Voisine v. United States: Limiting Gun Possession for Those Convicted of Domestic Abuse

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Case Information: Voisine v. U.S., No. 14-10154 (U.S. Supreme Court Brief Filed Jan. 26, 2016)

At Issue: Petitioners in this case argue that they should not be prohibited under federal law from possessing firearms, even though they were convicted of misdemeanor crimes of domestic violence. The argument is a very technical legal argument that would have the effect of greatly narrowing the circumstances under which a convicted domestic abuser would be prohibited from firearm possession under federal law. These arguments were rejected by the First Circuit, and the case is now on appeal before the U.S. Supreme Court.

The Law Center’s Brief:  We joined with the Brady Center on an amicus brief in which we argue that the federal firearm prohibition for convicted domestic abusers should be interpreted broadly to include individuals convicted of recklessly injuring a domestic partner. Our brief points out important social science research demonstrating how important it is that this life-saving probation be interpreted broadly. For example, studies show that in households with a history of domestic violence, the presence of a gun makes a homicide 5 times more likely.

Smart Gun Laws Protect Families from Domestic Violence

DV-blog-graphicIt’s a fact that guns and domestic violence are a lethal combination in America—they’re the most common weapons used by abusers who kill their partners, and are by far the most deadly. As Domestic Violence Awareness Month comes to a close, we hope Americans gain a deeper understanding of the grave danger domestic abusers pose to public safety—especially when guns are involved.

  • Domestic violence situations involving guns are 12 times more likely to result in death than other weapons or bodily force.
  • Domestic abuse situations are five times more likely to be fatal if the abuser has access to a gun.
  • Women in the United States are 11 times more likely to be murdered with a gun than in other high-income countries.

And yet, in spite of this information, federal law contains deadly loopholes that let domestic abusers buy and possess firearms—especially if they already own them.

Despite inaction at the federal level, 18 states have passed new laws to protect victims of domestic violence from gunfire since 2013. These powerful pieces of legislation restrict convicted abusers from accessing guns or make it easier for law enforcement to remove guns from abusers who own them. These state laws are important because they directly address gaps in current policy regarding stalkers and dating partners and help background check systems identify convicted abusers.

For example, a new law in Delaware, which Governor Jack Markell signed earlier this month, extends the state’s gun prohibition to people convicted of dating partner abuse. The law also adds accountability to the requirement that domestic abusers subject to protective orders surrender their guns. Our attorneys worked closely with Americans for Responsible Solutions and local domestic violence and gun safety advocates to craft this lifesaving law.

The momentum for better domestic violence laws shows no signs of stopping—even states with strong gun cultures, like Utah and Louisiana, which both score an F on our Gun Law State Scorecard, have enacted laws barring domestic abusers from possessing firearms in recent years.

For more information on the laws states can pass to help protect victims of domestic abuse, see our Commonsense Solutions Toolkit: State Laws to Address Gun Violence Against Women.

For more information about existing domestic violence gun laws, visit our policy page.

See how your state stacks up when it comes to domestic violence gun laws and join the campaign to Protect All Women.

MEMO: California’s New Gun Violence Restraining Order Law

Introduction
On September 30, 2014, Governor Jerry Brown signed into law AB 1014, a bill to allow concerned family members or law enforcement officers to petition a court for a Gun Violence Restraining Order (GVRO). In situations where there is sufficient evidence for a judge to believe that an individual poses a danger to self or others, the GVRO will temporarily prohibit the individual from purchasing or possessing firearms or ammunition and allow law enforcement to remove any firearms or ammunition already in the individual’s possession. The new law, modeled after California’s existing domestic violence restraining order laws, goes into effect on January 1, 2016.1

AB1014 was introduced in response to the tragic shooting in Isla Vista in May 2014. The shooter there had exhibited warning signs of impending violence, yet no legal mechanism was available to his parents or law enforcement to take preventive action. Under California law, a variety of dangerous people are prohibited from purchasing or possessing firearms or ammunition, including domestic abusers, as well as persons who have been involuntarily committed to a mental health facility “as a result of a mental health disorder” which makes them a danger to themselves or others. AB 1014 expands these protections by restricting access to firearms or ammunition by persons who exhibit dangerous or threatening behaviors, but who are not otherwise prohibited from possessing them.

