Is an arrest for domestic violence enough?


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trickshot
December 19, 2009, 12:22 AM
I know this has been discussed before but can someone please explain this to me in plain English? I have read some conflicting things about this.

Does a person have to be convicted of domestic violence to lose their guns, or is just an arrest for domestic violence enough? Also does a restraining order automatically prevent a person from being able to own guns?

I'm asking this because my roommate and her friend both threatened to call the police on me after we had an argument a few days ago. I have never been arrested for anything in my life, but this got me wondering what would happen. It was just yelling, nothing physical, but it would be my word against theirs if she lied about it.

BTW, I'm now actively looking for another place to live.

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Dr.Mall Ninja
December 19, 2009, 12:28 AM
I could be wrong but im pretty sure you have to be convicted.

TexasRifleman
December 19, 2009, 12:31 AM
Convicted, not arrested. That said, a restraining order can also fall under Lautenberg.

cbrgator
December 19, 2009, 12:31 AM
Conviction or restraining order.

Echo9
December 19, 2009, 12:33 AM
A conviction for domestic violence will prevent you from buying a firearm. An arrest that does not result in a conviction won't.

And yes, a restraining order automatically prevents you from buying a gun.

trickshot
December 19, 2009, 12:59 AM
Thanks guys for helping me understand.

DMF
December 19, 2009, 01:14 AM
Is your "roommate" or the friend an "intimate partner?" The answer makes a difference.

trickshot
December 19, 2009, 01:19 AM
Is your "roommate" or the friend an "intimate partner?"

No. My roomate is an elderly woman whom I rent a room from in her house. Her friend is a young woman who comes in a couple hours a day to assist her.

DMF
December 19, 2009, 01:26 AM
Here is the reality regarding firearms disability due to a DV restraining order under 18USC922(g)(8):

"It is illegal for a person to possess a firearm while subject to a court order restraining such person from harassing, stalking, or threatening an intimate partner or the child of an intimate partner or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The protection order must have been issued following a hearing as to which the defendant had actual notice and an opportunity to participate. The protection order must also include a specific finding that the defendant represents a credible threat to the physical safety of the victim, or must include an explicit prohibition against the use of force that would reasonably be expected to cause injury."

http://www.ovw.usdoj.gov/docs/federal_violence.pdf


For a detailed analysis of what qualifies a misdemeanor crime of domestic violence for the purposes of 18USC922(g)(9), I suggest reading this:

http://www.usdoj.gov/olc/2007/atfmcdv-opinion.pdf

kwikrnu
December 19, 2009, 01:39 AM
It depends upon the State. Usually it has to be more than an ex-parte order of protection. For them to take away your rights to own or buy a gun you should of had a chance to represent yourself in front of the judge.

Leanwolf
December 19, 2009, 01:50 AM
TRICKSHOT - "BTW, I'm now actively looking for another place to live."

Make haste, with alacrity and dispatch!!!!

Once they (she) threatens to have you arrested because of an argument, etc., it will most definitely happen again.

Get away from those people!

L.W.

rmodel65
December 19, 2009, 04:05 AM
http://www.youtube.com/watch?v=6wXkI4t7nuc

iiibdsiil
December 19, 2009, 04:05 AM
A restraining order prevents you from buying a gun ever again? Or just while in effect?

Diggers
December 19, 2009, 05:06 AM
These issues are handled with state law. Often the laws are pretty similar from state to state BUT the specifics can be different.

IN CA domestic violence can only occur between people who are in a sexual relationship OR were in one at some point in the past. (ie ex-spouse or girlfriend/boyfriend) and it has to be physical to the point of leaving a mark on the victim.

Roomates or other family members DO NOT COUNT. Then its just a fight.


In CA a restraining order does require you to get rid of your guns in some manner, you can give them to family to hold for you for the duration of the order.

divemedic
December 19, 2009, 07:18 AM
In Florida:

Ex parte orders count.

"Family or household member" means spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.

TexasRifleman
December 19, 2009, 10:29 AM
No. My roomate is an elderly woman whom I rent a room from in her house. Her friend is a young woman who comes in a couple hours a day to assist her.

If that's the case I don't believe you could be charged with any "domestic violence" stuff here.

This sounds more like renter/tenant which would not be domestic.

jjk308
December 19, 2009, 11:24 AM
If you do get arrested or served a restraining order GET A GOOD LAWYER IMMEDIATELY!

It'll be the best money you ever spent and worth going into debt for because it can cause you trouble, jobs, and freedom for the rest of your life. Never accept any sort of plea deal either. With a decent defence almost all of these charges are dropped.

Yo Mama
December 19, 2009, 11:31 AM
I can't help saying this, especially with the population I work with:

LEAVE NOW!

I don't care what it takes, you need to go. I know you didn't ask for this advise, but it's what I'll give you anyway. You want to avoid all this, and there are other places to live. Even if you have to pay out your lease, do it.

jon_in_wv
December 19, 2009, 11:31 AM
I believe the misdemeanor crime of domestic violence also has to be punishable of up to1 year in prison. You don't have to GET a year but as long as the maximum is one year you are hit.

