Form 4473 question

[BarettaBob]

I have a question about form 4473.

A little background... I made a poor decision about 25 years ago that resulted in a simple assault (misdemeanor) charge. The victim was a girlfriend who lived with me at the time.

Since that time I have been a model citizen, husband and father. I have had no other legal issues and passed several employment background checks without any problems.

I currently own a pistol that I purchased from a private party, but I want to purchase a new pistol from a dealer which requires me to fill out a form 4473.

My question is how to legally and honestly answer question 11i - "Have you ever been convicted in any court of a misdemeanor crime of domestic violence?"

The definition of 11i on form 4473 states "...by a person who is cohabitating with, or has cohabitated with the victim as a spouse, parent or guardian of the victim..."

How should I legally answer question 11i?
Would my past mistake prevent me from obtaining a carry permit?
I live in Tennessee.

Thanks in advance.
BB

 

[NavyLCDR]

I would consult a lawyer and figure out what is on your record. If the conviction was for domestic violence, you are prohibited from owning firearms for life, it is a felony for you to possess the pistol you have now, even though at the time of your conviction it would not have resulted in the prohibition. You can thank Senator Lautenberg for that one.

This is the complete definition in 18 USC 921, Federal law:
(33)
(A) Except as provided in subparagraph (C), [2] the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal [3] law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
(B)
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

There is no subparagraph (C)

 

[morcey2]

You need to speak to a lawyer familiar with tennessee firearms laws before you do anything else. If you are a prohibited person, you just potentially admitted to a federal felony. It you would fail the background check to purchase a new firearm because of the conviction, you can't own a firearm at this point irrespective of how you acquired it.

Matt

 

[newfalguy101]

Since the crime of "domestic violence" didnt exist 25 years ago.............I would say NO.

course MY saying no doesnt mean much.............

 

[BarettaBob]

Thanks all for the quick response.

As I read it the law is specific to "current or former spouse, parent, or guardian of the victim".

A spouse is someone to whom you are married - correct? We were not married.

Or am I just picking nits?

BB

 

[NavyLCDR]

Since the crime of "domestic violence" didnt exist 25 years ago.............I would say NO.

course MY saying no doesnt mean much.............

Especially since the US Supreme Court in US v. Hayes, Argued November 10, 2008—Decided February 24, 2009, disagrees with you. The Supreme Court has ruled that the Lautenberg Amendment applies to persons whose convictions contain all of the elements of domestic violence, even though it wasn't domestic violence when convicted, and even though there was no firearms prohibition when the conviction occurred.

http://www.law.cornell.edu/supct/html/07-608.ZS.html

One of the major opponents to the Lautenberg Amendment were police officers because they were not exempted from this particular legislation like they are most other gun control laws.

 

[NavyLCDR]

I have a question about form 4473.

A little background... I made a poor decision about 25 years ago that resulted in a simple assault (misdemeanor) charge.

I just noticed you asked about a charge. Charges don't produce firearms prohibition except in the case of felony indictments. If you weren't convicted, a misdemeanor charge means nothing, especially from 25 years ago.

 

[BarettaBob]

I should have been clearer - I was convicted of simple assault. Fine and probation.
I still am not sure if the definition in the law of a 'spouse' includes someone to whom you are not married.

 

[morcey2]

I should have been clearer - I was convicted of simple assault. Fine and probation.
I still am not sure if the definition in the law of a 'spouse' includes someone to whom you are not married.

Either way, consult a lawyer. Nothing any of us tells you beyond that has any value at all.

Matt

 

[NavyLCDR]

I still am not sure if the definition in the law of a 'spouse' includes someone to whom you are not married.

"(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."

Cohabiting with a girlfriend would count as similarly situated to a spouse.

 

[BarettaBob]

Thanks Matt and Navy. I will consult my lawyer to see what my options are.

BB

 

[HorseSoldier]

Yeah, talking to a lawyer is going to be your best bet. Lautenburg is retroactive, and that has bit a number of people in the posterior in situations like you are describing. On the other hand, I've seen some military units finesse (and/or abuse) the system to protect servicemembers from having their careers ended by violations.

 

[bikemutt]

I second (third, etc) consulting an attorney versed in such matters. This is a particularly thorny area which has so many "it depends" only someone who knows all the rules can answer your question.

Either way though, 25 years is a long time ago. I suggest you request a copy of your FBI record, if one exists. You have a right to it, the cost is nominal, around $16 or so, plus the cost of a set of 'prints. If nothing else you'll be one step closer to answering your own question.

 

[Frank Ettin]

Consulting a lawyer is the appropriate course. Communications with your lawyer are confidential. What is said on the Internet is not. It is a bad idea to discuss your real life, personal, legal matters with strangers in public.

And on that note, there's no reason to continue this.