[tomy5219]

I was arrested for domestic violence. It was later dropped down to a disorderly conduct. Two years later I tried to buy my son his first hunting rifle and was denied due to the FBI check saying that since I was arrested for D.V. and then convicted of a lessor charge under that D.V. arrest, the D.V. fire arms restrictions still apply to me even though I wasn't convicted of the D.V. They are calling it a "Qualifying Misdemeanor" Does anyone know if this is right or can I appeal this ruling? This seems like a huge loophole in the system to cut down on gun owners. This was not explained to me at the time of sentancing and more than one other judge has told me that it doesn't sound right. Can anyone shed some light on this for me?

[Anonymous]

Pursuant to 18 USC 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 or State 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.

It sounds like they are asserting your domestic violence plea to be a qualifying misdemeanor under subsection (33)(A)(ii). Your remedies are either to establish that it was not a qualifying misdemeanor under that section, or to seek to have the conviction expunged or set aside in a manner consistent with subsection (33)(B)(ii).

[tomy5219]

I have been trying to get the problem solved by getting it expunged, however, in the great state of Ohio, there is a law that prohibits an expungment if you have ever in your life had a DUI. Which I do, back in 1992 in West Virginia. So it is looking like that route won't be possible.

Who do I talk to other than the FBI to find out if this is a qaulifying misd. under that section. Because according to them, it is.

Thanks for any help.

[Anonymous]

Why not start in West Virginia, to see if you can obtain a pardon and expungement in that state for the DUI, and then pursue your remedies in Ohio? Granted, it may be that Ohio refuses to acknowledge the WV pardon and expungement, but it seems like it's worth a shot.

As the FBI is interpreting the law for the purpose of its own records review system, their interpretation seems to be the one that counts. There may be a way to appeal, challenge, or dispute the initial ruling within the FBI. You may wish to consult with a lawyer about the possibility of litigating the issue, once your administrative remedies are exhausted, but that would likely be expensive.