Title 1 Firearms And Purchasers With Criminal Records
Every year, millions of Americans report domestic violence. Although it disproportionately affects women, domestic violence touches all groups. Firearm access helps to fuel domestic violence. An abuser’s access to a firearm is a serious threat to victims, making it five times more likely that a woman will be killed. Domestic violence assaults involving a gun are 12 times more likely to result in death than those involving other weapons or bodily force.
• Every year, 600 American women are shot to death by intimate partners.
• In fact, of all women shot to death by others in the U.S., half were shot by their intimate partners.
• The death toll extends to mass shootings. In 54% of mass shootings where four or more people were killed, the shooter killed an intimate partner. Abusers’ access to guns has other serious consequences as well, including injuries and threats to victims.
• Nearly 1 million women alive today report being shot or shot at by an intimate partner.
• About 4.5 million women alive today report that an intimate partner threatened them using a gun.
In nearly two thirds of cases in which a gun was present in the home in which the abuser and victim cohabitated, the abuser used the firearm against the victim, usually threatening to injure or kill her. With our high rates of domestic violence-related gun violence, the U.S. is the most dangerous country in the developed world when it comes to women and guns. Women in the U.S. are 21 times more likely to be killed with a gun than women in other high-income countries.
Background checks stop abusers from getting guns. One in nine background check denials are connected to domestic abuse, and more than 300,000 domestic abusers have been blocked from buying guns by the federal background check system since its inception. Yet federal law does not require a background check to be performed before every sale of a gun, including sales by unlicensed, private sellers. This allows prohibited abusers to turn to private sellers to access guns. Laws that restrict abusers’ access to firearms saves lives: states that restrict access to guns by abusers subject to domestic violence restraining orders have seen a 13% reduction in firearm intimate partner homicides. Importantly, these laws can be further strengthened by closing additional loopholes.
• More than half of all intimate partner homicides are committed by dating partners. Research shows that when states broaden their firearm prohibition laws beyond federal law to cover abusive dating partners, the states experience a 16% reduction in intimate partner gun homicides.
• States that require that abusers provide proof that they actually relinquished their firearms (relinquishment laws) are linked to a 16% reduction in intimate partner gun homicides. For more information about firearm relinquishment, see our page on Disarming Prohibited People.
• States with laws which cover emergency protective orders in addition to final protective orders experience a 16% reduction in intimate partner gun homicides.
• Additionally, current federal law does not prohibit people convicted of misdemeanour stalking crimes from having guns. One study of female murder victims in 10 cities found that 76% of women murdered and 85% who survived a murder attempt by a current or former intimate partner experienced stalking in the year preceding the murder. Given that stalking is a strong predictor of future violence, closing the so-called “stalking gap” could help protect women from intimate partner homicides. Laws that comprehensively protect victims of domestic violence enjoy broad bipartisan support. A 2017 survey found that 81% of Americans support laws prohibiting a person subject to a domestic violence restraining order from having a gun for the duration of the order.
• Federal law prohibits purchase and possession of firearms and ammunition by people who have been convicted in any court of a “misdemeanour crime of domestic violence,” and/or who are subject to certain domestic violence protective orders.
THE LAUTENBERG AMENDMENT
The Lautenberg Amendment prohibits people convicted of certain domestic violence crimes from buying or owning guns. The federal prohibition that applies to domestic violence misdemeanants was adopted in 1996 and is commonly known as the “Lautenberg Amendment” after its sponsor, the late Frank Lautenberg (D-NJ). It defines a “misdemeanour crime of domestic violence” as an offense that is a federal, state, or tribal law misdemeanour and has the use or attempted use of physical force or threatened use of a deadly weapon as an element. In addition, the offender must fit one of the following criteria:
• Be a current or former spouse, parent, or guardian of the victim.
• Share a child in common with the victim.
• Be a current or former cohabitant with the victim as a spouse, parent, or guardian.
• Be similarly situated to a spouse, parent, or guardian of the victim.
A conviction for a misdemeanour crime of domestic violence represents the third-most frequent reason for denial of an application to purchase a firearm by the FBI, after a felony conviction and an outstanding arrest warrant.
PROTECTIVE ORDERS AND PROHIBITED PURCHASERS
Federal law also prohibits some abusers who are subject to protective orders from purchasing or possessing firearms and ammunition. The prohibition applies only if the protective order was issued after notice to the abuser and a hearing, and only if the order protects an “intimate partner” of the abuser or a child of the abuser or intimate partner. An “intimate partner” includes a current or former spouse, a parent of a child in common with the abuser, or an individual with whom the abuser does or has cohabitated.
NOTIFICATION TO DOMESTIC VIOLENCE OFFENDERS
The Violence Against Women and Department of Justice Reauthorization Act of 2005 (the “2005 VAWA”) required states and local governments, as a condition of certain funding, to certify that their judicial administrative policies and practices included notification to domestic violence offenders of both of the federal firearm prohibitions mentioned above and any applicable related federal, state, or local laws. The 2005 VAWA did not, however, require states or local governments to establish a procedure for the surrender of firearms by abusers. Many states have adopted laws that fill gaps in federal law by more comprehensively restricting access to firearms and ammunition by domestic abusers.
