By Bryan Boender, Attorney at Law
Domestic Violence and Your Gun Rights
A domestic violence criminal misdemeanor conviction will result in the loss of your right to possess firearms or ammunition. A felony conviction of any kind will also result in a loss of your right to possess firearms or ammunition. These gun bans provide criminal penalties under both federal and Oregon state law for possession of firearms or ammunition by those with domestic violence criminal convictions.
If you have been charged with a domestic violence offense, your lawyer must advise you on the collateral consequences of a conviction, including the loss of your right to possess firearms.
The Federal Domestic Violence Offender Gun Ban
The federal criminal code at 18 U.S.C. § 922 provides that it is a federal felony offense for a convicted felon or a person convicted of a misdemeanor crime of domestic violence to possess any firearm or ammunition. Section 922 also bans felons from possessing firearms or ammunition. Also known as the “Lautenberg Amendment,” this prohibition on gun ownership for misdemeanor domestic violence convictions applies to any “misdemeanor crime of domestic violence” under Federal, State, or Tribal law. See 18 U.S.C. 921.
Your lawyer should advise you on whether your potential or prior convictions fall under the gun ban for individuals convicted of misdemeanor crimes of domestic violence.
The Oregon Domestic Violence Firearms Surrender Law
The Oregon criminal code at ORS 166.255 establishes a permanent ban on possessing firearms or ammunition by those convicted of a “qualifying misdemeanor.” The law defines a qualifying misdemeanor as “a misdemeanor that has, as an element of the offense, the use or attempted use of physical force or threatened use of a deadly weapon.”
In addition to Oregon’s domestic violence gun ban, ORS 166.256 provides that the courts shall order a person to relinquish their firearms or ammunition. The law also requires newly convicted persons to surrender their firearms within 24 hours pursuant to the court’s order. A person must file a declaration under penalty of perjury that states whether they possessed any firearms at the time the order was entered, transferred their firearms or ammunition, or asserts their constitutional right against self-incrimination.
Your lawyer must advise you on whether your conviction falls under ORS 166.255. You should seek legal advice from a criminal defense lawyer on completing the Declaration of Firearms Surrender because you could face additional criminal penalties.
Domestic violence charges are serious offenses that have far reaching consequences. In some circumstances, you could face a Measure 11 prison sentence in addition to the loss of your rights own or possess firearms.
Demand a lawyer. Stop talking. Do not argue. Do not resist. Do not run.
The answer is really that simple. You are almost certainly not going to talk your way out of an arrest. The police do not make arrests without an arrest warrant or having sufficient evidence against you.
You have a fundamental constitutional right to refuse to answer questions. You have a right to a lawyer. We have seen too many cases where the prosecution would not have had a strong case but for a person’s words or actions during their arrest or questioning.
You should exercise your right to remain silent and demand a lawyer.
Have You Really Been Arrested? Are You Free to Leave?
You have been arrested when a law enforcement officer restrains you or takes you into custody in order to charge you with a crime. Law enforcement may make an arrest when an officer has “probable cause” that a crime has occurred after gathering evidence against you or when a court issues an arrest warrant. The police may then take you into custody for booking, or under some circumstances, they may issue you a citation with a future court date.
You should ask the officer “Am I being detained, or am I free to leave?” Sometimes police will try to keep you in the vicinity, and keep you talking, even though you are legally allowed to leave. The purpose of their questioning is to investigate a crime. Your words are evidence that they will use against you.
You can leave unless they are ordering you to stay. If you have been ordered to stay, you have probably been arrested. You are under arrest because the officer already has enough evidence to arrest you or a court issued a warrant for your arrest. You should consider invoking your rights.
Stop talking. Demand a lawyer. Do not argue. Do not resist. Do not run.
Exercise the Right to Stay Silent and the Right to an Attorney
You have a fundamental constitutional right to not answer questions from the police. You must clearly and simply state that you wish to remain silent and want an attorney. There are no “magic words.” You can say anything similar to “I want a lawyer. I wish to remain silent.”
You are not required to answer any questions from law enforcement officers, and you are not required to talk at all. You have the right to stay completely silent, and you should exercise that right. After all, “anything you say can and will be used against you in a court of law.”
If you cannot afford an attorney, an attorney will be appointed to you by the court – for free. You have the right to legal representation, even if you cannot afford it.
If you are held in jail, do not discuss your case with anyone other than a lawyer. Note that the police can listen to and record any of your phone calls from jail, except for your calls with an attorney. It is natural for your loved ones to ask you questions about your case. Be warned: Your calls to your own family members will be used against you.
Avoid Threatening Behavior or Language, Do not argue, Do Not Resist, and Do Not Run
These rules apply during your entire time interacting with the police, from when they stop you until whenever you are released.
You should avoid saying or doing anything that can possibly be seen as threatening, not just things that are actually threatening. If you are in a car, keep your hands on the wheel or dashboard. You also should not reach below the dashboard of your car, even to scratch an itch, because it might look like you are going to pick up a weapon. You could be shot and killed. Remain calm.
Speaking of reaching under the dashboard, you should always make sure that your hands are visible. Do not resist arrest or restraint, and do not try to flee the scene. Do not touch any police officer.
Do not make any threats or argue. Stay calm and be respectful. Your words and conduct will be used against you in court.
Remember: You probably should not be talking to police in the first place.