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There are two sets of laws concerning gun rights. There are Federal requirements pursuant to 18 U.S.C. § 922(g). And then there are the stricter gun rights pursuant to California law (Pen. Code, § § 29800-29825, 29900; Welf. & Inst. Code, § § 8100, 8103).

Who Is Not Eligible To Possess Guns & Ammunition (Federal Law)

Pursuant to Federal Law it is unlawful for the following people to possession or own guns and/or ammunition.

  1. anyone who has been convicted of a felony;
  2. anyone who has been convicted in any court of a misdemeanor crime of domestic violence (there are some instances in which a domestic violence conviction would not apply, please see below);
  3. anyone who is a fugitive from justice;
  4. anyone who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802);
  5. anyone who has been adjudicated as a mental defective or who has been committed to a mental institution;
  6. anyone who, being an alien--
    1. is illegally or unlawfully in the United States; or
    2. except as provided in subsection (y)(2), has been admitted to the United States under a non-immigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
  7. anyone who has been discharged from the Armed Forces under dishonorable conditions;
  8. anyone who, having been a citizen of the United States, has renounced his citizenship;
  9. anyone who is subject to a court order that--
    1. was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
    2. restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
      1. includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
      2. by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

Who Is Not Eligible To Possess Guns & Ammunition (California Law)

The following persons are prohibited from possessing firearms (Pen. Code § 29800-29825, 29900; Welf. & Inst. Code § 8100, 8103):

Lifetime Guns Prohibitions

  • Any person convicted of any felony or any offense enumerated in Penal Code section 29905.
  • Any person convicted of an offense enumerated in Penal Code section 23515.
  • Any person with two or more convictions for violating Penal Code section 417, subdivision (a)(2).
  • Any person adjudicated to be a mentally disordered sex offender. (Welf. & Inst. Code § 8103, subd. (a)(1).)
  • Any person found by a court to be mentally incompetent to stand trial or not guilty by reason of insanity of any crime, unless the court has made a finding of restoration of competence or sanity. (Welf. & Inst. Code § 8103, subds. (b)(1), (c)(1), and (d)(1) .)

10-Year Guns Prohibitions

  • Any person convicted of a misdemeanor violation of the following: Penal Code sections 71, 76, 136 .5, 140, 148, subdivision (d), 171b, 171c, 171d, 186 .28, 240, 241, 242, 243, 244 .5, 245, 245 .5, 246, 246 .3, 247, 273 .5, 273 .6, 417, 417 .1, 417 .2, 417 .6, 422, 626 .9, 646 .9, 830 .95, subdivision (a), 17500, 17510, subdivision (a), 25300, 25800, 27510, 27590, subdivision (c), 30315, or 32625, and Welfare and Institutions Code sections 871 .5, 1001 .5, 8100, 8101, or 8103.

5-Year Prohibitions

  • Any person taken into custody as a danger to self or others, assessed, and admitted to a mental health facility under Welfare and Institutions Code sections 5150, 5151, 5152; or certified under Welfare and Institutions Code sections 5250, 5260, 5270 .15 . Persons certified under Welfare and Institutions Code sections 5250, 5260, or 5270 .15 may be subject to a lifetime prohibition pursuant to federal law.

Juvenile Prohibitions

  • Juveniles adjudged wards of the juvenile court are prohibited until they reach age 30 if they committed an offense listed in Welfare and Institutions Code section 707, subdivision (b) . (Pen. Code § 29820.)

Miscellaneous Prohibitions

  • Any person denied firearm possession as a condition of probation pursuant to Penal Code section 29900, subdivision (c).
  • Any person charged with a felony offense, pending resolution of the matter. (18 U.S.C. § 922(g).)
  • Any person while he or she is either a voluntary patient in a mental health facility or under a gravely disabled conservatorship (due to a mental disorder or impairment by chronic alcoholism) and if he or she is found to be a danger to self or others. (Welf. & Inst. Code, 8103, subd. (e).)
  • Any person addicted to the use of narcotics. (Pen. Code § 29800, subd. (a).)
  • Any person who communicates a threat (against any reasonably identifiable victim) to a licensed psychotherapist which is subsequently reported to law enforcement, is prohibited for six months. (Welf. & Inst. Code § 8100, subd. (b).)
  • Any person who is subject to a protective order as defined in Family Code section 6218 or Penal Code section 136.2, or a temporary restraining order issued pursuant to Code of Civil Procedure sections 527.6 or 527.8.

How to Determine If You Are Eligible To Possess Guns & Ammunition

Any person may obtain from the DOJ a determination as to whether he or she is eligible to possess firearms (review of California records only). The personal firearms eligibility check application form and instructions are on the DOJ website. The cost for such an eligibility check is $20.

California Restoring Gun Rights For Domestic Violence Misdemeanors

A conviction of a domestic violence misdemeanor typically triggers a lifetime ban under federal law. You are not considered convicted of a dv unless you were: 1) represented by an attorney, or waived such representation; 2) you were tried by a jury, unless you waived your right to a jury trial.

California Domestic Violence

These two California Penal Code sections are typically considered domestic violence: 1) PC 273.5; and 2) 243(e). However, there are other California Penal Code sections that the feds may consider as domestic violence crimes to which the federal lifetime ban applies such as: 1) PC 242; 2) PC 240; and 3) PC 415. The California Courts have concluded that a person simply touching of another is not automatically considered prohibited from the lifetime ban.

California 10 Year Gun Prohibition

California has a 10 year prohibition for any person convicted of a misdemeanor violation of the following: Penal Code sections 71, 76, 136 .5, 140, 148, subdivision (d), 171b, 171c, 171d, 186 .28, 240, 241, 242, 243, 244 .5, 245, 245 .5, 246, 246 .3, 247, 273 .5, 273 .6, 417, 417 .1, 417 .2, 417 .6, 422, 626 .9, 646 .9, 830 .95, subdivision (a), 17500, 17510, subdivision (a), 25300, 25800, 27510, 27590, subdivision (c), 30315, or 32625, and Welfare and Institutions Code sections 871 .5, 1001 .5, 8100, 8101, or 8103.

In Federal Analysis: Relationship Status Is the Key

The required relationship status must be met in order to violate federal law. The facts of your relationship need to be analyzed. For example, someone you were dating or engaged to be married does not fit the definition of victim under the federal dv statute. That means if you were convicted of dv where the victim is one of these individuals, then you may not have a lifetime ban pursuant to 18 USC 922 because it may not be considered domestic violence.

For more information, contact a Los Angeles criminal defense lawyer at Wex Law by calling (844) 4WEX-LAW.

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