Firearm Prohibitions and Domestic Violence Millicent Shaw Phipps, Managing Attorney National Center on Protection Orders and Full Faith & Credit San Diego, California July 2016 1 Typical News Story in the United States: A father-to-be was fatally shot trying to stop his neighbors deadly domestic dispute- Sunday, June 19 th - Lee County Florida 2 Domestic Violence and Firearms Nearly two-thirds of all women killed by firearms were killed as a result of domestic violence Firearms are the most frequently used weapons in intimate partner homicide, eclipsing all other weapons combined Violence Policy Center, When Men Murder Women: An Analysis of 2008 Homicide Data (2010), available at http://www.vpc.org/studies/wmmw2010.pdf 1
Domestic Violence and Firearms In 2005, 1,182 More than 3 women each day were reported murdered by an intimate partner Accounting for approximately 30 percent of all women murdered Bureau of Justice Statistics, Homicide Trends in the US (2010), available at, http://bjs.ojp.usdoj.gov/content/homicide/intimates.cfm A survey of women living in California domestic violence shelters found that more than one in three (36.7 percent) had been threatened or harmed with a gun wielded by their abuser. About two-thirds of the women who lived in households with guns reported that their partner had used the gun against them, most often by threatening to shoot or kill the woman. Susan B. Sorenson and Douglas J. Wiebe, Weapons in the Lives of Battered Women, 94 Am. J. Pub. Health 1412, 1413 (2004) Domestic Violence and Firearms The presence of a firearm in a home increases the risk of homicide for women by five times. Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 Am. J. Pub. Health 1089, 1092 (2003). 2
Place of Homicide Men are most likely to be killed in the street or other public place Women are most likely to be murdered at home Sorenson, 2006 Who are the killers? Acquaintances pose the greatest risk to men Current or former intimate partners present the greatest risk to women Sorenson, 2006 Domestic Violence Homicide In recent years, domestic violence homicides composed only 4% of the murders of men but approximately 33% of the murders of women. Sorenson, 2006 3
Handguns Most common weapon While homicides of women by strangers has decreased, the number of homicides by intimates with handguns has increased Sorenson, 2006 Nonfatal Assaults Most DV is ongoing and nonfatal Fewer than 0.25% of DV assaults are fatal Access to a gun is still a potent predictor of lethality Sorenson, 2006 Nonfatal Assaults 16 of every 1000 of women in the US have been threatened with a gun 7 in 1,000 have had a gun used against them by an intimate partner Sorenson, 2006 4
Firearms and Battering In two thirds of battered women s households that contained a firearm, the intimate partner used the gun(s) against the woman, usually threatening to shoot/kill her (71.4%) or to shoot at her (5.1%). Sorenson, 2006 Guns make it more likely that domestic abuse will turn into murder: When a gun is present in a domestic violence situation, it increases the risk of homicide for women by 500 percent. J.C. Campbell, S.W. Webster, J.Koziol-McLain, et al., Risk factors for femicide within physically abuse intimate relationships: results from a multi-state case control study, 93 Amer. J. of Public Health 1089-97 (2003) Mass Shootings and Domestic Violence An analysis of every mass shooting between 2009-15 found that 57 percent were committed by intimate partners or family.the FBI defines mass shootings as incidents in which at least four people are murdered with a gun. 5
Mass Shootings (cont d) Whereas 15% of total gun homicide victims in the U.S. between 2008-12 were female, 50% of the victims of mass shootings in this analysis were female. Mass Shootings There was a noteworthy connection between mass shooting incidents and domestic or family violence. In at least 76 of the cases (57%), the perpetrator shot a current or former spouse or intimate partner or other family member, and in at least 21 incidents the shooter had a prior domestic violence charge. Why is firearm seizure so important? Powerful homicide prevention tool It may save a survivor s life or the life of a police officer! 18 6
Why is firearm seizure so important? Between 1996 and 2009, 97% of the officers killed during domestic violence calls were killed with a firearm* 19 * I.A.C.P., Police Chief Magazine, April 2015 The Facts According to FBI statistics, between 1980 and 2005 more than 224,900 assaults on police officers occurred at domestic violence calls. More than 780 of these assaults involved a firearm Firearms assaults at domestic violence calls resulted in the deaths of 157 police officers between 1980 and 2005 20 The Study In-depth case studies of shooting incidents that involved a citizen discharging a firearm toward a police officer at a family disturbance or domestic violence call in the U.S. between January 1, 1999 and December 31, 2003 143 incidents from 39 states were analyzed. These incidents involved a total of 225 officers who were fired upon 129 officers were not hit, 65 officers were hit but survived, and 31 were hit and killed 21 7
