Common Issues in Prosecuting & Defending Domestic Assault Cases Michelle Jacobson, Supervising Attorney, Minneapolis City Attorney s Office Presented: December 19, 2014 Overview Domestic Violence Why it is important to Prosecute these cases One Prosecutor s Perspective DV Related Offense Chart Bail, Mandatory Sentencing, PSIs, Firearms Prohibitions, etc New Laws in 2014 related to DV Cases Probable Cause Arrests for DV Gun Laws DANCOs State v. Ness Confrontation Clause Crawford DV: Quick Facts & Figures Domestic Violence victims account for over 25% of all violent crime victims in MN. An estimated 3.3 million children are exposed to DV against their mother each year. Over 1.7 million work days are lost each year in the U.S. due to DV. 25 women, 7 men, and 6 family members were murdered in MN in 2013 as a result of DV. In 2013, Minneapolis Police responded to over 17,667 DV related 911 calls. 1
Evolution of DV Prosecution One Prosecutor s Perspective Goal of Criminal Justice Intervention in DV Cases: Hold domestic violence abusers accountable for their actions & increase safety for victims, their families, & the community Evolution of DV Prosecution It s a family matter, let the family handle it Introduction of specific Domestic Violence laws & mandatory statutory provisions Let the Victim drive the Prosecution A version of No Victim = No Crime Let the Evidence drive the Prosecution Evidence Based Prosecution 2
Why do we Intervene? Domestic Violence is usually on going and requires Intervention to stop the behavior Misdemeanor Domestic Violence Offenders often become Felony Domestic Violence Offenders Escalation of Violence Homicide Prevention Children who experience domestic violence often replicate the behavior as adults Domestic violence is expensive for society Special Rules in DV Cases DV Cases are often the exception to the Rule in many criminal court situations. For example, Police Arrest Authority do not need to witness crime May arrest in the Home DV Relationship Evidence more likely admissible 634.20 Bail Amount, Length of Probation, PSI, Firearms These exceptions, oftentimes increase the ability of prosecutors to hold DV offenders accountable However, the exceptions also make it confusing for those working on the cases 3
Minnesota Statutes: 629.471 609.135 609.2244 Offense Statute Max Bail Max PSI Firearms Immediate Minimum Conviction Probation required Order Possession Sentence can enhance 629.471 Period on required may be required upon a future 609.135 Conviction upon ordered if conviction arrest 609.2244 conviction Firearms finding of Transfer imminent Order risk of required substantial upon bodily Conviction harm made Domestic Assault (M) 609.2242.1 $10,000 2 years None Domestic Assault (GM.) 609.2242.2 $30,000 2 years 20 days, 96 hours served consecutively 5 th Degree Assault (M) 609.224.1 $6,000 1 year No No No No None 5 th Degree Assault with 609.224.1 $6,000 2 years None victim as family or household member (M) 5 th Degree Assault (GM) 609.224.2 $18,000 2 years No None 5 th Degree Assault with 609.224.2 $18,000 2 years None victim as family or household member (GM) Violation of an Order for 518B.01.1 $10,000 1 year No No 3 days & Protection (M) 4(b) participation in counseling Violation of an Order for 518B.01.1 $30,000 2 years No No 10 days & Protection (GM) 4(c) participation in counseling Interference with an 609.78.2.1 $6,000 2 years No No No None Emergency Telephone Call (GM) Offense Statute Max Bail Max PSI required Firearms Firearms Immediate Minimum Conviction Probation upon Order Transfer Possession may be Sentence can 629.471 Period Conviction required Order ordered if finding of required enhance a 609.135 609.2244 upon required imminent risk of upon future conviction upon substantial bodily conviction arrest Conviction harm made Violation of a 629.75. $10,000 1 year, if DV No No No None Domestic Abuse 2(c) arrest under No Contact Order 518B.01 (M) Violation of a 629.75. $30,000 2 years, if DV No No No 10 days & Domestic Abuse 2(d) arrest under participation No Contact Order 518B.01 in (GM) counseling Violation of a 609.748 $2,000 1 year No, unless V No No No None Harassment Order.6(b) is a family or (M) household member Violation of a 609.748 $6,000 2 years No, unless V No No No None Harassment Order.6(c) is a family or (GM) household member Obscene or 609.79 $2,000 2 years No, unless V No No No None No Harassing is a family or Telephone Calls household (M) member Stalking (GM) 609.749 $6,000 2 years No No No None Any other misdemeanor offense Any other gross misdemeanor offense $2,000 1 year, if DV arrest under 518B.01 $6,000 2 years, if DV arrest under 518B.01 No No No None No No No No None No 4
