Firearms, Domestic Violence, and DatingViolence: Abusers’ Use of Firearms Violenceto Exert Coercive Control and CommitIntimate Partner Homicides

Rob (Roberta) Valente and Rachel Graber

ContentsIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3The Impact of Federal and State Laws in Preventing and Responding to DV-RelatedFirearms Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Second Amendment Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5Federal Firearms Law: Prohibitors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Domestic Violence Protection Order Prohibitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Misdemeanor Crime of Domestic Violence Prohibitor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8The Background Check System and Enforcement of Federal Firearms Laws . . . . . . . . . . . . . . . . . . 11Policy Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Improving Background Checks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Misdemeanor Crimes of Domestic Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Domestic Violence Protective Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16The Importance of State Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Strengthening Federal, State, Tribal, and local laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17Strengthening Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Other Recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Key Points . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Summary and Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

AbstractDomestic/dating violence and firearms can be a lethal combination. Manyhundreds of women are murdered annually by current or former male intimatepartners with firearms (Violence Policy Center, When men murder women:an analysis of 2017 homicide data. Retrieved from http://vpc.org/studies/wmmw2018.pdf, 2019). Firearms are also a powerful tool of coercive control;

R. R. Valente (*) · R. GraberNational Coalition Against Domestic Violence, Denver, CO, USAe-mail: rvalente@ncadv.org; rgraber@ncadv.org

© The Author(s) 2020R. Geffner et al. (eds.), Handbook of Interpersonal Violence Across the Lifespan,https://doi.org/10.1007/978-3-319-62122-7_165-1

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millions of American women alive today have been threatened by intimatepartners with firearms during their lifetimes (Sorenson and Schut, Nonfatal gunuse in intimate partner violence: a systematic review of the literature. TraumaViolence Abuse 19(4):431–442. https://doi.org/10.1177/1524838016668589,2016; Tjaden and Thoennes, Extent, nature, and consequences of intimate partnerviolence: findings from the National Violence Against Women Survey. Reportno NCJ 181867. Department of Justice, National Institute of Justice, and Centersfor Disease Control and Prevention, Washington, DC, 2000). Although intimatepartner violence impacts people of all genders, approximately 85% of victims arewomen (Catalano, Intimate partner violence, 1993–2010. Bureau of JusticeStatistics. Retrieved from https://www.bjs.gov/content/pub/pdf/ipv9310.pdf,2015). When coupled with the fact that most intimate partner homicides commit-ted by women against men do not involve firearms (Cooper and Smith, Homicidetrends in the United States, 1980–2008. Retrieved from http://www.bjs.gov/content/pub/pdf/htus8008.pdf, 2011), this means that research about firearm-involved domestic violence committed by women against men is limited.Research about the use of firearms in same-sex relationships is also scarce,although it is known that firearms are more likely to be used in opposite-sexintimate partner homicides than in same-sex intimate partner homicides (Mizeand Shackelford, Intimate partner homicide methods in heterosexual, gay, andlesbian relationships. Violence Vict 23(1):98–114, 2008). The US federal gov-ernment and many state governments have taken important steps to protectvictims and survivors from abusers with firearms, including prohibiting certaindomestic violence misdemeanants and protection order respondents frompurchasing or possessing firearms (Disarm Domestic Violence, State-by-state.Retrieved from https://www.disarmdv.org/state-by-state/, 2018; Giffords LawCenter to Prevent Gun Violence, Browse gun laws. Retrieved from https://lawcenter.giffords.org/browse-gun-laws/, 2018; 18 U.S.C. 922(g)(8) and (9)).Although the current laws in America provide vital protections, more needs tobe done to keep firearms out of the hands of abusive intimate partners. Thischapter discusses firearm violence in domestic violence cases from a nationalviewpoint, looking first at what firearms violence looks like in domestic violencecases and how it relates to homicides, based on statistical and research analyses.Next, this chapter outlines and analyzes the US federal laws that cover firearmsand domestic violence and how state laws underpin those firearms prohibitions.We then review the federal databases involved in enforcing these laws, particu-larly in terms of the National Instant Criminal Background Check System(NICS). Finally, we look at commonly reported obstacles to enforcement ofthese laws and enumerate the policy changes needed to make enforcement ofexisting laws more effective. We outline ways to close gaps in the laws that leavecertain survivors of domestic violence unprotected from firearms violence,including by making improvements to existing federal firearms laws and enforce-ment protocols that appear in the H.R.1585, the bill passed in early April 2019by the US House of Representatives with strong bipartisan support to reauthorizethe Violence Against Women Act, and its Senate companion bill, S.2843.

2 R. R. Valente and R. Graber

KeywordsFirearms · Intimate partner violence · Homicide · Coercive control · Domesticviolence · Protection order · Misdemeanor crime of domestic violence ·Prohibitor · Violence Against Women Act · Lautenberg Amendment · USAttorneys · Brady Act · DOJ · FBI · NICS · NCIC · Fix NICS · ATF

Introduction

Domestic violence and firearms constitute a lethal combination (Violence PolicyCenter 2019). Victim advocates who work with survivors of domestic and datingpartner violence anecdotally report how dangerous firearms can be in the hands of anabuser (WKRN 2019). Domestic violence includes verbal, emotional, and financialabuse, but also includes a broad range of types of physical abuse against an intimatepartner, including threatening an intimate partner or children with severe physicalviolence or even death.

In this chapter, which is focused on the criminal justice system response tofirearms violence in cases of intimate partner violence, we generally use the term“domestic violence” rather than “intimate partner violence” as is used elsewhere inthis reference resource. Most professionals who use the term “intimate partnerviolence” work in the victim services arena, while law enforcement and courtprofessionals use the term “domestic violence” in relation to criminal justice systemresponses. In the unique instances where federal and state firearms laws make adistinction between “domestic violence,” “intimate partner violence,” and “datingviolence,” we will note the distinction.

Another legal term used in this chapter is “prohibitor.” “Prohibitor” is a termused in reference to the specific provisions in the federal firearms laws found inthe US Code at 18 U.S.C. 922(g). Under federal law, certain classes of people maynot purchase or possess a firearm or ammunition, because it is considered dangerousfor them to have access to such weapons. These classes of people are subjectto restrictions known as “prohibitors,” which limit their access to firearmsbased on certain legal statuses. These prohibitors appear in the US Code at18 U.S.C. 922(g) and apply to (1) persons convicted of a felony; (2) fugitivesfrom justice; (3) addicts or unlawful users of controlled substances; (4) personsfound by a court to be mentally challenged or disabled or who have been committedto mental institutions; (5) persons who are not lawfully in the United States or whoare in the United States on a non-immigrant visa; (6) persons who have beendishonorably discharged from the military; (7) persons who have renounced theirUS citizenship; (8) persons subject to qualifying state or tribal protection orders(“protection order prohibitor”); or (9) persons convicted of qualifying state or tribalmisdemeanor crimes of domestic violence (“MCDV prohibitor”). While all of theseprohibitors can apply to domestic violence abusers, abusers are most often pro-hibited from possessing a firearm because of 18 U.S.C. 922(g)(8) or (g)(9). Thesetwo provisions are the only prohibitors that explicitly relate to domestic violence,

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 3

and they are also the only prohibitors based on criminal acts that fall below the levelof a felony.

