

8Penal Code 415 PC California's "disturbing the peace" law. ("Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction.")

9See 18 U.S.C. 921, endnote 7, above. ("(ii) A person shall not be considered to have been convicted of such an offense [that is, an MCDV] for purposes of this chapter if the conviction has been expunged or set aside, or is 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.")

10Jennings v. Mukasey (2007) 511 F.3d 894, 898. ("For purposes of 18 U.S.C. § 922(g)(9), a person shall not be considered to have been convicted of an MCDV if the conviction has been expunged or set aside, or is 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 person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(33)(B)(ii). The government contends that Jennings did not receive an "expungement" as that term is used in 18 U.S.C. § 921(a)(33)(B)(ii), regardless of whether or not he obtained relief under California Penal Code section 1203.4 or section 1203.4a....Although "a number of courts have used forms of the word 'expunge' to describe the relief" under section 1203.4, "the statute does not in fact produce such a dramatic result." People v. Frawley, 82 Cal.App.4th 784, 790-91, 98 Cal.Rptr.2d 555 (Cal.Ct.App.2000) (citations omitted)...Section 1203.4 does not, properly speaking, "expunge" the prior conviction. The statute does not purport to render the conviction a legal nullity...Indeed, section 1203.4 contains a sweeping limitation on the relief it offers, stating that "in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." This provision alone precludes any notion that the term "expungement" accurately describes the relief allowed by the statute.")

11California Penal Code 4852.01 -- Petition for certificate of rehabilitation and pardon; application of chapter; gubernatorial pardon. This section lists the criteria for suitability for these avenues of relief. These options are only available to those who have been convicted of a felony or who have been convicted of specific misdemeanor sex offenses.

12Our California criminal defense attorneys have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.

13Ventura criminal defense attorney Darrell York uses his former experience as a Glendale Police Officer to defend clients at the Ventura Hall of Justice, the Van Nuys courthouse, the Pasadena courthouse, the Burbank courthouse, the Glendale courthouse, the Lancaster courthouse, the San Fernando courthouse, and the Criminal Courts Building. Please contact us at Shouse Law Group to schedule a free consultation.

14California Penal Code 602 PC -- Trespass. Trespass is a common plea bargain charge because it may be charged as a misdemeanor or an infraction and because it doesn't subject the offender to the same type of social stigma as many other criminal charges do.

15California Penal Code 12028.5 PC -- Domestic violence incidents; temporary custody of firearms. ([Any law enforcement officer] "who is at the scene of a domestic violence incident involving a threat to human life or a physical assault, shall take temporary custody of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the peace officer or other persons present. Upon taking custody of a firearm or other deadly weapon, the officer shall give the owner or person who possessed the firearm a receipt. The receipt shall describe the firearm or other deadly weapon and list any identification or serial number on the firearm. The receipt shall indicate where the firearm or other deadly weapon can be recovered, the time limit for recovery as required by this section, and the date after which the owner or possessor can recover the firearm or other deadly weapon. No firearm or other deadly weapon shall be held less than 48 hours. Except as provided in subdivision (f), if a firearm or other deadly weapon is not retained for use as evidence related to criminal charges brought as a result of the domestic violence incident or is not retained because it was illegally possessed, the firearm or other deadly weapon shall be made available to the owner or person who was in lawful possession 48 hours after the seizure or as soon thereafter as possible, but no later than five business days after the owner or person who was in lawful possession demonstrates compliance with Section 12021.3.")

16California Penal Code 12028 PC -- Firearms and other weapons as nuisance. ("(b)(1) Except as provided in paragraph (2), a firearm of any nature owned or possessed in violation of Section 12021, 12021.1, or 12101 of this code, or Chapter 3 (commencing with Section 8100) of Division 5 of the Welfare and Institutions Code, or used in the commission of any misdemeanor as provided in this code, any felony, or an attempt to commit any misdemeanor as provided in this code or any felony, is, upon a conviction of the defendant or upon a juvenile court finding that an offense which would be a misdemeanor or felony if committed by an adult was committed or attempted by the juvenile with the use of a firearm, a nuisance.")

17California Penal Code 12021 PC -- Restrictions on firearms. ("(g)(1) Every person who purchases or receives, or attempts to purchase or receive, a firearm knowing that he or she is prohibited from doing so by a temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, or a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. (2) Every person who owns or possesses a firearm knowing that he or she is prohibited from doing so by a temporary restraining order or injunction issued pursuant to Section 527.6 or 527.8 of the Code of Civil Procedure, a protective order as defined in Section 6218 of the Family Code, a protective order issued pursuant to Section 136.2 or 646.91 of this code, or a protective order issued pursuant to Section 15657.03 of the Welfare and Institutions Code, is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.")

18Please feel free to contact our Nevada criminal defense attorneys Michael Becker and Daria A. Snadowsky for any questions relating to Nevada battery domestic violence convictions and gun rights or about Nevada's firearm laws in general. Their Nevada law offices are located in Reno and Las Vegas.