Last year, the President of the United States signed a bill on gun legislation. Whenever the president signs a bill, that law affects every state, including Ohio. The Bipartisan Safer Communities Act of 2022 made some changes to gun laws all across the country. This included some changes that impact how Domestic Violence (DV) is treated. Particularly, this changed how the law treats DV after the Courts have handled a DV case. We will go over this change and other changes to the laws in Ohio.
Domestic Violence and Gun Rights
One of the most significant changes to gun laws involved the restoration of gun rights. Getting gun rights restored in Ohio can be a difficult thing to navigate especially if Domestic Violence charges are involved. The attorneys at Dearie, Fischer & Martinson have practiced in Ohio for decades. We have found effective strategies for dealing with gun rights situations. We wrote about some of them in our other articles, such as “Removing Disability and Restoring Gun Rights in Ohio.” However, there are a few things in the Bipartisan Safer Communities Act that will change the landscape a bit.
Closing the “Boyfriend Loophole”
In past years, the definition of Domestic Violence has been a topic of political controversy. This is especially true when it comes to the relationship of the perpetrator to the victim. Before, the requirements were rather specific. For an assault to fall under DV, the victim had to have some kind of specific relationship with the perpetrator. This means a relationship such as spouse or a partner with whom the perpetrator had a child. For people who were simply in a relationship, acts of violence may not fall under DV. This dilemma was commonly called the “boyfriend loophole.” To try and mitigate this loophole, the Bipartisan Safer Communities Act expanded the legal definition of “partner.”
Restoring Gun Rights After Domestic Violence
There was a flip side of this bipartisan agreement. Along with the changes to the definition for DV came changes to the gun laws. The new bill changed the federal laws about restoring gun rights to people who have DV convictions. Generally, the rule has been that any DV conviction has carried a permanent ban from owning a firearm. This rule has affected many of the laws we wrote about in our gun laws articles. It also affected the laws we discuss in our expungement articles and of course, our Domestic Violence articles. However, the Bipartisan Safer Communities Act adds some language to section 921(a)(33) of title 18, United States Code.
Gun Rights Can Sometimes be Restored
The law adds this language to the United States Code:
A person shall not be considered to have been convicted of a misdemeanor crime of domestic violence against an individual in a dating relationship for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had firearm rights restored unless the expungement, pardon, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms: Provided, That, in the case of a person who has not more than 1 conviction of a misdemeanor crime of domestic violence against an individual in a dating relationship, and is not otherwise prohibited under this chapter, the person shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm under this chapter if 5 years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any, and the person has not subsequently been convicted of another such offense, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, or any other offense that would disqualify the person under section 922(g). The national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) shall be updated to reflect the status of the person.
Persons for Whom Restoration is Unavailable
The law goes onto name some persons for whom restoration is unavailable:
Restoration under this subparagraph is not available for a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim.”
Impact on Gun Laws
With this new law going into effect, it will sometimes be possible to restore the gun rights of someone with a misdemeanor Domestic Violence conviction five years after the conviction as long as there is no further criminal behavior. While this detail has not been the main focus of discussions on the new gun laws, it is a big deal for our practice because it has an impact on so many aspects of what we do. If you have questions about restoring gun rights or need any kind of legal representation, feel free to give us a call.
Other Changes from the Bipartisan Safer Communities Act
As stated above, we are most concerned with the aspect of this bill that has the potential to restore gun rights, but there are several other changes in this bill. Many people actually see the bill as a tightening of gun control restrictions. It only makes sense that we look at all the other changes from the new law as it affects Ohio just as much as all the other states.
Funding to Incentivize State Laws
The bill allocated millions of dollars in funds for different types of state level initiatives. $750,000,000 will help states implement laws that keep weapons out of the hands of individuals when a Court determines that they are dangerous to themselves or others. Also, the new law allocated $250,000,000 for funding community-based violence prevention initiatives. As states start to use these funds for implementing new laws, we may start to see the creation of what many have termed “red flag laws.” What does this mean in practicality? And how will red flag laws look in Ohio? Those questions may not yet have answers, and probably the topic for another article.
Illegal Firearms Licenses
The bill also clarifies the definition for “federally licensed firearm dealer.” This clarification, along with a stronger penalty system is for the purpose of reducing the number of dealers illegally evading the federal licensing laws. Additionally, the bill provides clarity on the processes of registration, background checks and records keeping.
Straw Purchase
The Bipartisan Community Safety Act also clarifies some of the rules surrounding straw purchasing. In this context, “straw purchase” essentially means buying a firearm to give it to someone else. In the Bipartisan Community Safety Act, federal law can place a penalty of up to 15 years in prison for transferring or receiving firearms when the recipient does not have the legal right to possess the firearm. Currently, participating in firearm straw purchasing in Ohio can be anywhere from a misdemeanor of the second degree to a felony of the third degree. While Ohio may not have to change its laws on straw purchasing, it is always good to note federally dictated penalties since they apply to all the states.
For Firearm Buyers Under 21
Depending on how the background check goes, the National Instant Criminal Background Check System (NICS) may be able to take 10 days on the investigation for buyers under 21. There will also be a required investigative period to check juvenile and mental health records.
Conclusion
This new law may feel like a lot of changes, but it many are calling it a modest change to current gun laws. However, some aspects of it are quite significant for our purposes. We have had many clients over the years who want to have their gun rights restored after a DV conviction. If this is possible at all, it is often a complicated endeavor that involves a motion to withdraw the initial plea or relying on some other special circumstances. Under the new law, while there may be more people convicted of DV, some of those convicted may be able to have their gun rights restored after 5 years. If you have further questions about changes to gun laws in Ohio, feel free to contact Dearie, Fischer & Martinson.
