OVC Provider Forum Transcript

Understanding Firearms Laws to Assist Domestic Violence Victims
Roberta Valente, James Vann  -  2011/10/26
There have been great changes in DV law in NYS around access to firearms. What I'm not clear on are the penalties should someone with a criminal history of DV obtain or utilize firearms?
1.  James P. Vann
 18 U.S.C. Section 921(a)(33)(A) defines (with exceptions not quoted herein), a misdemeanor crime of domestic violence as: an offense that-- (i) is a misdemeanor under Federal, State, or Tribal tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
2.  James P. Vann
 Generally, under federal law 18 U.S.C. Section 922(g)(9) prohibits a person convicted of a misdemeanor crime of domestic violence from shipping, transporting, or possessing any firearms or ammunition. 18 U.S.C. Section 924(a)(2) provides that the penalty for a violation of 922(g) shall be a fine (as provided in Title 18 U.S.C. Section 3571(b)(3) sets the fine for a felony as $250,000) or imprisonment of not more than 10 year or both.
Asked on behalf of students in Victimology & Victim Services course @ Becker College, Worcester MA. Good Afternoon Attys. Valente and Vann, Do you believe that a person in a household who has a previous record of domestic violence should be licensed and able to have firearms in the household? Thank you.
1.  James P. Vann
 Part 2. The Supreme Court reasoned that the definition of misdemeanor crime of domestic violence, contained in 921(a)(33)(A), imposes two requirements. First, the crime must have, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon. 921(a)(33)(A)(ii). Second, it must be committed by a person who has a specified domestic relationship with the victim. Ibid. The definition does not, however, require the predicate-offense statute to include, as an element, the existence of that domestic relationship. Instead, it suffices for the Government to charge and prove a prior conviction that was, in fact, for an offense . . . committed by the defendant against a spouse or other domestic victim.
2.  James P. Vann
 Part 1. In order to qualify as a Misdemeanor Crime of Domestic Violence (MCDV), the predicate offense must have as an element the use or attempted use of physical force, or the threatened use of a deadly weapon, and must be committed by a person who has a specified domestic relationship with the victim. The Supreme Court in U.S. v. Hayes, 129 S. Ct. 1079 (2009) held that a domestic relationship, although it must be established beyond a reasonable doubt in a 922(g)(9) firearms possession prosecution, need not be a defining element of the predicate offense.
3.  Jill
 Can a procecutor legally omit the domestic abuse language to avoid the gun restrictions?
4.  Rob Valente
 This crisis has not gone unaddressed; Congress and numerous states have attempted to limit the access that batterers have to handguns. Chief among the Congressional statutes is 18 U.S.C. 922(g)(9), which addresses the lethal and widespread connection between domestic violence and access to firearms by prohibiting those convicted of domestic violence crimes from possessing guns. Many states also have laws addressing the nexus between domestic violence and firearms.
5.  Rob Valente
 One particularly ominous statistic stands out in its relevance here: domestic violence accounts for between one-third and almost one-half of the female murders in the United States. These murders are most often committed by intimate partners with handguns. And while murder is the most serious crime that an abuser with a gun can commit, it is not the only crime; short of murder, batterers also use handguns to threaten, intimidate, and coerce victims. Handguns empower batterers and provide them with deadly capabilities, exacerbating an already pervasive problem.
6.  Rob Valente
 Domestic violence is a pervasive societal problem that affects a significant number of women and children each year. Correctly recognized as a national crisis, domestic violence accounts for a significant portion of all violence against women and children.Domestic violence victims are battered and killed. They are unable to function as normal citizens because they live under the constant threat of harassment, injury, and violence.
7.  James P. Vann
 Generally, under federal law 18 U.S.C. Section 922(g)(9) prohibits a person convicted of a misdemeanor crime of domestic violence from shipping, transporting, or possessing any firearms or ammunition. Possession includes actual or constructive possession of a firearm.
What were your concerns, with regard to security and safety, relative to community evacuations due to recent natural disasters and the presence of firearms in the home? How were these matters addressed at the local level by law enforcement with persons moving into emergency shelters and traveling on the highways?
1.  James P. Vann
 Part 2. Note that 18 U.S.C. Section 926(A) provides, in part, Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle
2.  James P. Vann
 Part 1. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is tasked with, among other things, the enforcement and regulation of the Gun Control Act and National Firearms Act. If the possession or transportation of the firearm is in violation of federal law, the Attorney General has authorized ATF to seize such firearms. To the extent that federal law does not prohibit the possession of firearms in an emergency, ATF does not have jurisdiction unless otherwise provided for by law.
What resources can be used to help explain or understand the laws?
