Domestic Violence Convictions & Gun Rights in California

Domestic violence (DV) convictions strip you of your gun rights for life despite your Second Amendment protections. California judges issue a restraining order requiring you to surrender your firearms at the very beginning of most domestic violence cases, which means you lose your gun rights before you are even convicted.

Gun possession penalties after DV conviction – California law

Penal Code 29800 PC makes it a felony to ever possess a gun if you were convicted of a felony, which includes most domestic violence crimes that result in an injury. Penalties for being a “felon with a firearm” are:

• 16 months, or 2 years, or 3 years in state prison and
• up to $10,000.

Even a misdemeanor conviction of the domestic violence offense Penal Code 273.5 PC (corporal injury on a spouse or cohabitant) carries a lifetime firearms ban in California. Though possessing a gun following a conviction is only a misdemeanor, carrying:

• up to 1 year in county jail and/or
• up to $1,000

Gun possession penalties after DV conviction – Federal law

18 United States Code 922(g) makes it a felony to ever possess a gun if you were convicted of a felony or domestic violence, even as a misdemeanor. Federal penalties for unlawfully possessing a firearm include:

• up to 10 years in federal prison and/or
• up to $250,000.

Note that California law under Penal Code 29805 PC imposes only a 10-year firearms ban for about 40 misdemeanor convictions, such as:

• domestic battery (PC 243(e)(1)
• assault (PC 240)
• stalking (PC 646.9)

However, California’s 10-year ban does not really matter since domestic violence convictions trigger the federal lifetime firearms ban anyway. Federal law always takes precedence wherever federal law and California law conflict.

Restoring your gun rights

The only way to restore your gun rights following a California domestic violence conviction is through a governor’s pardon, though these pardons are:

• difficult to get, and
• apply only to felony domestic violence crimes, not misdemeanors.

We are a firm of former cops and prosecutors turned criminal defense lawyers. We have considerable experience in both California domestic violence laws and California firearms laws.

To help you understand the nuances of how a domestic violence conviction affects your gun rights, our California criminal defense lawyers discuss the following, below:

• 1. Loss of California gun rights after a domestic violence conviction
  • 1.1. California’s legal definition of “domestic violence”
  • 1.2. Penal Code 29800 PC, California’s “felon with a firearm” law
  • 1.3. Penal Code 29805 — California’s 10-year firearms ban
  • 1.4. California protective or restraining orders
  • 1.5. Confiscation of your firearm after a domestic violence arrest
• 2. Federal firearms law and domestic violence
  • 2.1. The conflict between federal and California law
  • 2.2. The Gun Control Act of 1968 – 18 USC 921-930
  • 2.3. The Lautenberg Amendment – 18 USC 922(g)(8) and (9)
  • 2.4. Domestic violence protective orders and federal firearms law
  • 2.5. Domestic violence convictions
    • 2.5.1. The legal definition of a felony under federal firearms law
    • 2.5.2. The federal definition of “misdemeanor crime of domestic violence”
  • 2.6. Penalties for possessing a firearm in violation of the federal ban
• 3. Expungements and California governor’s pardons
• 4. How can I preserve my gun rights following a California domestic violence arrest?
  • 4.1. Fighting domestic violence charges
  • 4.2. Negotiating a plea bargain
• Additional resources

1. Loss of California gun rights after a domestic violence conviction

Following a domestic violence conviction in California, you must give up possession of your firearms. Possession comprises:

• actual possession, such as carrying the gun on your person; and
• constructive possession, such as keeping the gun in your car, closet, storage unit, office, or anywhere else you have control.

Pursuant to PC 29810, you have only 48 hours after your conviction to sell or transfer your guns. (If you are in custody, you have 14 days.)

Be sure to keep proof of your gun sale or transfer to show your probation officer and the court. Otherwise, the court can issue a warrant authorizing police to search for your guns.

1.1. California’s legal definition of “domestic violence”

In California, domestic violence is defined as the abuse of:

• your current or former spouse,
• a person with whom you live or have lived (a “cohabitant”),
• the mother or father of your child,
• anyone you are or were dating, and
• a current or former fiancé(e).

This is a broader definition than under federal law. As discussed in Section 2.5., below, federal law does not define offenses against people you have dated as domestic violence.

