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  • Danielle M. Woo

Domestic Violence and Firearm Relinquishment: Closing the Fatal Chasm Between Federal Law and State

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Introduction

Verbal and emotional abuse became a daily occurrence. When Katie would try to talk to her husband about what she needed from the marriage—like time together—arguments always followed. . . . At one point, he forbade her from using the word “needs” . . . . One morning when it all became too much, Katie decided to contact a divorce attorney. Her husband overheard the phone call and stormed into the kitchen holding a loaded revolver to his head, threatening to kill himself if she left. Then, he turned the gun on Katie.[1]

In the United States, “1 in 3 female murder victims and 1 in 20 male murder victims are killed by intimate partners.”[2] Around 4.5 million women in the United States have been threatened with a firearm, and nearly one million women have been shot at by an intimate partner.[3] It should not come as a surprise that the presence of a gun within a domestic violence (“DV”)[4] situation statistically raises the risk of homicide for women by 500%.[5] Coercion and control are primary tools that abusers use to maintain power over their victims; weapons, namely guns, only serve to exacerbate this dynamic.[6]

The legislative and policy landscape in the United States has slowly devoted more resources to understanding and addressing DV, however, the fight is ongoing. One of the main issues plaguing victims[7] of abuse today is the threat of gun violence. Studies show that domestic violence plays a relevant role in mass shootings as well: between 2014 and 2019, 68.2% of mass shooters killed at least one partner or family member or had a history of DV.[8] Researchers have found that domestic violence-related mass shootings resulted in a 32.6% increase in case-related fatalities when compared to non DV-related mass shootings.[9] DV-related gun fatalities are clearly a public health and safety risk. Despite the serious harm posed by DV gun violence to both spousal victims and the public, there remains ignorance around the fact that DV is not a simple problem and certainly does not affect all populations equally. Much of the research used in this Article utilizes highly gendered language, typifying the average DV victim as female and the abuser as male.[10] While male violence against female partners makes up the majority of intimate partner violence (“IPV”) and intimate partner homicide (“IPH”) cases, male IPV victims should not be overlooked.[11] In addition, systemic problems at the level of law enforcement become glaringly evident in studying same-sex IPV particularly due to the misconception that those of the same sex are partaking in “mutual combat” rather than an episode of domestic abuse.[12] LGBTQ victims also experience different types of threats from their abusers than do heterosexual couples, such as the threat of exposing their partner’s sexual orientation or “outing” as a form of repression and control.[13] Racial and ethnic minority groups are also at a much higher risk for DV and IPV. The rate of IPH in Black women is more than twice as high as it is for white women.[14] In 2019 alone, more than 91% of Black female victims knew their killers, and 70% of them were shot and killed with guns.[15] The overwhelming majority of homicides of Black women by male offenders were not related to the commission of any other felony crime and, most often, these women were killed by men in the course of an argument.[16] A myriad of legal issues has also plagued indigenous tribal communities. For example, because of the previous gap in jurisdictional authority over American Indian territories, Non-Indian abusers were once effectively immune from tribal prosecution for abuse against tribal members.[17] These examples are only the tip of the iceberg, however, and should illustrate the need for an informed and sensitive policy approach.

As a nation that embraces gun ownership so passionately as to inscribe it into the Constitution as a protected liberty, the United States has struggled to strike a balance between firearm relinquishment laws at the federal level and the actual effective enforcement of such laws at the state level.[18] It wasn’t until the 1990s that the federal government first instituted a domestic violence-specific provision to the Gun Control Act of 1994, barring offenders subject to a domestic violence restraining order from possessing or purchasing firearms.[19] From there, federal law has evolved into 18 U.S.C. § 922(g)(8) and (9), which prohibits anyone convicted of a “misdemeanor crime of domestic violence” or subject to a protection order from possessing any firearm or ammunition.[20] Because the federal government cannot force states to effect its enacted regulatory schemes, there is a gross lack of uniformity when it comes to preventing abusers from obtaining firearms in the United States.[21] States are free to establish their own legislative schemes that can supplement or enhance the federal regime against unlawful firearm possession—but they are also free not to.[22]