Firearms are the weapon of choice for domestic violence femicide. In 2017, 57%of domestic violence femicides were committed using firearms (Violence PolicyCenter 2019). Firearm access is a key indicator of lethality – the risk of domesticviolence femicide increases fivefold when a male partner has access to a firearm(Campbell et al. 2003). Notably, female murder victims are almost six times morelikely than male murder victims to have been killed by an intimate partner (Frideland Fox 2019). Intimate partner femicides committed by men are far more likely toinvolve a firearm than intimate partner homicides committed by women against menor by a same-sex partner (Cooper and Smith 2011; Mize and Shackelford 2008). A2003 study of persons aged 15 and older who were hospitalized for gun-relatedinjuries (getting shot or hit with a gun) found that female patients were 3.6 timesmore likely than male patients to have been shot by a spouse or ex-spouse rather thanby a stranger (Wiebe 2003). Firearms are also uniquely lethal. Abusers with firearmsare five to eight times as likely to kill their victims as are those without firearms(Campbell et al. 2003). A Centers for Disease Control and Prevention (CDC) reportsummarizing information about intimate partner homicides in the United Statesbetween 2003 and 2014 found that more than half of intimate partner homicideswere committed by perpetrators with a gun (CDC 2017). Domestic and familyviolence homicide attempts committed with firearms are 12 times more likely tobe lethal than attempts with other means (Saltzman et al. 1992); a victim is far morelikely to survive a domestic violence assault that does not involve a firearm than onethat does.

Firearm violence is not confined to homicide or even physical injury. The abusermay use firearms to control the behavior of an intimate partner by forcing theintimate partner into compliance, known as coercive control. The animating forcebehind coercive control is a pattern and history of behavior and conduct used byabusive partner, including physical, sexual, emotional, economic, or psychologicalactions or threats of harm. Coercive control can also include intimidation, degradingremarks, isolation, and denial of the most basic human needs; an abuser who usescoercive control against an intimate partner intends to utterly dominate the life ofan intimate partner, in order to prevent the intimate partner from exercising even thesmallest act of autonomy (Stark 2007).

Not surprisingly, firearms are some of the most effective weapons in any abuser’sarsenal to exert coercive control over their intimate partners. A study by HarvardSchool of Public Health researchers analyzed gun use at home and concluded that“. . . hostile gun displays against family members may be more common than gunuse in self-defense, and that hostile gun displays are often acts of domestic violencedirected against women” (Azrael and Hemenway 2000). The National ViolenceAgainst Women Survey, a national, representative survey of 8,000 women and8,000 men conducted by the Department of Justice (“DOJ”) in conjunction withthe Centers for Disease Control and Prevention, found that, extrapolating from thedata collected, an estimated 4.5 million American women alive today have beenthreatened by intimate partners with firearms (Sorenson and Schut 2016; Tjaden andThoennes 2000; for more information about the survey and its results, see CDC

4 R. R. Valente and R. Graber

2017). Few survivors of domestic violence are able to counter the threat of firearmsviolence, so abusers quickly learn that the most likely way to control an intimatepartner is by making threats with firearms, such as referencing (often more thanonce) an intention to obtain a firearm; reminding an intimate partner that the abuserhas a firearm easily accessible somewhere in the house; threatening suicide orhomicide; brandishing firearms; pointing a firearm directly at an intimate partner,child, or pet; shooting a firearm in the air or somewhere near an intimate partner,child, or pet without the explicit intention of physically injuring them; or actuallycausing physical (but not lethal) injury to an intimate partner or the children witha firearm (Sorenson and Schut 2016).

Women in shelters are more likely to have been threatened with a firearm thanwomen of the general public. A study of women in 67 California domestic violenceshelters found that abusive intimate partners used handguns to harm, threaten, orscare 32.1% of study participants; long guns were used to harm, threaten, or scare15.9% of participants. Of those studied, 39.1% reported that the abusive intimatepartner owned a firearm during the relationship, almost twice the rate of general gunownership in California. Of participants in gun-owning households, 64.5% saida gun had been used against them (Kalesan et al. 2015; Sorenson and Schut 2016).

The Impact of Federal and State Laws in Preventingand Responding to DV-Related Firearms Violence

Laws restricting an abuser’s access to firearms have been shown to significantlydecrease intimate partner homicides (Zeoli et al. 2017; Catalano et al. 2009). Toimpede abusers’ use of firearms to control, harm, and even kill their intimatepartners, a framework of federal, state, and tribal laws prohibits adjudicated abusersfrom having access to firearms. Understanding these laws and how they operate – ina parallel fashion with each other –is crucial to understanding how to reduce firearmshomicides and prevent firearms from being used as a weapon of coercive control indomestic violence cases.

Second Amendment Limitations

All US laws must be consistent with constitutional requirements. The SecondAmendment of the US Constitution is the fundamental law underpinningof all firearms laws and regulations in the United States. Until 2008, US SupremeCourt case law on the Second Amendment was minimal. In Heller v. U.S.(554 U.S. 570 (2008)), the US Supreme Court addressed the meaning of the SecondAmendment fully, by reviewing the history of firearms ownership in the UnitedStates in order to determine whether the Constitution conferred upon an individualthe right to possess and use a firearm. In Heller and subsequently in MacDonaldv. Chicago (561 U.S. 742 (2010)), the Supreme Court found that the SecondAmendment protects an individual’s right to possess a firearm for traditionally

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 5

lawful purposes, such as self-defense within the home. The Court did state that theSecond Amendment, like most constitutional rights, can be regulated through pro-visions like long-standing prohibitions on the possession of firearms in federal law.The Court made it clear that the Second Amendment did not authorize a person’saccess to firearms for non-lawful purposes.

