FAQ: Colorado Criminal Law: Understanding the Impact of FEDERAL FIREARMS LAWS AND BRADY FINDINGS in Colorado Domestic Violence Cases
The 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The intended effect of this new legislation is to extend the firearms ban to anyone convicted of a “misdemeanor crime of domestic violence.
Colorado Protective Orders and Domestic Violence Cases as Affecting Gun Rights
It is a federal crime for persons subject to qualifying protective orders to possess firearms or ammunition. In addition to Family Abuse Prevention Act (FAPA) Restraining Orders, firearms restrictions may apply to orders issued pursuant to the Elderly Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA), civil Stalking cases, and pretrial release conditions and probation conditions in criminal cases.
To qualify under 18 USC §922(g)(8), a protective order must
1) Have been issued after a hearing of which respondent/defendant received actual notice and at which respondent/defendant had an opportunity to participate;
2) Restrain respondent/defendant from harassing, stalking, or threatening an intimate partner of respondent/defendant or a child of the intimate partner or respondent/defendant or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or the partner’s child; and
3) Include a finding that respondent/defendant represents a credible threat to the physical safety of the intimate partner or child or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.
Federal law defines “intimate partner” for purposes of §922(g)(8) as a spouse or former spouse of respondent/defendant, a person who is a parent of the child of respondent/defendant, or a person who cohabits or has cohabited with respondent/defendant2. 18 USC §921(a)(32).
The federal prohibition lasts for the life of the protective order. 18 USC §922(g)(8).
Law enforcement officers and military personnel are partially exempted from the restriction in 18 USC §922(g)(8) in that they are permitted to use a service weapon in connection with that governmental service. 18 USC §925(a)(1). This exemption is often referred to as the “official use exception.”
Under 18 USC §922(d)(8), it is a federal crime to sell or otherwise dispose of a firearm or ammunition to a person if the transferor knows or has reasonable cause to believe that such person is subject to a qualifying protective order.
“Brady findings” are judicial findings to indicate that the terms of a protective order or a misdemeanor conviction may disqualify a respondent or defendant from possessing or other use of firearms and ammunition under federal law; document is labeled “Federal Firearms Findings (Brady)” and often is called a “Brady certificate.”
Although the term “cohabit,” within the meaning of “intimate partner,” is not defined, the word is sufficiently precise in ordinary and common meaning. U.S. v. Chapman, WL 2403791 (W. Va. 2010). “Cohabit” implies a sexual relationship. See Webster’s II New College Dictionary 218 (2001).
Exclusions: convictions that have been expunged, set aside, or where defendant was pardoned or had civil rights restored, unless preserved by a state or federal judge.
Misdemeanor Crimes of Domestic Violence in Colorado
18 USC §922(g)(9) makes it a crime for persons who have been convicted of qualifying misdemeanor crimes of domestic violence to purchase, receive, ship, transport, or possess firearms and ammunition. This prohibition is a lifetime ban. A qualifying “misdemeanor crime of domestic violence” (MCDV) is defined by 18 USC §921(a)(33) as an offense that is a misdemeanor under state, federal or tribal law and:
1) Has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon;
2) Is committed by a current or former spouse of the victim; parent or guardian of the victim; a parent of the victim’s child; a person who is cohabiting or has cohabited with the victim as a spouse, parent or guardian; or a person similarly situated to a spouse, parent or guardian of the victim;
3) Defendant was represented by counsel or knowingly and intelligently waived counsel; and
4) If defendant was entitled to a jury trial, the case was tried to a jury or defendant knowingly and intelligently waived the right to jury trial.
Note that the prohibition of 18 USC §922(g)(9) is specifically excluded from the official use exception. 18 USC §925(a)(1). Thus, a member of the armed forces or a law enforcement officer who has a qualifying misdemeanor conviction is not able to possess a firearm or ammunition, even while on duty.
