Federal Firearm Offenses

January 1, 2000

Jennifer DeCarli

These laws were enacted through the 1996 Amendments to the Gun Control Act of 1968

1.  Possession of a firearm while subject to a Protection Order 18 U.S.C. Section 922(g)(8)

It is unlawful for any person to possess a firearm who is subject to a court order that:

• was issued after the person received actual notice and the person had an opportunity to participate AND
• restrains such person from harassing, stalking, or threatening an intimate partner or child of such intimate partner or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child AND
• includes a finding that the person represents a credible threat to the physical safety of such intimate partner or intimate partner's child OR
• explicitly prohibits the use, attempted use or threatened use of physical force

Important Points:

The OP must restrain such person from harassing, stalking or threatening behavior AND explicitly find that the person represents a credible threat to the person's physical safety OR explicitly prohibit the use, attempted use or threatened use of force

For New York State orders, as long as the box stating the respondent must refrain from assault, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against the victim is checked, the order should comply. Arguably this box meets the law's requirements that the order must restrain such person from harassing, stalking, or threatening an intimate partner and it explicitly prohibits the use, attempted use or threatened use of physical force. However, it is advisable to check both the stay away and refrain from boxes though, unless the victim specifically requests just a no offensive conduct order.

There is an official use exemption (18 U.S.C. Section 925) - meaning this restriction does not apply to firearms issued to a law enforcement officer or military personnel as long as the officer is on duty. On duty should be interpreted to mean only while the officer is at work. There is debate on this issue though.

2.  Transfer of a Firearm to a Person Subject to an Order of Protection - 18 U.S.C. 922(d)(8)

It is unlawful for any person to knowingly transfer a firearm to a person subject to an order of protection that:

• restrains such person from harassing, stalking or threatening
• an intimate partner or the child of an intimate partner

Important Points:

A violation of this section must be knowing - may be difficult to establish knowledge on the part of the supplier

There is an official use exemption (18 U.S.C. Section 925) - meaning this restriction does not apply to firearms issued to a law enforcement officer or military personnel as long as the officer is on duty.

3.  Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence - 18 U.S.C. Section 922(g)(9)

It is illegal for a person to possess a firearm after a conviction of a qualifying misdemeanor crime of domestic violence.

Important Points:

• retroactive statute
• a qualifying misdemeanor must have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon
• due process requirements must be met
• a person may be able to still possess a firearm if the conviction has been expunged or set aside
• the official use exemption (18 U.S.C. Section 925) does not apply to this section

4.  Transfer of a Firearm to a Person Convicted of a Misdemeanor Crime of Domestic Violence - 18 U.S.C. 922 (d)(9)

It is illegal to transfer a firearm to a person convicted of a misdemeanor crime of domestic violence

Important Points:

• the violation must be knowing
• the official use exemption (18 U.S.C. Section 925) does not apply to this section