Can I Own a Gun If I Was Convicted of Domestic Violence?
Assembly Bill 3129 amended California Penal Code §29805 regarding California’s gun control laws. The law used to state that anyone convicted of serious misdemeanor domestic violence would have a 10-year ban on possessing any firearms.
As of January 1, 2019, the law now prohibits a person convicted on or after January 1, 2019, of a misdemeanor violation of willful infliction of corporal injury upon a spouse, cohabitant, or another specified person (California Penal Code section 273.5) from possessing a firearm for the rest of their lives. If you were convicted before January 1, 2019, these changes do not apply to you.
What Counts as Possession of a Firearm?
Actual firearm possession is defined as being in actual control or having the weapon on your person, while constructive possession refers to knowingly having a firearm in an accessible place, such as in your car, home, or office. If violated, then the person can be charged with a violation as a misdemeanor or a felony. The DA decides based on criminal history and the facts and circumstances of the individual’s case.
Possible Penalties for Possessing a Firearm as a Prohibited Person
If you own, purchase, receive, or possess a firearm while prohibited by law, you could be charged and potentially face a sentence of 16 months, 2 or 3 years in state prison, and up to $10,000 in fines.
In many cases, there are options for restoring gun rights, so long as the underlying crime was not a felony involving a dangerous weapon or a domestic violence conviction. Unfortunately, domestic violence convictions result in a lifetime ban prohibited from restoration under federal law unless you receive a full and unconditional Governor’s pardon.
Do I Lose My Gun Rights if I’m Served With a Restraining Order?
In California, issuing a domestic violence restraining order does not automatically result in losing gun rights. However, specific provisions are in place to ensure the safety of all parties involved in domestic violence or stalking cases.
When a domestic violence protective order is served, the respondent is required to relinquish their firearms. They must surrender their firearms immediately upon request by any law enforcement officer or within 24 hours if no request is made. Failure to comply with this requirement constitutes a violation of the protective order.
Will I Have to Surrender My Firearms After a Domestic Violence Conviction?
Yes, if you have been convicted of a domestic abuse offense in California, you must surrender your firearms. Proposition 63, which California voters passed, mandates that individuals convicted of firearm-prohibiting crimes, including domestic violence offenses, must prove that they sold or transferred their firearms within specified timeframes after conviction.
Assigned probation officers and courts are responsible for verifying compliance with this requirement before the final disposition of the defendant’s case. Failure to surrender firearms as mandated by law may result in the court issuing search warrants to recover illegally retained firearms.
Will an Expungement Restore My Gun Rights After a Domestic Violence Conviction?
No, expunging a domestic violence conviction in California does not automatically restore your gun rights. Although California expungement law restores most rights lost after a conviction, the right to possess firearms is an exception to this rule. Even if your domestic violence conviction is expunged in California, it still counts for federal firearms restrictions. This means that you are still subject to a federal lifetime ban on possessing a gun.
However, you may be able to restore your gun rights through a California gubernatorial pardon. Not all pardons restore gun rights; it must either be a “full and unconditional” pardon or explicitly state that you are entitled to exercise the right to possess a gun.
But gubernatorial pardons in California are only available for felonies and specific misdemeanor sex offenses. Therefore, a pardon cannot restore federal gun rights after a misdemeanor domestic violence conviction.
Get Help From an Attorney
State law is constantly changing, so it is important to stay updated. If you are facing domestic violence charges, then you must understand ALL the rights you are waiving before making any decisions. Having a criminal defense attorney who will explain your options and guide you through the legal process helps make a difficult time manageable. Contact us at The Nieves Law Firm today for a consultation!