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1996: Lautenberg DV Gun Ban - News Articles And Reports
POLITICS DOGS STALKING BILL
Morning Call, The (Allentown, PA)
July 23, 1996
https://infoweb.newsbank.com/
Sen. Frank Lautenberg, D-N.J., wants to make it harder for persons convicted of domestic violence to own guns. Sen. Kay Bailey Hutchinson, R-Tex., wants to make it a federal felony for anyone to stalk and threaten another individual across state lines.
Separately, their proposals have merit. But Sen. Lautenberg's efforts to amend Sen. Hutchinson's bill with his proposal endangers the anti-stalking legislation. Blame the dilemma on election year politics and the clout of the National Rifle Association.
Federal law already prohibits felons from owning guns. However, many of those convicted of domestic violence are found guilty of misdemeanors. Sen. Lautenberg wants gun ownership denied anyone guilty of domestic violence misdemeanors.
Although, the NRA supports anti-stalking and domestic-violence legislation, it opposes Sen. Lautenberg's amendment. As a result, many senators who want to get tough on stalkers, but want the NRA's support for their re-election campaigns, would find it tough to vote for the Hutchinson bill if the Lautenberg amendment is attached.
The solution is simple. Consider the two proposals separately. If too many domestic abuse cases get bargained down to misdemeanors, the senators should find a way to encourage the states to make that more difficult. In the meantime, the anti-stalking bill -- already approved by the House -- should be voted on sans the gun-control measure.
DOMESTIC VIOLENCE GUN BAN ADVANCES
Record, The (Hackensack, NJ)
July 27, 1996
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The Senate unanimously passed a measure Thursday that bans anyone convicted of domestic violence from owning or possessing a firearm.
The measure, sponsored by Sen. Frank Lautenberg, D-N.J., was attached to a bill that makes it a crime to cross state lines to threaten or harass someone. The bill must now be reconciled with the House version, which does not include the Lautenberg amendment.
Democrats said the measure could encounter heavy resistance from the gun lobby.
The 1994 crime bill prohibits anyone who has been served a restraining order from carrying firearms until the order expires. Current law also bans gun ownership by those convicted of a felony.
Proponents of the measure argue that many domestic violence complaints are eventually downgraded to misdemeanors. The Lautenberg measure would apply to all convictions.
IN SENATE AND COURT, SETBACKS FOR EFFORTS AGAINST SPOUSAL ABUSE
DESPITE BIPARTISAN SUPPORT, A BILL TO FIGHT STALKING LANGUISHED
A JUDGE REJECTED THE VICTIMS' RIGHT TO SUE
Philadelphia Inquirer, The (PA)
August 17, 1996
https://infoweb.newsbank.com/
The small gray pendant hanging from Jeanne Mahoney's neck is more than a good-luck charm. ``This is my peace of mind,'' said Mahoney, 51, a mother of six. ``I'm counting on it to save my life some day.''
The pendant links Mahoney to a home security company. If her ex-husband shows up at her home, she can use it to summon help at the push of a button.
The small electronic transmitter, provided by the Abused Women's Active Response Emergency program for battered women, is one piece in a patchwork quilt of assistance - including shelters, protective orders and anti-stalking laws - available to women who fear abuse.
Such resources offer only limited security to women facing domestic violence, and recent legal efforts to make them safer have encountered setbacks.
Last month, an anti-stalking bill that would make it a felony to cross a state line to threaten or intimidate a battery victim got bogged down in the Senate despite broad bipartisan support. The problem was a proposed amendment to keep those convicted of domestic violence from owning firearms. Some legislators were wary of angering the National Rifle Association, one of the most vocal lobbying groups on Capitol Hill.
Also last month, a Virginia judge ruled unconstitutional a 1994 federal law defining rape as a violation of civil rights and allowing victims to sue their attackers. The Violence Against Women Act argued in part that such attacks affect women's job performance, and therefore have an effect on interstate commerce. The judge rejected that notion.
``It's clearly a setback for women who may have sought the law as their only means of redress,'' said Brenda Smith, senior counsel for the National Women's Law Center in Washington.
Kathy Rogers, executive director of the NOW Legal Defense and Education Fund in New York, said: ``That law reverses hundreds of years of cultural norms that say it's all right to beat your wife or rape your date. It proved that politicians took violence against women seriously.''
Such setbacks clearly complicate the outlook for those attempting to solve the problem of spousal abuse.
Out of 60 million couples in the United States, about 3.4 percent typically experience ``severely abusive'' incidents of kicking, choking or threatening with a knife or gun.
That figure is from a 1985 survey of 6,002 households by Richard Gelles, a sociologist at the University of Rhode Island.
The anti-stalking legislation, introduced by Sen. Kay Bailey Hutchison (R., Texas), included a proposal by Sen. Frank R. Lautenberg (D., N.J.) that would bar anyone convicted of a crime involving domestic violence, including misdemeanors, from owning or possessing a gun.
Lautenberg argued that too many domestic violence cases are handled as misdemeanors, and as a result aren't subject to the federal law that prohibits most convicted felons from owning or possessing guns.
But the Lautenberg amendment misses the point, said Elizabeth Swasey, director of the National Rifle Association's CrimeStrike division.
``The issue that should be addressed surrounds the plea bargaining that occurs in domestic-violence cases,'' Swasey said. ``If we really care about the protection of women, we should start treating domestic violence like the serious crime it is, instead of backing into it with amendments like these.''
The bill is now being considered in the House, but some insiders think the gun ban will not wind up in the final version.
Rodgers, of the NOW Legal Defense and Education Fund, said that while the Virginia ruling on the Violence Against Women Act was a setback, she is confident that if the Supreme Court winds up assessing the law it will remain intact.
Stripping civil rights won't prevent domestic violence
Austin American-Statesman (TX)
Author/Byline: Don Loucks
August 27, 1996
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Federal legislation is pending to solve a problem that the states should address. Texas Republican U.S. Sen. Kay Bailey Hutchison's anti-stalking bill would make crossing state lines to ``stalk'' a person a federal crime. While this is a laudable goal, more laudable would be individual states cooperating with each other to enact reciprocal statutes to curb stalking state-to-state, instead of encouraging an unnecessary expansion of federal police power.
However, attached to this bill as it is now approved by its Senate sponsor is an amendment offered by Senator Frank Lautenberg, D-N.J., which would void the right of firearm ownership for anyone convicted of ``misdemeanor domestic violence.''
On its face, it looks like a good idea. Deliberately injure your spouse, lose the civil right to legally own a gun for life. Supposedly, someone convicted of a domestic violence misdemeanor and therefore banned from firearm ownership for life would then refrain from using a gun should this person decide to injure or kill the spouse.
Let's make something perfectly clear: Lautenberg's proposed amendment to Hutchison's bill will do absolutely nothing to protect victims of family violence. To think someone, intent on killing a family member, would be deterred by a mere law prohibiting the ownership of firearms is the same as believing criminals are now willing to obey all firearms laws. This doesn't happen now, and another superfluous law won't make it happen in the future.
Like many federal schemes designed to remedy state deficiencies, the Lautenberg amendment ignores the underlying problems.
First, state laws must be reformed to treat domestic violence as the serious crime it is. Even Lautenberg's own doublespeak reveals this deficiency. ``Misdemeanor crimes of violence'' runs counter to centuries of Anglo-American jurisprudence, which holds that ``misdemeanors'' are are, by definition, nonviolent. Neither law books nor courts should be permitted to consider domestic violence as ``major minor crimes.'' Domestic violence is a major crime, period.
Second, domestic violence statutes should be written with one primary goal in mind: Protect the victim. Lautenberg's amendment fails to achieve this goal. Stripping civil rights of an offender doesn't protect victims.
Incarceration of the offender protects victims, and felony convictions not only strip away civil rights but provide greater assurance of prison time.
Third, domestic violence offenders are by nature repeat offenders, and state laws not built on that fact cost victim's lives. A Kansas City study found that in half of domestic homicide cases, police had been called to the home to settle violent disputes on five or more prior occasions. Ninety-two percent of domestic abusers had prior histories of arrest. Could someone please tell me how effective a gun ban would be here? Just how could it be enforced?
Another serious fault in this bill, which is lost against the backdrop of domestic violence, is the imperiling of our civil rights. Today, convicted felons are prohibited from firearms possession. Extending this prohibition to misdemeanor offenses sets dangerous precedent indeed.
Lautenberg's amendment would affect people charged with misdemeanors that lead to no jail time, crimes so minor that the individuals are not entitled to a judgement by a jury of their peers. The door would be open to extending firearms prohibitions to other misdemeanors such as traffic violations and check bouncing. The stripping away of civil rights surely warrants a jury judgement. Put another way, once an appeals court discovers that the fundamental civil right of due process was ignored, the Lautenberg amendment would be exposed for the sham that it is.
We should strengthen existing statutes, enforce laws rigorously and sentence violent offenders severely. Only then will we treat domestic violence as the serious crime that it is.
Loucks, of Bastrop, is vice chairman of Peaceable Texans for Firearms Rights. He is a retired Air Force fighter pilot, and was a candidate for the Republican nomination to the Texas House from District 28.
Anti-stalking improved
Austin American-Statesman (TX)
September 12, 1996
https://infoweb.newsbank.com/
The federal anti-stalking legislation sponsored in the Senate by Texas' Kay Bailey Hutchison should shortly be on the lawbooks. It will be a useful addition to the anti-stalking measures previously enacted by the states.
Although the federal legislation enjoyed broad bipartisan support, there was some fear that it would be stalled by an amendment pushed by Sen. Frank Lautenberg, D-N.J. Lautenberg wanted to prohibit anyone convicted of domestic violence from owning or possessing a firearm. Yet there was no corresponding provision in the House-passed measure. Had there been an amendment, a conference committee would have been required.
In the end, the Senate passed the measure without the Lautenberg amendment and the bill, appended to a defense-spending measure, is on the president's desk for signature.
The new law will expand the definition of a stalking victim from ``offender's spouse or intimate partner'' to simply ``victim.'' It also extends interstate protection to a victim's immediate family and allows federal resources to be used in interstate stalking cases.
It could be particularly helpful for victims pursued to Texas by stalkers from other states. The Texas Court of Criminal Appeals on Wednesday ruled the state anti-stalking law unconstitutional on the grounds of vagueness, so the state law will be inoperative until satisfactorily rewritten by the Legislature.
Sen. Hutchison is to be congratulated for getting the legislation through the Senate unencumbered by amendments that could have delayed enaction of this extra protection against stalkers.
Here's a gun ban even NRA may learn to like
Columbian, The (Vancouver, WA)
Author/Byline: THE COLUMBIAN
September 19, 1996
https://infoweb.newsbank.com/
One of the pretty good applause lines in President Clinton's acceptance ramble at the Chicago convention last month was his call to ban sales of guns to those convicted of domestic violence.
Certainly that violates the full spirit and rigid letter of the Second Amendment. As the nation's founders said 200 years ago and the National Rifle Association has repeated endlessly for decades:"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."
As defenders of the Second Amendment will point out at the drop of child-gun-accident statistic, that language allows nothing in the way of waiting periods or registration. It does not say only arms carried by militias in 1789 might be kept but not more modern weapons. Nor does it suggest that Congress may infringe on the gun-bearing rights of wife beaters, child abusers, bed burners and others who resort to criminal violence when family values fail.
All the same, Congress apparently intends to infringe. No sooner had Clinton uttered the line than Bob Dole's advisers were insisting the Republicans had the domestic-violence-gun-ban idea first. Four Democratic senators nudged Dole, asserting that it would take the former majority leader's intervention to get Congress off the dime. Rejoined the Dole advisers forthwith, "Bob Dole believes all guns, not just handguns, should be kept out of the hands of domestic abusers." That's tough talk from a party that has put the right to hunt up on a level with the right to pray in school.
By last Sunday, House Speaker Newt Gingrich was marching along to the same drum. Asked on one of the morning television panels about the issue, he seemed shocked the question had even come up. He said, "I'm very much in favor of stopping people who engage in violence against their spouses from having guns. I think that's a very reasonable position." He predicted that a bill would be passed by both houses of Congress and sent over to the president before they all head home to campaign in a few weeks.
Maybe. Sen. Frank Lautenberg, D-N.J., has been hanging the domestic violence gun ban on passing legislative vehicles for months. It keeps getting knocked off. Bad spouses with guns may have some considerable political clout not yet evident to the people who write speeches for Clinton, Gingrich and Dole.
Davis Blasts Christensen on Gun Bill
Omaha World-Herald (NE)
September 26, 1996
https://infoweb.newsbank.com/
James Martin Davis accused U.S. Rep. Jon Christensen Wednesday of showing more concern for the gun lobby than domestic abuse victims by supporting the "watering down" of a gun bill that has passed the Senate.
A spokesman for Christensen said the compromise gun bill he is supporting would keep guns out of the hands of domestic abusers while curing constitutional problems with the Senate bill.
Davis held a press conference outside the Siena - Francis House shelter to urge Christensen and the House of Representatives to support the Senate bill, which would bar people convicted of domestic violence from possessing guns.
He was joined by representatives of four women's groups who also back the measure, sponsored by Sen. Frank Lautenberg, D - N.J., that passed the Senate earlier this month on a 97 - 2 vote.
Christensen does not support the Lautenberg bill. But he released a statement that he was backing another proposal sponsored by Rep. Bob Barr, R - Ga., that he said would achieve the same goal.
Lautenberg and Davis both said Wednesday that the bill Christensen is supporting is meaningless.
The Barr bill would apply to domestic abusers who are convicted in jury trials or who waive their right to trial.
Davis, a defense attorney, said that in his experience, 80 percent of domestic violence cases in Nebraska are charged as misdemeanors that are not eligible for jury trials.
That would make the gun ban inapplicable to most domestic abusers in Nebraska, he said.
The Barr bill also would require that those accused of domestic violence be informed at arraignment that they risk losing the right to possess guns if convicted.
Davis said the bill, in effect, would create a "new Miranda right" that if not followed properly by law enforcement officials would allow abusers to escape the gun ban.
"Jon Christensen is supporting an empty shell that totally guts the original intent of the domestic violence firearms ban and will allow thousands of violent criminals to escape on technicalities," Davis said.
Lautenberg was also critical of the Barr bill in a Senate speech Wednesday, saying it had loopholes "big enough to drive a truckload of wife beaters through."
He said it appeared to have been written by the National Rifle Association, which opposed the bill that passed the Senate.
Chris Hull, a spokesman in Christensen's Washington office, said the jury trial and notification provisions are important.
By seeking to take away the right to possess firearms for those convicted of domestic abuse, Hull said, the Lautenberg bill is proposing to treat all domestic violence cases as felonies.
The person accused should thus be given the same legal protections as someone now charged with a felony, he said. "This is a serious charge, so they're treating it with the constitutional gravity it merits."
"The Lautenberg amendment was sloppily worded and wouldn't hold up in court," he said. "We are working toward a solution that passes constitutional muster."
CLINTON SIGNS GUN BAN
Charleston Daily Mail (WV)
October 1, 1996
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WASHINGTON - Congressional Republicans agreed to a sweeping domestic violence gun ban pushed by the White House and Senate Democrats. The ban expands the current ban on gun ownership or possession by felons to include virtually anyone convicted of a misdemeanor involving domestic violence.
CONGRESSIONAL NEGOTIATORS REACH PACT ON GUN BAN IN DOMESTIC VIOLENCE CASES
Grand Forks Herald (ND)
October 1, 1996
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Washington -- Under pressure from the White House and Senate Democrats, congressional Republicans agreed to a sweeping domestic violence gun ban, abandoning most of their alternative proposal.
The final language was hammered out over the weekend as part of the huge spending bill before the Senate. It expands the current ban on gun ownership or possession by felons to include virtually anyone convicted of a misdemeanor involving domestic violence.
"This legislation will save the lives of thousands of battered women and abused children," said Sen. Frank Lautenberg, D-N.J., who proposed a similar ban that was endorsed by the Senate 97-2 earlier this month.
Rep. Bob Barr, R-Ga., a former U.S. attorney, proposed an alternative last week that would have extended the gun ban to people convicted of domestic abuse misdemeanors only if physical force was involved, and only if the person was notified of the gun ban when arrested, given the right to counsel and a trial by jury.
Last week, congressional Republicans initially agreed to substitute Barr's alternative for the Lautenberg amendment. That brought protests from Senate Democrats and the White House, since President Clinton initially proposed the gun ban during his train trip to the Democratic Convention in August.
Barr contended Lautenberg's original bill was unconstitutional. States do not uniformly define misdemeanor crimes, he said, so Lautenberg's bill would have violate the equal protection clause of the Constitution.
He also complained that Lautenberg proposal ignored the general law exemption that would have kept the gun ban from applying to police officers and military personnel. The final agreement included Barr's language removing that exemption.
In the agreement reached during the weekend, congressional Republicans dropped Barr's language requiring notification of the gun ban at the time of arrest. They also agreed to modify Barr's language extending the ban only to persons convicted after a jury trial, or after having waived a jury trial.
Democrats claimed that would have exempted most convicted abusers from the ban because few such cases carry punishments severe enough to guarantee the right to a jury trial. The final agreement simply requires that persons charged with domestic abuse, who are entitled to a jury trial, must be given one or must waive that right before they would come under the gun ban if convicted.
ANOTHER OPINION: PROGRESS ON GUN CONTROL
South Bend Tribune (IN)
Author/Byline: From The New York Times
October 2, 1996
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The continuing budget resolution just approved by Congress contains a sensible piece of gun-control legislation aimed at preventing spouse-beaters and child-abusers from purchasing or owning guns. President Clinton and the measure's chief sponsor, Sen. Frank Lautenberg of New Jersey, deserve credit for standing firm against a last-minute Republican effort to weaken this worthy measure.
The bill plugs a big hole in existing gun laws. Although the laws bar convicted felons from possessing or buying guns, they did not successfully block the possession of guns by people convicted of spousal or child abuse, since those acts of domestic violence often are prosecuted as misdemeanors.
Legislation containing the domestic-violence gun ban passed the Senate in July, but was blocked by the Republican House leadership in an apparent cave-in to the National Rifle Association. The Senate approved the measure again in mid-September by an overwhelming vote of 97 to 2.
Gingrich and the Republican congressional leadership then concocted a far weaker version of the bill that would have exempted from the gun ban any abuser convicted in a trial before a judge, as opposed to a jury. That exemption would have allowed the vast majority of spouse-beaters and child-abusers to have guns. Gingrich and his colleagues finally backed down, but only after the White House and Lautenberg made plain they would hold up the budget deal if necessary to pass a strong bill - and would hold those trying to weaken the bill publicly accountable.
Domestic violence law causing some confusion
Post Register (Idaho Falls, ID)
December 6, 1996
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A new law making it a federal offense for anyone who has been convicted of misdemeanor domestic violence to possess a gun or ammunition is raising more questions that it is answering.
The law was put in the books on Sept. 30, but it is just trickling down to the local levels of law enforcement.
The Bonneville County Sheriff's Department received a faxed summary of the law on Nov. 26. Officials are now wondering what the punishment it carries, who will enforce it and how.
There are very few people who know, and those who do know are not in our grasps," said Bonneville County Sheriff's Domestic Violence Investigator Bud Langerak.
One of the agencies that will be enforcing the law is also confused.
At the Bureau of Alcohol, Tobacco and Firearms Bureau in Boise, Resident Agent In Charge Jane Heffner has a stack of telephone messages from people around the state with questions about the new law.
I'm not sure how to address this...we basically haven't received any guidance on this," Heffner said. She has received a letter explaining that she should gather questions about the law, to be answered later.
The implications of the law, especially in a state where hunting is such a wide-spread sport, could be huge, if only state and local law enforcement could figure out what they're supposed to do with the new legislation.
In addition, law enforcement officials with the misdemeanor offense in their backgrounds will be directly effected.
The problem for a law enforcement officer is that it's a career ender," said Monte MacConnell, legal advisor to the Ada County Sheriff who is teaching at a domestic violence conference in Driggs this week.
It will also end gun-carrying capabilities for other government officials with a domestic violence conviction, such as fish and game workers and INEL Site security guards.
The Idaho Falls Police Department has had a copy of the new law for about three weeks and is currently writing it into policy, said Chief Kent Livsey.
If you've been convicted, you can't be a police officer," Livsey said.
He added that the department has been doing criminal background checks on new officers for years." Since Livsey has been the chief, he has ruled any applicant unfit for the force if they have had a domestic violence conviction.
It's just one of those things that is not acceptable," Livsey said.
The chief does not plan to do background checks on the force or in the community, but will work on enforcing the law on anyone convicted from this point forward. He said that when gun sellers call the Department of Law Enforcement for background checks on gun-buyers, they will also receive information of domestic violence convictions.
Nobody knows of anyone who's on (the force) right now who's had that problem," Livsey said.
MacConnell is advising the Ada County Sheriff to do background checks on all the officers and notify those with the convictions to see an attorney. He also told the sheriff to get any deputies with prior domestic violence convictions off the streets immediately to avoid liability.
The law snuck up on people, MacConnell said. The Lautenberg Amendment was tacked onto Congress' lengthy annual appropriations bill and passed without advance warning or publicity.
Meanwhile, at the Department of Justice in Washington D.C., a spokesman says that this law is in full effect.
Congress was very clear, it is a felony to own a firearm if you have a misdemeanor domestic violence conviction," said Gregory King, Department of Justice spokesman.
If there are cases that are brought to our attention, they will be reviewed by the appropriate authorities and we will take the appropriate actions," King said. He declined to be specific about who the appropriate authorities would be.
U.S. Senator Larry Craig voted for this bill and fully supports its message, said Craig spokesman Mike Frandsen.
If you've been convicted of spousal abuse, you're certainly not a person who's demonstrated you're responsible enough to have a gun," Frandsen said.
MacConnell has a word of advice for gun owners who have a prior domestic violence conviction.
I would be looking for someone to hand my guns over to," he said.
DOMESTIC VIOLENCE GUN BAN SETS TASK FOR POLICE
Pittsburgh Post-Gazette (PA)
December 10, 1996
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When Pittsburgh Police Chief Robert W. McNeilly Jr. meets today with the bureau's top brass, one of the most pressing agenda items will be how to determine whether any of the force's 1,150 officers is committing a federal crime.
Under a new federal law, anyone who has been convicted of domestic violence cannot own a weapon or ammunition. The law provides no exemption for local, state and federal law enforcement officers or members of the military, even though carrying a gun is a job requirement for most. Violating the law carries penalties of up to 10 years in prison and a $250,000 fine.
The existence of the new law, tucked away in a federal spending bill that took effect Sept. 30, apparently has caught many law-enforcement agencies unaware. McNeilly, for example, said yesterday that he learned of the law only late last week when he studied a lengthy fax from the Major City Chiefs, an association of heads of the country's 50 largest police departments.
``I really don't know what we're going to do,'' McNeilly said. ``We're talking about 1,150-some people who we have to determine if they've ever been convicted of domestic violence, and if they have, then we have to figure out what procedure to follow, whether we can reassign them to desk duty.''
McNeilly said he's unsure whether any of his officers have been convicted of domestic violence ``but it happens in every profession, so you can assume some police officers have been convicted.''
The bureau, McNeilly said, may decide to follow the Justice Department's lead of having all officers sign a document, under penalty of law, stating they were never convicted of a misdemeanor crime of domestic violence.
Among suburban police departments, where the logistical problems aren't as acute, the law received mixed reviews.
``That's going to be a nightmare,'' said Chief Harry Fruecht of the 19-member Peters Police Department. ``We're as human as everyone else. Officers get involved in domestics, too, and I can't see anyone being prevented from performing their livelihood if they've been involved in domestic violence. I'm sorry.''
As for whether it would make sense to place an officer convicted of domestic violence behind a desk, Fruecht said, ``It would be ridiculous for me to put someone on light duty if they're perfectly able.''
Fruecht said the law hadn't affected any of his officers.
It hasn't affected anyone at the 42-member Mt. Lebanon police department or the Ross force's 36 officers. Their chiefs, Frank Brown of Mt. Lebanon and James O'Donnell of Ross, said they agreed with the law.
``I think it's a good idea,'' Brown said. ``It puts the onus on the individual officers that their career is dependent on their rational handling of domestic problems they may encounter. If they cross the line, the career is done.''
However, he cautioned that despite the best intentions of those who drafted the law, it might lead to a whole new problem. With some wives or partners dependent on a police officer's salary, they might be more reluctant than ever to file charges, Brown said.
TOP MINNEAPOLIS HOMICIDE COP LOSES JOB TO NEW GUN LAW
OFFICER PLEADED GUILTY IN '91 TO 5TH-DEGREE SPOUSAL ABUSE
St. Paul Pioneer Press (MN)
December 14, 1996
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In a year that promises a near-record murder rate in Minneapolis, the police department's top homicide cop is off his job indefinitely.
Lt. Dale Barsness has become a prominent casualty of a new federal law requiring law enforcement officers, among others, to turn in their guns if they have been convicted of using or attempting to use physical force on an intimate partner or family member.
And in a city approaching last year's record 97 homicides, his absence could have a ``devastating effect'' on the 29-person division, said police union president Al Berryman.
Court records show that Barsness, supervisor of a homicide division that's investigating more than 80 killings already this year, pleaded guilty in 1991 to fifth-degree assault involving his then wife. After Brooklyn Center police arrested and removed him from their home on March 1, 1991, he was ordered to receive anger counseling, court documents say. A 30-day workhouse sentence was stayed.
But the harshest sentence may be the one that awaits.
Barsness and four other Minneapolis officers could lose their jobs if internal affairs investigations determine the new law applies to them. That's because Minneapolis officers are required to carry guns and the law doesn't allow domestic abusers that right. Police officials won't release or confirm the names of the five officers, and they say they aren't certain how long their investigations will take. But until completed, the officers have been placed on paid administrative leave.
Barsness and his ex-wife, Vicki Ashby, refused to talk about the 1991 incident, but both complained that the law is unfair.
They say punishment should be applied when the crime occurs, not years after, as this law allows.
``If Minnesota were to pass the death penalty and then go through the prisons and take out people who were convicted of murder and kill them, it wouldn't make sense,'' Barsness said. ``How do you do something retroactively? That's ludicrous.''
Ashby faces the prospect of losing at least part of her spousal support and child support for their three children if Barsness loses his job. ``It's going to hurt me as much as it will him,'' she said. ``I can't see that taking his job away from him at this point is appropriate. I mean, you're taking away his livelihood.
``I understand there's a need for the law, but maybe taking his gun away after work hours would be more appropriate.''
Others share the sentiment.
Rhonda Martinson, an attorney for the Minneapolis chapter of the Battered Women's Justice Project, said abusers who pleaded guilty before the law passed now face consequences that were not in effect at the time of their plea.
``My understanding is these cases are often old, and we have to consider the effect on their families, and we have to consider the wishes of the women involved,'' Martinson said.
Some, such as union president Berryman, say the law is tantamount to double-jeopardy, punishing officers again for crimes for which they were already sentenced.
That's especially true for officers such as Barsness, who stand to lose their jobs, he said.
``If there's somebody fired as a result of it, we'll be in federal court'' seeking a restraining order, Berryman said. He expects Congress to amend the provision during its next session, and others expect courts around the nation may strike it down before then.
But a spokesman for the author of the federal law, Sen. Frank Lautenberg, D-N.J., said the law will survive a legal challenge.
The Lautenberg amendment, as the law is known in Washington, amends the Gun Control Act of 1968, which itself is retroactive. In 1968, Congress made it illegal for felons and others, including fugitives of justice, to purchase or possess guns, even if a person was convicted prior to the law's passage, he said.
``Our view is if you beat your wife or your child, you should never own a gun, no matter when it happened,'' said Ken Jaques, Lautenberg's press secretary. ``You can't buy a gun in this country if you've been convicted of stealing a car. I guess the question we're asking is, `Isn't your beating your wife more serious than stealing a car?' We're saying the answer is `yes.'''
The threat of job loss may be something the victim can hold over the abuserto protect herself, said Yolanda Briseno, a spokeswoman for Women of Nations, a battered women's shelter in St. Paul.
Briseno said police officers whose jobs are in danger this week should not be pitied.
``An abuser is an abuser, whether he is a cop or the president of the United States,'' she said. ``In fact, a police officer has abused his position and power as an authority figure.''
