As a lawyer who regularly argues that people have committed fraud by lying or giving misleading statements on government forms, I’ll just say that if you are not sure about your answers to forms that have criminal consequences clearly marked on them, you should make sure before answering.
I am not judging the OP because most people sign pretty much every form without reading it carefully. If anything, my takeaway from this thread is that (1) the BATF is a marvelously efficient organization, and (2) the OP is really lucky.
Did you read the linked thread? He was informed then that he shouldn’t sign and he acknowledged it. It appears that he simply gambled that the BAFT wouldn’t be efficient, and I agree that he’s lucky, so far.
I was wondering what your take was on my earlier argument about when a person pleads to “battery” instead of “domestic battery” and the BATFE goes behind the crime to determine that the victim was a household member.
It seems to me that this violates basic due process. When the person pled guilty, he specifically did not admit to an essential element of domestic battery (the victim’s status as a household member) and the judge made no such finding. For the BATFE to look at the criminal complaint and make that determination denies the person attempting to buy a gun his whole panoply of constitutional rights --a jury determination of that fact, counsel to assist him in defending against that fact, etc.
There is no separate “domestic battery” crime in Florida, with the possible exception of “domestic violence by strangulation ss. 784.041”. The statute for battery and domestic violence battery are the exact same. The only difference is that the arrest affidavit gets a big DOMESTIC VIOLENCE stamp on it, or there is a little box labeled “Domestic Violence” that gets checked.
The qualifier for the additional Domestic Violence label is pretty black and white:
ss 741.28(3) “…spouses, former spouses, persons related by blood or marriage, persons who are presently residing together as if a family or who have resided together in the past as if a family, and persons who are parents of a child in common regardless of whether they have been married. With the exception of persons who have a child in common, the family or household members must be currently residing or have in the past resided together in the same single dwelling unit.”
I imagine a scenario where a guy and a girl are living in the house together, and one of them hits the other one. The victim says they are a couple, but the aggressor says they are just roommates. If, in court, the defendant successfully proves they were not living “as if a family”, I don’t even know how the paper trail would even reflect this. There isn’t a “lesser included offense” of “battery” in a “domestic violence battery”, so a person couldn’t plead guilty to only battery, but not domestic violence battery. Instead, it’s the exact same offense with an additional qualifier for sentencing and processing considerations, victim rights, and for database/metrics purposes, but it’s still the same statute.
Your question makes me wonder how that would even work. Maybe with a good lawyer, the defendant ensures that all of the final conviction paperwork does not have the DV qualifier on it. Maybe they uncheck the little box, and it’s good to go. I don’t know. I don’t know how the ATF would get involved or change anything if the conviction were processed without the qualifiers, though.
And this brings up another issue. West Virginia’s definition of “domestic violence” is far broader than the federal prohibition. Roommates are specifically covered, including former roommates and specified members of their families.
If I smack a college roommate’s (from over 25 years ago) cousin today, then that could be considered domestic battery. So even if a person in WV pleads guilty to the crime called “domestic battery” it is not evident, solely from the plea, that he committed domestic battery as defined by federal law. Even if the criminal complaint says that the victim was his wife, that was not a necessary element of his plea.
Even if you took it to a jury verdict and the instruction was that “defendant John Smith did commit a battery upon Jane Doe, a family or household member as defined by W.Va. Code XXX” it still doesn’t inform that the relationship was one encompassed by the federal prohibition.
And for the BATFE to go behind the guilty plea or jury verdict, and say something along the lines of “Oh, well he must have been referring to his wife” is not necessarily true unless it was specifically admitted as part of the plea colloquy. Otherwise the record is silent as to who the victim was and his/her relationship to the defendant. For the BATFE to make its own findings then “adds” to the conviction in a way that violates a defendant’s rights.
If you are the kind of person who smacks ANYONE around, especially to the point that the cops get called on you and you are arrested and later convicted, I am 200% supportive of you never owning a firearm again.
ETA: to be clear, that’s the general “you”, I am not referring to anyone specific in this thread.
