dogtowntom, a misdemeanor charge of domestic violence simple battery or simple assault will result in a tpo/tro being issued against you barring you from not only buying a gun, but from possessing one. even though you haven't had your day in court or been convicted of anything..... just the accusation....read the Lautenberg amendment.
Convicted Felon Question
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dogtown tom
New member
Not necessarily.
I'm fully aware of the Lautenberg amendment.
But your original post wasn't about restraining orders was it?
Which is factually incorrect.
dogtown tom
New member
Yes, but the parties are acquaintances of mine and I'll not divulge details. Police showed up, arrested both individuals, released them on personal recognizance the next day, charges were dropped within a week.
Again, a restraining order is not part of the arrest and may be obtained by either party, usually the first to get before a judge.
Further, just because a "simple assault" occurs between family members, domestic partners, etc...…..does not mean the charge is automatically one of "domestic violence". Prosecutors have a great amount of leeway in how the crime is charged. I'm sure you've heard of plea arrangements where instead of a felony charge of Domestic Violence, the accused agreed to plea guilty to one of assault (a misdemeanor).
I've not misquoted you at all. In fact I quoted your entire, nearly seventy word sentence using copy and paste so I would not miss a single bit of the longest run on sentence in the history of The Firing Line and the internet as a whole, a sentence that causes the brain to expand and contract trying to follow a convoluted thought process that makes ones head hurt worse than a migraine caused by the kindergartner banging his new toy drum set.
dogtowntom, I appreciate your banter, however your version of facts do not line up with what happens in the real world in cases of domestic violence arrests. I appreciate your discretion in not revealing the details of your friend's situation, though I find that excuse convenient.
dogtown tom
New member
I know exactly what happens or can happen during a domestic violence incident. That doesn't make your post accurate. You made nonsensical claims, including the laughable "guilty until proven innocent" statement.
Read my post#18. I tear apart nearly every single thing you wrote in your first post. While a domestic violence CONVICTION is a prohibiting factor, you didn't make that claim, instead writing that a "claim/accusation" will strip someone of their Second Amendment rights...………..and that's simply not true.
Why not just call me a liar? If you actually read my post you would have read that CHARGES WERE NEVER FILED.
If you doubt me then do your own research.
Here, let me help: https://family.findlaw.com/domestic-violence/domestic-violence-orders-of-protection-and-restraining-orders.html
Pay particular attention to what elements a "restraining order" might contain. For example in some states a firearm prohibition is not automatic.
Then, go read the actual instructions to Question 11.h. on Qualifying Restraining Orders. Haven't done that have ya? Remember when I asked if you had read the Form 4473? Guess how I knew?
Then, go read the U.S Constitution and Bill of Rights and tell us where "guilty until proven innocent" is codified by any federal or state law.
Aguila Blanca
Staff
What difference do the names make? If the parties were arrested and then released without charges being filed or a restraining order having been issued, your statement has been refuted.JERRYS. said:
If one's spouse asserts a misdemeanor assault/DV, the result can be, and routinely is, a restraining order that disqualifies you from a transfer from a federal licensee until the order is dissolved, even though you've received no hearing and there has been no finding of guilt.
It isn't just felonies and it doesn't require the state to prove anything beyond a reasonable doubt.
It isn't just felonies and it doesn't require the state to prove anything beyond a reasonable doubt.
dogtown tom
New member
And...….someone else who hasn't read the instructions on the Form 4473.
Read the instructions to Question 11.h. on the Form 4473.
Then read this from ATF:
https://www.atf.gov/resource-center/docs/guide/protection-orders-and-federal-firearms-prohibitions-atf-i-33102/download
And this from the U.S Attorneys Office:
https://www.justice.gov/usam/criminal-resource-manual-1116-prosecutions-under-18-usc-922g8
What law are they talking about? That would be 18 U.S.C.§922(g)(8):
FLAT OUT 100% WRONG.
Read the instructions to Question 11.h. on the Form 4473.
Then read this from ATF:
https://www.atf.gov/resource-center/docs/guide/protection-orders-and-federal-firearms-prohibitions-atf-i-33102/download
And this from the U.S Attorneys Office:
https://www.justice.gov/usam/criminal-resource-manual-1116-prosecutions-under-18-usc-922g8
What law are they talking about? That would be 18 U.S.C.§922(g)(8):
No kidding?