Special challenges for Prosecutors in DV Cases (AKA Opportunities for Defense Attorneys) Police make charging decision in the majority of the misdemeanor cases Little or no follow up investigation by police May involve no visible injuries May have little corroborating evidence Defendants often times manipulate the victims Majority of victims recant or change their story Many victims move or do not appear at trial Arrest Time when a Suspect is GOA increased Prohibitions relating to firearms following certain DV convictions & after issuance of a qualified Order for Protection or Child Abuse Order 5
72 Hour Rule Generally for a misdemeanor, police must see a crime occur before they can make an arrest For Domestic Related Offenses, MN Stat. 629.341 allows police to arrest for a domestic that doesn t occur in their presence Originally Time Period was 12 hours from time of the incident Then Increased to 24 hours Now (As of August 1) it is 72 hours that time calculation does not include the day that the incident occurred 72 Hour Rule Opportunities in Implementation Are we telling victims about the new law & additional protections that it offers them? Are we developing plans for when an affiliated professional has contact with a suspect in a police report in the 72 hour period? Example: DASC 72 Hour Arrest Policy Consult with Prosecutor Provide Law Enforcement Agency with original CCN & Police Report whenever possible Level of Crime Victim Notification 6
Domestic Violence & Guns More than 50% of intimate partner homicides in Minnesota have been committed with firearms Between 2006 2012, at least 129 women have been the victim of IP homicide in MN 72 women were killed with a firearm When there is a DV homicide/suicide, almost 80% of the time a firearm was used When there is a history of DV and a perpetrator has access to firearms, the risk of lethality is increased 7
Prohibitions on Possession Pursuant to MN law, defendants are prohibited from possession of a firearms for 3 years when convicted of: Domestic Assault or Domestic Assault by Strangulation 1 st, 2 nd, 3 rd & 5 th degree Assault against a family or household member, or Stalking against any victim. Previously prohibition only applied to pistols. Federal Laws may include a lifetime ban for possession of all firearms. Persons convicted of felony level violations of Domestic Assault, 5 th Degree Assault, Domestic Assault by Strangulation & Stalking are also prohibited persons for life under 624.713, as those crimes are now crimes of violence Prohibitions on Possession Pursuant to MN & Federal law, defendants are prohibited from possession of firearms while the OFP is in effect, Previously prohibition only applied under federal law HOWEVER. Persons convicted of OFP violations are only prohibited from possessing pistols. Persons convicted of DANCO violations or 911 Interference are not prohibited from possessing any pistols or firearms. What will happen in Court? Judge should fill out a Firearms Notice when a Defendant is convicted of one of the qualifying offenses. Domestic Assault or Domestic Assault by Strangulation 1 st, 2 nd, 3 rd & 5 th degree Assault against a family or household member, or Stalking against any victim. Violation of an Order for Protection (pistols only) Why? It is a Gross Misdemeanor if a Defendant violates, and this notifies him/her of this prohibition. 8
Misd & GM Notice Felony Notice 9
Firearms Transfer Judges are required to order persons Convicted of Domestic Assault or Domestic Assault by Strangulation Convicted of 1 st, 2 nd, 3 rd & 5 th Degree Assault against a family or household member, Convicted of Stalking against any victim. Respondents in OFPs & qualified Child Abuse Orders To Transfer all firearms that they possess within 3 days Transfer can be made to Law Enforcement, a Federally Licensed Firearms Dealer or a 3 rd Party who can Lawfully Receive them Authorized 3 rd Parties can t live with the person & must not be banned under state or federal law Firearms Transfer Persons required to Transfer Firearms can get the firearms back once they are no longer prohibited from possession under state or federal law OFPs generally 2 years, unless OFP is lifted M/GM Domestic Conviction 3 years or life 5 th Degree Assault 3 years Stalking 3 years Felony level convictions for 1 st, 2 nd, 3 rd 5 th Degree Assault/Domestic Assault by Strangulation/Domestic Assault life Law Enforcement does not need to accept firearms temporarily transferred What will happen in Court? Judge should fill out a Firearms Transfer Notice when a Defendant is convicted of one of the qualifying offenses. Domestic Assault or Domestic Assault by Strangulation 1 st, 2 nd, 3 rd & 5 th degree Assault against a family or household member, or Stalking against any victim. Currently Judges have 2 fill out a Separate Firearms Notice & a Firearms Transfer Notice, but working on a combined form. Defendants are given samples of Affidavits they are required to file. 10
