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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 23578
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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11 years ago I settled out of court with a misdemeanor

Customer Question

11 years ago I settled out of court with a misdemeanor charge of harassment with a Domestic violence enhancer charge. I had to do the 36 hours of anger management classes with a 6 months probation. Since I had this can I buy a gun? Thanks!
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.

Hello,

According to Federal law, a misdemeanor crime of domestic violence is one that:

"is a misdemeanor under Federal, State, or Tribal law; and

has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

If the facts of your old case do not correspond to the Federal definition, then you have not lost your state or Federal gun rights. Otherwise, because of the Violence against Women Act and the Lautenberg Amendment, the loss of your Federal rights is for life, and until the law changes you would not be able to have anything to do with a gun.

Customer: replied 1 year ago.
Can you tell me if Harassment falls under this definition?
Expert:  Zoey_ JD replied 1 year ago.

It might. Was the complainant an ex of yours that you lived with at one time or had a child with? Did you attempt to use force against her or threaten her with the use of a deadly weapon?

Customer: replied 1 year ago.
she was my ex-wife and we had a child together. She claimed that hit her but I did and she did tell the assistant attorney that I didn't.
Expert:  Zoey_ JD replied 1 year ago.

Sorry for the delay. I was asleep for the evening when your reply came through.

If the written criminal complaint alleged that you attempted to use force against her or threatened to use a deadly weapon on her and that charge was what you pled to, then you've lost your gun rights, regardless of what she may have later said to the DA. Otherwise, you would have your gun rights and if you were denied the right to purchase a weapon you could appeal the denial by showing that the alleged on the complaint do not make out the definition of a domestic violence misdemeanor under Federal law.

Customer: replied 1 year ago.
O.k. I meant to say I didn't hit her. I will look into the court papers and see what it says. Thanks for your help!!!
Expert:  Zoey_ JD replied 1 year ago.

It all depends upon what the facts say on the charge that you pled to, because you admitted guilt to resolve the case. If it doesn't say you attempted to hit or hit her or threatened force with a deadly weapon, then it does not conform to the Federal definition of a crime of domestic violence, which your state has also adopted.

That would mean that you could buy a gun because you have your 2nd amendment state and Federal rights. If, however, you are unable to pass the NICs check, you would have to appeal this by getting the paperwork from the court which would show that the facts underlying your conviction do not conform to the definition of a Federal domestic violence offense and that, therefore, you should still have your rights. You can learn more about the appeal here.

Customer: replied 1 year ago.
I found my papers. I pled guilty to Harassment 18-9-111 and 18-6-801. On the Harassment it states "Harassment - unspecified. Not sure if that give you any info or not? Thanks!!!
Expert:  Zoey_ JD replied 1 year ago.

Hi,

No it really doesn't help for this purpose. What you need to look at is the criminal court complaint on file with the court in your court papers. You can ask the clerk to make you a copy of that. It will specify what the state believed you allegedly did that caused them to press harassment charges against you. Those facts either will or won't conform to the Federal definition of domestic violence.