1.2. Penal Code 29800 PC, California’s “felon with a firearm” law

Penal Code 29800 PC is California’s “felon with a firearm” law. Despite its name, this law actually covers more than just felonies. PC 29800 prevents four groups of people from owning, possessing, purchasing, or receiving firearms:

1. people who have been convicted of a felony offense in any state or country,
2. people who are addicted to a narcotic drug,
3. people with two or more convictions for Penal Code 417(a)(2), brandishing a firearm, and
4. people with just one conviction for certain weapons-related misdemeanors.

The law also applies to minors who were convicted of any of the above offenses when they were tried as adults.

Domestic violence that results in an injury – even a minor one – as the result of physical force can be filed as a felony. This includes both wounds and injuries from strangulation or suffocation.

Violation of Penal Code 29800 is also a felony. Conviction subjects you to:

1. 16 months, or two (2) or three (3) years in the California state prison, and/or
2. a maximum $10,000 fine.

You may also be required to forfeit your weapon.

1.3. Penal Code 29805 — California’s 10-year firearms ban

Many domestic violence charges do not involve physical injuries. These offenses can only be charged as misdemeanors. In addition, prosecutors will sometimes allow you to plea to a misdemeanor when felony domestic violence has been charged.

Under Penal Code 29805 PC, there are about 40 specific misdemeanor convictions that carry a ten-year firearms ban.

These include the following crimes of domestic violence:

• Penal Code 243(e)(1) PC California’s domestic battery law,
• Penal Code 243.4 PC California’s law against sexual battery,
• Penal Code 422 PC PC California’s criminal threats law,
• Penal Code 646.9 PC California’s stalking law, and
• Penal Code 273.6, violation of a protective order.

Note that a misdemeanor conviction under Penal Code 273.5 PC (corporal injury on a spouse or cohabitant) carries a lifetime loss of gun rights despite it being only a misdemeanor. See California AB 3129 (2019).

If you are convicted of – or you plead guilty to – one of these misdemeanor crimes (other than PC 273.5), California law prohibits you from possessing a firearm for 10 years. When the 10 years are up, you do not need to do anything: Your California gun rights are automatically restored as long as you are not otherwise prohibited from owning a firearm.

However, as discussed below, federal law still most likely prohibits you from possessing a gun.

In addition, if you violate Penal Code 29805, you face possible:

1. imprisonment of up to one year in county jail or California state prison, and/or
2. up to a $1,000 fine.

1.4. California protective or restraining orders

Protective orders are commonly issued in connection with domestic abuse allegations.

California Penal Code 29825 PC makes it a crime to possess or purchase a firearm if you are subject to a protective order that bars you from possessing a gun. If such a restraining order is taken out against you, you must surrender your guns to the police:

• immediately upon request or
• within 24 hours if there is no request.

Otherwise, you risk being charged with violating a restraining order.

A “protective order” is one that:

• forbids specific acts of abuse;
• excludes you from a dwelling; and/or
• forbids other specified behaviors the court determines necessary to effectuate either of the first two types of orders. For purposes of California restrictions on gun possession, it does not matter whether the protective order was ex parte, after notice and hearing, or as part of a judgment.

Under Assembly Bill 818, police will temporarily confiscate your guns if they serve a domestic violence protective order against you.

1.5. Confiscation of your firearm after a domestic violence arrest

If you are arrested for a California domestic violence offense, the investigating law enforcement officer is legally required to confiscate any firearms or other weapons that were:

• allegedly used during the commission of the offense,
• in plain sight, or
• discovered during a lawful search of your person/premises.

If your gun is considered evidence, law enforcement will keep it until the resolution of your case. If you are acquitted – and you lawfully possessed your weapon – it will likely be returned to you.

However, the firearm will most likely be declared a nuisance and subject to destruction if:

• you possessed the gun illegally, or
• you are convicted of the charges.

Note that under Assembly Bill 818, police must temporarily confiscate guns at the scene of a domestic violence incident involving a threat to human life or a physical assault.

2. Federal firearms law and domestic violence

2.1. The conflict between federal and California law

Under the Supremacy Clause of the United States Constitution, federal law prevails over California law.

Therefore, even if you are only subject to a 10-year ban under California law, if your offense qualifies as a misdemeanor crime of domestic violence (“MCDV”) under federal law, you are banned from owning firearms for life.

2.2. The Gun Control Act of 1968 – 18 USC 921-930

The Gun Control Act of 1968 is set forth in sections 921 – 930 of Title 18 of the United States Code.

Since it was passed, this act has prohibited convicted felons and certain other people from:

• possessing guns in or affecting commerce, or
• receiving any firearm or ammunition thas has been shipped or transported in interstate or foreign commerce.

