In February, Morgan Rogers took out an order of protection against her boyfriend of eight years, Stafford Leo Shaw, after he beat her over the head with his handgun in Chesterfield County, Virginia. Two months later, Shaw pleaded guilty to a misdemeanor domestic assault charge and was ordered to serve jail time on the weekends, and Rogers’s protective order was extended to two years. Shaw’s conviction prevented him from buying new guns, but Virginia law did not compel him to surrender the ones he already owned. On May 29, he fatally shot Rogers and their 1-year-old daughter, then killed two others in a car crash while evading police before committing suicide.
The circumstances of Rogers’s murder were not uncommon: Guns are the weapons of choice for those who kill an intimate partner, and domestic violence assaults with firearms are 12 times more likely to result in death than assaults without them. Despite these statistics, many abusers like Shaw, who had a conviction and a protective order against him, manage to keep their guns without consequence. Here are some reasons why:
Federal law does not outline a procedure for gun surrender, so states have to craft their own
The 1996 Domestic Violence Offender Gun Ban bars accused and convicted domestic abusers from possessing guns, but does not explicitly require existing guns to be handed in to authorities. In many cases, an abuser’s guns are not discovered until it’s too late.
A handful of states and cities have moved to close this gap in federal law with their own relinquishment requirements. Ten states mandate domestic violence misdemeanants hand over their guns, while 15 states require subjects of domestic violence restraining orders to do so. (Similar federal legislation was introduced in 2014 but did not pass.)
Research shows that gun surrender laws have been successful: One 2009 study found that cities in states with relinquishment laws had 25 percent fewer domestic gun homicides compared to cities in states without them. In the 2013 book Reducing Gun Violence in America, Shannon Frattaroli and April M. Zeoli found that “would-be killers do not replace guns with other weapons,” and concluded that restricting firearms access for domestic abusers can save lives.
“We know that most domestic violence homicides happen with firearms, and their presence increases risk of homicide,” Krista Niemczyk, policy manager at the California Partnership to End Domestic Violence, tells The Trace. “The impact firearms have on the level of abuse is really staggering.”
Even in states that do have relinquishment laws, some judges don’t order abusers to surrender their guns
An examination of Rhode Island’s relinquishment policy by Everytown for Gun Safety found that judges ordered defendants to surrender their guns in only 5 percent of qualifying domestic violence cases between 2012 and 2014. Even when a judge knew a defendant had access to a firearm or threatened to use a firearm, a gun surrender order was issued in only 13 percent of cases. (Everytown for Gun Safety is a seed donor to The Trace.)
“I think there’s a feeling among people that it’s not fair to keep people’s guns unless they have proven themselves to be a really violent criminal,” says Rachel Orsinger, manager of government relations at the Rhode Island Coalition Against Domestic Violence. “They don’t see domestic violence as a real type of violence.”
This attitude might also explain why judges don’t use their discretion to order a gun surrender. In California, a 2005 report prepared for the attorney general found that some judges “intimidate victims” making it harder for them to obtain protection orders. “A small minority of judges simply don’t believe this is an appropriate use of the law, and that it isn’t consistent with what civil courts should be doing,” says Frattaroli.
Police departments aren’t familiar with relinquishment laws — or don’t have the resources to enforce them
The job of enforcing relinquishment orders falls to local police departments. In her state of Rhode Island, Orsinger says, some police departments don’t know if they’re responsible for carrying out seizures, or whether they fall under federal jurisdiction. “I think you can ask 39 different towns and police departments and get 39 different answers.” That confusion led a group of Rhode Island police departments to lobby for a failed 2014 bill that would have given them the explicit power to confiscate guns during domestic violence calls.
Even when relinquishment orders are carried out, there’s the issue of what to do with these firearms. Not all police departments have the space to store a large number of guns — nor do they want to be held accountable for them.
“[Police] don’t want to be responsible for these guns or held liable if they end up lost or damaged,” says Chelsea Parsons, the vice president of guns and crime policy at Center for American Progress.
“I think there’s a feeling among people that it’s not fair to keep people’s guns unless they have proven themselves to be a really violent criminal. They don’t see domestic violence as a real type of violence.”
To keep their storerooms from overflowing, some law enforcement agencies partner with local businesses for storage. Earlier this year, police in Dallas, Texas, unveiled a program that requires certain domestic abusers to turn over their weapons at a local gun range. The 2005 California report details a similar approach: During arraignments for criminal protective orders, judges in Orange County advise defendants to call the California Department of Justice, which maintains a domestic violence restraining order system, and leave a voicemail identifying all of their guns. Gun owners can then sell their guns, store them with a licensed gun dealer, or turn them over to a law enforcement agency. During one four-week period, according to the report, the court collected four handguns, two shotguns, three rifles, and a grenade launcher.