Correction: Tuesday, December 17, 1996 The head of the Minneapolis police homicide squad did not lose his job as stated in a headline in Saturday's editions of the Pioneer Press. Rather, Lt. Dale Barsness has been placed on paid administrative leave pending the outcome of a department investigation to determine if he is in violation of a new federal law. The law states that anyone convicted of using or attempting to use physical force on an intimate partner or family member must turn in his or her guns. Barsness could lose his job if the investigation determines the law applies to him.
Keep Guns From Abusers
Salt Lake Tribune, The (UT)
December 22, 1996
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A convicted abuser of a spouse or of a child should not be allowed to have a gun. That logic makes eminent sense to most people, including almost every U.S. senator -- but not, of course, to the National Rifle Association.
When Congress passed the Treasury-Postal Service appropriations bill Sept. 30, it also ushered into law an amendment to the bill that forbids those who have been convicted of spouse or child abuse, whether a felony or a misdemeanor, from possessing a firearm. The measure aims to widen protection for battered spouses and children, since existing laws bar only felons from gun possession and many domestic-violence incidents are plea-bargained to misdemeanors.
In a Tribune story last Tuesday on how this new provision affects police officers -- and it does -- an NRA spokesman said his organization ``is going to work to reverse this one way or another.'' He also characterized the new gun-control measure as something that ``was just jammed in there.''
If his suggestion is that the amendment somehow slipped past the lawmakers' radar screen, then he is spouting NRA nonsense. The amendment, sponsored by New Jersey Sen. Frank Lautenberg, passed the Senate on Sept. 12 by a vote of 97-2. Every Republican senator, including Utah's Orrin Hatch and Bob Bennett, supported it.
The amendment also received considerable attention in the later countdown toward the vote on the appropriations bill, when pro-gun forces tried to water it down by applying it only to abusers who were convicted by a jury or who had waived their rights to a jury trial, thereby exempting the many who were convicted by a judge. This publicized attempt was beaten back. In any event, the Lautenberg amendment was hardly a last-minute stealth measure.
This is a justifiable law with wide support, and it is appropriate that it applies to police officers as well. The NRA only shoots itself in the foot by working to reverse a law like this.
RIGHT TO BEAR ARMS IS DIMINISHED BY NEW LAW
Pittsburgh Post-Gazette (PA)
December 24, 1996
https://infoweb.newsbank.com/
The new federal law banning the ownership of a gun or even ammunition by people convicted of the misdemeanor of domestic violence (``Domestic Violence Gun Ban Sets Task for Police,'' Dec. 10) is insane.
This is a minor crime, which does not involve the use of a gun at all. Yet this new law punishes a person for life. This is not fair.
I am not for domestic violence. It is wrong for a man or a woman to intentionally injure each other, their children, or any other person living with them. And there are fines and jail sentences which can be handed out for this crime.
But to ban ownership of a gun for life because a person lost his or her temper during a domestic situation - with up to $250,000 in fines and 10 years in prison - is tyranny, cruel and unusual punishment and a denial of the constitutional right to bear arms. This is just an excuse to confiscate property and to take guns away from mostly law-abiding citizens, who threaten no one.
What will be the next excuse to take guns away from people: running a red light, arguing with an officer, spanking your kid, speaking your mind?
An armed population is a deterrent to crime, and a right.
Gun law backfires on some
Officials wrangle over responsibility
Houston Chronicle (TX)
December 28, 1996
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WASHINGTON - When a proposal to bar persons with domestic violence convictions from possessing firearms was endorsed by President Clinton and adopted by the Senate 97-2, the question of how the measure might affect police officers and other government employees never came up.
The amendment by Sen. Frank Lautenberg, D-N.J., simply added a domestic violence misdemeanor to the list of conditions that prevent someone from lawfully possessing a firearm. Others already in the law include conviction for a crime carrying a prison sentence of more than a year, being an illegal immigrant and having a dishonorable discharge from the armed forces.
All of these prohibitions, and the domestic violence provision as it was originally proposed, were covered by a blanket exception for government employees at all levels who use firearms in their official duties.
Just days before Congress was to recess, the gun control measure was added to a key appropriations bill that had to be enacted to prevent a government shutdown. Rep. Robert Barr Jr., R-Ga., a prominent opponent of gun control measures, led a last-ditch effort to modify the Lautenberg amendment in ways that would have greatly weakened it, Lautenberg said. One proposal, for example, dropped language specifically covering child abusers.
Most of Barr's efforts were thwarted, but in the hours just before the big appropriations bill was finally passed he and his allies did work some changes - including the one that removed the official-use exception on this one aspect of the gun control law.
Barr now says he cannot recall who proposed lifting the exception.
"In those final hours, people were feeding us various changes, and I can't remember where that one came from except that it didn't seem to make sense to have a sweeping exception for all these government personnel if this thing was so important," he said.
A leading Democratic strategist said, "they were threatening to hold up the whole show on this and we had to swallow it or risk seeing the whole appropriation's bill crash. Now, it looks like it was intended to undermine the bill all along."
The Clinton administration insists that Barr must now fix the problem.
"We are enforcing the law as it is written," said Rahm Emanuel, senior adviser to the president. "The provision affecting the official use exception was not in the original Lautenberg legislation, which we endorsed."
Barr said that the only way to fix the law is to make it apply just to future offenses, so that anyone, government official or not, who had committed a domestic violence crime in the past could legally possess a firearm. That proposal was fought and defeated by proponents of the legislation when Barr offered it last September, and they have vowed to fight it again when the new Congress is assembled in January.
1997: Lautenberg DV Gun Ban - News Articles And Reports
Stupak Bill: Exempt Government Entities From Lautenberg Amendment Firearms Prohibitions
US Representative Bart Stupak
BILL H.R.445 - 105th Congress
January 09, 1997
Flaws in the Lautenberg gun bill
Washington Times, The (DC)
Commentary
Author: JOHN D. MUHLENBERG - Vienna, Va.
January 26, 1997
https://infoweb.newsbank.com/
Recently, James Bovard commented in your newspaper in his column about the so-called Lautenberg Amendment, which was introduced by Sen. Frank Lautenberg, a notorious opponent of the right to bear arms by the law-abiding citizens, as a rider on a much needed appropriations bill last fall. The rider unfortunately became law with the adoption of the appropriations bill.
Considerable consternation seems to have resulted from the bill but perhaps not for the right reasons. It seems, among other things, that should indeed not be disregarded, that the bill might require certain police officers who have been convicted of misdemeanors to surrender their weapons.
But this is not the total response which should result from the enactment of this bill. This new "law" is blatantly unconstitutional, and it is difficult to understand how, with a president who ostensibly is a constitutional lawyer, such an enactment should have been allowed to become law.
The law is plainly a bill of attainder, or an ex post facto law, or worse, both of them, both explicitly forbidden by the Constitution. Article I, Section 9, Clause 3 plainly states: "No Bill of Attainder or ex post facto Law shall be passed." Black's Law Dictionary defines bills of attainder as "legislative acts, no matter what their form, that apply to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial." While strictly "an act is a `bill of attainder' when the punishment is death and is [simply] a `bill of pains and penalties' when the punishment is less severe, both kinds of punishment fall within the scope of the constitutional prohibition."
An ex post facto law is similarly defined as "a law passed after the occurrence of a fact or commission of an act which retrospectively changes the legal consequences or relations of such fact or deed... an ex post facto law is defined as a law which...inflicts a greater punishment than the law annexed to the crime when it was committed; ...a law which, assuming to regulate civil rights and remedies only, in effect imposes a penalty or the deprivation of a right which, when done [cf. possessio n of a gun], was lawful; ...every law which, in relation to the offense or its consequences, alters the situation of a person to his disadvantage." These last definitions are particularly telling.
No man can reasonably argue here that there is no legislative punishment here (bill of attainder) nor that the new law does not retroactively punish someone for deeds previously committed (ex post facto law). If Proposition 209 of California can be put on hold by some low-level federal judge because it may be unconstitutional in his opinion, where is the federal judge who will put this atrocity on hold for the same reason until the Supreme Court can rule on it?
In view of these legal considerations, how can any lawyer stand by, including the president, and not be up in arms about the egregious breach of the Constitution and the egregious disregard for the rights of citizens incorporated directly into the Constitution? Are they all ignorant of the Constitution and its meaning? Where are the cries of protest from the legal profession? Where is the ACLU?
The enactment of this law is an outrageous breach of the Constitution and should immediately be voided by the Supreme Court, if not put on hold by some lesser judge. Whether the Supreme Court will have the judicial fortitude to do so is another question. Failure to do so will further enhance the contempt with which the Supreme Court is presently held among laymen.
Sed quis custodiet ipsos custodes? Who is watching the guardians?
THE LAUTENBERG DOMESTIC CONFISCATION LAW - FACT SHEET
Gun Owners of America
February 01, 1997
WHAT DOES THE LAUTENBERG LAW DO?
The Lautenberg Domestic Confiscation provision was signed into law on September 30, 1996, as section 658 of the Treasury-Postal portion of the omnibus appropriations bill. It adds to the list of “prohibited persons” persons convicted of a “… misdemeanor involving domestic violence.”
WHAT DOES IT MEAN TO BE A “PROHIBITED PERSON”?
If you become a prohibited person, you can never again own or acquire a firearm of any type. The only exception is if you are subsequently pardoned or otherwise have your criminal record expunged.
WHAT IS A MISDEMEANOR?
A misdemeanor is a crime carrying a potential penalty of as little as one day in jail, irrespective of whether the person serves actual jail time. In other words, the law imposes a lifetime gun ban on offenses which, in many cases, are very minor in nature.
WHAT TYPE OF MISDEMEANOR CONVICTION WOULD CAUSE ME TO BECOME A “PROHIBITED PERSON”?
The Lautenberg language defines “misdemeanor crime of domestic violence” to include a misdemeanor that involves “the use or attempted use of physical force” against a family member. Hence, any actual or attempted violence against a spouse or son or daughter would certainly, if prosecuted successfully as a misdemeanor, subject you to a lifetime gun ban. In many jurisdictions, spanking your kids could result in a conviction which would prohibit you from ever again owning a firearm.
WOULD THE MISDEMEANOR HAVE TO INVOLVE VIOLENCE OR ATTEMPTED VIOLENCE?
No. We have seen that a misdemeanor involving violence (however slight) or attempted violence against a spouse, son, or daughter would certainly be covered. But the definition of “misdemeanor crime of domestic violence” goes on to include “the threatened use of a deadly weapon.” Thus, a threat against a family member would also subject the offender to a lifetime gun ban, even if the threat were joking or the person making the threat did not have the wherewithal to carry it out.
DOES THE NEW LAW APPLY TO PAST CRIMES?
Yes. A misdemeanor committed fifty years ago would still subject an individual to a lifetime gun ban, even if he or she has lived a happily married life with the “victim” during the intervening period.
HOW LONG DOES A “PROHIBITED PERSON” HAVE TO TURN IN ALL HIS OR HER FIREARMS?
The law provides for no grace period. Technically, any newly created “prohibited person” is currently in danger of a felony conviction.
WHAT DOES THIS MEAN?
It means that, if you are a “prohibited person” and you are convicted of possessing a firearm, you will be guilty of a felony which could subject you to a $250,000 fine and a ten year prison sentence.
WHAT ABOUT POLICEMEN AND SOLDIERS?
There is no exemption for law enforcement officials or members of the armed services. These persons, if they have been convicted of even minor misdemeanors against their spouses, will have to be disarmed and fired.
WHAT ABOUT BATTERED WOMEN WHO DEFENDED THEMSELVES?
There is no exemption for battered women who received minor misdemeanor convictions after they used force to defend themselves against their battering spouses. There are many battered women who fall into this category. They will now be unable to use firearms to protect themselves against their abusive and threatening husbands, even if they feel that their lives are endangered.
WHAT ARE THE LONG-TERM IMPLICATIONS OF THE LAW?
Because the law now imposes lifetime gun bans on persons who, in some cases, have engaged in no actual violence or attempted violence, it will only be a matter of time before anti-gun activists try to impose lifetime guns bans in non-domestic situations of minor misdemeanors involving violence (such as fist fights). Ultimately, an effort to impose a lifetime gun ban on all persons convicted of misdemeanors will be made.
REVIEW OF GUN LAW, AMENDING IT SOUGHT
BAN'S RETROACTIVITY IS BEING CHALLENGED
Richmond Times-Dispatch (VA)
February 9, 1997
https://infoweb.newsbank.com/
The National Fraternal Order of Police has filed suit in Washington in an effort to halt enforcement of the federal domestic violence gun ban until it can be constitutionally reviewed.
The injunction, filed Jan. 21 in U.S. District Court, challenges the law's retroactivity as unconstitutional. Although the law took effect Sept. 28, it affects anyone who was convicted years earlier of a misdemeanor domestic violence offense.
In addition, the national FOP is backing legislation introduced Jan. 8 by Rep. Robert L. Barr, R-Ga., a prominent opponent of gun control measures, to amend the law by eliminating the retroactivity clause. Barr was among the lawmakers who worked last year to modify the bill, which was introduced by U.S. Sen. Frank R. Lautenberg, D-N.J., and endorsed by President Clinton.
In past gun control measures, lawmakers included an exception for government personnel and law enforcement officials who need to carry guns to fulfill the requirements of their job.
However, Barr and his allies worked some changes into the law, including one that removed the official-use exemption for government personnel and law enforcement officers convicted of misdemeanor domestic violence.
Barr now believes the only way to fix the law is to make it apply to future offenses, so that anyone, including police officers, who has been convicted in the past of a domestic violence crime could legally possess a firearm.
Jim Pasco, executive director of the National Fraternal Order of Police, said his organization opposes the law because the retroactivity clause is in "all probability unconstitutional" and because "it constitutes an enforcement nightmare."
"We are very, very strong proponents of strong laws to combat domestic violence," Pasco said. "We just don't feel like this one does the job. In fact to the contrary, we feel that it may set the cause back significantly."
Pasco said because a range of misdemeanor offenses might be connected to domestic violence, it could be difficult to determine which ones may cause the federal law to be applied.
For example, in some states, a misdemeanor domestic violence offense could include breach of peace, trespassing, unlawful touching or simple assault.
"How do you know when you're looking at a person's rap sheet (whether a conviction) on its face was a violation of this domestic violence gun ban?" he said. "I mean it's just a law enforcement absurdity."
Congressman defends police who might lose their jobs without their guns
Ludington Daily News
March 03, 1997
Rep. Bart Stupak wants to exempt police officers from a law that forbids anyone convicted of abusing their spouses or children from carrying a firearm.
But the legislation he introduced to protect the jobs of police, along with military personnel, has advocates against domestic violence up in arms.
Last week, the anti-domestic violence community stepped up its campaign against Stupak's bill.
"Law enforcement needs all the support they can get," said Denise Brown, the sister of O.J. Simpson's slain ex-wife, Nicole Simpson.
"But what some police unions are asking for are special exemptions, that if they have a record of domestic violence in their past they should be allowed to carry and own firearms, that somehow their domestic violence is OK. Well it's not OK - for anyone."
"It is not unreasonable to expect that law enforcement officers should obey the laws they are charged with enforcing - all the laws, all the time," said Donna F. Edwards, executive director of the National Network to End Domestic Violence.
At least 200 officers nationwide, including a handful in Detroit, are affected by the law, said Beth Weaver, spokeswoman for the National Association of Police Organizations.
"We don't condone domestic violence; it's an aweful crime," Weaver said. "But this new law unfairly targets our members for losing their jobs. Our members are the only workers in the country who have to possess firearms in order to do their jobs."
Stupak, an ex-cop, D-Menominee, says the law should not be retroactive to include past crimes, and should not include people who need guns for their jobs.
"In one case in my district, the incident was 15 years ago before he was ever a police officer and now they might take his job away," Stupak told The Detroit News.
"If you work for a small department in nothern Michigan, you can't just work the desk or go work in records, because we don't have a records department. You're the chief and the patrol officer and the secretary and the janitor all in one. If you can't carry a gun, you can't work there."
Stupak says he does not object to recreational guns being taken away from police officers who are domestic abusers.
But he thinks law enforcement supervisors are in the best position to decide if certain officers should leave their service weapons at the station when they go home.
Sen. Frank Lautenberg, D-N.J., who sponsored the law, said exemptions could lead to the deaths of innocent women and children.
Gun Law Splits Women, Cops
NY Daily News
March 06, 1997
Police groups and advocates for battered women clashed yesterday over whether Congress should soften a new federal law that bars anyone with a domestic violence record from having a gun.
Police officers around the country have faced the loss of their guns, and possibly their careers, since the law pushed by Sen. Frank Lautenberg (D-N/J.) was signed last year. The New York Police Department has been examining at least 125 cops who may be ineligible to carry guns because of past domestic-violence misdemeanors.
"To my knowledge, there is no other class of American citizen that is facing the loss of his or her livelihood because of this new law," Bernard Teoorski of the Fraternal Order of Police told a House crime subcommittee hearing. "Police officers are."
* But Rita Smith of the National Coalition Against Domestic Violence said, "We believe that anyone who has been convicted of domestic violence should not be allowed to have a gun."* She said it is already "almost impossible" to win convictions of police officers in domestic violence cases. "The police and the courts tend to give these men the benefit of the doubt, even when that means their partners, wives and children remain terrified and terrorized."* The Fraternal Order of Police backs bills by Rep. Bob Barr (R-Ga) and Sen. Paul Wellstone (D-Minn.) that would apply the gun-possession ban only to those convicted of domestic violence since the law took effect last September. Teodorski said good cops who "may have made an error in judgment" in the past "should not lose their job".* The National Association of Police Organizations supports a rival bill by Rep. Bart Stupak (D-Mich) that would flatly exempt law enforcement officers from the law. Rep. Charles Schumer of Brooklyn, the ranking democrat on the crime subcommittee, said he hoped "for some kind of possible compromise".
165 DENIED GUNS BY ABUSE LAW, VIRGINIAN SAYS
Richmond Times-Dispatch (VA)
March 6, 1997
https://infoweb.newsbank.com/
Federal and state authorities said yesterday that the new domestic violence gun ban is difficult to enforce, but a Virginia police official said that his state's criminal record check has kept 165 spouse and child abusers from buying guns in two months.
A House subcommittee heard from a variety of opponents and advocates about legislation by Rep. Bob Barr, R-Ga., and others to change the law, which prohibits anyone convicted of misdemeanor spouse or child abuse from possessing a gun. It has long been illegal for a felon to have a gun.
Claiming the law unconstitutionally applies to people convicted before it took effect at the end of September, Barr has introduced a bill that would bar gun ownership only by those convicted since then.
Officials from the FBI, state police forces and a national group that studies the availability and use of criminal justice information testified that national and most state crime databases will need expensive modifications to enable police to identify people convicted of misdemeanor domestic violence offenses.
Capt. R. Lewis Vass of the Virginia State Police said the state's computerized records system "has slowed considerably" since the gun ban took effect. One problem is that Virginia courts keep misdemeanor records for only 10 years.
Still, he said, Virginia's computerized check of more than 1,200 criminal histories has resulted in 165 denials of gun purchases.
Several police groups, including the Fraternal Order of Police, voiced support for Barr's bill because they believe police have been unfairly targeted by the new law. A number of officers have been relieved of duty because they have past misdemeanor convictions.
But Ron Hampton, a former Washington police officer who heads the National Black Police Association, said he does not favor any changes in the law to benefit police.
"Police ought to be the standard," Hampton said.
Turnabout: Why penalize people a second time?
Lewiston Tribune (ID)
Section: Opinion
Author/Byline: Helen Chenoweth - Republican Chenoweth represents Idaho's 1st District in
March 20, 1997
https://infoweb.newsbank.com/
The writer responds to a March 14 editorial criticizing her effort to repeal legislation prohibiting gun ownership by people convicted of spouse or child battering.
Imagine that 10 years ago you committed a stupid crime. Let's say drunk driving. You were arrested, pleaded guilty and served whatever penalty was appropriate at the time. Since then, you have behaved responsibly and gone about your life.
But let's also say that drunk driving remains a serious problem for the nation, and that some well-meaning federal lawmakers decide that the penalties for drunk driving are not serious enough. So they pass a law which says that anyone who has ever been convicted of drunk driving must give up his driver's license. Suddenly, you and thousands of Americans who already faced justice for a past misdemeanor -- and who have behaved responsibly since -- must pay a new and significant penalty.
Would that be fair?
Most people would think such action goes too far. However, I raise this question because something very similar has happened to another class of people.
Last fall, during a last minute maneuver with a congressional spending bill, Sen. Frank Lautenberg of New Jersey inserted an amendment that bans gun ownership by any person ever convicted of a misdemeanor crime of domestic violence. Many congressmen did not know the Lautenberg amendment was there when they voted on the spending bill. The amendment was never subjected to a full debate in the House of Representatives.
The Lautenberg amendment had the commendable goal of trying to disarm abusive people before they kill someone. But the amendment also has the effect of penalizing many law-abiding Americans who have already faced justice.
Ironically, the amendment even has the effect of disarming many women (whom I assume Sen. Lautenberg was trying to protect). Many police departments require officers to charge both parties in a domestic dispute, even if there is no sign of violence and neither party wants to press charges. Many of these cases are uncontested, with both parties paying a simple misdemeanor fine in order to put the incident behind them.
There are other problems with the Lautenberg amendment. It runs roughshod over the rights of individual states and judicial discretion in assessing the appropriate penalties on a case-by-case basis. It constitutes an unfunded federal mandate by passing the enormous cost of enforcing this provision along to the states. And it's virtually impossible to monitor and enforce.
In addition, the amendment was a sneaky way to pass a gun-control bill. It was inserted at the last minute into a 2,000-page appropriations bill that I doubt any congressmen fully read before voting.
For these reasons, I have introduced a bill with 11 other congressmen to repeal the Lautenberg amendment. My bill is supported by not only by the National Rifle Association, but also by police and sheriffs' and women's groups such as the Independent Women's Forum and Concerned Women of America.
Domestic violence is a serious issue in America today. I believe very strongly that punishment should match the crime. Crimes that are felonies should be punished as felonies. And felons are already prohibited from owning guns. Misdemeanors should be punished as misdemeanors. If states or judges want to attach additional penalties to these crimes, they should do so. But deciding at the federal level to establish new punishments for misdemeanors after the fact is just plain wrong.
Some people will defend the Lautenberg amendment by saying an effort such as mine would put guns into the hands of wife beaters and child abusers. That's about as accurate as saying car makers are putting automobiles into the hands of drunk drivers. If we can think beyond the soundbite, reasonable people will agree that the Lautenberg amendment is bad law. And bad laws should be repealed.
LAW ENFORCERS STRUGGLE WITH GUN LAW IMPLICATIONS
WOMEN'S GROUPS PUSHED FOR EXPANSION OF PROHIBITION
Richmond Times-Dispatch (VA)
April 6, 1997
https://infoweb.newsbank.com/
Some gun enthusiasts long have prophesied about a day when the federal government orders citizens to turn in their guns.
Now there is a group of thousands of Americans for whom that prediction has turned into reality.
"They should immediately but lawfully dispose of their firearms to a third party, such as their attorney, their local police agency or a federal firearms dealer," said Peter L. Gagliardi, deputy associate director for enforcement at the Bureau of Alcohol, Tobacco and Firearms.
Exactly who Gagliardi is talking about is a question confusing law enforcement agencies and sparking quarrels among normally chummy police and women's groups. But at the very least, thousands of people -- including hundreds of police officers and soldiers -- lost their right to possess a firearm last fall.
In September Congress passed legislation stripping gun rights from anyone convicted of a domestic violence misdemeanor.
"The (National Rifle Association) is always called paranoid," said Tanya Metaksa, the NRA's chief lobbyist. "(But) we're seeing more and more classes of people being slid under the '68 Gun Control Act as prohibited" from owning a gun.
On his train trip to last year's Democratic National Convention, President Clinton proposed prohibiting anyone ever convicted of a domestic violence misdemeanor from buying or possessing a firearm. Wife beaters and child abusers shouldn't have guns, Clinton said. Congress passed the legislation within weeks.
Felons have been barred from owning guns since 1968. A misdemeanor, however, is a less serious offense that can range from "soaping" a window at Halloween to urinating in public to hitting somebody. The new law includes only misdemeanor convictions that involve domestic violence.
Clinton, supported by women's groups, extended the gun prohibition to these lesser offenses, citing the repetitive and escalating nature of domestic violence. Before public attention focused on domestic violence, police officers called to a home -- say, the Jones' house -- would discover that Mr. Jones had just hit his wife and simply would tell him to walk around the block, said Ronald E. Hampton, executive director of the National Black Police Association.
"Eventually, we took Mrs. Jones out in a body bag," Hampton said.
Almost immediately after Clinton signed the new gun ban into law, questions arose about its fairness and enforceability.
A husband or wife in the midst of a bitter divorce 10 years ago could grab their spouse's wrist and wind up guilty of a misdemeanor that, only now, deprives him or her of the right to own a gun, law enforcement officials said. While there is no national tabulation of domestic violence misdemeanors, one indicator is the number of police officers affected by the new law. Law enforcement officers prohibited from possessing a gun could be suspended from duty.
Bernard H. Teodorski, national vice president of the Fraternal Order of Police, told a congressional committee last month that the group still was researching how many officers had been convicted of domestic violence misdemeanors.
This consequence of the law has created tension between police groups who don't want to destroy officers' careers, and women's advocacy organizations whose "No Guns for Wife Beaters" slogan signifies their refusal to allow exceptions to the law.domestic violence cases down to a misdemeanor charge. True domestic violence should be prosecuted as a felony, which would bring a tougher penalty and prohibit the abuser from owning a gun, said Metaksa, of the NRA.
"You also have problems with how records are kept," said Special Agent John Limbach, an ATF spokesman.
Until the past few years, criminal records usually didn't distinguish between misdemeanor convictions for striking a spouse and hitting a neighbor with a snowball.
"We don't know if (the convictions) are domestic violence assaults," said Alan L. Wallis, chief of police in Renton, Wash., after appearing at a Handgun Control event.
Even current records are not uniform among different counties or states, ATF officials said. The new law requires police to determine if the domestic violence offender received a jury trial and was represented by a lawyer. That means police likely would have to search records at the courthouse where the trial took place. Officials at the California-based National Consortium for Justice Information and Statistics said they could not predict the time or cost of developing the capability to quickly and reliably identify people who the domestic violence gun ban affects.
The complexity of the law "suggests that several years and hundreds of millions of dollars will be required in order to build this capability," said Gerry Wethington, information systems director for the Missouri Highway Patrol and a representative of the justice information consortium.
The House subcommittee on crime is considering several changes to make the new law easier to enforce and less likely to ruin police officers' careers without undermining the law's mission of trying to prevent domestic violence.
HAIR-TRIGGER RATIONALE
Daily News of Los Angeles (CA)
Author/Byline: Fred Romero
April 13, 1997
https://infoweb.newsbank.com/
An obscure gun-control measure sailed through Congress late last year, taking guns away from men and women with any domestic violence record. When it was applied to police and military, however, the supporters started making exceptions that undermine a law that sounded better than it is.
IT has long been held that if you allow personal bias to turn a debate away from the facts, good intentions run the risk of getting caught on the slippery slope of unsupported argument. And when the topic under discussion is a hot-button issue like gun control, the downhill slide can reach avalanche proportions.
Turn the heat up a little more with colorful catch phrases such as ``assault weapon,'' ``plastic gun,'' ``cop-killer bullet'' and ``Saturday night special,'' not to mention the wrenching figures offered - albeit somewhat selectively - for the number of people killed and wounded every year by guns, and you have the makings of a media dream - a story that grows more interesting each week and holds the attention of a large segment of the population.
The influence of provocative, if not somewhat misleading adjectives aside, gun control is also a big vote-getter for many politicians who want to be identified with an issue that has legs, and increasingly we are seeing more examples of creative gun-control legislation introduced at all levels of government.
Some of these laws are directed at identifying people who should not own a gun, based on some disqualifying criminal violation or past misconduct.
Realistically, an argument can be made that people at the lower end of the social scale are sometimes affected more by these laws than are people in the middle- and upper-income brackets, but this fact is usually lost in the rhetoric that always seems to precede every new law.
What is also overlooked by the pundits is that conventional wisdom, as well as history, shows that gun-control efforts based on emotion are nothing more than a Band-Aid cure for a much bigger problem, which, in the long run, doesn't change a thing except to more narrowly define the rights of law-abiding citizens.