Federal Firearms Law: Prohibitors

Congress first regulated individual access to firearms in the Federal Firearms Actof 1938, when it created the first prohibitor (the felony prohibitor). Nearly 60 yearslater, Congress added the first domestic violence prohibitor, the protection orderprohibitor, in the Violence Against Women Act (VAWA) of 1994. US state lawsuniformly provide survivors with the option to seek a protection order. Firstresponders to domestic violence calls, like law enforcement, routinely provideinformation to survivors about how to obtain a protection order. In many cases,law enforcement officers also work to connect survivors with victim advocates,either immediately or shortly after the call, who then facilitate obtaining the protec-tion order (see http://womenslaw.org/ for a compilation of state laws related toprotection orders).

Thus, for many domestic violence survivors, petitioning for a protection orderfrom their local court is often the first step toward leaving the abusive situation(District of Columbia Justice System 2017). A study of women in shelters found thatmany survivors seek a protection order as a less dangerous way to let their abusiveintimate partners know that the justice system has been made aware of their abuseand that the victim is not going to “take it” anymore (McFarlane et al. 2004).Abusers often react violently to learning of the survivor’s attempt to obtain aprotection order; a review of court records in many states showed that many violentabusers, when served with a protection order, dramatically escalated to potentiallylethal abuse in retaliation (often called “separation violence” by victim advocatesat domestic violence programs), at times threatening their victims with firearmsviolence (Luo 2013). Because of the dangers of separation violence at the time ofissuance of protection orders, in 1994, Congress decided to create the protectionorder prohibitor, in order to impede abusers’ use of firearms violence while thesurvivor is attempting to leave or seek help. The MCDV prohibitor was added2 years later in 1996, as a result of an amendment offered by Senator FrankLautenberg (a law now commonly known as “the Lautenberg Amendment”).

Domestic Violence Protection Order Prohibitor

The first federal prohibition against possession, purchase, or transfer of firearmsin domestic violence cases is the protection order prohibitor (18 U.S.C. 922(d)(8)and (g)(8)). Protection orders issued by state and tribal courts will trigger theapplication of this prohibitor, if they meet the requirements of the federal law.

6 R. R. Valente and R. Graber

There are requirements in terms of the relationship between the abuser and thesurvivor. First, the protection order must demonstrate one of the following relation-ships between the respondent and victim: (1) current or former spouse; (2) cohabitantor former cohabitant; (3) the protected party has a child in common with therespondent; or (4) the protected party is a child of either the victim or the respondent.However, federal law has a significant gap in the protection order prohibition: it doesnot cover relationships in which the two parties are dating but are not cohabiting anddo not have a child in common.

Second, there are requirements about the terms of the protection order. In order totrigger the application of this prohibitor, the protection order must include at leastone of the provisions in paragraph (a) below and a finding or prohibition related tothe abuser’s violence described in paragraph (b) below:

(a) The court must have ordered the person subject to the order to refrain from harassing,stalking or threatening an intimate partner or the intimate partner’s child and/or orderedthe person subject to the order to refrain from engaging in other conduct that would placean intimate partner in reasonable fear of bodily injury to the intimate partner or theintimate partner’s child; and

(b) The court must have made a finding that the person subject to the order represented acredible threat to the physical safety of the intimate partner or their child and/or the courtmust have expressly prohibited the person subject to the order from using, attempting touse, or threatening to use physical force that would reasonably be expected to causebodily injury for the intimate partner or their child.

Third, the court must note on the protection order or in the court record that theperson subject to the terms of the order had full due process. That means the personsubject to the order should have received notice of the date of the hearing related tothe protection order and had been given an opportunity to appear and presenttestimony or other evidence. If the respondent fails to appear at the hearing, despitereceiving notice of the hearing date, the court can issue a default order. A defaultorder can be sufficient to trigger the protection order prohibitor if the other statutoryrequirements are met. The protection order prohibition does not apply to ex parteorders (an order issued by a judge based only on the testimony of the person seekingprotection without prior notification being provided to the alleged abuser), colloqui-ally known as “temporary” orders. The protection order prohibition also does notapply to mutual protection orders (orders issued simultaneously against both thepetitioner and the respondent, without prior notice to the petitioner), because the dueprocess requirement (notice and opportunity to be heard) is not met.

If all three requirements above are met (relationship, terms, and due process),under federal law, a respondent to a protection order is prohibited from possessing,purchasing, or receiving firearms for the duration of the protection order. Personssubject to qualifying protection orders may be in violation of federal law if theypossess or try to purchase a firearm or ammunition. If the respondent owned firearmsprior to the issuance of the protection order, the court may order that the respondent’sguns and ammunition be held by a third party or stored by law enforcement until thetermination of the order. If the respondent is a law enforcement officer or serves in

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 7

the military, it may be possible for the respondent’s supervisor to give them a serviceweapon only while the respondent is on duty (18 USC 925(a)(1)). This official useexemption only applies to governmental law enforcement or military personnel andnot to private security forces. The official use exemption does not apply to tribal lawenforcement (unless they are cross-deputized by a federal, state, or local criminaljustice agency and are operating in that capacity). It is also a crime for a third party toknowingly sell or transfer a firearm or ammunition to a person subject to a qualifyingprotection order (18 U.S.C. 922(d)(8)).

Tribal considerations. Tribal court-issued protection orders will also trigger thefederal protection order prohibitor so long as they meet the statutory requirementsoutlined above. Violations of the protection order prohibitor are prosecuted by theUS Attorneys, and for this reason, training and coordination between federal agen-cies and tribes are essential for the successful implementation of this prohibitionwithin tribal lands. Likewise, it is extremely important in locations where state-tribalconcurrent jurisdiction exist that US Attorneys are sufficiently trained and directed tobe cognizant of the application of this statute. The Bureau of Alcohol, Tobacco andFirearms (“ATF”) is responsible for the removal of weapons from prohibited personsin cases on tribal lands. The ATF is expected to contact the Federal Bureau ofInvestigation (“FBI”) to confirm the person suspected of possessing a weapon is inviolation of the protection order prohibitor.

Misdemeanor Crime of Domestic Violence Prohibitor

Federal law also prohibits persons convicted of misdemeanor crimes of domesticviolence from possessing, purchasing, or receiving firearms (18 U.S.C. 922(g)(9)).This prohibitor is similar to the protection order prohibitor. It is important to notethat the prohibition applies to misdemeanor as well as felony convictions becausehistorically domestic violence crimes are less likely charged as felonies when com-pared to similar assaults between strangers (142 Cong. Rec. S11872-01). Thoughprosecution of domestic violence crimes is more vigorous today, it is still commonpractice in many jurisdictions for domestic violence crimes to be resolved throughplea agreements (Friend et al. 2011). When this happens, the defendant is allowed toplead guilty to a misdemeanor crime, resolving the issue and saving court costs andtime, in exchange for avoiding the risk of potentially being convicted of a felony.Because of this practice, Congress recognized that a serious gap existed in the federalfirearms law. On the one hand, persons subject to a protection order could not haveaccess to firearms – and persons convicted of felony crimes also are prohibited fromobtaining guns. But those in the middle – domestic violence misdemeanants – facedno legal prohibition against possessing or purchasing a firearm. That gap has nowbeen closed by the Lautenberg Amendment (18 U.S.C. 922(g)(8)), which prohibitscertain domestic violence misdemeanants from having access to firearms. Underfederal law that defined and established the MCDV prohibitor, convictions formisdemeanor crimes of domestic violence that meet certain requirements trigger

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the application of the prohibitor. Like the protection order prohibitor, the MCDVprohibitor only applies if certain conditions are met:

1. Misdemeanor offense. The defendant must have been convicted of or pleadedguilty to a misdemeanor offense under federal, state, tribal, or, in most of theUnited States, local law involving the attempted use of physical force; the actualuse of physical force; or the threatened use of a deadly weapon.

