Federal Firearms Prohibition

This website is intended to serve as an online resource pertaining to drafting and enforcing tribal protection orders. Note that each tribe is unique with respect to tribal constitutions and codes. The reader should consult the specific tribal constitution and tribal codes for additional requirements regarding drafting and enforcement of tribal protection orders.

1. What federal statutes related to possession of a firearm and certain protection orders?

There are generally two federal statutes that relate to possession of a firearm and domestic violence protection orders: possession of a firearm and/or ammunition while subject to a qualifying protection order:

• It is a federal crime to possess a firearm and/or ammunition while subject to a valid qualifying protection order. 18 USC 922(g)(8). The exception to this possession is found at 18 USC 925which sets forth this restriction does not apply to firearms issued by government agencies to a law enforcement officer or military personnel so long as the individual is on duty.
• It is a federal crime to possess a firearm and/or ammunition after a conviction of a qualifying state misdemeanor crime of domestic violence. 18 USC 922(g)(9). Importantly, there is no official use exemption for law enforcement and military personnel as was set forth in 18 USC 922(g)(8)

2. What language must be present in the protection order to trigger the federal firearm restrictions of 18 USC 922(g)(8)?

To engage the federal firearms restrictions of 18 USC 922(g)(8) the protection order must contain certain language. The person must be subject to a court order that:

1. Issued after hearing which the defendant had notice and opportunity to be heard;
2. The order restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or the order restrains the defendant from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
3. includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

Note that tribal court’s wishing to trigger the federal firearms restrictions under this statute carefully make findings and note the relevant provisions above.

3. What language must be present in the protection order to trigger the federal firearm restrictions of 18 USC 922(g)(9)?

To engage the federal firearms restrictions of 18 USC 922(g)(9) after conviction of a domestic violence misdemeanor the defendant must have been convicted in any court of a misdemeanor crime of domestic violence.

A misdemeanor crime of domestic violence includes:

1. an offense that
   1. is a misdemeanor under Federal, State, or Tribal law;
   2. and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,
   3. 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.

Note that a misdemeanor crime of domestic violence does not include:

1. the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
2. in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
   1. was tried by a jury, or
   2. the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
3. A person shall not be considered to have been convicted of such an offense 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 civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

Tribal courts wishing to trigger the federal firearms restrictions of this statute must carefully note that (a)(i-ii) and (b) above have been satisfied in the language of relevant tribal court conviction documents including plea agreements and documents of conviction.

For useful information on this issue please see ATF Protection Orders and Firearms Prohibitions and ATF What is a Misdemeanor Crime of Domestic Violence?