Firearms Transfer: Logistics in Court 11
Firearms Transfer: Logistics in Court Firearms Transfer: Logistics in Court Police Response to Firearms Transfer Orders Many law enforcement agencies will only accept firearms permanently transferred to law enforcement Advise clients to check with Agency before bringing them If a person wants to temporarily transfer firearms, refer them to a firearms dealer or to a 3 rd party Most law enforcement agencies will run any firearms turned in to them through a data base & check for its use in other crimes LE Policy 12
Firearms Immediate Possession Judges may order Law Enforcement to take Immediate Possession of firearms possessed by persons Convicted of Domestic Assault Convicted of 1 st, 2 nd, 3 rd & 5 th Degree Assault against a family or household member, Convicted of Stalking against any victim. Respondents in OFPs & qualified Child Abuse Orders Judge must make a finding of imminent risk of causing substantial bodily harm to another person What constitutes Immediate Possession is not defined by Statute How Law Enforcement can enforce an Immediate Possession Order is also not defined by Statute Firearms Immediate Possession Law Enforcement MUST attempt to take immediate possession of firearms when an Immediate Possession Order is received Law Enforcement MUST transfer firearms if within 3 days a request to transfer is made Law Enforcement can establish a fee to store firearms Law Enforcement MUST keep firearms obtained in good repair & return to the person when the prohibition time ends UNLESS Law Enforcement establishes a policy relating to abandoned firearms & notifies persons via certified mail of it Opportunity for LE 13
What will Happen in Court Prosecutor in Criminal Case (or Petitioner in OFP case) will submit an Affidavit to Court asking for Immediate Possession at the time of sentencing (or issuance of the OFP) Judge will review request ex parte Judge will determine if imminent risk finding is met Burden of proof is Preponderance of the Evidence If met, Court will authorize entry to the address where the firearms are located by law enforcement Firearms Immediate Possession: Logistics in Court Firearms Immediate Possession: Logistics in Court 14
Firearms Immediate Possession: Logistics in Court Sample Affidavit by Prosecutor In support of this request, the affiant certifies as follows: Michelle Jacobson certifies that I am a prosecutor with the Minneapolis City Attorney s Office. Defendant has been convicted of the crime of DA. Affiant learned through credible sources that Defendant possesses or has access to firearms. Specifically, Affiant learned from the victim that the Defendant threatened to shoot the victim if she ever called police on him again. The victim states that she is extremely afraid of the Defendant. The firearm(s) have been identified to your affiant as a Colt 45. Affiant learned through credible sources that the firearms described in paragraph 3 are located at the Defendant s residence located at the Defendant s house at 123 Main Street and are usually stored in a box in his bedroom. Immediate Possession Order 15
DANCOs Crawford v. Washington DANCOs Challenges to No Contact Orders: Is the DANCO Statute Constitutional? Brief History of No Contact Orders in Domestic Cases DANCOS were originally in 518B.01 (subdivision 22) In 2002, it became a crime to violate a domestic abuse no contact order In 2010, a separate statute (629.75) was created because of some concerns by judges out state about issuing a civil order in a criminal case Defense Attorneys began to attack constitutionality of the new DANCO statute Due Process Notice, Opportunity to be Heard, Arbitrary & Discriminatory Enforcement (Vague) 16
Is DANCO Statute Constitutional? MN Supreme Court on July 24, 2013 decided State v. Ness finding that the Statute Provides adequate notice & opportunity to be heard Immediately following the bail/release/sentencing hearing Hearing allowed before issuance of order Does not encourage arbitrary & discriminatory enforcement Not listing standards to issue (like OFP) ok because of other limits in statute on when can issue & because Court has just made a ruling on the No Contact Order as a condition of release/probation Confrontation Clause Evolution of DV Prosecution Evidence Based Prosecution AKA Victimless Prosecution Circumstantial Guarantees of Trustworthiness Exceptions to Hearsay Rules Easy to Prosecute a Case if victim did not appear Crawford v. Washington Right to Confront Witnesses against You 17