2. Use of physical force. The court record must make it clear that the defendant wasconvicted or pled guilty to a specific crime involving the use of physical force.The US Supreme Court defined “physical force” in United States v. Castleman(134 S. Ct. 1405 (2014)) as the degree of force required to support a common lawbattery conviction, which in many jurisdictions can range from offensive touch-ing to serious physical injury. Offensive touching is a level of violence that isa common part of the pattern of conduct that constitutes domestic violence. TheCastleman Court held that offensive touching can range from a slap, shove, andsimilar acts that involve force (but do not necessarily cause bodily injury) tosevere physical violence, including lethal threats. The information that the defen-dant was charged with a crime involving the use of physical force must beincluded within the court documents and not be solely located in externaldocuments (such as police reports that were not submitted as evidence). Thekinds of documents that can provide the necessary information include chargingdocuments; plea colloquies; plea agreements; trial transcripts; jury verdict forms;conviction codes in official databases; or written judgments of conviction.

3. Status as a misdemeanant. If a person has a criminal record for an MCDV,that person cannot possess, purchase, or receive a firearm. It does not matter ifthe misdemeanor conviction occurred prior to the passage of the LautenbergAmendment. The prohibitor applies as long as the convicted individual continuesto have a qualifying misdemeanor crime of domestic violence on their convictionrecord. The MCDV prohibitor does not apply to a misdemeanant who has beenpardoned, or whose conviction has been expunged or set aside, or where themisdemeanant’s civil rights (the right to vote, the right to serve in public office,and the right to serve as a juror) have been restored, unless the state imposesany restriction on firearms rights after pardon, expungement, or civil rightsrestoration.

4. Relationship. The MCDV conviction or plea agreement record must show oneof the following relationships between the misdemeanant and the victim of thecriminal act: (1) current or former spouse; (2) parent or guardian; (3) having achild in common; (4) a current or former cohabitant; or (5) a person similarlysituated to a spouse, parent, or guardian of the victim. Under federal law, a“person similarly situated to a spouse” does not include dating partners.

5. Jury trial. The defendant must have had a jury trial or waived the right to a jurytrial. Many states do not offer defendants in a misdemeanor case a jury trial byright under state law. If the defendant has no right to a jury trial under state law,then the jury trial requirement does not apply.

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 9

6. Represented by counsel. The offender must have been represented by counsel orknowingly waived that right.

Of note, if all the requirements above are met, the Lautenberg Amendmentprohibition, unlike the protection order prohibition, lasts for the life of the misde-meanant, unless the misdemeanant has been pardoned, their conviction has beenexpunged or set aside, or they have had their civil rights restored. It takes effectautomatically – the victim or another party does not need to seek the MCDVprohibitor. Even if the misdemeanant is a law enforcement officer or serves in themilitary, the misdemeanant cannot have access to a firearm or ammunition, becausethere is no official use exemption under the MCDV prohibition (18 USC 925(a)(1)).It is also a crime for a third party to knowingly sell or transfer a firearm toa person convicted of a qualifying misdemeanor crime of domestic violence(18 U.S.C. 922(d)(8)). The degree to which this is currently enforced acrossthe United States, however, is uncertain.

The Violence Against Women Act of 2005 (VAWA 2005) amended theLautenberg Amendment to include tribal court convictions for misdemeanor crimesof domestic violence, thus expanding the MCDV prohibitor to offenders convictedof a domestic violence crime in tribal court from possessing firearms. To qualify, thetribal court conviction must meet the statutory requirements of an MCDV outlinedabove. These crimes are prosecuted by the US Attorneys, and for this reason,coordination with tribes is essential for the successful implementation of this life-saving statute within Indian nations. Likewise, it is extremely important in locationswhere state-tribal concurrent jurisdiction exist that US Attorneys are sufficientlytrained and directed to be cognizant of the application of this statute. The MCDVprohibitor applies to firearm prohibitions committed on tribal lands subject to PublicLaw 280. The Bureau of Alcohol, Tobacco and Firearms (ATF) is responsible for theremoval of weapons in cases on tribal lands. The ATF will contact the FBI to confirmif the person suspected of possessing a weapon is in violation of the MCDVprohibitor. Unfortunately, a large proportion of tribal convictions, particularlydomestic violence convictions, are not entered into NCIC, because tribes havesuch limited access to federal databases. This, in term, limits the impact of this law.

The US Supreme Court has directly addressed the laws and restrictions related todomestic violence prohibitors in several cases and upheld them against challengeswhile clarifying the meaning of terms in the federal law. In United States v. Hayes(555 U.S. 415 (2009)), the Court held that the state statute under which the defendantwas charged did not have to be explicitly called “domestic violence assault” or“domestic violence battery.” The Court held that all that was needed for the prohi-bition to apply were a conviction for a misdemeanor crime of assault or battery andcourt records indicating that the defendant was in one of the relationships enumer-ated in the federal misdemeanor crime of domestic violence prohibition. In UnitedStates v. Castleman (134 S. Ct. 1405 (2014)), the Court made clear that the level ofviolence required to trigger the MCDV prohibitor is satisfied by the degree of forcerequired to support a common law battery conviction, which could include offensivetouching. In Voisine v. United States (136 S.Ct. 2272 (2016)), the Court found that a

10 R. R. Valente and R. Graber

conviction for reckless domestic assault qualifies as a misdemeanor crime of domes-tic violence for the purposes of triggering the federal MCDV prohibitor.

The Background Check System and Enforcement of FederalFirearms Laws

The Brady Handgun Violence Prevention Act (“Brady Act”) requires all federallylicensed gun dealers to do a criminal background check of all potential firearmspurchasers before completing a sale in order to determine if the potential purchaser issubject to any of the federal firearms prohibitors as described above. Domesticviolence offenders may fail background checks because of any of the federalprohibitors, but most fail background checks because they are subject to a qualifyingprotection order or have been convicted of a qualifying misdemeanor crime ofdomestic violence.