It can take weeks for protective orders to come through
In some states like California, Hawaii, and Massachusetts, a gun seizure is ordered when a temporary order of protection is granted by a judge. More commonly, a gun prohibition against a domestic abusers only kicks in when a permanent or final protective order is issued by a judge. But reaching that point in the court system can take several weeks, and during that period the abuser retains access to firearms.
Here’s how the process works in many states: A domestic violence victim files a petition with a family court seeking a restraining order. The judge looks over the petition and makes a judgment on how serious the abuse is. At that point, the court may issue a temporary restraining order and set a hearing date, sometimes two or three weeks later. During that preliminary hearing, the court weighs both sides of the case and makes a determination about whether abuse has occurred. If a judge rules that abuse did occur, a permanent or final protective order is issued, and a gun ban is applied.
According to Frattaroli, an accused abuser’s job may also affect a gun ban. “If there’s a reason for the respondent’s employment that they need to have a gun, that’s a reason judges don’t order removal,” she says. “There are exceptions under some state laws.”
The “boyfriend loophole” significantly limits the definition of “domestic abuser”
More people in dating relationships are murdered by their partners than those in marriages. But under federal law, abuse is only considered domestic violence if the victim is currently or formerly married to or living with his or her abuser, or if the parties have a child together (as Shaw and Rogers did). This gap in legal protection has been referred to as the “boyfriend loophole.”
In most states, there is no gun prohibition for a person convicted of simple assault. The FBI would look at the person’s record and say, “‘…They didn’t have kids together or live together and were never married, so that person can buy a gun.’”
When an intimate partner assault occurs, the defendant often winds up with a charge of “simple assault,” according to Lindsay Nichols, an attorney at the Law Center to Prevent Gun Violence.
“In most states, there is no gun prohibition for a person convicted of simple assault,” she says. “If that person went to a gun store and tried to pass a background check to buy a gun, the FBI would look at the person’s record and say, ‘It’s a simple assault. They didn’t have kids together or live together and were never married, so that person can buy a gun.’”
The Zero Tolerance for Domestic Abusers Act, introduced in July by Democratic Congresswoman Debbie Dingell of Michigan and Republican Congressman Robert Dold of Illinois, would ensure that people who have abused dating partners are prohibited from purchasing or possessing firearms. The bill, which is identical to a failed 2013 measure, would also place a gun ban on convicted stalkers. In a fact sheet on her website, Dingell cites a 2010 CDC study that found that 66 percent of women who have been stalked were stalked by a current or former partner.
Domestic violence records may not make it into the instant federal background check system
Records of misdemeanor crimes of domestic violence and domestic violence restraining orders are housed in two of the three databases that feed the National Instant Criminal Background Check System, or NICS. But these records are often incomplete — for instance, arrest records don’t always indicate whether they were followed by the conviction that would trigger a gun prohibition — making additional investigation necessary to determine if someone is ineligible to buy a gun. If further investigation exceeds 72 hours and a determination on a buyer’s record isn’t reached, a gun dealer can make the sale anyway. This is called the default-proceed loophole — the way by which Charleston church shooter Dylann Roof purchased the handgun he used to kill nine people.
Compounding the problem, domestic violence victims often recant testimony and drop charges, and many prosecutors allow defendants to plead down charges. “If an assault charge is dropped, that wouldn’t make it onto the criminal record unless the victim seeks a protective order,” says Nichols.
Resistance from the gun lobby prevents the adoption of stronger gun laws to protect domestic violence victims
The National Rifle Association has fought legislation mandating the surrender of firearms in domestic violence cases for several years, including state-level efforts to close the “boyfriend loophole.” Last winter, the gun group spoke out against a failed proposal in Virginia that would have required anyone served with a protective order to give up their guns. According to a post on the group’s website, the bill revoked “an individual’s constitutional right … without the protections of due process.”
In other words, because alleged domestic abusers have not yet been tried, their guilt has not been proven, and the gun lobby believes they should be able to keep their firearms until they get their day in court. Before a jury weighs in, they argue, it’s one person’s word against another’s, and an accuser could be lying. The NRA objected to a provision in a 1994 crime bill that barred most people subject to full protective orders filed by intimate partners from purchasing or possessing firearms because the defendant hadn’t had the opportunity to contest the accusations in court.
“The gun lobby has raised the specter of false abuse allegations repeatedly, but I have yet to see that played out in real life,” says Nichols. “The court does not just rubber-stamp requests for protective orders. There’s a significant amount of due process before guns are surrendered.”
[Photo: Flickr user Daniel Zedda]