1. Firearms and Domestic Violence: Effective Approaches to Safeguarding Survivors and the Community Darren Mitchell Senior Attorney National Center on Full Faith & Credit Washington, DC (800) 256-5883, ext. 2

2. Firearms + Domestic Violence = A Deadly Combination A gun in a home with previous domestic violence assaults increases the risk of murder to the survivor by 20 times. (NE Journal of Medicine, 1993)

3. Firearms + Domestic Violence = A Deadly Combination When adjusting for all other risk factors and demographics, the abuser's access to a gun increased the risk of femicide by an odds ratio of 5.38 (almost 5 & a half times) in abusive intimate partner relationships American Journal of Public Health (Vol. 93, No.7, July 2003) (forthcoming)

4. Firearms & Domestic Violence: A Look at Some Numbers   Nearly 1/3 of all women murdered in the U.S. in 1999 were killed by their current or former intimate partners. Guns were used in almost 2/3 of those domestic homicides. (U.S. DOJ)   In 1998 alone, husbands and partners shot and killed 808 American women. (U.S. DOJ)   Just having a gun in the home makes a woman 7.2 times more likely to become the victim of a domestic homicide. (Archives of Internal Medicine, 1997)

5. Interviews with 50 Prison Inmates Convicted of Domestic Homicide   61% used firearms   Gun used typically acquired for self protection   96% of guns were kept in home where homicide occurred   48% did not intend to shoot victim when gun was drawn   48% fired within 15 seconds   74% said that during the incident they did not think that they would go to jail (Source: Judge Amy Karan, Miami, FL)

6. What You Need to Know About the Federal Firearm Statutes Related to Domestic Violence

7. Federal Domestic Violence Firearms Prohibitions- Possession l 18 U.S.C. §922(g)(8) - prohibits possession of a firearm while subject to a protection order l 18 U.S.C. §922(g)(9) (a.k.a. the “Lautenberg Amendment”) - prohibits possession of a firearm by anyone ever convicted of a misdemeanor crime of domestic violence (“MCDV”)

8. Federal Domestic Violence Firearms Prohibitions- Transfer (or Return) l 18 U.S.C. §922(d)(8) - prohibits the transfer (or return) of firearms to anyone currently subject to a protection order l 18 U.S.C. §922(d)(9) - prohibits the transfer (or return) of firearms to anyone ever convicted of a misdemeanor crime of domestic violence (“MCDV”)

9. “Brady”--what are we talking about? l “Brady” refers to the Brady Handgun Violence Prevention Act (1993) which established the National Criminal Background Check System (“NICS”): lRequires a background check whenever a person attempts to purchase a handgun or long gun from a federally licensed dealer lThe purchase is disallowed if the sale would violate applicable state or federal law

10. “Brady”--what are we talking about? l One of those federal laws is the Gun Control Act of 1968. lThe federal laws we are discussing (sections 922(d)(8), (d)(9), (g)(8), and (g)(9)) are part of the federal Gun Control Act l Therefore, it is not correct to refer to the various subsections of 922(d) and (g) as “Brady,” though people do it anyway (sometimes resulting in significant confusion).

11. “Brady”--what are we talking about? l So what does it mean when we say “Brady qualifying” or “Brady eligible” in reference to a protection order or conviction? - It means that the order or conviction satisfies the requirements of the relevant Gun Control Act section and therefore would be the basis for a denial of purchase under the Brady Act Note: the Brady issue is only one consideration; the Gun Control Act itself can be the basis for a federal prosecution.

12. Now, back to the details of the relevant Gun Control Act sections...

13. Possession of Firearm While Subject to a Protection Order Under 18 U.S.C. §922(g)(8) It is illegal for anyone subject to a current (qualifying) protection order to possess firearms or ammunition. l NOTE: “qualifying” is not in the text of the statute

14. What Is a “Qualifying” Protection Order for Purposes of §922(g)(8)? Basic Requirements: 3Due Process 3Terms of the Order 3Finding of a Credible Threat OR Express Prohibition on Conduct 3Relationship Requirement

15. Due Process Requirement §922 (g)(8)(A) The order must have been entered after a hearing of which respondent had actual notice and an opportunity to be heard. 18 U.S.C. §922 (g)(8)(A)