Racial background, sexual orientation, nationality, and gender are all relevant factors when it comes to analyzing DV and firearm-related deaths. Many instances of DV go under the radar or are underreported due to mistrust of law enforcement and the government.[23] Other DV incidents are overlooked based on internalized stigmas and assumptions about the people involved.[24] It is important to keep these dynamics in mind when assessing the complex scheme required to help resolve the problem of DV and IPV. Gun violence is merely one of many threats that victims/survivors of DV must face.[25]

This Article argues that the current slate of DV firearm relinquishment laws at the state level is woefully inconsistent to further the goal of effectively preventing gun violence in intimate partner relationships. Part I examines the background of the federal statutory landscape, its shortcomings, and the role of key state actors like police and judges. Part II explores the enforcement of firearm relinquishment laws across three different states with varying levels of legislative strictness and the efficacy of each state’s enforcement procedures. Part III proposes ways in which the gap between federal law and state enforcement may be achieved via broad policy revisions tailored to the root cause of domestic violence, federal amendments to the gun relinquishment statute, and federal funding incentives for states.

 

[1] Julia Garlich, Lost in the Fight: As Gun Laws Expand in MO., Domestic Violence Victims Pay the Price, Columbia Missourian (May 2, 2021), https://www.columbiamissourian.com/news/local/lost-in-the-fight-as-gun-rights-expand-in-mo-domestic-violence-victims-pay-the/article_b25c76d4-a94b-11eb-9a89-eb1cbb4798f4.html.

[2] Nat. Coal. Against Domestic Violence, Guns & Domestic Violence 1 (2013) (citing F. Stephen Bridges et al., Domestic Violence Statutes and Rates of Intimate Partner and Family Homicide: A Research Note, 19 Crim. Justice Pol’y Rev. 117 (2008)).

[3] Lisa B. Geller et al., The Role of Domestic Violence in Fatal Mass Shootings in the United States, 2014-2019, Injury Epidemiology, 1 (2021) https://doi.org/10.1186/s40621-021-00330-0.

[4] The term domestic violence (“DV”) is commonly used interchangeably with intimate partner violence (“IPV”). This Article, however, will use DV as an umbrella term as it can also encompass “child and elder abuse, or abuse by any member of a household” while IPV more specifically refers to abuse within partnerships between two people who are or were involved in an intimate relationship. See Claudia Garcia-Moreno, Alessandra Guedes & Wendy Knerr, World Health Org., Intimate Partner Violence, in Understanding and Addressing Violence Against Women 2 n.1 (2012).

[5] Domestic Violence and Firearms: A Lethal Combination, Colo. Coal. Against Domestic Violence 1 (2013), https://www.violencefreecolorado.org/wp-content/uploads/2013/11/DV-and-Firearms-handout.pdf [https://perma.cc/VM7K-ARXP].

[6] Domestic Violence, Nat. Coal. Against Domestic Violence (2020), https://assets.speakcdn.com/assets/2497/domestic_violence-2020080709350855.pdf?1596811079991 (“Domestic violence is the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, threats, economic, and emotional/psychological abuse. The frequency and severity of domestic violence varies dramatically.”).

[7] I use the term victim as both a legal term and a term to address those who have lost their lives to domestic violence. I also use survivor as a term of empowerment and to signify that the person is still alive after enduring violence. To encompass both, I will use “victim/survivor.” See The Language We Use, Women Against Abuse (2022), https://www.womenagainstabuse.org/education-resources/the-language-we-use (differentiating the term victim as language often used by law enforcement or in legal proceedings from survivor which serves to emulate a “sense of empowerment”). See also Sexual Assault Kit Initiative, Victim or Survivor: Terminology from Investigation through Prosecution 1 (stating that the term “victim is a legal definition necessary within the criminal justice system” while “survivor can be used as a term of empowerment to convey that a person has started the healing process” and does not see themselves as a victim).

[8] Geller et al., supra note 3, at 5, 6 tbl.3.

[9] See id. at 5–6 (noting that DV-related mass shooters may have a greater intent to assure all victims are killed based on revenge, jealousy, suicidality, or a desire to assert dominance and power).

[10] Consider the fact that DV is not exclusively an issue for heteronormative couples—it pervades the entire spectrum of gender identities and sexualities. Despite this reality, there is limited research on intimate partner violence among LGBTQ people. See Adam P. Romero et al., The Williams Inst., Gun Violence Against Sexual and Gender Minorities in the United States: A Review of Research Findings and Needs 9 (2019) (finding that IPV in LGBTQ relationships is at “a prevalence equal to or higher than the general U.S. population.”).