To implement the Brady Act, the US Department of Justice established andoperates the National Instant Criminal Background Check System (“NICS”). Withinthe US Department of Justice, the Federal Bureau of Investigations (FBI) is theagency responsible for conducting a search of protection order, misdemeanor, andfelony crime records and any other information relevant to the federal firearmsprohibitions. By law, the FBI has only three business days to conduct the recordssearch; if no state or federal prohibitions are uncovered within that period, the sale isallowed (but not required) to proceed by default. The vast majority of checks –morethan 90% – are processed instantaneously. If the FBI has not completed the recordssearch in 3 days due to insufficient records in the system, the sale can go forward(“default proceed”), but, in some cases, the FBI finds out later that the person shouldnot have been able to purchase a firearm or ammunition after all, once all records areavailable. If the FBI realizes that the person should not have been able to purchasea firearm, the FBI will notify the ATF. The ATF is then responsible for retrieving therecently purchased firearm(s) from the prohibited person. The degree to which thisuniformly occurs across the United States is unknown. Moreover, despite the 3-dayrule under federal law, in actual practice, the FBI often needs more than 3 days tocomplete MCDV reviews. Denials involving MCDV convictions take longer tocomplete than any other prohibiting category, with 90% taking up to seven businessdays to complete (United States Government Accountability Office 2016). Thus, theinterface between the criminal background checking system and domestic violenceperpetrators remains imperfect and susceptible to potentially dangerous errors infirearm access.

Of concern, the NCIC databases are only as good as the information that statesenter into them. Unfortunately, many states have not entered up-to-date domesticviolence records into the federal databases used in the background check system(FBI Criminal Justice Criminal Information Services Division 2019). Up until 2018,the military had entered only one domestic violence record into the NICS databases.Moreover, as noted previously, tribes have had severely limited access to NCICdatabases, in terms of entering and pulling information from NCIC, which also

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 11

hampers the effectiveness of the federal background check system. Additionally,responsibility for updating the records – for example, noting the dismissal ofa protection order – is up to the state that entered the record. If states do not provideup-to-date information to NCIC, the background check system will not workeffectively. Even those states that do enter protection order and MCDV recordsmay not enter those records quickly, due to resource issues. These lapses in infor-mation can jeopardize a victim’s safety, since the time in which a victim seeks andreceives a protection order is often the most dangerous. In 2012, more than 3,000firearms purchases went forward because of incomplete records, even though theFBI later found that these persons should have been prohibited from purchasingfirearms (Cooper et al. 2013); between 2013 and 2014, a plurality of default proceedsales to prohibited persons referred by the FBI to the ATF were due to domesticviolence prohibitors (Karberg et al. 2016).

When the system works as it ought to, when a prohibited domestic violenceoffender tries to purchase a gun or ammunition from a federally licensed firearmsdealer, the sale will be stopped. However, as noted by victim advocates, domesticviolence offenders who are federally prohibited from purchasing firearms or ammu-nition can avoid background checks by buying guns from unlicensed “privatesellers,” at gun shows, or online. A 2017 study found 22% of gun owners whohad obtained a firearm in the previous 2 years had acquired the firearm withoutundergoing a background check (Miller et al. 2017).

There are a number of proposed solutions to these loopholes. Specifically, thefederal government and states could close these dangerous gaps by legislating thefollowing:

1. Require sellers of firearms – whether the sale is conducted through a private sale,a gun show, or an online sale – to utilize the federal background check systemthrough a federally licensed dealer or face a fine or other sanction.

2. Require sellers of firearms to delay transfer of firearms until a background checkis complete, even if it takes more than three business days.

3. Establish state and tribal background check systems that all sellers and purchasersmust use to complete firearms or ammunitions sales or face a fine or othersanction.

4. Require both the seller and purchaser of firearms to obtain – and have available toshow law enforcement – receipts from either the federally licensed dealer orthrough the state background check system certifying that either a federal or statebackground check was conducted.

As it currently stands, the background check system relies on a variety ofstakeholders to function efficiently and accurately. All state courts, prosecutors,and law enforcement agencies should participate in getting the right informationinto NCIC. The difficulty for many of these agencies is a lack of resources to get thisdone regularly. In many jurisdictions, there are stages in the information uploadingprocess that require staff who can make manual entries into state databases frompaper records or who must facilitate the transfer of records from local databases to

12 R. R. Valente and R. Graber

state-level databases. Yet there is no regular funding source for these staffingrequirements in many jurisdictions. Most states do not have the luxury of budgetlines to fund these necessary activities.

The necessity of closing these gaps has recently been brought to national atten-tion. For example, in the wake of a mass shooting on November 5, 2017, in a churchin Sutherland Springs, TX, the country and Congress became aware of how fewdomestic violence records are entered into the federal background check system. Theperpetrator in the Sutherland Springs case was able to buy firearms and ammunition,despite prior qualifying adjudications for domestic violence when he was in themilitary. During a Senate Judiciary Committee hearing on the state of domesticviolence records in NICS, Congress learned that the military had only entered onedomestic violence record into NICS up to the time of the mass shooting. In response,Congress passed and the President signed into law the Fix NICS Act (“Fix NICS”)on March 23, 2018.

Fix NICS amended the Brady Handgun Violence Prevention Act to require eachfederal agency and department, including federal courts, to (1) certify the entry ofdisqualifying records in their jurisdictions of persons prohibited from receiving orpossessing a firearm; (2) establish and substantially comply with an implementationplan to maximize record submissions into NICS; and (3) verify the records’ accu-racy. Congress also provided funding to help states make the submission of domesticviolence records in NICS a priority; this funding was conditioned on each statedeveloping a statewide implementation plan to improve entry of domestic violencerecords into the state’s and NICS’ databases. Fix NICS furthermore conditioned thefunding on states publishing the number of domestic violence records entered intothe states’ and NICS’s databases. Fix NICS also applies to the tribes, but becausetheir access to NCIC is limited, the US Department of Justice is working with themseparately to facilitate their access to NCIC.

Another problem in getting state court records into the appropriate federaldatabases arises from the very specific due process requirements of the federalfirearms laws (described above). The person subject to the protection order musthave had notice of the full protection order hearing and an opportunity to be heard orthe federal firearms prohibitor will not be triggered. Research shows that a signifi-cant number of protection orders are not served, and thus the protection order cannotbe entered into the NICS system (Sorenson and Shen 2005), thereby keepingotherwise qualifying orders out of the system. A study published in 2014 foundthat in San Mateo county in California, the top reason law enforcement failed torecover firearms from prohibited respondents was that the orders were not served(Wintemute et al. 2014).