Incident Characteristics 62% of the initial calls involved a domestic assault 37% involved a simple non-violent domestic dispute 1% involved a call to stand by while the victim removed property from the residence 22 Incident Characteristics 75% occurred at a residence (house, trailer, apartment) 6% occurred at a public building (bar, workplace) 19% occurred at an outdoor public location (street, park, parking lot) 23 Incident Characteristics Phase of the call when the assailant first opened fire: 37.1% as officer arrived and approached 32.2% as officer was initially questioning the parties involved 19.6% as officer was attempting arrest 11.2% during a barricaded standoff 24 8
Incident Characteristics 82% of the call incidents involved family conflict between intimate partners (spouses, ex-spouses, boyfriend-girlfriend, homosexual relationships) 15% involved conflict between a parent and an adult son or daughter Only 3% involved other types of family conflict 25 Assailant Characteristics 96% male Ages ranged from 16 to 75 with an average of 37 years old (about 10 years older than the average officer killer) 68% single, divorced, or separated 100% were the primary aggressor in the initial domestic violence conflict 26 Assailant Characteristics 88% had prior criminal arrests 76% had prior domestic violence arrests Only 17% had an active order of protection against them Only 10% had a recorded history of mental illness 67% had been consuming alcohol 12% had been using drugs 27 9
Victim Officer Characteristics 94% male Ages ranged from 21 to 65, with an average age of 32 Police experience ranged from 1 year to 35 years, with an average of 13.4 years Primary duty assignment at time of incident: 88% Patrol 9% SWAT 2% Detective 1% Administrative/Command 28 Victim Officer Characteristics 92% were wearing body armor 3% were shot at with their own firearm 82% had at least one backup officer present for assistance The number of rounds the officer fired at the assailant ranged from 0 to 9, with an average of 2.2 rounds 29 Survival Factors If one or more backup officers were on the scene, the victim officer was generally 6 times more likely to survive the incident For every 10 feet the officer was farther away from the assailant, the victim officer was 1.3 times more likely to survive the incident The victim officer was at least 14 times more likely to survive the incident if he/she was wearing body armor 30 10
Conclusions Most of the assailants opened fire on the officers as they arrived or very shortly after they arrived Most engaged the officers at a distance between 10 and 50 feet 31 Many used a rifle or shotgun and fired from an outdoor ambush location or as they exited the residence to confront the officer Conclusions For every 5 feet of distance between the officer and the assailant, the officer was twice as likely to survive Officers wearing body armor were far more likely to survive the incident than officers not wearing body armor 32 Federal Firearm Laws A Quick Review 33 11
Gun Control Act 18 USC 922(g) It is unlawful for any person to possess firearms or ammunition who: Has been convicted of a felony; Is a fugitive from justice; Uses or is addicted to illegal drugs; Is adjudicated mentally incapacitated or has been committed to a mental institution 34 Gun Control Act (Cont d.) It is unlawful for any person to purchase or possess firearms or ammunition that: (5) Is illegally or unlawfully in the United States; (6) Has been dishonorably discharged from the armed services; (7) Renounces their US citizenship 35 Gun Control Act (Cont d.) (8) prohibits possession of a firearm while subject to a protection order; (9) prohibits possession of a firearm by anyone ever convicted of a misdemeanor crime of domestic violence ( MCDV ) (a.k.a. the Lautenberg Amendment ) *The only two gun prohibitions related to domestic violence. 36 12
18 U.S.C. 922(n) It is unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. Note: This differs from the other 9-you can keep what you already possessed-you can t get anything new or transport the firearms across state lines. 37 What Is a Qualifying Protection Order for Purposes of 922(g)(8)? Basic Requirements: Due Process Terms of the Order Finding of a Credible Threat OR Express Prohibition on Conduct Relationship Requirement Note: Qualifying is not in the text of the statute. 38 Due Process Requirement 922 (g)(8)(a) The order was issued after a hearing of which the Defendant/Respondent received actual notice and an opportunity to participate. 39 13