Crawford vs. Washington 541 U.S. 36 (2004) Domestic Violence Prosecution is Dead NOT But if a victim does not appear at trial, some evidence that would have previously been admissible at trial will not be admissible Harder to argue for a hearsay exception than in child abuse cases Life after Crawford Evidence Based Prosecution is alive and well, BUT Analysis of the Evidence had to change Testimonial or Non Testimonial On going Emergency Forfeiture by Wrongdoing Involvement of Victims at Trial had to Increase Increased Advocacy Support/Involvement Issuance of Warrants Review of Jail Phone Calls Crawford Confrontation Clause 911 Call not testimonial, on going emergency Statement to Police when suspect still at large not testimonial, on going emergency Statement(s) to Police before police ask questions not testimonial Statement to Medical Personnel not testimonial Statements to Friends, Family, Neighbors not testimonial 18
With Questions, Please Contact: Michelle Jacobson Supervising Attorney Minneapolis city Attorney s Office michelle.jacobson@minneapolismn.gov 612 673 3276 19
Quick Reference Guide to Minnesota and Federal Firearms Bans in Domestic Violence Cases Conviction Offense Violation of an Order for Protection Conviction Date when Ban Applies Type of Firearms Prohibited Length of the Prohibition After 8/1/96 Any pistols 3 years from conviction date Statutory Authority & Max Criminal Penalty 518B.01.14(l) Gross Misdemeanor Special Notes Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 518B.01.14(k) Domestic Assault* On or after 8/1/14 Any firearms 3 years from conviction date 609.2242.3(e) Gross Misdemeanor Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 609.2242.3(d) Domestic Assault * Between 8/1/92-8/1/14 Any pistols 3 years from conviction date 609.2242.3(e) Gross Misdemeanor Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 609.2242.3(d) 5 th Degree Assault if the victim was a family or household member* On or after 8/1/14 Any firearms 3 years from conviction date 609.2242.3(e) Gross Misdemeanor Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 609.2242.3(d) 5 th Degree Assault if the victim was a family or household member* Between 8/1/92-8/1/14 Any pistols 3 years from conviction date 609.2242.3(e) Gross Misdemeanor Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 609.2242.3(d) 5 th Degree Assault within 3 years of a prior assault conviction* After 8/1/92 Any pistols 3 years from conviction date 609.224.3(b) Gross Misdemeanor Statute does not provide that the ban is still in effect even if the defendant is not notified of the ban by the court. Prior conviction may be for 1 st, 2 nd, 3 rd, or 5 th degree assault Stalking* On or after 8/1/14 Any firearms 3 years from conviction date 609.749.8(c) Gross Misdemeanor Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 609.749.8(b) Stalking* After 8/1/96 Any pistols 3 years from conviction date 609.749.8(c) Gross Misdemeanor Court shall issue this ban upon a conviction. Ban applies even if the court does not notify defendant of the ban. 609.749.8(b) Respondent in a qualifying OFP N/A Any firearms While OFP is in effect 518B.01.6(g) 624.713.1(13) Gross Misdemeanor Must verify that the Order is a qualifying order. (See reverse) Court shall order transfer. Respondent in a valid and qualifying OFP or RO or DANCO N/A Any firearms or ammunition While Order is in effect 18 U.S.C. 922(g)(8) Up to 10 years & $250,000 fine 624.713.1(10)(viii) Gross Misdemeanor Must verify that the Order is a qualifying order. (See reverse) Military and law enforcement personnel are exempted from this ban while on duty and when acting in an official capacity Person convicted of a qualifying misdemeanor crime of domestic violence Any Conviction Any firearms or ammunition Life, unless the conviction has been set aside or expunged. 18 U.S.C. 922(g)(9) Up to 10 years & $250,000 fine 624.713.1(10)(viii) Gross Misdemeanor Must verify that the conviction is a qualifying conviction (See reverse) *Convictions for felony level violations of 609.224, 609.2242, and 609.749 are also considered crimes of violence pursuant to 624.712. 5 and persons convicted of those offenses are prohibited for life from possessing, receiving, shipping or transported firearms pursuant to 624.713.1(2). Drafted by Michelle Jacobson, Minneapolis City Attorney s Office. Distributed by Hennepin County Family Violence Coordinating Council in 7/04, updated 3/11 & 8/14.
