Spokane, WA based gun rights attorney Alan Green of the Green Law Office helps clients restore their gun rights and their ability to purchase and possess a firearm after both felony and misdemeanor convictions in Washington State. Contrary to intuition, it can often be harder to have your gun rights restored after a misdemeanor conviction than if you were convicted of a felony. A gun rights lawyer experienced in Washington State and federal gun laws can help you navigate the intricacies of the gun rights restoration process.
In Washington, the most common crime of domestic violence results in a conviction of Assault 4 – DV. Under Washington law, while you do not lose your civil rights, you do lose your right to possess a firearm after a conviction for Assault 4. The law states: “(2)A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm:(i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence (RCW 26.50.060, 26.50.070, 26.50.130, or 10.99.040); (emphasis added).”
Washington law also provides a mechanism for people convicted of felonies and misdemeanors, to have their gun rights restored: “if a person is prohibited from possession of a firearm under subsection (1) or (2) of this section and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under subsection (1) or (2) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:
(B) If the conviction or finding of not guilty by reason of insanity was for a non-felony offense, after three or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525 and the individual has completed all conditions of the sentence. (emphasis added).”
But, while you may have your gun rights restored in Washington State, you may still not be in the clear according to federal gun laws. Under a portion of the Federal Gun Control Act called the Lautenberg Amendment, the government is trying to curb gun violence among people convicted of domestic violence. The Lautenberg Amendment makes it a federal crime for anyone who has been convicted of “a misdemeanor crime of domestic violence” to possess a firearm. And while there is currently some literature and some case law out there that may lend support to the notion that rehabilitation of a person’s gun rights in state court operates to rehabilitate that person under federal law as well, the accepted interpretation of the law at this point is that it does not. This stems from the fact that when a person is convicted of misdemeanor Assault 4 – DV in Washington, they don’t lose all their civil rights – just their gun rights. So the courts reason that because they did not lose all their rights, they can’t have them restored. Not very solid logic, in my opinion, but there you have it.
So, are you out of luck if you have a misdemeanor Assault 4 – domestic violence in Washington when it comes to federal law? Thankfully, the answer is “not necessarily.”
The federal definition of “misdemeanor crime of domestic violence” is quite a bit different than the state definition of “domestic violence.” The state defines Assault 4 – Domestic Violence as the use or the threat of use of force against any “Family or household members” – meaning spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time,adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren. So, people who get in arguments with cousins or roommates can get slapped with a DV conviction.
The federal definition, however, is much narrower:
18 U.S.C. § 921(a)(33) (A): Except as provided in subparagraph (c), the term “misdemeanor crime of domestic violence means an offense that – (I) is a misdemeanor under Federal, State, or Tribal 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. The domestic relationship defined at 18 U.S.C. § 921(a)(33(A)(ii) limits the use of force element to be committed by a spouse, former spouse, parent or guardian of the victim, or where the victim shares a child in common, or where there was previous cohabitation by person similarly situated as a spouse, parent or guardian of the victim.
So, if you were convicted of misdemeanor Assault 4 – Domestic Violence in Washington, but the act that lead to your conviction does not fall within the definition of “misdemeanor crime of domestic violence” under the Lautenberg Amendment, then you can have your gun rights restored in Washington State and not be a prohibited person under federal law. The interplay between the state and federal gun laws can be very tricky, so make sure you hire an experienced Washington Gun Rights Attorney to help you figure it out. The Green Law Office in Spokane, Washington helps clients with complicated matters concerning firearms laws, gun rights and the restoration of your right to possess a gun for convictions occurring anywhere in Washington State – and for residents of Washington State who have convictions from other jurisdictions that prohibit them from purchasing or possessing a gun.