STATES THAT RESTRICT ACCESS TO GUNS BY DOMESTIC VIOLENCE MISDEMEANANTS
States have closed the gaps in federal law pertaining to abusers who commit misdemeanour crimes of domestic violence by enacting laws that:
• Prohibit domestic violence misdemeanants not covered by federal law from buying or possessing guns and/or ammunition.
• Authorize or require surrender of guns and/or ammunition after conviction of a domestic violence misdemeanour.
• Require reporting domestic violence offender identities to databases used for firearm purchaser background checks.
Prohibiting Domestic Violence Misdemeanants from Buying or Possessing Firearms or Ammunition
As noted above, federal law prohibits purchase and possession of firearms and ammunition by people convicted of a “misdemeanour crime of domestic violence,” but defines that term narrowly. Thirty states and the District of Columbia also prohibit purchase or possession of firearms or ammunition by at least some people convicted of misdemeanour domestic violence offenses. Some of these laws may exceed federal law in various ways, including by broadening the definition of “domestic violence.” For instance, some include in their definitions of domestic violence a violent misdemeanour against: a former or current dating partner of the offender, someone with whom the offender has had a romantic relationship, or any present or former household member or cohabitant of the offender. Other laws include in their definitions of domestic violence a violent misdemeanour against any family member, regardless of whether the victim resides with the offender. The strongest laws prohibit the purchase or possession of firearms by individuals convicted of violent misdemeanours generally, regardless of the victim’s relationship to the offender. California, for example, prohibits the purchase and possession of firearms or ammunition by anyone convicted of assault, battery, or stalking without regard to the victim’s relationship to the offender.
Fifteen states that prohibit domestic violence misdemeanants from possessing guns also authorize or require surrender of guns and/or ammunition after conviction of a domestic violence misdemeanour. For a description of these laws, see our page on Disarming Prohibited People. Seven states require the relinquishment of firearms by all people convicted of firearm-prohibiting crimes: Four states have recently enacted laws designed to facilitate the reporting of abusers whose crimes fall within the federal definition of a “misdemeanour crime of domestic violence” to the databases used for firearm purchaser background checks. In 2011, New York enacted a law establishing a procedure to be used in trials for certain violent misdemeanours to determine whether the crime qualifies as domestic violence under the federal definition of that term. If the crime is found to fall within the definition, the clerk of the court must send a written a report to a state agency, who then reports the determination to the FBI for inclusion in the National Instant Criminal Background Check System (NICS). Illinois and Minnesota have similar laws. Massachusetts requires courts to transmit records of certain domestic violence offenses to the Department of Criminal Justice Information Services for inclusion in NICS
States That Restrict Access To Guns By Abusers Subject To Domestic Violence Protective Orders
States have closed the gaps in federal law pertaining to abusers who are subject to domestic violence protective orders by enacting laws that:
• Authorize or require courts to prohibit abusers subject to protective orders from buying or possessing firearms.
• Authorize or require removal or surrender of firearms when a protective order is issued.
States that Prohibit Domestic Violence Protective Order Respondents From Accessing Firearms
The strongest laws prohibit anyone subject to a court-issued protective order from purchasing or possessing firearms. Some states, however, only authorize courts to prohibit gun purchase and possession by domestic abusers, and others apply the prohibitions to some but not all types of protective orders. States that prohibit subjects of domestic violence orders issued after notice and a hearing from purchasing or possessing firearms: States in this list may require a finding that the respondent poses a credible or imminent threat to the petitioner for the firearm prohibition to apply. Domestic Violence protective orders can be issued after notice and a hearing, or they can be issued in emergency circumstances without notice to the abuser (ex parte).Ex parte orders are temporary and must be followed by a hearing for which the respondent receives notice and an opportunity to appear. Many states require or authorize courts to prohibit the possession or purchase of firearms by people subject to ex parte orders. Some states broaden who may seek a protective order. Many states exceed federal law by including a broader category of domestic violence victims who may apply for a protective order prohibiting firearms. About half the states exceed federal law by allowing victims to seek a protective order prohibiting purchase or possession of firearms by: a former or current dating partner or anyone with whom the victim has had a romantic relationship, any person who is presently or has in the past resided with the victim, and/or any family member. Some states include ammunition. A small number of states also prohibit subjects of domestic violence protective orders from purchasing or possessing ammunition.
In Utah, for example, a person subject to any one of the following types of court orders is prohibited from possessing a firearm or ammunition:
• A domestic violence protective order whether issued ex parte, after notice and hearing, or in a judgment.
• A temporary restraining order issued to a victim of harassment.
• A temporary restraining order issued to an employer on behalf of an employee.
• A temporary restraining order issued to a postsecondary educational institution on behalf of a student.
• A protective order for an elderly or dependent adult who has suffered abuse, provided the abuse was not solely financial;
• An emergency protective order related to stalking.
• A protective order relating to a crime of domestic violence or the intimidation or dissuasion of victim or witness.
Under Utah law, individuals may seek a domestic violence protective order, prohibiting the purchase or possession of firearms, against:
• A former or current dating partner or any person with whom the individual has had a romantic relationship.
• Any person who is presently or has in the past resided with the individual.
• Any family member, even if the abuser has never resided with the individual.
When you need a gun lawyer, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506