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Author’s note: this is part 3 in a series of educational posts I am going to write about State of Ohio and federal weapon and firearm laws. Part 1 can be found here. This post does not offer legal advice. I am not a lawyer. I am a Certified Firearm Specialist through the International Firearm Specialist Academy and the State of Ohio certifies me to teach Ohio’s weapon laws in the Basic Police Academy. I’ve spent quite a bit of time studying federal law and Ohio’s laws in 30 years on the job. More than anything, this series of posts is an attempt to educate people on portions of the law and to show them where they can find the laws so that they can educate themselves further. Please consult with an attorney who specializes in firearms and weapons law if you have questions that require a legal opinion. If you are a law enforcement officer, check with your jurisdiction’s legal counsel for guidance. And remember, not all attorneys are created equal. And keep in mind that laws, interpretations of laws and definitions change. So what was current at the time I published this article may have changed over time.
If you have not read Constitutional Carry part 1, I suggest you go do so before continuing. Things will make more sense if you do. We ended the last article after talking about the first three subsections of 18 USC 922(g). So we will continue with the remaining six sections. For clarity, I’ll use the subsection number for the corresponding paragraph of discussion.
(4) – the most important words to understand in (4) are adjudicated and committed. Adjudication can only be done by a judge, board or commission that has the legal authority to make a legal determination that someone is a “mental defective”. Although there are other ways someone can be mentally defective, what most people think of when they hear the term is usually someone who was found not guilty by reason of insanity during a criminal case. And similarly, commitment to a mental institution can only be done by a judge, board or commission who has the legal authority to do so. This sort of legal commitment does not include the type of involuntary commitment that doctors, mental health professionals and law enforcement officers are authorized to order for someone suffering a mental health crisis (suicidal statements, etc.). Those commitments are temporary only and are for observation purposes. Like many prohibitions on possessing firearms, there are ways to get “relief” from the prohibitions in this section. More information can be found here.
(5) – this one is pretty self explanatory. If you are unlawfully in the U.S., then you may not possess firearms. There are exceptions for people who enter the U.S. legally. More information can be found here.
(6) – there are eight types of military discharges. Dishonorable being the rarest and most severe. Although this section has been found to be constitutional in the passed, I wouldn’t be surprised if dishonorable discharges for non-violent offenses will be successfully challenged in the future due to Bruen. More information can be found here.
(7) – this one is also pretty self explanatory and doesn’t rate any further discussion.
(8) – “Court orders”, otherwise known as protection orders. Not all protection orders are created equal. The first thing to understand about protection orders is that there are different types. Here in Ohio there are two broad categories of protection orders. I will refer to them as “temporary protection orders (TPO)” and “protection orders (PO)”. A TPO is associated with a criminal case and only lasts as long as the criminal case is ongoing. If the defendant is found guilty, not guilty or the case gets dismissed, the TPO ends when the case has a disposition.
On the other hand, a PO does not necessarily require a criminal case to accompany it, although it often does. POs usually have definite time lengths associated with them and must be renewed from time to time. When someone applies for a PO, their application is reviewed and, assuming there is enough information to back it up, the initial order – an ex parte order – is issued by the Judge. This is a preliminary order that carries the force of law once it is served on the defendant or the defendant is notified about it (meaning the police can make an arrest for violating it). But it is not the final order and is not an order that is covered by 922(g)(8). Because of the due process rights we all have under the 5th and 14th Amendments, the defendant must be afforded the opportunity for a hearing in front of a judge where they can present arguments as to why the “full” protection order should be denied. Kind of a mini-bench trial. After hearing both sides, the Judge will make a decision and grant a full PO or dismiss the ex parte order. Should the Judge grant the PO, it would then become a PO of the type discussed in (g)(8). More information about protection orders can be found here.
Just because someone is subject to a protection order does not mean that 18 USC 922(g)(8) applies to them. (g)(8) only applies to protection orders where the protected person is an “intimate partner” of the defendant. In addition to the protected person being an intimate partner, three other conditions must be met before (g)(8) applies: there must be a hearing; an order restraining future conduct; and a finding that there is a credible threat or physical force involved.
– There is more information here.
A few years ago, Ohio created a new form of protection order called a “post-conviction no contact order” or PCNCO. PCNCOs arise after a criminal conviction and are basically a condition of probation that is formally entered into LEADS and NCIC (the computer systems law enforcement uses to check people for warrants, etc.). The kicker to a PCNCO is, unlike a TPO or PO, violating a PCNCO doesn’t mean the defendant will get arrested by local law enforcement if they violate it. It’s a probation arrest, which can be made by law enforcement, but not without an agreement with the probation department supervising the defendant. There is a lot more to that, but the important part for our purposes is that they are considered protection orders under federal law. More info can be found here.
The Supreme Court has ruled on the constitutionality of (g)(8) after their Bruen decision. According to the ruling, (g)(8) did not infringe on a person’s 2nd Amendment rights. That case is U.S. v. Rahimi.
(9) – “who has been convicted in any court of a misdemeanor crime of domestic violence”. A violation of this subsection is the type of case that made me decide to write these articles. Many people have fallen into a trap involving this section. Here is the trap – after initially being charged with domestic violence, they pled guilty to a different charge. This can be done for a variety of reasons. Maybe just the stigma of being convicted of DV, or they know it can affect their 2nd Amendment rights. Only later do they learn that the charge they pled to is actually considered a “misdemeanor crime of domestic violence” for the purposes of federal law. And then it may be too late. So what is a misdemeanor crime of domestic violence?
As you can see, it has two main elements – it has to be a misdemeanor and there has to have been the use or attempted use of force, or a threatened use of a deadly weapon. Additionally, the defendant must fall within a certain group of people. The people within the group are all related to or well known to the victim, but may not be the “intimate partner” referenced in (g)(8). Interestingly enough, you will not find siblings listed within that group of people. More info about these relationships and (g)(9), in general, can be found in this ATF document.
Why can this be confusing? Well, certain crimes are not, at first glance, crimes that people would normally associate with domestic violence but would fall under the federal definition of a misdemeanor crime of domestic violence (DV). Take the (Ohio) crime of disorderly conduct (DC) for example. One subsection of DC (2917.11(A)(1)) includes, as an element, “engaging in fighting, in threatening harm to persons”. DC is usually associated with people mutually fighting for one stupid reason or another. This would appear to satisfy the “use or attempted use of force” element of the definition. Does this mean that someone who is initially charged with DV and then takes a plea to a reduced charge of DC is guilty of committing a misdemeanor crime of DV? That is a really good question and one that, if it applies to you, should be asked to an attorney who specializes in Ohio weapon laws (or whatever state you live in). Over the years I have seen cases where it did apply and others where it did not. This is a very convoluted topic, but here is a good resource from the Ohio Supreme Court.
Additionally, the ATF document linked above also discusses some exceptions to (g)(9). For example, if the defendant was not represented by counsel, the conviction may not fall within the realm of 922(g)(9). Once again, this is something that should be discussed with an attorney who specializes in weapon laws.
Well, that wraps up the federal law portion of 2923.111. Can you see why I have issues with how this was incorporated into Ohio law without any provision for effective training for law enforcement? One final thought for you to ponder until I wrap up the permitless carry articles – how is an Officer supposed to figure out all of this on the side of the road during a traffic stop and how long can they detain you while they figure it out?
Authors end note: I cannot stress this enough – the Bruen decision has changed the face of 2nd Amendment jurisprudence and we will be seeing the ripple effects of this decision for years to come. Here is a good article about Bruen.