By Attorney James Czarnecki|Czarnecki & Taylor PLLC|NOV 3, 2022
From the moment you are charged with domestic violence, your gun rights are restricted by Michigan law. If you are facing a domestic violence charge or have a PPO issued against you, your ability to purchase, carry, transport, a firearm is strictly prohibited.
A Michigan domestic violence conviction eliminates your ability to possess a gun. You will lose your CPL. Also, it will be harder for you to purchase a firearm in the future. If you live in a house with someone who owns firearms, you cannot stay there as long as the guns are present.
The restriction on your gun rights does not depend on guilt or innocence, as long as you have charges of domestic violence pending against you. Again, if you have Concealed Pistol License (CPL), it will be suspended until your case is closed.
What is a Michigan domestic violence charge?
Michigan law makes it a crime to assault your spouse, significant other, your kids, and your parents. Learn more about a domestic violence charge. You can also be charged with domestic violence if you assault someone like your roommate or anyone related to you by blood or marriage. An assault means attempting to put another person in fear of an immediate attack. The victim doesn’t have to sustain an injury; the threat itself is what constitutes the offense.
Michigan’s definition of domestic violence is quite broad and can be found at MCL 750.81: “…an individual who assaults or assaults and batters his or her spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household, is guilty of a misdemeanor …”
A Michigan domestic violence conviction will have serious ramifications on your life. A domestic violence charge can impact your family relationships, your employment, and even where you are allowed to live. Lastly, since this is the focus of this article, a Michigan domestic violence conviction will eliminate your ability to own a gun.
Michigan domestic violence conviction and gun rights.
Under Michigan and federal law, you cannot own or possess any firearm with a domestic violence conviction. If you are charged with domestic violence, finding an experienced criminal defense attorney to expertly handle your case is key to protecting your right to own or possess a gun.
The Lautenberg Amendment to the Gun Control Act of 1968 became effective 30 September 1996 defines domestic violence as any state or federal misdemeanor that “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.”
A qualifying conviction under the amendment consists of two parts; (1) a misdemeanor domestic violence crime, and (2) a conviction. The domestic violence charge must include the use or attempted use of physical force, or the
the threatened use of a deadly weapon.
Under federal law, an offense is considered domestic violence when the defendant is the current spouse, the former spouse, the parent, or the guardian of the victim. The offender can be someone who shares a common child with the victim, cohabitates or used to cohabitate with the victim, or is similarly situated to a spouse, parent, or guardian of the victim.
Next, the defendant must be convicted of domestic violence through any of the
following: a state court or federal court. However, a deferred prosecution or diversion in a state or federal court, or convictions that are later set aside or expunged will not count.
Note that many misdemeanor convictions prevent a person from obtaining a CPL. Your right to obtain a CPL can be denied for a period of three to eight years depending upon the specific conviction. The law can be found here.
The reality is that a Michigan domestic violence and gun rights are directly related. A conviction will eliminate your ability to own or possess a gun under state and federal law. That means you cannot legally have a handgun even if it is stored unloaded and locked in the trunk of your car while you are traveling from home to work or target shooting with friends. You will not be able to hunt with a rifle. Your attorney must be fully aware of the interplay between gun ownership and domestic violence charges.
Federal law is quite clear. The Domestic Violence Prevention Act of 1994 prohibits gun ownership by anyone convicted of a domestic violence misdemeanor pursuant to 18 United States Code § 922(g)(9). It bears repeating, any Michigan domestic violence conviction will eliminate your ability to own a gun. Again, this includes keeping a firearm of any kind in your home for self-defense or even hunting.
If you attempt to purchase a firearm from a Federal Firearms Licensed dealer, Form 4473, Line 11(i) asks if the purchaser has “ever been convicted of the misdemeanor crime of domestic violence.” If you answer “yes,” your purchase will be denied.
When people hear about someone’s rights to own or possess a gun being eliminated they often assume that this individual is only prohibited from owning handguns, however; people may forget that there are many firearms that do not fall under the handgun category. The most common examples include shotguns and rifles.
Many criminal defense attorneys do not appreciate the relationship between state convictions and firearm ownership under federal law. This misunderstanding can wrongly lead to the loss of your ability to own or possess a gun. This makes it critical that you consult with a criminal defense attorney to obtain professional advice on how to handle your Michigan domestic violence charge.
If convicted of a Michigan domestic violence charge the court will order that the individual cannot own, use, or possess any firearms, ammunition, or explosives for a minimum of five years. Even if the misdemeanor is dismissed, there is still an obligation under federal law that prohibits possession of firearms by anyone who has been restrained by court orders for domestic violence offenses.
Since a Michigan domestic violence conviction will eliminate your ability to own a gun you should consult with an experienced criminal defense attorney.
Can I apply for a CPL with a PPO against me?
No. You cannot apply for a CPL if you have an PPO against you. Also, if you are a current CPL holder, the gun board will send you a letter informing you that your CPL is suspended.