16. Terms of the Order §922(g)(8)(B) The order must restrain him from harassing, stalking, or threatening an intimate partner or her child, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to herself or the child, §922(g)(8)(B) AND

17. Finding of a Credible Threat OR an Express Prohibition on Conduct §922(g)(8)(C) l finding of a credible threat: The order must include a finding that he represents a credible threat to the physical safety of her or the child, §922(g)(8)(C)(i) OR l express prohibition on conduct: the terms of the order must prohibit the use, attempted use or threatened use of physical force against her or child that would reasonably be expected to cause bodily injury. §922(g)(8)(C)(ii)

18. Relationship Requirement §921(a)(32) Under 18 U.S.C. §921(a)(32) the protected party must: l be a spouse or former spouse; l cohabit or have cohabited with respondent; l have a child in common; OR l be respondent’s child.

19. Possession of Firearm After Conviction of Misdemeanor Crime of Domestic Violence Under 18 U.S.C. §922(g)(9) It is illegal for anyone who has ever been convicted of a (qualifying) misdemeanor crime of domestic violence to possess firearms or ammunition. l NOTE: “qualifying” is not in the text of the statute l Misdemeanor crime of domestic violence (“MCDV”)

20. What Is a “Qualifying” MCDV for Purposes of §922(g)(9)? Basic Requirements: 3Type of Crime 3Relationship Requirement 3Right to Counsel 3Right to a Jury Trial

21. Type of Crime §921(33)(A) l It must be a misdemeanor under state or federal law, 18 U.S.C. §921(33)(A)(i) AND l have as an element the use or attempted use of physical force or threatened use of a deadly weapon (e.g. assault). 18 U.S.C. §921(33)(A)(ii)

22. Relationship Requirement §921(a)(33)(A)(ii) The perpetrator of the crime must: l be a current or former spouse of the victim, l be a parent or guardian of the victim, l have a child in common with the victim, l cohabit or have cohabited with the victim as a spouse, parent, or guardian; or l be a person similarly situated to a spouse, parent, or guardian of the victim

23. Which Convictions Qualify for Purposes of §922(g)(9)? l right to counsel or knowing and intelligent waiver l right to jury (if there was the right) or knowing and intelligent waiver l date of conviction: applies to convictions occurring prior to and after September 30, 1996 (date the law was passed) l exclusions: convictions that have been expunged, set aside, or where the person has been pardoned or has had his civil rights restored

24. Official Use Exemption Under §922(g)(8) l 18 U.S.C. §925(a)(1) exempts government employees from the §922(g)(8) and (d)(8) prohibitions for “official duty” firearms only. 7 The official use exemption does NOT apply to §§922(d)(9) and 922(g)(9). 7 Therefore, law enforcement and military personnel convicted of qualifying misdemeanor crimes of domestic violence will NOT be able to possess or receive firearms for ANY purpose, including the performance of official duties.

25. Transfers of Firearms 18.U.S.C. §922(d)(8) and (d)(9) It is illegal to transfer a firearm or ammunition to: l a person subject to a qualifying protection order l a person convicted of a qualifying misdemeanor crime of domestic violence l The transferor must have known or had reasonable cause to believe that the purchaser/transferee was subject to a protection order or was convicted of misdemeanor crime of domestic violence. l It is not “knowing” if the purchaser/transferee states that he is not subject to a protection order or has not been convicted of misdemeanor crime of domestic violence.

26. Understanding the Nuances of the Federal Firearm Laws Constitutionality: The federal firearm prohibitions have been universally upheld, despite challenges based upon: n The Second Amendment (Emerson) n Due process (5th and 14th Amendments) (notice) n Vagueness/Overbreadth n Ex Post Facto Clause (pre-1996 convictions) n Commerce Clause (jurisdictional element) n Tenth Amendment (no interference with state rights)

27. Understanding the Nuances of the Federal Firearm Laws Consent Orders and 18 USC § 922(g)(8): Orders issued upon consent of the parties do trigger section 922(g)(8): n even if the defendant was not aware of the existence of the federal prohibition n even if there was no evidentiary hearing We’ll discuss Oregon’s mechanism for issuance of orders in more detail later...

