Read on for our take on what the Bipartisan Gun Safety Law means for gun rights and the new dating relationship firearm ban which closes the boyfriend loophole.
The Bipartisan Safer Communities Act closes the boyfriend loophole and makes several other changes which will not impact most gun owners
As one of the most successful gun rights law firms, we have received numerous requests for our opinion on the latest gun law legislation known as the Bipartisan Safer Communities Act.
To answer these questions, we have decided to publish our thoughts on the latest gun legislation. The short answer is that we do not think this will dramatically change anything, and that is why it has bipartisan support from both major political parties.
If you have any specific questions about your situation, feel free to reach out to us as we offer an analysis service where we determine the state of your firearm rights and anything that you should know about potentially restoring your rights or reducing the impact of any criminal or civil records on your rights.
That said, if you know that this situation does not apply to you, please do not contact us about this law at this time. We are only able to assist our clients with issues directly involving them, and for that reason we are publishing this to provide additional information about the law.
The Main Event: The Boyfriend Loophole is Partially Closed
The hot topic in the latest legislation on gun control is the boyfriend loophole. Basically, the Lautenberg Amendment only banned people who were either married or cohabiting or had a child together, but did not apply to many dating-type relationships that were less serious, or less official. This amendment seeks to change that by including some of the casual relationships.
That said, many states already had closed the boyfriend loophole in the past, such as California. In other words, whether or not this new law change makes a difference will depend on where the person is convicted of a crime of domestic violence and where the person attempts to buy a firearm.
Is this law retroactive? No.
Specifically, the closure of the boyfriend loophole is only for those convicted of a misdemeanor crime of domestic violence on or after the date of enactment of the bipartisan gun bill, which would mean if you were convicted on or after the day the President signed the bill, it would apply. As this was signed on June 25, 2022, any conviction on or after that date could be covered.
The Law Expands the Definition of Domestic Violence But Maintains a Narrow Definition While Closing the Boyfriend Loophole
To be clear, for purposes of the federal ban on domestic violence, domestic violence is defined narrowly. In other words, there are various types of domestic violence that simply don’t count as “domestic violence” for purposes of the new law. The old definition only included “current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
As to how the loophole is being closed, the law is specifically being amended to add a category to that list that for it to be domestic violence under federal law and for the ban to apply, the person convicted must either “have or recently had a continuing serious relationship of a romantic or intimate nature.” The law then will determine if this applies by weighing factors such as the length and nature of the relationship combined with the frequency and type of interaction between individuals involved. Very specifically, this does not include business or social casual acquaintanceship or ordinary fraternization.
In other words, you won’t be able to commit domestic violence against a one night stand because that was not a continuing relationship.
Limitations on the Law Because of the Factor Test
Clearly, this is not well-defined. As gun rights lawyers, we see numerous cases come through our doors and the dilemma is that domestic violence convictions almost always occur at the state level. This is not a state law, however. What that means is that the information required to determine whether or not the boyfriend loophole could apply will likely not be ascertainable in all cases to the FBI or other state agencies that approve and deny firearm purchases.
In other words, while a defense lawyer could easily determine when a person should be banned under this law, the FBI and state agencies may not find it so simple if local prosecutors and judges do not get on board with reporting all of the information required to determine if the factors of this law apply.
For example, if a prosecutor can simply get a quick plea deal, they likely will not get stuck in the weeds of trying to prove all of the factors to make this firearm ban stick to a Defendant unless there is some other additional mandate that guides the prosecutorial process that has not yet been established.
Given what we have seen about other domestic violence cases in the past, it is likely many states will start reporting and seeking this information, but if that does not happen or if it does not happen sufficiently, this boyfriend loophole will be an ineffective firearm ban with almost no effect whatsoever.
Additionally, how will the factors be applied? Who decides?
We don’t know. That is the short answer, anyways. It would be possible for judges and prosecutors to determine this, or for police departments to report it as part of an arrest file. That said, we think it likely that the Department of Justice will write some opinions on this or potentially propose a rule that goes for public comment about how to apply this factor test. That said, how it is applied will be more important for fringe cases and less important for the main person who clearly has the requisite dating relationship.
How long is the ban for under the closed boyfriend loophole?
The ban is 5 years from the date of conviction or date of completion of supervision or custody, whatever is later. Additionally, any subsequent convictions make this restoration not occur if those convictions would trigger a firearm ban under the federal law. It does not appear to matter if the firearm rights are restored from the later conviction as to it eliminating the automatic restoration at 5 years. Also, we believe the restoration looks to be automatic at 5 years, given the constraints discussed.