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 13

Policy Recommendations

Improving Background Checks

As such, the current authors recommend some policy changes related to federalprohibitors. Specifically, the states and the federal government must work in part-nership to implement each part of the federal background check system. This wouldentail the following: (1) State courts generate the information that goes into NCIC.State courts should enter all court-generated protection orders as well as the convic-tions for misdemeanor crimes of domestic violence records consistently, to ensurethe FBI is able to determine whether a person is prohibited from possessing orpurchasing a firearm or ammunition. (2) State prosecutors can ensure that chargingdocuments and other justice system records contain all of the information thatthe FBI needs during a background check, such as the relationship between theparties and whether the defendant was charged for a felony or a misdemeanor crimeinvolving the use of physical force. (3) State law enforcement officers developevidence through the investigation process that courts and prosecutors rely upon toaddress firearms violence in domestic violence cases; law enforcement is responsiblefor entering the information into NCIC. The FBI queries NCIC when conductingbackground checks. Law enforcement is also responsible for enforcing state firearmslaws and recovering firearms and ammunition from domestic violence offenderswhen state law requires such recovery. (4) Bureau of Alcohol, Tobacco and Firearmsagents are responsible for investigating potential violations of federal firearms laws;they are also responsible for searching for illegally possessed firearms and ammu-nition, as well as recovering them from prohibited persons, including from domesticabusers prohibited by federal law from possessing firearms. (5) Federal Bureau ofInvestigation implements the federal background check system (NICS) and deter-mines whether records in the federal databases indicate that a person is prohibitedfrom possessing or purchasing a firearm or ammunition. (6) US Attorneys mayprosecute persons who are in violation of federal firearms prohibitions; on triballands, the US Attorneys or Special Assistant US Attorneys (often a tribal prosecutorcross-designated by the Executive Office of the US Attorneys) prosecute violationsof federal firearms laws. (7) Finally, in an ideal world, all state and federal actorswould work together in a coordinated fashion. Unfortunately, in too many jurisdic-tions, state law enforcement does not have a good communications system with thefederal agencies. To improve the functioning of the entire justice system, it is crucialthat local courts, prosecutors, and law enforcement agencies identify point persons toserve as direct liaisons to the federal agencies and vice versa.

These policy changes and recommendations are necessary to accomplish the goalof obtaining a high-quality background check prior to every gun sale or transfer, asthis practice is an effective way to reduce firearms homicides in domestic violencecases. For example, in states that require a background check for every handgun sale,38% fewer women are shot to death by intimate partners (Mayors Against IllegalGuns n.d.). Research shows that jurisdictions that prohibit both persons subject toprotection orders and persons subject to federal prohibitor statues from purchasing

14 R. R. Valente and R. Graber

a firearm overall experienced a 13% reduction in firearms homicides of batteredwomen (Vigdor and Mercy 2006).

Misdemeanor Crimes of Domestic Violence

States vary widely in their policies and practices related to domestic violencemisdemeanants. At one end of the continuum, many states prohibit certain domesticviolence misdemeanants from purchasing or possessing firearms in very similarways to how they prohibit perpetrators convicted of a domestic violence felony.However, other states’ laws are narrower in scope than the federal law; typically,these states set an end date to the state firearms prohibition, refuse to prohibit firearmpossession unless the firearms were used in the domestic/dating violence crime, orgive the judge discretion to decide whether or not to prohibit the misdemeanant frompurchasing or possessing firearms. Some states prohibit the purchase but not pos-session of firearms or vice versa, and some states do not restrict domestic violencemisdemeanants’ access to firearms in any way. For example, Tennessee does notcriminalize gun possession but prohibits the sale of firearms to a domestic violencemisdemeanant. The duration of the prohibition also varies by state – in Arizona, itlasts only through probation; in other states, it can last a lifetime unless the person ispardoned, the person’s record is expunged, or the person has his/her/their rightsrestored. The variable length of state MCDV prohibitors can occasionally causeconflict when a law enforcement agency no longer has the authority under state lawto hold a misdemeanant’s firearms but would be in violation of federal law if theyreturned the firearms to the misdemeanant. For a compendium of every state’s lawsregarding firearms and domestic violence, see http://disarmdv.org/.

A number of states require domestic violence misdemeanants who are prohibitedfrom possessing firearms to dispose of their firearms or give judges the discretionto order misdemeanants to dispose of their firearms. The mechanism and timeframefor disposal varies by state. Disposal methods may include transferring the firearmsto law enforcement, selling the firearms, or transferring the firearms to a third partywho is legally permitted to possess firearms. The timeframe in which the transfermust happen also varies by state. States also differ in their requirements for proof ofsurrender; some states require misdemeanants to file an affidavit with the courtwithin a certain time period, while other states do not require any proof of surrender,although within that state, an individual judge might require proof in a particularcase. Some states also authorize or require law enforcement to remove firearms whenresponding to a domestic violence crime. A number of states authorize law enforce-ment to remove firearms that are not surrendered in accordance with that state’slaw or as stipulated in a court order. At least one state, Illinois, requires judges toissue a warrant for law enforcement to recover firearms immediately upon servingthe order (750 Ill. Comp. Stat. Ann. 60/214(b)(14.5)(a); 60/218(a); 60/219).

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 15

Domestic Violence Protective Orders

Of note, domestic violence protection order laws vary dramatically among states.Some states have three or more types of domestic violence protection orders(e.g., emergency, temporary, and final orders), and some have only one. The requiredrelationships between the person seeking court protection and the person alleged tohave committed domestic or dating violence can vary by state, as can the length ofthe order, the relief available, the court(s) of jurisdiction, the role of third parties, anda number of other components. Every state has some mechanism to limit firearmaccess by persons subject to protection orders, but some states have significantlystronger protections for survivors than others do. Internally, the relief available inone state may differ based on whether the order was issued without a full hearingwith only the party seeking protection present (ex parte) or whether the order wasissued after a hearing of which the person alleged to have committed domesticviolence had notice and at which that person had the opportunity to be heard.For example, California prohibits all persons subject to multiple types of protectionorders from purchasing or possessing firearms; these include persons subject todating violence protection orders, domestic violence emergency protection orders,temporary restraining orders, and restraining orders issued after full hearings (Cal.Fam. Code §§ 6218, 6389; Cal Penal Code § 136.2), require them to relinquish theirfirearms within 24 h (Cal. Fam. Code § 6389(c)(1)), and require them to provideproof of relinquishment to the law enforcement agency that served the order (Cal.Fam. Code § 6389(c)(2)(A),(B)). The category of people covered in those protectiveorders are also broader in California than in some states – family members of theabused party are eligible for a protective order that will prohibit the respondent frompurchasing or possessing firearms (Cal. Fam. Code §§ 6300, 6220). In contrast, Iowaechoes federal law, prohibiting current or former spouses, current or former cohab-itants, and people who share a child in common who are subject to final protectionorders from purchasing or possessing firearms (Iowa Code Ann. § 724.26(2)(a));although dating partners are eligible for protection orders, this automatic prohibitiondoes not apply.