Terms of the Order Restrains Future Conduct-18 U.S.C. 922(g)(8)(B) The order restrains the Defendant/Respondent from harassing, stalking, or threatening the intimate partner, child of the Defendant/Respondent, or child of the Defendant/Respondent s intimate partner. OR The order restrains the Defendant/Respondent from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. AND 40 Finding of a Credible Threat or an Express Prohibition on Conduct- 922(g)(8)(C) Finding of a Credible Threat: The order includes a finding that that the Defendant/Respondent represents a credible threat to the physical safety of the intimate partner or child. 922(g)(8)(C)(i) OR Express Prohibition on Conduct: The order, by its terms, explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury. 922(g)(8)(C)(ii) 41 Relationship Requirement Under 18 U.S.C. 921(a)(32) the protected party must: be a spouse or former spouse; cohabit or have cohabited with respondent; have a child in common; the child of the intimate partner; OR be respondent s child. *Relationship requirement is different than that required under g(9) 42 14
Official Use Exemption 18 U.S.C. 925(a)(1) 18 U.S.C. 925(a)(1) exempts government employees from the 922(g)(8) and (d)(8) prohibitions for official duty firearms only. The ATF interpretation specifies that the exemption applies only to service weapons and not to personal weapons. Law enforcement agency can impose more restrictive prohibition. 43 Official Use Exemption 18 U.S.C. 925(a)(1) 18 U.S.C. 925(a)(1) exempts military and law enforcement personnel from the 922(g)(1)-(8) and 922(d)(8) prohibitions while on official duty. For the exemption to apply the personnel must be authorized or required to receive or possess a duty weapon to perform their official duties. The authorization must be pursuant to federal, state, or local statute, regulation or official departmental policy. 44 Official Use Exemption 18 U.S.C. 925(a)(1) This exception applies not only to a departmental-issued firearm, but to a firearm purchased by an officer if the officer is authorized or required to purchase his or her own service weapon (and the firearm is possessed for use in performing official duties) This exemption applies to service weapons only and not to personal or hunting weapons. 18 U.S.C. 925(a)(1) does not apply to tribal law enforcement officers, unless they are cross-deputized with a state, local or federal law enforcement agency. 45 15
Official Use Exemption vs. Departmental Policy While the Gun Control Act permits an officer who is subject to a qualifying protection order to receive or posses a firearm in the course of his or her official duties, State and local laws may be more prohibitive. Departmental polices may be more restrictive and may preclude possession of a service weapon by a police officer who is subject to a protective order. 46 What Is a Qualifying MCDV for Purposes of 922(g)(9)? Basic Requirements: Type of Crime Relationship Requirement Right to Counsel Right to a Jury Trial 47 Type of Crime 921(33)(A) It must be a misdemeanor under federal, state, or Tribal law, 18 U.S.C. 921(33)(A)(i) AND Has as an element the use or attempted use of physical force or threatened use of a deadly weapon (e.g. assault). 18 U.S.C. 921(33)(A)(ii) * This refers to the statutory element of the crime not the behavior of the perpetrator. 48 16
VAWA 2005 MCDV definition expanded Misdemeanor crime of domestic violence means an offense that- Is a misdemeanor under Federal, State, or Tribal law; For tribal MCDV s right to counsel may be an issue. 49 Relationship Requirement 921(a)(33)(A)(ii) The perpetrator of the crime must: be a current or former spouse of the victim, be a parent or guardian of the victim, have a child in common with the victim, cohabit or have cohabited with the victim as a spouse, parent, or guardian; or be a person similarly situated to a spouse, parent, or guardian of the victim **Relationship requirement is different than that required under g(8). 50 Mass Shootings Under federal law, domestic abuse only prohibits firearm ownership when the perpetrator has been married to the victim, has a child with them, or cohabits with them. In 23 percent of mass shootings in which the perpetrator killed a former or current partner (13 of 56), there was no evidence the pair had ever married or had a child together. 17
