Domestic Violence and Guns
Domestic violence is often defined as a pattern of behaviors one partner uses to maintain power and control over another partner in an intimate relationship. Domestic violence can take many forms. It includes physical abuse, sexual abuse, emotional abuse, financial abuse, and psychological abuse. Any single domestic violence incident or combination of incidents may involve a response by law enforcement.
When police pursue domestic violence charges against an abuser, the criminal justice system will provide an outcome. If that outcome is a domestic violence conviction, then the law may prohibit the abuser from using or possessing guns.
Shootings draw attention to the serious problem of violent crime. Domestic abusers often use physical force and weapons to gain control over their victims. Most intimate partner homicides in the U.S. involve the use of a firearm. Intimate partner violence involving a firearm is 12 times more likely to result in death. The risk of homicide is 5 times more likely if a woman's abusive intimate partner has access to a firearm.
There are federal and state laws prohibiting offenders from possessing firearms. The definition of a firearm is broader than the definition of a gun. Basically, firearms include guns and explosive devices. This article provides an overview of domestic violence firearm laws at the federal and state level.
Domestic Violence Gun Laws at the Federal Level
The Federal Gun Control Act of 1968 made it illegal for convicted felons and others to own or possess a firearm. The law also prohibits shipping or transporting firearms or ammunition to a domestic abuser. The Lautenberg amendment expanded the law to prohibit firearm possession by persons convicted of a misdemeanor crime of domestic violence. Firearm prohibitions also extend to persons subject to an intimate partner domestic violence protection order. The prohibitions also cover protection orders issued to protect victims from harassing or stalking behavior.
The current version of the law is found at 18 U.S.C. section 922(g) and includes nine situations where the firearms ban takes effect. At 18 U.S.C. section 922(d), the law prohibits any other person from transferring or disposing of firearms and ammunition if they know the transfer would benefit someone in the nine categories set forth in section 922(g).
The Violence Against Women Act of 1994 (VAWA) made it illegal for individuals to cross state lines to commit a domestic violence offense. It also made it a crime to cross state lines to violate a protection order.
What is a misdemeanor charge of domestic violence? Under the Gun Control Act, 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 name of the convicted offense.
What is a qualifying protection order under the Gun Control Act? The law requires that the subjected person had actual notice and an opportunity to be heard before the issuance of the court order. So, an ex parte order, where only one party was present before the court, will not qualify. It also requires the court to find that the person presents a credible threat to the physical safety of the intimate partner or their child.
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 domestic violence restraining order hearing so that 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 prohibit behavior that threatens or creates a fear of physical injury.
The Gun Control Act firearms prohibitions provide certain exceptions to military, law enforcement, and other government personnel. In other words, people who use guns in the course of their work. In some instances, they are exempt from the ban; in others, they are not.
In 2022, Congress passed the Safer Communities Act. The Act provided funds to assist programs developing red flag gun laws. It also expanded background checks for gun buyers. This law also sought to close the "boyfriend loophole" in the federal domestic violence gun ban. It expands the gun ban to dating partners who have misdemeanor assault convictions or fall under protection orders. Under certain circumstances, dating violence prohibitions may lapse after a period of time.
The FBI or the ATF will investigate alleged violations of the federal domestic violence gun ban. If federal charges go forward, the U.S. Department of Justice will oversee the prosecution of these cases.
Domestic Violence Gun Laws at the State Level
The Giffords Law Center to Prevent Gun Violence reports that many states have restricted access to guns and ammunition. These laws may fill in the gaps in federal law and provide more protection to victims of domestic violence. These state laws have:
- Extended the types of misdemeanor domestic violence convictions that trigger the gun ban
- Authorized or required the courts to order the relinquishment of guns and ammunition
- Required state agencies to submit criminal records to the federal background check system, the National Instant Criminal Background System (NICS). Gun dealers access the NICS 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 misdemeanor stalking, assault, and battery 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. South Carolina prohibits ownership for three years. Virginia only prohibits ownership for some domestic violence misdemeanors.
Perhaps the biggest gap in protection under federal law is firearm relinquishment laws. Only seven states have a law on the books defining the process of relinquishing firearms. Only three states require proof of compliance.
But even these states have difficulty implementing the law. According to the Chicago Tribune, 78% of people who have had their Firearm Ownership IDs revoked have failed to provide documentation of relinquishment. A California Department of Justice report found over 23,000 offenders in that state had not surrendered their firearms. California requires proof of compliance.
Many states have also adopted laws regarding gun safety. Background checks and concealed carry permit laws may improve the safety of victims of domestic violence. Likewise, laws requiring safe storage of firearms and ammunition can help prevent tragedies to family members.
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. Providing a firearm to someone with a restraining order can also violate the law.
State restraining order laws also vary. Some states prohibit anyone with a protective order from possessing a firearm. Some states' laws only apply to those with a domestic abuse-related protective order. Some states restrict firearm access after a temporary restraining order. Others restrict only after a full hearing where there was prior notice.
In these cases, the actual surrender of firearms remains a challenge. Many believe that more firearm relinquishment laws are needed. They argue that the passage of universal background check laws could prevent future intimate partner gun homicides.
If you believe your abuser has access to guns, what can you do? You can call your state attorney general's office and law enforcement. You can seek legal advice from a family law attorney.
Explain your domestic violence situation. Inform the authorities that your abuser is in possession of firearms. Ask what protections your state's laws provide from an abusive partner.
What if your abuser is a police officer, member of the military, or government employee? Disclose this. The federal domestic violence gun ban may not apply. That does not mean there are no state laws that can protect you.
What Impact Will Recent U.S. Supreme Court Rulings Have On Domestic Violence Gun Bans?
The U.S. Supreme Court has issued major rulings on the possession of firearms in recent years. These decisions have focused on citizens' rights to possess or use guns under the 2nd Amendment of the U.S. Constitution.
In District of Columbia v. Heller (2008), the Supreme Court held that the 2nd Amendment of the U.S. Constitution provides an individual right for citizens to keep and bear arms to defend their homes. It overturned a D.C. law that banned handguns in the city and required safe-keeping regulations for shotguns and rifles. In McDonald v. City of Chicago (2010), the Court extended its ruling in Heller to the states. The Court found that the Due Process Clause of the 14th Amendment incorporated the protections of individual gun ownership in the 2nd Amendment. Therefore, they apply to the states.
In 2022, the Supreme Court overturned a 1911 New York state law that required persons seeking a concealed carry license to show "proper cause" or "special need." In New York State Rifle and Pistol Association v. Bruen, the Court found this type of law violated citizens' rights under the 2nd Amendment as it left too much discretion with the government to decide when to issue a permit.
Gun rights advocates see this ruling as providing a constitutional right to carry a gun in public. The ruling appears to have left intact state concealed carry permitting laws with objective criteria such as background checks. This decision has increased litigation in courts related to both federal and state firearm prohibition laws. This includes cases related to the Domestic Violence Gun Ban laws.
More Questions About Domestic Abuse and Guns? Contact an Attorney
You don't want to take any chances when it comes to an abusive relationship. 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. If you need more information, contact the National Domestic Violence Hotline at 1-800-799-SAFE (7233). You may also want to speak with an experienced family law attorney near you.
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