DMF
December 19, 2009, 12:17 PM
I believe the misdemeanor crime of domestic violence also has to be punishable of up to1 year in prison. You don't have to GET a year but as long as the maximum is one year you are hit.That is not correct.

http://www.atf.gov/firearms/faq/misdemeanor-domestic-violence.html#description

ohgrady
December 19, 2009, 01:24 PM
Illinois law (720 ILCS 5/12‑3.2) states it is a domestic battery if one:

"Causes bodily harm to any family or household member"
Or
"Makes physical contact of an insulting or provoking nature with any family or household member"

I am aware of instances where roommates have been charged with domestic battery after fighting with each other as they were "household members."

Teddyb
December 19, 2009, 02:57 PM
As it was explained to me by our department attorney, booking into a jail will get you an FBI number recorded on NCIC forever. The charges associated with the arrest and booking into any detention facility is also documented on the NCIC record. The adjudication is not recorded by the NCIC record.

We had an officer that was charged by an over zealous angry ex-wife with DV and he remained on duty but was restricted from fire arm purchases until he got the Ex-Wife to remove all allegations and complaints and a very large attorney bill to appeal the FBI booking number. I took him 4 years.

That said, The current criminal justice laws are not intended to control the criminals. They has already been proven useless.They are only intended to control honest and good people from becoming criminals.

Law enforcement today is only containment of the criminal element not control of eradication.That was given up on in the 1960's under the Kennedy and Johnson Administrations. Just my opinion for what you think of it.

Marty183
December 20, 2009, 03:36 AM
I concur that there must be a conviction for there to be an effect on your gun owning abilities...

gunnutery
December 20, 2009, 05:41 AM
236.2 Definitions.
For purposes of this chapter, unless a different meaning is clearly indicated by the context:
1. "Department" means the department of justice.
2. "Domestic abuse" means committing assault as defined in section 708.1 under any of the following circumstances:
a. The assault is between family or household members who resided together at the time of the assault.
b. The assault is between separated spouses or persons divorced from each other and not residing together at the time of the assault.
c. The assault is between persons who are parents of the same minor child, regardless of whether they have been married or have lived together at any time.
d. The assault is between persons who have been family or household members residing together within the past year and are not residing together at the time of the assault.
e. The assault is between persons who are in an intimate relationship or have been in an intimate relationship and have had contact within the past year of the assault. In determining whether persons are or have been in an intimate relationship, the court may consider the following nonexclusive list of factors:
(1) The duration of the relationship.
(2) The frequency of interaction.
(3) Whether the relationship has been terminated.
(4) The nature of the relationship, characterized by either party's expectation of sexual or romantic involvement.

This is from the Iowa state code (where the OP is from according to his location tag). Note the bold letters, especially "d." When you move from this residence, I wouldn't have any contact with her in the next year (or at all really, because if she claims stalking it'll be a no-contact order which will not allow you to have guns). To sum up the other question, in Iowa, a conviction OR a no-contact order will take away your right to own guns.

jon_in_wv
January 11, 2010, 10:18 PM
I believe the misdemeanor crime of domestic violence also has to be punishable of up to1 year in prison. You don't have to GET a year but as long as the maximum is one year you are hit.
That is not correct.

I was just going by what it says on the back of the ATF form when you buy a firearm. It's their form you would figure it would be correct.

hogshead
January 11, 2010, 10:26 PM
In NC when you are charged with DV you have to surrender your guns .You can not be in possesion of a gun untill you beat the charge in court.If you are caught with a gun, you are in violation and will be held with no bond untill your courtdate. So much for innocent untill proven guilty.

cjriedel
January 14, 2010, 02:38 AM
Is that the case for california? I'm worried that when I got charged and convinced to plead guilty for Assualt 4th deg for pushing my sister, in WA, that I lost all right. Does the law usually classify this kind of case as a fight or Dom. Violence?

leadcounsel
January 14, 2010, 02:56 AM
Convicted, not arrested. That said, a restraining order can also fall under Lautenberg.


This is pretty accurate. For clarification all that's needed is a MISDEMEANOR conviction, which is a pretty low threshold of a crime, and can be little more than a shouting match, a mean text message, even a gentle push. I know of a case where a man was convicted because he knocked the car keys out of his wife's hand because she was drunk and he didn't want her to drive and she wanted to drive so he prevented her from driving!

Also, sometimes arrest records are not correct on the NICS or similar systems and arrests end up being interpreted as convictions due to human errors.

Restraining orders often, but not always, prohibit firearm and ammo POSSESSION! There are typically temporary protective/restraining orders (TPO or TRO) in effect until the restrained party can have a hearing to determine whether it should be permanent. A judge will check a series of boxes, one of which relates to firearm possession. Typically judges err on the side of caution but not always.

It means that the restrained party must immediately turn over their guns to another party - which can be a huge pain in the butt!

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