You meet the commerce requirement if your gun was shipped or transported from another state or country, and you know that you have the weapon.

2.3. The Lautenberg Amendment – 18 USC 922(g)(8) and (9)

In 1996, the Lautenberg Amendment to the Gun Control Act expanded the list of people federally prohibited from possessing a gun. Added were:

• people under restraining orders for harassing, stalking, or threatening an intimate partner or their child, and
• people convicted of a misdemeanor crime of domestic violence.

Let’s take a closer look at these two categories.

2.4. Domestic violence protective orders and federal firearms law

Domestic violence protective orders are sometimes referred to as “DVPO,” restraining orders, or “no contact” orders.

Under 18 USC 922(g)(8), you are prohibited from possessing a firearm if you are subject to a DVPO restraining you from:

• harassing, stalking, or threatening an intimate partner and/or his or her child, or
• engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury.

For purposes of this law, an “intimate partner” is:

• your current or former spouse,
• the mother or father of your child, or
• someone with whom you live or have lived (a “cohabitant”).

In order for the firearms prohibition to apply, you must have received actual notice of the DVPO hearing and had an opportunity to participate. An ex-parte order – that is, an order issued in emergency circumstances that does not give you notice and an opportunity to participate – does not subject you to the federal ban.

In addition, for the federal ban to apply the protective order must also:

• include a finding that you represent a credible threat to the physical safety of such intimate partner or child; or
• by its terms explicitly prohibit the actual, attempted, or threatened use of physical force that would reasonably be expected to cause bodily injury to your intimate partner or child.

This precise language does not need to be contained in the court order. However, the order must contain explicit terms that are substantially similar in meaning. A court order that merely requires “no contact” does not meet this requirement.

As you can see, the requirements for the federal ban based on a DVPO are much stricter than the California ban. However, the penalties are more severe.

If you are convicted in federal court of illegal possession of a firearm based on a DVPO, you face:

1. a fine of up to $250,000, and/or
2. up to 10 years in federal prison.

2.5. Domestic violence convictions

2.5.1. The legal definition of a felony under federal firearms law

The federal definition of a felony covers anyone who has been convicted, in any court, of a crime punishable by imprisonment for a term exceeding one year.

It is not necessary that you actually have been sentenced to more than a year’s imprisonment. If you are convicted of a felony, you are covered by the federal definition, even if you were granted probation.

Felony domestic violence can be punished by more than one year’s imprisonment in California. As a result, if you are convicted of California felony domestic violence, you are subject to a lifetime federal firearms ban (as well as the lifetime ban under California law).

2.5.2. The federal definition of “misdemeanor crime of domestic violence”

Federal law defines “misdemeanor crime of domestic violence” (“MCDV”) as an offense that:

1. is a misdemeanor under Federal, State, or Tribal law;
2. has, as an element:
   • the use or attempted use of physical force, or
   • the threatened use of a deadly weapon; and
3. is committed by:
   • a current or former spouse of the victim,
   • a 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.

Note that this definition is more expansive than that of “intimate partner” for purposes of the section of the law applicable to protective orders.

Additionally, this definition differs from the California definition of domestic violence in several important respects:

• you must have been represented by counsel, or have knowingly and intelligently waived that right;
• you must have been entitled to a jury trial and either (1) been tried by a jury, or (2) knowingly and intelligently waived that right;
• offenses against people you have dated (but never married, never lived with, and never had children with) do not count as MCDV; and
• to qualify as an MCDV under federal law, the offense must have involved the use or attempted use of force, or the threatened use of a deadly weapon.

So as you can see, an offense that counts as a crime of domestic violence under California law is not necessarily one under the federal statute.

Example: Bob threatens to choke his ex-wife the next time she takes their kids somewhere without his permission. He gets convicted of making criminal threats under California Penal Code 422 PC. Under California law, this conviction triggers a 10-year firearms ban.

But this conviction does not generate a federal ban on Bob’s gun rights. This is because there was no actual physical force or threatened use of a deadly weapon. As a result, unless Bob does something else that legally restricts his gun rights, Bob will be entitled to possess a firearm in 10 years’ time.

Conversely, there may be some offenses that qualify as federal crimes of domestic violence, even though they do not meet the California definition.

Example: Janet is convicted of Penal Code 415 PC, California’s “disturbing the peace” law for shoving her husband in public. This is not a crime that triggers a California firearms ban. But it could conceivably trigger the federal lifetime ban because it:
1. was committed against a spouse, and
2. involved the use of physical force.