However, not all state statutes explicitly address access to firearms for personssubject to domestic violence protection orders. States without firearm-specific stat-utory provisions, and even many states that do address firearms access directly, havewhat are known as “catch-all” provisions in their protection order statutes thatauthorize courts to order whatever relief the court deems necessary to protect thepetitioner. In these cases, a judge can add a provision that specifically addressesfirearms access, prohibiting the person subject to the protection order from purchas-ing or possessing firearms and requiring that person to surrender their firearms to lawenforcement. The available relief can also differ based on whether the protectionis issued ex parte or after a hearing of which the respondent has notice and theopportunity to appear.

16 R. R. Valente and R. Graber

The Importance of State Laws

While federal firearms prohibitors are vital, strong state laws are also key toprotecting the safety of victims, survivors, their families, and their communities.State enforcement of relevant law is also essential. Federal law enforcement agentsenforce federal law, yet given their other duties, federal agencies have limited abilityto act in this capacity; enforcing the federal domestic violence firearms prohibitorsis rarely a priority on the federal level. State laws enable local law enforcement,who are far more familiar with the persons committing domestic violence in theircommunities, to intervene and protect their communities when domestic violenceincidents occur. Additionally, state courts issue the protection orders that mayultimately trigger the federal firearms prohibitions, making local-state-federal com-munication about domestic violence perpetrators essential. Finally, although thefederal government is often the driver of change at the state level, the reverse canalso be true; states can be pioneers for the development of effective policies, andcomparing the effectiveness of differing laws across states remains a way to test lawsand identify unintentionally harmful policies. Many states are leading the way inaddressing the intersection between domestic violence and firearms, instituting andimplementing policies to safeguard the welfare of their residents. State-level datashows that strong laws to keep firearms out of the hands of domestic abusers savelives (Zeoli et al. 2017).

Strengthening Federal, State, Tribal, and local laws

Since the passage of VAWA 1994, Congress has taken significant strides towardkeeping firearms out of the hands of domestic abusers. In the intervening years,many states have gone beyond the protections afforded by federal law. Given thedata on the effectiveness of gun laws related to domestic violence, it is past time forCongress and for the remaining states to pass robust laws to protect victims andsurvivors, their friends, their families, law enforcement, and their communities.

There are four specific gaps in federal, state, tribal, and local laws needingattention for increased effectiveness. First, firearms laws must be updated to prohibitadjudicated dating abusers from possessing firearms. Approximately half of womenkilled by intimate partners are killed by dating partners (Cooper and Smith 2011).As societal trends change, and people move in together, get married, and/orhave children at a later age, this percentage is expected to rise. Unlike in the past,approximately 80% of domestic violence-related calls to law enforcement are relatedto dating violence rather than violence among married persons (Sorenson and Spear2018). States that prohibit both domestic and dating abusers subject to qualifyingprotection orders from accessing firearms have a 10% lower rate of intimate partnerhomicides than states that do not (Zeoli et al. 2017); these data support the impor-tance of prohibiting dating abusers from purchasing or possessing firearms.

Second, laws need to routinely address firearm possession by respondents to exparte protective orders. Abusers frequently escalate their violence when victims and

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 17

survivors first seek to leave, which often corresponds to the survivor seeking an exparte protection order. A ten-city study found that approximately one-fifth of inti-mate partner homicide victims with protection orders were murdered within 2 daysof obtaining the order and one-third were murdered within the first month (Vittes andSorenson 2008). The length of ex parte protection orders varies by state, but a verysubstantial portion of these homicides were committed before the hearing for thefinal order. Other studies bear this out; prohibiting respondents to ex parte domesticviolence protection orders from accessing firearms is associated with a 12% decreasein intimate partner homicide (Zeoli et al. 2017).

Third, laws need to recognize the serious risk stalkers pose to their victims andcommunities. Stalking is a crime very frequently associated with intimate partnerhomicide (Monckton Smith et al. 2017). Perpetrators stalked 76% of women mur-dered by intimate partners and 85% of women who survive attempted murder beforekilling or attempting to kill them (McFarlane et al. 1999). Outside the context ofdomestic violence, Americans who experience stalking are at least 200 times morelikely to be murdered than those who are not stalked (Meloy 1999). Prohibitingstalking misdemeanants and respondents to stalking protection orders fromaccessing firearms protects both victims and survivors of domestic violence andvictims and survivors of acquaintance and stranger stalking.

Fourth, universal background checks are necessary, with an appropriate amountof time to conduct these properly. These laws must be melded with strong enforce-ment actions, including intervening at the initial stage of firearms access, whenindividuals are purchasing or receiving firearms. Persons seeking to purchase afirearm from a federally licensed firearms dealer are required to undergo a firearmsbackground check, conducted by either the FBI or by the state. These backgroundchecks are designed to ensure that persons prohibited from purchasing or possessingfirearms, including those prohibited due to domestic violence prohibitors, do nottake possession thereof. Some states require all firearms sales and transfers to beconducted through federally licensed dealers; some states require some firearmssales and transfers to be conducted through federally licensed dealers, and somestates have no requirements and allow the sale or transfer of firearms online orbetween private individuals with no oversight. Federal and state laws requiringbackground checks for all firearms sales and transfers are vital to ensuring allprohibited persons, including domestic abusers, do not access guns and should beimplemented nationwide.

Strengthening Enforcement

Strengthening the coordinated enforcement of federal, state, and local laws is alsoimportant. Multiple laws need to be considered during enforcement, including lawsregulating firearms sales and transfers, prohibitions for perpetrators, firearm relin-quishment as warranted, and consistent enforcement. To facilitate enforcement, theViolence Against Women Act authorizes a number of state grants including theSTOP grant, a formula grant designed to improve enforcement and prosecutionstrategies at the local level. The grant has myriad purpose areas, but, unfortunately,

18 R. R. Valente and R. Graber

it does not currently have a purpose area that allows STOP funding to be usedby local jurisdictions to develop and implement policies and protocols to ensureprohibited domestic abusers do not have access to firearms. Adding a purpose areawould not obligate states and localities to use their STOP dollars to develop andimplement such policies and protocols, but it would give them the flexibility to doso if that is what is needed in their communities. Adding the same purpose area toVAWA’s Improving the Criminal Justice Response grant would further permit localjurisdictions to improve enforcement of firearms prohibitors and court orders.

