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Domestic Violence And The Brady Disqualifier

by | Dec 4, 2015 | Domestic Violence

Domestic Violence And The Brady Disqualifier

Domestic violence is a serious crime. When family or household members-usually two spouses-get into a heated argument, one of them may think calling the police is a good idea. He or she may think if police officers arrive at the scene, the officers will facilitate a resolution to the situation or at the very least, help the other spouse cool down and then, be on their way. Little do these individuals know about the unwritten rule whereby officers, when dispatched to a domestic violence dispute, nearly always arrest one of the parties. This is what the officers are trained to do. Nearly every time, one of the parties will volunteer information to the officer in order to help the situation when in reality, that party is offering incriminating evidence to the officer not knowing the officer is about to arrest someone. This is an unintended consequence our law firm commonly sees in domestic violence cases.

What The Law Says

Under Ohio law, assuming the alleged victim is not pregnant and the person charged does not have any prior domestic violence convictions on his or her record, domestic violence is typically charged as a misdemeanor under either subsection (A) or (C) of the statute. Subsection (A) of the statute states, “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” A violation of subsection (A) is a first- degree misdemeanor, meaning it is punishable by up to a maximum of 180 days in jail and a $1,000 fine. Subsection (C) of the statute states, “No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member.” A violation of Subsection (C) is a fourth-degree misdemeanor, meaning it is punishable by up to 30 days in jail and a $250 fine. 

The Right To Possess A Firearm

Domestic violence charges are especially concerning for individuals who want to possess a firearm. These include hunters, police officers, military personnel, or CCW holders. This is because under federal law, a domestic violence conviction prohibits an individual from possessing a firearm if he or she has been convicted of a misdemeanor crime of domestic violence. This federal rule is known as the “Brady Disqualifier.” Interestingly, the federal law defines a “misdemeanor crime of domestic violence” as a crime that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a former or current spouse.”

Under Ohio law, subsection (C) does not fit under this federal definition because the threatened force under subsection (C) does not involve a weapon. Therefore, if someone is convicted of the lesser offense-the fourth degree misdemeanor under subsection (C)-that person would not lose his or her ability to possess a firearm as it would not amount to a Brady Disqualifier. However, the first degree misdemeanor under subsection (A) is a Brady Disqualifier as it has as an element the use or attempted use of physical force. 

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