After a law is passed, the bad guys thumb their noses at our feeble attempts to control their actions (that's why they're called bad guys), and they set about finding other ways to get the guns they need to continue committing their ugly crimes. Yet the laws keep coming in the hope that some good will be realized.
Take a look at a recently approved federal gun law (tagged onto a congressional spending bill), which, ostensibly, was meant to keep guns out of the hands of mean people.
While you were busy trying to make a living, run a house and pay your bills before the second ``payment-due'' notice came in the mail, a formidable sounding law, called the Lautenberg Amendment to The Omnibus Consolidated Appropriations Act of 1997, was written and submitted to Congress this past autumn, with the intent of curbing domestic violence.
Although the law was never publicly campaigned to the same degree as most gun-control proposals usually are, it was supported by people who felt they were doing the right thing, and it was easily passed in a flurry of year-end legislation.
Who among us would argue that far too many women and children are the victims of brutish men who vent their anger is very inappropriate ways? Certainly not your local police and definitely not your man or woman in Washington.
And as long as we are passing a law to take away guns from men who beat their spouses in between swigs of beer while watching TV, we might as well add a clause to the law that says it is completely retroactive: No matter how far back the offense occurred (and regardless of the circumstances surrounding any plea bargain or uncontested charge), if you have ever been convicted of an act of domestic violence, then you, Sir or Madam, will lose your right to own, ship, transport or possess a gun or ammunition ever again.
No questions, challenges or protests allowed.
Lesser offenses
Much of the media supported the law, and they told us we should feel safer because fewer bad people would have a legal right to own a gun and the police would have another tool to fight crime with. They also applauded our duly-elected representatives for standing up to the gun lobby and for ``sending a message'' to gun owners in general and the NRA specifically: If you beat your wife, you can't own a gun.
Comes now the rest of the story.
Much to the dismay of tens of thousands of people who were affected by the new law, the wording makes no distinction between those who were convicted of wife beating vs. a lesser offense.
A person who is or was convicted of having a minor but reported tussle with their spouse or live-in lover, is just as culpable under the new law as a person who is charged and convicted of kicking their spouse in the head in a major domestic fight.
Under the new law, all that is required for someone to lose their Second Amendment rights is a guilty verdict for simple assault or assault and battery, provided the victim fits the general category for domestic violence, whether or not state statute or local ordinances specifically define the offense as a domestic violence misdemeanor.
Not surprisingly, anti-gun advocates everywhere cheered the law, and they were ecstatic at seeing an additional number of people included on the list of those who can't own or possess a firearm.
As the old saying goes, if you want to win a war, you must do so by whatever means necessary and, in this case, supporters of gun control had a big sword to swing.
What no one counted on, however, was that the sword cuts both ways.
Even the police
Right after the law was passed, countless police agencies across the country set about going through their files to see who had been naughty or nice, and a lot of otherwise good citizens got the shock of their lives when they received a formal notice in the mail informing them that they had to turn in their guns.
On the face of it the new law was working as designed, but soon embarrassed police found out it may be working too good.
At the federal level, the BATF (Bureau of Alcohol, Tobacco and Firearms), much to its bureaucratic credit, saw the law from an entirely different angle, and what it came up with chilled the blood of even cops who support gun control.
Through an inadvertent oversight in the new law, active police officers who also had a record of misdemeanor domestic violence were found to be just as much at risk of losing their guns as any other malfeasant citizen, even if the police officers in question needed their firearm(s) to perform their sworn duty.
A more in-depth study revealed that even members of the military who had a conviction for domestic violence technically fell under the same rule of law, and the legal right and duty of these men (and women) to carry a gun could be in doubt.
By now the picture was starting to come into focus all too clearly. For reasons known only to those who seek to disarm society, the law - which looked so good on paper - came back to haunt gun-control advocates who thought they were doing the right thing.
The initial reaction to this statutorial oversight by our duly-elected legislators was predictable. Under intense and immediate pressure from numerous law enforcement administrators and police unions, they set about to put together emergency legislation to clean up the law so as not to unnecessarily restrict police and other armed professionals from doing their jobs.
But the rules of the game were now compromised; how could the law apply to one segment of society and not another?
Any argument proposed in favor of exempting police officers convicted of domestic violence had the effect of looking like a double standard if the exemption didn't also apply to the average citizens.
`A double standard'
Conversely, if a citizen with a history of domestic violence cannot legally own or possess a gun, why should a cop be any different? Or, for that matter, why should a soldier in the military not be held to the same level of accountability as everyone else covered by the law?
Tough questions, to be sure, but questions which were needlessly brought about by a small, highly vocal group of people intent on pushing for increased restrictions on the rights of otherwise law-abiding citizens, whose only measurable crime was to have the misfortune of having been involved in a reported family dispute that got carried away. Remember, we're talking about misdemeanor offenses here, not the myriad felony crimes already covered by appropriate gun-control laws nationwide.
Even as you read this, the wheels of politics are turning, and it isn't pretty. One of the largest police unions in the country, the Fraternal Order of Police (FOP), has taken the lead in trying to undo the damage the new law poses to hard-working cops.
The FOP isn't saying that the law is unfair to all citizens, just cops who need their guns to perform their jobs. They also argue, that without the exemption, many law enforcement officers would be in jeopardy of losing their jobs if they aren't allowed to legally carry a gun. Lord knows, the FOP is trying to do right by the professional men and women it represents, but taking the position that cops should be exempt from the law makes no sense at all and, in fact, runs the risk of sounding elitist.
Forgive the past
A better idea would be to admit the law is wrong and unfair to everyone, not just cops, then change it so it applies only to the most severe cases of domestic violence. At the very least, the law should not be retroactive and unfairly punish people who have maintained a clean record for a reasonable amount of time.
Admittedly, there are many special interests involved in this fight: the military, federal, state and local law enforcement; anti-gun extremists; and victims of domestic violence.
Every one has a solid reason for its opinion, and every one thinks its cause is more noble than the others, but no one has yet been heard to express concern over the right of the individual citizen gun owner caught in the middle of what has become a high-stakes power game.
And why should they? For many folks, standing up for the Second Amendment doesn't rate quite as high as saving a whale or, perhaps, getting gross polluters off the highway.
Facts, logic and reason notwithstanding, we are at a curious crossroads in American history; we can either choose to maintain the principles of freedom, established many years ago by the Founding Fathers, or we can opt for the quick fix by continually trading away our liberty, bit by bit, for the promise of security.
Domestic violence gun ban stuck in committee
Tampa Bay Times (FL)
April 23, 1997
https://infoweb.newsbank.com/
Leaders in the fight against domestic violence want to take guns from people who have been ordered to stay away from their families - but they can't get legislation out of committee.
A state police union, meanwhile, is fighting a federal law that bans gun possession by anyone, including a law enforcement officer, who has been convicted in domestic violence cases.
Robin Hassler, who leads the Governor's Task Force on Domestic and Sexual Violence, said Tuesday that the effort to ban gun possession by people ordered to stay away from their homes ""one of the most important victim safety bills . . . before the Legislature this session.''
The measure hasn't gone far in the Legislature this session, which has less than two weeks to go.
Sen. Al Gutman, chairman of the Senate Criminal Justice Committee, where the bill has languished without a hearing, said the measure would allow some people to get injunctions by falsely accusing others.
""I don't think it's really all that well thought-out,'' said Gutman, R-Miami.
Sixty-five percent of the people killed in domestic violence are shot, according to the Florida Department of Law Enforcement.
People who have been arrested or convicted of domestic violence can't buy guns in Florida because their names will come up during the background check.
Federal law already makes it a crime for people who are the subject of injunctions to have guns unless they are on-duty police officers. But there aren't enough federal agents in Florida to investigate violations, said Sgt. Rod Reder of the Hillsborough County Sheriff's Office.
Lives would be saved if state law was expanded to mirror federal law with a ban on guns for people named in injunctions, said Reder, who oversees domestic violence cases in his office.
""It doesn't mean you're going to lower your (domestic homicide) rate by 65 percent, but you're going to lower it some,'' he said.
The House Crime and Punishment Committee unanimously approved the legislation two weeks ago. But the measure has not moved out of its next committee, Law Enforcement.
Gov. Lawton Chiles supports the bill and urged lawmakers to act.
""With 10 days left, the Legislature still has time to protect domestic violence victims and their children,'' he said in a statement.
Meanwhile, another dispute in the fight against domestic violence may play out in court.
The Police Benevolent Association of Florida has filed a lawsuit in federal court in Tallahassee, asking that a new provision of the federal gun law be declared unconstitutional.
Since October, federal law has outlawed gun possession for anyone with a misdemeanor criminal record of domestic abuse - including law enforcement officers.
""It's one thing to tell a citizen they can't carry a weapon,'' PBA lawyer Hal Johnson said. ""It's another thing to tell an officer, "You can't carry a weapon, and, oh by the way, you've lost your job.' ''
Florida has some 40,000 law enforcement officers and about 30,000 prison guards and probation and parole officers. Johnson said the FDLE estimated about 1,000 officers could be affected, but the law agency said it did not know where that figure originated.
Senate discusses domestic violence gun ban - no vote
Florida Times-Union, The (Jacksonville, FL)
April 25, 1997
https://infoweb.newsbank.com/
TALLAHASSEE -- Senators talked yesterday about a proposal to keep guns out of the hands of violent people ordered to stay away from their families, but lawmakers didn't vote on the measure.
"It may be too late," said Robin Hassler, executive director of the Governor's Task Force on Domestic and Sexual Abuse. But she said there was still a chance a similar bill could move ahead in the House before the annual twomonth session ends next week.
Sen. Patsy Ann Kurth sponsored legislation to ban gun possession by anyone ordered by a court to stay away from their homes because of the threat of violence.
The bill, however, was never heard in the Senate Criminal Justice Committee and, under Senate rules, the full chamber can't act on a bill that doesn't move out of a committee. A similar House bill is awaiting action in the House Law Enforcement Committee.
But Kurth, D-Palm Bay, tried yesterday to add the measure to another domestic violence bill that was up for consideration:
"In 1996, 192 people were killed . . . as a result of domestic violence and a majority of those were killed with firearms."
Sen. John Ostalkiewicz, R-Windemere, objected to Kurth's request that the rules be waived to allow her proposal to be considered.
The idea may be a good one, but it needs to be reviewed by a committee, Ostalkiewicz said.
"If a person is caught in this situation and they have ammunition or a hunting rifle at home, what do they do?" he asked. "Do they sell it? Throw it away? Give it away?"
Kurth replied, "Sen. Ostalkiewicz, I think if someone has a final injunction for domestic violence against them, then we might want that those guns would be disposed of."
Federal law already bans gun possession by people who have been ordered to stay away from their homes, but Hassler and other proponents of Kurth's bill said there aren't enough federal agents in the state to investigate violations.
Sen. Charles Williams, D-Tallahassee, said Kurth's proposal went too far and was un-American.
Sen. Tom Rossin said the ban was a good idea but asked her to withdraw her amendment because it could lead to defeat of his legislation.
Domestic violence laws disarms few cops
Gun ban has had almost no effect in state
New Haven Register (CT)
July 13, 1997
https://infoweb.newsbank.com/
When a federal law designed to take guns out of the hands of people convicted of domestic violence was enacted, police feared it would cost thousands of them their jobs.
A poll by the National Association of Chiefs of Police projected more than 60,000 of the nation's 700,000 police would either lose their jobs or be reassigned to civilian-type desk duties because they no longer could own or carry a firearm.
"No other person could lose their employment with this," since law enforcement officers are required to use firearms, said New Haven Sgt. Louis G. Cavalier, police union president.
But aside from a few cases in Colorado, Minnesota, Michigan and California, nine months later the law hasn't had much impact on law enforcement officers either nationwide or in Greater New Haven.
Steven Goldstein, press secretary for U.S. Sen. Frank R. Lautenberg, D-N.J., who introduced the law, said studies show that fewer than 1,000 officers nationwide would be affected by the gun ban.
An informal survey of more than 20 of the area's departments found no firings, reassignments or demotions as a result of the law.
To date, Gary Waterhouse, executive director of the Connecticut Council of Police Unions, No. 15, said he knows of no cases involving Connecticut officers.
"I suspect there were not a lot of convictions," said Waterhouse.
"And people involved in cases like this may be fired from their departments anyway . . . I'm pleased that there are not a lot of cases coming forward."
But there are concerns about the Domestic Violence Gun Ban, enacted into law in September.
Before the bill's passage, federal law prohibited only felons and people with restraining orders from possessing firearms.
The gun ban is retroactive and now covers people convicted of domestic violence misdemeanors - no matter how far back they go. Misdemeanors could include a slap, shove or even yelling.
Incidents of domestic violence involving guns are 12 times more likely to result in death than incidents where no gun is involved, according to the Journal of the American Medical Association.
And studies show an alarmingly high rate of domestic violence among law enforcement personnel.
In a 1992 survey of 891 male officers attending a national Fraternal Order of Police conference, 24 percent said they had been involved in assaults on their spouses in the previous year.
But critics say the law targets police officers, although it applies to everyone, even military personnel. In fact, a Norwalk businessman had his gun collection confiscated last week by federal agents because of a restraining order against him by his estranged wife.
Federal lawsuits to block enforcement of the law were filed in Washington, D.C., Atlanta, Tallahassee, Fla., and Los Angeles. And police allies in Congress already have begun efforts to relax some of the law's provisions.
One bill, introduced by Rep. Bart Stupak, D-Minn., would exempt police and military personnel from the gun ban.
The second, introduced by Rep. Bob Barr, R-Ga., and Sen. Paul Wellstone, D-Minn., would apply the ban only to those convicted of domestic-violence crimes after the bill was passed in September.
A third bill, introduced by Rep. Helen Chenoweth, R-Idaho, would repeal the law entirely.
When asked about compliance, most local police officials said they were relying solely on the memories of longtime officers. Few have actively sought comprehensive background checks on their personnel.
Wallingford Police Chief Douglas L. Dortenzio said he relied on the memories of "long-term" officers in determining if anyone in his 70-member department had ever been convicted in a misdemeanor domestic violence case.
Lt. Ian Nixon of the Ansonia Police Department, which has 34 sworn officers, said that in smaller departments, chiefs often know who has been convicted of such a crime.
"We wouldn't be hiring people if they were convicted of domestic violence," said Clinton Police Chief Joseph P. Faughnam, who also serves as president of the Connecticut Police Chiefs Association.
Officials also said checking whether an officer committed a misdemeanor domestic violence crime at any time in any state is a difficult task.
"That would be a law enforcement nightmare," said Tim Richardson of the National Fraternal Order of Police. "You would have to look at the individual facts of every case. Misdemeanors aren't centrally filed, and there are different classes of offenses for different states."
Bill Johnson, general counsel for the National Association of Police Organizations in Washington, D.C., said departments throughout the nation have been slow in responding to the law.
"They are becoming aware of the existence of the law, but they're not quite sure what they need or ought to do regarding it," Johnson said.
But the law doesn't appear to be stymieing everyone.
With notice of the law's passage, Connecticut State Police reviewed the personnel files of its 985 troopers, said Sgt. Dale Hourigan, state police spokesman.
"We looked at every member of the agency," Hourigan said. "We have no one here under that federal law who has been convicted."
Other departments, including the New Haven Police Department, reviewed the background checks done on officers prior to their being hired.
Most departments said policies are already in place to deal with officers arrested for any crimes, including domestic violence.
"Officers are placed on administrative duty and their weapon is taken away from them until the case is disposed of," said New Haven Police Chief Melvin H. Wearing. Those officers also are referred to family violence counselors, he said.
"We're keeping our fingers crossed that nobody down here gets into that situation," said Derby Lt. Gene Mascolo of his 25-member force. "We don't have any positions here for someone who can't carry a gun."
Opponents of the law said they're waiting to see what happens in the courts. Some think it will be found unconstitutional.
But proponents say law enforcement personnel better get used to the law.
Women's groups, including the National Organization for Women, legislators, and even some police groups, including the 35,000-member National Black Police Association, favor the law.
"Police departments ought to get accustomed to enforcing the law," said Goldstein, who said he doesn't anticipate any amendments. "We're intent on keeping the law exactly the way it is. It's working, and people see that."
By no means should the law be changed to exempt police, said Sandra Koorejian, executive director of Domestic Violence Services of Greater New Haven.
"I think it's important that this message gets out, that a police officer isn't above the law," she said.
It's not uncommon for police to be perpetrators in domestic violence cases, said Koorejian.
She said domestic violence victims who are married to police officers might not report the abuse out of fear police would not arrest a fellow officer.
Despite widespread opposition to the law from police, some law enforcement officials do support it.
"Domestic violence is so serious an issue, there shouldn't be an exception for police officers," said Dortenzio, the Wallingford chief. "We should not be treated differently."
But Allan MacDonald, resident agent in charge of the local unit of the Bureau of Alcohol, Tobacco and Firearms, said the law could affect those officers who feared expensive legal costs and plea-bargained their charges down to misdemeanors.
"A lot of them wouldn't have taken a plea if they knew they were going to lose their job someday," said MacDonald.
Chenoweth raps domestic gun ban; seeks support for repeal
USA TODAY (USA)
July 14, 1997
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Blasting a law that prohibits anyone convicted of a domestic violence charge from owning a gun, Rep. Helen Chenoweth, R-Idaho, Monday urged support for her legislation to repeal it.
"This is not an issue about domestic violence," she said at a Capitol Hill press conference. "As a woman, I abhor domestic violence. Let me make it very plain and clear: This issue is about gun control."
Her bill would overturn the "Lautenberg amendment," a provision Sen. Frank Lautenberg, D-N.J., tacked on to a budget bill late in the last Congress. It prohibits anyone convicted of even a misdemeanor domestic violence offense from owning a gun.
Chenoweth called Lautenberg's work "a darn poor way to press gun control legislation." Though she said she respected his motivation -- cutting down on domestic violence -- she took issue with his approach.
Instead of helping cut down on domestic violence, the Lautenberg amendment will take guns out of the wrong people's hands, she argued. Women who defend themselves against abuse could find themselves prosecuted for domestic violence and subsequently disarmed, she said. Parents who spank their children could also run afoul of the law. And Chenoweth objected to the breadth of possible offenses that could trigger its provisions.
"Domestic violence is a very horrible thing, but by definition, domestic violence could be just raising your voice," she said.
Nearly 10 percent of the 700,000 law enforcement officers in America could have their guns revoked if the government pressed forward with the Lautenberg provisions, said James J. Fotis, executive director of the Law Enforcement Alliance of America.
"We do not want to see people lose their jobs because of misdemeanor offenses," he said.
Chenoweth -- who also opposes federal legislation barring convicted felons from owning guns -- said individual state judges, not Congress, should be the ones to decide when domestic offenders should lose their gun rights.
She lamented the way the amendment became law in the first place.
"The gun control advocates did not have the moral courage to bring this bill up on its own," she said. "I doubt it could have gotten out of committee."
It is unclear, however, how long her own bill will languish in the House Judiciary Subcommittee on Crime, where it was referred after its introduction early this Congress. Several other bills, including one by subcommittee member Rep. Bob Barr, R-Ga., are competing for eventual floor action. Despite a handful of co-sponsors, for now, even Chenoweth's staff admits her bill looks like a long shot.
And a Lautenberg spokesman pegged its chances even lower.
"No one in Washington seriously believes anymore that there will be any changes to the domestic gun ban," said Lautenberg press secretary Steven Goldstein. "Chenoweth's proposal is considered the least credible of all of them."
MILITARY COULD FACE DIFFICULTIES WITH DOMESTIC-VIOLENCE GUN BAN
Lexington Herald-Leader (KY)
July 21, 1997
https://infoweb.newsbank.com/
Tucked into federal spending legislation last fall was a little-trumpeted gun ban for domestic violence offenders that threatened big shake-ups in the ranks of police and soldiers.
Anyone who has a domestic violence conviction, the new law said, cannot have a gun. There were no exceptions for law enforcement or military officers - although for most having to give up a gun can mean having to give up the job.
But nearly 10 months later - and as police agencies have started applying the new rule to their own - the Defense Department still has not handed down guidelines for how the military should put the law into effect.
At Kentucky's two Army bases, Fort Knox and Fort Campbell, officials say they are waiting on guidance from Washington before taking steps such as reviewing soldiers' records for any past domestic violence convictions.
"It'll definitely affect us," said Maj. Joe Howell, a Fort Campbell spokesman. "But in what way, we won't know until we get the orders on how to implement it from our higher-ups."
The delay frustrates some activists against domestic violence , who supported the new law.
"Not enforcing that bill puts a lot of people at risk," said Rita Smith, executive director of the Denver-based National Coalition Against Domestic Violence. "It doesn't make sense to not implement something that could potentially save a great many lives."
The new law - an amendment to the country's basic gun control act that has been on the books since 1968 - went into effect Sept. 30. It applies to anyone convicted of a misdemeanor for using or attempting to use physical force on an intimate partner or a family member.
The penalty is up to 10 years in prison and a fine of up to $250,000 . It already is illegal for a person convicted of any felony to have a gun.
Defense Department attorneys are preparing directives on how to apply the law; the instructions will be passed down to the military branches and then to specific installations, said Maj. Monica Aloisio, a department spokeswoman.
"We're still working on it," Aloisio said. "And it's not their fault that they haven't done anything. They've gotten no direction from the Pentagon."
The guidelines have been in the works for several months, Aloisio said. But she could not say when they will be completed.
Court martial rare
The potential effect could be great, since about 1.2 million people serve in the armed forces.
But some military officials in Kentucky said the new rule is unlikely to force large numbers of soldiers out of the Army.
To be affected, a soldier would either have to be convicted of domestic violence in civilian court or through a court martial in military court. And if an incident happens on post, commanders can take other action - short of a court martial - to deal with the problem.
At Fort Knox, where there are roughly 10,000 active duty soldiers, students and trainees on post at any time, the base averages 10.7 incidents of spouse abuse each year for every 1,000 military personnel, said spokesman Dean Sprague.
That would equal more than 100 incidents for the entire base in a year. But few of those incidents end in court martial convictions.
This year at Fort Knox, only one domestic violence case has ended in a court martial and conviction, Sprague said. Another case is pending.
Col. Larry Vick, staff judge advocate at Fort Knox, said that Army leaders will not treat domestic violence lightly just to help soldiers avoid the consequences of the new gun ban.
"I think right now, with the climate that exists in Washington and in the nation ... commanders are very reluctant now to look like they're not taking something seriously," Vick said.
Smith, with the Coalition Against Domestic Violence, said the main concern of domestic violence activists is that the problem is addressed and victims protected.
"Within the military system, there may be ways that they have a lot more influence over that soldier's behavior than someone in civilian life," she said. "For us, the only option we have is to give them a conviction, to put them through the legal system."
But soldiers also can face the consequence of the new law if they are convicted in a state court.
Last month, Gov. Paul Patton announced that the Army had agreed to give the state jurisdiction to issue domestic violence protection orders for Fort Knox residents.
Under an interim agreement, Hardin District Court judges had been issuing an average of three emergency protective orders a week to Fort Knox residents.
"It's not a huge caseload," said Carol Jordan, executive director of the Governor's Office of Child Abuse and Domestic Violence Services. "But clearly, it's one of those things ... where everyone needs the access to protection."
Challenges to the law
While Pentagon officials have been tackling how to put the new law to work, some police organizations have taken higher-profile steps to challenge it.
The national Fraternal Order of Police filed a federal lawsuit challenging the law's constitutionality and asking for an injunction. There has been no ruling on the case, said Timothy Richardson, a legislative assistant for the national FOP.
There also have been efforts to change the law in Congress. One measure would make the law apply only to people convicted of domestic violence after Oct. 1, 1996. Another proposal would make soldiers and law officers exempt altogether.
Both of those efforts appear stalled for now, Richardson said. And many police agencies have begun the process of determining whether any officers have domestic violence convictions.
In Kentucky, state police officials already have checked the records of every officer, and no one had a misdemeanor domestic violence offense, said Lt. Jerry Nauert, a state police spokesman.
One reason the military has been slower to enact the law is because it faces some complicated issues, said the FOP's Richardson .
For instance, "Does (the new law) mean that a Harrier pilot cannot fly a Harrier because it contains explosives and firearms?" Richardson asked. " ... That's why the military has been a little bit slower."
And there are other stumbling blocks, such as whether Army officials should have to go back through records for all current soldiers to see if there are past cases of domestic violence.
At Fort Knox, potential recruits with a domestic violence conviction are no longer being enlisted, said Sprague. But to go back through the records of current soldiers, the volume of paperwork would make the task "monumental," Sprague said.
Said Smith, with the National Coalition Against Domestic Violence: "Possibly it would be a big job. But I'm not sure it's not worth the effort. I mean, we're talking about people's lives. Why is that effort not worth it?"
Chenoweth, ACLU play footsie
Idaho Spokesman-Review (Coeur d'Alene, ID)
Author/Byline: D.F. Oliveria Opinion writer
July 22, 1997
https://infoweb.newsbank.com/
Politics indeed make strange bedfellows.
Case in point: U.S. Rep. "Give'em-Helen'' Chenoweth and the American Civil Liberties Union of Idaho linking arms to fight the Lautenberg amendment. The measure outlaws gun ownership by anyone who ever has been convicted of misdemeanor domestic violence.
Said an ACLU news release: "It was inappropriate and a violation of the rights of individual citizens to impose a limitation on gun ownership retroactively for offenses that may have occurred years before.''
Curiously, Republican Chenoweth mentioned the ACLU in her release. But not vice versa. Then the ACLU of Idaho carefully noted: "This statement does not necessarily reflect the position of the national ACLU.'' Do you suppose the Idaho ACLUers finally are getting in step with their state? ... Nah.
Police union unsure if it will appeal domestic-violence gun ban
Law prompted Fulton to fire, reassign officers
Atlanta Journal-Constitution, The (GA)
August 8, 1997
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After losing its lawsuit to strike down a law banning gun possession by people convicted of domestic violence, a national police union will decide soon whether to appeal the Atlanta case, a union lawyer said Thursday.
Last month, Senior U.S. District Judge Richard Freeman upheld as constitutional the law banning handgun possession by anyone with misdemeanor domestic violence convictions. The International Brotherhood of Police Officers, which claims the law unfairly discriminates against law enforcement officers, will decide within a month whether to appeal Freeman's decision to the 11th U.S. Circuit Court of Appeals, union lawyer Brenda Raspberry said.
The union filed its lawsuit against the Fulton County Sheriff's Department, which has been firing or reassigning deputies with prior misdemeanor domestic violence convictions. According to court records, lead plaintiff William Hiley, a deputy who pleaded guilty to a domestic violence charge in 1995, was fired in January. Hiley appealed and was reassigned as a detention officer, where he presumably will not need a weapon.
Freeman is one of the first judges in the country to rule on a challenge to the handgun ban, which was signed into law in September by President Clinton.
In May, a state court judge in Indiana issued a preliminary order enjoining the city of Franklin from enforcing the law. The judge has since transferred the case to federal court in Indianapolis. Other challenges are pending in Washington, Tallahassee, Fla., and Los Angeles.
"This law is really unfair," said Tallahassee lawyer Kelly Overstreet Johnson, who has filed state and federal challenges to the law. "It unfairly treats people who pleaded guilty years ago and did not know that something like this could now suddenly take away their livelihood."
Johnson said one of her clients is a Florida corrections officer who pleaded guilty to a misdemeanor violence charge 22 years ago and paid a $35 fine. The state is now moving to fire him, she said.
In Atlanta, the police union challenged the law on several grounds, saying it does not address handgun possession by felons who have had their civil rights restored and that it discriminates against law enforcement officers who have pleaded guilty to misdemeanor domestic violence charges.
But Freeman ruled that "limiting the ability of a domestic violence misdemeanant to possess a firearm is reasonably related to Congress' purpose of protecting public safety by keeping firearms out of the hands of potentially dangerous or irresponsible persons." Freeman agreed that law creates anomalies regarding handgun possession between felons and persons convicted of misdemeanors, but he said this provides no legal basis for the law to be overturned.
Cop challenges law on domestic violence
Times, The (Trenton, NJ)
September 21, 1997
https://infoweb.newsbank.com/
CAMDEN (AP) _ A Willingboro police officer has filed a legal challenge to a federal domestic violence law that forced him to take a desk job.
The 1996 Domestic Violence Gun Ban, sponsored by Sen. Frank Lautenberg, D- N.J., extends the federal prohibition against gun ownership or possession by convicted felons to include anyone ever convicted of a domestic violence offense _ including police officers, security guards, military personnel and prison guards.
