Don't lose your gun rights in a divorce

[Dustbuster]

Excellent blog and opinion by well respected attorney David Raybin,
published Jun 15 2015 long article but if you ow.n firearms and are going through a divorce you have to read this.

www Can you lose your gun rights in a divorce case? It is certainly possible.

Persons subject to domestic relations civil injunctions or orders may lose their firearm rights even where the order says nothing about firearms. Whether the loss is permanent or only temporary depends on the language contained in the divorce or other domestic relations order.

GUN RIGHTS RESTORATION IS CERTAINLY POSSIBLE IN DOMESTIC VIOLENCE CASES BUT IT DEPENDS ON THE NATURE OF THE ORDER.

Section 922(g) of Title 18 of the United States Code — part of the Gun Control Act of 1968 — provides nine circumstances which make it unlawful for a person to possess or purchase any firearm or ammunition. Violators are subject to imprisonment for up to ten years. Id. § 924(a)(2). One of these grounds involves persons who are subject to certain restraining orders involving current or former intimate or domestic partners.

I WAS NOT CONVICTED OF ANYTHING – DOES THE LAW APPLY TO ME?

As we know, federal law permanently prohibits the possession or purchase of firearms for felony or misdemeanor domestic violence criminal convictions but may also prohibit firearm possession or purchase where an individual is under a domestic protective order or injunction. This not only includes the familiar orders of protection but may also include injunctive provisions in divorce cases depending on the language used in the Order. These orders are frequently issued in divorce cases and may result in permanent loss of firearm rights even where there are no criminal charges or convictions.

In summary, injunctive language in Orders in divorce proceedings may trigger firearm possession or firearm purchase restrictions where the Order uses terms which prohibit future abuse, harm, or assaultive behavior. This can occur in pretrial orders and are often contained in Marital Dissolution Agreements. As will be noted, orders prohibiting permanent, prospective “assault” or “abuse” should never appear in a court order or MDA because it will result in permanent loss of firearm rights and up to ten years in prison if the person is in possession of a firearm or ammunition. .

WHAT IS THE LAW?

Title 18, U.S.C. § 922(g)(8) states that among those prohibited from possessing or purchasing a firearm is a person:

“who is subject to a court order that –

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;

(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child or 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

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; OR

(ii) 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 ….

18 U.S.C. § 922(g)(8) sets forth several requirements that a court order must meet in order to qualify as a predicate for a permanent prohibited possession of a firearm. For a court order to meet the requirements of § 922(g)(8), it must satisfy several distinct sub-elements. First, there must be a court order. 18 U.S.C. § 922(g)(8). Second, this order must have been issued after a hearing, of which the possessor received notice. Id. § 922(g)(8)(A)(“(8) (A)”). Third, the order must restrain the possessor from “harassing, stalking or threatening an intimate partner or child of such intimate partner or person, or engaging in conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.” Id. § 922(g)(8)(B) (“(8)(B)”). Fourth, the court order must also either include a finding that the possessor represents a credible threat to the victim’s safety, id. § 922(g)(8)(C)(i)( “(8)(C)(i)”), or, by its terms, explicitly prohibit “the use, attempted use, or threatened use of physical force” against such a person, id. § 922(g)(8)(C)(ii)(“(8)(C)(ii)”).

One of these key requirements is articulated in subsection (C). A court order can satisfy this requirement in either one of the following two ways:

(i) [the court order] includes a finding that such a person represents a credible threat to the physical safety of such intimate partner or child; [or]

(ii) [the court order] 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;

18 U.S.C. § 922(g)(8); United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (finding that satisfaction of either prong will suffice to establish the element).

FIRST STEPS TO OBTAIN A RESTORATION OF FIREARM RIGHTS

To obtain gun rights restoration one must examine the Order. It is clear from the case law interpreting and applying the (C)(ii) prong that a domestic violence protection order does not have to feature the exact verbiage of (C)(ii) in order to qualify. See United States v. Dubose, 598 F.3d 726, 730-31 (11th Cir. 2010)(concluding that a protective order does not have to contain the precise language used in subsection (C)(ii)); United States v. Hopper, 28 Fed. Appx. 376, 2001 WL 1671083 (C.A.6 (Ky.))(Domestic Violence Order did not have to recite the exact language of (C)(ii) prong; specifically the language restraining him “from committing further acts of domestic violence and abuse,” meets the statutory requirements because it “explicitly prohibit[ ] the use, attempted use, or threatened use of force” against his partner. )(unpublished).