28. Understanding the Nuances of the Federal Firearm Laws Criminal orders and 18 USC § 922(g)(8): Criminal protection orders (issued as part of a criminal case) can trigger section 922(g)(8) n provided all requirements of that section are satisfied n regardless of whether they include a specific gun prohibition

29. Understanding the Nuances of the Federal Firearm Laws Deferred adjudication and 18 USC § 922(g)(9): Must be a “conviction” under state law; therefore, typically deferred adjudication (e.g., adjournment in contemplation of dismissal) orders do not trigger 922(g)(9)

30. Understanding the Nuances of the Federal Firearm Laws Civil Rights Restoration and 18 USC § 922(g)(9): Prohibition does not apply if the misdemeanant lost his civil rights (vote, hold office, serve on a jury) but they subsequently were restored Not applicable in OR: only convicted felons lose these civil rights (Or. Rev. Stat. § 137.281)

31. Relationship Between State and Federal Firearm Laws

32. Relationship Between State or Tribal and Federal Firearm Laws l State or tribal firearm laws do NOT have to be identical to federal laws. l The federal prohibitions apply even if they are inconsistent with state or tribal laws.

33. State vs. Federal Law (Cont’d) Who determines whether the federal law applies? l Federal authorities determine, by reference to the requirements of the federal firearm statutes, whether a protection order or misdemeanor conviction disqualifies a person from possessing a firearm under the federal law. l State and tribal court judges do NOT make that determination.

34. State vs. Federal Law (Cont’d) How are the federal laws enforced? l Generally, only federal authorities (ATF, US Attorneys’ Offices) may enforce federal firearm laws. l However, the evidence & information typically is found at the local level, so communication & coordination among local, state, and federal authorities is critical.

35. State/Federal Collaboration: Making it Work Alexandria, VA: For several years, local police and prosecutor have worked in tandem with US Attorney’s Office to identify cases for federal prosecution. West Virginia (Northern District): Established Project Safe Homes (under PSN): developed new prosecution guidelines for DV cases, meaningful outreach to (and training of) local authorities and shelters/DV programs.

36. State/Federal Collaboration: Making it Work Pennsylvania (Eastern District): Using PSN funds, US Attorney’s Office is working closely with local counterparts to triage cases for state or federal prosecution/intervention. A prosecutor has been cross-designated. Portland, OR: Using PSN funds to identify and prosecute DV/firearms cases.

37. Gun Violence Prevention Opportunities: Practical Strategies for Protecting the Community and Increasing Offender Accountability

38. Gun Violence Prevention Points n Civil Proceedings –Protection order issuance –Divorce/family relations proceedings n Criminal Proceedings –First response/arrest –Domestic violence/stalking prosecutions –Protection order violations n The Returns Process

39. Civil Proceedings: Protection Order Issuance n Obtain information about firearms at every opportunity: –Petitions/forms (requests for extension, modification, dismissal) should include firearm information –Advocates/attorneys should incorporate questions about guns into safety planning –Judges should ask parties about guns during ex parte and subsequent hearings

40. Civil Proceedings: Protection Order Issuance n Ensure that firearms prohibitions are included in protection orders where authorized under state law: –Where prohibition is discretionary, use a dangerousness/lethality assessment to determine whether prohibition is warranted –Survivor, family, officer, and community safety should be paramount

41. Civil Proceedings: Protection Order Issuance n Ensure that orders are comprehensive, specific, and that contain information necessary to trigger the federal prohibitions –Where authorized to order surrender of firearms, do so, specifically identifying the weapons –Ensure that the specific requirements of 18 U.S.C. § 922(g)(8) are met (including an indication of parties’ relationship)

42. Civil Proceedings: Protection Order Issuance n Ensure that parties receive notice of firearms laws: –Provide both written and oral notice of the applicable state and federal prohibitions –Ensure that notice appears on orders themselves –Notice is not required for a successful prosecution, but has a deterrent effect –Notify parties of the federal full faith and credit laws

43. Civil Proceedings: Protection Order Issuance n Develop and implement compliance reviews: –Judges’ orders are not self-executing! –Ensure that orders to surrender firearms are followed by: n Ordering surrender at a specific time and place (e.g., law enforcement agency) n Arrange for the agency to report whether firearms were surrendered as ordered (e.g., via fax) n Issue a search warrant and/or bench warrant for arrest if respondent doesn’t comply