Overview of the Three Types of GVROs
AB 1014 establishes three types of GVRO: a temporary emergency GVRO, an ex parte GVRO and a GVRO issued after notice and hearing. The law requires the Judicial Council to prescribe the form of the petitions, orders, and other relevant documents, and promulgate instructions for applying for all GVROs. When bringing a petition for any type of GVRO, the petitioner must describe in the petition the number, types, and locations of any firearms and ammunition presently believed to be in the subject of the petition’s possession or control. When any GVRO is issued, the presiding court is authorized—but not required—to issue a warrant instructing law enforcement to search and remove all firearms in the individual’s possession.

  • Temporary Emergency GVRO: Only a law enforcement officer may seek a temporary emergency GVRO by submitting a written petition to or calling a judicial officer to request an order at any time of day or night.
    • Standard for Issuing a Temporary Emergency GVRO: A temporary emergency GVRO may be issued if a law enforcement officer asserts, and a judicial officer finds, there is reasonable cause to believe that a person poses an immediate and present danger of injury to self or others by having a firearm in his or her possession and less restrictive alternatives have been ineffective, inadequate, or inappropriate.
    • Duration of a Temporary Emergency GVRO:  A temporary emergency GVRO is effective for 21 days from the date of issuance. A law enforcement officer may bring a petition for either an ex parte GVRO or more permanent GVRO (issued after notice and hearing) if he or she believes an extended restriction on a person’s access to firearms and ammunition is warranted.
  • Ex Parte GVRO: An immediate family member2 or law enforcement officer may request an ex parte GVRO.  Unlike a temporary emergency GVRO, a petition for an ex parte GVRO may only be brought during normal court hours.
    • Search of Firearm Ownership Records: Before a hearing to issue an ex parte GVRO, the court must ensure that a search of available databases and records is conducted to determine if the subject of the order owns a firearm.
    • Evidence for the Court’s Determination:The affidavit supporting a petition for the order must set forth the facts establishing the grounds for the petition. The court may consider the testimony from the petitioner and any witness for the petitioner before issuing the ex parte order.The court must consider the following types of evidence to determine whether to issue an ex parte GVRO:
      • Recent3 threat of violence or act of violence directed at another
      • Recent threat or act of violence directed toward himself or herself
      • Recent violation of a protective order of any kind
      • A conviction of a violent offense
      • A pattern of violent acts or threats within the past 12 months
      A court may also consider any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the following:
      • The unlawful and reckless use, display, or brandishing of a firearm
      • The history of use, attempted use, or threatened use of physical force against another person
      • Any prior arrest for a felony offense
      • Any history of a violation of any protective order
      • Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses that involve controlled substances or alcohol, or ongoing abuse of controlled substances or alcohol
      • Evidence of recent acquisition of firearms, ammunition, or other deadly weapons
    • Standard for Issuing an Ex Parte GVRO: A court may issue an ex parte GVRO against a person if the petitioner shows good cause to believe there is a substantial likelihood that the subject of the petition will, in the near future, cause personal injury to self or others by owning or possessing a firearm, and an ex parte GVRO is necessary to prevent such injury because less restrictive alternatives have been deemed ineffective, inadequate, or inappropriate.
    • Duration and Hearing for an Ex Parte GVRO: An ex parte GVRO may be ordered without a hearing and remains effective for 21 days. The court must provide a hearing for the restrained person within the 21-day effective period to determine whether a more permanent GVRO is warranted or if the order is no longer necessary and the firearms should be returned to the subject of the order.
  • GVRO after Notice and Hearing: At the hearing subsequent to issuing the ex parte GVRO, the court may consider further evidence and testimony from the restrained person seeking to terminate the order, the petitioner who sought the ex parte GVRO, and any witnesses produced by the petitioner to determine whether to issue a GVRO for one year. The evidentiary requirements and standard of review are similar to those required for an ex parte GVRO.
  • Surrender of Guns for all GVROs: A person who is served with a GVRO is required to immediately surrender all firearms and ammunition in his or her possession. If a law enforcement officer is serving the order, all firearms and ammunition in the restrained person’s possession must be immediately surrendered to the law enforcement officer. The law enforcement officer must also take custody of any firearm or other deadly weapon in plain sight. If someone other than a law enforcement officer is serving the order, the respondent must either surrender his or her firearms to the local law enforcement agency or sell them to a federally licensed firearms dealer within 24 hours of receiving the order.  A bill signed into law in 2015 also authorizes the respondent to opt to store his or her firearms and ammunition with a licensed dealer for the duration of the order, if the respondent pays any appropriate fees to store those weapons.
  • Search Warrant for all GVROs: A court issuing any kind of GVRO is authorized to issue a search warrant instructing law enforcement officers to perform a search for any firearms or ammunition in the person’s possession.
  • Reporting Requirements for all GVROs: The court must electronically notify the California Department of Justice (DOJ) and local district attorney within one court day of issuing a GVRO. The court must notify DOJ when the GVRO has been dissolved or terminated within five court days. DOJ must then note the updated status of any GVRO within fifteen days of receiving notice. The court must also notify the district attorney of the jurisdiction when a GVRO has been issued as well as when it has been dissolved or terminated.
  • Protections for Cohabitants:  Firearms and ammunition may not be seized pursuant to a warrant if they are owned by someone other than the subject of the GVRO and stored so that the subject doesn’t have access to them.  Also, a gun safe owned solely by someone else may not be searched without the owner’s consent.
  • Return of firearms after any GVRO Terminates or Expires: If the restrained person’s firearms are surrendered to law enforcement (instead of being sold to a dealer), law enforcement must retain the firearms or ammunition for the duration of the order and return them to the restrained person when the order expires, terminates, or dissolves.
  • Penalty for False Petitions:  The bill creates a misdemeanor penalty for any person who files a petition for a GVRO that contains statements the person knows are false, or with intent to harass the subject of the petition.

