The Brady Handgun Violence Prevention Act (commonly known as the “Brady Act”) has significant implications for individuals subject to certain legal proceedings, including those involving protective orders. Under federal law, individuals who are subject to specific protective orders or who have been convicted of domestic violence-related offenses may be disqualified from possessing firearms. This disqualification is often referred to as “Brady disqualification.” However, the application of Brady disqualification is not unlimited. In Indiana, certain restrictions apply to when and how this federal prohibition takes effect, particularly under Indiana's Civil Protection Order Act and related state laws. In this blog post, we will explore what Brady disqualification means in Indiana, the roles of Brady disqualification, and what you should know if you are facing a potential firearm prohibition.
The Brady Act, passed in 1993, established federal background check requirements for firearm purchases. One key provision prohibits firearm possession by individuals who:
- Are convicted of a misdemeanor crime of domestic violence (18 U.S.C. § 922(g)(9))
- Are subject to a qualifying restraining order related to domestic violence (18 U.S.C. § 922(g)(8))
These restrictions apply nationwide, including in Indiana. However, their application depends on specific legal requirements, and not all criminal convictions or protective orders automatically trigger Brady disqualification.
Indiana's Civil Protection Order Act (IC 34-26-5) allows victims of domestic violence, stalking, or harassment to seek protective orders against an alleged offender. Protective orders serve an important role in preventing abuse and ensuring victim safety, but they also come with legal consequences, including potential Brady disqualification.
Not every Indiana protective order results in the loss of firearm rights. To meet the federal standard for Brady disqualification, a protective order must:
- Be issued after a hearing where the respondent had an opportunity to participate
- Restrict the respondent from harassing, stalking, or threatening an intimate partner or their child
- Include a finding that the respondent represents a credible threat to the physical safety of the protected person OR
- Explicitly prohibit the respondent from possessing or using firearms
If a temporary ex parte protective order (issued without a hearing) is in place, it does not automatically result in Brady disqualification. Only final protective orders that meet the federal criteria will trigger a firearm prohibition under federal law.
A person convicted of a misdemeanor crime of domestic violence under Indiana law (IC 35-42-2-1.3) may be permanently disqualified from possessing firearms under the Brady Act if:
- The conviction involves the use or attempted use of physical force or a deadly weapon
- The victim is a spouse, former spouse, co-parent, or someone in a similar intimate relationship with the offender
If a conviction does not meet these criteria, it may not trigger Brady disqualification, even if it is related to a domestic dispute. For example, a battery conviction involving a non-intimate partner, such as a roommate or extended family member, would not qualify.
Limits on Brady Disqualification in Indiana
While the Brady Act is broad, there are important limitations on its application in Indiana. These include:
- Temporary Protective Orders Do Not Automatically Disqualify Firearm Ownership
A temporary ex parte protective order (one issued without a hearing) does not trigger the federal Brady prohibition. The order must be made final after the respondent has been given a chance to participate in a hearing.
- Protective Orders Without Firearm Prohibitions May Not Trigger Disqualification
Indiana courts have discretion in determining whether a protective order will include a firearm restriction. If a court does not explicitly order the respondent to surrender firearms and does not find that they pose a “credible threat,” Brady disqualification may not apply.
- Expungements and Appeals Can Restore Firearm Rights
In Indiana, an individual convicted of a misdemeanor crime of domestic violence may be able to seek an expungement under IC 35-38-9. If a conviction is expunged, overturned, or set aside, the federal firearm prohibition under Brady no longer applies.
Additionally, individuals can challenge protective orders through legal appeal. If a protective order is vacated, any associated Brady disqualification is removed.
- Certain Domestic Battery Convictions May Not Qualify Under Federal Law
The federal definition of “misdemeanor crime of domestic violence” (MCDV) requires that the crime involve the use or attempted use of force. Some Indiana domestic battery convictions under IC 35-42-2-1.3 may not meet this standard. If a conviction was for offensive touching rather than physical force, it may not disqualify a person from possessing firearms under Brady.
- Firearm Rights May Be Restored After a Protection Order Expires
Unlike domestic violence convictions, which can result in permanent firearm restrictions, Brady disqualification based on a protection order is temporary. Once the protective order expires or is lifted, the firearm prohibition is removed, and the individual regains their firearm rights.
What Should You Do If You Are Facing a Brady Disqualification Issue?
If you are facing a protective order or have been convicted of a domestic violence-related offense, it is crucial to understand your rights and the potential impact on your ability to own or possess firearms. Here are some important steps:
- Consult an Indiana Family Law or Criminal Defense Attorney: A legal professional can help assess whether a Brady disqualification applies to your case and explore options to challenge or mitigate its effects.
- Attend All Hearings: If you receive notice of a protective order hearing, make sure you attend and present evidence in your defense. Failure to appear could result in a default order that includes a firearm restriction.
- Consider Seeking an Expungement: If you have a domestic battery conviction, an attorney may be able to help you seek an expungement to restore your firearm rights.
- File an Appeal If Necessary: If a protective order was issued improperly or without sufficient evidence, you may be able to challenge it through appellate review.
While Brady disqualification is an important legal mechanism designed to protect victims of domestic violence, it has limits under Indiana law. Not all protective orders or domestic battery convictions result in a firearm prohibition, and individuals subject to such restrictions may have legal avenues to challenge or remove them.
If you or someone you know is concerned about Brady disqualification under the Indiana Civil Protection Order Act, consulting with an experienced Indiana family law or criminal defense attorney is the best way to understand your rights and options. The experienced attorneys at Ciyou & Associates have been working in firearms law, criminal law, and domestic law for over thirty (30) years. A protective order has the potential to trainwreck your life and your rights, and it is crucial to find an attorney who can assist. By taking the right steps, individuals can navigate the legal system with their attorney effectively and work toward restoring their firearm rights when appropriate. If you are interested in a qualified attorney to assist with protecting your firearms, perhaps Ciyou & Associates, P.C. is a good fit for you.
This blog post is not intended to serve as legal advice. It is an advertisement.
