Persons convicted of a qualified non-felony domestic violence crime may be prohibited from possession of a firearm under 18 U.S.C. § 922(g)(9). For this prohibition to apply there are three elements. The first is there actually is a conviction for an offense. A deferred disposition, continuance for dismissal or diversion that does not end in a conviction does not meet this requirement. The second element is the crime must involve the use or attempted use of physical force or the threatened use of a deadly weapon. The third element is the defendant must be the victim’s current or former spouse, parent, guardian, person with whom respondent has a child in common or a person who has co-habitated with the domestic partner or is similarly situated to a spouse or domestic partner. It is possible that someone convicted of a domestic violence related misdemeanor in state court as defined under state law may not be disqualified under federal law. For example while federal law includes a parent who physically assaults a child it does not include a child who assaults a parent. An important Supreme Court case was decided on the domestic violence prohibition in 2009. In United State v. Hayes, 129 S.C. 1079(2009), the Supreme Court ruled that a domestic relationship is not a required element of the conviction offense to be a disqualification. In that case Mr. Hayes was convicted of non-domestic misdemeanor battery. Since the record showed the victim had a qualified domestic relationship with Mr. Hayes the Supreme Court upheld his conviction for possession of a firearm. In many states domestic violence cases may be resolved by pleas to other charges such as disorderly conduct. In those circumstances federal authorities have concluded the critical question as to whether a disqualification exists is whether or not the conduct involved physical force or threaten use of a deadly weapon.