Right to counsel Which Convictions Qualify for Purposes of 922(g)(9)? If right to jury: used or waived Date of conviction: Is not relevant. Exclusions: convictions that have been expunged, set aside, or where the person has been pardoned or has had their civil rights restored, unless preserved by state or federal judge. 52 Official Use Exemption 18 U.S.C. 925(a)(1) The official use exemption does NOT apply to 18 U.S.C. 922(g)(9). Therefore, law enforcement and military personnel convicted of qualifying misdemeanor crimes of domestic violence will NOT be able to possess or receive firearms for any purpose, including the performance of official duties. 53 Relationship Between Federal and State/Tribal Firearm Laws 54 18
Relationship Between Federal and State/Tribal Laws Most states and many tribes have enacted laws regarding firearms and DV; these laws can differ quite significantly from (and even contradict) the federal laws we've discussed. State/tribal laws may be more restrictive or less restrictive than the federal laws Both sets of laws are applicable in a particular case; federal law generally does not pre-empt state/tribal law, so both apply 55 Relationship Between Federal and State/Tribal Laws What is the role of state/tribal courts and law enforcement in enforcing violations of federal law? Generally, federal authorities (U.S. Attorneys' Offices, FBI, and ATF) enforce federal laws State authorities do not enforce such laws, except in those states where there is clear authority to do so (e.g., NY and VT: U.S. v. Haskin, 228. F.3d 151 (2d Cir. 2000)) 56 Relationship Between Federal and State/Tribal Laws What is the role of state/tribal courts and law enforcement in enforcing violations of federal law? The determination whether a protection order or misdemeanor conviction qualify as a federal predicate is made by federal authorities, not state/tribal authorities State/tribal judges do not determine whether a protection order qualifies under the federal law cannot over-ride the federal law. 57 19
58 Lethality Assessment Tool Questions: Examples: Has she/he ever used a weapon against you or threatened you with a weapon? Does he/she have a gun or can he/she easily get one? 59 Beyond Those Questions: Firearm Checklists S.A.F.E. Tool 60 20
Scenarios 62 63 21
Surrendering Firearms After A Protection Order Is Issued 64 Where Should Firearms Be Surrendered And Why? Court Sheriff s Department Local Police Agency Third Party Private Storage Facility 65 Monitoring Compliance What is an effective mechanism to ensure that the surrender order is complied with? 66 22
Monitoring Compliance The order should specify: A deadline for surrendering the firearms Exact location to which the firearms should be brought The penalty for noncompliance Notice regarding federal prohibitions that also attach 67 Monitoring Compliance The order (or a supplemental form) should specify: The process for surrendering firearms (e.g., lock unloaded weapon in trunk, etc.) The procedure for obtaining return of firearms when eligibility is re-established 68 Return of Firearms 69 23
Return The seized firearms must be returned to the owner or possessor, or to a person delegated by that owner or possessor, unless the return of the firearm would place the individual or his delegate in violation of law 70 When and How Can You Return Firearms? 71 When would the return issue arise? Upon expiration of a protection order. Upon termination/disposition of a criminal proceeding (acquittal, dismissal of charges, conviction, probation, nolo contendere, suspended imposition of sentence). After seizure but prior to termination of criminal proceeding (including pre-trial diversion, pre-trial probation). After expungement, civil rights restoration, or pardon (unless firearms were forfeited). 72 24
73 Whether firearms should be returned is governed by several federal and state/tribal laws. Generally, the guns should not be returned if the person is prohibited from possessing them under any applicable federal, state, or tribal laws, or if the firearms themselves are illegal. Ideally, a firearm return procedure has been established, including a court hearing to determine the person's eligibility to possess the firearms. Returns of Firearms: Legal Overview Laws governing when to return a firearm: The federal Gun Control Act and National Firearms Act (the NFA governs particularly dangerous weapons, e.g., machine guns). State/tribal laws prohibiting possession of firearms by certain individuals or prohibiting certain types of firearms (e.g. assault weapons). State/tribal court inherent authority to impose conditions of bail, probation, etc. Laws governing maintenance of evidence until post conviction challenge timeframes have expired. 74 Returns of Firearms: Legal Overview State/Tribal Laws Many states set forth a specific procedure for the return of firearms, including that the court hold a hearing on the issue. 75 25