Quick Reference Guide to Minnesota and Federal Firearms Bans in Domestic Violence Cases Under Minn. Stat. 624.712.2, a pistol is a weapon designed to be fired by the use of a single hand and with an overall length less than 26 inches, or having a barrel or barrels of a length less than 18 inches in the case of a shotgun or having a barrel of a length less than 16 inches in the case of a rifle (a) from which may be fired or ejected one or more solid projectiles by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances; or (b) for which the propelling force is a spring, elastic band, carbon dioxide, air or other gas, or vapor. Pistol does not include a device firing or ejecting a shot measuring.18 of an inch, or less, in diameter and commonly known as a BB gun, a scuba gun, a stud gun or nail gun used in the construction industry or children s pop guns or toys. Under 18 U.S.C. 921(a)(3), a firearm is (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer, or (D) any destructive device. It doesn t include an antique firearm. Under 18 U.S.C. 921(a)(4), the term destructive device means--- (A) any explosive, incendiary, or poison gas (i) bomb, (iv) missile having an explosive or incendiary charge of more than 1/4 ounce, (ii) grenade, (v) mine, or (iii) rocket having a propellant charge of more than four ounces, (vi) device similar to any of the devices described in the preceding clauses. (B) any type of weapon (other than shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of any explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter; and (C) any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B) and from which a destructive device may be readily assembled. Under, 18 U.S.C. 921 (17)(A), the term "ammunition" means ammunition or cartridge cases, primers, bullets, or propellant powder designed for use in any firearm. Under 518B.01.6(g), an order is a qualifying order if the order (1) restrains the abusing party from harassing, stalking, or threatening the petitioner or restrains the abusing party from engaging in other conduct that would place the petitioner in reasonable fear of bodily injury, and (2) includes a finding that the abusing party represents a credible threat to the physical safety of the petitioner or prohibits the abusing party from using, attempting to use, or threatening to use physical force against the petitioner. Under 18 U.S.C. 922 (g)(8), an order is a qualifying order, if all of the following are true: 1. The Respondent must have had actual notice of the hearing and an opportunity to participate in it. 2. The Petitioner for the Order is a current or former spouse, a co-parent, or one who cohabits or has cohabited with the subject of the protection order. 3. The Order must prohibit either or both of the following: - harassing, stalking, or threatening an intimate partner or child of such partner; OR - engaging in other conduct which would place an intimate partner in reasonable fear of bodily injury to self or child. 4. The Order must also contain either or both of the following: - a finding that the person subject to the order represents a credible threat to the physical safety of an intimate partner or child; OR - an explicit prohibition against the use, attempted use, or threat of physical force against an intimate partner or child which would be reasonably expected to cause bodily injury. Under 18 U.S.C. 922 (g)(9), a domestic assault conviction is a qualifying conviction, if all of the following are true: 1. The crime convicted of is a federal, state or local offense that is a misdemeanor under federal or state law. 2. The crime convicted of has an element of either the use or attempted use of physical force, or the threatened use of a deadly weapon; 3. Was committed by a current or former spouse, parent, or guardian of the victim; a person with whom the victim shares a child in common; a person who is cohabiting or has cohabited with the victim as spouse, parent or guardian of the victim; or a person similarly situated to the spouse, parent, or guardian of the victim. 4. The conviction was obtained after the defendant had an attorney or knowingly waived the right to an attorney. 5. The conviction was obtained after the defendant either had a jury trial or knowingly and intelligently waived the right to a jury trial. 6. The conviction has not been set aside or expunged, or the person has not been pardoned.
