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1116

Prosecutions Under 18 U.S.C. § 922(g)(8)

Title 18 U.S.C. §§ 922(d)(8) and (g)(8) concern the prohibition against disposal of firearms to, or receipt or possession of firearms by, persons who are subject to domestic violence protection orders. Section 922(d)(8) prohibits the knowing transfer of a firearm to a person who is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner, and section 922(g)(8) prohibits the receipt or possession of a firearm or ammunition by such a person.

There are several key evidentiary issues which can arise in these cases. A violation of § 922(d)(8) must be "knowing." Proof concerning knowledge of the restraining order on the part of the supplier must be established. The term "intimate partner" is defined as including a spouse or former spouse, or a person with whom the victim has had a child, but it does not include a girlfriend or boyfriend with whom the defendant has not resided. See 18 U.S.C. § 921(a)(32). In addition, the protective order must have been issued following an evidentiary hearing as to which the defendant had notice and an opportunity to appear. The order must include a specific finding that the defendant represents a credible threat to the physical safety of the victim or by its terms explicitly prohibit the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury.

The provisions of this statute do not provide an exception for law enforcement officers, but the provisions of the Federal firearms laws permit an exemption from many of the restrictions. Section 925(a)(1) of Title 18 grants an exemption: "The provisions of this chapter, . . . shall not apply with respect to the . . . possession . . . of any firearm or ammunition . . . issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof."

The Bureau of Alcohol, Tobacco and Firearms (BATF) has issued an advisory letter outlining the parameters of this exemption. The BATF letter states:

    This [exemption] applies to an officer's possession of a firearm or ammunition whether on or off duty, as long as the officer's official duties require the possession of the firearm or ammunition. On the other hand, Federal law would be violated if an officer subject to a disabling restraining order receives or possesses a firearm or ammunition in a personal capacity.

[cited in USAM 9-60.1100]