However, the Ninth Circuit U.S. Court of Appeals has held that simple battery under California Penal Code section 242 is not a misdemeanor crime of domestic violence. The court explained that the federal ban requires conduct more serious than mere offensive touching. A state conviction in which no force – or only minimal force – was used or attempted does not qualify.

Thus it is not entirely clear whether a federal court would consider shoving to be force significant enough to meet the federal requirement.

What is clear, however, is that if even one of the elements required under the federal statute is not met, California law alone dictates whether – and when – your gun rights will be restored.

2.6. Penalties for possessing a firearm in violation of the federal ban

If you possess a firearm when you are subject to a DVPO or have a domestic violence conviction that subjects you to the federal ban, you face:

1. a fine of up to $250,000; and/or
2. up to 10 years in a federal prison.

Note that there is no parole in the federal prison system. If you are convicted of violating the federal firearms ban, you will serve your full sentence, less only a possible good behavior reduction of approximately fifteen percent.

3. Expungements and California governor’s pardons

Getting your California conviction expunged will not restore your gun rights.

The only measure that can restore gun rights is a California gubernatorial pardon that is:

• “full and unconditional” or
• expressly provides that you may possess a gun.

However, misdemeanor domestic violence convictions cannot be pardoned by the California governor. Only felony-level convictions (and certain misdemeanor sex crimes) are pardonable.

If you do receive a governor’s pardon that restores your gun rights, federal law will excuse you from the lifetime ban.

Thus the only way to ensure that you don’t lose your gun rights is not to be convicted of a crime of domestic violence in the first place.

4. How can I preserve my gun rights following a California domestic violence arrest?

As discussed, federal law prohibits restoring your gun rights following a domestic violence conviction. So the goal is to prevent these rights from being taken away in the first place. There are two steps we take to try to achieve this goal following a client’s arrest on domestic violence charges:

1. fight the case, and/or
2. negotiate a plea bargain.

4.1. Fighting domestic violence charges

The first step is to fight your domestic violence charge. Our California criminal defense attorneys will evaluate all available legal defenses to challenge the allegation. If there is a good defense available, we may be able to secure a dismissal or acquittal.

Unfortunately, sometimes the evidence against you is simply too strong to fight the charge successfully. When this is the case, we try to negotiate a plea bargain.

4.2. Negotiating a plea bargain

Plea bargaining is a useful tool for both sides. It allows the prosecution to obtain a conviction and allows you to plead guilty to a lesser offense. In addition to carrying a less severe sentence, a lesser offense often carries less of a social stigma.

Just as importantly, some lesser offenses do not trigger a firearms ban.

As Ventura County criminal defense attorney Nicole Valera explains:

“We usually try to plea bargain cases down to California Penal Code 602 trespass – a common plea bargain charge. When that’s not possible, we’ll at least do our best to plead you to a charge that is unrelated to domestic violence. If the charge is unrelated to domestic violence, you will not be subject to the federal lifetime firearms ban.”

Example: Julien barges into his ex-wife’s office and wraps his hands forcefully around her throat. He is charged with a misdemeanor violation of Penal Code 273.5 for intentionally inflicting corporal injury on a former spouse. PC 273.5 is one of the misdemeanors that triggers a lifetime firearms ban in California (for convictions on or after January 1, 2019). In addition, because this crime involves physical force, a conviction on this charge would subject him to the lifetime federal firearms ban.

If instead, however, Julien is able to plead to simple battery under Penal Code 243, he should be able to avoid the federal ban. Since simple battery does not require the use of force, the Ninth Circuit has held that it does not meet the federal definition of a misdemeanor crime of domestic violence. It is, however, a charge that triggers California’s 10-year firearms ban. So Julien will be able to possess a gun once the California 10-year period has expired.

However, let’s say that Julien is allowed, instead, to plead to Penal Code 602 trespass. Trespass triggers neither the California 10-year ban nor the federal lifetime ban on possessing a gun. Thus as long as Julien is not otherwise legally prohibited from owning a gun, the trespassing conviction will allow him to possess a firearm without restriction.

Additional resources

If you or someone you know is a victim of domestic violence, call 911. Otherwise, you can find help, information and advocacy in the following places:

• Domestic Violence Organizations in California – California Partnership to End Domestic Violence
• California Domestic Violence Help, Programs and Statistics – DomesticShelters.org
• State Resources: California – WomensLaw.org
• Domestic violence in California: Resources for survivors, advocates, and allies – Blue Shield of California Foundation
• National Domestic Violence Hotline

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