1.  James P. Vann
 ATF publishes the Federal Firearms Regulations Reference Guide. This guide is provided to all Federal Firearms Licensees and may also be obtained from ATFs website at www.atf.gov.
2.  Rob Valente
 There are many resources available online to help you understand how federal firearms laws work in domestic violence situations. You can go to www.womenslaw.org, a website that explains federal and state domestic violence laws in plain English. You can also get resource information specific to courts, law enforcement and victim advocates from the National Center on Protection Orders and Full Faith and Credit. You can reach NCPOFFC directly by calling 1-800-903-0111 and selecting option 2. The International Association of Chiefs of Police has useful information at http://www.theiacp.org/PublicationsGuides/Projects/GunViolenceReduction/GunViolenceReduction/tabid/328Default.aspx
Who exactly has the right to remove guns after a DV misdemeanor conviction or the issuance of an extended protection order under the federal laws
1.  Rob Valente
 In addition to federal law, many states give their courts the authority to order law enforcement to remove and seize firearms used in the commission of the domestic violence. The courts may order such seizure through provisions in a protection order or a criminal restraining or bail bond order. Additionally, in some states, a court may issue a writ that directly orders law enforcement to remove and seize firearms.
2.  Maxine Lantz
 Who has the responsibility to notify ATF for them to take action?
3.  James P. Vann
 ATF has the authority to seize and forfeit firearms that are used in a violation of 18 U.S.C. Section 922(g)(9) pursuant to 18 U.S.C. Section 924(d)(1). This authority does not grant ATF the authority to search for or seize the firearm unless there is an exception to the fourth amendment protection against unreasonable searches and seizures.
Ch 39 injunctions are not currently entered into FCIC and this has resulted in firearms being returned to respondents. I have been told this is an issue in Tallahassee and feel this is a safety issue for petitioners, their children and officers
1.  Donna
 thanks so much
2.  Rob Valente
 Donna, I don't know what state administrative orders exist in Florida that require Florida law enforcement to enter appropriate protection order information into the state and federal databases, but you should contact the Florida Coalition Against Domestic Violence to find out more about this. Their website is http://www.fcadv.org
3.  Donna
 I'm referring to FCICNCIC and is there not a law or administrative order on entering protection orders ? Do you have a contact in Tallahassee that I can work with since I'm told this is a Tallahassee issue in Florida thanks
4.  Rob Valente
 Unfortunately, many states fail to enter protection order information into their state databases and NCIC because of lack of funding. If the necessary protection order information is not entered into NCIC, it cannot be uploaded to NICS, the Brady background check database. When this information is missing from state and federal databases, federal law enforcement agencies cannot determine whether someone is in possession of firearms illegally. Advocacy is needed in most states to ensure that resources are provided to ensure that state law enforcement enters this information in a timely way.
Is it mandatory that a Law Enforcement Officer in any State, convicted of a DV charge, can no longer possess a firearm?
1.  Sarah J
 Thank you; all of the discussion here has been extremely informative.
2.  Rob Valente
 18 USC 922 (g)(8) which prohibits persons subject to a qualifying protection order from possessing firearms has an official use exemption, which would be carried out in the manner you describe, Cristina, but 18 USC 922(g)(9) which prohibits persons convicted of misdemeanor crimes of domestic violence from possessing firearms has NO official use exemption.
3.  Cristina
 on that of some obtaining a desk job or be temporaily suspended; I though that officers that must carry a fire arm are suposted submit the gun to their supervisor at the end of their chift and have back at the begining of same.
4.  Rob Valente
 Victim advocates should take special care to carry out safety planning with victims of law-enforcement officer perpetrated domestic violence. At the time when a law enforcement agency removes an officer from duty because of the 18 USC 922(g)(9) prohibition, the perpetrators abuse may escalate.
5.  Sarah J
 In such cases, are employers required to provide the officer with a desk job or some other position in the law enforcement agency that does not require possession of a gun?
6.  James P. Vann
 While state or local law enforcement officers are generally exempted from most of the provisions of the Gun Control Act, this exemption does not apply to 18 U.S.C. 922(g)(9), which makes it unlawful to possess a firearm by someone who has been convicted of a Misdemeanor Crime of Domestic Violence. See 18 U.S.C. Section 925(a)(1).
The domestic violence forefront has implemented a variety of risk assessments for both likelihood of abuse but also lethality. Is there any equivalent of risk assessment in the process of purchasing firearms and if not, would if be beneficialfeasible to suggest one?
1.  David
 Rob, I know it's an impossible question to answer, and if you had it, you would be perusing that, I know. As someone who has worked with victims but is still unsure about where to set his sights for a career path, I am open to the opinions of different professionals and where they think the most help is needed. Thank you for your time today, and I hope together, we can work to alleviate the intense and widespread suffering caused by such misguidance.
