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Know the Laws: West Virginia

UPDATED November 27, 2012

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WomensLaw.org strongly recommends that you get help from an organization in your area if you are dealing with an issue of gun laws. To find an agency, please go to the WV Where to Find Help page.

Guns and Criminal Convictions

back to topIf my abuser has been convicted of a domestic violence misdemeanor or felony, can s/he keep or buy a gun?

No. Under Federal law, if your abuser has been convicted of a felony or a domestic violence misdemeanor, s/he cannot have or buy a gun.* If you're not sure if your abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors?

 

 * 18 USC 922 (g)(9)

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back to topWhat crimes are considered domestic violence misdemeanors?

A crime is considered a domestic violence misdemeanor under Federal law if it:

 

  • Can be defined as a misdemeanor under federal or state law; and
  • Involves physical violence or force, or includes threats made with a deadly weapon; and

Was committed by:

  • a current or former spouse;
  • a parent or guardian of the victim;
  • a person with whom the victim shares a child;
  • a person living with the victim as a spouse, parent or guardian; OR
  • a person who has a similar relationship (listed above) with
  • a spouse, parent or guardian of the victim.*

Note: The crime does not have to specifically mention "domestic violence" in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply.** The relationship that the victim has with the offender is what determines whether or not the misdemeanor is a "domestic violence" misdemeanor.***

For example: If Bob is convicted of a misdemeanor assault against his wife, he may no longer have or buy a gun. If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.

If you're not sure if a certain crime counts as a domestic violence misdemeanor, you can contact the National Center on Full Faith and Credit at 1-800-903-3011, ext. 2

In West Virginia, domestic battery and domestic assault against a family or household member is a misdemeanor. Family or household member is defined as:

  • Persons who are or were married,
  • are or were living together as spouses
  • are or were sexual or intimate partners,
  • are or were serious dating partners,
  • are or were living together in the same household,
  • have a child in common regardless of whether they have ever married or lived together,
  • have one of the following relationships with another person: parent, stepparent, brother or sister, half-brother or half-sister, stepbrother or stepsister, father-in-law or mother-in-law, stepfather-in-law or stepmother-in-law, child or step child, daughter-in-law or son-in-law, stepdaughter-in-law or stepson-in-law, grandparent, step grandparent, aunt, aunt-in-law or step aunt, uncle, uncle-in-law, or step uncle, niece or nephew, or first or second cousin.****

 * 18 USC 921 (33)(A)

 ** United States v, Kavoukian, 315 F. 3d. 139 (2d. Cir, 2002); United States v. Meade, 175 F. 3d 215 (1st Cir. 1999)

 *** United States v. Denis, 297 F. 3d 25 (1st Cir. 2002); United States v. Costigan, No. 009-B0H, 2000 US Dist (D. Me. June, 2000)

 **** WV 61-2-28

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back to topWhat is the definition of a felony?

A felony under Federal law is a crime that is punishable by a prison sentence of more than one year.*

 * 18 USC 3559

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back to topIf a law enforcement officer or other government official is convicted of a domestic violence misdemeanor or felony, can s/he have or buy a gun?

No. Law enforcement officers and other government officials who have been convicted of a domestic violence misdemeanor or felony cannot have or buy guns for any purpose, including their official duties, according to federal law.*

 * 18 USC 925(a)(1)

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back to topHow can I find out if my abuser has been convicted of a domestic violence misdemeanor or felony?

Domestic violence misdemeanor and Felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where your abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and Felony records are also kept in the National Instant Criminal Background Check System (NCIS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NCIS. Your local police department may be willing to search NCIS for you if you ask, but they are not required to do so.

To read more about the NCIS, please see the question, What will happen if my abuser tries to purchase a gun?

In West Virginia, you need a picture ID to get access to any records involving domestic violence at the courthouse.

 

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