Can I apply for a CPL if I have a domestic violence conviction?
No. Michigan law prohibits you from applying for a CPL for 8 years from the date of your conviction. However, that has little meaning. You still will not be able to get a CPL with a domestic violence conviction because of the federal law restrictions as explained earlier in this article.
With a domestic violence conviction, you cannot get your federal firearm rights back unless you expunge your conviction.
What happens if you violate the restrictions?
If you are convicted of violating any of the domestic violence restrictions on gun possession in Michigan or under federal law for ,there may be severe consequences including fines, jail time, and possibly even the loss of your right to own a firearm in the future.
Under Michigan state law, it is illegal for individuals with domestic violence convictions to purchase or possess a firearm. Those convicted of breaking the PPO and domestic violence restrictions laws will face a felony with a sentence of up to 5 years in prison and fines up to $2,500.
In addition to the consequences at the state level, individuals who are convicted of violating 18 U.S.C. 922 (A)(B) and (G) can face penalties imposed by the federal government. These penalties may include fines and/or imprisonment for up to 10 years depending on the specifics of your case.
Individuals who are convicted at the federal level may also be prohibited from purchasing or owning a firearm in the future, even if they would not be subject to these restrictions under state law.
If you have been charged with violating Michigan state or federal laws related to gun possession and domestic violence, it is important to seek legal representation as soon as possible. An experienced criminal defense attorney can help you navigate the legal process and work to minimize any potential consequences that you may face.
What can be done to protect your Second Amendment rights?
Since a Michigan domestic conviction and gun rights are related, hiring an expert criminal defense attorney is critical if you face a Michigan domestic violence charge under state law or local ordinance laws and want to protect your Second Amendment rights. An experienced criminal defense attorney can use different strategies to protect your criminal history and gun ownership rights. If you have been denied the purchase of a firearm, that would seem to be the end of the story for your Second Amendment rights. However, it is just the beginning.
One way our office can protect our clients’ rights to own and purchase a gun through plea negotiations. A carefully crafted plea deal can avoid the loss of your Second Amendment rights. For example, Michigan Compiled Laws sec. 769.4a allows a first-time offender to have their domestic violence case dismissed if the individual completes probation and the terms set by the court.
The HYTA (Holmes Youthful Trainee Act) allows a person under 26 to keep the conviction invisible. However, depending your age, prosecutor’s must consent to this arrangement. So, your attorney must convince the prosecutor that a 769.4a or HYTA plea is in the interest of justice.
There are typically four ways to address a Michigan domestic violence charge:
- Make a motion to dismiss before the judge when the alleged victim does not want to process against the accused.
- Negotiate a plea deal under MCL 769.4a which will result in a dismissal after a successful term of probation.
- Proceed to trial before the judge or jury.
- Negotiate a plea deal where the domestic violence charge is dismissed and reduced to a civil infraction (non-crime)
An expungement may be able to restore your right to own a gun.
Under Federal Law, a conviction applies unless that conviction has been set aside, pardoned, expunged, or you have otherwise had your civil rights restored through a state process.
An expungement allows you to remove convictions from your criminal record. The recently enacted Clean Slate Act, under Michigan Compiled Laws sec. 780.621, may allow the erasure of a misdemeanor domestic violence conviction from your criminal history. You should always retain an attorney to assist you with this complicated process.
Contact Czarnecki & Taylor
Czarnecki & Taylor’s experience and extensive track record for success for criminal defense enables us to provide effective criminal defense representation in any criminal prosecution. No matter how small or large the offense, we appreciate and understand the complexities of trial preparation and litigation. Our lawyers are experienced litigators who work quickly and efficiently to protect your rights at every stage of your case. Whether you require a strong negotiator or aggressive litigator, our team will stand by your side with attentive guidance throughout your entire case.
We offer clients a free case evaluation to assess their unique situation and discuss possible options for resolution, including solutions that do not involve trial. If you need an attorney who can provide aggressive representation in your criminal case, contact us today. We represent clients throughout Michigan.
Do you have issues related to gun ownership and domestic violence charges? Czarnecki & Taylor’s experienced attorneys can help. We will handle your case with care and help you through every step of the process. For a free consultation, call us today at (586) 718-2345 or online for a prompt response. We are available 24/7 and have weekend and evening appointments. Payment plans are available.
In Macomb County, we provide extensive coverage in the following courts:
- 37th District Court (Warren and Centerline)
- 38th District Court (Eastpointe)
- 39 District Court (Roseville, Fraser)
- 41A District Court (Sterling Heights Division)
- 41A District Court (Shelby Twp, Utica, Macomb Township)
- 41B District Court (Clinton Twp, Mount Clemens, Harrison Township)
- 42-1 District Court (Romeo, Washington Township, Richmond)
- 42-2 District Court (Chesterfield Twp, New Baltimore, New Haven, Lenox)
- Macomb County Circuit Court