What you need to know. Sarah Henry, Attorney Advisor National Center on Protection Orders and Full Faith and Credit

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1 What you need to know. Sarah Henry, Attorney Advisor National Center on Protection Orders and Full Faith and Credit

2 A 2001 study by the Centers for Disease Control and Prevention (CDC) on homicide among intimate partners found that female intimate partners are more likely to be murdered with a firearm than all other means combined. The study concluded: the figures demonstrate the importance of reducing access to firearms in households affected by IPV.

3 A 2003 study about the risks of firearms in the home found that females living with a gun in the home were nearly three times more likely to be murdered than females with no gun in the home.

4 For homicides in which the victim to offender relationship could be identified, 92 percent of female victims (1,547 out of 1,689) were murdered by someone they knew. For victims who knew their offenders, 62 percent (952) of female homicide victims were wives or intimate acquaintances of their killers.

5 Nationwide, more female homicides were committed with firearms (50 percent) than with any other weapon. Of the homicides committed with firearms, 77 percent were committed with handguns.

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7 It is unlawful for any person to possess firearms or ammunition who: 1) Has been convicted of a felony; 2) Is a fugitive from justice; 3) Uses or is addicted to illegal drugs; 4) Is adjudicated mentally incapacitated or has been committed to a mental institution;

8 It is unlawful for any person to purchase or possess firearms or ammunition that: 5) Is illegally or unlawfully in the United States; 6) Has been dishonorably discharged from the armed services; 7) Renounces their US citizenship

9 8) prohibits possession of a firearm while subject to a protection order; 9) prohibits possession of a firearm by anyone ever convicted of a misdemeanor crime of domestic violence ( MCDV ) (the Lautenberg Amendment ). The only two gun prohibitions related to domestic violence.

10 18 U.S.C. 922(n) It shall be unlawful for any person who is under indictment for a crime punishable by imprisonment for a term exceeding one year to ship or transport in interstate or foreign commerce any firearm or ammunition or receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

11 18 U.S.C. 922(g)(8)

12 Basic Requirements: Due Process Terms of the Order Finding of a Credible Threat OR Express Prohibition on Conduct Relationship Requirement Qualifying is not in the text of the statute.

13 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)

14 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

15 The order must include a finding that the respondent represents a credible threat to the physical safety of the petitioner or their child, 922(g)(8)(C)(i) OR

16 The terms of the order must prohibit the use, attempted use or threatened use of physical force against the petitioner or their child that would reasonably be expected to cause bodily injury. 922(g)(8)(C)(ii)

17 The protected party must: be a spouse or former spouse; cohabit or have cohabited with respondent; have a child in common. 18 U.S.C. 921(a)(32) Relationship requirement is different than that required under g(9)

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19 18 U.S.C. 925(a)(1) exempts government employees who need their firearms to perform their job duties from the 922(g)(8) and (d)(8) prohibitions for official duty firearms only. The ATF interpretation specifies that the exemption applies only to service weapons and not to personal weapons. Government agencies can impose a more restrictive prohibition.

20 Law Enforcement Officers Military Personnel NOT: Private Security Guards Tribal Police

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22 Arizona, Minnesota, Oregon

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27 Some prohibited individuals may have the opportunity to transfer the firearms to a friend or relative rather than turning them over to a state/local program. It is important to note that the respondent may still have control over the firearm if they are able to transfer the weapon to a person they know.

28 It shall be unlawful for any person to sell or otherwise dispose of any firearm or ammunition to any person knowing or having reasonable cause to believe that such person is subject to a qualifying protection order. 18 U.S.C. 922(d)(8)

29 Your state may have a law that makes it unlawful for a responded to a domestic violence protection order to purchase or possess a firearm. Your state may have a provision within a protection order prohibiting the purchase or possession of a firearm.

30 Alaska Stat (c) A protective order under this section may: (6) prohibit the respondent from using or possessing a deadly weapon if the court finds the respondent was in the actual possession of or used a weapon during the commission of domestic violence; (7) direct the respondent to surrender any firearm owned or possessed by the respondent if the court finds that the respondent was in the actual possession of or used a firearm during the commission of the domestic violence.

31 Cal Fam Code 6389 (a) A person subject to a protective order, as defined in Section 6218, shall not own, possess, purchase, or receive a firearm or ammunition while that protective order is in effect. Every person who owns, possesses, purchases or receives, or attempts to purchase or receive a firearm or ammunition while the protective order is in effect is punishable pursuant to Section of the Penal Code. (c) (1) Upon issuance of a protective order, as defined in Section 6218, the court shall order the respondent to relinquish any firearm in the respondent's immediate possession or control or subject to the respondent's immediate possession or control.

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33 18 U.S.C. 922(g)(9)

34 Signed into law on September 30, Makes it illegal for a person convicted of a misdemeanor crime of domestic violence to possess or purchase a firearm or ammunition. Consistently upheld as constitutional despite challenges.

