Overview of Domestic Violence Firearm Charges
Domestic violence allegations involving firearms are treated very seriously under California law. If you are accused of using or possessing a firearm during a domestic dispute, you could face severe criminal penalties, including jail or prison time, large fines, restraining orders, and the loss of your firearm rights.
In some situations, prosecutors may file felony charges that carry long-term consequences under California’s Three Strikes Law. Even misdemeanor domestic violence convictions can result in significant restrictions, including lifetime firearm prohibitions under both California and federal law.
Because the penalties can be life-altering, anyone accused of domestic violence involving a firearm should seek legal advice from an experienced criminal defense attorney as soon as possible.
Your best chance for a favorable outcome is with a defense attorney at Eisner Gorin LLP.
To schedule a consultation, call (818) 781-1570 or contact us here.
Assault with a Firearm and Domestic Violence
When a firearm is used or displayed during a domestic dispute, prosecutors may file charges for assault with a firearm under California Penal Code section 245(a)(2).
A conviction can occur even if the firearm was never fired. Simply pointing a loaded gun at another person during a domestic dispute may be enough for prosecutors to pursue felony charges.
Domestic violence firearm cases often involve allegations between:
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spouses or former spouses
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dating partners
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cohabitants
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family members
If convicted of assault with a firearm, the offense is typically charged as a felony and can lead to significant penalties, including incarceration and a potential strike under California's Three Strikes Law.
Assault with a Deadly Weapon in Domestic Violence Cases
In some cases involving weapons other than firearms, prosecutors may charge assault with a deadly weapon under California Penal Code section 245(a)(1).
A deadly weapon can include any object capable of causing serious bodily injury.
Examples may include:
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knives
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blunt objects
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tools or household items
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other objects used as weapons
If the alleged victim is an intimate partner or family member, prosecutors may also pursue additional domestic violence charges or sentencing enhancements.
Brandishing a Firearm During a Domestic Dispute
If a firearm was displayed during a domestic dispute but not used in an assault, prosecutors may instead file brandishing charges under California Penal Code section 417.
Brandishing a weapon generally means drawing or exhibiting a firearm in a rude, angry, or threatening manner.
This offense is considered a “wobbler,” meaning prosecutors can charge it as either:
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a misdemeanor, or
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a felony
Unlike assault with a firearm, brandishing charges are not considered strike offenses under California law.
Domestic Violence Probation Requirements
When someone is convicted of a domestic violence offense and placed on probation, the court must impose mandatory sentencing terms under California Penal Code section 1203.097.
Typical probation conditions include:
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a criminal protective order restricting contact with the victim
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completion of a 52-week batterer’s intervention program
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payment of fines and court fees
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community service
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counseling or anger management programs
In some cases, judges may allow peaceful contact through a modified protective order if appropriate.
However, violations of any probation terms can lead to additional criminal penalties.
Firearm Restrictions After Domestic Violence Charges
California law imposes strict firearm restrictions on individuals accused or convicted of domestic violence offenses.
Even before a conviction occurs, courts may temporarily prohibit someone from possessing or purchasing firearms if a domestic violence case is pending.
After a conviction, firearm restrictions become even more severe.
California Assembly Bill 3129 expanded firearm prohibitions for people convicted of certain misdemeanor domestic violence offenses under California Penal Code section 29805.
Federal law also imposes its own firearm ban for individuals convicted of domestic violence crimes.
Under federal law, anyone convicted of a qualifying domestic violence offense is prohibited from possessing or purchasing firearms.
Protective Orders and Firearm Prohibitions
Several types of protective orders can prohibit firearm possession in California.
Examples include:
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emergency protective orders issued by police officers
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civil harassment restraining orders
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workplace violence restraining orders
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protective orders for elderly or dependent adults
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school violence restraining orders
When a restraining order includes firearm restrictions, the individual subject to the order cannot possess, purchase, or attempt to obtain firearms or ammunition while the order remains active.
Relinquishment of Firearms After a Protective Order
When someone is served with a domestic violence protective order that includes firearm restrictions, California law requires them to relinquish their firearms.
The person must either:
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surrender firearms to local law enforcement, or
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sell the firearms to a licensed gun dealer
This must typically occur within 24 hours of receiving the protective order.
After relinquishing the firearms, the person must file proof with the court and the law enforcement agency that served the order.
Failure to comply with this requirement may result in additional criminal charges for violating the protective order.
Police Seizure of Firearms in Domestic Violence Incidents
California law allows police officers responding to domestic violence calls to temporarily seize firearms under certain circumstances.
If officers observe a firearm at the scene of a domestic violence incident, they may take custody of the weapon to protect the safety of those involved.
Police officers may confiscate firearms that are:
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in plain view
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discovered during a lawful search
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found during a consensual search
Confiscated firearms must typically be held for at least 48 hours. If the weapon is not retained as evidence in a criminal case, it may be returned to the owner after the required waiting period and completion of a background check.
Frequently Asked Questions
Can I be charged with assault with a firearm if the gun was not fired?
Yes. Under California law, a person may be charged with assault with a firearm even if the gun was never fired. Simply pointing a loaded firearm at another person during a domestic dispute can lead to felony charges.
Do domestic violence convictions affect firearm rights?
Yes. A domestic violence conviction may result in a firearm prohibition under both California and federal law, preventing you from owning or possessing firearms.
What happens to firearms after a domestic violence restraining order?
When a restraining order includes firearm restrictions, the person subject to the order must surrender or sell their firearms within a specified time period and provide proof to the court.
Can domestic violence firearm charges be dismissed?
Depending on the circumstances, criminal defense attorneys may challenge the prosecution's evidence or negotiate with prosecutors to reduce or dismiss the charges.
Legal Defense for Domestic Violence Firearm Charges
Domestic violence firearm allegations often rely heavily on witness statements, police reports, and circumstantial evidence.
An experienced criminal defense lawyer may challenge the prosecution's case by examining issues such as:
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false allegations or exaggerated claims
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lack of evidence that a firearm was used or displayed
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self-defense or defense of others
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violations of constitutional rights during police searches
In some situations, defense attorneys may negotiate with prosecutors for reduced charges or seek dismissal through early intervention before formal charges are filed. Eisner Gorin LLP is here to help. Schedule your consultation Today.
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