Misdemeanor Domestic Violence & Firearm Possession
In Nebraska, a misdemeanor crime of domestic violence is the use or attempted use of physical force or the threatened use of a deadly weapon by a person against:
- A spouse
- A former spouse
- A person someone has a child in common with
- A person involved in a dating relationship
When a person is convicted of misdemeanor domestic violence, two laws relating to firearm possession are automatically triggered. First, a person is banned under Nebraska law from possessing a firearm for seven-years from the date of conviction. Secondly, under federal law, a person is banned from possessing a firearm for life. There are, however, exceptions under which the federal prohibition does not apply. For example, if a misdemeanor domestic assault conviction is expunged or set aside; or if the person is pardoned and has his or her civil rights restored, then the person is not considered convicted and can possess a gun.
Unfortunately, people often read the federal gun possession exemption and believe a set aside is all that’s needed to restore lost gun rights. This is incorrect. In Nebraska, a person convicted of a crime may petition the sentencing court to set aside his or her conviction. If granted, a set aside nullifies the conviction and removes associated disqualifications. However, in Nebraska, a set aside is not equivalent to the receipt of a full or partial pardon. Instead, only a pardon granted by the Nebraska Board of Pardons can restore civil rights which were lost through a conviction. This includes gun ownership. Therefore, the only way to regain gun rights during Nebraska’s seven-year prohibition period is through a pardon – not a set aside.
If a person convicted of a misdemeanor domestic violence crime is found to be in possession of a firearm during the seven-year prohibition period, he or she can be charged with possession of a deadly weapon by a prohibited person. In Nebraska, this offense can be proven by either actual or constructive possession. A person is in actual possession of a firearm if the gun is within his or her control or in an area in which the person might gain immediate possession of the gun. On the other hand, constructive possession of a firearm may be shown through evidence that demonstrates a person’s proximity to a gun at the time of arrest or shows a person’s dominion over the location where a gun was found. The combination of these two possessory standards can be difficult to fight without the right criminal defense attorney.
When it comes to gun rights and misdemeanor domestic violence convictions, the law can be rather confusing. Nevertheless, ignorance of the law is not a valid defense. If you have been charged or convicted of a misdemeanor crime of domestic violence please contact Berry Law Firm. Our skilled attorneys value constitutional gun rights and will work tirelessly to ensure yours are not unjustly taken.