Under 18 USC §922(d)(9), it is a violation of federal law to sell or otherwise dispose of any firearm or ammunition to any person if the transferor knows or has reasonable cause to believe that such person has been convicted in any court of a misdemeanor crime of domestic violence.
Restoration of Gun Rights in Light of the Lautenberg Amendment
If a Defendant accepts a plea allergy agreement involving a diversion or deferred type plea that is later withdrawn after compliance with the plea agreement – and the case is then dismissed under the terms of the agreement THEN – under Federal Law – he or she has not been CONVICTED.
AGAIN – There is no conviction for an act of domestic violence as the plea was withdrawn and the case dismissed.
While a later expungement and – or sealing of the record will not stop the State or Federal authorities from learning about the case (as they ALWAYS have access to the court records even when expunged or sealed) … the fact that it was sealed under State law means the case is a nuliity and gun rights are restored.
The definition of ‘convicted’ can be found in the chapter 18 U.S.C. § 921(a)(33)(B)(ii) and has exceptions:
(33) (B) (i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case;
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either (aa) the case was tried by a jury, or (bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
Therefore, if a person was represented by counsel, waived that right, AND, the person was entitled to a trial by jury, but also waived that right, the person shall not be considered to have been convicted if the conviction was expunged or set aside or had his civil rights (to bear arms) restored, UNLESS the further order of the court permanently revokes that right
The Brady Act
In 1993, Congress enacted the Brady Handgun Violence Prevention Act (Brady Act). Public Law 103-159 (1993). It requires all federally licensed gun dealers to obtain a criminal background check of firearm purchasers before completing a sale. 18 USC §922(t)(1), et seq. In most cases the check is made through the National Instant Criminal Background Check System or “NICS,” which is made up of several computer databases managed by the FBI. During a background check, the FBI will search databases to determine whether the sale of the firearm would violate state or federal laws. The FBI search is limited to three business days.
If no state or federal prohibitions are found within three business days, the sale will be allowed to take place.
The NICS Improvement Amendments Act of 2007
The NICS Improvement Amendments Act of 2007, Public Law 110-180 (2008), requires states to provide complete information to NICS on persons prohibited from receiving, possessing, or purchasing firearms. States must comply to avoid a match requirement on certain federal grants.
The Federal Law Requires – FIREARMS NOTIFICATION
Violence Against Women Act (VAWA) Notice
The Violence Against Women Reauthorization Act of 2005 (VAWA), 42 USC § 3796, requires as a condition of eligibility for VAWA grants that the state certify that its judicial and administrative policies and practices include notification to domestic violence offenders of the requirements of the Brady firearm laws and any applicable related federal, state, or local firearms laws. Failure to notify in at least 90% of Colorado’s domestic violence cases will cause Colorado to lose VAWA STOP grant funds.
Enforcement of Orders Between States – INTERSTATE FULL FAITH AND CREDIT
VAWA includes full faith and credit provisions that require enforcement of protection orders across jurisdictional lines. Codified at 18 USC §2265-2266, these provisions require states to recognize and enforce valid protection orders issued in any jurisdiction in the United States. Full faith and credit provisions apply to explicit firearm restrictions in protection orders and require that such restrictions be enforced even if the enforcing jurisdiction does not authorize judges to restrict firearm possession.
A protection order is entitled to full faith and credit if the order was issued by a state, tribal, or territorial court, and the court had jurisdiction over the parties and subject matter under the laws of the state, tribe, or territory, and the person who is restrained was given reasonable notice and an opportunity to be heard. In the case of ex parte orders, notice and opportunity to be heard must be provided within the time required by the issuing court’s laws, and in any event within a reasonable time after the order is issued.
These orders must be enforced even if the order is not registered in the enforcing state and even if a hearing was not held after the ex parte order was issued.
The issuing jurisdiction determines whom the order protects, the terms and conditions of the order, and how long the order remains in effect. The enforcing jurisdiction determines how the order is enforced, the arrest authority of the responding law enforcement agency, detention and notification procedures, and penalties for violations