Legal Issues

  • Second Amendment: The GVRO process does not violate the Second Amendment. In the landmark case District of Columbia v. Heller, the Supreme Court determined that the Second Amendment guarantees the right of law-abiding, responsible citizens to keep a firearm in the home for self-defense. 554 U.S. 570, 679 (2008). However, the Supreme Court stated that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and  made clear that a variety of laws are permissible under the Second Amendment, including those prohibiting firearm possession by felons and the mentally ill. Id. at626.
      In California, the courts have specifically held that “the state may ensure that firearms are not in the hands of someone who may use them dangerously” and dangerous people may be prohibited from possessing firearms consistent with their Second Amendment rights, as long as they are afforded adequate due process.

See City of San Diego v. Boggess

      , 216 Cal. App. 4th 1494 (2013);

People v. Jason K.

      , 188 Cal. App. 4th 1545 (2010). In 2013, an Indiana Court of Appeals upheld a similar gun violence restraining order law against a Second Amendment challenge and ruled that the state may restrict access to firearms by dangerous persons in the interest of public safety and welfare.

Redington v. Indiana,

    992 N.E.2d 823 (Ind. Ct. App. 2013). AB 1014 provides a mechanism to do exactly that&mdsash;keep deadly firearms out of the hands of dangerous persons in the interest of public safety and welfare.
  • Due Process: The procedures for obtaining temporary emergency and ex parte GVROs provide sufficient due process to protect Californians’ important constitutional rights. The law provides for a temporary (21 day) or a more permanent GVRO, which is effective for one year. However, the more permanent (one year) GVRO will only be issued after a full hearing before a judge. At this hearing, the burden is on the person bringing the petition for the order to prove by clear and convincing evidence that the named person poses a substantial likelihood of causing harm to self or others by possessing firearms or ammunition. If this burden is not met, the person may then regain the right to possess firearms or ammunition. In addition, the named individual may seek another hearing to terminate the order during the one-year period of its duration. Similar procedures are in place in the domestic violence restraining order context and courts across the nation have uniformly upheld these procedures. See, e.g., Nollet v. Justices of the Trial Court, 83 F. Supp. 2d 204 (D.C. Mass. 2000); Blazel v. Bradley, 698 F. Supp. 756 (W.D. Wis. 1988); Baker v. Baker, 494 N.W.2d 282 (Minn. 1992).

