Fact-Checked: Why Trust Rittgers Rittgers & Nakajima Will I Lose My Gun Rights If Convicted Of A Crime In Ohio?
Many folks contact our law firm Rittgers Rittgers & Nakajima about restoring their gun rights. The 2nd Amendment of the U.S. Constitution and Article I, Section 4 of the Ohio Constitution secures our right to bear arms; however, this right is not absolute. Under some circumstances, one’s right to possess a firearm can be taken away by the government. In fact, being convicted of certain criminal offenses will trigger a disqualification, commonly known as a “Brady Disqualifier” or “Brady Disqualification” in the legal realm.
The federal statute, 18 U.S.C. Section 922(g) outlines a number of reasons which disqualify an individual from possessing a firearm. Insofar as criminal convictions are concerned, this statute triggers a disqualification upon a conviction for a criminal offense that carries with it a potential term of imprisonment for over one year (regardless of whether prison was actually imposed). This law also makes individuals ineligible to own or possess a gun if they have been convicted of a misdemeanor crime of domestic violence, which is defined in 18 U.S.C. Section 921(a)(33):
[A] misdemeanor… that has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim or by a person who has a current or recent former dating relationship with the victim.
Under Ohio Law, What Crimes Will Trigger The Brady Disqualifier?
Because federal law makes it illegal for an individual to possess a firearm when convicted of any crime punishable by a term of imprisonment exceeding one year, any criminal conviction in Ohio where the offense is more serious than a fifth-degree felony (an “F5”) would constitute the federal disqualification. This essentially means any fourth-degree (“F4”), third-degree (“F3”), second-degree (“F2”), or first-degree (“F1”) felony conviction for a criminal offense under Ohio law will trigger the federal disqualifier.
If Convicted Of A Misdemeanor Crime Of Domestic Violence In Ohio, Do I Automatically Lose My Gun Rights?
Not necessarily. The Ohio Revised Code (“R.C.”) technically has three forms of misdemeanor domestic violence offenses; however, there are two misdemeanor variations of the offense that law enforcement files on a regular basis.
One is a first-degree misdemeanor (an “M1”) found in R.C. 2919.25(A), which states: “No person shall knowingly cause or attempt to cause physical harm to a family or household member.” This is the most-common misdemeanor domestic violence charge we see filed.
The other misdemeanor domestic violence offense we often see filed is the fourth-degree misdemeanor (“an M4”), which is found in R.C. 2919.25(C). That statute says: “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 conviction of Ohio’s first-degree misdemeanor domestic violence offense as outlined above constitutes a federal disqualifier for one’s gun rights because it falls squarely within the federal disqualification’s definition. Ohio’s fourth-degree misdemeanor domestic violence offense, however, would not trigger the Brady Disqualification. Why? Take a closer look at how the applicable federal statute defines “misdemeanor crime of domestic violence.”
Ohio’s fourth-degree misdemeanor domestic violence variant does not involve either the use or attempted use of physical force, or the threatened use of a deadly weapon as an element of the offense. So, even if the fact pattern involved someone threatening a family member with a deadly weapon and the individual was charged with Ohio’s M4 domestic violence offense, it would not trigger the Brady Disqualification.
If I Have Been Convicted Of A First-Degree Misdemeanor (“M1”) Domestic Violence In Ohio, Can I Get My Gun Rights Back?
The short answer is very likely not, unless the federal law changes. The only exception to this rule is if you can successfully reopen the case by withdrawing the guilty plea (also known as vacating the guilty plea or a set-aside), and either: 1) plead guilty to a different misdemeanor crime that does not involve causing or attempting to cause physical harm as an element of the offense (when the victim happens to be family member) ; or 2) take the case to trial and be found not guilty.
Successfully withdrawing a guilty plea, however, is difficult to do unless: 1) you can demonstrate the plea was not made knowingly, voluntarily, or intelligently; or, 2) the prosecutor agrees to permit you to withdraw your guilty plea and the court honors that agreement.