44. Civil Proceedings: Protection Order Issuance n “Constructive possession”: –Determine whether “sales” to friends, relatives, etc. are bona fide –Determine whether the respondent would maintain dominion and control over a firearm despite the purported transfer –If the firearm is sold or transferred to a friend or relative, and that person is present, explain the penalties that attach to allowing access by the respondent; have them sign an acknowledgment

45. Civil Proceedings: Protection Order Issuance n Ensure that orders are entered into available registries: –Develop a mechanism to immediately enter protection orders into state/tribal and federal registries –Ensure that petitions/forms capture the numerical identifiers necessary for National Crime Information Center Protection Order File (NCIC POF) entry

46. Civil Proceedings: Divorce/Custody Cases n If a party requests a protection order, inquire about firearms: –Include firearm prohibitions/orders to surrender firearms if authorized under state law –Use a compliance verification mechanism –At the very least, issue orders that will trigger the section 922(g)(8) prohibition (divorce/custody orders may qualify provided all elements are present)

47. Criminal Proceedings: DV/Stalking Prosecutions n Arraignment/bail hearing: –Question defendant about firearms; ask him to state under oath the firearms he owns –Include firearm prohibitions, where authorized, in written orders setting release/bail conditions –Ensure that orders are entered into appropriate registries to facilitate enforcement –Employ a compliance-verification mechanism to ensure firearms are surrendered

48. Criminal Proceedings: DV/Stalking Prosecutions n Plea/Deferred Adjudication –Understand consequences of plea agreement and deferred adjudication re: firearm prohibitions (e.g., plea to lesser charges) –Ensure that parties understand consequences prior to accepting plea/entering deferred adjudication order –If deferred adjudication is used and firearms pose a risk, include a specific gun prohibition or issue a protection order that includes a prohibition

49. Criminal Proceedings: DV/Stalking Prosecutions n Post Conviction –Provide oral and written notice of state and federal firearm prohibitions triggered by conviction –Permit survivor to make an impact/risk statement –Order surrender of firearms/licenses or permits as authorized by state law –Impose enhanced sentences based upon presence/use of firearms where authorized

50. Criminal Proceedings: DV/Stalking Prosecutions n Post Conviction –Ensure that criminal records include information necessary to show that conviction qualifies under section 922(g)(9) (include disposition information and parties’ relationship) –Notify firearm licensing authorities of disqualifying convictions

51. Criminal Proceedings: Protection Order Violations n Understand the special issues presented by out-of-jurisdiction protection orders: –Where relief available is different (e.g., firearm possession prohibited in issuing state but not under law of the enforcing state) –Admit evidence of protection order validity obtained from issuing jurisdiction according to rules of evidence –Understand burden of proof: facially valid order generally may be presumed valid, due process and other challenges are affirmative defenses –Importance of notifying issuing state of the violation

52. Criminal Proceedings: Protection Order Violations n Understand “constructive possession”: –May be an issue where alleged violation is possession of a firearm and defendant claims not to have actually possessed it n Recognize a conviction for a protection order violation probably won’t trigger 922(g)(9): –Consider issuing a post-conviction protection order, including a firearm prohibition, if authorized by state law

53. Release/Returns n Notify survivors: Collaborate with other systems (law enforcement, corrections, etc.) to develop a notification system that provides notice: –Well in advance of release from incarceration or suspension/completion of sentence –Well in advance of firearm return n Impose release/probation/parole conditions that include firearm prohibitions –Enter written orders –Ensure entry in available registries

54. Release/Returns n Ensure that the survivor is given a copy of conditions n Develop a firearm returns process that protects survivors (New Hampshire model) –Require petition for return plus affidavit –Hold pre-return hearing –Conduct background checks –Notify survivor and invite participation

55. National Center on Full Faith and Credit % (800) 256 - 5883, ext. 2  Informational Materials & Brochures - Technical Assistance & Problem-Solving ( (On-Site) Individualized Training / Education  PROSPER project (Staff Attorney, Andrea Levy) -- Protection Order System Practices, Enhancement, and Review: l Laws, policies, protocols l Actual practices -- issuance through enforcement l On-site assessment, workshop, follow-up consultations and review

56. THANK YOU For your attention and interest in this issue!