Domestic Violence and Firearm Laws

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 What Risks are Posed with Guns in the Context of Domestic Violence?

Guns involved in domestic violence can create more harm and even be fatal for victims, perpetrators, and third parties. Recent governmental data indicates that nearly 1 million women are shot, and 4.5 million are threatened with a gun by an intimate partner. One study revealed that in domestic violence circumstances, the risk of death is five times greater when a gun is present.

Another report established that there is a 31 percent increase in the chance of an additional person being murdered with a gun during a domestic violence scenario when compared with stranger-to-stranger violence. The link between domestic violence and firearms is alarming. According to an analysis of the Supplemental Homicide Reports across the states, 56 percent of women murdered by an intimate partner from 2010 to 2019 were killed with a firearm.

The data above clearly shows that firearms in domestic violence situations are highly deadly and dangerous. Therefore, law enforcement and lawmakers must incentivize the public not to misuse firearms, especially in these situations.

Under Current Federal Law, Can individuals with a History of Domestic Violence Buy or Possess Guns?

Current federal law bans some, but not all, individuals with a demonstrated history of domestic abuse from purchasing or possessing firearms. Under current law, two categories of individuals with a history of domestic abuse are prevented from buying and possessing guns: those convicted of a misdemeanor crime of domestic violence and those subject to a domestic violence restraining order issued after a full hearing.

This law pertains to individuals whose abuse was committed against a current or former spouse, an individual with whom they have a child in common, a current or former live-in intimate partner, or a parent or guardian.

What are the Gaps in Law That Allow Abusers to Have Access to Guns?

There are significant gaps in the law that cause the victims of abuse to encounter gun violence in their relationships. As a result, many perpetrators of domestic violence are excluded from federal law. Governmental data highlights three primary gaps in current federal law that leave survivors of domestic abuse vulnerable to future gun violence.

The first is known as the dating partner loophole. Unfortunately, the protections in current federal law do not extend to individuals who are abused by a current or former dating partner with whom they do not have a child in common and have never cohabitated. In this sense, the law is not up to date with the reality of modern, intimate relationships. According to the data compiled by the Center of American Progress, since 1982, rates of marriage have steadily decreased, reaching a historic low in 2018. Federal protections are crucial for the safety of unmarried individuals in dating partnerships, as they experience domestic violence at similar and, in some cases, higher rates.

Furthermore, the “dating partner loophole” has dangerous and deadly consequences for victims of domestic violence. For instance, a study that focused on 31,000 events of intimate partner violence in Philadelphia revealed that more than 80 percent of these domestic violence crimes were between unmarried people. It is worth noting that half of all domestic violence-related homicides are committed by a dating partner rather than a spouse.

While the dating partner loophole is often called the “boyfriend loophole,” closing this gap must apply to all dating partners regardless of gender identity. To properly address this issue, 28 states and the District of Columbia have partially or completely closed the dating partner loophole. It is important to check your local state regulations regarding this law.

Next is misdemeanor stalking, the federal firearm prohibitions related to domestic abuse do not pertain to individuals convicted of a misdemeanor-level stalking offense. However, stalking is a dangerous crime that often leads to future harm, including domestic violence. The U.S. Department of Justice defines stalking as “a course of conduct directed at a specific person that would cause a reasonable person to fear for (their) safety or the safety of others.” A study showed that 76 percent of women killed by an intimate partner were stalked before their death, and 85 percent of women who survived an attempted murder were stalked before their crime.

Moreover, stalking, which is classified as a misdemeanor rather than a felony, should not be taken lightly given that it often indicates later violent crime. For example, in 2018, a man previously convicted of stalking a former classmate shot and killed five employees at the Capital Gazette in Annapolis, Maryland.

Prohibiting individuals convicted of misdemeanor stalking from accessing guns would significantly reduce the risk of further violent crimes against former or current intimate partners. Twenty states and the District of Columbia have rules that prevent individuals convicted of misdemeanor stalking from purchasing a firearm.

Lastly, there should be a closer look at temporary restraining orders. When a survivor of domestic abuse first decides to seek recourse and protection from the court system, the first step in that process is generally to obtain a temporary restraining order. These orders are issued by a judge during a preliminary court appearance before the alleged abuser can appear and be heard.

Temporary restraining orders usually last a short duration, often one to two weeks, and provide crucial protection for victims during heightened risk. There needs to be a longer duration for these to protect the vulnerable victims.

Who Can Own Firearms?

Federal law bans certain individuals from possessing, owning, receiving, or purchasing guns. The prohibited persons list includes those with misdemeanor or felony domestic violence convictions and anyone subject to a domestic violence restraining order. The Federal Gun Control Act prohibits certain categories of people from buying or possessing firearms and ammunition.

The list of “prohibited persons” encompasses any person:

  • Convicted of a felony (crimes punishable by more than a year in jail or prison, excluding certain business crimes);
  • Convicted of a misdemeanor offense of violence; or
  • Subject to a domestic violence restraining order.

What are Domestic Violence Convictions That Trigger the Federal Gun Ban?

It is important to remember that federal and state convictions can trigger the federal gun ban. While the felony prohibition is fairly straightforward, the misdemeanor prohibition is less so. Additionally, all felony domestic violence convictions trigger the federal firearms ban, as do most felony convictions in general, whether they happen in federal or state court. Given the scope of this ban, a violation is referred to as a “felon-in-possession.”

On the other hand, the federal firearms bar only applies to those with misdemeanor convictions that are “misdemeanor crime(s) of domestic violence.” The U.S. Supreme Court has interpreted the meaning of “misdemeanor crime of domestic violence” broadly.

Implying that most misdemeanor crimes prohibiting assault, battery, and terroristic threats will be under this definition when the offense involves:

  • Use or attempted use of force or threatened use of a weapon;
  • A defendant and victim in a current or former domestic relationship as defined under federal law and;
  • This rule holds whether or not the statute specifically defines the offense as a domestic violence misdemeanor as long as the underlying elements are met.

When Do I Need To Contact a Lawyer?

If you are involved in an abusive domestic relationship and are concerned for your safety, it is highly recommended to reach out to your local domestic violence attorney to assist you immediately, especially if there have been threats of using firearms.

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