James W. Bennett pleaded guilty in October 1995 to a disorderly persons offense for grabbing his former girlfriend by her shirt and throwing her around the bedroom of his Burlington Township home. He appeared in Municipal Court, paid a $250 fine and figured that was the end of it.
But two years later, when the domestic violence law was enacted, that conviction meant he could no longer legally carry his service weapon. So, earlier this year, Willingboro police pulled Bennett, an officer since 1974, off the street and put him behind a desk.
Bennett is challenging the reassignment.
His lawsuit filed in federal court in Camden claims that when he waived his right to counsel in pleading guilty two years ago, he had no way of knowing what the consequences of his guilty plea would be.
''His waiver of counsel couldn't have been knowing and intelligent,'' his lawyer, F. Michael Daily, told The Philadelphia Inquirer.
Daily said that to his client, it simply meant ''this won't cause you any problems other than the fine.''
The retroactivity of the law is central to several challenges to the law, including one filed in federal court in Washington, D.C., by the national Fraternal Order of Police.
Several proposals to revise or repeal the law also are pending in Congress. One would exempt police officers, another would repeal it altogether. Another would eliminate retroactive enforcement.
Police groups have objected to the law because any officer with a domestic violence conviction now is barred from possessing a gun. They also have complained that it is nearly impossible to enforce.
''Right now, the law applies, in our view, unconstitutionally retroactively,'' Tim Richardson, a legislative assistant for the FOP, told the newspaper. ''It threatens citizens whose livelihood depends on their ability to carry a firearm.''
But Lautenberg defended the law he crafted, saying it is fair in that it applies to everyone with a domestic violence conviction.
''Our law doesn't target cops versus anyone else. It simply puts everyone on notice _ officers and others alike _ that you better not beat your wife or child and expect to carry a gun. Because if you beat your wife or child, our law makes it clear: The violence stops here.''
LAW DENIES GUNS TO 2,000 IN FIRST YEAR
BATTERERS BANNED FROM OWNING FIREARMS
Record, The (Hackensack, NJ)
October 1, 1997
https://infoweb.newsbank.com/
An estimated 2,000 people were denied handguns in the United States last year, under a new law that bans anyone convicted of a misdemeanor domestic violence charge from owning a firearm, according to U.S. Justice Department report released Tuesday.
U.S. Sen. Frank R. Lautenberg, D-N.J., who wrote the law, released the report at a Capitol Hill press conference timed to coincide with the one-year anniversary of the bill's signing.
Lautenberg, former Newark Police Chief Hubert Williams, and representatives of several women's groups pointed to the report as evidence that the law is helping to save lives. They warned that opponents of the law, led by the National Rifle Association, are still lobbying behind the scenes to enact legislation that would weaken or gut it.
"A year ago today President Clinton signed [the] domestic violence gun ban into law, and Washington finally stood up to the gun lobby," Lautenberg said. "It's time for the NRA to bite the bullet. . . . If we repeal the law, we'll put thousands of women and children on the front lines of death row."
Congress has rejected several proposals to kill or amend the law, including bills to prevent it from being applied retroactively and a proposal to exempt police officers and military personnel from the gun ban. But Elizabeth Swasey, director of the CrimeStrike division of the NRA, said four bills to change or kill the law are still active in Congress.
She called the law "misguided" and said efforts should instead by focused on preventing the common practice of allowing domestic violence abusers to plea-bargain felony charges down to misdemeanors.
"The bill was bad when it passed and it's not any better a year later," she said. Similar laws in Canada have actually had the effect of discouraging military and police wives from reporting domestic violence abuse, because they are afraid of angering their violent spouse, she said.
During the final quarter of 1996, 500 people in the U.S. were denied handguns under the new law leading Justice Department officials to estimate that there were 2,000 denials in the last 12 months.
In New Jersey, the report said, 280 of 24,672 gun applications were rejected last year. But that includes applications rejected under other gun laws, such as those banning ownership for people with prior felony convictions. No statewide numbers were available for domestic violence offenses.
Lautenberg's press conference comes just weeks before the Department of Defense is expected to order all of its branches to comply with the domestic violence gun ban.
According to a recent Pentagon report, about 50,000 members of the military struck or hurt a spouse between 1991 and 1995, said Maj. Monica Aloisio, a Pentagon spokeswoma
Gun group pushes speaker to put Chenoweth's bill to vote
Gingrich, ignoring wishes of those who helped him rise to power, Gun Owners of America claim in Internet post
Lewiston Tribune (ID)
October 21, 1997
https://infoweb.newsbank.com/
The Gun Owners of America hopes to persuade U.S. House Speaker Newt Gingrich to allow a vote on U.S. Rep. Helen Chenoweth's bill to repeal a ban on gun ownership by anyone with a domestic violence conviction.
The Idaho Republican's critics claim her bill trivializes spousal abuse, but she says that may be the only defense of people who want to politicize the issue.
The Springfield, Va., lobby posted petitions on the Internet two weeks ago that charge Gingrich with ignoring the wishes of gun owners who helped the Republicans take control of Congress three years ago.
Gingrich could instruct the House Judiciary Committee to bring Chenoweth's bill and measures repealing the ban on semi-automatic assault rifles and protecting gun owners' right to use firearms to defend themselves, their families and their homes to the House floor, the group said in its petition.
Instead, the measures are languishing in the committee. Eric Pratt, director of federal affairs for Gun Owners of America, said the group plans to present the petitions to Gingrich early next year.
A spokesman for Gingrich referred questions to a spokeswoman for House Majority Leader Dick Armey, who could not be reached for comment.
Chenoweth said she doesn't know whether Gingrich is holding up consideration of her bill in the House Judiciary Committee, but she will find out soon if that's the case.
Two weeks ago, U.S. Rep. Mike Crapo, Chenoweth and eight other congressmen asked House Judiciary Committee Chairman Henry Hyde of Illinois and Subcommittee on Crime Chairman Bill McCollum of Florida to hold a public hearing on Chenoweth's bill.
The measure has 34 co-sponsors, including Crapo, another Idaho Republican.
U.S. Sen. Frank Lautenberg's amendment to a budget bill last year penalizes Americans who have already faced justice, runs roughshod over the rights of states and judges in assessing penalties on a case-by-case basis and is an unfunded mandate to city, county and state police offices, the congressmen contend.
"We want to be clear,'' they wrote in their letter. "We abhor domestic violence and believe that spousal and child abuse have no place in our society."
However, these congressmen said Lautenberg's amendment has actually disarmed many women who need protection from abusive spouses.
"Many police departments require officers to charge both parties in a domestic dispute, even if there is no sign of violence and neither party wants to press charges,'' they wrote. "Some of these cases are uncontested, with both parties paying a simple misdemeanor fine in order to put the incident behind them."
The 10 congressmen cited the support of a number of groups, including the Idaho chapter of the American Civil Liberties Union, Idaho Sheriffs Association, Home School Legal Defense Association and Women Against Gun Control, for Chenoweth's bill.
"The chairman (Hyde) had other things on his plate and right now he is watching the White House events pretty closely,'' Chenoweth said. "But the repeal of the Lautenberg amendment does have widespread appeal, so. I am hoping he will take it up soon."
Gun ban law went way too far
Beacon News, The (Aurora, IL)
LETTER TO THE EDITOR
Author: Jerry L. Owens Sandwich
October 25, 1997
https://infoweb.newsbank.com/
There has been a lot of press about police officers losing their jobs because of the recently passed, domestic-violence gun ban.
What has gone mostly unreported is how this ban forever will disarm 3 to 4 million citizens who have committed very minor offenses.
This ban takes away people's Second Amendment rights for merely having committed a misdemeanor, defined as such because it is a very minor offense.
In many jurisdictions, spanking a child on the rear, a sibling fight on the school grounds or a wife's throwing a lamp at her husband would all qualify as "domestic violence" misdemeanors.
Truly violent criminals can and should be convicted as felons, and felons already lose their rights -- the right to own a gun, the right to vote, the right to hold office, etc. -- so why do we need this domestic gun ban for misdemeanors that was passed by Congress last year?
Judges already have the power to deny persons convicted of misdemeanors the right to own a firearm while on probation or parole.
Gun Owners of America has reported how a Virginia gun collector owning more than $100,000 worth of firearms had to dump his entire collection because of this new domestic gun ban.
His crime? An argument with his wife that resulted in a $10 fine for a domestic-violence misdemeanor more than 20 years ago.
Never mind the fact that he has lived an exemplary life since then, and has otherwise been happily married to the same woman for 34 years.
I can't for the life of me figure out why Representative Dennis Hastert has not cosponsored H.R. 1009 in the U.S. Congress.
This bill will repeal the entire domestic gun ban and start returning some sanity to the Bill of Rights.
MILITARY HAMPERED
Daily Press (Newport News, VA)
LETTERS TO THE EDITOR
Author: Ed Monk - Hampton
November 4, 1997
https://infoweb.newsbank.com/
Reference your Oct. 26 editorial supporting the Lautenberg Amendment:
This law prevents policemen and soldiers from handling firearms if they have ever been convicted of certain misdemeanors. You supported your argument with two questionable statements. First, you say ``Military work includes numerous functions - administration, public affairs, maintenance, transportation - for which guns are not necessary.'' Almost every soldier that deploys to a combat zone is issued a weapon, even those in ``administrative'' jobs. Those pushing such social engineering in today's military tend to forget that the military's purpose is to fight and win wars, so that's how they are equipped and trained.
Second, you wrote ``The law also does not affect the eligibility of personnel to work with a variety of major weapons systems such as tanks.'' Every soldier on the crew of a tank is issued and wears a 9mm semiautomatic handgun for personal protection when off the tank. There is also an M16 assault rifle on every tank that all crew members have access to. Are you suggesting we cannot trust the young sergeant with a pistol in combat, yet put him behind the triggers of the tank's 120mm smoothbore cannon?
This will also make it easy to avoid hazardous duty. When the next bloody war starts, and it will, a soldier need only have his wife call the MPs and claim a shove, or push. A misdemeanor conviction is little to pay to avoid combat.
One would think the editors of a newspaper in an area so saturated with the military would know a little more about them, or at least not write such an editorial until they did.
A FORK CONTROL PLAN
Daily Press (Newport News, VA)
LETTERS TO THE EDITOR
Author: Dan Raymond - Hampton
November 4, 1997
https://infoweb.newsbank.com/
I was surprised that there wasn't a response in your paper from Jim Spencer or one of your other columnists concerning the Portsmouth man who killed another man with a barbecue fork Oct. 13. I expected at least an editorial on the evils of barbecue forks. I was certain someone would lay out a public agenda that demanded:
* Registration of all barbecue forks.
* A five-day waiting period before purchasing a barbecue fork.
* A federal law requiring point locks be sold with each new barbecue fork.
* A purchasing limit of one barbecue fork per month.
* Mandatory licensing and training of barbecue fork owners.
* A special licensing requirement to carry a concealed barbecue fork.
* A police background check of anyone attempting to purchase a barbecue fork.
* No purchasing of barbecue forks by convicted felons.
All of these actions are surely justified if we are to protect innocent citizens of this city, state and nation from the inherent dangers of cheap barbecue forks.
My thoughts and prayers go out to the family of the man who died. The problem lies with the man behind the weapon. The death is not the fault of the barbecue fork.
ABUSE LAW DIVIDING GUN CONTROL ADVOCATES
Plain Dealer, The (Cleveland, OH)
November 17, 1997
https://infoweb.newsbank.com/
It's not easy opposing a law that has the stated goal of keeping guns out of the hands of wife beaters and child abusers.
But the gun rights lobby has never shied away from difficult positions. And pro-gun forces have picked up a powerful new ally in their latest fight against the so-called domestic violence gun ban: a major police union that has supported most recent gun control measures.
The Fraternal Order of Police wants the law changed because it retroactively disarms some cops with minor offenses in the distant past.
Unaltered, the year-old law, written by Sen. Frank R. Lautenberg, a New Jersey Democrat, could drive a wedge between the 377,000-member FOP and the gun control lobby, which has relied heavily on police for support in its struggles against gun-rights advocates.
The law breaks ground in two areas: it denies guns to men and women convicted of misdemeanors involving domestic violence at any time in their past, and it applies to all firearms - hunting rifles and shotguns as well as handguns.
It expanded the Brady handgun waiting period law to include file searches for misdemeanor cases of spousal mistreatment or child abuse as well as felony convictions.
President Clinton quickly signed the law last year as women's groups and gun control advocates hailed its passage.
But police organizations were furious. While the landmark 1968 Gun Control Act had exempted police and the military from many of its restrictions, the Lautenberg law was quietly stripped of the "official use exemption" before it was passed.
A USA Today survey indicated 860 police out of 700,000 nationwide would have to give up their weapons and move to desk duty or leave the force. The FOP says the number is greater, but does not state its estimate.
A `poison pill'
Handgun Control Inc. aide Naomi Paiss said pro-gun rights forces saw the absence of a police/military exemption as a "poison pill" that would make the law unpopular with law enforcement. That is exactly what happened, athough no one will will admit taking out the exemption.
"The gun lobby would dearly love to create this wedge," said Paiss.
Handgun Control Inc. did not propose the Lautenberg law in the first place, Paiss said, nor did it play a part in removing the exemption for police.
FOP Executive Director Jim Pasco said the police union is pursuing "every possible" avenue to make the law apply only to offenses committed after the Sept. 30, 1996 effective date.
A federal court in Georgia ruled in July that even in its retroactivity the gun ban was not unconstitutional since it did not "criminalize conduct that occurred" before its enactment but only imposed an eligibility requirement.
The FOP lost in court again last month when U.S. District Judge James Robertson ruled in Washington, D.C., there was no constitutional merit to the argument that the law unfairly impacted on police because they were required to carry weapons.
Robertson, addressing Second Amendment questions, added that "no fundamental right is implicated by the new law."
Fundamental or not, critics question why a single misde- meanor for domestic violence - a minor infraction by definition - should be a lifetime bar to owning any type of firearm.
"Vast numbers of Americans have been convicted of such minor misdemeanors because they pled guilty on advice of counsel even though they adamantly claimed to be innocent," wrote Don B. Kates, a California-based lawyer and gun rights advocate. "They were told that if they pled guilty there would be no real penalty [a $20 fine], whereas to defend against the charges would cost $10,000-plus in legal fees."
But the Violence Policy Center, which advocates strict gun controls, said in a statement the exact opposite often is true: "Many persons guilty of serious domestic violence all too often are convicted of mere misdemeanors. In fact, only 20 percent of domestic abuse cases qualify as felony aggravated assault under state law."
Sue Glick, health policy analyst for the Violence Policy Center, said most states have misdemeanor expungement laws or a pardon process through which a person could regain eligibility for gun ownership.
An attempt to amend
The FOP also supports a bill introduced by Rep. Robert Barr, Republican of Georgia, which would amend the Lautenberg law so that the prohibition on ownership applied only to post-enactment domestic violence misdemeanors.
Democrat Lautenberg is vehemently opposed.
"If the Barr bill were to pass," he said in a statement, "it would actually give guns back to the wife-beaters and child-abusers who had to give them up ..."
The Barr bill is bottled up in a House subcommittee. A Lautenberg spokesman vows: "This law is not going to be changed."
The FOP's Pasco said if the law stands as written it could prove to be a "very costly piece of legislation" for gun control advocates in terms of police support.
But outside their own ranks, there is little support for exempting cops snd soldiers.
"We think this is a bad law," said James D. Manown, spokesman for the National Rifle Association, "but we think the law should be applied equally to all classes of people. We should not carve out classes of people to which the law does not apply," Manown said.
Lawyer Kates said the implication that the lives of spouses and children of abusive police officers are less valuable than the lives of other victims is both senseless and repugnant.
"There is no more reason to believe or argue that Army officers should have a gun any more than a rogue civilian should," said Kates.
Other pro-gun forces are cackling at the unintended rift consequent to Lautenberg's law.
"Lautenberg put the police back into talking with the gun owners and gun rights advocates. Lautenberg has put it right back in our pocket," said Alan Gottlieb, chairman of the Seattle-based Citizens Committee for the Right to Keep and Bear Arms. "Police now are realizing gun control can bite them, too."
Major police union joins opposition to domestic violence gun ban
Measure doesn't exempt cops with infractions and may force 860 officers to hand in weapons
Star-Ledger, The (Newark, NJ)
November 18, 1997
https://infoweb.newsbank.com/
It's not easy opposing a law that has the stated goal of keeping guns out of the hands of wife beaters and child abusers.
But the gun-rights lobby has never shied away from difficult positions. And pro- gun forces have picked up a powerful new ally in their latest fight against the so-called domestic- violence gun ban: a major police union that has supported most recent gun control measures.
The Fraternal Order of Police wants the law changed because it retroactively disarms some cops with minor offenses in the distant past.
Unaltered, the year-old law, written by Sen. Frank R. Lautenberg (D-N.J.), could drive a wedge between the 377,000-member FOP and the gun control lobby that has relied heavily on police for support in its struggles against gun-rights advocates.
The law breaks ground in two areas: It denies guns to men and women convicted of misdemeanors involving domestic violence at any time in their past, and it applies to all firearms - hunting rifles and shotguns as well as handguns.
It expanded the Brady handgun waiting period law to include file searches for misdemeanor cases of spousal mistreatment or child abuse as well as felony convictions.
President Clinton quickly signed the law last year as women's groups and gun control advocates hailed its passage.
But police organizations were furious. While the landmark 1968 Gun Control Act had exempted police and the military from many of its restrictions, the Lautenberg law was quietly stripped of the "official use exemption" before it was passed.
A USA Today survey indicated 860 police out of 700,000 nationwide would have to give up their weapons and move to desk duty or leave the force. The FOP says the number is greater, but does not state its estimate.
Handgun Control Inc. aide Naomi Paiss said pro-gun rights forces saw the absence of a police/military exemption as a "poison pill" that would make the law unpopular with law enforcement. That is exactly what happened, although no one will admit taking out the exemption.
"The gun lobby would dearly love to create this wedge," Paiss said.
Handgun Control Inc. did not propose the Lautenberg law in the first place, Paiss said, nor did it play a part in removing the exemption for police.
FOP executive director Jim Pasco said the police union is pursuing "every possible" avenue to make the law apply only to offenses committed after the Sept. 30, 1996, effective date.
A federal court in Georgia ruled in July that even in its retroactivity, the gun ban was not unconstitutional because it did not "criminalize conduct that occurred" before its enactment but only imposed an eligibility requirement.
The FOP lost in court again last month when U.S. District Judge James Robertson ruled in Washington, D.C., there was no constitutional merit to the argument that the law unfairly affected police because they were required to carry weapons.
Robertson, addressing Second Amendment questions, added that "no fundamental right is implicated by the new law."
Fundamental or not, critics question why a single misdemeanor for domestic violence - a minor infraction by definition - should be a lifetime bar to owning any type of firearm.
"Vast numbers of Americans have been convicted of such minor misdemeanors because they pled guilty on advice of counsel even though they adamantly claimed to be innocent," wrote Don B. Kates, a California-based lawyer and gun-rights advocate.
"They were told that if they pled guilty there would be no real penalty (a $20 fine), whereas to defend against the charges would cost $10,000-plus in legal fees," he said.
But the Violence Policy Center, which advocates strict gun controls, said in a statement that the exact opposite often is true: "Many persons guilty of serious domestic violence all too often are convicted of mere misdemeanors. In fact, only 20 percent of domestic abuse cases qualify as felony aggravated assault under state law."
The FOP's Pasco said if the law stands as written, it could be a "very costly piece of legislation" for gun control advocates in terms of police support.
Policeman carries gun despite domestic violence guilty plea
Press-Register (Mobile, AL)
December 10, 1997
https://infoweb.newsbank.com/
A Mobile police officer who pleaded guilty more than a year ago of domestic violence continues to carry a sidearm, something a U.S. senator calls a gross violation of a 1996 federal law he authored.
``The Mobile Police Department's interpretation of the law is baffling, bizarre and contemptible as are the very men who beat and terrorize their wives, girlfriends and kids,'' U.S. Sen. Frank Lautenberg, D.-N.J., said through his press secretary in Washington. Lautenberg authored the law that prohibits anyone convicted of domestic abuse, even a misdemeanor, from carrying weapons. Police officials have given different interpretations for why veteran officer George Stafford Sr., 49, is still on armed patrol duty, despite being convicted in August 1996 of third-degree assault, a misdemeanor
Stafford's wife had accused him of hitting her in the back, choking her and throwing her into a railing.
Mobile Public Safety Director Dick Cashdollar said that as he understands the law, known as the Lautenberg Amendment, Stafford may be able to retain his weapon because he pleaded guilty, and therefore, he technically was not ``convicted.''
``Since he pleaded guilty, as I understand it, that does not meet the criteria of the law,'' Cashdollar said.
Police Chief Sam Cochran said Tuesday that a legal opinion from city attorneys lets Stafford off the hook. Specifically, Cochran said that the law stipulates that the accused must be represented by counsel or ``intelligently waive the right to counsel.''
Stafford was not represented by counsel when he pleaded guilty before District Court Judge Herman Thomas in August 1996. Thomas sentenced Stafford to two years' informal probation and fined him $50, court records show.
Lautenberg and his staff called Cashdollar's and Cochran's reasoning seriously flawed.
``I have never, ever heard that interpretation of the law,'' said Lautenberg's press secretary, Steve Goldstein.
``If the officer said under oath in a court of law that he beat his wife, then who is the Mobile Police Department to disbelieve him,'' Lautenberg said. ``A plea is good enough for me, more than enough for the law, and I say, `Take away his gun.' ''
Last year at this time, after the Mobile Register raised questions about Stafford continuing to carry a weapon, Cashdollar said that if the charge against the officer was not overturned, he likely would be fired. The verdict was neither appealed nor overturned. Cashdollar this week referred further questions about Stafford to the Police Department's in-house attorney, Jim Bodman. Bodman said he researched the case, but had to let the chief or a police spokeswoman answer media inquiries.
Cochran said last year that he had asked the city attorney's office for a legal opinion on how to proceed. City Attorney John Lockett on Tuesday also referred questions to the Police Department but added that he thought the U.S. Department of Justice had issued guidelines that allowed Stafford to keep his weapon.
Lautenberg's staff said they were unaware of any Justice Department guidelines. A Justice Department spokesman said he wasn't, either, but needed time to check.
Stafford could not be reached for comment. He has been a police officer for 12{ years and in 1995 made an annual salary of $27,000, according to police records. Stafford made news in May after he helped chase and capture a rape suspect. He also has been appointed deputy constable by an elected Mobile County constable, although some law enforcement officials maintain that position is not authorized by state law.
Last month, another Mobile police officer resigned after police were called to his home following a domestic dispute. The officer was subject to an internal investigation, but he was not arrested because his spouse did not press charges and officers saw no visible injuries at the time, Cochran said.
Others in the public eye have lost their jobs over similar charges. A news anchor for WPMI-TV Channel 15 lost his job this week, just a few days after he was arrested on a domestic-related, misdemeanor assault charge.
The Lautenberg law, championed by President Clinton as a way to keep guns out of the hands of violent people, has caused confusion and concern in some law enforcement agencies. Some officers around the country have had to give up their guns and move to desk jobs.
Concerns also have been raised about whether the law will discourage some women from pressing charges against men in law enforcement or the military because it could threaten their husbands' income. The Pentagon in October ordered any service men and women convicted of domestic abuse to turn in their weapons in keeping with the law. Since carrying a weapon is essential to many jobs in the military, requiring such a step might mean that those service members affected will have to take desk jobs.
All of the military's 1.4 million men and women are being required to fill out a form asking whether they had been convicted of such an offense. If they are not truthful, they could be prosecuted and thrown out of the service, officials said.
In the Mobile County sheriff's office, no deputies have been convicted of domestic violence, Sheriff Jack Tillman said. One current officer was charged but the case never was prosecuted for lack of evidence, according to Tillman and court records.
1998: Lautenberg DV Gun Ban - News Articles And Reports
Army issues guidelines on guns
Lawton Constitution, The (OK)
January 29, 1998
https://infoweb.newsbank.com/
Department of the Army guidance regarding the Lautenberg Amendment to the Gun Control Act of Sept. 30, 1996, is being implemented throughout the Army.
The amendment states that any soldier convicted of a misdemeanor crime of domestic violence cannot ship, transport, possess or receive firearms or ammunition. This applies to government and privately owned firearms or ammunition, said Capt. Juan Arias, administrative law attorney in the office of the staff judge advocate.
In addition, the amendment makes it illegal for anyone to give firearms or ammunition to any person he knows or has reasonable cause to believe has a conviction of domestic violence.
Arias said a crime of domestic violence is the use or attempted use of physical force, or the threatened use of a deadly weapon by a current or former spouse, parent, guardian of the victim or cohabiting partner.
"Commanders need to notify soldiers of the new change in the law, conduct file checks, and report cases through the adjutant general to the Department of the Army. Commanders should not conduct unit-wide inquiries. Commanders should refer questions to their trial counsel," Arias said.
Arias said commanders must also establish procedures to comply with the law, ensuring that soldiers with domestic violence convictions do not receive weapons from unit arms rooms. "Commanders should permit these soldiers to arrange for the lawful sale or transfer of privately owned firearms to authorized individuals within a reasonable amount of time. Prior to such sale, commanders should contact Department of Public Safety to obtain guidance regarding sale and registration requirements," he said.
"If the conviction happened on or before Sept. 30, 1996, no adverse action may be taken against soldiers solely on the basis of their inability to possess a firearm or ammunition. However, commanders can initiate separation of a soldier based on the conduct that led to a conviction, regardless of when the conviction occurred," he said.
When commanders determine the number of soldiers in their command who have been convicted of domestic violence, the commanders will report these numbers through adjutant general channels. Report processing requirements will be directed through command channels.
Soldiers who have questions about crimes of domestic violence and how the Lautenberg Amendment may affect them should call Legal Assistance at 442-5058. Weapons and ammunition subject to the amendment do not include weapons systems such as howitzers or MLRS.
Guidance for civilian employees is not finalized, Arias said.
City officer charged with beating wife
New Haven Register (CT)
February 18, 1998
https://infoweb.newsbank.com/
A city police officer was taken off the street and his firearm confiscated following his arrest in Guilford last week for allegedly beating his wife.
Officer Michael S. Illingworth, 28, was charged Feb. 11 with third-degree assault and disorderly conduct, Guilford Deputy Chief Thomas Terribile said.
The police union president said Tuesday that Illingworth denied the charges and maintains his innocence.
Illingworth, a six-year veteran, was put on administrative duty with pay, said Judith Mongillo, spokeswoman for the Police Department.
The firearm he uses while on duty was seized by the department, Mongillo said.
"That's standard procedure," she said.
Guilford police said the couple began fighting at their home Feb. 10. The argument continued into the next morning outside their home when Illingworth allegedly tried to leave in the couple's vehicle.
The couple brawled inside the vehicle, where Illingworth allegedly struck his 21-year-old wife in the lower back with his fist and kicked her to the floor of the car, Terribile said.
The wife suffered a scrape on her left elbow, a bruise on her left knee and two scrapes on her back, police said.
"I guess he punched her in the arms and struck her in the leg when she was trying to exit the car," Terribile said.
Illingworth was released after posting bail. Terribile said Guilford police have gone to the Illingworth home in the past, including twice in October 1995 and one time each in January 1996, November 1996 and December 1996.
Those incidents involved another woman, not Illingworth's current wife, he said.
Sgt. Louis G. Cavalier, president of New Haven Police Union Local 530, said Illingworth contacted the union about the incident.
"He maintains his innocence in the case," Cavalier said. "He's hoping he'll be cleared and he'll be able to get his weapon back. Mike feels he's going to be able to prevail in court when he gets his day."
Cavalier said he discussed ramifications of the charges with Illingworth in light of the recently passed Domestic Violence Gun Ban.
The federal law, enacted last September, is designed to take guns out of the hands of people convicted of domestic violence. Critics of the law say it targets police officers.
A poll conducted last year by the National Association of Chiefs of Police projected more than 60,000 of the nation's 700,000 police would either lose their jobs or by reassigned to civilian-type desk duties because they no longer could own or carry a firearm.
