A domestic violence conviction in Ohio carries potentially 6 months in jail and a $1000 fine. However, there is a secondary consequence for such a conviction – the inability to own or possess a firearm.
The federal Gun Control Act of 1968, codified in 18 U.S.C. § 921, was enacted to prohibit the possession of firearms by any person convicted of a felony. However, this was later amended to include persons convicted of a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9). So, that should mean that if you are convicted of a misdemeanor domestic violence offense you cannot own a gun, right? Unfortunately, it’s not that simple.
18 U.S.C. § 922(g)(9) provides that it is “unlawful for any person . . . who has been convicted in any court of a misdemeanor crime of domestic violence . . . to possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 921 (a)(33)(A) states that “the term ‘misdemeanor crime or violence’ means that:
- It is a misdemeanor under Federal, State or Tribal law; and
- It has, as an element, the use or attempted use of physical force, or the threatened use of a deadly gun, committed by a current or former spouse, parent or guardian of the victim, by a person whom the victim shares a child in common, by a spouse who is cohabitating or has cohabitated with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.”
After reading the above definition, domestic violence in Ohio falls within that definition. Thus, a domestic violence conviction will prevent you from lawfully owning or possessing a firearm in Ohio. However, what about “assault,” which can involve a domestic relationship, but is not filed under that statute? The United States Supreme Court, in U.S. v. Hayes, addressed this issue.
United States Supreme Court Addressed the Issue
In Hayes, Randy Hayes received a visit by the local police after receiving a call reporting domestic violence. The officer asked to search his home, which Hayes agreed to, and the officers discovered several firearms. Since Hayes had a prior conviction for battery against his then-wife, Hayes was arrested and indicted by a federal grand jury for being in violation of § 922(g)(9).
Hayes would eventually reach the United States Supreme Court after Hayes argued that the indictment should be dismissed because § 922(g)(9) applies only to persons previously convicted of an offense that has an element of a domestic relationship between the victim and the aggressor. Hayes argued that the statute he was convicted under for battery was generic and did not designate a domestic relationship between an offender and the victim as an element of the offense.
The United States Supreme Court disagreed and held that a “domestic relationship, although it must be established beyond a reasonable doubt in a § 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.” The Court established a two part test to determine if an offense falls under a “misdemeanor crime of violence:”
- The misdemeanor offense has, as an element of the offense, the use or attempted use of physical force, or the threatened use of a gun; and
- Is committed by a person who has a domestic relationship with the victim.
If these two elements are satisfied, the misdemeanor offense has the element of domestic violence.
Federal courts have used this decision to find that a charge of domestic violence that is amended to assault, disorderly conduct or other criminal offense can produce a lifetime gun ban for the defendant pursuant to § 922(g)(9).
How to Avoid a Lifetime Firearm Ban?
Considering this, what can a person do to avoid a lifetime firearm ban? The defendant has a few options. The person can take the case to trial and obtain a not guilty verdict, have the domestic violence offense dismissed, or have the domestic violence charge dismissed and be re-charged with a new offense.
Let’s look at an example to clarify. The defendant is charged with domestic violence in Ohio pursuant to ORC 2919.25. In order to avoid the lifetime firearm ban, the person must be acquitted at trial, have the case dismissed, or have the case dismissed and be re-charged with a different offense, such as disorderly conduct under ORC 2917.11. However, the defendant must be very careful about the type of disorderly conduct offense he pleads guilty to.
ORC 2917.11(A)(1) states that “no person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following: engaging in fighting, in threatening harm to persons or property, or in a violence or turbulent behavior.” The language of this statute could bring about a lifetime gun ban because there is an element of the use or attempted use of physical harm (fighting) and the defendant had a specified domestic relationship with the victim (this new charge stems from the original domestic violence charge). Thus, ORC 2917.11(A)(1) most likely does not work.
What about ORC 2911.11(A)(2)? This section states that it is unlawful to make “unreasonable noise or an offensively coarse utterance, gesture or display, or communicating unwarranted and grossly abusive language to any person.” This may keep the defendant from being subject to a lifetime firearm ban. However, even this is not a sure thing. Most likely the only way to avoid a lifetime firearm ban is to receive a not guilty verdict at trial or a complete dismissal of the domestic violence charge.
Columbus and Delaware, Ohio Criminal Defense Attorney
If you have been charged with a criminal offense in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your criminal offense case.