Again, no kidding.
Once again, you hit your limits well before you've stop typing. You appear to function under the misapprehension that the instructions appended to a government form is rosetta stone unlocking the meaning of the law more generally. You will recall how upsetting it was to you to have strawmen purchases explained to you. Let's not do that again.
That is incorrect. Receiving notice of a hearing and having the opportunity to attend it is not the same as having your defense heard. Many restraining orders are issued ex parte even where all parties are given actual notice of the hearing. We try to have everyone heard, but that isn't always possible when everyone is in a hurry. It's the nature of the beast. A matter may be filed at 10AM with a hearing at 3PM with notice given sometime between.
That's an abnormal way to respond to a point you do not dispute, and illustrations of the emotional quality of your reaction don't improve it.
You may take pride in having read the instructions to a federal form, but against the scale of life's accomplishments it's modest. JerryS didn't articulate his point in the manner an attorney would, but then you didn't either. No need to destroy the courtesy conducive to conversation.
dogtown tom said:
That is incorrect. Receiving notice of a hearing and having the opportunity to attend it is not the same as having your defense heard. Many restraining orders are issued ex parte even where all parties are given actual notice of the hearing. We try to have everyone heard, but that isn't always possible when everyone is in a hurry. It's the nature of the beast. A matter may be filed at 10AM with a hearing at 3PM with notice given sometime between.
dogtown tom said:
That's an abnormal way to respond to a point you do not dispute, and illustrations of the emotional quality of your reaction don't improve it.
You may take pride in having read the instructions to a federal form, but against the scale of life's accomplishments it's modest. JerryS didn't articulate his point in the manner an attorney would, but then you didn't either. No need to destroy the courtesy conducive to conversation.
dogtown tom
New member
No, you're just wrong. I've provided proof that your comment "...a restraining order that disqualifies you from a transfer from a federal licensee until the order is dissolved, even though you've received no hearing..." is patently false.
I don't disagree with that, and that's not the statement you made above.
Pride has nothing to do with it. Reading the instructions is something I was taught in elementary school.
Your explanation was faulty, and not the least bit upsetting. Sorry.
Haha I'm surprised this thread is not locked yet 
..
The below is stated precluding special misdemeanors, ie domestic violence is treated like something different all together that prevents firearms ownership for life federally.
One thing to point out, the federal government does not really recognize the term "felony" in the same manner states do, who can all recognize the term differently, the metric used to preclude firearms ownership (or possession, or whatever you want to call it, not gonna debate that) is convicted of a crime carrying a sentence of > 2 years.
Now, some states a felony might not carry that for certain felonies, other states a misdemeanor might carry > 2 years. Soooo a convicted felon by state law very well might be able to own guns by federal measure and someone with a misdemeanor conviction might not.
States have piles of their own laws and without looking at the state you can't make any generalization. Some states preclude firearms ownership for life upon any minor drug conviction - and a NICS check will result in deny if the agent has their head screwed on right as they do checks with respect to state laws... Other states have the potential to restore firearms ownership for what would normally be considered a serious felony carrying a life sentence even, and the federal government is supposed to uphold those rights restorations provided the restorations restore the subjects right to hold public office and participate in jury duty (that is how the feds measure an expungement/annulment/sealing/whatever-the-state-calls-it feature of forgiveness for a crime - rights fully restored mean you can own guns by the state law plus are not barred from all other such potential civic duties).. If rights are restored legally that does not mean a NICS check will not deny them incorrectly, which is a problem w/ NICS.
Now states can have laws that violate fed laws, for instance in NH they say if you were convicted of a felony in another state that NH does not consider a felony, you are not barred from firearms ownership - so the state cannot use their laws to prosecute someone in that situations, but that does not mean the feds couldn't or that the person will pass a NICS check.
The feds do have laws on the books also to restore rights to people barred by crimes, but as has been stated, are not taking those applications for relief.