35 Basic Requirements: Type of Crime Relationship Requirement Right to Counsel Right to a Jury Trial

36 It must be a misdemeanor under federal, state, or Tribal law, 18 U.S.C. 921(33)(A)(i) AND 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) This refers to the statutory element of the crime not the behavior of the perpetrator. (Taylor)

37 The perpetrator of the crime must: be a current or former spouse of the victim, be a parent or guardian of the victim, have a child in common with the victim, cohabit or have cohabited with the victim as a spouse, parent, or guardian; or be a person similarly situated to a spouse, parent, or guardian of the victim. 921(a)(33)(A)(ii) Relationship requirement is different than that required under g(8).

38 Right to counsel If right to jury: used or waived Date of conviction: Is not relevant. Exclusions: convictions that have been expunged, set aside, or where the person has been pardoned or has had their civil rights restored, unless preserved by state or federal judge.

39 Misdemeanor crime of domestic violence means an offense that the crime is a misdemeanor under Federal, State, or Tribal law; Right to counsel may be an issue for tribal MCDV.

40 The official use exemption does NOT apply to 18 U.S.C. 922(g)(9). 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.

41 This firearms disability has no expiration date. It prohibits purchase or possession unless certain conditions are met. Expungement Restoration of Civil Rights Pardoned

42 The relationship does not have to be included as an element of the crime. U.S. v. Hayes

43 N.J. Stat. 2C:39-7 b. (1) A person having been convicted in this State or elsewhere of the crime of aggravated assault, arson, burglary, escape, extortion, homicide, kidnapping, robbery, aggravated sexual assault, sexual assault, bias intimidation in violation of N.J.S. 2C:16-1, endangering the welfare of a child pursuant to N.J.S. 2C:24-4, stalking pursuant to P.L. 1992, c. 209 (C. 2C:12-10) or a crime involving domestic violence as defined in section 3 of P.L. 1991, c. 261 (C. 2C:25-19), whether or not armed with or having in his possession a weapon enumerated in subsection r. of N.J.S. 2C:39-1, or a person having been convicted of a crime pursuant to the provisions of N.J.S. 2C:35-3 through N.J.S. 2C:35-6, inclusive; section 1 of P.L. 1987, c. 101 (C. 2C:35-7); N.J.S. 2C:35-11; N.J.S. 2C:39-3; N.J.S. 2C:39-4; or N.J.S. 2C:39-9 who purchases, owns, possesses or controls a firearm is guilty of a crime of the second degree.

44 S.D. Codified Laws No person who has been convicted of any misdemeanor crime involving an act of domestic violence may possess or have control of a firearm for a period of one year from the date of conviction. Any violation of this section is a Class 1 misdemeanor. At the end of the one year period, any civil rights lost as a result of this provision shall be restored.

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47 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 ).

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49 Assessment, Lethality, and Emergency Response Team (ALERT)

50 Countywide assessment of DV response Players: Sheriff s Office; State s Attorney s Office; county police, human services, and corrections; and state probation and parole.

51 Sheriff s Office DV Unit serves more than 3,000 orders and an additional 1,000 peace orders Sheriff s office believes that removing firearms at the time of service decreases the chance that a firearm will moved or given to a third party. Sheriff s Office interviews every victim and conducts lethality assessment, including information on the possession of firearms.

52 At the time of service of a temporary order, deputies remove all prohibited firearms or encourage voluntary surrender After seizure or surrender a seized property report is completed Firearms are stored by the Sheriff s Office until the expiration of the order.

53 Given at the time of service Info on federal and state firearm statutes Directions on how respondent can arrange surrender.

54 Upon service of the final order, abuser is informed that: They are prohibited from possessing firearm Sheriff s Office has info indicating they have a firearm Form makes it more difficult for abuser to deny possession

55 Upon expiration of the order there is no automatic return Abuser must request firearms If there is no request within three years, Sheriff s Office destroys Sheriff s Office informs victims of returns

56 Developed by the King County Sheriff s Office, Prosecuting Attorney s Office, and Courts

57 Sheriff s Office created a strategy to better ensure seizure and relinquishment. Before beginning the program they reviewed, updated and created new policies and procedures to facilitate enforcement of state firearm statutes and ensure uniform response among deputies. Created a facility to house firearms.

58 Develop department policy for forfeiture; Create database of court orders, include firearm prohibitions and relinquished firearms, ability to generate weekly compliance reports; Train personnel and brief judiciary on new procedures; Partner with advocates on seizure related issues; Educate involved parties on state and federal law;

59 Develop forms to aid deputies in collection of firearm info at the crime scene; Assign a detective to oversee the management of the firearms held by the Sheriff s Office; Support prosecutor in applications for surrender orders; Train prosecutors to request forfeiture when disposition bars possession.

60 Deputies screen every domestic violence case for firearms If firearms are found, abusers are encouraged to surrender them If no firearms are found, deputies still conduct background check to determine if abuser is prohibited If abuser is prohibited, firearms must be relinquished immediately Checks to see if abuser ever used, threatened use or displayed firearms in a prior incident and requests for safekeeping. If abuser is not present, deputies ask the victim for permission to remove firearms

61 Prosecutors receive the firearm information collected by the deputies; Request that firearms be surrendered until the disposition; If defendant refuses, prosecutor requests that they be taken into custody; Compliance: surrender of weapons to sheriff or compliance through affidavit; Regardless of outcome prosecutor can request forfeiture.