Busted officer taken off street
New Haven Register (CT)
March 5, 1998
https://infoweb.newsbank.com/
A city police officer arrested last month in Hamden has been taken off the street. Officer Michael Jones, 31, of Branford, a member of the force for almost 10 years, was arrested Feb. 19 after allegedly harassing his former girlfriend and vandalizing her boyfriend's car. He was charged with first-degree criminal mischief and second-degree harassment.
Jones surrendered to police after learning there was a warrant for his arrest, said Hamden Police Inspector Robert Nolan.
It's the second time in less than a month a city police officer was stripped of his gun and put on administrative duty following a domestic violence arrest.
On Feb. 11, Officer Michael S. Illingworth, 28, was charged by Guilford police with third-degree assault and disorderly conduct after an alleged altercation with his 21-year-old wife. Illingworth has denied the charges.
Officer Frank Lombardi, vice president of New Haven Police Union Local No. 530, said he did not know specifics of Jones' case, but said Jones also is denying the allegations.
If convicted, both officers could lose their jobs because of a recently passed federal law designed to take guns out of the hands of people convicted of domestic violence.
Jones could not be reached for comment Wednesday. There was no answer Wednesday afternoon at the former girlfriend's home.
Jones claims his former girlfriend, identified in court records as Amy Hodder, is harassing him. He reportedly filed a complaint against her and she was subsequently arrested Jan. 22 and charged with second-degree harassment, Branford police said.
State police records show Jones has a prior arrest for four counts of second-degree harassment and two counts of threatening. In April 1995, the police commission disciplined Jones by dropping him one patrolman's grade after reports that he allegedly drove his police cruiser to Hamden while on duty and argued with his wife while she was working at a Dixwell Avenue restaurant.
According to the warrant for the Feb. 19 arrest, Jones is accused of puncturing the tires and slashing the convertible top of a car belonging to Hodder's boyfriend.
The car was reportedly parked in front of Hodder's Hamden home Jan. 22.
Hodder told police Jones called her on the telephone 10 to 15 times each day, threatened her, and left a love note taped on her front door with a New Haven Police Department sticker, court records said.
The couple lived together in Branford from October 1997 until December. Branford police said they have three reports of disputes between the couple during this time, court records say.
Jones is scheduled to appear March 13 in Superior Court in Meriden. Hodder's next court date in Superior Court in New Haven is Monday.
Judith Mongillo, spokeswoman for the Police Department, said both officers will remain on administrative duty until their cases are adjudicated.
Because the incidents involve domestic violence, both officers could be prohibited from possessing weapons and could ultimately lose their jobs due to the new Domestic Violence Gun Ban.
Critics of the law, enacted last September, say it targets police officers.
A poll conducted last year by the National Association of Chiefs of Police projected more than 60,000 of the nation's 700,000 police would either lose their jobs or by reassigned to civilian-type desk duties because they no longer could own or carry a firearm.
Women's groups favor the law. They claim it's not uncommon for police to be perpetrators in domestic violence cases.
President didn't uphold Constitution
Blade, The (Toledo, OH)
OPINION
Author: BRUCE A. BEATTY - Luckey
March 22, 1998
https://infoweb.newsbank.com/
How ironic it is that President Clinton has threatened to veto an appropriations bill because the Republican Congress attached an anti-abortion amendment to it.
I wonder where Mr. Clinton's conscience and sense of righteousness was when he signed the 1996 appropriations bill with the notorious Lautenberg amendment, which retroactively outlawed the purchase, possession, and ownership of firearms by anyone with a misdemeanor conviction for domestic violence.
While I am not supporting people committing violent acts and believe they should be punished, laws such as the Lautenberg amendment damage our freedoms in more ways than one.
First, Article I, Section 9, of the Constitution specifically prohibits Congress from passing ex-post facto, or retroactive, law. When Mr. Clinton signed that legislation, he violated his oath of office.
Second, it is also unconstitutional to deny civil rights for a misdemeanor conviction. If the penalty for domestic violence is too lenient, I propose we upgrade it to felony status and apply the law in compliance with the Constitution.
Unfortunately, it seems that far too few of our elected officials have bothered to read the very documents they swore to uphold.
Poltical Ad Watch
USA TODAY (USA)
April 8, 1998
https://infoweb.newsbank.com/
THE CANDIDATE: Rep. Helen Chenoweth, a Republican who is running for re-election in Idaho's 1st Congressional District.
AD CONTENT: In an advertisement appearing in the April 5 national weekly edition of The Washington Times, Chenoweth attacks an amendment sponsored by Sen. Frank Lautenberg, D-N.J., that bans people convicted of misdemeanor domestic violence offenses from owning guns. The measure is now law.
"Don't Let the Government STEAL YOUR GUNS!" the ad says.
"Though this amendment was intended to have the best interest of abused spouses at heart, look again! It is a misdirected and poorly crafted law with the following fatal flaws:
"An abused spouse can be denied the right to own a gun. The ban applies to couples who get into shouting matches with each other or their children. The amendment is retroactive and creates a new penalty for many law enforcement men and women who may have been a past victim of domestic violence.
"This law is being used to disarm men and women serving in our Armed Forces!
"The Lautenberg Amendment shows where the radical anti-gun agenda of Clinton and the Democratic Party leads us! That's why Congressman Helen Chenoweth has introduced H.R. 1009 to repeal the Lautenberg Amendment.
"And that's why she needs you to send your most generous donation immediately to help her fight the good fight against the leftist gun-controllers."
Chenoweth, whose photograph is featured prominently in the ad, then makes a personal appeal:
"I know the readers of The Washington Times National Edition are as outraged as I am about politically correct liberals in Washington, D.C., attacking our rights as law-abiding Americans to own guns. And I pray that they will send me whatever they can afford to help me continue to fight the Lautenberg gun-grab."
The ad then solicits contributions from readers.
THE INTENT: To paint Chenoweth as an advocate for gun owners and win financial support from the 100,000 readers of the newspaper.
REALITY CHECK: Chenoweth's ad misrepresents the law when it claims that people who are victims of domestic violence or people who get into shouting matches with family members can lose the right to own a gun.
The Lautenberg law only applies to people who have been convicted by a jury or have pleaded guilty to a misdemeanor crime of domestic violence. Being accused of domestic violence -- or being a victim -- doesn't trigger the ban.
Graham Paterson, Chenoweth's campaign aide, defends the ad by saying that some people may be wrongly accused and simply plead guilty to the crime "to put the issue behind them" or because they can't afford a lawyer.
Chenoweth is correct in saying that the law applies to people in the Armed Services and law enforcement. No one who has been convicted of a misdemeanor domestic violence offense is exempt from the measure.
And it is retroactive in the sense that convictions before 1996, when the law took effect, can strip people of the right to own or carry a gun.
As for Chenoweth's claims about "leftist gun-controllers," Lautenberg's measure overwhelmingly passed the Senate in September 1996. Only two senators voted against it -- Democrats Howell Heflin of Alabama and Jeff Bingaman of New Mexico. Ninety-seven senators -- including Idaho Republicans Dirk Kempthorne and Larry Craig, a prominent National Rifle Association member -- voted for it.
WEAPONS LAW CAN HURT COPS ACCUSED IN DOMESTIC CASES
Press of Atlantic City, The (NJ)
May 18, 1998
https://infoweb.newsbank.com/
A Little Egg Harbor Township police officer facing accusations that include beating his wife outside a Wawa is suspended this spring, even though the case against him was thrown out of court because his wife refused to testify.
A Bayside State Prison corrections officer's 13-year career ends after a domestic-violence investigation links him to Ku Klux Klan recruiting efforts and accusations he enlisted an inmate to hurt his wife and her new boyfriend.
And a Cape May County sheriff's officer gets five years' probation for violating two restraining orders, when he broke into his wife's home to get his belongings and, later, attacked his new girlfriend. He'd already served 70 days in jail while his case was pending. Now, his 15-year career is over.
To some minds, these people got off easy.
But law-enforcement officers and other public servants face more media scrutiny - and greater losses - when they break the law and threaten or harm their wives or girlfriends.
For many, growing up to be a police officer is a dream - one that could be shattered by committing acts of domestic violence, or even false charges filed by a vindictive lover.
Under an amendment to the federal weapons law, enacted last year, anyone convicted of a domestic-violence offense loses the right to carry a gun.
The 1996 Domestic Violence Gun Ban, sponsored by Sen. Frank Lautenberg, D-N.J., extends a federal prohibition of gun ownership or possession by convicts. Now, nobody convicted of a domestic-violence offense may carry a weapon. That includes police officers, prison or security guards, and those in the military.
Supporters applaud the amendment, while critics maintain it's too harsh.
"If an accountant has a domestic-violence incident, she doesn't lose her calculator," State Police Lt. Leon Brodowski told officers, prosecutors and victims'-rights advocates at a recent workshop in Atlantic City, called "When Police Officers Become Defendants."
He noted, "If a bus driver is involved in domestic violence, he doesn't lose his keys."
"The response to that is: 'Nobody kills their wives with their calculator,'" said Beverly Gilbert, director of the Atlantic County Women's Center.
The law, in a sense, handicaps police officers, often forcing them to switch to desk duty or step down. Another federal law says officers facing domestic-violence charges can lose their guns while those charges are being investigated - unless a prosecutor or judge agrees the suspect poses no threat.
"It's not a black-and-white issue," said Atlantic County Assistant Prosecutor Staci Scheetz, who handles weapons hearings in Atlantic City. "They're reviewed on a case-by-case basis."
Sometimes an officer must leave a gun at work - signing it in and out - a liability for a department. But, Scheetz said, many have guns at home that aren't departmentally issued.
Even in cases of false accusations, the wait can be long.
What angers law-enforcement officials is that even if a conviction preceded enactment of the law, and the officer in question had sought help for alcohol problems or anger management, he could still lose his gun - and his job.
"These officers are now losing their jobs because of old domestic-violence incidents," said Plainsboro, Middlesex County, Police Chief David Lyon, the New Jersey State Chiefs of Police Association representative on the governor's Committee on Domestic Violence.
"Certainly," Lyon said, "those who have sustained previous convictions were caught off guard by the federal law."
Lyon said he had no statistics on police officers, but noted that domestic-violence incidents are dropping. In 1992, there were 52,321 reports statewide, peaking in 1995 at 86,631. In 1996, he said, they dropped to 85,018.
Although the state Attorney General's Office has ordered police departments to keep records of such incidents, it's up to each to maintain the records. As a result, there's no statewide clearinghouse for statistics on officers.
Brodowski, the State Police assistant Internal Affairs bureau chief, estimates that less than 6 percent of the force's 2,600 members have been involved in reported domestic-violence incidents. Even fewer - .001 percent - are barred from carrying guns.
He points to a recent Tucson, Ariz., survey showing 14 percent of police officers nationwide had a domestic-violence dispute in their homes in the past year, compared with 32 percent of military officers.
Retroactive aspect an issue
Critics say it's not fair to deny guns to officers whose convictions preceded the law's enactment in September.
The National Association of Chiefs of Police estimates more than 60,000 of roughly 600,000 officers nationwide could be required to turn in weapons - decimating some departments. And the National Rifle Association contends that domestic violence rarely involves a gun.
Challenging whether the law should be retroactive likely will be a focus of law-enforcement agencies, which believe there should be flexibility when it comes to old offenses.
"People change," Lyon noted.
So far, at least one officer has challenged the law.
In September, a Willingboro, Burlington County, police officer pulled off the street and assigned a desk job filed a lawsuit. In 1995, he pleaded guilty to a disorderly persons offense for grabbing his ex-girlfriend by her shirt and throwing her around his bedroom. After paying a $250 fine, he figured it was over - that is, until the law was enacted.
State Police are required to report incidents. But Brodowski says internal investigations have turned up unreported offenses.
"We have no idea how many (incidents) police don't know about," he said. "We're uncovering domestic-violence incidents that we never knew about. Always, the wife is more seriously injured and the police officer is the aggressor."
And alcohol often plays a part. "It may not be the cause," he said, "but it often is a factor."
A focus on prevention
Ironically, the traits many police forces look for in recruits are dominance and assertiveness.
"The personality traits we recruit for are great for our jobs but bad for our homes ... relationships and partnerships," Brodowski said. "We used to teach officers how to investigate these incidents and now we're teaching them how to prevent them in their own lives."
State Police Detective Sgt. Matthew Welch, of the Internal Affairs Investigations Unit, who spoke at the workshop with Brodowski, said police continue internal investigations even if a victim won't cooperate. Excuses aren't hard to see through.
Criminal charges might be dropped if a woman blames her injuries on falling down stairs, but that won't stop Internal Affairs from imposing a reprimand, suspension or, if two incidents occur within a year, dismissal.
"There's a lot of frivolous, bogus complaints filed," Welch said. "We don't have the luxury of standing back and saying, 'We don't believe that - it's garbage.' "
Gilbert, of the Atlantic County Women's Center, says she's seeing fewer officers' wives there, either because incidents are declining or spouses are leaving relationships. But shelter workers have reported incidents to an officer's shift commander.
"That would stop it right away," she said, adding that a first line of defense for women is to call police. However, officers' wives are sometimes fearful because they're "her husband's buddies."
But when those wives seek shelter, some need special lodgings because many officers know the shelter's location. Only 1 or 2 percent of officers are dangerous and would act out, Gilbert said.
"They are that lethal," she added. "You never know which one is the crazy one who will come and shoot everyone in the shelter."
Charges often dropped
What prevents some victims from lodging charges is that the officer - and spouse - lose medical benefits during a suspension or dismissal. Essentially, that means a victim is hurt twice.
Many have families to care for, so many victims back down.
Employee Assistance Programs teach officers the Three C's - commitment, compromise and communication. "I don't know how many cases of domestic violence have been prevented by these programs," Welch said.
Pending charges are sometimes costly for agencies. For some, it's financially draining keeping an officer on the force. If a state trooper assigned to a rural barracks loses his gun while charges are pending, he's put on a desk job.
But he may be the only one in the barracks, so an armed trooper also must remain there - imposing an additional cost.
It also means one less trooper is on the road.
And if a victim lives in the area a trooper patrols, the trooper is assigned elsewhere.
Bob Pugh, director of Atlantic City's Department of Public Safety, says his department is guided by the county Prosecutor's Office after a judge makes a ruling.
"If it doesn't rise to the level of a gun, you have to evaluate each of these situations on their own merit," Pugh said. "We always try to err on the side of caution. ... I recognize problems happen in marriages, but officers have to be mindful.
"When a person takes a post as a law-enforcement officer," Pugh said, "he recognizes he's being held to a higher standard and the public expects that if we're to maintain their trust, we have to be held to a higher standard."
The same is true for public officials and officers convicted of official misconduct, he said, noting that they lose their jobs, pensions and are barred from ever holding public sector jobs.
But Pugh said he doesn't support desk duty. If an officer in Atlantic City loses the right to carry a gun, that officer is suspended.
"The problem is, if we assign individuals to desk duty, where does the number stop?" he asked. "We could end with six, seven or nine people assigned to desk duty. That goes against what we're trying to accomplish."
Pugh added: "The law is: 'You can't have a gun and if you can't have a gun, you can't function as a police officer.'"
Galena man sentenced to 18 months
Telegraph Herald (Dubuque, IA)
June 10, 1998
https://infoweb.newsbank.com/
CEDAR RAPIDS, Iowa - A Galena, Ill. man pleaded guilty to illegal possession of a firearm in U.S. District Court in Cedar Rapids, Iowa, Monday,.
Luke Behnke, 28, pleaded guilty and was sentenced to 18 months in prison followed by three years supervised release.
Court records indicate on Oct. 31, 1997, Behnke took a loaded 12-gauge shotgun and sat in a car outside his estranged wife's place of employment.
He was arrested because of a previous conviction on a misdemeanor crime of domestic violence in April 1997 in Grant County, Wis. The 1996 Lautenberg Amendment prohibits persons who have been convicted of misdemeanor crimes of domestic violence from acquiring or possessing firearms.
Domestic-violence amendment causes problems in the military
Washington Times, The (DC)
Section: ANATIONSGT. SHAFT
August 10, 1998
https://infoweb.newsbank.com/
DEAR SGT. SHAFT:
Can you please explain the new Pentagon policy on determining which military members have been convicted of domestic violence? Though I have never committed or been convicted of domestic violence, I feel the policy of conducting a survey to find out who has is terribly intrusive and smacks of entrapment.
My question specifically is: Do I have the right to not answer (plead "the Fifth")? The military certainly has access to public court records, and if they want to investigate members, that is their prerogative.
K.M. from Cyber AOL
Dear K.M.:
It seems that you and many other active military types must now carry a barrister's beeper number instead of a weapon to protect your careers. Your concerns are well-founded as even now Department of Defense legal beagles are floundering around attempting to implement the Lautenberg amendment to the Gun Control Act of 1968.
The amendment, which became law on Sept. 30, 1996, makes it a felony for any person who has been convicted of a misdemeanor or crime of domestic violence to ship, transport, possess or receive firearms or ammunition. Until Sept. 30, 1996, military personnel were exempted from the provisions of the law. Inclusion of military personnel has made the services implement policies consistent with the Lautenberg amendment.
The Army released a message in January 1998 that directed commanders to notify all soldiers that it is unlawful to possess firearms and ammunition if they have been convicted of a misdemeanor crime of domestic violence. Commanders are required to have personnel records reviewed against the Lautenberg amendment criteria and report personnel data on those identified through command channels to the Department of the Army.
Commanders were further directed to detail soldiers whom they believe have a conviction for a misdemeanor crime of domestic violence to duties that do not require the bearing of weapons or ammunition. Further adverse administrative action and bars to re-enlistment may be imposed for an act of domestic violence that resulted in a conviction after Sept. 30, 1996. Commanders must also take action to secure personal firearms and ammo of soldiers under this law.
Personnel who have a civil misdemeanor conviction for domestic violence that was never reported to military authorities may now be asked to provide that information. Those who decline to report such adverse information may later be subject to administrative action for falsifying documentation or misrepresentation. It would be most appropriate for personnel who have never reported such incidents to get legal advice.
The old sarge, like the Defense Department, finds the bill misguided with regard to military personnel. From 1968 to 1996 Congress was wise to adhere to the Pentagon's request to exempt military personnel from the legislation. Now that the military services are required to reassign these personnel from positions requiring the use of arms and munitions, there may be an adverse impact on the military's combat readiness.
POLICE FIGHT STRICT GUN LAW
MANY COPS DON'T LIKE LAW THAT BARS ABUSERS FROM CARRYING FIREARMS WHETHER ON OR OFF DUTY
Rocky Mountain News (Denver, CO)
October 29, 1998
https://infoweb.newsbank.com/
Denver police officers convicted of beating up spouses or girlfriends might get to keep their jobs and guns because of a flurry of legal challenges to a 1996 domestic violence gun ban.
This week, a police lawyer will ask a federal appeals court to prohibit the Bureau of Alcohol, Tobacco and Firearms from enforcing the ban anywhere.
Officials estimate at least 1,000 officers nationwide have domestic violence convictions. Unless courts throw out the ban, they'll be stripped of their guns and jobs.
The U.S. Court of Appeals in Washington, D.C., found the ban unconstitutional this summer. But the ruling applies only to several East Coast states under the court's jurisdiction.
Police want to expand that ruling to protect officers around the country.
``A federal law can't be unconstitutional in one place and not in another,'' Denver Police spokesman John Wyckoff said.
The domestic violence gun ban has affected four Denver police officers in four ways:
* Detective James Huff, a 28-year police veteran, lost his job Oct. 19 after the Bureau of Alcohol, Tobacco and Firearms found the law applied to him.
Huff, 55, was charged with assault for striking his wife across the back with a broom handle on New Year's Day 1993. He pleaded guilty to disorderly conduct, and told investigators she threatened him with a kitchen knife.
* Officer James Ward has been assigned to desk duty and doesn't carry a gun. Police are still waiting for ATF to make a final decision on his case.
* Officer Alex Woods got his gun back in 1997 after a year of desk duty. He received an ATF letter saying the law never applied to him because the woman he choked and gave a black eye to was his girlfriend, not his wife.
Woods now works in northwest Denver as a training officer, teaching others how to be Denver Police officers.
* Officer Robert Bilstein, whose domestic violence case was under ATF review, retired several months ago.
The 1996 law, an expansion of the Federal Gun Control Act, prohibits anyone with a misdemeanor domestic violence conviction from owning a gun. It contains a no ``official duty'' exemption for police or military.
The Fraternal Order of Police has been fighting the law nationwide.
Anti-domestic violence activists are outraged that police groups are waging such a vigorous legal battle against a law that gives greater protection to crime victims.
``If they don't care about the safety of the employees' families, why in the world would they care about strangers they're supposed to protect?'' asked Rita Smith, executive director of the Denver-based National Coalition Against Domestic Violence.
In late August, a three-judge panel of the Washington appeals court found the expanded law unconstitutional because it's tougher on those convicted of misdemeanors than on those convicted of felonies.
That's because the original Gun Control Act allows police officers and military personnel with felony domestic violence convictions to carry firearms under an ``official duty'' exemption.
Last week, the Justice Department asked the entire court to reconsider the August ruling. No decision has been made on the rehearing request.
Despite criticism from groups fighting domestic violence, an attorney for the police union is trying to get the Washington ruling expanded to cover all officers. Lawsuits against the ban have popped up in several other courts.
``Any police officer or person that carries a gun in the public interest, if I win the arguments, they get the benefits,'' said William J. Friedman, a Santa Fe civil-litigation expert.
Later this week, he plans to ask the court to block ATF from enforcing the law. If he's successful, officers could keep their jobs until a final decision is made, possibly in the U.S. Supreme Court.
``I'll be submitting a response asking the court to maintain the status quo,'' Friedman said. ``I would hope that would have a positive effect on officer Huff in Denver.''
Wyckoff said Huff was not fired. ``Officer Huff separated from classified service . . . as a result of disqualification because of the Lautenberg Amendment,'' Wycoff said.
The gun ban is commonly called the Lautenberg Amendment after U.S. Sen. Frank Lautenberg, D-N.J., the bill's sponsor.
Police say it's not fair to take away officers' livelihoods for minor crimes from long ago.
In recent years, ``the screening in police departments has gotten where a person who previously had a problem with spousal abuse wouldn't be hired,'' said Jim Pasco, executive director of the national police union in Washington.
1999: Lautenberg DV Gun Ban - News Articles And Reports
CHIEF WANTS DOMESTIC ABUSER FIRED
Rocky Mountain News (Denver, CO)
January 12, 1999
https://infoweb.newsbank.com/
Denver Police Chief Tom Sanchez has recommended that officer Alex Woods Jr. be kicked off the force because of a domestic violence conviction.
Woods, 27, falls under a 1996 federal law, known as the Lautenberg Amendment, which bans domestic violence offenders from carrying firearms.
In 1995, Woods was convicted of assaulting his now ex-girlfriend and knocking her out.
Afterward, he was assigned to desk duty, but then returned to the streets when the federal Bureau of Alcohol, Tobacco and Firearms ruled the law didn't apply to him because the victim was his girlfriend, not his wife.
The victim came forward with proof the two had lived together, and ATF reopened the case.
Denver Manager of Public Safety Butch Montoya will make a final decision on Woods' employment within five days, said police spokesman John Wyckoff.
COURT UPHOLDS DOMESTIC VIOLENCE GUN BAN
Convicted: Ex-wife turns in man for possession of guns
Telegraph Herald (Dubuque, IA)
May 16, 1999
https://infoweb.newsbank.com/
MADISON (AP) - A man was correctly convicted of violating a federal law that prohibits people convicted of beating a spouse from owning firearms, an appeals court ruled.
The 7th U.S. Circuit Court of Appeals rejected Kirk Lewitzke's claim that it is unconstitutional to ban him from possessing a gun because he was convicted of a crime 10 years ago.
After his ex-wife turned him in for possessing guns, Lewitzke, 38, of Wausau, was sentenced last May to 11 months in prison and four months in a halfway house under the federal law.
Lewitzke was the first person in Wisconsin and one of about six in the nation to be convicted under the law, U.S. Attorney Peggy Lautenschlager said.
Lewitzke's ex-wife, Tammie Schmidt, contacted the U.S. Bureau of Alcohol, Tobacco and Firearms after reading an article about the law, which took effect in 1996.
Ten years ago, Lewitzke was convicted of punching Schmidt in the back and shoving her against a kitchen cabinet. A year before, he was convicted of sitting on her while she was five months pregnant and slapping her face, Lautenschlager said.
Schmidt said Lewitzke has not been violent since the divorce but that she worries about his "fascination with guns."
Lewitzke claimed at his jury trial the six guns and 3,000 rounds of ammunition in his home were left by friends and relatives who used them for target shooting on a range in his back yard.
Schmidt said she contacted federal agents after her 8-year-old son wrote in a school journal that "he spent the weekend shooting a machine gun with his dad."
U.S. District Court Judge Barbara Crabb sentenced Lewitzke to 11 months after federal agents raided his house and found six firearms.
Lewitzke, a maintenance supervisor at a packing plant in Merrill, was convicted in February.
Rocky Career Track Ahead for Soldiers With Records
Army Times
June 7, 1999
https://infoweb.newsbank.com/
The career prospects of soldiers with misdemeanor domestic violence convictions are not good, according to a series of new Army personnel policies related to federal gun control laws.
The new policies took effect May 21. Included are rules that:
* Bar soldiers with qualifying convictions from being placed on overseas orders.
* Bar the deployment of such soldiers on missions that require the possession of firearms or ammunition.
* Bar the assignment of such soldiers to service schools where the use of firearms is part of the curriculum.
* Active-Army and reserve soldiers with qualifying convictions will not be assigned to tactical units. Those already assigned to such units will be transferred to non-tactical units.
* Soldiers with qualifying convictions may not re-enlist and are not eligible for the Indefinite Reenlistment Program.
However, such soldiers may be extended for up to one year to seek a pardon for their conviction or to have the conviction expunged.
Soldiers within two years of qualifying for retirement may stay on active duty until they meet the retirement requirement, which for most is 20 years of service.
The new rules are an outgrowth of a gun control law (the 1996 Lautenberg Amendment) that made it a felony for anyone convicted of a domestic-violence misdemeanor to transport, possess or receive firearms or ammunition.
Because members of the armed forces routinely work with firearms and ammo, the law has major legal implications.
Early this year, the Army issued general guidance to commanders on managing soldiers with domestic violence convictions, according to Maj. Douglas Carr, a policy analyst in the Enlisted Division, Office of the Deputy Chief of Staff for Personnel. On May 21 the Army refined that guidance with instructions on the deployment, assignment and retention of soldiers with misdemeanor domestic violence convictions.
Carr said misdemeanor convictions do not include summary courts-martial; non-judicial punishment under Article 15 of the Uniform Code of Military Justice, and deferred prosecutions and dispositions. These are considered lesser violations. He said the policies also establish reporting procedures that will give the Army information on how many soldiers have qualifying convictions.
Carr said qualifying soldiers who already are overseas will complete their tours. Soldiers who are on overseas orders, and who have shipped their household goods, also will proceed to their assignments. But soldiers with qualifying convictions generally will not be sent on overseas tours.
Soldiers should consult ALARACT Message DTG 211105Z May 99. The subject line is: "HQDA Guidance on Deployment Eligibility, Assignment and Reporting of Soldiers Affected by the Lautenberg Amendment."
Military gun control
Washington Times, The (DC)
June 10, 1999
https://infoweb.newsbank.com/
The Army brass that entrusts U.S. soldiers with the nation's defense apparently can't trust them with their own weapons.
Top U.S. Army officials are weighing an order that would require soldiers to register privately owned weapons now stored as much as 60 miles away from Army installations. Undated draft documents, on U.S. Armed Forces Command letterhead, that The Washington Times obtained, say the order is a response to unspecified shootings.
"Recent shooting incidents have elevated my concern that soldiers are not registering and properly storing their privately owned firearms," says an unsigned draft memo from Thomas A. Schwartz, chief of Armed Forces Command in Atlanta. A spokesman for Armed Forces Command, Barry Morris, confirmed the existence of the draft documents as one of many but declined comment on their substance, saying that it is against Army policy to discuss regulations under consideration. The order "may look very different" than it does now if it takes effect, he said.
Tennessee Rep. Ed Bryant, who taught law at the U.S. Military Academy at West Point said the order had the "makings of a good lawsuit." Military personnel may have to give up certain rights - among them a Second Amendment right to bear arms - in the interest of the military's good order and discipline. The question is what restrictions on privately owned firearms off-post - "whether its 1 mile or 61 miles," Mr. Bryant said, have to do with good order and discipline. "I'm not sure I see it," he added. "It's perhaps a bit of an overreaction."
