18 U.S. Code § 922(g)(8) - Firearm Possession While Subject to a Protection Order
While most states have laws on the books that prohibit people under restraining orders from possessing firearms, the federal government has its statute barring access to firearms for those who are under active protective orders, mainly as it affects "intimate partners" and their children.
Under 18 U.S.C. 922(g)(8), federal law violations occur if anyone under a protection order transports, ships, or possesses firearms or ammunition under federal jurisdiction. The consequences of being charged under this statute are severe, potentially leading to many years in federal prison if convicted.
18 U.S.C. 922(g)(8) says, "It shall be unlawful for any person who is subject to a court order that-
(A) was issued after a hearing at which such a person received actual notice and had an opportunity to participate.
(B) 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
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) its terms explicitly prohibit 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."
What Does the Law Say?
18 U.S.C. 922(g)(8) makes it unlawful for any individual subject to a qualifying court order to ship, transport, possess, or receive firearms or ammunition in interstate or foreign commerce.
This part of the statute is specifically designed to protect victims in domestic violence situations who are seeking protection from the courts. The law specifies that the court order must meet the following criteria:
- Issued After a Hearing: The individual must have received actual notice of the hearing and had an opportunity to participate.
- Restraint from Harmful Conduct: The order restrains the individual from harassing, stalking, or threatening an intimate partner or their child or engaging in other conduct that would place them in reasonable fear of bodily injury.
- Credible Threat or Explicit Prohibition of Force: The order either includes a finding that the individual poses a credible threat to the physical safety of the intimate partner or child, or it explicitly prohibits the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury.
What is the Jurisdiction of the Law?
We should note that 18 U.S.C. 922(g)(8) addresses explicitly possessing or transporting firearms as touching "interstate or foreign commerce." As with other federal offenses, the phrase' interstate or foreign commerce' in 18 U.S.C. 922 (g) (8) delineates federal jurisdiction from state jurisdiction.
Simply put, if someone possesses a firearm under a protective order within the state where it is prohibited, it's a state crime.
However, it becomes a federal crime if anything concerning the matter crosses state or international boundaries. Examples of this include, but are not limited to:
- Someone under a protective order possessing a weapon that was shipped in from out of state or
- Someone under a protective order is crossing state lines with a prohibited firearm.
Note, however, that while the firearm possession or transport must affect interstate commerce to be a federal crime, the protective order that qualifies it as a federal crime may be any valid protective order issued by any court, provided that it is intended to protect an intimate partner or a child.
What Must Be Proven to Convict?
To secure a conviction under 18 U.S.C. 922(g)(8), prosecutors must prove each element of the offense beyond a reasonable doubt:
- Existence of a Qualifying Court Order. A valid court order must meet the above statutory criteria.
- Knowledge of the Court Order. The accused must have received actual notice of the court order and had an opportunity to participate in the related hearing.
- Possession, Shipping, Transport, or Receipt of Firearms or Ammunition. The individual must be shown to knowingly engage in one or more of these activities while subject to the qualifying court order.
What Are Related Federal Laws?
18 U.S. Code Chapter 44 Firearms has several federal statutes that are related to unlawful firearm possession, including the following:
- 18 U.S.C. 921 - Definitions.
- 18 U.S.C. 922 - Unlawful acts.
- 18 U.S.C. 923 - Licensing.
- 18 U.S.C. 924 - Penalties.
- 18 U.S.C. 925 - Exceptions: Relief from disabilities.
- 18 U.S.C. 925A - Remedy for erroneous denial of a firearm.
- 18 U.S.C. 925B - Reporting of background check denials to state authorities.
- 18 U.S.C. 925C - Annual report to Congress.
- 18 U.S.C. 925D - Special assistant U.S. attorneys and cross-deputized attorneys.
- 18 U.S.C. 926 - Rules and regulations.
- 18 U.S.C. 926A - Interstate transportation of firearms.
- 18 U.S.C. 926B - Carrying concealed firearms by qualified law enforcement officers.
- 18 U.S.C. 926C - Carrying of concealed firearms by qualified retired law enforcement officers
- 18 U.S.C. 927 - Effect on State law.
- 18 U.S.C. 928 - Separability.
- 18 U.S.C. 929 - Use of restricted ammunition.
- 18 U.S.C. 930 - Possession of firearms and dangerous weapons in Federal facilities.
- 18 U.S.C. 931 - Prohibition on purchase, ownership, or possession of body armor by violent felons.
- 18 U.S.C. 932 - Straw purchasing of firearms.
- 18 U.S.C. 933 - Trafficking in firearms.
- 18 U.S.C. 934 - Forfeiture and fines.
Under Title 18 U.S. Code 117, a federal conviction for domestic assault, coupled with at least two prior domestic violence convictions, can lead to a penalty of up to 10 years in federal prison.
What are the Penalties?
The penalties for possessing a firearm while under a protection order may be severe. The penalties for violating this federal statute are defined in 18 U.S.C. 924. If convicted of violating U.S.C. 922(g)(8), you could face:
- Fines of up to $250,000 and
- Up to 15 years in federal prison.
What are the Common Defenses?
It's important to remember that a skilled federal criminal defense attorney can employ several strategies to counter the charges if you're charged at the federal level for illegal possession or transport of a firearm while under a qualifying protective order. These include, but are not limited to:
- Invalid or Non-Qualifying Court Order: If your attorney can show that the court order does not meet the specific criteria outlined in the statute, it may not serve as a basis for prosecution under 18 U.S.C. 922(g)(8).
- Lack of Knowledge: If your attorney can show you did not receive actual notice of the court order or were unaware of its existence, the charges may be dismissed.
- Unintentional Possession: In some cases, you may be able to argue that your possession of the firearm or ammunition was unintentional or accidental. (For example, someone placed it in your vehicle without your knowledge, and you drove across state lines with it.)
Contact our federal criminal defense law firm for additional information. Eisner Gorin LLP has offices in Los Angeles, California, and provides legal representation for any weapons crime.
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