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Domestic Violence

Why Domestic Abusers Often Get to Keep Their Guns

Federal law bars convicted abusers from owning guns, but very few states enforce it.

Last month, Rashied Mitchell shot and killed a Seattle mother, Tabitha Apling, in front of their two young children. At the time, Mitchell was subject to a court order barring contact with Apling, his ex-girlfriend. Mitchell had a rap sheet of at least 12 prior similar convictions, and had been arrested for an alleged domestic violence attack against Aplin just days before her death.

This scenario is not unusual. Under federal law, anyone convicted of domestic violence or subject to a domestic violence protective order is prohibited from possessing a gun. But abusers are often able to buy a firearm anyway, or are allowed to keep one they already own, and they end up using it to shoot a wife, girlfriend, or other intimate partner.

So how is it that known abusers, convicted of a crime or subject to a restraining order, come to have a firearm in their possession? Often, they are able to exploit gaps in the federal background check system or in state laws designed to remove firearms from abusers’ homes. Here are seven ways that commonly happens.

Many states have no laws to ensure that domestic abusers give up their guns.

Federal law bars domestic abusers from owning guns, but leaves enforcement to states to figure out. Methods vary greatly from state to state. Massachusetts requires that authorities confiscate guns at the time that domestic violence restraining orders are served, while Pennsylvania authorizes courts to order the abuser to hand over their guns to a third party (such as a federally licensed firearms dealer, for example). Some states can order law enforcement officials to search for an abuser’s guns; others rely on the honor system.

Thirteen states — including Louisiana, Kansas and New Mexico — don’t require law enforcement officials to take any action at all to remove guns from people prohibited from possessing them. The consequences is that abusers in those states often get to keep their guns, says Lindsay Nichols, an attorney at the Law Center to Prevent Gun Violence.

Domestic abusers in states without removal laws “may not even know that they’re prohibited from possessing guns, and if no one tells them, they’re just going to keep them,” says Nichols. “Nobody’s double checking.”

Only 16 states have laws to remove guns from those served with a temporary restraining order.

In most states, a judge can order a domestic abuser to relinquish his or her guns upon issuing a permanent protective order. But that hearing can be scheduled three weeks after someone claiming abuse petitions the court. Experts say the period immediately after a restraining order is sought can be especially dangerous for victims, as abusers can become more violent when they sense they are losing control.

That’s why 16 states empower a judge to order a gun surrender with a temporary restraining order. Of these, seven require those served with temporary restraining orders to give up their guns, and nine authorize relinquishment by giving courts the discretion to decide whether to remove the alleged abuser’s firearms.

Even in states with seizure or relinquishment laws, enforcement is not guaranteed.

California has among the nation’s strongest gun laws. The state requires anyone served with domestic violence restraining order to hand over firearms to a law enforcement officer or a licensed gun dealer within 24 hours of being served, and to show proof of compliance.

But a study of an initiative in two California counties to seize firearms at the time restraining orders were served or soon after suggests that that compliance is not guaranteed. The study found that guns were recovered from 23 percent of restraining order subjects who had been linked to firearms in San Mateo County from 2007 to 2010. In Butte County, firearms were recovered from half of subjects from 2008 to 2010.

Researchers said that law enforcement officials were not able to seize firearms for a number of reasons, including abusers denying that they had guns or petitioners deciding not to have the order served.

Federal law defines “domestic abuse” in a way that lets boyfriends and some other dating partners off the hook.

Not all attacks on intimate partners trigger a gun ban under federal law. When an abuser and a victim have never been married, do not live together, and do not have children together, the abuser’s attack can be classified as assault — rather than domestic abuse — under federal law.

Given that the number of people murdered by dating partners is nearly the same as the number murdered by spouses, this loophole creates a big gap in protection. In recent years, at least 10 states — including Connecticut, Hawaii, and New York —  have passed laws to close it.

The federal background check system can’t always identify domestic abusers.

The National Instant Criminal Background Check System keeps records of misdemeanor domestic violence crimes and domestic violence restraining orders, but the records are often incomplete. If a background check is not immediately cleared at a licensed gun store due to incomplete records, the FBI has 72 hours to further investigate the buyer’s history.

If the FBI investigation exceeds that time limit, a gun dealer can move forward with the sale. This is called the default-proceed or “Charleston” loophole. At least 15 states and the District of Columbia have laws that delay or bar a gun sale while a background check remains pending.

In 32 states, abusers can buy guns legally without a background check.

Background checks are required for gun sales at licensed dealers, but not when a firearm is purchased from a private seller or online.

Some states have implemented laws to deter gun sales without background checks. At least 10 states and the District of Columbia require a background check at any point of transfer of a firearm, and eight states require people to obtain permits, pending a background check, that are required for private purchases. An analysis by PolitiFact found that 38 percent fewer women were shot and killed in states that require background checks for all handgun sales.

Just 11 states have passed laws to ban stalkers from gun possession.

A paper examining 141 femicides and 65 attempted femicides found that 76 percent of women killed by their intimate partners had been stalked prior to their attacks. Eighty-five percent of women whose partners attempted to kill them had been stalked.   

Many stalkers can legally buy and own guns because federal law only prohibits stalkers from possessing guns when the victim and perpetrator had a domestic relationship, or when the stalking rises to a felony offense. (Some stalking qualifies as a misdemeanor offense, which does not trigger a gun ban.) Eleven states and the District of Columbia have extended their laws to prohibit misdemeanant stalkers from gun possession in efforts to close this gap.

[Photo: Flickr user Daniel Zedda]