 

Nothing contained in this document is intended as legal advice to any person or entity and should not be regarded as such. The Law Center to Prevent Gun Violence and its attorneys provide general information about gun laws to interested groups, individuals and legislators. Law Center attorneys do not represent clients and do not form attorney-client relationships. You should not consider communications with the Law Center or its attorneys to be confidential unless we have agreed to such confidentiality.

Copyright 2014 by the Law Center to Prevent Gun Violence.

All rights reserved. Unauthorized use or distribution is prohibited.

Notes
  1. Connecticut and Indiana have enacted similar laws; however, in those states, only law enforcement may seek to remove firearms from dangerous individuals. California is the first state to adopt a law enabling immediate family members to bring a petition for a GVRO.
  2. “Immediate family member” is defined as “any spouse, whether by marriage or not, domestic partner, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.” Cal. Pen. Code § 422.4.
  3. “Recent” is defined as within six months prior to the date the petition is filed.

Domestic Violence & Firearms in Illinois

Illinois requires that a person have a Firearm Owner’s Identification (“FOID”) card to purchase or possess firearms or ammunition.1 An applicant will be denied a FOID card, and a holder of a previously-issued FOID card will have his or her card revoked and seized, if he or she:

  • Was convicted within the past five years for battery, assault, aggravated assault, violation of an order of protection, or a substantially similar offense in another jurisdiction, in which a firearm was used or possessed;2 or
  • Has ever been convicted of domestic battery or aggravated domestic battery in Illinois or a substantially similar offense in another jurisdiction.3

Under Illinois law, a person commits domestic battery if he or she knowingly, without legal justification: (1) causes bodily harm to a family or household member, or (2) makes physical contact of an insulting or provoking nature with a family or household member.4 “Family or household members” include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and certain caregivers.5 A person commits aggravated domestic battery if, in committing domestic battery, he or she intentionally or knowingly cause great bodily harm, permanent disability, or disfigurement.6

In addition to the aforementioned prohibitions, a FOID card will be denied or revoked if the applicant or cardholder is prohibited from acquiring or possessing firearms or ammunition by federal law.7 Federal law prohibits the purchase and possession of firearms and ammunition by anyone convicted of a “misdemeanor crime of domestic violence.”8 Illinois law provides a procedure for determining whether certain crimes qualify as “misdemeanor crimes of domestic violence” for purposes of federal law.9 When a person is charged with a crime that may qualify, the state may serve notice on the defendant alleging that a conviction would subject defendant to the federal firearm prohibitions.10 The defendant may admit that the conviction would subject him or her to the federal prohibitions or, if the defendant says nothing or denies the claim, the state bears the burden of proving to the court beyond a reasonable doubt that the offense is one that would constitute a “misdemeanor crime of domestic violence” under federal law.11

If, under the procedures outlined above, a court determines that a person has been convicted of a “misdemeanor crime of domestic violence” that would disqualify him or her from purchasing or possessing firearms under federal law, then the court clerk must notify the Department of State Police Firearm Owner’s Identification Card Office who will then report that determination to the FBI.12

In Illinois, upon conviction of domestic battery or aggravated domestic battery, the court must advise the defendant orally or in writing that, “[a]n individual convicted of domestic battery [or aggravated domestic battery] may be subject to federal criminal penalties for possessing, transporting, shipping, or receiving any firearm or ammunition in violation of the federal Gun Control Act of 1968 (18 U.S.C. § 922(g)(8) and (9)).”13

Firearm Prohibitions for Persons Subject to Domestic Violence Restraining/Protective Orders

Illinois law provides that a person who is subject to an existing order of protection, interim order of protection, emergency order of protection, or plenary order of protection issued under the Code of Criminal Procedure may not lawfully possess weapons under the Firearm Owners Identification Card Act.14

In  addition, a court may issue a civil order under the Illinois Domestic Violence Act prohibiting a person from possessing firearms if that person is subject to a protection order meeting the following criteria:

  • the order was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
  • the order restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
  • the order (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.15

However, a court may issue a civil emergency protective order prohibiting a person from possessing firearms without giving notice to the subject of the order if the court determines that the harm posed by the subject’s continued possession of firearms would be likely to occur if the subject was given notice of the petitioner’s efforts to obtain judicial relief.16

