Colorado Domestic Violence Gun Ban Law

By H. Michael Steinberg – Colorado Domestic Violence Defense Lawyer – Attorney

Colorado Domestic Violence Gun Ban Law Under Federal Law Strengthened By New Case – A San Diego man, Daniel Chovan, was angry that a misdemeanor domestic violence conviction from 1996 deprived him of his second amendment right to bear arms.  He filed suit in the ninth circuit federal court challenging the constitutionality of a federal law making it illegal for a person convicted of misdemeanor domestic violence to ever bear arms under the second amendment again for life.

The law in question and under constitutional attack was (and still is) United States Code 18 U.S.C. § 922(g)(9). The federal law, passed by Congress in 1996 to “combat” domestic gun violence has resulted in millions of citizens losing their right to bear arms.

United States Code 18 U.S.C. § 922(g)(9)

Under 18 U.S.C. § 922(g)(9), persons convicted of misdemeanor domestic violence crimes are barredfrom possessing any firearm for life. Section 922(g)(9) establishes two exceptions under which the statute will no longer apply:

(1) “if the conviction has been expunged or set aside”;

or

(2) if the offender “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).” 18 U.S.C. § 921(a)(33)(B)(ii).

History of United States Code 18 U.S.C. § 922(g)(9)

Originally passed to bar gun possession ONLY by those convicted of violent felonies, the law was amended and extended in 1996 to cover misdemeanor convictions of domestic violence.

Unlike Colorado, which has no method to seal – expunge a misdemeanor state conviction for a domestic violence “tagged” crime, Californians can get their convictions erased after they have completed their sentences AND persuaded the courts that they have “lived an honest and upright life” for a sufficient period of time.

The Facts of Chovan Are Simple and Familiar

The federal domestic violence gun ban was challenged by a San Diego man, Daniel Chovan, who was convicted in 1996 of assaulting his girlfriend in their mutual home. After more than a decade he attempted to buy a gun and was denied the right. Later, a new dv “complaint” was filed against him, the police went to investigate and they found several guns which they seized from his home.  He appealed.

Another case, decided in a 2008 U.S. Supreme Court ruling, held that “law-abiding, responsible citizens” have a constitutional right to possess and use guns in the home for self-defense. In that case, District of Columbia v. Heller, the U.S. Supreme Court held that the Second Amendment protects a responsible, law-abiding citizen’s right to possess an operable handgun in the home for self-defense.

The Holding Of Chovan And The Damage It Has Done To Second (2d) Amendment Rights

In a lengthy and complex decision, the Ninth Circuit Court of Appeals held, post Heller, that even a one-time perpetrator of domestic violence may no longer be considered the type of “law-abiding, responsible citizen” entitled to possess guns, based on evidence presented by the government.

The Court relied on “studies” showing that those who are considered “domestic abusers” have high rates of re-offending and often use firearms when committing their crimes and that if an invidual has been convicted of misdemeanor domestic violence assault, he or she is” likely to commit acts of domestic violence again and that, if they do so with a gun, the risk of death to the victim is significantly increased.’

A Colorado Criminal Lawyer’s View – H. Michael’s Take

Criminal attorneys in Denver, Colorado, have been criticizing the decision. This criminal lawyer in Denver believes that a federal lifetime ban on gun ownership for domestic violence misdemeanants violates the Second Amendment and that the Chovan court’s decision flies in the face of the Heller decision.

It is well known to experienced criminal attorney’s in Colorado and across the nation that when estranged wives and girlfriends call the police alleging threats of domestic violence- they are many tines false and motivated solely for reasons of vindictiveness.

Section 922(g)(9) was passed with good intentions… that guns were be kept away from domestic abusers, but the Court’s holding that the government interest extending the law to lifetime convictions – (and ignoring Heller). thus denying the right to prove an individual convicted of domestic violence can change and attain rehabilitation, is just wrong.

The important government interest of preventing domestic gun violence is not served by denying good citizens the right to bear arms, in Chovan’s case, more than 15 years after a misdemeanor conviction for dv.

The Restoration Of Gun Rights And Colorado Domestic Violence Cases

As noted above, Colorado does not have a method to restore gun rights in domestic violence convictions unless the conviction was for a municipal code domestic violence conviction.

The civil rights restoration exception under § 922(g)(9) provides legal mechanisms for which both misdemeanants and felons can qualify for restoration of their gun rights. These include pardon, expungement, and the setting aside of convictions.” In California, not Colorado, there exists a state based restoration process of civil rights that meets the requirements of the federal ban under 922(g)(9) and that process has been upheld by the Supreme Court as constitutional

In short, the fastest way to restore gun rights under federal law – would be to enact legislation in Colorado to give Colorado citizens the right to try to seal – expunge domestic violence and all other misdemeanor and felony convictions for that matter through a procedure that places in the hands of competent and elected officials the right to reverse and seal ALL misdemeanor and felony convictions more than 10 years old. Contrary to the Chovan court.