misdemeanor domestic violence conviction and firearm possesion please read!

[Bob8408]

Hello to everyone here I'm new to this forum and this is my first thread. I hate to start my first thread with this but I've been reading a thread started by Firefighter about felons with Louisiana convictions getting their firearm rights back. I'm glad to see that some folks here who have paid their debt and complied with the law can enjoy their 2nd amendment right but there is an issue that wasn't discussed and it concerns MDV convictions. Oddly, anyone who has been convicted of MDV CAN NOT own firearms under federal law unless they have been pardoned, had their conviction set aside or expunged. If your only post conviction relief for MDV is that your civil rights were restored this will not satisfy 18 USC 921 (a) (20). The US Supreme Court upheld a federal gun possession conviction in Logan V. United States. The court stated: "The ordinary meaning of the word “restored”—giving back
something that has been taken away—does not include retention of something never lost." In other words civil rights can't be restored if they were never lost. Seems rediculous but the Supreme Court as well as other appeals courts can't look beyond the plain language of a statute when it is unambiguous and plain on it's face even if they disagree with it. The statute being 18 USC 921 (a) (20). Their inquiry must end at the plain language. This was critical in US v. Dupaquier 5th circuit court of appeals. The statute in that case being Article 1, Section 20 of the Louisiana constitution. Now in response to Logan, some states have changed their MDV law to make it a true misdemeanor by changing the length of the sentence to less than 1 year. They did this to avoid putting defendents at risk of violating 18 USC 922 (g). To be honest I don't know if Louisiana has changed their MDV law or not so if anyone reading this has a MDV conviction it is absolutely essential to check with your state of convition to see if they amended the sentence.

 

[Guate_shooter]

Welcome to the forum, and thanks for the good info, there is always somebody looking for an answer!

Also update your profile info so we know a little more about you

 

[Bob8408]

Welcome to the forum, and thanks for the good info, there is always somebody looking for an answer!

Also update your profile info so we know a little more about you

Thanks, I have done a lot of research for the last 5 years on both Louisiana state law and federal law regarding felons and firearm possession and I have acquired a lot of knowledge and insight on the subject. I'm not a lawyer however so to anyone reading my posts and replies please seek professional legal advice instead of relying solely on anything I state or anything anyone else states on this or any other forum. I do stress though to those who have Louisiana felony convictions and have regained their 2nd amendment right, to keep a check on LRS 14 95.1. The Louisiana legislature is always amending laws as well as the Louisiana constitution and they could very easily change the laws to restrict any and all felons from ever owning guns. It wound not surprise me a bit if they did. So keep a close watch on that law and 18 USC 921 (a) (20) too. They don't always make it known when they change something.

 

[yamatitan]

So how does that work out when you fill out the 4473. You still have to say you have been convicted of a felony. Can a FFl still sell you the gun or can you not buy from an ffl even though you can still legally own a firearm. Or does it not matter and you still get a proceed on the background check even if you have said youve been convicted of a felony?

 

[Bob8408]

So how does that work out when you fill out the 4473. You still have to say you have been convicted of a felony. Can a FFl still sell you the gun or can you not buy from an ffl even though you can still legally own a firearm. Or does it not matter and you still get a proceed on the background check even if you have said youve been convicted of a felony?

A good person to ask this is Firefighter. But I think there is a section on the form which explains that if you have had your rights restored or been pardoned you may answer no to that question. It's been a long time since I have read one of those forms though. I think the 4473 may be available in image format online. You may be able to find it with a google search.

 

[yamatitan]

A good person to ask this is Firefighter. But I think there is a section on the form which explains that if you have had your rights restored or been pardoned you may answer no to that question. It's been a long time since I have read one of those forms though. I think the 4473 may be available in image format online. You may be able to find it with a google search.

Now I remember I believe your right I think you can answer no ive remembered reading that somewhere now.

 

[firefighter9158]

Get a N.I.C.S number, that takes care of any questions, when purchasing a firearm. Also keeps you from getting delays.

 

[topgunz1]

LRS 14:35.3 Domestic Abuse Battery

§35.3. Domestic abuse battery

A. Domestic abuse battery is the intentional use of force or violence committed by one household member upon the person of another household member.

B. For purposes of this Section:

(1) "Community service activities" as used in this Section may include duty in any morgue, coroner's office, or emergency treatment room of a state-operated hospital or other state-operated emergency treatment facility, with the consent of the administrator of the morgue, coroner's office, hospital, or facility.

(2) "Household member" means any person of the opposite sex presently living in the same residence or living in the same residence within five years of the occurrence of the domestic abuse battery with the defendant as a spouse, whether married or not, or any child presently living in the same residence or living in the same residence within five years immediately prior to the occurrence of domestic abuse battery, or any child of the offender regardless of where the child resides.

(3) "Strangulation" means intentionally impeding the normal breathing or circulation of the blood by applying pressure on the throat or neck or by blocking the nose or mouth of the victim.

