Domestic Violence and Guns
According to the National Domestic Violence Hotline:
"Domestic violence (also referred to as intimate partner violence (IPV), dating abuse, or relationship abuse) is a pattern of behaviors used by one partner to maintain power and control over another partner in an intimate relationship... That includes behaviors that physically harm, intimidate, manipulate or control a partner, or otherwise force them to behave in ways they don't want to, including through physical violence, threats, emotional abuse, or financial control."
Domestic abusers often use physical force and weapons to gain control over their victims. Intimate partner homicide is 12 times more likely to involve a firearm than another weapon. The risk of homicide is five times more likely if a woman's abusive dating partner or spouse owns a firearm.
There are federal and state laws prohibiting offenders from possessing firearms. This article provides an overview of domestic violence gun laws at the federal and state level.
Domestic Violence Gun Laws at the Federal Level
The Federal Gun Control Act of 1968 makes it illegal for someone to possess a firearm after they have been convicted of the crime of domestic violence. Originally, the law required a felony conviction. It was later amended to require only a misdemeanor crime of domestic violence. This law also prohibits shipping or transporting firearms or ammunition to a domestic abuser.
The Violence Against Women Act (VAWA) made it illegal for individuals convicted of a domestic-violence offense (or who have an order of protection against them) to possess a firearm. VAWA also prohibits an abuser from traveling to another state to commit domestic violence.
Was a misdemeanor charge domestic violence? Under VAWA, a misdemeanor conviction is a domestic violence misdemeanor if:
- the offender used or attempted to use physical force, or threatened use of a deadly weapon, and
- the victim was a current or former spouse or cohabitant.
It does not matter if the term “domestic violence" appears in the charges.
The Domestic Violence Offender Gun Ban extended the Gun Control Act. It made it illegal for someone with a restraining order against them to have a gun. Unlike other legislation, this one discussed military, law enforcement, and government personnel who use guns in the course of their work. In some instances, they are exempt from the ban, in others they are not.
Domestic Violence Gun Laws at the State Level
According to the Giffords Law Center to Prevent Gun Violence, many states have adopted laws restricting access to guns and ammunition in order to fill in the gaps in protection under federal law. These state laws have:
- Extended the types of misdemeanor domestic violence convictions that result in a gun prohibition
- Authorized or required the courts to order the relinquishment of guns and ammo
- Required that criminal records be submitted to the federal background check system. When a gun dealer sells a gun, they access the National Instant Criminal Background System (NICS) database to conduct a firearm background check.
State laws vary significantly. California, Illinois, Massachusetts, Minnesota and New York have laws that address all three conditions above.
California, Connecticut, Hawaii, and New York prohibit anyone convicted of assault, battery, or stalking from possessing a firearm or ammunition. It doesn't matter if there was a domestic relationship between the parties.
Seventeen (17) states have a law prohibiting gun ownership for a domestic violence misdemeanor offense. Arizona prohibits gun ownership while the person is on probation, but then they get their gun back. South Carolina prohibits ownership for three years. Virginia only prohibits it for some domestic violence misdemeanors.
Perhaps the biggest gaps in protection under federal law is firearm relinquishment laws. Only seven states have a law on the books defining the process to relinquish firearms. Only three states require proof of compliance.
But even these states have difficulty implementing the law. According to a Chicago Tribune article, 78% of people who have had their Firearm Ownership ID's revoked have failed to provide documentation to law enforcement that they have relinquished their guns. A California Department of Justice report found that 20,000 offenders in that state had not surrendered their firearms, and that state requires proof of compliance.
Domestic Violence Laws, Firearm Possession, and Restraining Orders
Under the Domestic Violence Offender Gun Ban, it's illegal for a person to possess a firearm if they are subject to an order of protection. A person providing a firearm to someone who has a restraining order against them is also violating the law.
State restraining order laws also vary. Some states have laws that restrict anyone with a protective order against them from possessing a firearm. Some states have laws that only apply to those with a domestic abuse-related protective order. Some states restrict firearms as soon as a person has received a temporary restraining order. Others restrict only after the second hearing for which the offender received notification and attended.
As above, the actual surrender of firearms remains a challenge. More firearm relinquishment laws and the passage of universal background check laws could prevent future intimate partner gun homicides.
Removal of Firearms: If you believe your abuser has access to guns, call your state attorney general's office, local law enforcement officers, or a family law attorney. Explain your domestic violence situation and that your abuser is in possession of firearms. Ask what protections your state's laws provide from an abusive partner.
Under federal law, the following restrictions apply:
- The abuser should be a current or ex-spouse, the mother or father of your child, or have lived with you at some point.
- The abuser must have been notified of the restraining order hearing so they had an opportunity to attend.
- The restraining order should identify the abuser as a threat to you or your child's physical safety.
- The restraining order should specifically prohibit behavior that threatens or creates a fear of physical injury.
If your abuser is a police officer, a member of the military, or a government employee, explain this. They may be excluded from the federal ban. That does not mean there are no state laws that apply.
More Questions About Domestic Abuse and Guns? Contact an Attorney
When it comes to an abusive relationship, you don't want to take any chances. There are intimate partner violence laws on the books at both the federal and state level. They restrict the possession of firearms in domestic violence situations. You need to put those laws to use to protect yourself and your family. Speak with an experienced family law attorney near you.
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Contact a qualified family law attorney to make sure your rights are protected.