The 2nd Amendment, the right to bear arms, is always a topic of conversation. Although the right to bear arms is embedded in the United States Constitution, your right to bear arms is not unlimited and can be taken away from you.
Many people mistakenly believe only a felony criminal conviction can cause you to lose your right to legally own or possess a firearm. In fact, a felony conviction is only one way. In Georgia, there are a number of different ways you can lose your 2nd Amendment right to bear arms.
A misdemeanor conviction of any crime involving domestic or family violence will prevent you from being able to legally possess a firearm. A temporary protective order (TPO), which is typically in place for 12 months, will also prohibit you from legally possessing a firearm for that 12 month period. A family violence ex-parte order that is typically signed outside of your presence may also preclude you from possessing a firearm if the judge includes a firearm restriction in the order. Finally, any order that includes the qualifying findings and language listed below will trigger the firearms ban.
Federal Law: Firearms Restrictions
Federal law states that anyone who is convicted of a family violence or domestic violence crime will lose their right to own or possess a firearm. This includes misdemeanors under Georgia law as well as felony crimes. A violation of the federal firearms ban has a maximum sentence of 10 years in prison.
What qualifies as a crime of family violence?
Two factors must be met:
- Physical force or attempted physical force was used. Or a threat to use a deadly weapon.
- Incident involves a current or former spouse, an intimate partner, a parent or guardian, or between parents of a child.
The misdemeanor does not have to be identified as a family violence misdemeanor to trigger the restriction.
Any misdemeanor that has the elements of using or the attempted use of force or the attempted use of a deadly weapon will qualify if the defendant and the victim are related as required by the law.
A first offender plea in Georgia may not trigger the firearms ban
Under O.C.G.A. §42-8-60, a Georgia court may defer judgment of guilt and place a defendant on first offender status. If the defendant successfully completes the terms of the sentence, the defendant is discharged without an adjudication of guilt or a conviction. Without an adjudication of guilt or a conviction, a plea under first offender might not trigger the federal firearms ban because there is no conviction under Georgia state law. While first offender pleas are typically used for felony charges, you may want to consider using first offender if your right to own a firearm is important to you.
Does a nolo contendere plea in Georgia trigger the firearms ban for misdemeanor family violence crimes?
Because a nolo contendere plea is not a guilty plea, it also may not disqualify someone from owning or possessing a firearm under the federal firearms ban for misdemeanor family violence crimes. A nolo contendere plea does not affect civil disqualifications such as voting, holding public office, or acting as a juror, therefore it also should not disqualify an individual from possessing a firearm. See 1998 Georgia Attorney General Opinion 98-2.
A temporary protective order may restrict you from possessing a firearm
In Georgia, a temporary protective order (TPO) may prohibit an individual from possessing a firearm during the length of the order, usually 12 months, where the following requirements are met:
- Defendant or respondent received actual notice and had an opportunity to be heard in court at the hearing
- The petitioner is an intimate partner of the defendant/respondent. Qualifying intimate partners include the following:
- a spouse of the defendant/respondent
- a former spouse of the defendant/respondent
- a parent of a child of the defendant/respondent
- an individual who cohabitates or has cohabitated with the defendant/respondent
- The TPO restrains future conduct
- Restrains defendant/respondent from harassing, stalking, or threatening the intimate partner; or
- Restrains the defendant/respondent from engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the partner or child
- Credible Threat or Physical Force
- The Order includes a finding that defendant/respondent is a credible threat to the physical safety of the intimate partner or child; or
- The order expressly prohibits the use, attempted use, or threatened use of physical force against the intimate partner that would be expected to cause bodily injury
Gun restrictions in ex parte orders
An emergency ex parte order involves a hearing with a judge in which you do not have an opportunity to participate in or be heard. The Georgia Family Violence Act gives a judge the discretion to order firearms restrictions in ex parte orders. However, federal firearms restrictions do not apply to Georgia ex parte orders because the defendant/respondent has not had notice or an opportunity to be heard.
Other court orders may trigger federal firearms restrictions
Any order that meets the four requirements listed above may subject a defendant/respondent to the federal firearms restrictions. The title of the order is not important, the language or findings of the order is what triggers the federal firearms ban. The qualifying language can be included in bond orders, first offender probation requirements, divorce orders, custody cases or any other order where the defendant/respondent has received notice and the safety of a party or minor children is an issue.
Consult with an attorney regarding your case
The federal firearms ban can be complex and tricky. It is always best to consult with an experienced attorney regarding your own personal situation to avoid any unintended consequences of the federal firearms ban or any Georgia firearms ban. Consequences can be severe as the maximum sentence for a violation of the federal firearms ban is 10 years in prison.
Contact the attorneys at the Brodie Law Group at (478) 936-9842 to schedule an appointment to discuss your own case and what remedies may be available to you.