C. On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars and shall be imprisoned for not less than ten days nor more than six months. Imposition or execution of sentence shall not be suspended unless:

(1) The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved domestic abuse prevention program, and the offender shall not own or possess a firearm throughout the entirety of the sentence; or

(2) The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities and participate in a court-approved domestic abuse prevention program, and the offender shall not own or possess a firearm throughout the entirety of the sentence.

D. On a conviction of a second offense, notwithstanding any other provision of law to the contrary, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not less than seven hundred fifty dollars nor more than one thousand dollars and shall be imprisoned for not less than thirty days nor more than six months. At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless:

(1) The offender is placed on probation with a minimum condition that he serve fifteen days in jail and participate in a court-approved domestic abuse prevention program, and the offender shall not own or possess a firearm throughout the entirety of the sentence; or

(2) The offender is placed on probation with a minimum condition that he perform thirty eight-hour days of court-approved community service activities and participate in a court-approved domestic abuse prevention program, and the offender shall not own or possess a firearm throughout the entirety of the sentence.

E. On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars. The first year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

F.(1) Except as otherwise provided in Paragraph (2) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars. The first three years of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.

(2) If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth or subsequent offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

G.(1) For purposes of determining whether a defendant has a prior conviction for violation of this Section, a conviction under this Section or a conviction under the laws of any state or an ordinance of a municipality, town, or similar political subdivision of another state which prohibits the intentional use of force or violence committed by one household member upon another household member of the opposite sex presently or formerly living in the same residence with the defendant as a spouse, whether married or not, shall constitute a prior conviction. This determination shall be made by the court as a matter of law.

(2) For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section if committed more than ten years prior to the commission of the crime for which the defendant is being tried, and such conviction shall not be considered in the assessment of penalties hereunder. However, periods of time during which the offender was incarcerated in a penal institution in this or any other state shall be excluded in computing the ten-year period.

H. An offender ordered to participate in a domestic abuse prevention program required by the provisions of this Section shall pay the cost incurred in participation in the program. Failure to make such payment shall subject the offender to revocation of probation, unless the court determines that the offender is unable to pay.

I. This Subsection shall be cited as the "Domestic Abuse Child Endangerment Law". When the state proves, in addition to the elements of the crime as set forth in Subsection A of this Section, that a minor child thirteen years of age or younger was present at the residence or any other scene at the time of the commission of the offense, of the sentence imposed by the court, the execution of the minimum mandatory sentence provided by Subsection C or D of this Section, as appropriate, shall not be suspended, the minimum mandatory sentence imposed under Subsection E of this Section shall be two years without suspension of sentence, and the minimum mandatory sentence imposed under Subsection F of this Section shall be four years without suspension of sentence.

J. Any crime of violence, as defined in R.S. 14:2(B), against a person committed by one household member against another household member, shall be designated as an act of domestic violence.

K. If the victim of domestic abuse battery is pregnant and the offender knows that the victim is pregnant at the time of the commission of the offense, the offender, who is sentenced under the provisions of this Section, shall be required to serve a minimum of thirty days without benefit of suspension of sentence for a first conviction, upon a second conviction shall serve a minimum of six months imprisonment without benefit of suspension of sentence, upon a third conviction shall serve a minimum of two years with or without hard labor without benefit of probation, parole, or suspension of sentence, and upon a fourth and subsequent offense shall serve a minimum of four years at hard labor without benefit of probation, parole, or suspension of sentence.

L. Notwithstanding any other provision of law to the contrary, if the domestic abuse battery involves strangulation, the offender shall be imprisoned at hard labor for not more than three years.

Acts 2003, No. 1038, §1; Acts 2004, No. 144, §1; Acts 2006, No. 559, §1; Acts 2007, No. 101, §1; Acts 2009, No. 90, §1; Acts 2009, No. 245, §1, eff. July 1, 2009.

 

[topgunz1]

The restriction is only during the time of the sentence according to the statute. Once you meet all sentencing requirements you are done. It is only a felony on a third conviction or if the act involves strangulation as defined above.

An even better lesson is: DON'T BREAK THE LAW!

 

[buddy_fuentes]

The restriction is only during the time of the sentence according to the statute. Once you meet all sentencing requirements you are done. It is only a felony on a third conviction or if the act involves strangulation as defined above.

An even better lesson is: DON'T BREAK THE LAW![/QUOTE]

You covered it in your last sentence. Just walk away.

 

[Bob8408]

Get a N.I.C.S number, that takes care of any questions, when purchasing a firearm. Also keeps you from getting delays.

Firefighter do you know if showing a police officer the NICS number will let them know you are not prohibited. As I stated before I think that police officers need only to see that someone is a felon with firearm and they can arrest that person regardless of their legal status. I could be wrong about that though. Having a NICS number may let them know you can legally own a firearm. Have you ever ran into a problem wit a LEO where you had to show your NICS number?

 

[Bob8408]

LRS 14:35.3 Domestic Abuse Battery

Looks like a third offense would be a felony. The first and second offense would be true misdemeanors and not predicate offenses under federal or state firearm law.