But to answer the last part of your question, from my understanding what they do is if they see that a person was convicted of “battery” they pull the paperwork, look at the criminal complaint, and see that it was alleged that the victim was the person’s spouse or live in girlfriend or baby momma. Then they simply decree that the person was convicted of domestic battery.
IMHO, that is an extra-judicial finding that is not supported by the crime of conviction.
That’s fair enough, but not the law. If you punch a random person on the street for no reason, just for sport, then there is no firearm rights implication. If you find out that your husband of 30 years has been cheating on you with your sister and in a moment of haste you shove him, no firearms for life.
Also, if you shoved your husband in a moment of “haste” for sleeping with your sister, what if he does it again while you own a gun? Are you gonna shoot him in a “moment of haste”? Because that’s exactly why you shouldn’t have a gun - you’ve proven yourself to be the sort of person who would act violently when provoked before thinking things through.
In general I agree with you, but I think the issue here is more that a very wide variety of actions get indiscriminately placed into a catch-all category “domestic violence”. The category “sex offender” seems to have the same problem to some extent.
Presumably the person has the right to a hearing or something if he believes the crime he was convicted of does not match the definitions given in the underlying statute (from which the Form 4473 definitions come). And that may be why the BATFE official in this case was willing to “work with” the OP instead of taking him away in cuffs.
I feel morally certain that there are other activities besides going to a range to shoot at targets which could come under the classification of potential bonding experiences.
I freely offer some examples:
snowshoeing in the woods
building homes with the poor via Habitat For Humanity
talking over coffee
fixing cars
backgammon
This is exactly what occurred, according to the agent.
And your example here is why the law is in fact, shortsighted and ill-defined at best, and silly at worst.
Technically, isn’t that a “crime of passion”? Anyway, this is the kind of view that created the law, for better or worse. It’s a zero tolerance law with no contextual consideration. It’s just a matter of “where it occurred” and “who did it happen to/in front of”? That’s what makes it kinda stupid for people like me, despite what a percentage of statistics say. It still floors me that I am considered a violent offender and unfit to own a firearm. My ex-wife was VERY violent. I am not. She was trying to gouge my eyes out! If I had tackled her to the floor instead of slapping her to stop her and I got charged with the same thing, would it matter in your eyes then? Because it wouldn’t in the eyes of the law.
Again, there was a REASON I was granted the house and full custody of my sons in the divorce and she got zilch. Compelling video evidence of multiple threats of being killed in your sleep gives a judge a dim view of you. Allegedly.
And that’s just it: it literally IS a “catchall” law. It shouldn’t be. I’m a vet of the Army, as good of a Dad as I can muster, a recovered alcoholic with liver disease (it’s in check! Bloodwork has me at normal liver function and has for well over a year…booyah, it’s stable!), gainfully employed, a taxpayer, a non-felon, a voter…I mean…I’m not much different from any of you guys more or less. I have exactly TWO charges against me in my life: that battery charge from 2004 and my DUI in January 2017, that I often think of as my lifesaver. I’m no saint, but I still feel…disappointed.
Heck, it was the BATFE agent that recommended and briefly described the process for remedying my situation. There was no mention of charging me with anything. He was sympathetic to a point. unfortunately, I cannot paint a glowing portrait of myself to a judge because of the DUI conviction in early 2017. I’m wondering if I should even try. The thing is, the gun itself is meaningless to me (other than the money I spent on it). I hadn’t owned a gun since 2016 when I got rid of my AR-15. It’s the fact that I am just denied now in perpetuity without any mitigating circumstances having been considered going forward. It’s my fault for admitting to and simply accepting my fate during and after that arrest, not fully understanding these particular consequences at the time. C’est la vie I guess.
I am well aware of the vast amount of alternatives. The regret is not some lost opportunity with them that I couldn’t replace with another activity, because we already engage in other things that we bond over. That was just one of the main justifications of the purchase.
The agent, true to his word, met me at the same gun shop up the way from me that did the background check. We transferred it to him and he gave me far less than it was worth, an outcome I already expected as did the agent. That was the end of it.