The draft order, under the headline "FORSCOM [Forces Command] Registration and Storage of Privately Owned Firearms Policy Requirements" states: "All soldiers who live on or off post will register with their installation of assignment or duty installation any firearm they own which is stored within sixty miles of such installation." (emphasis in original) The order also states that all soldiers are prohibited from keeping privately owned weapons in their vehicle while on-post unless it is being transported for "authorized purposes" and in accordance with installation regulations and federal, state and local law.
The "primary purpose" of the order is to give commanders the ability to make timely decisions on whether to issue an order prohibiting soldiers from possessing weapons on or off-post. "Commanders will order soldiers to temporarily place in the unit arms room their privately owned firearms stored within 60 miles of their installation," the draft says, when the commander has "credible information" that allowing the soldier unrestricted access to the privately owned firearm "presents an imminent,serious danger to the soldier or others" and the order is reasonably necessary to ensure good order and discipline.
The order will enable the commander to ensure security on the base and to promote compliance with the so-called Lautenberg amendment, which makes it illegal for soldiers to possess firearms and ammunition on-post or off-post if they have been convicted of domestic violence.
Now base commanders already have the authority to require the registration of weapons brought on-post. The question, as Mr. Bryant put it, is what authority the military has to regulate the use of weapons stored and only used off-post. Is there any precedent for that authority? Mr. Morris did not say.
But just because soldiers are willing to die for their country doesn't mean they forfeit all rights as citizens. Let us count them:
* The Second Amendment: The authors of the memo seem to assume that the Second Amendment is a collective, not an individual, right and that therefore a soldier would have no standing to challenge such a regulation. There is a growing amount of scholarly literature to suggest that the Second Amendment is no more collective in nature than, say, the First or Fifth amendments. Recently a federal judge in Texas agreed to consider a Second Amendment challenge to a law stripping a man accused, but never proved, of engaging in domestic assault.
* The Fourth Amendment: The draft order makes soldiers' off-base weapons subject to seizure. The last time someone checked, the Founding Fathers insisted the feds needed a warrant to do that.
* The Fifth Amendment: The amendment prohibits self-incrimination. Is the military going to force a soldier to incriminate himself by revealing that he is in possession of an unregistered weapon? The amendment also prohibits government "takings" without just compensation. If you're going to take a soldier's weapon, one stored 60 miles off base, without good cause, the feds better be prepared to compensate him for it.
But these are arguments for courts and Congress. In the meantime, one looks forward to hearing the Clinton administration make the case for the new restrictions. Mr. Clinton is on record in support of gun registration now. Let him explain it to soldiers. Right before they head off to Kosovo.
NAVY SLOW TO LIMIT WEAPONS TO ABUSERS
SEA SERVICES ARE WAITING FOR GUIDANCE FROM DOD
Navy Times
June 28, 1999
https://infoweb.newsbank.com/
Since 1996, the services have been under the congressional gun to limit access to military firearms for people with domestic violence convictions, but only the Army has taken steps to modify its assignments policies.
A change to the Gun Control Act of 1968 -- dubbed the Lautenberg Amendment -- took effect Sept. 30, 1996, and requires the military to keep firearms from any service member ever convicted of a domestic violence misdemeanor. The prohibition applies to firearms such as the M16A2 rifle and 9 mm pistol but not crew-served weapons such as the .50-caliber machine gun.
The Defense Department issued an interim policy in October 1997. The Navy and the Marine Corps issued policies in 1998, but neither of those services has discharged or reassigned personnel convicted of misdemeanor domestic violence.
The sea services are waiting for further guidance from DoD, according to spokeswomen at the Navy's personnel office and Marine Corps headquarters and in Washington, D.C.
Army rules
But the Army isn't waiting, and, as of May 21, the career prospects of soldiers with misdemeanor domestic violence convictions are not good.
Included are rules that:
* Bar soldiers with domestic violence convictions from being placed on overseas orders.
* Bar the deployment of such soldiers on missions that require the possession of firearms or ammunition.
* Bar the assignment of such soldiers to service schools where the use of firearms is part of the curriculum.
* Prevent active Army and reserve soldiers from being assigned to tactical units. Those already assigned will be transferred to non-tactical units.
* Disqualify soldiers with convictions from re-enlistment and the Indefinite Re-enlistment Program.
The policy offers some career protections as well, said Army Maj. Douglas Carr, a policy analyst in the Army's Enlisted Division, Office of the Deputy Chief of Staff for Personnel.
For example, soldiers convicted of misdemeanor domestic violence have up to one year to seek a pardon or to have the conviction expunged. What's more, soldiers within two years of qualifying for retirement may stay on active duty until they meet the retirement requirement, which for most is 20 years of service.
Carr said soldiers with convictions who already are overseas will complete their tours. Soldiers who are on overseas orders and who have shipped their household goods also will proceed to their assignments. But convicted soldiers generally will not be sent on overseas tours.
Fleet response
Navy and Marine guidance spell out the nuts and bolts of the law, defining qualifying misdemeanor convictions and telling commanders to prohibit access to military firearms and ammunition when required.
The Navy will screen all active and reserve personnel, but is waiting for an updated Defense Department form to begin the screening process.
"Commanders, especially those in command of deployed units, will not initiate any screening process or take any further action to identify Marines or sailors who may be affected by this law until further guidance is provided," the message said.
Both Navy and Marine policies prohibit commanders from discharging personnel based solely on a misdemeanor domestic violence conviction.
Stupak's decision is a disappointment
Cheboygan Daily Tribune (MI)
Section: News
Letters to the editor
Author: John Hongisto - Marquette
July 16, 1999
https://infoweb.newsbank.com/
I am disappointed, to put it mildly, in your (Bart Stupak's) recent vote to further restrict the lawful commerce in firearms. I consider that vote and your support for the Lautenberg Amendment, which was signed into law in December of 1997, a betrayal of trust.
The Lautenberg Amendment federalized the crime of domestic violence. Anyone convicted of this misdemeanor, regardless of how minor the offense or how long ago it happened, is banned for life from owning or using firearms. This law does nothing to curb domestic violence, but it does give the Feds another legal excuse to deprive citizens of their property and their civil rights.
Despite your efforts to explain away and rationalize your votes, I believe you knew exactly what you were voting for. The anti-gun crowd exploits tragedies for political gain. They don't give a damn about domestic violence or protecting our kids. The fact that Handgun Control Inc. targeted this congressional district is revealing.
The purpose of this latest bill was to kill gun shows that are held on weekends by requiring a three day waiting period for background checks. Never mind that there is an instant check system in place. Gun shows are political gatherings as well as popular venues for pro-gun rights political activism. They are often the largest events held in most places; a fact not lost on the anti-gun folks. That is why they were targeted for extinction.
The purpose of imposing still more restrictions on law abiding people is to make firearms ownership, purchase and use as expensive and burdensome as possible. The plan is to discourage citizens from exercising their Second Amendment rights and reduce the size of this pro-gun constituency. With fewer people to support and speak up for gun rights, the easier it becomes to abridge those rights. Vigilance is indeed the price of liberty.
Schemes to disarm the people are as old as tyranny itself. Americans are not immune from governmental tyranny as evidenced by the federal law enforcement fiascos at Waco, Texas and Ruby Ridge, Idaho. Those who fail to learn the lessons of history are bound to repeat them. The repression, ethnic cleansing and genocide endured by the Kosovar Albanians could never happen here as long as we are armed. Armed people are a free people.
We are well advised to heed this lesson. I beg your indulgence.
Regulators seek to revoke license of Nevada dealer
Las Vegas Sun (NV)
July 17, 1999
https://infoweb.newsbank.com/
Jennings, one of the country's largest wholesale distributors of handguns, is appealing the decision by the Bureau of Alcohol, Tobacco and Firearms, The Washington Post reported in Saturday's editions.
Without the license, the newspaper said, Jennings could be forced to divest his company, B. L. Jennings Inc. based in Carson City, Nev.
Jennings was convicted in 1985 of assaulting his then-wife, Janice Jennings, the Post said. He plea-bargained the charge down to a misdemeanor, spent 90 days in jail, paid a fine and spent two years on probation, the newspaper said.
In 1996, Congress amended gun laws to make it illegal for anyone convicted of domestic violence abuse to ship, transport or possess firearms or ammunition and applied the change retroactively.
The Post said the ATF issued Jennings a new license to do business last year and did not move to revoke it until after inquiries by the newspaper.
An ATF spokesman said Jennings was notified last month his license was to be revoked, that he challenged the action and, therefore, will retain the license until the outcome of a hearing before an administrative law judge.
James Sabalos, an attorney for Jennings, would not comment on the licensing matter but told the Post he was investigating if the ATF violated federal law by discussing the case with the newspaper.
The same law has been at the center of a controversy involving two police officers in nearby Reno, Nev.
Officers Lynn Drake and Mark Markiewicz, were recommended to be laid from their jobs because of misdemeanor domestic-violence convictions that occurred before 1996.
Reno's Civil Service Commission refused to let the men go and now are in a court battle with the District Attorney's Office on the issue.
B.L. Jennings Inc. is licensed to ship 150,000 guns to dealers each year. The business has made Jennings a multimillionaire with cars, boats, private planes and homes around the country.
He started in the gun business as one of a renowned group outside Los Angeles called the "Ring of Fire" companies, which make guns that sell at a fraction of the cost of guns made by other gun companies such as Smith & Wesson, the newspaper reported.
The inexpensive guns have been traced to crimes more than three times as often as other types of guns.
After his 1985 assault conviction and jail sentence, Jennings moved to Nevada where he opened a distributorship. Jennings Firearms, his original company, was signed over to his ex-wife, Janice, as part of their divorce settlement and renamed Bryco Inc.
In the past, Jennings has been listed as a "responsible party" at Bryco, which made nearly 48,000 guns in 1997, according to ATF figures. If the ATF determines that Jennings is part of Bryco management, that company also could lose its firearms license, according to the Lautenberg amendment.
Sabalos has said in the past that Bruce Jennings has nothing to do with Bryco. ATF officials declined to comment on whether the Bryco license also is being investigated.
Police group joins lawsuit
Denver Post, The (CO)
July 17, 1999
https://infoweb.newsbank.com/
The National Association of Police Organizations, the umbrella organization for more than 4,000 police departments, has joined a federal lawsuit filed by Denver officer James A. Huff. The Denver Police Department fired Huff on Oct. 18 because he'd been convicted of third-degree assault in 1991.
Under the Lautenberg Amendment to the Gun Control Act of 1996, any police officer convicted of assaulting a spouse or domestic partner is no longer allowed to carry a weapon. The federal Bureau of Alcohol, Tobacco and Firearms ruled that Huff could no longer be armed, and he was let go from the police department.
The police association is asking that the Lautenberg Amendment be ruled unconstitutional and that Congress exceeded its authority by adopting the measure.
Man guilty of weapons charge
Augusta Chronicle, The (GA)
August 10, 1999
https://infoweb.newsbank.com/
A Clearwater man who stockpiled weapons and sold them from his home pleaded guilty Monday in federal court to illegal possession of firearms.
Wallace Mars, 31, had two prior convictions involving domestic violence in 1998. The Lautenberg Amendment of 1996 bans people convicted in domestic violence cases from possessing firearms.
The U.S. Bureau of Alcohol, Tobacco and Firearms received information in October that Mr. Mars was selling firearms from his home. An informant purchased a shotgun from him Oct. 15.
With a warrant, federal agents searched the home and seized 19 rifles and six handguns, all of which had been used or sold in other states, authorities said.
Mr. Mars pleaded guilty and will be sentenced by U.S. District Judge Charles Simons Jr. after a report is prepared by the U.S. Probation Office. Mr. Mars faces a maximum sentence of 10 years in prison and a $250,000 fine.
FEW LOSE JOBS
Akron Beacon Journal (OH)
December 5, 1999
https://infoweb.newsbank.com/
It was a wild scene when Akron police arrived at the home of detective Michael T. Lugenbeal's estranged wife on a domestic violence call in the early morning hours of Aug. 23, 1997.
A convoy of five blue-and-white police vehicles, carrying two patrol officers, two sergeants and a lieutenant commander, had been dispatched to the scene to restore peace. Two of them struggled to bring the detective under control.
Lugenbeal, enraged to the point that "he just couldn't take any more," according to police records, was handcuffed and taken to St. Thomas Hospital "where he had to be held by six people and placed in four-point leather restraints."
Soon after, he was arrested for domestic violence -- for allegedly throwing a can opener and set of keys at his wife.
Five months later, Lugenbeal's domestic violence charge quietly went away inside the city's justice system when he pleaded guilty to a lesser crime, disorderly conduct.
The plea deal was critical to saving his job as a cop. Had he been convicted of domestic violence, he would have lost his gun permanently -- and likely his job on the street -- under a 1996 federal law prohibiting anyone ever convicted of that crime from carrying a firearm.
Fair or not, the treatment Lugenbeal received is not unusual. Throughout the nation, evidence shows the 1996 law is not being enforced and that scores of police officers remain on the job despite incidents of domestic violence.
An Akron Beacon Journal survey of the country's 100 largest police departments, initiated this summer amid the hotly debated domestic violence allegations in a case involving Akron Police Chief Edward D. Irvine, revealed few police officers have been forced to give up their guns.
The survey, asking each city's police chief how many officers were fired or reassigned to administrative duties as a result of the so-called Lautenberg Amendment, showed that disciplinary actions were taken by six cities and that a total of 11 officers were affected.
That number is just a fraction of the estimated 60,000 officers who were expected to lose their jobs, according to law enforcement experts quoted shortly after passage of the law in September 1996. In fact, the National Association of Police Chiefs said at the time that the estimate was probably conservative.
The survey's finding that action was taken against only 11 officers may itself be understated, because 32 police departments did not respond to the survey or refused to disclose figures to the newspaper.
Yet the 68 departments that provided the requested information employ 78,500 officers -- roughly the population of the city of Canton.
Some of the responses appear suspect.
Chicago, the second-largest department in the nation with more than 13,000 officers, reported that it "conducted a thorough background search on all of the sworn personnel under its employment" and found that not a single Chicago officer was fired or reassigned because of the 1996 law.
How could that be?
Using their considerable power and influence in the oft-secretive world of law enforcement, police know how to manipulate the system and the system often looks the other way while they do it, according to Penny Harrington, the former police chief of Portland, Ore., and now director of the National Center for Women and Policing.
Harrington said police have gotten around the law by routinely getting domestic violence convictions expunged from their record or by pleading to lesser crimes than domestic violence, as in the Lugenbeal case.
"Right after the law came out," Harrington said, "there was this huge rush, nationwide, of officers running in to get their records expunged. And most of the judges went along with it."
Harrington blames the entire justice system for the ease with which cops get their records expunged.
"The judges are in league with the officers," Harrington said. "Judges also are guilty of family violence, and it always gets covered up.
"Any high-profile person -- a judge, a politically appointed or elected official, or a district attorney -- the whole system covers up for each other on this issue more than anything."
* * * * * * * *
LAW IS CONTESTED
In numerous cities across the nation, police have fought to keep their jobs by contesting the law or using loopholes to get around it.
For example, in May 1997, three Los Angeles County sheriff's deputies who lost their guns because they had been convicted of domestic violence charges won their jobs back. They simply went to court and had their convictions expunged.
Several lawsuits also have been filed challenging the constitutionality of the Lautenberg Amendment, and the issue could end up before the U.S. Supreme Court, law enforcement experts said. The National Association of Police Chiefs and other pro-law enforcement groups have argued the law is unfair because it unfairly singles out police and is retroactive -- meaning a domestic violence conviction 20 years ago would fall within the law.
Despite those legal challenges to Lautenberg and its apparent lack of teeth, there remains evidence that such a law is necessary.
Leanor Boulin Johnson, associate professor of family studies at Arizona State University, compiled the strongest evidence to date showing that the number of police abusing their loved ones should be much higher than the numbers reported since passage of the law -- named for its sponsor, U.S. Sen. Frank R. Lautenberg, D-N.J.
Johnson surveyed 728 police officers in two East Coast departments in the mid-1980s, asking whether they had ever lost control or committed a violent act against a spouse or a child within the previous six months. Promised anonymity, hundreds said they had.
According to the study, 40 percent of those cops said they had acted violently toward their children and 45 percent said they had acted violently toward their spouse.
Johnson said she hopes to obtain funds for a follow-up study of the issue, but warned that she fears it would not be nearly as revealing.
"I think it's going to be very difficult to find out what the numbers are now because of the Lautenberg law," Johnson said. "Police know the consequences now, and they are going to be a lot more cagey."
Sen. Lautenberg did not respond to repeated requests for an interview about the apparent loopholes in the law.
In Akron, it is virtually impossible to determine if officers have been convicted of domestic violence and managed to keep their guns because of expungement.
Responding to the newspaper's survey, Akron Police Chief Irvine referred questions to the city law department, which in turn reported that no Akron officers have been affected directly by Lautenberg. (In Irvine's case, in which his wife alleged he had assaulted her in October 1998, three investigations concluded that the allegations could not be substantiated.)
* * * * * * * *
EXPUNGEMENT NOT UNUSUAL
Expungement itself is not that unusual or difficult to obtain. Most first-time offenders can apply to have their records expunged in Ohio.
To get a record expunged, according to state law, the appealing party must wait at least a year after conviction to apply to the sentencing judge. During that year, probation officers monitor the party's conduct and submit a report to the judge.
The prosecutor's office has the right to object to the process, but the final say on expungement is the judge's alone.
Once the record is expunged, court documents and police incident reports are sealed and removed from public view. Anyone inquiring about a person's expunged record at the city justice center is simply told that there is no record.
The Akron law department reported that only one officer, Gerald Williams, was suspended from police duty and had his gun taken away because of a domestic violence incident, in March 1997, when he struck his wife and broke her jaw.
However, city attorneys were quick to point out that Williams had lied to fellow officers during an Internal Affairs investigation of the 1997 incident and then entered a revised plea of no contest to aggravated menacing in that case. He was fired for that and a previous infraction of police department regulations -- not for Lautenberg, they said.
Williams refiled a civil lawsuit last month, charging the city with discrimination in its disciplinary actions, and asking for reinstatement as a police officer and back pay. An African-American, he contends some white Akron officers were involved in domestic violence incidents but in most cases were reinstated to full duty after serving suspensions and undergoing counseling.
"I was guilty for what I did," Williams said in a recent interview, "but what I'm simply asking for is the same treatment that other officers received for similar, or more serious, offenses.
"The city's response has been that it considers each case separately and hands out discipline accordingly. The city's response in my case was: 'He did it, fire him, and we don't care what happens to him or her, or our four children.'
"How can you have two officers commit the same offense and get treated differently? There's no rhyme or reason to the system of discipline. The police department has a better non-smoking policy -- posted in black and white -- than it does on domestic violence."
One of the cases cited by Williams in his legal paperwork involves Lugenbeal, who was the subject of an Internal Affairs investigation for domestic violence after he caused a traffic accident on the night of Aug. 22, 1997.
According to records of the Internal Affairs investigation ordered by Chief Irvine, Rosanna Lugenbeal called police to report a domestic violence incident hours after the accident.
Rosanna Lugenbeal told police that they had gotten into a heated argument about the accident and her husband had thrown a can opener at her. He missed because she ducked.
Lugenbeal became so agitated when police arrived at the scene that he had to be restrained and placed in the police van for everyone's safety, according to police records.
"Once Mike was in the wagon," Sgt. Mike Shearer Jr. wrote, "he started yelling and screaming about Rosanna. He was kicking and rocking the wagon."
Sgt. Myron L. Midcap, one of the officers who had to restrain Lugenbeal, later wrote a memorandum to Chief Irvine stating that Lugenbeal "exhibited a complete and utter disregard for his own well-being, for his family's well-being and the officers' well-being that were sent to the scene that night."
Midcap concluded his letter to the chief by saying: "I certainly wouldn't want to put any citizen of this community into a high-stress situation alongside (Lugenbeal), let alone another fellow officer."
* * * * * * * *
OFFICER GETS GUN BACK
After weeks of treatment at St. Thomas Hospital and Ignatia Hall Acute Alcohol and Drug Treatment Center, Lugenbeal waived his right to a jury trial in January 1998 and pleaded no contest to disorderly conduct and failing to maintain assured clear distance for the traffic accident.
Lugenbeal's departmental discipline was a five-day suspension without pay. He had to give up his gun for a year while he was taken off the street and reassigned to the communications room.
Lugenbeal, 39, has his gun back and currently works as a detective in the juvenile unit. He did not return messages left on his voice mail seeking comment.
The story of what Lugenbeal allegedly did that night is a classic example of how police handle domestic violence cases when one of their own is the suspect, according to experts.
"I think the issue is, a lot of departments don't want to deal with domestic violence, because if they do, you're going to have a lot of cops get their guns removed," said former New York City police officer Brian Levin, now a criminal studies teacher at Stockton College in Pomona, N.J.
When police take that stance within their own departments, he said, they ignore a frightening reality.
"I like cops. I think most cops are good people," Levin said. "But the fact of the matter is you have cases where cops shoot family members."
One of the most infamous cases involved former New York City officer Patrick Fitzgerald.
On Sept. 25, 1998, Fitzgerald shot and killed his wife, Leeanne, and their two children, phoned his desk sergeant to tell him of what he had just done, hung up, then turned the gun on himself.
The victim's family told reporters that she had routinely complained of abuse to department commanders, who did nothing. New York City police officials responded by denying the allegations.
Abusive ex-cop wins in hearing
Officer seeking reinstatement
Denver Post, The (CO)
December 14, 1999
https://infoweb.newsbank.com/
A former Denver police officer who was fired after he was convicted of beating his girlfriend could be back on the job - with gun in hand.
A hearing officer has ruled that former cop Alex Woods Jr. - convicted in 1995 of
third-degree assault - should be reinstated because the federal law that banned him from carrying a firearm because of the conviction doesn't apply.
"I'm happy with the outcome, and I'm anxious to get this behind me and move on with my life," said Woods, who's been working in the construction industry while fighting to regain his badge.
But the decision is drawing fire from those who work with victims of domestic abuse.
"A police officer's judgment in using force is critical, and to place someone back on the street who has so obviously demonstrated that he had no good judgment, it puts us all in greater danger," said Barbara Paradiso, interim director of the Colorado Coalition Against Domestic Violence. "How are we to trust him?"
City officials, who have fought to keep Woods off the police force, have the right to appeal the ruling. It wasn't clear Monday whether they will.
In late 1994, Woods gave his girlfriend, Mary Taylor, a black eye, split lip and swollen jaw, and then choked her into unconsciousness during a party at his home. Woods got a year of probation and counseling. Taylor claimed the beating was the culmination of a number of abusive episodes during their nearly three-year relationship.
Initially Woods was suspended from the Denver police force for 20 days and then given a desk job because of a federal law - dubbed the Lautenberg Amendment - that prohibited anyone, including police officers, from carrying a gun if convicted of domestic violence.
Later, however, the federal Bureau of Alcohol, Tobacco and Firearms determined the law didn't apply to Woods because his beating victim was a girlfriend and not a spouse. That decision drew intense criticism from U.S. Rep. Diana DeGette, a Denver Democrat.
In 1998, Woods was pitched from the force after an independent ATF investigation, at the behest of Denver police officials, determined that the law applied to Woods because he had a defacto spousal relationship with Taylor.
But hearing officer Richard McManus Jr., who heard an appeal by Woods to the city's Civil Service Commission, ruled Friday that Woods should be reinstated with back pay because he and Taylor were not living together at the time of the assault. The pair did live together for a year in 1992 and 1993 but separated after that.
Marc Colin, the Denver attorney who represented Woods before McManus, said it's never been clear how the Lautenberg Amendment applies to unmarried couples.
The relationships between attacker and victim that are covered under the law include parental, guardianships and marital, or "people similarly situated to a spouse." What that last part means is anyone's guess, Colin said, and leaves a very large loophole.
About 1,000 police officers nationwide have been fired from the force because of domestic violence convictions in their past. But Colin said Friday's decision in the Woods case won't necessarily change that.
Commission members refused to comment on the ruling. Taylor could not be reached for comment.
Although the Civil Service Commission is beginning preparations to have Woods reinstated - he'll have to undergo physical and psychological testing before he's allowed back - the city or even ATF has a couple of options.
The city can either appeal the hearing officer's ruling to the state courts or it can appeal to the commission to deny Woods' readmission. Or the city could merely ignore the ruling - forcing Woods to file a federal appeal, Colin said.
EDITORIAL: Screening Denver's finest
Denver Post, The (CO)
December 15, 1999
https://infoweb.newsbank.com/
We fully support the city of Denver as it prepares to appeal a ludicrous decision by a Civil Service Commission hearing officer.
The ruling says Alex Woods Jr. should be reinstated to the Denver Police Department, though he was fired after a 1995 conviction for choking his girlfriend into unconsciousness and giving her a black eye, split lip and swollen jaw.
Woods was dismissed because the federal Lautenberg Amendment prohibits anyone convicted of domestic violence from carrying a gun - and police need guns.
But hearing officer Richard McManus Jr. cites a technicality. The law applies to attackers with a parental, guardianship or marital relationship to the victim, as well as "people similarly situated to a spouse." Because Mary Taylor didn't live with Woods at the time, they didn't have a "similarly situated" relationship, McManus found.
Yet he goes on to note that if Woods rejoins the force, "he runs the risk of federal prosecution for violation of the Gun Control Act of 1968, as amended in 1996."
If Woods would be running such a risk, clearly the gun act applies to him. And clearly McManus' ruling contradicts itself.
Indeed, the Bureau of Alcohol, Tobacco and Firearms determined in 1998 that the law does apply to Woods because he had a de facto spousal relationship with Taylor.
This case highlights the problem for Denver police, whose hirings and firings can be overturned by Civil Service Commission hearing officers.
In another example, the commission itself voted 3-2 to hire Ellis Johnson. The recruit disclosed that he had used drugs 150 times before 1987, stolen from two former employers and shoved his ex-wife and a girlfriend. He also scored poorly on his psychological exam.
When Police Chief Tom Sanchez nixed the hiring, though, Safety Manager Butch Montoya overrode that decision and let Johnson on the force.
In yet another case, Matthew Graves was fired after pointing a gun at the head of a woman handcuffed in a cell. A hearing officer said his punishment should be reduced to a one-year suspension without pay, followed by reinstatement.
The city appealed to Denver District Court and won, blocking Graves' reinstatement.
Whatever criteria are used to judge who qualifies to be among Denver's finest, they should be clearly spelled out and upheld by both Denver police and Civil Service Commission hearing officers.
We applaud the city for reviewing commission and police policies to ensure that both work in the right direction to truly bring Denver the best.
2000: Lautenberg DV Gun Ban - News Articles And Reports
'Just dump the guy in the ground'
Las Vegas Review-Journal (NV)
Author/Byline: VIN SUPRYNOWICZ
August 27, 2000
https://infoweb.newsbank.com/
Earlier this month, Korean War veteran Bill Pickett contacted me from the little Nevada oasis of Overton, copying me part of an e-mail he'd sent to an old army buddy of his.
'Again, I'm fighting with the feds,' Bill wrote. 'Our local American Legion Post has four old Enfield rifles issued to the Post in 1946. The feds sent a retired colonel and a retired NCO here to 'check out the rifles.' It's reported that these two guys stayed at the local motel three days ... ' doubtless costing the Department of Defense more than the total value of the bolt-action, 1917 rifles.
'As undoubtedly pre-planned, the Post then received a 13-page letter demanding that the four rifles be stored in a vault at the police station, or at a National Guard Armory, or in a building of specified construction including bars on all openings,' Pickett continued.
The June letter from the Department of Defense, addressed to Post 38 Commander John Fetherston, a 74-year-old ex-paratrooper, went on to set other requirements: background check of the post commander, verification of compliance with the Lautenberg amendment - that is to say, proof that no 77-year-old vet who fires the rifles at military funerals is subject to any restraining order pursuant to a divorce action - even a requirement that the post submit a map of its 'weapon storage' area and annual photos of the 'stored weapons.'
Most importantly, the veterans were informed that, 'Storage at a private residence is absolutely prohibited.'
I forwarded Bill's message to Special Projects Editor A.D. Hopkins, who checked it all out and wrote up a fine story for the Nevada section Aug. 13, complete with a color photo of the vets in their white helmets, firing a salute.
