Question about "family violence" conviction

[DoubleJ]

Well, among my group of associates, I am the bastion of CHLness, so whenever a question comes up, I'm the (sad, I know) go-to guy.

But this I did not have a definitive answer for (I do not claim to have all the answers, just have a great forum to find said answers )

anyway, my friend, we'll call him Joey, had a question for me, which I will pose to ya'll. About eleven years ago, he got into a scuffle with his sister's boyfriend over whatever. He was charged at first with assault, but was then upgraded to a Family Violence charge, do to the sister and the boyfriend getting married. He was convicted of the Family Violence charge.

now, he's been told by "people" that he can't buy a handgun, can't buy a long gun from an FFL, but can obtain a long gun if he buys it from a FTF sale (no paperwork).

so, can he, eleven years later, purchase a handgun, or even possess a handgun?
can he buy a long gun from an FFL? the other method sounds a little like a straw man purchase to me, but admittedly I don't know.

He was also afraid that if he attempted to purchase a handgun or long gun from an FFL, knowing that he could not pass a NICS check, he would also be in violation of attempting to purchase, when he can't.

anyone here know? also, can he get a CHL? Does that Family Violence thing preclude him during the background check?

thanks again, ya'll, for the info.

[cbr600]

[more detailed comments below]

[DoubleJ]

well, shuck-e-darns!

thanks for the speedy reply, though!

[srothstein]

Double J,

I suggest you tell the person to check with a lawyer. If the assault occurred before the marriage was effective, then they were not family at the time, according to state law. I don't believe the offense could be upgraded after the offense if the marriage occurred between the offense and the trial, but it could have happened.

Also, as I understand the federal law, a brother in law would not be considered domestic violence.

But, I could be wrong, so I strongly suggest that he check with an attorney who could get a copy of his records and verify the data. He might also be able to call the ATF and ask them but I don't know if they will give him an answer or stick by it (like the IRS is not bound to stand by their advice to you).

[DoubleJ]

thanks, Steve, will do. There was a kidnapping incident in his neighborhood not long ago, so now he's all paranoid (I like to call it "enlightened" ).

would anyone mind posting the statute of the Family Violence thang?

thanks in advance.

[cbr600]

Definitely check with a lawyer. Like Steve, I'm curious how it was prosecuted as family violence given what you've told us. However, if a conviction for domestic violence is on his record, he's going to have a tough time buying a gun.
http://www.usdoj.gov/usao/eousa/foia_re ... m01117.htm

Side note: Is domestic violence a (separate) crime in Texas? Looking at the penal code, it appears to fall under assault, with a greater severity if there's a family relationship (or some other circumstances, such as baseball umpires.)
http://tlo2.tlc.state.tx.us/statutes/do ... m#22.01.00

[kryten67]

Hello Double J, When talking to attorney talk about getting this episode expunged from the record and all the other stuff won't matter he probably could also get a CHL as long as he has a clean record. Expungements are a little expensive around 400 to 1000 dollars but worth every penny.

Regards

[KBCraig]

A brother in law, before or after marriage, isn't "domestic" under federal law.

USDOJ guidance on the law says:

Qualifying Offenses: As enacted the statute defines "misdemeanor crime of domestic violence" (MCDV) 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."

[Liko81]

Good question. I think KBCraig hit it on the head; even if the state determines it's "family violence", it doesn't qualify under federal law as a domestic violence conviction. Your brother in law might as well be some stranger who picked a fight with you in the bar.

As far as "domestic violence" being a seperate offense in Texas, it generally is not; it's a "special circumstance" to which judges and juries can give weight when determining sentencing. In Texas, assaults against someone defined as "family" (there are a lot of qualifiers; in general any member of your "traditional" family, anyone formerly married to you, your parents, your siblings, your adopted or blood children, anyone with whom you have had a child, and anyone you share living space with long-term is "family"). A first offense doesn't even raise the severity of the crime in Texas; what it does do is make the second offense a felony.

[DoubleJ]

Good question. I think KBCraig hit it on the head; even if the state determines it's "family violence", it doesn't qualify under federal law as a domestic violence conviction. Your brother in law might as well be some stranger who picked a fight with you in the bar.

WHOA WHOA WHOA! I HAVE a CHL, as well as have bought enough guns lately to fill my safe.

thanks for your input, though.