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St. Petersburg Attorney Explains the Effect Supreme Court Ruling Prohibiting Individuals Convicted of Domestic Violence from Gun Ownership in Florida

Melinda Morris
By: Melinda Morris
Jun. 27 2016

Today, in the case Voisine v. United States, the United States Supreme Court upheld federal legislation prohibiting individuals convicted of misdemeanor domestic violence from gun ownership. Under 18 U.S.C. §922(g)(9) it is unlawful for an individual convicted misdemeanor domestic violence to possess a firearm.

In an earlier Supreme Court case, United States v. Castleman, the Court established that an individual may be barred from owning or possessing a firearm after a conviction for intentional domestic assault; however, two petitioners from Maine challenged the overall ban of gun ownership asserting 18 U.S.C. §922(g)(9) did not include convictions for reckless domestic assault.

Under Maine Criminal Code §207, a person may be convicted of domestic assault if he or she intentionally, knowingly or recklessly causes bodily injury or offensive physical contact to another person”. 34 states, including the District of Columbia, contain similar “reckless conduct” language in domestic violence statutes.

Can an Individual Lose Gun Ownership Rights After a Domestic Violence Conviction?

The Supreme Court relied heavily on legislative history when concluding that Congress intended for persons convicted of reckless domestic assault be barred from gun ownership under federal law. Decades before U.S.C. §922(g)(9) was enacted, the Model Penal Code (a proposed criminal code states may adopt either in part or in full) took the position that mens rea or mental state of recklessness was sufficient to establish criminal liability.

In Voisine the Supreme Court concluded “a person who assaults another recklessly uses force, no less than one who carries out that same action knowingly or intentionally”. Recklessness is more than a true accident. When an individual engages in reckless conduct he or she recognizes the substantial risk of injury even if he or she did not know for certain injury would occur.

As a result, there is no exclusion in federal statute, which would allow an individual convicted of reckless domestic assault to own or possess a firearm. The Court further concluded “[f]irearms and domestic strife are a potentially deadly combination”.

Domestic Violence Statute in Florida

Unlike Maine, Florida’s domestic assault statute does not contain “reckless” language. Under Florida Statute §784.011, an assault is an intentional, unlawful threat  by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

The assault is considered domestic violence under Florida Statute §741.28 if the criminal conduct was committed against the following persons:

  • Spouses or 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 a family; and
  • Persons who are parents of a child in common regardless of whether they have been married.

How Does the Supreme Court Case Affect My Gun Rights in Florida?

As earlier stated the Florida domestic violence statute does not contain reckless language and only includes intentional conduct. Therefore, it was established in the Castleman case that individuals convicted of domestic violence under Florida law are prohibited from owning or possessing a firearm. The prohibition under 18 U.S.C. §922(g)(9) is a lifetime ban and generally cannot be waived following a domestic violence conviction.

Many people enter a plea to domestic violence charges without realizing they are losing an important constitutional right. If charged with domestic violence, it is important to consult an experienced domestic violence defense attorney. An experienced attorney can fully assess your case and explain your legal options.

Melinda Morris of the Morris Law Firm, P.A. is a former state prosecutor and knows what it takes to build the strongest defense in your domestic violence case. The attorneys at Morris Law Firm aggressively defend individuals facing any domestic violence charges, including domestic assault, domestic battery, child abuse, child neglect, stalking, and violation of a restraining order.

Contact Morris Law Firm, P.A. at (727) 388-4736 for a confidential review of your domestic violence case. The Morris Law Firm, P.A. represents clients throughout Florida, including Pinellas, Hillsborough, Sarasota, Pasco, Manatee counties, and surrounding areas.

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