Conviction Offense Must Conviction involve a Family or Household Member Quick Reference Guide to Minnesota and Federal Firearms Bans in Domestic Violence Cases Quick Summary of Firearms Transfer Laws in Criminal Cases effective August 1, 2014 Prohibition Includes 5 th Degree Assault Possession of any Firearms Possible Length of time Firearms must be Transferred 3 years (or life if firearm used in commission of crime) Must Transfer be Ordered by Judge on Conviction Must Immediate Possession by Law Enforcement be Ordered No, unless finding of imminent risk Statutory Authority 609.2242.3(f) Domestic Assault (by definition, against a family or household member) Possession of any Firearms 3 years (or life if firearm used in commission of crime) No, unless finding of imminent risk 609.2242.3(f) Stalking No Possession of any Firearms 3 years (or life if firearm used in commission of crime) No, unless finding of imminent risk 609.749.8(e) Domestic Assault by Strangulation (by definition, against a family or household member) Possession of any Firearms 3 years (or life if firearm used in commission of crime) No, unless finding of imminent risk 609.2242.3(f) 1 st Degree Assault Possession of any Firearms 3 years (or life if firearm used in commission of crime) No, unless finding of imminent risk 609.2242.3(f) 2 nd Degree Assault Possession of any Firearms 3 years (or life if firearm used in commission of crime) No, unless finding of imminent risk 609.2242.3(f) 3 rd Degree Assault Possession of any Firearms 3 years (or life if firearm used in commission of crime) No, unless finding of imminent risk 609.2242.3(f) Note: Defendants conviction of Interference with an Emergency Call, Violation of an Order for Protection, Violation of a Harassment/Restraining Order, or Violation of Domestic Abuse No Contact Order are NOT subject to an Order for Transfer of Firearms. Note: Defendants convicted of felony level offenses described above are also prohibited from possession of firearms pursuant to Minnesota Statute 624.713.1(2). When must the transfer be made? Within 3 days of the Court Order. Details of Transfer: Who can transfer be made to? A federally licensed law enforcement dealer, local law enforcement agency (they do not have to accept), or a 3 rd party who can lawfully receive them. What makes someone a 3 rd Party who can lawfully receive them? The person does not live with the Defendant and is lawfully eligible under state & federal law to possess or receive firearms. How will Court know of transfer? Defendant must file proof of transfer with the Court within 2 business days of the transfer. When can the Defendant get the firearms back? When the prohibition on firearms possession expires unless the Defendant is prohibited under federal or state law from possessing firearms. Are there criminal penalties for failing to transfer firearms or file proof of transfer documents? No, except a Defendant can be charged with possession of a firearm following a conviction if possessing one following a conviction.
Conviction Offense Quick Reference Guide to Minnesota and Federal Firearms Bans in Domestic Violence Cases Quick Summary of Immediate Possession Laws in Criminal Cases effective August 1, 2014 Does Conviction involve a Family or Household Member Was Finding of Imminent Risk of Causing Substantial Bodily Harm made Standard of Proof needed to show Imminent Risk Must Immediate Possession by Law Enforcement be Ordered Must Law Enforcement Attempt to take Immediate Possession of Firearms Statutory Authority 5 th Degree Assault Preponderance of the Evidence, if finding of imminent risk is made 609.2242.3(h) Domestic Assault (by definition, against a family or household member) Preponderance of the Evidence, if finding of imminent risk is made 609.2242.3(h) Stalking No Preponderance of the Evidence, if finding of imminent risk is made 609.749.8(g) Domestic Assault by Strangulation (by definition, against a family or household member) Preponderance of the Evidence, if finding of imminent risk is made 609.2242.3(h) 1 st Degree Assault Preponderance of the Evidence, if finding of imminent risk is made 609.2242.3(h) 2 nd Degree Assault Preponderance of the Evidence, if finding of imminent risk is made 609.2242.3(h) 3 rd Degree Assault Preponderance of the Evidence, if finding of imminent risk is made 609.2242.3(h) Note: Defendants conviction of Interference with an Emergency Call, Violation of an Order for Protection, Violation of a Harassment/Restraining Order, or Violation of Domestic Abuse No Contact Order are NOT subject to an Order for Immediate Possession of Firearms. Details of Immediate Possession: When must immediate possession occur? Immediate possession is not defined in the Statute. How can law enforcement enforce the Immediate Surrender Order? The Statute does not define how law enforcement may enforce the Order How will Court know of transfer? Law Enforcement must file an affidavit or proof of transfer with the Court within 2 business days of the transfer. Can a Defendant ask that firearms be transferred to a 3 rd party or an authorized firearms dealer?, and law enforcement must transfer if provided with the required documentation under 609.2242(3)(g) or 609.749(8)(e). Can law enforcement charge a fee to store firearms?, if a request to transfer is not received within 3 business days of the immediate possession. Can law enforcement destroy firearms taken through immediate possession?, provided they have a policy regarding the destruction of abandoned firearms that includes notice to the Defendant via certified mail that abandoned firearms will be destroyed. When can the Defendant get the firearms back? When the prohibition on firearms possession expires unless the Defendant is prohibited under federal or state law from possessing firearms.