2.  Rob Valente
 David, many local, state and national organizations are in agreement with you that culture change is essential to finally ending domestic violence. Some organizations focus more intensely on prevention workdoing education in middle and high schools, working with faith-based and other community partnersto look at how the culture we live in promotes or enables domestic violence. At the same time, domestic violence incidents are occurring around us daily, hourly, even every minute. For policymakers, one of the hardest decisions to make is how to allocate scarce resources and funding: to help those in immediate need? Or focus on prevention?
3.  David
 All of these discussions highlight the predicative nature of the justice system- how most policies are post-incident. Knowing that DV is a cultural and societal issue rather than a responsibility for the justice system, do you have any possible alleviations for the cause of DV: addressing gender inequality, emotional sensitivity, stress management, etc?
4.  Rob Valente
 While lethality assessment may be difficult to implement on a federal level, states have much greater capacity to use lethality assessments when law enforcement responds to domestic violence calls. These assessments, if done well, will include checking to see if firearms, or the threat of the use of firearms, have been used in the commission of domestic violence in the recent past.Maryland has had great success utilizing a domestic violence lethality assessment protocol, which has resulted in a 41 percent decrease in domestic violence homicides. Contact the Maryland Network Against Domestic Violence at http:w//ww.mnadv.org/lethality.html
5.  James P. Vann
 Under Federal law, there is no risk assessment to determine whether someone would be prohibited from possessing a firearm. However, there are prohibitions including, but not limited to, the possession of firearms by a person who has been convicted of a crime that is punishable by imprisonment for a term exceeding one year, by a person who has been convicted of a misdemeanor crime of domestic violence, and by a person who has been adjudicated as a mental defective or who has been committed to a mental institution. See 18 U.S.C. Section 922(g).
When the abuser is a hunter and own several hunting weapons like guns, riffles, bows, knifes...and he has a potential to became physically abusive to his victims. all the allegations against him are verbal abuse. the new laws said that in case of an Order of protection he will have to submit them. I have heard of cases where the judge issue a refrain from OP and will only take the guns away. the victim told the police he had some other weapons in the house but abuser told the police he no longer had them(he had hiden the knife and the bow)would the police be allowed to serch the house in that case or they need a serch warrant when noi crime has being commited?
1.  Rob Valente
 Maxine and Cristina, you may want to get in touch with the National Center on Protection Orders and Full Faith and Credit. They have experts on state and federal firearms laws on staff who can offer you technical assistance with this issue. You can reach them by calling 1-800-903-0111, select option 2.
2.  James P. Vann
 Part 2. The possession of other weapons including bows and knives may be restricted by state laws. Further, searches and seizures of evidence are subject to the protections guaranteed by the Fourth Amendment to the Constitution.
3.  James P. Vann
 Part 1. The Gun Control Act prohibits the possession of firearms by someone convicted of a misdemeanor crime of domestic violence, or someone who is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such partner. See 18 U.S.C. Sections 922(g)(8) and 922(g)(9). A firearm is defined as, (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm. 18 U.S.C. Section 921(a)(3).
4.  Cristina
 you are correct. i was hoping to find a way arround it to reinforce security for the victim. the new law impare the perpetrator from legally getting new weapons, but cant warrantee he will ovey that. I also understand if the victim provides a list of the weapons doesn't warrantee he will submited them all.
5.  Maxine Lantz
 from my reading of the federal laws, the ban does not include all weapons. The law appears to target handguns and assault rifles. Is that correct?
I wonder who does the law in the State of California on firearms in the home and a conviction for domestic violence?
1.  Rob Valente
 I will check into this, Silvia, and will post an answer later.
Good afternoon, I direct a domestic violence clinic in Indiana and have had both success and failure in seeking to have a respondent who has an order of proction banned from possessing a weapon under state law although it is automatic under federal law if the elements are met. If I cannot get a local court to order prohibition, what is the realistic effect of having a federal only ban on a respondent? What power does local law enforcement have in enforcing a federal ban if a respondent has possession of a weapon or can only a federal law enforcement officer have the power to enforce the ban?
1.  Rob Valente
 This sounds like a particularly difficult case. I recommend you reach out to the National Center on Protection Orders and Full Faith and Credit for assistance. They are funded by the U.S. Department of Justice to provide technical assistance on the issue of firearms and domestic violence. You can reach them by calling 1-800-903-0111 (select option 2).
2.  James P. Vann
 While I do not want to speak to individual state laws, if you feel that there is a violation of a federal firearms law, you should contact your local ATF office.
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