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The Domestic Violence Offender Gun Ban

Guns are frequently used to threaten, injure, and kill the victims of domestic violence. The Lautenberg Amendment, known as the Domestic Violence Offender Gun Ban, amended the Gun Control Act of 1968 to prohibit anyone convicted of a domestic violence misdemeanor from possessing a firearm.

While state domestic gun laws vary, federal law takes precedence. It prohibits convicted domestic violence offenders from purchasing, owning, or using guns. (Although the law has exceptions for law enforcement, military, and government employees in some situations.)

The Domestic Violence Offender Gun Ban requires one of two things to keep guns out of an abuser's hands:

  1. The abuser must have been convicted of a domestic violence felony or misdemeanor crime, or
  2. The victim must have a restraining order against the abuser

Did the Abuser Commit a Domestic Violence Misdemeanor?

The Domestic Violence Offender Gun Ban is a permanent ban on purchasing, owning, or using a gun. It applies to any abuser who has been convicted of a domestic violence misdemeanor. A domestic violence misdemeanor crime involves:

  • The use or attempted use of physical violence or force (simple assault, assault and battery, aggravated assault)
  • Or the threatened use of a deadly weapon (assault by threat)
  • Against a person in a close personal relationship with the abuser (such as a spouse, parent, girlfriend, or boyfriend)

Did You Get a Restraining Order?

If you have a final restraining order or an order of protection, the abuser is prevented from purchasing, owning, or using a gun for as long as the order lasts. The restraining order must meet certain requirements, however.

  • The abuser has to be close to you in some way. They could be a current or ex-spouse, the mother or father of your child, a current or former boyfriend or girlfriend or roommate.
  • The abuser should have been notified of the restraining order hearing so they had a chance to attend.
  • The restraining order should specifically prohibit behavior that threatens or creates fear of physical injury. The order should identify the abuser as a threat to the victim's or child's physical safety.

Remember, state laws vary. The National Network to End Domestic Violence provides information to help you determine if the language of your particular restraining order qualifies for the gun ban.

What to Do if You Think the Abuser Has a Gun

Giffords Law Center to End Gun Violence tracks statewide laws regarding removing guns from the hands of people who are a threat to the safety of others.

Only four states require that misdemeanor crimes of domestic violence are entered into the federal database of the National Instant Criminal Background Check System. If your abuser was convicted of domestic violence in another state, you can contact the district attorney's office in that state to confirm the conviction.

Neither the Gun Ban law discussed here, nor the Violence Against Women Act requires states to establish procedures to ensure that people give up their guns. Only 28 states have laws to remove firearms and ammunition from those with protective orders against them. Only half specify how that should be done. Fourteen states allow police to take guns, some allow a designated third party to receive the gun.

These states do NOT allow the police to remove a firearm: Alaska, Arizona, Connecticut, Indiana, Maryland, Vermont.

Because of the great variation between states, you may have to do the legwork to ensure your local police or attorney general's office is informed of a criminal conviction and why you believe the gun ban applies. Local or state law enforcement may notify the person of the law and offer to take custody of the firearm. Or they may obtain a search warrant and seize the firearm. Or some other procedure may apply. You may want to speak with a local family law attorney to understand the law in your state.

What If Your Abuser Is a Member of the Military, the Police, or a Government Employee?

If your abuser uses a government-owned gun or other weapons as part of their job, there are two different provisions at play with the gun ban. It can get a little confusing, but remember the two situations that are covered by the Federal Gun Control Act (18 USC 922).

  • The gun ban based on a conviction for a misdemeanor (or felony) crime of domestic violence: This ban does apply to law enforcement, the military and government.
  • The gun ban based on being the subject of a protective order: This ban does not apply to law enforcement or the military. However, the civil protective order itself may prohibit gun possession under the authority of state law and the court that issued the protective order.
  • A service member's commander can decide, at their discretion, to allow the member to be subject to the order. The commander can also issue a military protection order against the service member. In that case, the service member could not access military-issued weapons at military installations and would have to surrender personal firearms located at a military installation.
  • Military protective orders are not enforceable by civilian law enforcement.
  • Military convictions are permanent so the prohibition on firearm ownership remains in place even after the service member is discharged.

There has been a problem with information sharing between the U.S. military and the civilian law enforcement system. The Uniform Code of Military Justice (UCMJ) does not include any domestic violence-specific offenses. Domestic violence is charged as a "general offense." This may impact accurate reporting to the national crime reporting database.

Also, the Armed Forces have not always submitted military protection orders into the NCIC protection order file so military member convictions for domestic violence have not been visible to civilian authorities.

The Senate Homeland Security and Governmental Affairs Committee recently pushed for greater oversight of government employees to ensure all government agents are screened for domestic abuse.

Police officers are 20-40% more likely to abuse an intimate partner than partners in the general population. While the ban resulting from a protective order does not apply to them, the ban on misdemeanor domestic violence crimes does. The challenge is to ensure that the offender gets prosecuted. Only 42% of domestic violence cases involving police ever go to trial.

Talk to an Attorney About the Domestic Violence Offender Gun Ban

Whether you are seeking legal protection, or are yourself the subject of a restraining order, the assistance of a lawyer can help ensure that a bad situation doesn't worsen. Contact a local family law attorney today to learn more.

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