It is difficult to show a plea was not made knowingly, voluntarily, or intelligently because when a court accepts a defendant’s plea, it is supposed to—and usually does—engage in an inquiry with the defendant on the record to ensure the defendant understands the nature of the allegations & consequences of the plea, and is not being threatened or coerced in any way to plead guilty.
Additionally, it is rare a prosecutor would agree to permit a defendant to withdraw their guilty plea to a first-degree misdemeanor domestic violence charge—especially if the prosecutor was unwilling to reduce the first-degree misdemeanor domestic violence charge in the first place. Also, unless the government agrees to re-open the case and permit a plea to a different crime, then upon a successful re-opening of the case, the defendant would now have the original charge pending and would have to risk a conviction at a trial.
That said, withdrawing a guilty plea can be accomplished under some circumstances. We have represented people before on this precise issue and have been successful in vacating guilty pleas in an effort to achieve a better outcome for our clients.
Will An Expungement Restore My Gun Federal Gun Rights?
Technically, the answer is yes; an expungement restores civil rights and the ability to legally possess a firearm under federal law.
The issue, however, is Ohio law does not permit a first-degree misdemeanor domestic violence conviction to be expunged. This law is found in R.C. 2953.32(A)(1)(g). In fact, that same law does not even permit a first-degree misdemeanor domestic violence conviction to be sealed (and even if it did, sealing an M1 DV conviction would not provide a remedy for restoration of 2nd amendment rights).
Will I Lose My Gun Rights If I Am Convicted of a Misdemeanor Assault In Ohio?
Like a typical lawyer’s answer: it depends. If the offense falls under the federal definition of misdemeanor crime of domestic violence, then yes.
In other words, it depends on who the victim is.
In Ohio, assault involves causing or attempting to cause physical harm to another or another’s unborn. It does not necessarily involve (meaning, the elements of the offense do not require) the victim to be a family or household member.
However, if the victim of the assault was: a current or former spouse of the defendant; a child or dependent of the defendant; a person with whom the defendant shares a child; a person who lives or has lived with the defendant as a spouse, child, or dependent; or a person who has a current or recent former dating relationship with the defendant, then the Brady Disqualification applies.
Under this scenario, however, would the defendant have the ability to expunge their assault conviction? Yes, unless the victim of the assault was under the age of 13. (See R.C. 2953.32(A)(1)(d)). Would that remove the Brady Disqualification and restore their gun rights? Yes.
Is The Brady Disqualification Different From Ohio’s Weapons Under Disability Law?
Yes. Keep in mind, this blog focuses on the implications certain Ohio criminal convictions have on federal gun rights—i.e., specific Ohio criminal convictions that trigger the Brady Disqualifier. However, an individual would also lose his or her right to bear arms in Ohio if convicted of a felony offense of violence as defined under R.C. 2901.01(A)(9) or a felony drug possession or felony drug trafficking offense. This can be found under Ohio’s Weapon’s Under Disability statute, R.C. 2923.13 (A)(2) and (A)(3).
Additionally, it is important to remember this blog focuses on what criminal convictions under both, Ohio and federal law trigger firearm disqualifications. However, there are a number of circumstances (separate and apart from being convicted of a criminal offense) that can trigger firearm disqualifications under both, federal law per 18 U.S.C. Section 922(g), and Ohio’s Weapon’s Under Disability statute.
Hire An Experienced Criminal Lawyer Who Handles Motions to Withdraw Convictions, Motions to Seal, Expungements, and Who Understands Gun Rights
We have seen Ohio’s criminal laws change numerous times over the last few decades. And there have been many recent changes in Ohio’s sealing and expungement laws. These expungement laws can and do affect gun right restoration under federal and Ohio law.
It is crucial you hire an experienced criminal defense lawyer who is up to date on the current status of Ohio sealing & expungement laws, who understands how Ohio criminal law relates to the federal law, who understands the implications of your 2nd amendment rights, and who understands all of the legal nuances in between.
For a free consultation, do not hesitate to contact the experienced criminal defense team at Rittgers Rittgers & Nakajima at 513-496-0134.