Provisions of the federal Gun Control Act of 1968 prohibit firearm possession by certain domestic violence perpetrators.
It is a federal crime for persons subject to qualifying protective orders to possess firearms or ammunition. In addition to Family Abuse Prevention Act (FAPA) Restraining Orders, firearms restrictions may apply to orders issued pursuant to the Elderly Persons and Persons with Disabilities Abuse Prevention Act (EPPDAPA), civil Stalking cases, and pretrial release conditions and probation conditions in criminal cases.
The federal prohibition lasts for the life of the protective order.
Law enforcement officers and military personnel are partially exempted from the restrictions in that they are permitted to use a service weapon in connection with that governmental service. This exemption is often referred to as the “official use exception.”
It is a federal crime to sell or otherwise dispose of a firearm or ammunition to a person if the transferor knows or has reasonable cause to believe that such person is subject to a qualifying protective order.
Misdemeanor Crimes of Domestic Violence
It is a crime for persons who have been convicted of qualifying misdemeanor crimes of domestic violence to purchase, receive, ship, transport, or possess firearms and ammunition. This prohibition is a lifetime ban.
There is no official use exception for MCDV convictions. Thus, a member of the armed forces or a law enforcement officer who has a qualifying misdemeanor conviction is not able to possess a firearm or ammunition, even while on duty.
In 1993, Congress enacted the Brady Handgun Violence Prevention Act (Brady Act). It requires all federally licensed gun dealers to obtain a criminal background check of firearm purchasers before completing a sale. In most cases, the check is made through the National Instant Criminal Background Check System or “NICS”, which is made up of several computer databases managed by the FBI. One of the databases is the National Crime Information Center Protection Order File, which contains information about state protection orders and state criminal history records.
During a background check, the FBI will search to determine whether the sale of the firearm would violate any state or federal laws. In Oregon, background checks are conducted by the Oregon State Police ID Services. If no state or federal prohibitions are found, the sale will be allowed.
ORS 166.433 sets forth Oregon policy: “The laws of Oregon regulating the sale of firearms contain a loophole that allows people other than gun dealers to sell firearms at gun shows without first conducting criminal background checks; it is necessary for the safety of the people of Oregon that any person who transfers a firearm at a gun show be required to request a criminal background check before completing the transfer of the firearm; and it is in the best interests of the people of Oregon that any person who transfers a firearm at any location other than a gun show be allowed to voluntarily request a criminal background check before completing the transfer of the firearm.”
The Violence Against Women Reauthorization Act of 2005 (VAWA) requires that states certify that their judicial administrative policies and practices include notification to domestic violence offenders of the requirements of the Brady firearm laws and any applicable related federal, state or local firearms laws.
ORS 135.385 Notice
ORS 135.385(2)(f) requires judges to inform defendants at a plea of guilty or no contest that, if the defendant enters a plea of guilty or no contest to an offense involving domestic violence, federal law may prohibit the defendant from possessing, receiving, shipping or transporting any firearm or ammunition and the conviction may negatively affect the defendant’s ability to serve in the Armed Forces of the United States or to be employed in law enforcement.
FULL FAITH AND CREDIT
VAWA 1994 includes full faith and credit provisions that require enforcement of protection orders across jurisdictional lines. These full faith and credit provisions require states to enforce protection orders issued in other jurisdictions as if they had been issued by the enforcing state as long as certain requirements are met. Full faith and credit provisions apply to firearm restrictions in protective orders and require that such restrictions be enforced even if the enforcing jurisdiction does not authorize judges to restrict firearm possession.
NO CONTACT ORDERS
ORS 107.720(1)(a) requires the county sheriff to enter FAPA orders into LEDS and NCIC once service is complete. ORS 135.250(2)(d) provides that ORS 107.720 applies to no contact orders (NCO) in release agreements executed by defendants charged with domestic violence offenses.
The Oregon Task Force on Firearms and Domestic Violence has developed a model protocol for LEDS entry and removal of No Contact Orders.
This website provides general legal information in summary form. The information is not a complete explanation of the law in this area, and it is not intended to substitute for legal advice. The law in this area may change, and the changes may not be noted here. Contact a lawyer for legal advice.