FBI Clears Way for Restoration of Gun Rights After DV Conviction in Washington State

Until recently, anyone that had been convicted of a Fourth Degree Assault determined to be domestic violence in Washington State was in a tough position because the NICS did not recognize a Restoration of Rights for Washington state non-felony domestic violence convictions. State and federal laws on the subject of domestic violence and gun rights are very technical and you should schedule a legal consultation in order to look carefully at any convictions that you think resulted from allegations of domestic violence.

Many Washington State citizens with misdemeanor DV convictions who had their right to possess firearms restored were getting NICS denials. The intent of Congress has long been that a state court order restoring firearm rights should remove federal prohibitions on possessing firearms.

“A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.”

The United States Department of Justice and the FBI-NICS no longer look at most non-felony convictions for domestic violence in Washington as offenses that prohibit possession of firearms. This is based on the 2013 case of Descamps v U.S. The FBI NICS division was previously taking the position that even a Washington State court order restoring firearm rights to misdemeanants did not remove firearm prohibitions under federal law because the conviction did not result in the loss of civil rights.

Restoring gun rights in Washington requires a Certificate of Rehabilitation and Restoration of Firearms Rights; merely vacating the conviction or expungement does not meet the requirements of Washington law nor will vacating a conviction satisfy federal criteria for restoration of the right to possess firearms.

If you have been convicted for felonies and Washington state restores your right to possess a weapon you will also be eligible for a Washington Concealed Pistol License. The federal government has now determined that conviction for a Fourth Degree Assault (DV) in Washington State does not prohibit possession of firearms under 18 USC 922 (g)(9) because the Washington State statute for that offense is too vague. Nevertheless, there is still a need to obtain a restoration of firearms rights in order to satisfy state law requirements and federal interpretations of Washington State law related to firearms rights seems to change unexpectedly.

Note Very Well: When answering the questions for a NICS background check: Question 11i on Form 4473 should be answered with strict accuracy: answer “yes” if, and only if, you have a conviction for an offense that meets the federal Misdemeanor Crime of Domestic Violence definition pursuant to 18 USC 922(g)(9); i.e., “use or attempted use of physical force or threatened use of a deadly weapon.”

Thus, if you have a conviction for Assault in the Fourth Degree in Washington State, you should state that you have no convictions related to domestic violence on the form you must complete to purchase a firearm through a federally licensed firearms dealer. This advice applies even if the notation (DV) appears next to the conviction on your criminal history rap sheet and provided you only have a Fourth Degree Assault conviction that was entered in Washington State. All of those offenses listed in 9.41.040(2)(a)(i) fall outside the federal definition of Misdemeanor Crime of Domestic Violence.

Assault in the Fourth Degree, Coercion,
Stalking, Reckless Endangerment,
Criminal Trespass in the First Degree,
Violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence.

See RCW 9.41.040

On the other hand, when applying for a Washington State Concealed Pistol License the answer would be yes to the offenses listed above but not necessarily for every conviction identified as DV on your criminal history. All of the above illustrates why you may need legal advice from an attorney with very technical expertise in the field of gun rights if you have a domestic violence conviction in Washington.