PART II: Firearm Prohibition

Domestic violence or domestic abuse is defined at the state level, meaning the definition varies across states, sometimes between jurisdictions within states. So do domestic violence laws. While most domestic violence cases are prosecuted under state law, the impact of a domestic violence charge or arrest extends beyond the state courts. As a servicemember, a domestic violence charge or arrest can have various effects on your military career. For example, you should consider if an arrest or conviction mandates an administrative discharge from the military. (For more on this, see our previous blog post.) What about your right to possess a firearm?  Does your arrest or conviction mandate a federal firearm prohibition?  

Though state law governs most domestic violence or abuse cases, your ability to possess a firearm after a domestic violence related conviction is governed by federal law. The Lautenberg Amendment, codified at 18 U.S.C. 922, prohibits anyone who has been (1) convicted of a felony; or (2) convicted of a misdemeanor crime of domestic violence from possessing or purchasing any firearms, ammunition, or explosives. Importantly, under federal law, your right to possess a firearm can only be permanently revoked if you have a qualifying conviction. 

There are, however, other circumstances in which your right to possess a firearm may be revoked on a temporary basis. For example, the judge may properly restrict your access to firearms as a condition of pretrial diversion or probation. Additionally, if your military job specification involves an arming requirement (i.e. security personnel), your commander may have the ability to temporarily withdraw your right to carry your service weapon pursuant to an arming suitability determination pending the final disposition of your case.

Below are a few common scenarios and how they impact your right to possess a firearm.

WILL A DOMESTIC VIOLENCE ARREST AFFECT MY RIGHT TO POSSESS A FIREARM? A FEW COMMON SCENARIOS...

Scenario 1: The servicemember is arrested for assault against his spouse. The case is placed on an inactive “stet docket” with conditions that the member completes a batter's intervention course and commits no further misconduct for a specific period of time. If the member successfully completes the course and stays out of trouble, the charge is dismissed.

In this scenario, there has been no “conviction.” Thus, the servicemember's right to possess a firearm would not be revoked permanently. 

Scenario 2: The servicemember is arrested for assault against his spouse and is given “probation before judgment.” In this situation, the member must plead guilty under oath, but the judge will defer entering judgment. After pleading guilty, the judge will order probation, and if the member successfully completes probation, the guilty plea is subsequently vacated.

Similarly, in this scenario, there has been no “conviction” and the servicemember's right to possess a firearm would not be revoked permanently.

Scenario 3: The servicemember pleads guilty to assaulting his spouse or is found guilty pursuant to a jury or bench trial.

Here, the servicemember's conviction prohibits him permanently from possessing any firearms, ammunition, or explosives. The servicemember must return any Government-issued firearm or ammunition to his supervisor, and the servicemember must take affirmative steps to relinquish possession of any privately owned firearms and ammunition. 

 At Patriots Law Group, we're here to help. In domestic violence cases, it is advisable to not only seek experienced civilian counsel to defend your case, but it is equally important to consult well-versed military counsel to assess how your civilian arrest will impact your military career and to protect your rights in the process. Our thorough knowledge and experience in this practice area lends itself to providing you valuable advice throughout an undoubtedly stressful process. Let us help you to reach the best resolution possible. Give us a call today at 301-952-9000.

DISCLAIMER:  The information above is for general informational purposes only.  No attorney-client relationship is intended or created by this information.  Each individual situation is different and therefore a formal in-person consultation is necessary before any specific advice may be relied upon as appropriate and accurate for a given situation. Please call Patriots Law Group at 301-952-9000 to set up a consultation if you wish to obtain specific legal advice you may rely upon. We serve clients anywhere in the world, with in-person consultations available at our Suitland, MD office — right next to Andrews Air Force Base — for clients in Maryland and Virginia