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MissBehavn
12-09-2007, 6:19 PM
Nearly 20 years ago I was charged a Misd. offence for spousal abuse. Although the act was minor and a first/only offence, when I submitted an elligibility form I was denied saying no purchase or possession. This was the first time since the conviction I had ever considered purchasing a firearm and now it says I can't. After reviewing the laws, I'm quite baffeled. There seems to be a contradiction. The law states :

"Any person convicted of a misdemeanor violation for one or more of the following offenses is
prohibited from owning, possessing or having under his or her custody or control any firearm within
10 years of the conviction (Penal Code 12021(c)(1)):"

"Willful infliction of corporal injury of a spouse or cohabitant. (Penal Code 273.5.)"

Within 10 years? ... it's been almost 20. Can someone please help me find a resolution to this problem. I can't believe kicking my x-wife in the butt ONCE and telling her to leave after she was cheating on me would cause such a problem. Is there any way to go back to court, have this removed, or something that would allow me what I consider my RIGHT to own and use a firearm. I can't tell you how embarrassing it is to tell people who invite you hunting "sorry, but I can't touch a gun".

Please, someone tell me there is hope.

Thanks

bwiese
12-09-2007, 6:28 PM
If it's a misdemeanor (apparently), you should file for an expungement anyway.

Smokeybehr
12-09-2007, 6:38 PM
You can thank the Lautenberg Amendment (http://en.wikipedia.org/wiki/Domestic_Violence_Offender_Gun_Ban) to the GCA68 for that. A lot of people that plead out to a DV misdemeanor with a small fine, public service, or even a suspended sentence have found out about this. Even though it's an Unconstitutional Ex-Post-Facto law, it's screwed over a lot of people, including military and law enforcement members.

I agree with BWeise: Find out about getting an expungement.

Shotgun Man
12-09-2007, 6:45 PM
Nearly 20 years ago I was charged a Misd. offence for spousal abuse. Although the act was minor and a first/only offence, when I submitted an elligibility form I was denied saying no purchase or possession. This was the first time since the conviction I had ever considered purchasing a firearm and now it says I can't. After reviewing the laws, I'm quite baffeled. There seems to be a contradiction. The law states :

"Any person convicted of a misdemeanor violation for one or more of the following offenses is
prohibited from owning, possessing or having under his or her custody or control any firearm within
10 years of the conviction (Penal Code 12021(c)(1)):"

"Willful infliction of corporal injury of a spouse or cohabitant. (Penal Code 273.5.)"

Within 10 years? ... it's been almost 20. Can someone please help me find a resolution to this problem. I can't believe kicking my x-wife in the butt ONCE and telling her to leave after she was cheating on me would cause such a problem. Is there any way to go back to court, have this removed, or something that would allow me what I consider my RIGHT to own and use a firearm. I can't tell you how embarrassing it is to tell people who invite you hunting "sorry, but I can't touch a gun".

Please, someone tell me there is hope.

Thanks


You seem to have a good handle on the legal issue. If your DV misdemeanor conviction is >10 years old, you should be eligible. Does the DOJ BOF return on your eligibility request explain why? This seems to be something that could be resolved by calling them up or a letter. Certainly, as bweise suggests, as P.C. 1203.4 expungement is a good idea but should not be a condition precedent to you obtaining a firearm.

My feeling is that DOJ is looking at your conviction and thinking it is a felony. Certain DV crimes are so-called "wobblers", i.e. they can be charged as felony or misdemeanors. The record of your conviction may be unclear to the DOJ.

I would consider going to the court of your conviction and obtaining the record of your conviction, i.e., the sentencing minute order, the judgement of conviction, any transcript of your plea, etc. Once you obtain that, forward it to the DOJ. It should then be clear to them that you suffered a misdemeanor conviction only, and maybe this would cleared up.

I'm not a lawyer, and I don't claim to know what I'm talking about.

Good luck.

P.S. I've read Smokeybehr's explanation of the Federal Lautenberg (sp?) amendment, and I haven't not factored that into my analysis.

MissBehavn
12-12-2007, 12:35 PM
Thanks for the replies, when I recieved the personal eligibility check back, there was nothing as to the reasons why. Time permitting, I'll contact them for an answer. I'll also look into what you both said. Thanks. BTW... what's that in your P.S.? Also, as far as expungement, how does that work? Do I go back to court and retry the case and plea for it to be removed. Does the fact that it took me 18 years to get re-married and things are going well for us help my situation. My wife said she'd back me in court if necessary.

Again, thanks so much for the help and ideas.

Riodog
12-12-2007, 11:39 PM
Okay Legal Beagles, let's go deeper.
This is pc 12021(c)(1)
(c) (1) Except as provided in subdivision (a) or paragraph (2) of this subdivision, any person who has been convicted of a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, Section 171b, 171c, 171d, 186.28, 240, 241, 242, 243, 244.5, 245, 245.5, 246.3, 247, 273.5, 273.6, 417, 417.6, 422, 626.9, 646.9, 12023, or 12024, subdivision (b) or (d) of Section 12034, Section 12040, subdivision (b) of Section 12072, subdivision (a) of former Section 12100, Section 12220, 12320, or 12590, or Section 8100, 8101, or 8103 of the Welfare and Institutions Code, any firearm-related offense pursuant to Sections 871.5 and 1001.5 of the Welfare and Institutions Code, or of the conduct punished in paragraph (3) of subdivision (g) of Section 12072, and who, within 10 years of the conviction, owns, purchases, receives, or has in his or her possession or under his or her custody or control, any firearm 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. The court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this subdivision. However, the prohibition in this paragraph may be reduced, eliminated, or conditioned as provided in paragraph (2) or (3).