Federal Tactical Command spokesman Ron Morton confirmed for A.D. that 'accountability' for such weapons was 'not fully enforced' for 50 years. Then, 'During the period 1996 through 1998 the Donation Program went through a massive corrective action due to the lack of enforcements, and high quantities of missing weapons throughout the U.S.'
Why? Has there been a rash of inner city youths snatching these cumbersome, four-foot-long rifles, and using them to hold up liquor stores?
Of course not. The only way this makes sense is when seen as part of the ongoing campaign to demonize possession of weapons of military usefulness, to convince a majority of urban voters that keeping firearms in one's home is as depraved as allowing a collection of venomous reptiles to crawl freely about the living room.
During the debate over ratification of the U.S. Constitution, the anti-federalists warned of the dangers of allowing Congress discretion over the arming of the militia. (The militia being, according to Richard Henry Lee, 'the people themselves.')
'Of what service would militia be to you,' asked Patrick Henry, rising in the Virginia House on June 5, 1788, 'when most probably you will not have a single musket in the State; for as arms are to be provided by Congress, they may or may not furnish them?'
The federalists responded by promising to insert a Bill of Rights with a Second Amendment, guaranteeing that every American may keep military-style weapons in his home.
'Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe,' explained federalist Noah Webster. But, 'The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.'
'The great object is,' added Patrick Henry, 'that every man be armed. Everyone who is able must have a gun.'
Does that sound like the gentlemen meant our 'right to bear arms' would be adequately honored simply by instructing us we're free to join the National Guard (created in 1917), reporting in federal uniform to have arms issued to us from locked federal arsenals when federal officials deem it appropriate?
'In our last Post meeting, I recommended that we fight the requirements,' American Legion member Bill Pickett's e-mail concludes. 'If we lose (and we will), then tell the army to come and get them. ... We hope to have TV coverage of this event: 70- and 80-year-old duffers in American Legion uniforms handing over the old war souvenirs. ... Hell, just dump the old guy in the ground. Forget that he might have been instrumental in saving our country and its freedom. ... Freedom that is now in extreme jeopardy. Perhaps only the older generation is aware of the ever-tightening federal noose.'
GUN-CONTROL CAMPAIGN TAKES CENTER STAGE
100 ATTEND NEWARK WORKSHOP
Record, The (Hackensack, NJ)
October 3, 2000
https://infoweb.newsbank.com/
New Jerseyans on Monday joined thousands around the nation in the campaign against gun violence.
About 100 people attended a "First Monday 2000" workshop at Rutgers University, which focused on the personal cost of gun violence and state and nationwide campaigns to regulate firearms.
The group watched the premiere of a 30-minute documentary, "America: Up in Arms," which focuses on people who have lost family members to gun violence. The film was produced by the Alliance for Justice and Physicians for Social Responsibility and directed by Liz Garbus and Rory Kennedy. The latter is the daughter of slain Sen. Robert F. Kennedy.
More than 3,500 children die each year from guns, the film contends. Gun violence claims more than 30,000 lives annually and injures an estimated 90,000, the "First Monday" movement says.
Referring to the people behind the statistics, Sen. Frank R. Lautenberg, D-N.J., said: "I don't understand why the faces of these families don't move Congress to action."
The "First Monday" campaign takes its name from the opening of the U.S. Supreme Court calendar on the first Monday of October. These seminars, which began in law schools around the country, have spread to a variety of campuses and other institutions.
The Rutgers University Law School has sponsored the observance for six years, said workshop organizer Linda Neilan, a third-year law student specializing in public-interest law. Other sponsors included the New Jersey Principals and Supervisors Association, Catholic Community Services, the New Jersey Education Association, and the New Jersey Pediatric Society.
Lautenberg, who addressed the seminar via videotape, highlighted such legislation as the 1994 Brady Act and the 1996 Domestic Violence Gun Ban, aimed at preventing domestic abusers from obtaining firearms. "We have had some victories," he said.
But those laws are not enough, Lautenberg said, adding that further restrictions - such as eliminating the gun show exemption for background checks on gun purchasers - were needed. That exemption, he said, was known by Columbine High School killers Eric Harris and Dylan Klebold and used by a friend of theirs to obtain the weapons used in last year's Colorado massacre.
Lautenberg cited the friend's testimony about purchasing the guns at a show. "It was too easy," she testified. "I wish it had been more difficult. I wouldn't have helped them buy the guns if I had faced a background check."
Lautenberg said that stiffer gun-control laws in Canada - which has banned handguns and requires licensing and registration for weapons - has resulted in much lower death rates from firearms. The homicide rate in Detroit is 18 times higher than in Windsor, Ontario, just across the Detroit River, Lautenberg said.
Assemblywoman Loretta Weinberg, D-Fort Lee, who served on a panel concerned with gun-control legislation, cited several initiatives, such as trigger locks, improving reporting on gun sales, and providing firearm safety programs. But she said the measures were far from being passed by the Legislature.
Bryan Miller, executive director of Ceasefire New Jersey, said gun-control advocates need to keep a better watch over legislators.
"There are 120 people in Trenton," said Miller, whose group was formed in 1988, "and they all have their own special interests and agendas."
Former Newark Police Director Hubert Williams said that as incidents of violence increase, "the old link between police organizations and the National Rifle Association has been separated."
Williams, now an executive with the Washington-based Police Foundation, said police believe the proliferation of unregulated handguns puts officers and the public in great danger. He also criticized the NRA's refusal to consider bans on such items as "cop-killer" bullets, which are designed to penetrate body armor worn by officers.
"Nothing is more difficult and complex than the issue of violence in our society," he said.
2001: Lautenberg DV Gun Ban - News Articles And Reports
Close gun show loophole
Hawk Eye, The (Burlington, IA)
Author: Kristen Rand
March 6, 2001
https://infoweb.newsbank.com/
The "gun show loophole" is the dangerous gap in federal law that exempts sales by private individuals at gun shows from the Brady background check required of Federal Firearms License holders who do business at such events.
This deadly double standard allows felons, domestic abusers, minors and other prohibited people to buy guns without a background check.
In 1996, my organization, the Violence Policy Center, exposed this loophole, concluding that gun shows had become nothing less than "Tupperware parties for criminals."
In 1999, the U.S. Departments of Treasury and Justice issued a report confirming the center's concerns, concluding, "Gun shows provide a large market where criminals can shop for firearms anonymously." And, according to the 1999 National Gun Policy Survey, nearly eight out of 10 Americans favor regulating private gun sales.
In response to the hideous massacre at Columbine High School (three of the four guns used were obtained without background checks at gun shows) the U.S. Senate passed - as an amendment to juvenile justice legislation - a measure sponsored by then-Sen. Frank Lautenberg, D-N.J., that would have effectively closed the loophole.
Not surprisingly, the National Rifle Association pushed competing proposals that would have significantly weakened existing federal gun laws.
The NRA succeeded in the House and ultimately blocked final congressional action on the underlying legislation containing the Lautenberg amendment. But while the NRA bottlenecked the legislation in Congress, in November voters in Colorado and Oregon endorsed statewide referenda requiring background checks on all sales at gun shows.
This Congress, Sens. John McCain, R-Ariz., Joseph Lieberman, D-Conn., and Jack Reed, D-R.I., have begun work to try to close the gun show loophole. As is always the case with such complicated legislation, the devil is in the details.
There is, nevertheless, a bedrock set of principles that must guide any legislative effort to close the gun show loophole. These principles include:
• The paramount goal must be to extend existing law as stated in the Brady Handgun Violence Prevention Act to all firearm sales at gun shows. In other words, the rules for background checks at gun shows and gun stores must be the same - including record keeping and time required for the background checks. Anything less could actually have the net effect of weakening the Brady law.
• The integrity of the National Instant Criminal Background Check System must not be undermined. The system is the backbone of the Brady background check system that helps ensure felons and fugitives aren't able to buy guns over the counter. New legislation should not weaken the current law allowing records generated by the NICS to be kept for 90 days for audit purposes. The FBI needs time to ensure that the system is functioning properly.
• Only people holding valid federal firearms licenses should be allowed to access the NICS, and no new licensee categories to facilitate gun show sales should be created. Expanding access to this sensitive system could have dangerous repercussions for personal privacy and undermine the Treasury Department's ability to monitor compliance by licensees.
Closing the gun show loophole is one small, but very important step in the effort to reduce America's gun death toll of 30,000 lives a year. But in working to solve the gun show problem, advocates and members of Congress should be certain that in the race for passage no new loopholes are created that would facilitate access to firearms by felons, minors or other prohibited individuals.
Kristen Rand is legislative director at the Violence Policy Center, a policy organization working to stem the tide of firearms violence.
2002: Lautenberg DV Gun Ban- News Articles And Reports
Ex-cop was dissuaded from fighting charges
Rocky Mountain News (Denver, CO)
Author: Shannon Lea, Denver
January 28, 2002
https://infoweb.newsbank.com/
I wanted to respond to the letters by Alexandra Martella (Jan. 18) and Holly Colton (Jan. 17), who were ``appalled'' that Alex Woods Jr., a former police officer, might get his job back.
Throughout his lengthy legal ordeal, Woods has been unfairly portrayed by the Denver media, who often only print the most inflammatory aspects of his case in order to sensationalize the story. A full and accurate account of the events has never been printed by either Denver newspaper.
During his original court hearing Woods wanted to fight the charges against him and had evidence to support his version of events. However, on the advice of his attorney, Woods plea-bargained his case in order to get on with his life.
He did everything the court required him to do, with the assurance that he would not lose his job. Despite those assurances, when the Lautenberg Amendment was passed in 1996, Woods was let go from the Denver Police Department (which originally supported him but relented due to pressure from women's rights organizations).
He has been fighting an uphill legal battle to regain his job ever since. Woods has said that he never would have plea-bargained his case had he known years later he could be punished by a law that didn't even exist at the time. Retroactive laws are unfair and unconstitutional.
Instead of being ``appalled'' that Woods might get his job back, Martella and Colton should be appalled at the unjust use of a retroactive law that punishes people who have already been punished and are simply attempting to move on with their lives.
Rights and Restrictions
Government Executive Magazine (USA)
March 1, 2002
https://infoweb.newsbank.com/
Three tools designed to help and protect military domestic violence victims are underused because most people, including the commanders who must enforce them, are unaware of their existence.
The Defense Task Force on Domestic Violence has urged the services to conduct awareness campaigns to step up compliance with the following policies: Lautenberg Amendment. In both civilian and military life, anyone convicted of a misdemeanor domestic violence charge cannot "ship, transport, possess or receive" firearms or ammunition. If a service member is convicted of domestic violence, the commanding officer must take away his or her weapons. Major military weapons systems and those that need a crew to operate are exempt.
Enlistment bar. People convicted of domestic violence any time after 1996 are prohibited by law and Defense policy from joining the military. However, a provision allows recruiters to waive the enlistment bar. The military has no records on how many service members have been waived in, nor on the number kept out as a result of the bar.
Transitional compensation. To encourage victims to report abuse and leave violent situations, Congress in 1994 authorized payments to families in which the service member has been discharged administratively or by court-martial for dependent abuse. Family members are eligible for one to three years of medical coverage, commissary/exchange privileges and a monthly stipend.
Some say system benefits cop abusers
Whittier Daily News (CA)
March 10, 2002
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Everyone agrees that victims of spousal abuse often need extra protection from their abusers -- but what if the abuser is a cop?
According to several experts in domestic violence, police departments should treat such cases differently when the victim happens to be married to a police officer.
Unlike in other domestic violence situations, these victims have less legal recourse, encounter more difficulties finding shelter and often face a police culture that favors the officers, the experts say.
"Police abusers have training, a badge, a gun and the weight of the police culture behind them," said Diane Wetendorf, director of counseling at Life Span, a domestic violence counseling and legal services clinic in Chicago.
"They exercise power and control by intimidating, isolating and terrifying the victim."
In Whittier, in a case that has come under scrutiny by advocates of stronger protections for victims of police abusers, the wife of a police detective now charged on suspicion of assaulting her reportedly found few domestic violence shelters willing to take her in.
Detective Jay Tatman is facing one count of misdemeanor spousal abuse for allegedly assaulting Tammy Tatman in the parking lot of the Cypress Police Station on Feb. 10. The two had gone there to exchange custody of their children.
Tatman was arrested the same day and is out on bail. But he was required to turn in his badge and service revolver and remains on administrative leave with pay, as required by Whittier Police Department policy.
The case illustrates how the problems of domestic violence victims are compounded when the accused abuser is a police officer, according to several experts following the case.
"Tammy Tatman has been turned down at the shelters she called because her husband knows where they are and shelter officials worry that she will put other clients in danger," said Mike Madigan, a Southern California private investigator who has chronicled the Tatman case on his Web site at twistedbadge.com.
After the assault allegedly took place, Tammy Tatman sought a restraining order against her husband, but an Orange County family court denied it, according to Bonnie Russell, a family law attorney based in Del Mar.
She and other experts say a 1997 federal law, known as the Lautenberg Amendment -- after New Jersey Sen. Frank Lautenberg, who inserted it as a clause into an omnibus appropriations bill -- has made some judges think twice when weighing restraining order requests from wives or partners of police officers.
The Lautenberg Amendment bars anyone ever convicted of domestic violence, whether a felony or misdemeanor, from owning a firearm.
In the case of police officers, such a conviction means they could lose their jobs, since they would be prohibited from carrying a gun.
As a result, Wetendorf said, spouses of police abusers now face unequal treatment in the court system.
"When the victim does press charges, she is accused of being vindictive and going after his job," Wetendorf said. "Going after a protective order is perceived as an act of aggression."
Because of such perceptions and the Lautenberg Amendment, the International Association of Chiefs of Police in 1999 drew up a model policy on police-involved domestic violence.
It encourages departments to offer additional training for patrol officers when responding to domestic violence reports involving other police officers. The training is designed to counteract a tendency among officers to sympathize with the perpetrator and downplay the crime.
The training also would help police officers better understand the special predicament of the victim, Wetendorf said.
Whittier police Chief David Singer has studied the model policy and has decided not to adopt it. He believes Whittier officers already receive sufficient training to deal with domestic violence calls in which a police officer is the alleged abuser.
"We're not going to cover these kinds of calls up," Singer said. "We're not going to treat them any differently. We won't be more lenient because (the suspect) is an officer."
Gun owners' rights are being limited
Examiner, The (Independence-Blues Springs-Grain Valley, MO)
Section: Oped
Author: Chuck Williams - Oak Grove
June 20, 2002
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Over the past several years Circuit Court judges have handed out restraining orders giving little or no information about the ramifications to the recipients who they are filed against. It is very surprising to me that very few firearms owners know that due to the passage of The Lautenberg Amendment you lose your Second Amendment Rights when a restraining order is issued. The amendment, in effect since 1996, basically says any person who has been convicted of the misdemeanor of attempted use or has used physical force or threatened deadly force against any family member or significant other cannot obtain, own or use a firearm.
Upon a misdemeanor conviction for any kind of abuse of a family member at all where a restraining order has been issued, the person shall give up any and all firearms to the sheriff or local police.
This also means if you have ever been convicted of any type of assault on any family member, your hunting and shooting days are gone. This does not make any exception for law enforcement or the military. Hun dreds of police officers and military have been transferred out of many positions where they needed to carry a small-arms weapon.
Now being as the courts are not bound to inform you of your rights and the American Bar Association is not exactly where the National Rifle Association is in being the protector of Second Amendment rights, your chances of being fully informed about the potential loss of your firearm-owning rights are not anywhere near where they should be.
I'm not out to take a cheap shot at the attorneys, honorable judges and courts. I am merely making an observation and telling citizens about it.
"The Jury has the Right to judge both the law and the fact in controversy."...John Jay, first chief justice of The Supreme Court.
Domestic violence could end a career
Fayetteville Observer, The (NC)
Section: Opinion
Author: Ed Pollard - Mililani, Hawaii
August 22, 2002
https://infoweb.newsbank.com/
In the wake of the tragic slayings of four Fort Bragg wives, it must be remembered that there is a 1996 law, the Lautenberg Amendment, which makes it a felony to possess a firearm (even in an official capacity) after a misdemeanor conviction of domestic violence.
It is essentially a one-strike-you're-out policy. This means that a 16-year Special Forces war hero would have his career ended by a misdemeanor conviction.
Soldiers and commanders know the ramifications of a domestic violence conviction under Lautenberg. I believe it is this real threat of career-ending punishment that makes spouses and service members so reluctant to seek help.
There is no mere stigma associated with marital discord in the military. There is the real likelihood of a career-ending misdemeanor conviction for domestic violence. Sadly, this law has likely had the unintended consequence of discouraging spouses from reporting abuse due to the high cost to the service member.
Bishop, Thomas spar over gun rights
Candidates differ on firearm buying restrictions
Standard-Examiner (Ogden, UT)
September 27, 2002
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No wild west conflict is complete without a gunfight, and when it comes to guns, Utah"s 1st Congressional candidates are on opposite sides of the fence.
Republican Rob Bishop, a strict constitutionalist and former lobbyist for
the Utah Shooting Sports Council, is endorsed by the 4.2-million-member National Rifle Association but does not own a gun.
"Gun ownership is not one of my passions," Bishop said. "But I am passionate about the Constitution. That"s why I defend these positions."
On his Web site, Bishop says that if elected, he will vote to repeal the Lautenberg Amendment, a federal law that prevents anyone convicted of domestic violence or under a restraining order from buying a firearm. He says some restraining orders are not accurate, and calls the Lautenberg Amendment mean-spirited and unconstitutional. "It has no provisions for people who have changed," he said.
However, Democrat Dave Thomas, a lifelong hunter and gun owner, sees the Lautenberg Amendment as common sense. "If someone has a restraining order, it"s a big mistake to give that person a gun, because people"s lives are at stake," Thomas said.
In Utah, the Bureau of Criminal Investigation does instant background checks on people purchasing firearms, in compliance with federal law.
Joyce Carter, BCI firearms section supervisor, said that between January and June 2002, 343 people were denied the right to purchase a firearm because of domestic violence records and 253 because of protective orders.
Sarah Brady boosts Sumers
Gun-control activist speaks at rally
Record, The (Hackensack, NJ)
October 13, 2002
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BERGENFIELD - A leading national gun control advocate joined 5th District Congressional candidate Anne Sumers on Saturday as she spoke about her priority issue before more than 100 enthusiastic supporters at Borough Hall.
Sarah Brady joined Sumers to demand tougher gun laws and gun safety initiatives. Senate candidate and fellow Democrat Frank R. Lautenberg also spoke at the rally, which drew members of several gun-control groups.
"No issue is more important to me than ending handgun violence here in New Jersey and across America," said Sumers, an ophthalmologist from Upper Saddle River.
"Our families, our children, are threatened on a daily basis by an epidemic of handgun violence," Sumers said. "Our children have been gunned down at schools with weapons purchased without registration at gun shows."
Brady, who helped foster the Brady Bill requiring background checks for most handgun buyers, said Sumers and Lautenberg would fight to require such checks everywhere guns are sold - including gun shows.
Her husband, James Brady, was press secretary to President Ronald Reagan and was paralyzed in a 1981 assassination attempt on the president.
Brady said Sumers and Lautenberg would also fight for a law requiring ballistic fingerprinting, a way to trace where bullets are bought.
She noted that in two years the federal assault weapons ban will be up for reauthorization in Congress. She said Sumers' opponent, Scott Garrett, and Lautenberg's opponent, Douglas Forrester, "will see to it that [the ban] is gone."
The National Rifle Association has given $10,000 to Garrett's campaign.
"The choice [for Sumers and Lautenberg] is so simple, and I just want to make sure voters realize that difference," said Brady to thunderous applause and the waving of campaign signs.
Lautenberg, who sponsored the 1996 Domestic Violence Gun Ban preventing anyone convicted of domestic violence from purchasing a weapon, introduced Sumers.
"We're here to fight the Garrett-Forrester-NRA axis," he said.
The speakers repeatedly cited the sniper attacks in the Washington, D.C., area as proof of the need for stricter gun laws.
"Scott [Garrett] talks a lot about Second Amendment rights," Sumers said. "Well, how about the right to pump gas or vacuum out your minivan or go to school?" she asked.
Sumers said it's possible that ballistic fingerprinting could help track the killer.
Sumers, who participated in the Million Mom March in Washington to protest gun violence, called Garrett the NRA's "best friend in the New Jersey Legislature."
Sumers' campaign has taken aim at Garrett's vote in the Legislature to repeal an assault weapons ban and his sponsorship of legislation that would have made it easier to carry concealed weapons.
In an interview Saturday prior to the Sumers rally, Garrett said he supports existing gun laws and that he sponsored legislation that encourages safety locks on guns. He also criticized Sumers for failing to vote in elections, as he did in a recent debate when he said she did not vote in numerous school board elections.
Garrett, a 12-year state assemblyman from Wantage, said the concealed weapons bill he supports calls for a more rigorous and objective process for obtaining a concealed weapon permit.
Under the bill, a potential gun owner would have to pass a firearms training test and a background search to get a permit. But applicants would no longer need to show a reason for needing a weapon, under that proposal.
Many who attended the Sumers rally stressed the importance of sending pro-gun-control candidates to Congress.
Joyce Sooy, president of the Bergen-Passaic County chapter of the Million Mom March, said that despite the group's efforts, which included a 750,000-person rally in Washington, D.C., two years ago, not much has changed in the nation's gun laws.
"Congress will not pass laws to protect our children unless we change Congress," Sooy told the crowd.
Convicted Deputy Gets Deferred Sentenced
Albuquerque Journal (NM)
November 5, 2002
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A Bernalillo County district judge on Monday gave a Sandoval County sheriff's deputy a six-month deferred sentence more than four months after a jury convicted him of misdemeanor battery against the mother of his child.
If Clinton Weatherspoon, 33, does not have any further problems with the law during the next six months, the conviction will be taken off his record, Bernalillo County Assistant District Attorney Antonio Maestas said.
Weatherspoon was acquitted by a jury on June 28 on charges of attempted criminal sexual penetration and false imprisonment.
The maximum penalty for the battery was six months in jail, Maestas said.
Weatherspoon's attorney, Timothy Padilla, did not return phone calls Monday.
Sandoval County Sheriff Ray Rivera placed Weatherspoon on administrative leave after the conviction. Rivera said Monday he has asked Weatherspoon for a letter of resignation.
"I told him it would be to his advantage to submit a letter of resignation," Rivera said, "but I have not received it yet. My understanding is that he will, and if not, I will have to terminate him."
Rivera said the Lautenberg Amendment of 1996, which is a supplement to the Gun Control Act of 1968, makes it impossible for him to keep Weatherspoon on the force.
The Lautenberg Amendment, proposed and named after U.S. Sen. Frank Lautenberg, D-N.J., says a person convicted of a misdemeanor crime of domestic violence cannot possess a firearm.
Though the conviction will be taken off of Weatherspoon's record if he stays out of trouble for the next six months, the amendment is still in effect until then, Rivera said.
"Between now and six months," Rivera said, "he can't carry a weapon. It's like the guy is getting shafted. It's not an easy thing to do, but I have no choice."
The charges against Weatherspoon stemmed from a Dec. 26, 2000, incident in which his ex-girlfriend and the mother of his child had told neighbors and police that Weatherspoon had assaulted her and tried to have sex with her, police reports said.
But the reports said statements from the victim were contradictory and said she did not want to aid in the prosecution of Weatherspoon.
Maestas has said the victim recanted her original story on the witness stand.
"Getting a conviction with a recanting victim is a huge victory," Maestas said Monday. "We're disappointed with the defendant's sentence, but we're happy he was held accountable for what he did."
Weatherspoon had been charged with misdemeanor battery against the same woman in 1998 and 1999, Maestas said, but she failed to appear in court both times and Weatherspoon was never convicted.
Maestas said Bernalillo County District Judge Richard Knowles was upset that Weatherspoon and the woman were currently living together and gave them 30 days to either seek couples counseling or find the woman other lodgings.
Weatherspoon told Knowles the reason they were living together was for the sake of their child until the mother got back on her feet, Maestas said.
Abuse law affects few isle troops
Officials cite rare cases where soldiers may not carry weapons because of domestic violence
Honolulu Star-Bulletin (HI)
December 29, 2002
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A six-year-old federal law that prevents military personnel with domestic abuse convictions from carrying weapons seems to have had almost no effect on the ability of more than 35,000 military personnel here to wage the current war against terrorism.
The law, known as the Lautenberg amendment, prevents the military from issuing weapons to people who have been convicted of misdemeanor crimes of domestic violence. It also means military personnel cannot be deployed if they cannot carry a weapon and have to be reassigned to "non-tactical units."
For soldiers and Marines, the implications are even greater since they are required to undergo periodic weapons qualifications.
The Army says that soldiers who don't qualify at military ranges cannot be promoted and will be barred from re-enlistment until their records are cleared.
The law gained prominence recently because of an unprecedented number of domestic violence-related killings at Fort Bragg, N.C., last summer.
At Schofield Barracks only 23 of the 11,500 soldiers assigned to the 25th Infantry Division have been convicted of domestic abuse and reassigned since 1999, according to Army spokesman Bob Warner.
This year so far there have been four cases, Warner said.
"Personnel who can be rehabilitated and allowed to stay in the Army will be assigned only to jobs that do not require the handling of weapons," Warner added.
In the 5,500-member Hawaii Army and Air National Guard, two Army Guard members had to be reassigned to other jobs because of the law, said Maj. Chuck Anthony.
These soldiers are in jobs where they didn't have to qualify annually on any type of weapon, Anthony said, and were given time to clear up their records.
Maj. Chris Hughes, Kaneohe Marine Corps Base Hawaii spokesman, said none of the nearly 6,000 Marines here have been barred from carrying weapons because none has spouse abuse convictions. Nor has any Marine been discharged or granted extensions because they were convicted of abusing their spouse.
Also not affected are any of the 3,000 soldiers who belong to the Army Reserve in Hawaii, Guam and American Samoa, and the nearly 5,000 Air Force personnel at Hickam Air Force Base. Only the Navy was unable to report how many sailors here have been convicted of domestic abuse because this type of information is not reported to the Pacific Fleet headquarters, but maintained at each individual unit level.
The new law didn't come into play even in the Navy's most recent publicized case of domestic abuse, where Navy Petty Officer David DeArmond was charged with killing his wife and mother-in-law in June.
Although DeArmond, 33, was convicted of choking his first wife in San Diego seven years ago, the Navy said he was never required to carry or qualify with a weapon.
Lt. Cmdr. Jane Campbell, Navy spokeswoman, said DeArmond, as a Pearl Harbor Naval Shipyard hull technician, "was a welder by trade and his assignments did not involve him being armed with a weapon." DeArmond's current enlistment was supposed to expire on Dec. 7, but Campbell said that has been placed on hold pending the outcome of the double homicide charges.
Campbell said "there is a screening process for any sailor being assigned to a watch assignment or billet which requires a weapon qualification. That is the point at which the Lautenberg amendment would come into view. Personnel are screened prior to weapons training, and would not be allowed into a weapons qualification course if they did not meet the established criteria."
2003: Lautenberg DV Gun Ban - News Articles And Reports
New rules affect prison employees
Montana Standard, The (Butte, MT)
April 9, 2003
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ANACONDA — A plan to revise Department of Corrections' policies to comply with federal law will result in criminal background checks for employees.
This is to ferret out employees with domestic violence convictions that carry a lifetime ban on owning or handling firearms and ammunition.
The change is driven by the Lautenberg Amendment, a supplement to the Gun Control Act that became law on Sept. 30, 1996. The amendment makes it a felony offense for anyone convicted of a misdemeanor or felony crime of domestic violence to ship, transport, possess or receive firearms or ammunition — including members of the military and law enforcement.
In an March 31 memorandum, Director Bill Slaughter ordered around 1,000 corrections department employees to report to their supervisors any current or pending charges or past convictions for domestic violence. They are also asked to fill out a qualifications form and return that to their supervisors.
After disclosure, affected employees will be suspended with pay while an interview and investigation takes place to see if the law will impact their employment status, Slaughter said this week.
At Montana State Prison, many of some 600 employees work with or near guns, along with another 130 gun-carrying probation and parole workers.
"That's a pretty significant number of people that it could affect," Slaughter said. "If you're convicted of a domestic violence felony or misdemeanor — and that's the key word —you can't possess or own or be in the proximity of firearms. If you're convicted, you're out of business."