Quick Reference Guide to Minnesota and Federal Firearms Bans in Domestic Violence Cases Quick Summary of Firearms Transfer Laws in Orders for Protection issued under 518B.01 effective August 1, 2014 Must Court Order Transfer of Firearms Prohibition Includes Length of Prohibition Must Immediate Possession by Law Enforcement be Ordered Criminal Penalty for Possession of Firearms while OFP is in effect Statutory Authority Respondent in a qualifying OFP, if OFP is a qualifying OFP (See below) Possession of any Firearms Term of the OFP No, unless finding of imminent risk. 624.713.1(13) Gross Misdemeanor 518b.01.6.(g) Also may be charged federally under 18 U.S.C. 922(g)(8) Up to 10 years & $250,000 fine Under 518B.01.6(g), an order is a qualifying order if the order: (1) restrains the abusing party from harassing, stalking, or threatening the petitioner or restrains the abusing party from engaging in other conduct that would place the petitioner in reasonable fear of bodily injury, and (2) includes a finding that the abusing party represents a credible threat to the physical safety of the petitioner or prohibits the abusing party from using, attempting to use, or threatening to use physical force against the petitioner. When must the transfer be made? Within 3 days of the Court Order. Details of Transfer: Who can transfer be made to? A federally licensed law enforcement dealer, local law enforcement agency (they do not have to accept), or a 3 rd party who can lawfully receive them. What makes someone a 3 rd Party who can lawfully receive them? The person does not live with the Respondent and is lawfully eligible under state & federal law to possess or receive firearms. How will Court know of transfer? Respondent must file proof of transfer with the Court within 2 business days of the transfer. When can the Respondent get the firearms back? When the prohibition on firearms possession expires unless the Respondent is prohibited under federal or state law from possessing firearms. Are there criminal penalties for failing to transfer firearms or file proof of transfer documents? No, except a Respondent can be charged with possession of a firearm while the OFP is in effect.
Quick Reference Guide to Minnesota and Federal Firearms Bans in Domestic Violence Cases Quick Summary of Firearms Immediate Possession Laws in Orders for Protection issued under 518B.01 effective August 1, 2014 Was Finding of Imminent Risk of Causing Substantial Bodily Harm made Standard of Proof needed to show Imminent Risk Must Immediate Possession by Law Enforcement be Ordered Must Law Enforcement Attempt to take Immediate Possession of Firearms Statutory Authority Respondent in a qualifying OFP Preponderance of the Evidence, if finding of imminent risk is made 518b.01.6.(i) Under 518B.01.6(g), an order is a qualifying order if the order: (1) restrains the abusing party from harassing, stalking, or threatening the petitioner or restrains the abusing party from engaging in other conduct that would place the petitioner in reasonable fear of bodily injury, and (2) includes a finding that the abusing party represents a credible threat to the physical safety of the petitioner or prohibits the abusing party from using, attempting to use, or threatening to use physical force against the petitioner. Details of Immediate Possession: When must immediate possession occur? Immediate possession is not defined in the Statute. How can law enforcement enforce the Immediate Surrender Order? The Statute does not define how law enforcement may enforce the Order How will Court know of transfer? Law Enforcement must file an affidavit or proof of transfer with the Court within 2 business days of the transfer. Can a Defendant ask that firearms be transferred to a 3 rd party or an authorized firearms dealer?, and law enforcement must transfer if provided with the required documentation under 518b.01.6(h). Can law enforcement charge a fee to store firearms?, if a request to transfer is not received within 3 business days of the immediate possession. Can law enforcement destroy firearms taken through immediate possession?, provided they have a policy regarding the destruction of abandoned firearms that includes notice to the Respondent via certified mail that abandoned firearms will be destroyed. When can the Defendant get the firearms back? When the prohibition on firearms possession expires unless the Respondent is prohibited under federal or state law from possessing firearms.
