Restoring firearms is a complicated, intricate business with exceptions that almost outnumber the rule. Not only is the process complicated, but it differs for state and federal law, meaning you might be able to restore rights in your state, but are stymied in the Federal context.
RCW 9.41.040 lists three ways that a person can lose their firearm rights: (1) conviction of a felony, as an adult or juvenile, (2) conviction of some misdemeanor offenses accompanied by a “domestic violence” (DV) designation, or (3) for “involuntary commitment for mental health treatment” under RCW Chapter 71.
RCW 9.41.040(4) is the statute controlling firearm restoration in Washington state. Amended in 2020, the statute now includes convictions of Assault in the 4th degree, stalking, coercion, reckless endangerment, criminal trespass in the 1st degree, or a violation of a protection order or a no-contact order committed by one intimate partner against another and committed on or after July 1, 1993. This is broader language than the previous readings of a household or family member against another.
Included now would be, spouses/domestic partners, both former and current, persons with a child in common, adults who have lived together in the past or present or are in a dating relationship, and those who are sixteen or older who have lived together in the past or present or are or who have been in a dating relationship with others sixteen and over.
Restoring After a Felony
If the conviction removing your gun rights is a felony, you may be able to restore your rights if you meet certain qualifications such as:
- No Class A felony convictions
- No Sex offense convictions
- Five or more consecutive years in the community without being convicted of any felony or misdemeanor crimes. These do NOT have to be the most recent five years. Any five-year crime free period will work.
- No prior felony convictions that prohibit the possession of a firearm
- No pending charges exist
- All conditions of sentence are completed
Restoring After a Domestic Violence Gross Misdemeanor
If the conviction removing your gun rights is for a Domestic Violence Gross Misdemeanor, you may be able to restore your rights if you meet certain qualifications:
- No Class A felony convictions
- No Sex offense convictions
- Three or more consecutive years in the community without being convicted of any crime. As with felony restorations, these do NOT have to be the most recent three years. Any three-year crime free period will work.
- No prior felony convictions that prohibit the possession of a firearm
- All conditions of sentence are completed
Domestic Violence (DV) Tags and Federal Law
A domestic violence conviction can have negative implications beyond Washington State. At a federal level, there is no restoration procedure for DV convictions and the federal government will not recognize a state order. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) conducts firearms background checks and the risk of being “flagged” is quite high.
Under 18 U.S.C. § 922(g)(9), someone who has been convicted of a misdemeanor crime of domestic violence to possess a firearm. The problems with a DV tag go deeper, as federal law does not look to the tag, but to the victim. So, even if a DV tag is not included on the conviction, the victim’s status as a spouse or household member could continue to cause concern. This is because a misdemeanor crime of domestic violence is defined differently than an imposition of a DV tag. 18 U.S.C. § 921(a)(33).
Restoring After an Involuntary Mental Health Commitment
These are the most complex and difficult circumstances under which to attempt restoration. RCW 9.41.047 puts the burden on the person seeking restoration to prove by a preponderance of the evidence that:
(i) The person is no longer required to participate in court-ordered treatment;
(ii) The person has successfully managed the condition that les the commitment;
(iii) The person no longer presents a substantial danger to themself, or the public; and
(iv) The symptoms related to the commitment or detention or incompetency are not reasonably likely to recur.
So even if you thought you could never legally possess a firearm, you may well be eligible. Give us a call and we can evaluate your eligibility and make a plan.