The Illinois Department of State Police (“DSP”) must deny an application for, or revoke and seize, a FOID card (thereby prohibiting such person from purchasing or possessing a firearm or ammunition), if DSP finds that the applicant or cardholder is or was at the time of issuance subject to an existing order of protection.17 Prior to receiving a FOID card, an applicant must prove that he or she is not subject to an existing order of protection prohibiting him or her from possessing a firearm or ammunition.18

A court that is issuing a “stalking no contact order” may also prohibit the defendant from possessing a FOID card or from possessing or purchasing firearms.19 In such a situation, the court must confiscate the subject’s FOID card and immediately return the card to DSP.20

Removal or Surrender of Firearms Upon Conviction for a Domestic Violence Misdemeanor

A person convicted of a crime that qualifies, pursuant to the procedures established by Illinois law,21 as a “misdemeanor crime of domestic violence” under federal law must physically surrender his or her FOID card and any and all firearms in his or her possession at a time and place designated by the court. The court must return the person’s FOID card to DSP.22

Removal or Surrender of Firearms When Domestic Violence Restraining/Protective Orders Are Issued

If a domestic violence protection order issued under the Illinois Domestic Violence Act prohibits a respondent from possessing firearms, any FOID card in the respondent’s possession must be ordered by the court to be turned over to a local law enforcement agency, which must then mail the FOID card to DSP for safekeeping. The court must also issue a warrant for the seizure of any firearm in respondent’s possession, to be kept by local law enforcement for safekeeping.23 If the protective order is issued pursuant to the Illinois Code of Criminal Procedure, the court must order that any firearms in respondent’s possession be turned over to a person with a valid FOID card.24 Removal and surrender procedures under the Illinois Code of Criminal Procedure are otherwise identical to those contained in the Illinois Domestic Violence Act.  The period of safekeeping must be equivalent to the duration of the order and any firearms and respondent’s FOID card, if unexpired, must be returned to the respondent at the time the order of protection expires.25

Upon expiration of the period of safekeeping, if the firearms or FOID card cannot be returned to respondent because respondent cannot be located, fails to respond to requests to retrieve the firearms, or is not lawfully eligible to possess a firearm, upon petition from the local law enforcement agency, the court may order the agency to destroy the firearms, use the firearms for training purposes or for any other application as deemed appropriate by the agency, or turn the guns over to a third party lawfully eligible to possess firearms who does not reside with respondent.26

Protective orders prohibiting firearm possession under the Illinois Domestic Violence Act are available to the following persons:

  • Any person abused by a family or household member;
  • Any high-risk adult with disabilities who is abused, neglected, or exploited by a family or household member;
  • Any minor child or dependent adult in the care of such person; and
  • Any person residing or employed at a private home or public shelter which is housing an abused family or household member.27

Removal or Surrender of Firearms at the Scene of a Domestic Violence Incident

Illinois requires law enforcement to seize and remove firearms at the scene of a domestic violence incident only if there is probable cause to believe that the particular firearms were used to commit the incident of abuse.28 A firearm must be returned to its owner when no longer needed as evidence.29

See our Domestic Violence & Firearms policy summary for a comprehensive discussion of this issue.