Offense Statute Quick Reference Guide for Domestic Assault Related Statutes Maximum Bail 629.471 Maximum Probation Period 609.135 PSI required upon Conviction 609.2244 Firearms Order required upon conviction Firearms Transfer Order required upon Conviction Immediate Possession may be ordered if finding of imminent risk of substantial bodily harm made Minimum Sentence required upon conviction Domestic Assault (M) 609.2242.1 $10,000 2 years None Domestic Assault (GM) 609.2242.2 $30,000 2 years 20 days, 96 hours served consecutively 1 5 th Degree Assault (M) 609.224.1 $6,000 1 year No No No No None 5 th Degree Assault with victim as family or household member (M) 609.224.1 $6,000 2 years None 5 th Degree Assault (GM) 609.224.2 $18,000 2 years No None 5 th Degree Assault with victim as family or household member (GM) Violation of an Order for Protection (M) Violation of an Order for Protection (GM) Interference with an Emergency Telephone Call (GM) 609.224.2 $18,000 2 years None 518B.01.14(b) $10,000 1 year No No 3 days & participation in counseling 2 518B.01.14(c) $30,000 2 years No No 10 days & participation in counseling 3 609.78.2.1 $6,000 2 years No No No None Updated: August 19, 2014 by Michelle Jacobson, Supervising Attorney, Minneapolis City Attorney s Office Conviction may be used to enhance a future arrest 1 The Court may stay execution of the minimum sentence on the condition that the person sentenced complete anger therapy or counseling and fulfill any other condition as ordered by the court. Minn. Stat. 609.2243.1. See Minn. Stat. 518B.02 for a description of the standards required for a court ordered domestic abuse counseling or educational program. 2 518B.01.14(b) 3 518B.01.14(c)
Quick Reference Guide for Domestic Assault Related Statutes Offense Violation of a Domestic Abuse No Contact Order (M) Violation of a Domestic Abuse No Contact Order (GM) Violation of a Harassment Order (M) Violation of a Harassment Order (GM) Obscene or Harassing Telephone Calls (M) Statute Maximum Bail 629.471 Maximum Probation Period 609.135 PSI required upon Conviction 609.2244 629.75.2(c) $10,000 1 year, if Note 4 applies 629.75.2(d) $30,000 2 years, if Note 4 applies 609.748.6(b) $2,000 1 year No, unless victim is a family or household member 609.748.6(c) $6,000 2 years No, unless victim is a family or household member 609.79 $2,000 2 years No, unless victim is a family or household member Firearms Order required upon conviction Firearms Transfer Order required upon Conviction Immediate Possession may be ordered if finding of imminent risk of substantial bodily harm made Minimum Sentence required upon conviction No No No None No No No 10 days & participation in counseling Conviction may be used to enhance a future arrest No No No None No No No None No No No None No Stalking (GM) 609.749 $6,000 2 years No No No None Any other misdemeanor offense Any other gross misdemeanor offense $2,000 1 year, if Note 4 applies $6,000 2 years, if Note 4 applies Updated: August 19, 2014 by Michelle Jacobson, Supervising Attorney, Minneapolis City Attorney s Office No No No None No No No No None No 4. A pre-sentence investigation must be conducted if the defendant is arrested for committing an offense described in 518B.01, subdivision 2, but is convicted of another offense arising out of the same circumstances surrounding the arrest. 609.2244.1(2). Offenses listed in 518B.01.2 include; domestic assault, terroristic threats, criminal sexual conduct and interference with an emergency call.