[11] See Nat’l Ctr. for Injury Prevention and Control, Nat’l Intimate Partner and Sexual Violence Surv. 38 (2010) (finding that, in the United States, 9.9% of men experienced IPV-related rape, physical violence, or stalking; in comparison, 28.8% of women experienced the same).

[12] Nancy E. Murphy, Queer Justice: Equal Protection for Victims of Same-Sex Domestic Violence, 30 VAL. U. L. REV. 335, 341 (1995) (Stating that “[w]hen handling same-sex domestic violence cases, police departments and courts, rather than acknowledge or understand that abuse can and does occur between members of the same sex, often believe that a situation of mutual combat is taking place in which the same-sex partners are just fighting”).

[13] Id. at 341–342.

[14] Violence Pol’y Ctr., When Men Murder Women: An Analysis of 2019 Homicide Data 1, 7 (2021).

[15] Id.

[16] Id. at 8.

[17] See Nat’l Inst. of Justice, Five Things About Violence Against American Indian and Alaska Native Women and Men (2016), https://www.ojp.gov/pdffiles1/nij/249815.pdf [https://perma.cc/R2F4-6Q6E]; see also Nat’l Congress of American Indians, VAWA 2013’s Special Domestic Violence Criminal Jurisdiction (SDVCJ) 1 (2016), https://www.ncai.org/tribal-vawa/overview/VAWA_Information__Technical_Assistance_Resources_Guide_Updated_November_11_2018.pdf [https://perma.cc/J62V-MAGQ] (“The 2013 reauthorization of [VAWA] affirmed tribes’ ‘inherent power’ to exercise criminal jurisdiction over all persons, including non-Indians, who commit domestic violence, dating violence, or who violate protection orders in Indian Country.”).

[18] See Laura Lee Gildengorin, Smoke and Mirrors: How Current Firearm Relinquishment Laws Fail to Protect Domestic Violence Victims, 67 Hastings L.J. 807, 830–31 (2016); Tom Lininger, A Better Way to Disarm Batterers, 54 Hastings L.J. 525, 564 (2002).

[19] See Gildengorin, supra note 18, at 811–12 (stating three shortcomings of the 1994 amendment including the temporary nature of the applicable ban commensurate with the length of the restraining order, the exception for law enforcement officers and military personnel, and the requirement for the offender to be an intimate partner of the victim).

[20] 18 U.S.C. § 922(g)(8), (9).

[21] See Printz v. United States, 521 U.S. 898, 926 (1997) (citing New York v. United States, 505 U.S. 144, 188 (1992); see also Stacie J. Osborn, Preventing Intimate Partner Homicide: A Call for Cooperative Federalism for Common Sense Gun Safety Policies, 66 Loy. L. Rev. 235, 245 (2020) (describing Printz as a “key federalism decision by the Rehnquist Court that increasingly scrutinized and invalidated federal legislation on constitutional federalism principles”).

[22] See Printz, 521 U.S. at 928 (“It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority.”).

[23] See generally TK Logan & Rob Valente, Nat’l Domestic Violence Hotline, Who Will Help Me? Domestic Violence Survivors Speak Out About Law Enforcement Responses 4 (2015).

[24] See, e.g., Phyliss Craig-Taylor, Lifting the Veil: The Intersectionality of Ethics, Culture, and Gender Bias in Domestic Violence Cases, 32 Rutgers L. Rec. 31, 44 (2008) (describing biases held by judges presiding over DV cases that “can be directly attributed to the fallacious belief that domestic violence issues are less important, private matters”); Zanita E. Fenton, Domestic Violence in Black and White: Racialized Gender Stereotypes in Gender Violence, 8 Colum. J. Gender & L. 1, 27 (1998) (describing the stereotypes often associated with victims of DV: “[that] the victim precipitates her own assault, that she is masochistic . . . that she is ‘crazy,’ that even if she leaves one abusive relationship, she will just find another, and that she is free to end her victimization at any time without assistance.”).

[25] See Carolyn B. Ramsey, Firearms in the Family, 78 Ohio St. L.J. 1257, 1320 n.388 (2017) (pointing out fear of retaliation as a reason that victims do not ask for gun removal in court orders).

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