As criminal defense lawyers we often run into the situation where a client is facing domestic violence charges that could also result in the loss of employment because their ability to possess a firearm is threatened.
This article is directed at helping lawyers navigate the dilemma where a client is facing domestic ic assault charges and needs to retain their ability to carry a gun for work purposes.
If you have been charged with domestic violence or are a lawyer looking for advice as to how you should advise a client call Aaron Boria at (734) 453-7806.
Boria has resolved numerous domestic violence cases with Not Guilty verdicts, dismissals, and even in cases where his clients did some wrong doing there cases were reduced or even dismissed.
Firearm Possession and Domestic Violence
There are indirect consequences of a domestic violence conviction in Michigan. In the legal field we call these collateral consequences. Federal law makes it illegal for a person convicted of domestic violence to carry a firearm.
The law that controls is found in United States Federal law, specifically, 18 USC 922(g)(9) and it states that a person who has been convicted of a misdemeanor crime for domestic violence is prohibited from possessing, shipping, transporting, or receiving any firearm or ammunition.
This prohibition even includes constructive possession, so if a person has been convicted of domestic violence and they have access and control over a firearm they would be in violation of the law.
For these reasons, anyone that works in law enforcement, military, or any position that requires a firearm needs to be especially careful when defending domestic violence charges. Again, you cannot carry a gun if you have been convicted of domestic violence.
If your client is convicted of domestic violence and continues to possess firearms involution of the law mentioned above they will face a federal felony for a violation of Firearm Possession Prohibition under 18 USC 922 that is punishable by ten years in prison and a fine of $250,000.00.
MCL 769.4a Domestic Violence and Guns
To get around violating federal law, a person could plea under the spousal abuse act known as MCL 769.4a. 769.4a allows a person to have possession of a firearm without violating federal law after a domestic violence matter because the matter is resolved without a judgment of guilt being entered. Combine that with 18 USC 921(33)(b)(ii), which says:
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.
Under 769.4a no conviction ever enters. Since no convictions enters the prohibition of gun possession never happens.
Domestic Violence and Deportation
As of September 30, 1996, a conviction for domestic violence does allow the federal government to deport a noncitizen from the United States. It is irrelevant how long the noncitizen has lived in the U.S., or if they have a visa or green card. It does not matter how long the noncitizen has held a visa or green card.
Disorderly Conduct – Disturbing the Peace
I recently resolved a matter where the complanant made multiple complaints in multiple jurisdictions. What about the cases where the defendant has already burnt their 4a eligibility? Remember 769.4a can only be used one time.
One option is disorderly conduct, but it cannot be under josling as that will likely result in a violation of federal law 18 USC 921. Other disorderly conduct charges may be a safer way to go federally, such as drunk and disorderly, but will result in a three year band on the CPL under Michigan law.
The remedy, if you can get it, is disturbing the peace under Michigan law, MCL 750.170. This will allow the defendant to comply with both state and federal laws and keep the possession of their firearm.
The information contained herein is Michigan specific. Attorneys should take the time to research all information on their own before making a decision as to how they advise their clients.
A quick overview of Plymouth lawyer, Aaron J. Boria of Boria Law Criminal Defense. Aaron J. Boria’s practice is strictly devoted to criminal defense. Boria appears all over the state of Michigan defending those accused of all crimes from drug possession to felony assault. The law firm takes on a limited number of cases per month to make sure that his clients receive the best representation possible. Boria has received many accolades including Super Lawyer, and the Client’s Choice Award from 2012 through the current year. Call (734) 453-7806 today to speak with Aaron about his practice.