Another potential advancement would involve the Federal Bureau ofInvestigation (FBI) during the firearm purchase background check process. At thecompletion of the background check, the FBI is required to notify the federallylicensed firearms dealer of the would-be purchaser’s status – the sale can eitherproceed or is blocked. Attempting to purchase a firearm is often a sign that an abuseris escalating and that they may pose a heightened risk for lethal violence. Local lawenforcement would be better equipped to protect their communities, survivors, andthemselves if they could receive timely notice from the FBI when a prohibiteddomestic violence offender from their jurisdiction has attempted to illegally purchasea firearm. This is particularly important in “default proceed” cases in which a firearmhad been transferred after 72 h, and the FBI subsequently receives informationindicating that the recipient is prohibited from possessing firearms.

While the federal government rarely prosecutes violations of, or is otherwiseinvolved in enforcing, the domestic violence firearms prohibitors, federal interven-tion can be warranted in certain circumstances. Not all states prohibit domesticabusers from purchasing or possessing firearms – they rely entirely on federal lawto protect their communities. Even in states that do have domestic violence firearmsprohibitors, local law enforcement agencies may rely on federal agencies to safelyapprehend prohibited persons with extensive weapons arsenals. To ensure domesticabusers who illegally possess firearms are brought to justice and to enhance publicsafety, the Attorney General could use existing authority to deputize local prosecu-tors as Special Assistant US Attorneys to assist the US Attorneys’ offices ininvestigating and prosecuting violations of federal law. The ATF should similarlycross-deputize local law enforcement to seize firearms from prohibited abusers incooperation with ATF agents. Federal, state, and local cooperation could also befurthered by appointing domestic violence points of contact in US Attorney and ATFoffices.

Congress also has a role to play in making sure federal firearms laws applyequally nationwide. For example, a split between the federal Circuit Courts requiresa technical fix to the existing MCDV prohibition. Although the ATF regulationsclearly state that a qualifying misdemeanor crime of domestic violence convictionunder federal, state, local, or tribal law triggers the firearms prohibitor (Bureau ofAlcohol, Tobacco, Firearms, and Explosives 2017), the US 10th Circuit Court ofAppeals ruled otherwise, finding that only federal, state, and tribal convictionstrigger the prohibitor – convictions under local law do not (U.S. v Pauler, 2017).A substantial percentage of domestic violence cases are prosecuted under local law;in a segment of the United States, domestic violence misdemeanants can now

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 19

possess firearms as a result of this ruling. To protect victims and survivors ofdomestic violence in this swath of the United States, Congress must fix this draftingoversight by clarifying in law that convictions under local law trigger the federalfirearms prohibitor (amend 18 USC 921(a)(33)).

Other Recommendations

Some additional recommended tools, resources, and statutory changes to ensure thatthe justice system works quickly and effectively to reduce firearms threats todomestic violence victims are noted below and include:

1. Creating statewide background check systems that can be accessed around theclock

2. Enhancing the authority of courts to temporarily order adjudicated abusers tosurrender firearms and ammunition during time periods when the victim may beexposed to enhanced danger

3. Explicitly authorizing law enforcement officers to search for and seize firearmswhere there is probable cause to believe that an offender has used a firearm in thecommission of domestic violence or where there is probable cause to believethat an offender has threatened to use deadly force against the victim

4. Developing policies and procedures for local law enforcement regarding search,seizure, and storage of weapons, when removed during the time in whicha protection order is in effect

5. Developing policies and procedures for the disposal of firearms permanentlyremoved from a convicted abuser

6. Adopting cover sheets and checklists for courts, prosecutors, law enforcement,and victim advocates to ensure best practices in cases where firearms violenceand domestic violence intersect

7. Establishing a liaison from the court, prosecution agency, law enforcementagency, and victim service provider to regularly communicate with each otherand federal authorities about policies and procedures used and actions taken indomestic violence cases

8. Ensuring victim advocates are available to help the victim develop a safety planthat includes an explicit discussion of firearm access and lethality

9. Providing notification to the victim when the courts prohibit an offender’s accessto firearms, when the offender fails a state background check, or when lawenforcement intends to conduct a search of the home for firearms or ammunition

10. Training courts, prosecutors, law enforcement, and victim advocates about stateand local firearms policies and about intersecting federal firearms laws

11. Ensuring adjudicated abusers know how to dispossess themselves of contrabandfirearms and ammunition

12. Conducting periodic compliance reviews13. Adopting the Lethality Assessment Program developed by the Maryland

Network Against Domestic Violence

20 R. R. Valente and R. Graber

Key Points

• Most intimate partner homicides are committed using firearms.• Firearms are commonly used by domestic abusers to exert power and coercive

control.• Federal law prohibits some people convicted of MCDVand some respondents to

final protection orders from purchasing or possessing firearms.• Many states also prohibit certain domestic violence misdemeanants and respon-

dents to certain protection orders from purchasing or possessing firearms. Somestates have stronger laws than the federal government, including prohibitinga larger class of persons from purchasing or possessing firearms and requiringprohibited persons to relinquish or otherwise dispose of their firearms.

• Poor rates of submission of domestic violence records to the National InstantCriminal Background Check System hinder the FBI’s and state officials’ ability toidentify prohibited domestic abusers.

• Federal and state laws can be strengthened to protect victims and survivors ofdomestic violence from abusers with firearms.

• Courts, prosecutors, law enforcement, and victim advocates can collaborate tomake their communities safer from armed abusers.

Summary and Conclusion

Domestic and dating abusers use firearms to terrorize, injure, and kill their victims.Federal law and many state laws prohibit certain people convicted of MCDV andcertain respondents to protective orders from purchasing and possessing firearms.Some states also require adjudicated domestic abusers to surrender or otherwisedispose of their guns. Every time an adjudicated abuser retains access to firearms,that abuser’s intimate partner at is at increased risk of serious injury or death.It seems obvious that persons who use violence against their intimate partners shouldnot have a firearm at hand the next time the abuse begins, regardless of whether theyare spouses or dating partners. Unfortunately, holes in federal and state laws andgaps in the application of laws allow abusers access to firearms. Too often injury,intimidation, and death are the result.

Cross-References

▶ Future Directions in Policies▶ Intimate Partner Fatality Review▶ Prevention of Intimate Partner Homicide▶ Protection Orders: Shielding IPV Victims from Harm

Firearms, Domestic Violence, and Dating Violence: Abusers’ Use of Firearms. . . 21

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