62 Decided By Court Ordered Return, Dismissal, Expiration Of Orders, Not Guilty Findings. Full Background Clearance Records - NICs, WACIC NCIC- i.e. (III) DSHS Involuntary Commitment Data Unit - Pending Civil Protection, No Contact Orders or New Filings. Re-Check Done On Day Of Return

63 In most cases, Domestic Violence Firearms may be voluntarily surrendered to the Seattle Police Department in one of two ways: At a Domestic Violence Scene: A concerned party who has "dominion and control" over a Domestic Violence Firearm may voluntarily surrender firearm(s) to an SPD officer at the scene of a domestic violence incident. SPD officers will ask about firearms when a Domestic Violence report is taken. From a Premise in the City Limits: A concerned party who has "dominion and control" over a Domestic Violence Firearm in a nonemergency situation, may call SPD Communications at to voluntarily surrender the firearm. The caller will be instructed to press "2" then "8" to speak to a dispatcher. An officer will be dispatched to the party's premise to accept the firearm. Domestic Violence Surrendered Firearms will not be accepted at the precincts. Voluntarily surrendered Domestic Violence Firearms are stored at the SPD Evidence Unit until released by court order or by other action. There are exceptions to the above two circumstances where firearms will not be accepted by SPD officers. Also, these surrenders are separate from Domestic Violence firearms that are seized for evidentiary value or are surrendered via court order.

64 Process for ensuring and documenting surrender

65 Respondent s Sworn Statement on Possession Order to Surrender Firearms Order to Show Cause of Failure to Surrender Affidavit of Third Party Transfer Order Releasing Firearms to Third Party

66 Order Allowing Transfer to Third Party Order for Return Information to Respondent on Surrender and Return Summary of Potential Collateral Consequences from DV Conviction Summary of Potential Collateral Consequences from Permanent PO Memo to Petitioner Regarding Respondent s Request for Return

67 With service of the protection order is a notice the firearms must be surrendered to local PD. Officers indicate to respondent that proof of relinquishment must be brought to court.

68 Judge reviews firearm restrictions with petitioner; Judge will issue an order for surrender of firearm that the petitioner has identified; Sheriff s Department is responsible for service of surrender order and reporting the outcome of the situation to the court.

69 Miami courts require respondent to complete form providing information on firearms in their possession If there was non compliance with the initial direction to surrender upon service the judge may order compliance Judge makes on record inquiry on information provided on the firearms If it is determined that the respondent is still in possession the Court will issue an Order to Surrender Case manager will monitor the respondent s compliance.

70 Third party transfer is rare and third party must appear in court to obtain firearms. Court informs third party of duties in taking possession

71 Requestor must be legal owner No MCDV No PO anywhere No forfeiture action No mental illness adjudication or commitment No other legal impediment Requestor must also provide detailed information on the firearm and case, as well as the receipt

72 Four Major Components Consistent application of procedures Diligence by system providers Focus on keeping firearms away from violent offenders Strong leadership

73 Many jurisdictions have revised and adopted Judge Karan s forms to meet their needs.

74 Federal-state partnership that identifies and prosecutes abusers who violate federal firearm statutes. Safe Neighborhoods/ATF Task Force created: local and federal law enforcement and corrections; local, state and federal prosecutors Local law enforcement received ATF training and were deputized as federal marshals. Local law enforcement are the front line of firearm investigations and have federal resources at their disposal.

75 Law enforcement can act in either their local or federal role depending on which is the most helpful. Local prosecutors also cross-designated as Special Assistant US Attorney. Prosecutors choose whether to pursue federal or state case and leverage cases to gain pleas. Powerful affect on rural areas, general deterrent in county. Encourages involvement of non-taskforce agencies.

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77 Honor system is not sufficient to ensure compliance with state and federal statutes, or court orders. Checking federal and state databases to determine if persons are prohibited from possessing a firearm is only a first step in completing investigations.

78 Once firearms are relinquished they should not be automatically be returned to their owners until eligibility is determined. Authorities must act quickly and encourage immediate, voluntary surrender of firearms to law enforcement

79 Written procedures are vital. Disarming abusers is not anti-gun. Seek federal involvement.

80 Disarming abusers saves lives.

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82 NCIC-POF, index on MCDV, indices on other prohibitions; Participate in running background checks for gun sales.

83 Division counsel can assist in determining if respondent/convicted is a prohibited individual; Can assist in sending out warnings to those who are prohibited and those who would transfer firearms to prohibited individuals; Does investigation on suspected violators.

84 Chooses to prosecute case; Prosecutes violators based on information provided by ATF, FBI, and local prosecutor/courts.

85 Can seize guns. First responder in dealing with gun violations.

86 Prosecutes predicate offense; Provides information for federal prosecution; May provide support to survivor.

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88 For additional questions or assistance, please contact the National Center on Protection Orders and Full Faith & Credit at: prompt 2