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What kind of “domestic violence” conviction prevents you from having a gun?

Under federal law, an offensive touch can count as “violence.”

Under federal law, it’s a crime for someone convicted of a felony or a misdemeanor domestic violence offense to possess a firearm or ammunition. (States have their own laws that may also prevent one from having a gun.) A misdemeanor in the federal firearm context generally qualifies as domestic violence if, first, it involves:

  • physical force
  • an attempt to use physical force, or
  • a threat to use a deadly weapon.

Second, to be a domestic violence crime, the defendant must generally:

  • be the victim’s current or former spouse, parent, or guardian
  • share a child with the victim  
  • live with or have lived with the victim as a spouse, parent, or guardian, or
  • be similar to a spouse, parent, or guardian of the victim.

(18 U.S.C. § 921(a)(33)(A). For more on this federal law, including its relation to state law and information on regaining gun-possession rights, see Can someone possess a gun after a criminal conviction? Also see Can a past misdemeanor that’s technically not “domestic violence” prohibit you from having a gun?)

Domestic Violence and "Force"

In March of 2014, the U.S. Supreme Court cleared up the meaning of “domestic violence” in the context of the federal firearm-possession law. The Court determined that the term “force” doesn’t mean violent force. Instead, “force” applies to both violent acts and offensive touching. (United States v. Castleman, 12-1371 (2014).) In that way, domestic violence, like the traditional crime of battery, doesn’t necessarily involve violence.

The Court noted that most assaults committed between people in intimate relationships are relatively minor—for instance, pushing, grabbing, and slapping. Under the court’s decision, these kinds of acts—even if they don’t cause any injury and are merely offensive rather than violent—constitute domestic violence. In fact, even an unsuccessful attempt to touch a victim offensively can constitute a domestic violence offense that bars the defendant from later possessing a gun.

"Reckless" Domestic Violence

In 2016, the Supreme Court again weighed in on what qualifies as a misdemeanor domestic violence conviction for purposes of the federal gun law.  The court held that the domestic violence misdemeanor doesn't have to be the result of “knowing or intentional” conduct—it can be due to "reckless" behavior. Consider, for example, a man who angrily throws a plate against a wall, near his wife. A shard from the plate injures her. That use of force could be the kind of reckless behavior that supports what qualifies as a domestic violence conviction under federal law. 

According to the Court, a misdemeanor reckless domestic assault does in fact count as a misdemeanor crime of domestic violence under the federal gun-prohibition law. The Court said that it’s not necessary that a defendant who applies force to a domestic relation “have the purpose or practical certainty” that it will cause harm. Understanding that it is “substantially likely to do so”—in other words, acting in conscious disregard of a substantial risk of harm—is enough. (Voisine v. U.S., 579 U.S. ___ (2016).)

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The rules on gun ownership and possession can be complex—they can also change. Make sure to talk to an experienced criminal attorney to gain a full understanding of the relevant law and how it applies to your situation.

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