Notes
  1. 430 Ill. Comp. Stat. 65/2(a)(1), (2).
  2. 430 Ill. Comp. Stat. 65/4(a)(2)(viii); 430 Ill. Comp. Stat. 65/8(k).
  3. 430 Ill. Comp. Stat. 65/4(a)(2) (ix); 430 Ill. Comp. Stat. 65/8(l).
  4. 720 Ill. Comp. Stat. 5/12-3.2(a)(1)(2).
  5. 725 Ill. Comp. Stat. 5/112A-3(3).
  6. 720 Ill. Stat. Comp. Stat. 5/12-3.3(a).
  7. 430 Ill. Comp. Stat. 65/8(n).
  8. 18 U.S.C. § 922(g)(9).
  9. 725 Ill. Comp. Stat. 5/112A-11.1(a)-(c).
  10. Id.
  11. Id.
  12. 20 Ill. Comp. Stat. 2630/2.2; 725 Ill. Comp. Stat. 5/112A-11.2.
  13. 720 Ill. Comp. Stat. 5/12-3.2(d). A notation must be made in the court file that this admonition was given.
  14. 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(A).
  15. 750 Ill. Comp. Stat. 60/214(b)(14).
  16. 750 Ill. Comp. Stat. 60/217(3)(i).
  17. 430 Ill. Comp. Stat. 65/8.2.
  18. 430 Ill. Comp. Stat. 65/4(a)(2)(vii).
  19. 740 Ill. Comp. Stat. 21/80(b)(4).
  20. 740 Ill. Comp. Stat. 21/80(e).
  21. 725 Ill. Comp. Stat. 5/112A-11.1(a)-(c).
  22. 730 Ill. Comp. Stat. 5/5-6-3(a)(9).
  23. 750 Ill. Comp. Stat. 60/214(b)(14)(a).
  24. 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(B).
  25. Id.
  26. 725 Ill. Comp. Stat. 5/112A-14(b)(14.5)(D); 750 Ill. Comp. Stat. 60/214(b)(14)(c).
  27. 725 Ill. Comp. Stat. 5-112A-4; 750 Ill. Comp. Stat. 60/201(a).
  28. 725 Ill. Comp. Stat. 5/112A-30(a)(2); 750 Ill. Comp. Stat. 60/304(a)(2).
  29. 725 Ill. Comp. Stat. 5/112A-30(c); 750 Ill. Comp. Stat. 60/304(c).

Protecting Strong Gun Laws: The Supreme Court Leaves Lower Court Victories Untouched

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In the last seven years, the U.S. Supreme Court has rejected more than sixty cases seeking to expand the very limited right defined in the unprecedented Second Amendment case, District of Columbia v. Heller. By repeatedly declining to review lower court decisions upholding federal, state, and local gun laws, the Supreme Court has maintained important limitations on the Second Amendment and has reconfirmed that the Amendment is not an obstacle to smart gun laws that keep our communities safe from gun violence.

Since the Court’s decision in the Heller case 2008, lower courts across the country have been inundated with costly and time-consuming challenges to state and local gun laws.  However, lower courts have consistently upheld these laws, noting that many of these laws have been successful at protecting people from gun violence and keeping guns out of the hands of criminals while still allowing law-abiding citizens to keep guns in their homes for self defense.  Since 2008, there have been over 1,000 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority—94%—of the lower court decisions upholding those laws.

Many of these Second Amendment challenges to gun laws make their way to the Supreme Court.  However, the Court has refused to hear these cases,1 leaving lower court decisions upholding the laws intact and keeping strong gun laws on the books.  For example, the Supreme Court has refused to hear cases that:

Notes
  1. In 2010, the Court decided McDonald v. City of Chicago, which held that the right recognized in Heller extends to state and local governments.  That case involved a Chicago law nearly identical to the one struck down in Heller and did not expand the substantive scope of the Second Amendment.

State Gun Law Trendwatch



A key component of the work our legal experts do here at the Law Center to Prevent Gun Violence is tracking and analyzing firearms legislation in all 50 states. As the legislative cycle kicks into gear, we’ve noticed several patterns. Our biweekly Gun Law Trendwatch rounds up and analyzes the positive legislative trends (such as bills that are being considered in a handful of states to require background checks for private sales), negative legislative trends (like a spate of campus carry bills), and a roundup of bills on the move. We hope you find Trendwatch useful in your legislative efforts this year.
 

READ TRENDWATCH 5.2.16

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Domestic Violence and Guns: State by State

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American women are particularly vulnerable to certain forms of gun violence, including homicides by domestic abusers and stalkers. More than two-thirds of those murdered by their spouses between 1980 and 2008 were killed with guns. Moreover, abused women are five times more likely to be killed by their abuser if the abuser owns a firearm. These statistics represent real people whose lives could have been saved if their abusers didn’t have access to guns.

The Law Center to Prevent Gun Violence has partnered with the Center for American Progress to develop 50 fact sheets—one for each state—summarizing current laws on domestic violence and guns and offering straightforward, real-world solutions for how smart gun laws can better protect women.

Download the Domestic Violence and Guns fact sheets to see how your state measures up.

