Lautenberg Amendment

[Cali2Texas]

14 Years ago in southern California, I was arrested on PC 273.5 (Corporal Injury on a Spouse or Cohabitant) and my lawyer successfully encouraged me to accept a PC 415 misdemeanor (Disturbing the Peace), which is a frequently used plea charge for domestic here. A possibly important factor is that my girlfriend at the time did not live with me and was merely visiting from long distance. We got married a couple of years later and still are. We're moving to Texas in two months to finally get out of Cali's left-wing, tree hugging, oppressive police, tax, and regulations regime (as well as a better career opportunity).

My lawyer (and therefore also me) did not realize there may be long-term problems with gun permits with regard to the Lautenberg Amendment, and I wouldn't have let it go so easily otherwise. It seems like this is a pretty common series of events.

Later on, the charge was expunged per California law PC 1203.4. But California expungement does not work exactly like it does in many other states.

I've consulted a couple of attorneys who are not able to give me a clear answer as to whether I would be approved or denied - on the basis of the Lautenberg Amendment - for a gun permit. Therefore, it's obvious this is a fairly complicated question. I do realize the easiest approach would be just to apply and find out, and that will eventually be exactly what happens, but I would really like to have an educated opinion on this matter prior to an embarrassing application.

Thanks!

[bblhd672]

If I understand correctly you plead guilty to a non-domestic battery charge of "disturbing the peace"? If so how does the Lautenberg Amendment apply?

[kg5ie]

Misdemeanor charge, 14 yrs ago, expunged...IANAL... but I would expect no issues. I assume you have no other issues precluding you from purchase / possession of a firearm?

[WildBill]

If I understand correctly you plead guilty to a non-domestic battery charge of "disturbing the peace"? If so how does the Lautenberg Amendment apply?

I have the same question. Not legal advice or opinion, but IMO your conviction, and subsequent expunction would not deny you gun ownership.
Get all of your legal paperwork in order to turn in with your application. Good luck.

[Cali2Texas]

I'm not an expert, but it's not that simple. So I will refer to the closest documentation I've found:

Bob is convicted of Penal Code 415 PC, California's "disturbing the peace" law 8 for shoving his wife in public. This is not a crime that triggers any California firearms' ban. But because the crime was

committed against Bob's wife, and
involved physical force,

it falls under the Lautenberg Amendment and therefore subjects Bob to a lifetime federal ban on his gun rights.

But...

If Bob's disturbing the peace conviction was for shoving his girlfriend instead of his wife, he would not be subject to a firearms' ban under California or federal law, since

Penal Code 415 PC isn't one of the crimes listed under Penal Code 12021 PC, and

a girlfriend does not count as an "intimate partner" under federal domestic violence law.
How does the Lautenberg Amendment affect expunged or pardoned convictions?

The Lautenberg Amendment states that it does not apply to expunged or pardoned convictions unless the expungement, pardon, or certificate of rehabilitation specifically denies firearms' rights.9 In California, none of these options will restore firearm rights.

So while it would logically follow that an individual who

waits-out his/her ten-year period,
regains his/her firearm rights, and
then obtains an expungement

would be entitled to federal relief, this isn't the case. Unfortunately, federal law doesn't recognize a California "expungement" as such, since it doesn't fully relieve an individual of all criminal disabilities.10

And because certificates of rehabilitation and governor's pardons only apply to felonies and specific misdemeanor sex offenses, they won't help restore your federal gun rights either.11

Reference: http://www.lawyer4u.org/San-Bernardino- ... ights.aspx

Additionally, California sees a cohabitant the same as a spouse wrt the above. The arrest seemed to think she was a cohabitant, but she wasn't. However, if it came down to that being the differentiating element, I guess the burden would be on me to somehow prove that. Also the definition of "intimate partner" is important here.

I can state there are several posts on other forums where the person says they are indeed banned for life on a PC 415.
Anyway, I'm not looking to lead opinions here, but instead to get impartial ones.

More: http://www.shouselaw.com/domestic-violenceguns.html

[bblhd672]

I've consulted a couple of attorneys who are not able to give me a clear answer as to whether I would be approved or denied - on the basis of the Lautenberg Amendment - for a gun permit. Therefore, it's obvious this is a fairly complicated question. I do realize the easiest approach would be just to apply and find out, but I would really like to have an educated opinion on this matter prior to an embarrassing application.

Thanks!

If you have consulted a couple of attorneys who cannot give you a clear answer, why do you think you can get an "educated opinion" on a internet forum?

Either spend $140 to apply with all of the documentation about your case or spend the $$ necessary to hire a Texas attorney who specializes in these types of cases to guide you.

[Cali2Texas]

I've consulted a couple of attorneys who are not able to give me a clear answer as to whether I would be approved or denied - on the basis of the Lautenberg Amendment - for a gun permit. Therefore, it's obvious this is a fairly complicated question. I do realize the easiest approach would be just to apply and find out, but I would really like to have an educated opinion on this matter prior to an embarrassing application.

Thanks!

If you have consulted a couple of attorneys who cannot give you a clear answer, why do you think you can get an "educated opinion" on a internet forum?

Either spend $140 to apply with all of the documentation about your case or spend the $$ necessary to hire a Texas attorney who specializes in these types of cases to guide you.

It was only a matter of time before a response like this. That's cool. You're right. That will be the end result either way as stated in the original message.

However, I can tell you many people have had similar issues as I have and have not been able to find answers. It's worth it to me to post here in the small chance someone does know the answer definitively, having had or seen the same exact series of common circumstances, and this thread can then help others in the future as well. I never expected a same day definitive answer, but given enough time - perhaps months - the right person will peruse google results and perhaps respond here, giving me an automated email alert to my subscribed topic.

All the best.

[Cali2Texas]

Misdemeanor charge, 14 yrs ago, expunged...IANAL... but I would expect no issues. I assume you have no other issues precluding you from purchase / possession of a firearm?

No other issues. No other record.

[WildBill]

The Lautenberg amendment wasn't law until 1996 so I don't see how it could apply to your conviction.

[Cali2Texas]

The Lautenberg amendment wasn't law until 1996 so I don't see how it could apply to your conviction.

It was in place well before my conviction. Furthermore, it's retroactive anyway.

[casp625]

You were convicted/plead to Disturbing the peace... Is this a disqualifying offense under the Lautenberg Amendment?

[Cali2Texas]

You were convicted/plead to Disturbing the peace... Is this a disqualifying offense under the Lautenberg Amendment?

In general, it probably depends on state. PC 415 Disturbing the Peace, in particular, definitely can be qualifying given the right circumstances.

References:
http://www.calguns.net/calgunforum/show ... p?t=301456
https://www.expertlaw.com/forums/showthread.php?t=57925

(If linking to other forums is prohibited, then please remove and I apologize.)

[Lambda Force]

Can you legally own a firearm? Have you purchased one in the past ten years and got a NICS approve?

If you can't pass the NICS check, you almost certainly aren't eligible for a Texas CHL, so that's a good first hurdle.

[Cali2Texas]

Can you legally own a firearm? Have you purchased one in the past ten years and got a NICS approve?

I have not applied and have not purchased. I don't know. That's what I'm trying to determine.

It would be amazing if Mr. Cotton himself would weigh in.

[WildBill]

The Lautenberg amendment wasn't law until 1996 so I don't see how it could apply to your conviction.

It was in place well before my conviction. Furthermore, it's retroactive anyway.

Congress is prohibited from passing ex post facto laws by clause 3 of Article I, Section 9 of the United States Constitution.

I am finished commenting on this thread.