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Below is a copy and paste from my research folder, dated August 2015, which I got from someone smarter than me. Check for changes since then, but this is still good as far as I know. The bottom line is that there’s no crystal clear answer as to a deferred to a domestic and gun rights, given that Tong only dealt with a felony rather than a misdemeanor. The cautious route is to not let client enter a plea to a domestic, while others take the opposite approach and just advise that they’re barred from possessing guns during the probationary/deferred period.
1) State law governs, because Federal law says it does (18 USC sec. 921(a)(33)(B)(ii) (2012) ("Definitions," "Misdemeanor crime of domestic violence")), see below. See also U.S. v. Pennon, 816 F.2d 527 (10th Cir. 1987), which set out the change in the law in 1986 and recognized that the FOPA overruled Dickerson v. New Banner Institute, Inc., 460 U.S. 103 (1983). See also Logan v. U.S., 552 U.S. 23 (2007), recognizing Dickerson's overruling and expanding upon Pennon's ruling, in light of the 1996 amendments to 18 USC sec. 921 et seq, adding the provisions regarding "misdemeanor crimes of domestic violence," and recognizing that these provisions effectively changed the purview from Federal to State regarding what constitutes a "conviction."
2) Iowa law says a "conviction" is not "expunged or set aside" until the probation is completed, as stated below; however, it also says that a deferred judgment is not a "conviction." Compare State v. Tong, 805 N.W.2d 599 (Iowa 2011) (holding that under sec. 724.26, a "conviction" of a disqualifying felony includes a guilty plea with a deferred judgment, during the time the person is on probation) with Iowa Code sec. 724.27(1)(c) (2011) ("The provisions of section 724.8, section 724.15, subsection 1, and section 724.26 shall not apply to a person who is eligible to have the person's civil rights regarding firearms restored under section 914.7 if any of the following occur: … (c) The person's conviction for a disqualifying offense has been expunged."); see also footnote 2 and the special concurrence in Tong.
3) As long as there is a no contact order in place, which there will almost always be following a conviction or guilty plea for domestic abuse assault, the no contact order disqualifies a person from firearm possession, regardless of whether there is a "conviction" anyway. Therefore, the end result will be that during the pendency of the deferred judgment, and possibly afterwards, the defendant will be disqualified from possessing firearms. Once the no contact order is lifted, and once the conviction is expunged, he may have his guns.
December 22, 2017
In a normal conviction, you cannot get your gun rights restored after 5 years because, in Iowa, there were no protected rights taken from you to have restored. However, after 10 years, you can ask for a pardon and that will restore your gun rights by eliminating the conviction.
"Although you are unable to possess a firearm while serving the terms of your deferred judgment, after you discharge your sentence for your deferred judgment, your firearm rights are restored.
In State v. Tong (2011), the Iowa Supreme Court made it clear that a person who has not yet successfully completed the terms of a deferred judgment for a felony offense or misdemeanor crime of domestic violence may not legally possess a firearm. It is important to note that the Iowa Department of Public Safety has been informed that some state and federal prosecutors have pursued charges for “felon in possession of a firearm” in cases involving an individual who had not completed the terms of a deferred judgment.
Once an individual successfully completes their deferred judgment for a disqualifying offense (a felony or misdemeanor crime of domestic violence) the individual has their firearm rights.” quoted from: https://governor.iowa.gov/sites/default/files/documents/FAQ%20Pardon%20and%20Firearms_0.pdf
I have a client, he loves to hunt, and the County Attorney has given him a plea offer, that if he pleads Guilty to Domestic Assault Causing Injury (Serious Misdemeanor) he is going to get probation and a deferred judgment against him.
I know that he can not posses any guns during probation, but what are his rights after he completes his probation, and the charge is expunged from his record because of the Deferred Judgment?
Will I need to get this sealed, or try and get his gun rights restored from the Governor?
I know there is both State and Federal law pertaining to Domestic Assaults and restrictions on weapons. But I have been unable to find a clear answer concerning Deferred Judgments.
Any help is appreciated, thank you in advance.
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