Thus, an order directing the defendant to “refrain from abusing” his wife satisfied the requirements of 18 U.S.C. § 922(g)(8)(C)(ii). United States v. Coccia, 446 F.3d 233, 242 (1st Cir. 2006); United States v. DuBose, 598 F.3d 726, 731 (11th Cir. 2010) (“the order’s language restraining DuBose from “hurting” his wife or her daughters, at the very least, satisfies subsection (C)(ii)’s requirement that the order explicitly prohibit the use, attempted use, or threatened use of “physical force” that would reasonably be expected to cause bodily injury); United States v. Bostic, 168 F.3d 718, 722-23 (4th Cir. 1999)(order’s directive that Bostic “refrain from abusing” his wife “unambiguously satisfie[d] subsection (C)(ii)’s requirement); United States v. Mahin, 668 F.3d 119, 122 (4th Cir. 2012)((C)(ii) prong satisfied where protective order required that Mahin refrain from “acts of family abuse.”); United States v. Luedtke, 2008 WL 5274831 (E.D. Wis. 2008)(language prohibiting respondent from “committing acts of domestic abuse” was sufficient for the purposes of (C)(ii) prong)(unpublished). However, see United States v. Sanchez, 639 F.3d 1201 (9th Cir. 2011) ( a mere no-contact order that lacked explicit prohibitions on use, attempted use, or threatened use of physical force against intimate partner or child that reasonably would be expected to cause bodily injury did not satisfy provision that placed firearm prohibited-possessor status on individuals subject to certain restraining orders).

HOW LONG DO THESE ORDERS LAST ?

Unlike the consequences for a domestic violence conviction which is permanent, the 18, U.S.C. § 922(g)(8) firearm prohibition applies only while the domestic violence- related injunctive restrictions remain in place. United States v. Chapman, 666 F.3d 220, 228 (4th Cir. 2012) (“Note that features of § 922(g)(8)(A)-(B) and (C)(ii) keep its prohibitory sweep exceedingly narrow. The first limits its prohibitory sweep to persons under a DVPO then currently in force. See id. § 922(g)(8) (‘[i]t shall be unlawful for any person—… who IS subject to a court order that—…’) (emphasis added).”). See also, United States v. Mahin, 668 F.3d 119, 125 (4th Cir. 2012) (“First, § 922(g)(8)’s prohibition on firearm possession is temporally limited and therefore “exceedingly narrow.” Chapman, 666 F.3d at 229. Rather than imposing a lifelong prohibition, section 922(g)(8) applies for the limited duration of the domestic violence protective order (in this case, two years). It is thus a temporary burden during a period when the subject of the order is adjudged to pose a particular risk of further abuse. See Knight, 574 F.Supp.2d at 226 (finding that § 922(g)(8) is “quite narrow” in part because “the prohibition lasts only as long as the underlying state court order is in effect”); Elkins, 780 F.Supp.2d at 479 (same).”).

Most orders of protection which universally contain the “prospective no abuse or assault” language last for a year or are otherwise limited in duration. While such orders are in effect the defendant cannot possess or purchase a firearm or ammunition. A violation may result is a federal charge. Some domestic-type injunctions in divorce or post-divorce proceedings may also contain similar language and will thus carry similar sanctions.

WHAT IS THE BOTTOM LINE?

In light of the federal statute a permanent domestic-type injunction should never contain phrases such as “abuse” or “harm” or “assault.” If so, the injunction will preclude firearm possession or purchase forever. If such words appear in the injunction or court order then to restore one’s firearm rights the injunction should be limited in duration at least for those terms. Otherwise the Court order will permanently preclude possession or purchase of firearms or ammunition even if the order contains no firearm prohibition.

WHAT SHOULD I DO?

If you or your clients are subject to such Orders in divorce or post-divorce cases the Orders should be examined to see if the Orders contain language regarding future abuse, harm, or assault. If so a motion should be filed to modified or eliminate the language which will – no pun intended – trigger the permanent federal firearm prohibition. Gun rights restoration is possible if the Order is modified or altered or terminated.


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[Wheelgunner]

Good information to have.  Thanks for posting.

[DaveTN]

You don’t have to be in a divorce. If the cops get called to your house on a domestic violence call an arrest is highly probable. Most cops don’t have discretion on DV; and they don’t need a complainant.

[Dustbuster]

Thats true too Dave, whats even worse is vindictive women lying in their initial order of protection complaints, lying in their sworn statement to the magistrates, and finally lying on the witness stand,and ALL of it going unpunished. Thos pussies never prosecute for filing a false report, or perjuring themselves...

we could have a million post thread on this, but, bottom line is domestic violence cases ruin more lives  than ISIS has since inception. Its sad, and for the kids that get jacked on this? their careers are over before they started. BUT! 2 guys can invade a home, beat the crap out of 2 senior citizens and walk away on probation every time......its sickening...The ISIS F Tards create hate out of religious belief, the scorned women ( and men) lie out of pure vindictiveness......

and PS that info was posted to a blog read by other attorneys,written by a very good, prominent attorney....... maybe the boss will make this a sticky or we should start a thread on firearms and family issues.

Edited June 22, 2015 by Dustbuster

[Pain103]

 They call orders of protections "ghetto evictions" because they know that once it's served they are booted from the house. Many won't prosecute but claim they must have the order of protection. No judge will refuse an ex parte order of protection. This isn't all people but seems to be getting more normal everyday.

[TNWNGR]

An OP originates through a Judge. What your more likely to encounter after arrest for domestic assault is a conditional order of release COR. It's going to explicitly prohibit any form of contact and if the victim lives at the same address as the owner prohibit the assailant from returning home. Additionally no guns, weapons, alcohol or drugs will be allowed. If you violate the terms of release and are rear rested you'll spend another 12 hours in jail and make a higher bond. The COR can also be used for other domestic related offenses.