Under federal gun laws, any felony conviction results in a lifetime prohibition on firearm possession or use. Certain misdemeanor convictions trigger a firearms ban, and that includes domestic violence. While California state domestic violence convictions last ten years create a 10-year gun ban, the federal ban is permanent – and federal law always trounces state law.
In addition, anyone under a restraining order is not allowed to own firearms.
Under California law, however, a defendant doesn’t have to be convicted of domestic violence charges to lose gun rights – a charge alone suffices. California’s burden of proof in domestic violence cases is so low that thousands of people – overwhelmingly men – are unfairly losing not only their gun rights, but most of their other rights as well.
A misdemeanor conviction for domestic violence may also mean a sentence of up to a year in county jail, a fine of up to $6,000 and mandated counseling.
Domestic Violence in California – CA Penal Code 243(E)(1) and PC 273.5
In California, the definition of domestic violence pertains to far more than just physical abuse. Domestic “violence” under CA law includes verbal, emotional or mental abuse. While California’s domestic violence criminal charges, PC 243(E)(1) and PC 273.5 both require some kind of physical touching, a domestic violence restraining order can be secured against someone in civil court and, if granted, you will lose your gun rights.
Another bad factor here is that because restraining orders are handled in civil court, you don’t have the right to a jury, just a judge and 99% of the time in my experience, judges hand out restraining orders like candy to children on Halloween.
California domestic violence laws also prohibit “destroying someone’s personal property.” So, vandalism, if committed against a family member or a former romantic flame, can be charged as domestic violence. Also, through an EPO, a judge can order a defendant not to stalk, threaten, harass, annoy etc. the protected party.
So while you can’t be convicted under domestic violence for just words (unless it’s a criminal threat), you could be found in violation of a court-issued protective order to not threaten, stalk, harass, or annoy etc.
With such an all-encompassing definition, there probably isn’t a person on the planet who wouldn’t qualify as an abuser or victim at some point in their life. Fortunately, most people aren’t going to call 911 and claim abuse over minor spats or name-calling.
Most people recognize that domestic violence is a serious issue with life-changing consequences, and don’t make such claims lightly. However, “most people” does not include everybody.
The Freaky Ex-Factor – Formal Charge Means Loss of Gun Rights
Your mother or friends may have warned you about getting involved with the freaky partner. Love is blind, and those in love don’t take heed of early warning signs. Once you realize you’re involved with someone who is not wrapped too tight, things can head south quickly.
You want out, and freaky partner doesn’t want you to leave. Or, you have left freaky partner for someone else. Freaky Ex wants revenge, and what better method than a domestic violence accusation? Freaky doesn’t have to claim physical assault, because that requires some evidence.
Instead, he or she can accuse you of mental or emotional abuse. Formal charges most likely means your guns are gone.
Spouses, Cohabitants and People You Dated – Domestic Violence Applies to All
Here’s where even a short-time freaky factor can rear his or her bizarre head. Domestic violence pertains to those in the following relationships:
- Separated or divorced
- Former cohabitants
- Mother or father of a child
- Closely related
- Dating or used to date
It’s that last category that can bring forward the true freaks. Long-term dating is one thing, but what is a true definition of “dating or used to date?” A dinner out after which “Person A” realized they never again wanted anything to do with “Person “B”? A one-night stand that one party hoped would become something else, so they seek revenge?
A brief encounter with an emotionally unbalanced individual can ruin your life.
False Accusations – Not Just Freaky Exes, Frequently in Divorces
False accusations of domestic violence aren’t solely the province of the freaky. Actually, false accusations occur most often during divorce proceedings. California law states that both parents should have equal custody of their children.
If a wife doesn’t want her ex-husband to have joint custody, the easiest way to make sure she’s the sole custodian is by accusing him of domestic violence.
The result is a restraining order, loss of visitation rights, loss of property and a terrible stain on the reputation. Losing guns is the least of it – there’s a good chance the falsely accused will lose his job.
Recantations by “Victim” – Charges Not Necessarily Dropped
A good percentage of domestic violence accusers recant their accusations, but that often does nothing to help the accused. A recantation does not drop the charges, in fact it happens so often that the prosecution team and judge are expecting it.
Prosecutors have a higher conviction percentage in cases where the accuser comes to court and admits they were lying than in cases where the accuser comes to court and stands by their statement to the police! Once charged, the investigation continues, as a post-OJ California takes domestic violence charges very seriously.
Meanwhile, until – and if – charges are officially dropped, the accused cannot have guns.
What’s the solution? False allegations are rarely prosecuted (prosecuting a person for making those false allegations), and that has to change. When people realize there are serious consequences for making up stories about domestic violence, the number of phony accusations will drop.
Perjury already exists as a crime punishable as a misdemeanor or felony – let’s see arrests and prosecutions when these horrible lies about domestic violence are exposed.
If you or someone you know is facing false or exaggerated claims of domestic violence or losing gun rights for the same reason, the firearm and domestic violence defense lawyers at Tully-Weiss know there are two sides to every story. We’re aggressively on your side from moment one. There is ALWAYS a defense – give us a call to learn your rights.
Contra Costa 925.229.9700 | Alameda 510.269.9227 | North Cal 530.776.0840 or Connect by Email.