For many defendants in a misdemeanor criminal case, the immediate ramifications of a guilty plea or a finding of guilt are readily apparent. You’ve been informed by your attorney, the judge, or perhaps even the prosecutor of the maximum penalties you face as well as what your particular sentence may be. Jail, probation, fines and court costs; all consequences that are par for the course. What a defendant may not have been told (or, conversely, told would not apply to their particular conviction) are the collateral federal consequences that certain state misdemeanor convictions can have on that person’s constitutional rights, most notably, the right to keep and bear arms.
The most common scenario where this plays out is in the context of a domestic violence (DV) proceeding. In the state of Ohio, a DV conviction cannot be expunged or sealed, and can be used to enhance future offenses. Additionally, while a misdemeanor DV conviction does not result in a state firearm disability,[1] it can result in a federal one. For that reason, avoiding a conviction for DV is paramount to most defendants, especially those who are lawful firearm owners.
In many of these cases, a defendant may choose to accept a plea to an amended or reduced charge (e.g., misdemeanor assault) that they believe (or are told) will not have those same consequences. Or perhaps they are advised that a federal weapons disability is possible, but believe (or are told) that the disability will be relieved once they “expunge” their record down the road after a period of good behavior. For the reasons below, I’ll explain why the conflicting verbiage of Ohio and Federal laws makes that incorrect.
Federal v. Ohio Law
Among other triggering events, Federal laws prohibit those individuals convicted in any court of a “misdemeanor crime of domestic violence” from possessing a firearm.[2] But what constitutes such a crime under federal law does not exactly mirror Ohio’s statutory definition of domestic violence. The important distinction to make when determining whether a federal disability may be triggered relates to the relationship to the victim. The differences and commonalities are as follows:
Misdemeanor Crime of Domestic Violence – 18 USC §921(a)(33): any offense 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 of the victim;
- A parent of the victim;
- A guardian of the victim;
- A person with whom the victim shares a child;
- A person who is cohabitating with, or has cohabitated with the victim as a spouse, parent or guardian; or
- A person similarly situated to a spouse, parent, or guardian of the victim.
Domestic Violence – Ohio Revised Code §2919.25: knowingly cause or attempt to cause physical harm to a family or household member, including the following persons:
- A spouse, person living as a spouse, or former spouse of the offender;
- A parent, foster parent, or child of the offender, or another person related by consanguinity or affinity to the offender;
- A parent or a child of a spouse, person living as a spouse, or former spouse of the offender, or another person related by consanguinity or affinity to a spouse, person living as a spouse, or former spouse of the offender; or
- The natural parent of any child of whom the offender is the other natural parent or is the putative other natural parent.
Overlapping “Trigger Victims”:
- A spouse, former spouse, or person living as a spouse of the offender;
- A child of the offender
- A child of a spouse, person living as a spouse, or former spouse of the offender; or
- The natural parent of any child of whom the offender is the other natural parent or the putative natural parent.
While the Ohio definition seems to be more expansive that what is included under federal law, the problem occurs as a result of the United States Supreme Court’s interpretation of the federal definition. In United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079, 1080 (2009), the Supreme Court held that the underlying state offense need not have an element in and of itself that specifies the domestic relationship between the offender and victim. Therefore, any Ohio misdemeanor crime that involves the use of force, attempted use of force, or threat with a deadly weapon, can be found to meet the federal definition of a misdemeanor crime of domestic violence so long as the underlying facts establish a qualifying relationship. So, even if you thought you might be safe by pleading to an amended charge of assault (which includes the elements of use or attempted use of force, but does not require a domestic relationship under Ohio law), you may not be out of the woods if the underlying facts indicate that the victim of the offense falls within one of the above federal categories of domestic relationships.
What if my Conviction is Expunged?
State expungements are recognized by federal laws, and specifically exclude persons from the restrictions of a federal firearm disability who have successfully had their records expunged.[3] However, true expungement is only available in Ohio in a limited number of circumstances.[4] For the vast majority of adult convictions, Ohio merely permits a “sealing of the record.” A record kept under seal precludes its publication and prevents it from being used against you in most proceedings, but does not erase the record entirely.
Many courts and legal professionals in Ohio often use the words expunge and seal interchangeably, but they are not the same. Legislation is pending in before the Ohio General Assembly that would provide expungement for a greater number of offenses, but has not been signed into law yet.[5] In the meantime, Ohioans with sealable convictions (such as misdemeanor assault) are still precluded from relieving a federal firearm disability through the available state mechanisms.
Can’t I File for Relief from Weapons Disability?
At one point in time the federal government allowed for individuals with disabling convictions to apply directly to the Bureau of Alcohol, Tobacco, and Firearms (ATF) for relief. However, subsequent Acts of Congress in the early 1990’s prohibited ATF from expending funds to investigate and act upon those applications from individuals, and instead, limited the application process to corporations.[6] But that is not to say an individual is without any recourse, as Ohio laws provide for a relief mechanism that is recognized by the federal government as also relieving any corresponding federal prohibition that results from a certain conviction.[7]
The problem under our scenario involving a state misdemeanor conviction that also classifies as a federal misdemeanor crime of domestic violence, is that Ohio does not impose a firearm disability on misdemeanor offenders. And as far as the federal government is concerned, a state cannot give back what it does not take in the first place.[8] That leaves certain Ohio misdemeanor offenders in the proverbial Catch-22, having no state-imposed disability and the ability to seal, but without any statutory means of getting relief from the corresponding federal disability in an Ohio court.
No Expungement, No State Relief…What Can I Do?
The best way to avoid a collateral federal firearm disability is to make sure you don’t end up with a qualifying conviction in the first place. Having an attorney with a thorough understanding of both the state and federal firearm disability laws is crucial in determining how your case needs to resolve to avoid an unknowing loss of one of your greatest constitutional rights.
For those who did not receive the proper advice before accepting a plea, or elected to proceed without an attorney, there could be other options. Attempting to vacate the original plea is the primary one, and the ability to do so will hinge on a number of underlying factors that should be discussed with a qualified attorney. Otherwise, the unfortunate Ohioans who are in this predicament may have to wait for their legislature to ameliorate this unjust result through the law-making process.
[1] Ohio does establish a firearm disability for those convicted of felony crimes of domestic violence, see O.R.C. 2923.13(A)(2).
[2] See 18 USC §922(g)(9).
[3] See 18 USC §921(33)(B)(ii).
[4] Juvenile adjudications (O.R.C. 2151.358), crimes in which the offender was a victim of human trafficking (O.R.C. 2953.38), and certain firearm convictions (O.R.C. 2953.37).
[5] See Senate Bill 160, 133rd General Assembly.
[6] https://www.atf.gov/firearms/qa/there-way-prohibited-person-restore-their-right-receive-or-possess-firearms-and.
[7] See O.R.C. 2923.14; see also Ohio Laws, 129 H.B. 54, Section 3 (2011) (The General Assembly is explicitly making this amendment to clarify that relief from a weapons disability granted under section 2923.14 of the Revised Code restores a person’s civil firearm rights to such an extent that the uniform federal ban on possessing any firearms at all, 18 U.S.C. 922(g)(1), does not apply to that person, in correlation with the U.S. Supreme Court’s interpretation of 18 U.S.C. 921(a)(20) in Caron v. U.S. (1998), 524 U.S. 308)
[8] See 18 USC §921(33)(B)(ii); see also Logan v. United States, 522 U.S. 23 (2007).