However, it is not so simple, because states can layer their own laws on top of this dating relationship ban. If you think this applies to you, we recommend our firearm rights analysis service which can take into account all of the factors that could change your eligibility date.
States Can Likely Preempt this Boyfriend Loophole:
In the law there is an interesting omission to the amendment. You will note that there are several ways to avoid the closed boyfriend loophole law. First of all, you can obtain a true expungement, but most states don’t offer these even if they have “expungements.” The reason for this is that expungement labels are used even when the relief is not a true expungement. The second option is a pardon that makes no mention of firearm rights or that restores them explicitly. Once again, obtaining a pardon for violent misdemeanors is normally difficult in most areas. The last option is a firearm rights restoration. This is interesting and new.
For normal domestic violence offenses, a person would need a full civil rights restoration and that rights restoration only is effective IF the state took away the rights in the first place. However, for certain felony convictions, states can restore rights whether or not they took the rights away as long as they restore all the civil rights with a court order (including public office and jury rights). This ban is easier to remove because all it requires is a firearm rights restoration whether or not the state took away the rights in the first place.
Being in CA, this means that the boyfriend loophole ban is likely going to be removed by the 10 year restoration in CA even if a person has multiple convictions, although we do not guarantee that at this early stage. However, normal domestic violence bans under federal law will still not be removed by the 10 year restoration in California that happens automatically in most cases.
This also means that in certain states with court-ordered restorations, it may be possible to restore your firearm rights immediately upon completing probation rather than having to wait the 5 years for automatic restoration.
If this seems complicated, it is because it is very complicated and nuanced. You do not want to handle this alone. Anyone impacted should hire a lawyer who specializes in this area. In California at least, we have your back and can help to look at the law with your situation in mind. While we do not guarantee that we will take every potential client that comes knocking, we do our best to help as many people as we can. There are plenty of good lawyers in other states, but this is a job for a specialist with experience.
Other issues in this law of note
While this law also amends other parts of the firearms law to change certain rules on mental health red flag laws and juvenile possession or transfers of firearms, we will potentially write another article to discuss them at a later time.
Should you be concerned about your firearm rights?
In truth, this law creates much exposure about gun laws, but it does not meaningfully change the landscape for those already convicted of an offense. Afterall, this law only impacts new convictions going forward. That said, it does tighten down on the rules for anyone convicted in the future.
In other words, if your rights had issues in the past, they still do. If they did not in the past, they probably still do not. That said, for anyone concerned about the state of their gun rights, we do offer an analysis service to do a deep dive into your personal situation to determine if your rights are intact or not.
We Translated the Law into a More Readable Form For Your Reading Enjoyment
Deletions in the old law are struck out and additions are in blue. You can find the full law here, https://www.congress.gov/bill/117th-congress/senate-bill/2938, but we always think it is more interesting to read the actual law as amended .
18 USC §921(33)(a)
(A) Except as provided in
subparagraph (C)subparagraphs (B) and (C), the term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal,
State,,State, Tribal, or local law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian,
or by a personby a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
(i) A person shall not be considered to have been convicted of such an offense for purposes of this chapter, unless—
(I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
(aa) the case was tried by a jury, or
(bb) the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
(ii) 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.
(C) A person shall not be considered to have been convicted of a misdemeanor crime of domestic violence against an individual in a dating relationship 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 firearm rights restored unless the expungement, pardon, or restoration of rights expressly provides that the person may not ship, transport, possess, or receive firearms: Provided, That, in the case of a person who has not more than 1 conviction of a misdemeanor crime of domestic violence against an individual in a dating relationship, and is not otherwise prohibited under this chapter, the person shall not be disqualified from shipping, transport, possession, receipt, or purchase of a firearm under this chapter if 5 years have elapsed from the later of the judgment of conviction or the completion of the person’s custodial or supervisory sentence, if any, and the person has not subsequently been convicted of another such offense, a misdemeanor under Federal, State, Tribal, or local law which has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, or any other offense that would disqualify the person under section 922(g). The national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901) shall be updated to reflect the status of the person. Restoration under this subparagraph is not available for a current or former spouse, parent, or guardian of the victim, a person with whom the victim shares a child in common, a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or a person similarly situated to a spouse, parent, or guardian of the victim[…]
(37) (A) The term ‘dating relationship’ means a relationship between individuals who have or have recently had a continuing serious relationship of a romantic or intimate nature.
“(B) Whether a relationship constitutes a dating relationship under subparagraph (A) shall be determined based on consideration of—
“(i) the length of the relationship;
“(ii) the nature of the relationship; and
“(iii) the frequency and type of interaction between the individuals involved in the relationship.
“(C) A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a dating relationship under subparagraph (A).”