Personally I think the whole thing is a bit over-reaching. If someone goes 10-15 years passed the end of a sentence clean I think no matter what, they ought to be able to own guns again, I don't care if they murdered someone with a gun, people are often different people after that much time and really violent people are gonna get in trouble or get a gun if they want it anyway. Many states use the features of this federal law just to cut down on gun ownership, ie state of MA has made a first time DWI a 2.5 year sentence, with no relief possible for life, even though nobody has even done such time for the crime, as well as a slew of other crimes that shouldn't bar firearms ownership at all if you ask me.
.. The below is stated precluding special misdemeanors, ie domestic violence is treated like something different all together that prevents firearms ownership for life federally.
One thing to point out, the federal government does not really recognize the term "felony" in the same manner states do, who can all recognize the term differently, the metric used to preclude firearms ownership (or possession, or whatever you want to call it, not gonna debate that) is convicted of a crime carrying a sentence of > 2 years.
Now, some states a felony might not carry that for certain felonies, other states a misdemeanor might carry > 2 years. Soooo a convicted felon by state law very well might be able to own guns by federal measure and someone with a misdemeanor conviction might not.
States have piles of their own laws and without looking at the state you can't make any generalization. Some states preclude firearms ownership for life upon any minor drug conviction - and a NICS check will result in deny if the agent has their head screwed on right as they do checks with respect to state laws... Other states have the potential to restore firearms ownership for what would normally be considered a serious felony carrying a life sentence even, and the federal government is supposed to uphold those rights restorations provided the restorations restore the subjects right to hold public office and participate in jury duty (that is how the feds measure an expungement/annulment/sealing/whatever-the-state-calls-it feature of forgiveness for a crime - rights fully restored mean you can own guns by the state law plus are not barred from all other such potential civic duties).. If rights are restored legally that does not mean a NICS check will not deny them incorrectly, which is a problem w/ NICS.
Now states can have laws that violate fed laws, for instance in NH they say if you were convicted of a felony in another state that NH does not consider a felony, you are not barred from firearms ownership - so the state cannot use their laws to prosecute someone in that situations, but that does not mean the feds couldn't or that the person will pass a NICS check.
The feds do have laws on the books also to restore rights to people barred by crimes, but as has been stated, are not taking those applications for relief.
Personally I think the whole thing is a bit over-reaching. If someone goes 10-15 years passed the end of a sentence clean I think no matter what, they ought to be able to own guns again, I don't care if they murdered someone with a gun, people are often different people after that much time and really violent people are gonna get in trouble or get a gun if they want it anyway. Many states use the features of this federal law just to cut down on gun ownership, ie state of MA has made a first time DWI a 2.5 year sentence, with no relief possible for life, even though nobody has even done such time for the crime, as well as a slew of other crimes that shouldn't bar firearms ownership at all if you ask me.
Aguila Blanca
Staff
Sorry, but zukiphile is NOT wrong -- you are. Several states have now enacted so-called "ex parte" restraining order laws (my benighted state being one of them). The order is issued before any hearing, the cops show up and take all your guns, and a hearing must be held (in theory) within two weeks to give you an opportunity to argue for why you should get them back. Unless and until you succeed in having the order dissolved, you are prohibited from purchasing or possessing a firearm. Given the extreme liberal bias of most judges in my state, the odds against a restrainee getting an ex parte order dissolved at hearing are astronomical.dogtown tom said:
I have a friend who is going through this right now. His primary income since semi-retirement had been teaching NRA classes, so not only has he lost possession of his guns, he has also been effectively put out of work.
Form 4473 question 11h asks:
Yes, I know the instructions for 11h say "after a hearing." Doesn't matter. The legislature intended the law to prohibit possession of firearms instantly, before the hearing, and that's what it does. People subject to these ex parte orders are reported as prohibited, and they will not be allowed to purchase a firearm if they are foolish enough to attempt to do so.
Could they go to court to argue that under federal law they should be allowed to buy a gun? It would be costly and time consuming, but they might prevail. Winning that argument won't accomplish anything, because the state law still says they can't possess or purchase a firearm, and there isn't an FFL anywhere in the state who will transfer one to them.
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dogtown tom
New member
What part of FEDERAL do you not understand?
States can always be more restrictive than Federal law as long as they do not violate federal law.
But the discussion is FEDERAL prohibitive factors. and FEDERAL LAW says that the restraining order must meet certain criteria.
It may in a different state and it certainly would matter in federal law.
