Last year, the President of the United States signed a bill on gun legislation. Whenever a bill is signed by the president, that law effects every state, including Ohio. The Bipartisan Safer Communities Act of 2022 made some changes to gun laws all across the country, including some changes that impact how Domestic Violence is treated after a Domestic Violence Case has been handled in the Courts. We will go over this change and other changes to the laws in Ohio.
Domestic Violence and Gun Rights
Getting gun rights restored in Ohio can be a difficult thing to navigate especially if Domestic Violence charges are involved. Throughout decades of practicing law in Ohio, the attorneys at Dearie, Fischer & Martinson have found effective strategies for dealing with gun rights situations as we wrote about 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, particularly when it comes to the relationship of the perpetrator to the victim. Before, the requirements were rather specific. For an assault to be considered Domestic Violence, the victim had to have some kind of specific 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 be considered DV. To try and mitigate this dilemma, commonly called the “boyfriend loophole” the Bipartisan Safer Communities Act expanded the legal definition of “partner.”
Restoring Gun Rights After Domestic Violence
On the flip side of this bipartisan agreement, the new bill changed the federal laws about restoring gun rights to people who have been convicted of DV. Generally, the rule for a long time has been that anyone convicted of DV is permanently banned from owning a firearm. This rule has affected many of the laws we wrote about in our gun laws articles and our expungement articles and of course, our Domestic Violence articles. However, the Bipartisan Safer Communities Act adds this language to section 921(a)(33) of title 18, 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. 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.”
With this new law going into effect, it will sometimes be possible to restore the gun rights of someone who was convicted of misdemeanor Domestic Violence 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. For the most part the bill has actually been seen 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 initiatives that would be enacted the state level. $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. $250,000,000 were allocated 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 are both yet to be answered, 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 meant to reduce 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.
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 is legally not allowed 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.
This new law may feel like a lot of changes, but it is generally being called a modest revision 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 or need legal help in Ohio, feel free to contact Dearie, Fischer & Martinson.