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Law Center and Americans for Responsible Solutions Release Second Commonsense Solutions Toolkit on Guns and Domestic Violence

 

One of the most overlooked aspects of the gun debate in America is the deadly connection between guns and domestic violence. As part of our ongoing partnership with Americans for Responsible Solutions, the Law Center has developed Commonsense Solutions: State Laws to Address Gun Violence Against Women. This toolkit for legislators and advocates both documents existing laws on guns and domestic violence and offers suggestions for commonsense gun laws to better protect victims of domestic violence.

October is Domestic Violence Awareness Month, and we strongly believe that by implementing smart gun laws, we can reduce the number of domestic violence incidents that end in firearm-related deaths or injuries. While men and children can also be victims of domestic violence, women are particularly at risk.

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The Supreme Court Agrees that Domestic Violence and Guns Don’t Mix

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Today, the Supreme Court issued an incredible unanimous decision in a case that will make it easier to protect domestic violence victims from gun violence. In an opinion for an eight Justice majority, the Court confirmed that any crime involving unwanted physical touching by a domestic partner can qualify as a crime of domestic violence for purposes of the federal prohibition on domestic violence offenders owning firearms. This resounding victory will ensure that guns are kept out of the hands of domestic abusers–a group particularly likely to use firearms to perpetrate violence.

A gun in the hands of a domestic abuser can make a dangerous situation worse. Studies have shown time and again that guns escalate already violent situations, for example:

  • Abused women are five times more likely to be killed by their abuser if the abuser owns a firearm.
  • Domestic violence assaults involving a gun are 23 times more likely to result in death than those involving other weapons or bodily force.
  • More than two-thirds of spouse and ex-spouse homicide victims between 1980 and 2008 were killed with firearms.
  • In 2011, nearly two-thirds of women killed with guns were killed by their intimate partners.

Indeed, as the Supreme Court’s majority opinion recognized these facts, stating:

Domestic violence often escalates in severity over time and the presence of a firearm increases the likelihood that it will escalate to homicide. ‘All too often,’ as one Senator noted during the debate over [this law], ‘the only difference between a battered woman and a dead woman is the presence of a gun.’

Currently, federal law bars persons convicted of certain domestic violence crimes from possessing firearms. In this case, the defendant had argued–and the lower court had ruled–that a person must be convicted of a domestic violence crime that requires an element of “strong and violent physical force” in order to be excluded from firearms ownership by virtue of the conviction.  In United States v. Castleman, the Supreme Court resoundingly rejected that theory and found that Congress intended to cover all domestic violence crimes whether or not “strong and violent” force was involved.

The Law Center was proud to contribute to the defense of this vital law. We joined an amicus brief written by the Brady Campaign to Prevent Gun Violence, alongside the Coalition to Stop Gun ViolenceMoms Demand Action for Gun Sense in AmericaStates United to Prevent Gun Violence, and the Violence Policy Center, that argued that the proper interpretation of federal law includes all domestic violence crimes, not just those involving “strong and violent physical force.”  The brief outlines the social science research demonstrating a strong connection between domestic violence of any type and guns.

For more, read our analysis of federal and state law regarding gun prohibitions on domestic abusers or read about other recent gun violence prevention success stories.

United States v. Castleman Amicus Brief

Case Information: United States v. Castleman, No. 12-1371 (U.S. Supreme Court Filed Nov. 22, 2013)

At Issue: Whether a person convicted of a domestic violence crime not involving “strong and violent physical force” should be barred from owning firearms by federal law.  Federal law bars persons convicted of certain domestic violence crimes from possessing firearms.  In this case, the defendant has argued–and the court below ruled–that a person must be convicted of a domestic violence crime that requires an element of “strong and violent physical force” in order to be excluded from firearms ownership by virtue of the conviction.

Law Center’s Brief: We joined the Brady Campaign to Prevent Gun Violence, the Coalition to Stop Gun Violence, Moms Demand Action for Gun Sense in America, States United to Prevent Gun Violence, and the Violence Policy Center in filing an amicus brief arguing that the proper interpretation of federal law includes all domestic violence crimes, not just those involving “strong and violent physical force.”  The brief outlines the social science research demonstrating a strong connection between domestic violence of any type and guns.

Download a PDF of the brief here.