Again, that's IN YOUR STATE. What your state legislature intends isn't what FEDERAL LAW SAYS.
Don't be silly. It's pretty common knowledge that some states have drastically more restrictive laws regarding firearms than others. In California those laws get more restrictive every month...…….but that doesn't affect buyers in other states does it?
The Form 4473 has instructions for transferring silencers, even though they are prohibited in seven or eight states.
Hopefully the FFL is aware of his own state laws regarding firearms.
Some states classify AR lowers as handguns, requiring a different background check procedure, yet the Form 4473 must be completed as ATF describes in the instructions.
A specific case is not needed to prove that a tpo/tro is NOT automatically issued anytime there is an arrest for domestic violence.
I did an internet search using the terms:
arrested for domestic violence "no restraining order"
The first result of that search was a law firm's website with a discussion of domestic violence cases.
https://moralessparks.com/criminal-defense-domestic-violence-substance-abuse/
Here's quote from the website:
Since this particular section is talking about "measures you can take to attempt to reduce the severity of your sentence", it's clearly about a post-arrest situation. In fact in that section it specifically says: "You’re in a much better situation legally if you are out of police custody while your domestic violence charges are pending."
In other words, it is clear, that in at least one state, a person can be arrested AND charged with domestic violence without a restraining order being issued.
I did an internet search using the terms:
arrested for domestic violence "no restraining order"
The first result of that search was a law firm's website with a discussion of domestic violence cases.
https://moralessparks.com/criminal-defense-domestic-violence-substance-abuse/
Here's quote from the website:
If there is no restraining order or you are in consenting contact with the alleged victim, you can ask him or her to write an Affidavit of Non-Prosecution, which is a statement including a personal version of the event and a request not to file charges against you.
Since this particular section is talking about "measures you can take to attempt to reduce the severity of your sentence", it's clearly about a post-arrest situation. In fact in that section it specifically says: "You’re in a much better situation legally if you are out of police custody while your domestic violence charges are pending."
In other words, it is clear, that in at least one state, a person can be arrested AND charged with domestic violence without a restraining order being issued.
dogtown tom
New member
AGAIN, you guys need to read the Form 4473.
Specifically:
11a "Are you under indictment or or information in any court for a felony or any other crime for which the judge could imprison you for more than one year?
and
11h "Are you subject to a court order restraining you from harassing, stalking or threatening your child or an intimate partner or child of such partner?
and
11i "Have you ever been convicted in any court of a misdemeanor crime of domestic violence?"
These are separate and distinct prohibitions. The examples that you keep giving involve arrests for domestic violence with a restraining order issued. Just being charged with those crimes makes you a PROHIBITED PERSON until the charge is dropped or adjudicated. Meaning the buyer could not truthfully answer Que. 11b if he was under indictment "or information" for the crime.
What you are missing is that a restraining order can be issued WITHOUT an arrest. WITHOUT committing a crime of domestic violence. And that clearly requires what I posted above from ATF, the USAO and the US Code.
Specifically:
11a "Are you under indictment or or information in any court for a felony or any other crime for which the judge could imprison you for more than one year?
and
11h "Are you subject to a court order restraining you from harassing, stalking or threatening your child or an intimate partner or child of such partner?
and
11i "Have you ever been convicted in any court of a misdemeanor crime of domestic violence?"
These are separate and distinct prohibitions. The examples that you keep giving involve arrests for domestic violence with a restraining order issued. Just being charged with those crimes makes you a PROHIBITED PERSON until the charge is dropped or adjudicated. Meaning the buyer could not truthfully answer Que. 11b if he was under indictment "or information" for the crime.
What you are missing is that a restraining order can be issued WITHOUT an arrest. WITHOUT committing a crime of domestic violence. And that clearly requires what I posted above from ATF, the USAO and the US Code.
Aguila Blanca
Staff
Actually, the discussion, as posited in the opening post, is supposed to bedogtown tom said:
There is no mention of "federal" in the question under discussion. Properly speaking, since the question specifies a convicted felon and it is stipulated that he/she is prohibited, all the discussions about domestic violence restraining orders are also off-topic.
Aguila Blanca
Staff
So you are calling dogtown tom a liar, then.JERRYS. said:
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