Returns of Firearms: Processes That Work What elements would an ideal firearms return process include? 76 What elements would an ideal firearms return process include? Court order required to return. Collaboration among relevant government agencies (court; law enforcement; prosecution; licensing agencies). Safety (notification of victim; risk assessment). Access to information to avoid transfer to prohibited persons under federal/state/tribal laws. Protection of offenders' due process rights. 77 Returns of Firearms: Getting the Information How can law enforcement agencies, prosecutors, and courts determine if a person legally can have his or her guns back? 78 26
Returns of Firearms: Getting the Information Sources of information regarding a person's eligibility to possess firearms: The National Crime Information Center databases State/tribal criminal history and protection order databases 79 Returns of Firearms: Getting the Information You can: Check to see if person has ever been convicted of a felony or MCDV in another jurisdiction? 18 U.S.C. 922(g)(1),(9) or state firearm prohibition? Check the NCIC Warrant Files to determine if person is a fugitive under 18 U.S.C. 922(g)(2). Check the NCIC IVF to determine if person is an illegal alien under 18 U.S.C. 922(g)(5). 80 Returns of Firearms: Getting the Information You can: Check state mental health records to determine if person has been involuntarily committed under 18 U.S.C. 922(g)(4). Check State records to determine if person has a drug problem under 18 U.S.C. 922(g)(3). Check III, NLETS, your state criminal records. 81 27
Returns of Firearms: Getting the Information Sources of information regarding whether a gun itself is illegal NCIC Stolen Gun File ATF Tracing Center Request (law enforcement) NFA (National Firearms Act): is the firearm a sawed-off shotgun or sawed-off rifle, is it an automatic weapon or silencer (suppressor)? Is it properly registered with ATF (protected tax info)? 82 Returns of Firearms: Third-Party Returns What is a third-party transfer or return? A prohibited person may request that seized or surrendered firearms be transferred to another person rather than retained by law enforcement (unless firearm was seized for forfeiture). 83 Returns of Firearms: Third-Party Returns Potential Concerns with Third-Party Transfers Is the third-party a prohibited person? Will the prohibited person have constructive possession of the guns? Can this be monitored? Is the third-party aware of the prohibition against transfer to the prohibited person? 84 28
Returns of Firearms: Third-Party Returns A potential alternative: Consignment to Federal Firearms Licensee (Dealer). State and local authorities can consign firearms to a licensed dealer and authorize a potential transfer only to the owner. 85 86 Returns of Firearms: Third-Party Returns The owner must then fill out an ATF Form 4473, and get a successful NICS check--if he is denied, he cannot have the firearm. The state/local authority can also use an FFL to conduct a consignment sale to a 3rd party who must go through the same process. The state/local authority should make sure the 3rd party is informed of the criminal penalties for allowing the original owner to have access to the firearm. (See Model Acknowledgement Form) ACKNOWLEDGMENT [Defendant] is prohibited from possessing or receiving firearms under federal law. [Defendant] wishes to transfer his firearms (see attached list) to, who does not live at the same residence as [Defendant]. acknowledges that he/she may not return the firearms described above, or any other firearms, to [Defendant], or to any other person living in [Defendant] s residence. [Defendant] and also understand that actual or constructive possession and/or receipt of a firearm by a prohibited person is punishable by a term of imprisonment of 5 to 10 years, and by a fine of not more that $250,000.00. [Defendant] and also understand that knowingly providing a firearm to a prohibited person may subject them to federal prosecution. Knowingly transferring a firearm or ammunition to anyone who is prohibited under federal law from possessing a firearm is punishable by a fine, a term of imprisonment of up to 10 years, or both. Signature of Third Party Date Signature of Purchaser Date (Prohibited Person) Signature of Notary Public Date 87 29
Questions? 88 National Center on Protection Orders and Full Faith & Credit For assistance, please call: (800) 903-0111 prompt 2. Email: ncffc@bwjp.org Web: www.fullfaithandcredit.org Informational Materials & Brochures Technical Assistance & Problem-Solving (On-Site) Individualized Training Education/Teleconferences/Webinars 89 Thank You For permission to reproduce any content of this presentation contact the National Center on Protection Orders and Full Faith & Credit. 90 30
This project was supported by Grant No. 2014-TA-AX-K046 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this presentation are those of the authors and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women. 91 31