Now for the example: John Doe was arrested in 1975 for excessively spanking his son. He was charged with a misdemeanor, fined, and that was the end of it. He has always been a hunter, fisherman, reloader, etc., and through out the years has continued to buy firearms up to the present. Now along comes 1997 and this law is passed retroactively making it a crime for a misdemeanor/convict to own, purchase, possess, or have control of any firearm.

It was not illegal at the time he purchased the firearms, he was approved by the DOJ for his purchases.

What now?

Does he live in fear that the nazi gestapo comes beating at his door?
Does he turn himself in and confess his crimes?(now multiple-let's say 50).

Personally, I think this case is just begging to go to the SCOTUS.

Opinions please,
Rio

Riodog
12-12-2007, 11:50 PM
Just a quick ps to the above....."Even though it's an Unconstitutional Ex-Post-Facto law". True.

It's my understanding that an expungement will not restore your right to possess a firearm. However at the time of John Doe's conviction it was not a restriction.

This is a true example and at no time has John Doe been denied approval for a firearm. (unlike the case of Missbehavn).

Rio

Riodog
12-13-2007, 11:50 AM
TTT, com'n guys. I need an answer so I can decide whether to turn him in and collect the REWARD! lol:D
Rio

MissBehavn
12-13-2007, 10:21 PM
Sorry Riodog... I don't own a firearm, just looking to buy one or two. I haven't until just recently even tried. I'm former Military and think it's crap the way people think they can mess with other's freedom. This land isn't "free"...but rather a place you can't even spit on the road w/o a law about it. Too many laws to break and too many people not being repsponsible. Soon they'll say you can't buy a knife because it's a weapon and can be used to commit crimes. So, you don't think I can get this reversed? All I did was kick my wife in the butt (once) and tell her to leave. For what I'm going through, I guess I should have beat the snot out of her instead. Truth be told, I was railroaded in court by the DA and my Public "pretender" even told me to shut up. I had no help and anything I said didn't matter. I'm sick of being treated like a criminal. Being treated like this only makes a person want to become one. Sorry, just had to blow off some steam. So, if my conviction happend before 1996 shouldn't I be able to be excluded?

Smokeybehr
12-14-2007, 12:27 PM
Sorry Riodog... I don't own a firearm, just looking to buy one or two. I haven't until just recently even tried. I'm former Military and think it's crap the way people think they can mess with other's freedom. This land isn't "free"...but rather a place you can't even spit on the road w/o a law about it. Too many laws to break and too many people not being repsponsible. Soon they'll say you can't buy a knife because it's a weapon and can be used to commit crimes. So, you don't think I can get this reversed? All I did was kick my wife in the butt (once) and tell her to leave. For what I'm going through, I guess I should have beat the snot out of her instead. Truth be told, I was railroaded in court by the DA and my Public "pretender" even told me to shut up. I had no help and anything I said didn't matter. I'm sick of being treated like a criminal. Being treated like this only makes a person want to become one. Sorry, just had to blow off some steam. So, if my conviction happend before 1996 shouldn't I be able to be excluded?

Sounds like you had some bad counsel on this case. Too bad you can't go back and sue for misconduct and inadequate defense.

BWeise: Do you think this gentleman should talk to TMLLP, or one of the other firearms law attorneys about this? It might just be another good case to get Lautenberg tossed.

MissBehavn
12-17-2007, 7:49 PM
TMLLP? There actually are firearms attorneys? Let me at 'em. I'd love to speak with someone who might be able to give me hope. Not that anyone here hasn't, but you've all been quite honest. I'm truely sick of lawmakers making new laws to patch up mistakes....THEY MADE. Here's one that's completely stupid. In TN, it's against the law to shoot any animal from a moving vehicle, except for whales. WTF is that? In WWI income tax was imposed to support the war effort, it was to be terminated after the war, but some J/A said hey, we can make more money, let's not stop. Between taxes and stupid laws, where and/or when is it going to stop? I can understand to a bit wanting to control hand guns because they are easy to conceal, but telling me I can't own a shotgun or other rifle for hunting purposes, that's utterly STUPID. OK, maybe if I'd shot my wife, or threatend her with a gun, then maybe, but kicking her out of the house after F'n my friend...come on! A knife can be concealed and just as dangerous, how about a bow and arrow? Very deadly and very quiet. Soon they'll say I can't have that either. I know I keep repeating myself, but what can I do? Who can I talk to? How can I help people like me or others fighting the BS lawmakers?

Solidmch
12-17-2007, 8:07 PM
273.5pc is a felony

243e1 pc is the misd.

SteveH
12-18-2007, 6:44 PM
273.5pc is a felony

243e1 pc is the misd.

Correct. But in many cases where there are injuries, but they are not severe, the DA will file 273.5 as a misdemeanor. Even though the penal code lists it as a felony. I don't know if 273.5 is an official wobbler or not. But many times the DA will treat it that way.

MKE
12-18-2007, 6:53 PM
Within 10 years? ... it's been almost 20. Can someone please help me find a resolution to this problem. I can't believe kicking my x-wife in the butt ONCE and telling her to leave after she was cheating on me would cause such a problem. Is there any way to go back to court, have this removed, or something that would allow me what I consider my RIGHT to own and use a firearm. I can't tell you how embarrassing it is to tell people who invite you hunting "sorry, but I can't touch a gun".

Please, someone tell me there is hope.

Thanks

Go to the FBI NIC site for appeal instructions. Here's the site: http://www.fbi.gov/hq/cjisd/nics/nicsappeals.htm

Good luck and hope you can get this issue resolved.