Slaughter and other department administrators are hoping employees will volunteer the information prior to running background checks. Those who to fess up may stand a better chance of keeping a job than those who keep quiet, because the department has a limited number of positions which could be filled by restricted individuals.
Those coming forward first could be offered new positions "somewhere else in the system," Slaughter said. But those spots in juvenile or women's corrections are apt to fill quickly.
"We'll try to give people who are honest with us every benefit we can," Slaughter said. "We have limited places we can mitigate these with. If you come forward, we might be able to make accommodations for you. Those people who have not told us the truth, we're going to deal with them."
"If we can't do that, then they're going to be terminated," he said. "That's what the law requires. We're going to follow the law."
In order for the amendment to apply, an individual must have been convicted of the crime of domestic abuse, the offense must have involved the use or attempted use of physical force or the threatened use of a weapon, and the individual must have had a familial or family-like relationship with the victim. Other factors are whether the individual was represented by an attorney; in applicable cases, whether the case was tried before a jury, and whether the conviction has been expunged or pardoned.
It is also a felony for any person to give a firearm to anyone known to have a qualifying conviction. The law applies to both government issue and privately owned weapons.
It isn't clear why the department didn't comply earlier with the law enacted several years ago. That was before Slaughter took his post as director.
"It came on the radar screens for us in 1996, when I was the sheriff in Gallatin County. We had to change some policies," he said. "I was a little surprised that corrections hadn't dealt with it prior to this."
Administration will perform background checks that delve into each employee's criminal history. Any domestic violence charges turned up will be investigated closely to determine if there was a conviction or if the charge was dropped, expunged or otherwise eliminated from records.
Employees called into question will be suspended with pay pending a review to determine which are "sensitive" positions that require handling firearms or ammunition or working in close proximity to the weapons.
At the prison in Deer Lodge, Warden Mike Mahoney said there's no way to gauge the impact of the change, or to how many employees will be affected, but it won't come as a surprise to the state workers.
"The staff all know it's coming," Mahoney said Wednesday. "I hope it has a minimal impact, based on our budget situation. My official position is we need everyone we have."
Still, Mahoney says MSP will follow protocol to come into compliance with Slaughter's memorandum and the law.
Mahoney plans to gather with management staff at a meeting Tuesday to discuss the memorandum and decide how to implement the policy change.
Man seeks pardon to go to Iraq
New Hampshire Union Leader / New Hampshire Sunday News (Manchester, NH)
April 15, 2003
https://infoweb.newsbank.com/
CONCORD -- The Executive Council will be asked to grant two pardon hearings at its meeting tomorrow, one from a New Boston man who would be prevented from deploying with his Army Reserve unit in Iraq without the pardon.
Byron J. Rollins, 32, of 15 Briar Hill Road, New Boston, was convicted of assaulting his 9-month old daughter, Celine, in June 1999. He was given a one-year suspended sentence, one year's probation and had to attend anger management and parenting counseling.
He was charged with second-degree assault and simple assault for squeezing his daughter's chest hard enough to create a bruise because she would not stop crying.
Army Reserve officials believe the Lautenberg amendment to federal criminal law prohibits the issue of a firearms to a person convicted of a crime of domestic violence.
Rollins is a member of "A" Company, 368 Engineers Division out of Rochester that was deployed earlier this year.
A letter-writing and petition campaign was done on Rollins' behalf earlier this year, much of it directed to President Bush to intervene in the situation.
In information supplied by Rollins, he says he was under a great deal of stress at the time of the incident due to his failed marriage, family debt, lack of sleep and states he was on the verge of losing his job.
He writes that after he realized what he had done, he calmed down and gently rocked the baby. "It was a mistake and I realized it every morning I wake up," Rollins wrote in January.
Rollins confessed to the crime and a plea arrangement was approved by Judge David Sullivan, who heard the case in Northern Hillsborough County Superior Court.
In a letter to the Attorney General's Office, Sullivan said he does not have a strong position on the pardon of Rollins, but "my position is that normally a defendant in this type of case should not be pardoned."
"I have seen nothing that would convince me that Mr. Rollins has earned a pardon," Sullivan wrote.
Catherine Bernhard of the Hillsborough County Attorney's Office, said Rollins ex-wife is vehemently opposed to any change in Rollins criminal status.
Also Tonya Koehler, 23, of 317 Mast Road, Goffstown, seeks a pardon hearing for conspiracy to commit kidnapping and escape from prison. She is currently serving a three- to six-year sentence in the women's prison in Goffstown and would not be eligible for parole until Jan. 9, 2004.
She was also charged with criminal threatening and two counts of simple assault against a woman who was her best friend and who now supports her pardon request.
Koehler wants a pardon because she suffers from several eating disorders, misses her two children and wants to go through the Second Start program.
Northern Hillsborough County Superior Court Judge James J. Barry, Jr., who sat on her case, is against the pardon request, noting the state did not go forward with two second-degree assault charges against Koehler. "The crimes were very violent," he notes.
Superior Court Judge Kenneth McHugh, who sat on her escape charge from the Laconia corrections facility, also objected to the pardon request and noted he recently rejected her motion to suspend her sentence.
He said a pardon should not be used to circumvent his ruling and notes "the fact remains that she escaped from confinement and remained at large for several months before finally being captured by the police."
The Belknap County Attorney's Office also objects to the pardon.
Army reservist asks for pardon in baby assault
New Hampshire Union Leader / New Hampshire Sunday News (Manchester, NH)
June 5, 2003
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CONCORD -- An Army reservist from New Boston yesterday asked Gov. Craig Benson and the Executive Council for a pardon in the 1999 simple assault conviction involving his then 9-month-old daughter so he can continue his military career.
Following a hearing, the council voted unanimously to table the request from Sgt. Byron J. Rollins.
Rollins' plea stems from an anomaly in federal law that bars anyone convicted of a misdemeanor or a domestic violence charge from possessing firearms but does not include felony convictions.
Appearing in uniform to plead his case, Sgt. Rollins told the council he regrets his action and has since learned to deal with the stress that caused him to squeeze his daughter's chest hard enough to produce a bruise.
At the time of the offense, Rollins said he chose to plead to a misdemeanor simple assault charge rather than chance a felony conviction, which he felt would surely have resulted in his Army career being terminated. The Army is exempted from the law covering felony convictions under the 1968 Federal Firearms Control Act, but it is not exempted under the federal Lautenberg amendment, which covers misdemeanors.
While family and friends told the council that Rollins actually has a gentle nature and that his 15-year military career has been exemplary, his former wife, Lison, opposed his request through a letter read by Assistant Hillsborough County Attorney Catherine L. Bernhard, who negotiated Rollins' plea.
In her letter, Lison Rollins accused her former husband of neglecting to contact, ask about or visit his children regularly and did not appear to want to be part of their lives.
Byron Rollins said several efforts at supervised visitation were rejected by Lison Rollins. She said the attempted visits were made on days just before or just after surgery on her young daughter.
Lison Rollins argued that granting a pardon would send her daughter the message that her life is worth less than her father's military career.
In May 2000, Rollins pleaded guilty to simple assault, reduced from the felony second-degree assault charge, which resulted in a suspended 12-month house of correction term, which was suspended for two years, and one year of probation with anger management and parenting counseling required.
Rollins, a truck driver, completed the anger management and parenting course successfully, but now he's concerned his membership in the Army Reserve may be in jeopardy without a pardon because of his conviction.
His Rochester-based unit, Alpha Co., 368th Heavy Combat Engineers, has already been deployed for active duty for an indeterminate tour, probably for a year, Rollins said. Since then, he has been serving at the unit's home station, pending resolution of his plea.
It was the consensus of the council that more time is needed to study the facts in Rollins' case. The council rarely grants pardon hearings.
Persian Gulf War veteran asked the for a pardon from a simple assault conviction against his 8-month-old daughter
Telegraph, The (Nashua, NH)
June 5, 2003
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CONCORD - Persian Gulf War veteran Byron Jay Rollins of New Boston asked the Executive Council on Wednesday for a pardon from a simple assault conviction against his 8-month-old daughter.
Rollins, 31, said the May 2000 conviction kept him from being deployed with his U.S. Army Reserves unit in February to Iraq. Without a pardon, he said, he will be discharged from military service.
"I have dedicated 15 years of my life to defending my country," Rollins said. "I am not a man wishing to erase a mistake, but a soldier who wishes to continue to defend his country."
Lison Rollins, his ex-wife and the child's mother, opposed the request. She claimed Rollins has visited their two children only twice since the conviction.
"He has not been a part of his children's lives for the past four years," she wrote. "His military career seems to be more important to him than his daughter. He has shown no remorse for what he did. Giving a pardon to Mr. Rollins would be saying to his daughter that her life isn't worth as much as his military career. It would be a terrible miscarriage of justice."
Rollins said his ex-wife, who attended the hearing, often has kept him from seeing and speaking to their children, now ages 4 and 5. He also has a 13-year-old son.
"We are not on the best of terms, no," he said. "It was a real bad marriage."
The council voted, 5-0, to continue mulling over the request after an hour-long public hearing and 30 minutes spent in Gov. Craig Benson's office privately debating the merits.
This was the first pardon hearing before the council since late 1996, when it voted to forgive the manslaughter conviction of June Briand of Hudson, who shot dead her husband, whom she said abused her.
Former Democratic Gov. Jeanne Shaheen never approved holding a pardon hearing in six years, and Republican Steve Merrill made the Briand hearing the only exception during his four years in office.
Rollins was indicted in Hillsborough County for felony assault of his daughter, now 4, who had a purple bruise just below her sternum.
He plead guilty to simple assault, a misdemeanor, and was sentenced to a one-year suspended prison term in county jail and two years of probation with mandatory counseling for anger management.
Rollins thought the plea bargain down from a felony would save his military career. But a 1996 federal law known as the "Lautenberg amendment" - named after U.S. Sen. Frank Lautenberg, D-N.J. - subjects anyone to the loss of firearm privileges if convicted of any domestic violence offense.
Rollins told police that while watching his child on June 27, 2000, he lost his temper and squeezed his daughter too tightly to get her to stop crying.
"I picked her up and squeezed her. She started crying more. Realizing what I did, I set her back down, caught my temper and cooled down," Rollins wrote in his pardon request.
"I started to rock her in my arms, telling her I was sorry. It was a mistake and I've realized it every morning I wake up."
Dr. James Claiborn, licensed psychologist with Manchester Counseling Services, met often with Rollins and wrote a letter of recommendation for the pardon.
"He has seemed to be interested and invested in treatment and also seems to be making important gains in the identified problem areas," Claiborn wrote.
Several dozen friends and fellow soldiers wrote letters to Benson and President Bush seeking a pardon before his unit's deployment last Feb. 7.
Police abuse victims feel there's no way out
Wicked web: Fears of cover-up, lost job, punishment all in play
News Tribune, The (Tacoma, WA)
Author/Byline: RUTH TEICHROEB AND JULIE DAVIDOW P-I reporters
June 22, 2003
https://infoweb.newsbank.com/
CHICAGO - Victims abused by police officers have unique problems, according to domestic violence experts:
* They often believe there's no point in calling 911 to report an abusive officer, because the officer's friends will handle the call.
* Police officers believe that as law enforcers, they're supposed to have sterling reputations. If an officer's wife or girlfriend calls 911 because of their actions, the professional embarrassment is excruciating.
Often, victims don't wish that on their husbands or boyfriends, Chicago victims' advocate Jan Russell said. And some victims are sure their abusers would punish them for calling 911, she said.
* If the officer is arrested, or if the spouse or girlfriend files a protection order against him, a departmental investigation might result in the officer losing his job. Often, a victim needs her abuser to stay employed because the officer supports the victim and their children.
"It's the money. That's why I stayed with him," one Tacoma-area woman said of her abusive law enforcement spouse. "I don't want to run off in the middle of the night and have nothing because of him."
* A strict federal law passed in 1996, the Lautenberg Amendment, forbids people convicted of domestic violence crimes from carrying a weapon. Cops need to be able to carry a gun, so convicted officers lose their jobs.
An abuser who loses his job is likely to be angry about it. Protection orders don't always help.
"There was one woman (not in Chicago) who was actually clutching her order of protection to her chest, and he stabbed her through her protection order," Russell said.
* Women who need help often have few friends outside the tight police social circle, and they could lose all those friends if they file for divorce.
* They get their information about how the department handles domestic violence from their abuser.
Victims come first
In Chicago, the way they handle abusive cops is a model for Tacoma
News Tribune, The (Tacoma, WA)
June 22, 2003
https://infoweb.newsbank.com/
CHICAGO - If Tacoma wants to do a better job of dealing with cops who commit domestic violence, the place to look for answers lies 2,000 miles east of Puget Sound.
In this city of 2.9 million, the police department has created what is widely acknowledged as the nation's model for dealing with abusive cops and - perhaps more important - their victims.
The proof is in the number of victims willing to step forward and ask for help. In Chicago, the annual average ratio of abuse reports is 1 report for every 54 officers on the 13,500-person force.
In Tacoma, within the 380-officer department Chief David Brame ran before he shot his wife and killed himself, the annual ratio is 1 complaint for every 532 cops.
That doesn't mean cops are less violent in Tacoma. Instead, it may mean that as many as 90 percent of the women abused by cops in Tacoma are too afraid to report the crime - women like Crystal Brame.
"You're only seeing the tip of the iceberg" in Tacoma if reporting rates are that low, said Jan Russell, a victims' advocate in the Chicago program. "You don't really know what's going on (or) how serious the problem is until it's safe for the victims to come forward."
The Chicago program, developed by its police department a decade ago, is acclaimed as the only program in the nation that seems to have convinced spouses and girlfriends that they can safely report abuse, and get the abusive cop dealt with or dismissed.
If Tacoma's victims reported abuse at the same rate as Chicago's, it would mean as many as 60 women in the past 10 years would have gotten help and protection from an abusive police officer husband or boyfriend.
"Who do you tell?" asked a Tacoma woman now separated from the abusive cop she married. "Why would I call 911 for a Tacoma police officer to come and assist me? ... If they don't keep it totally confidential, he's going to find out."
While Tacoma failed to deal with the warning signs evident in divorce papers filed by Crystal Brame, this month in Chicago a deputy chief, Richard Guerrero, was stripped of his gun and badge and removed from his position due to allegations he had harassed or stalked his estranged wife. Guerrero has been reassigned to a desk job while the department investigates his actions and decides whether he should be disciplined or fired.
How the program began
Chicago police began searching for a better solution to to the issue of cops who abuse their families 15 years ago, when the department suffered its own Brame-like tragedies. In one year, three Chicago officers killed their spouses and then committed suicide. Two were particularly grim - one happened in a Walgreen's full of people; another in front of the couple's two children.
The department's first approach was to get tougher. Chicago commanders vowed that the next time a Chicago cop was found guilty of domestic violence he would be fired.
That approach failed, and tragically so.
The next officer accused of abuse faced a final hearing to determine whether he would be fired. He pleaded with his wife to recant, but she refused.
"A couple of days before the hearing he abducted her, took her downstate, killed her, dumped her body," said Russell, the Chicago victims' advocate. The husband "came to the police board hearing as if nothing had happened."
Investigators quickly learned the truth.
"That really was a shock to the department, that they're trying to do the right thing here and the woman ends up dead," said Russell. "The reality is that woman might be alive today if the department hadn't sought to fire him.
"That's when the department decided that they didn't know enough about domestic violence, that the dynamics are different when you're dealing with people who are officers."
The most important thing Chicago learned, and the element that sets it apart from virtually all others, was that the department's first priority must be victim safety - not perpetrator punishment.
"Our thing here is entirely victim-focused," Russell said. "We're not looking at whether he's a good cop or not, whether people love him. We're looking at victim safety."
Of course, it's impossible to know if a Chicago-style system could have saved Crystal Brame. But imagine for a moment that her husband was chief in Chicago. Here's what would have happened:
In Chicago, independent civilian investigators would have been on the case at least four days before the shooting, when her allegations first were publicized on a local Web site and noticed in City Hall and at the police department. (The inquiry actually might have begun even earlier, when rumors of violence in their marriage began circulating in the department because of allegations in their divorce.)
While investigators examined the allegations, another police unit would have determined whether to order David Brame to undergo psychiatric and physical examinations and possible treatment.
None of that would have been made public unless the civilian investigators decided Brame should be stripped of his badge and gun.
And the day investigators began looking at David Brame, Crystal would have learned about the department's procedures and her legal rights from her own advocate - an expert in domestic violence, cops and the law. Everything she told the advocate would have been kept secret from police unless she gave written permission for the information to be shared.
Police abuse in Tacoma
The Chicago Police Department's team of civilian investigators gets more than 250 complaints per year.
When told that only five Tacoma officers out of 380 had been investigated for domestic violence in the last seven years, Chicago's experts were aghast.
"That's absurd," Russell said.
"That is low. That's clear," said Leslie Landis, head of Chicago Mayor Richard M. Daley's office on domestic violence.
Even Chicago's police union president, who believes the police department's system encourages frivolous complaints, was momentarily stunned. "You're kidding," said Mark Donahue.
Russell and others in Chicago said such a ratio doubtless means many Tacoma women aren't complaining because they're afraid, or because they think there's no point.
Indeed, after Brame shot his wife and himself, more than a half-dozen women called The News Tribune to say they'd been abused by cops, but no official action was taken. Still more victims of cops called local women's groups and domestic violence hot lines.
How the Chicago model works
Chicago's system is two-pronged.
One element is housed outside the department in a location kept secret even from police. It's where Jan Russell and another victims' advocate meet with victims, explain their rights and counsel them through the entire process.
The other element - investigations - resides in the department's regular Office of Professional standards. There, a team of six civilian investigators is assigned exclusively to examine domestic violence complaints against officers.
The victims' advocate office, in a west side Chicago neighborhood, is the heart of what makes Chicago's system unique - the confidential victims' advocates. Though the police department pays their salaries, they share no information about their clients with the department.
Why the secrecy about their location as well? "That's to prevent squad cars from driving past here trying to figure out who's going in and out," Russell said.
In more complex cases, her office may refer victims to other domestic violence programs for specialty services.
The toughest choice for the victim is to decide whether to report her abuser and how to do it.
One complicating factor is a 1996 federal law, the Lautenberg amendment to the Gun Control Act of 1968 (named for the U.S. senator who proposed the law), which made it illegal for convicted domestic abusers to carry guns.
Cops must be able to carry a gun - no gun, no badge. For that reason, Russell said, many victims of domestic abuse by cops often don't want to come forward, or even ask for help, because they think their husband or boyfriend will be fired.
Russell also said that in many cases, the most effective approach may be not to file a domestic violence complaint, but to just let an officer know that he or she is being watched by the department. That often curbs controlling behavior, a common precursor to violence.
"This is my personal opinion, not the department's, but I think it's better that they stay on the job where we can monitor their behavior," rather than firing every officer suspected of domestic abuse, Russell said.
The other element in the Chicago system is led by Andrea Stoutenborough, a 16-year veteran of the Office of Professional Standards. She heads the six-person team that specializes in investigating domestic violence charges against Chicago police officers.
"What we're mostly talking about is a straight beating case," she said. They also investigate other domestic issues, such as violation of protection orders, harassment, stalking and child abuse.
When an officer is accused of domestic violence, whether in a 911 call or in a call to Russell's victims' advocate office or the OPS, Stoutenborough dispatches investigators to interview witnesses just as police officers do. The difference, she said, is that her investigators are not sworn officers, don't prepare court cases and don't have the ability to seek a subpoena.
Stoutenborough's investigators' job is to find facts and analyze cases to see if officers should face department discipline.
Stoutenborough can also call the officer's supervisors and have them order the officer not to contact his victim.
"We might even have the officer stripped (of his police powers and badge) right away or have his guns taken," she said. "Our number one concern is the safety of the victim."
The OPS offices, though a part of the department, are located across the street from headquarters. They have the OPS title stenciled on the door, but bear no police department logo.
Even though the OPS is part of the department, administrators wanted to lessen their association with it and emphasize their independence, Stoutenborough said.
If abuse rumors, fueled by allegations in divorce papers, circulated in the Chicago department, as happened in Tacoma with the Brames' divorce, officers who heard them would immediately call the OPS, Stoutenborough said.
"That's pretty amazing" that Crystal Brame's allegations were known but not acted upon, she said.
Stoutenborough's investigation would ultimately be forwarded to Lori Lightfoot, chief administrator of the Office of Professional Standards. Lightfoot then would recommend a penalty, when appropriate.
Under the department's rules, negotiated with the Fellowship of Police union, Lightfoot has only three choices: a reprimand, a suspension of any number of days between 1 and 30, or termination.
The officer can appeal Lightfoot's recommendation internally, but ultimately her recommendation goes to the civilian police board, which makes all firing decisions. The board can agree with Lightfoot's recommendation or change it. The board also has the power to order the officer to get counseling - something Lightfoot cannot.
Chicago's system requires a holistic approach that places the victim's safety first, but also attempts to treat problem officers.
Said Russell: "You need a whole plan. You need to know what your values are. And you need to start with a hard case. If anyone has a hard case, it's Tacoma."
Steps to realizing the Chicago model
To emulate Chicago's system for handling officer-involved domestic abuse, the Tacoma Police Department would need:
* An independent victims' advocate with an office in a secret location.* An independent civilian to investigate allegations for disciplinary action, as opposed to criminal charges.* Support staff for both the advocate and the investigator.* Department policies encouraging prompt reporting of officer-involved domestic violence, with penalties if violated.* Clear support of new policies throughout the department.* A clear message to the public about the new policies.* To be just like Chicago, officials should consider a change in state law revoking mandatory arrest for domestic violence suspects. That change, though, would probably not be welcome in the local domestic violence community.
Comparing the cities
Tacoma
- Population: 195,000
- Sworn police officers: 380 (one per 513 residents)
- Ratio of domestic violence allegations against officers: One complaint per 532 officers each year
- Homicides per year: 23 (one per 8,500 residents)
Chicago
- Population: 2.9 million
- Sworn police officers: 13,500 (one per 215 population)
- Ratio of domestic violence allegations against officers: One complaint per 54 officers each year
- Homicides per year: 650 (one per 4,500 population)
In Tacoma, clear procedures
In Tacoma, if a commissioned police officer of any rank is suspected of being involved in domestic violence, the protocol is clear.
* If officers respond to a 911 call and find that one of the participants is another officer, they call someone to the scene who is of higher rank than the participant. That higher-ranking officer makes the reports.
* Any allegations that an officer is involved in domestic violence triggers an investigation by Internal Affairs.
* Officers charged with a crime are put on administrative leave.
* An officer arrested on suspicion of domestic violence (or any crime) in any jurisdiction is required to report that arrest to his or her superiors. Failing to report is a firing offense.
In Chicago, big-city resources
Chicago's system for dealing with police officers involved in domestic violence is neither simple nor streamlined. With 13,500 police officers compared with Tacoma's 380, the police department has far more resources and layers of responsibility.
These are the elements that make the Chicago department's program unique:
Advocates: The police department pays the salaries of two domestic violence advocates whose full-time job is helping women and men who say they have been abused by police officers. The advocates' offices are in a secret location so victims won't have to worry about their abusers seeing them there. One of the advocates is also a lawyer.
Independent investigation: Within the police department, one or more investigators from a team of six civilians investigates every domestic violence complaint against officers of any rank for possible disciplinary action. Police officials had found that sometimes victims weren't willing to report their problems to Internal Affairs, because IA investigators were cops who might have worked with accused officers. The standard for discipline is lower than that for criminal convictions, so even if charges against an officer are dismissed, he or she still might be disciplined or even fired for inappropriate behavior.
No mandatory arrest: Illinois' state law, unlike Washington's, doesn't stipulate that violent abusers must be arrested - although police officers are encouraged to make arrests in most cases. Domestic violence advocates in Chicago prefer it that way, because they believe it may make victims more willing to call 911 for help. Victims don't always want their abusers to go to jail - they just need the situation defused, said victims' advocate Jan Russell. Victims often believe sending their abusers to jail for a few hours will just make them more angry, she said.
The one-hour rule: Like Tacoma, officers who investigate a domestic violence report and discover a fellow officer is involved must call a superior to assist in reporting the incident. Unlike Tacoma, officers must complete an incident report within one hour. Some flexibility is permitted if the officers are busy, but the goal is to deflect the alleged abuser's efforts to plead for time to cool off, or to call in a favor. If officers wait too long to file a report, they could be given a month's suspension without pay.
Buy-in: Police Superintendent (the job Tacoma calls chief) Terry Hillard supports all efforts to reduce officer-involved domestic violence, which gives the program official sanction and credibility even when individual officers aren't happy with it. To publicize the program through the ranks, department officials gave a half-hour lecture at roll call every day for a week when the victim advocates were hired in 1994, and officers learn about the program when they're hired and learn again when they receive promotions.
- - -
Editor's note
For the purposes of this article, abusers are referred to as male and victims as female. There are incidents of women abusing men, and those cases are growing in number, but by far the majority of cases still are men who abuse women.
- - -
About this series
Today's report on Chicago's program dealing with police officers and domestic violence is the first in an occasional series examining how Tacoma might move forward from the killing of Crystal Brame and the suicide of Police Chief David Brame.
The series, called "Beyond Brame," will also consider solutions to other issues uncovered in the ongoing official investigations or brought to light by our own reporting.
The thrust of each article will be a search for how problems identified here have been dealt with or solved elsewhere.
CLEAN UP YOUR ACT, POLICE TOLD
`WE HAVE TO GET TOUGH' WITH ABUSIVE COPS
Seattle Post-Intelligencer (WA)
Author/Byline: RUTH TEICHROEB AND JULIE DAVIDOW P-I reporters
July 25, 2003
https://infoweb.newsbank.com/
Two deadly shots divide before and after.
Before Tacoma police Chief David Brame fatally shot his battered wife Crystal, then turned his service weapon on himself, Puget Sound-area law enforcement officials didn't believe they had a problem.
Three months after the horrifying murder-suicide, public outrage has pushed those same officials to search for solutions to police who abuse their loved ones.
Before the shootings, victims' advocates said they rarely heard from the wives and girlfriends of abusive cops. Afterward, frightened women have flooded hot lines. Some have come forward to share their stories. Their message: Crystal Brame wasn't the only one.
The public is demanding accountability, according to Washington Attorney General Christine Gregoire.
"We have to get tough," she told the Seattle Post-Intelligencer. "I'm telling law enforcement, `Either you do something about it or it will be done to you.'"
The Brame tragedy exposed major flaws in how the Tacoma Police Department policed itself, but the department appears to be the rule rather than the exception. A five-month investigation by the P-I found similar gaps in how police forces throughout the region have responded to domestic violence.
Gregoire has launched a task force to pursue reforms and has already told law enforcement agencies statewide to develop detailed domestic violence policies for handling complaints against officers.
A survey by the P-I two weeks after the shootings found that most major law enforcement agencies lacked such policies - and didn't think they were needed.
Gregoire wants police agencies to strictly enforce the policies, which would require the removal of the gun and badge from any officer suspected of domestic violence. When internal investigations find evidence of wrongdoing, police officials should get rid of those officers - even if they aren't convicted in a criminal court, the attorney general said.
"We must take a no-nonsense attitude," Gregoire said. "If there is a confirmed domestic violence incident, this person should not be an officer any more. There are plenty of jobs that don't require you carrying a gun."
Gregoire also is proposing "community safety audits" by appointed civilians. The panels would periodically scrutinize a police department's internal handling of domestic violence complaints.
The U.S. Justice Department turned down her request this week for an almost $100,000 emergency grant to pay for statewide training for police, prosecutors and judges in how to handle allegations of abuse against officers, but she plans to look for other funding.
Domestic violence experts say the key is changing attitudes at the top.
"We're talking about a citizen who has been bestowed with the ultimate power - protecting people's lives," said Mark Wynn, a former Nashville police lieutenant and national expert on domestic violence.
"Police must be held to a higher standard."
Better training urged
Stricter standards begin with overhauling how police officers are recruited and screened.
Law enforcement agencies have traditionally recruited from the military, said Anne O'Dell, a retired San Diego officer who trains police forces nationally in how to handle domestic violence cases.
But not only does the military have a poor record of identifying abusers in its ranks, it trains troops to kill during war, not to resolve the type of routine conflicts police officers encounter, she said.
"Do we really want little soldiers? No. We need people who can mediate and diffuse conflict," O'Dell said.
Before hiring officers, intensive background checks should be done, she said, including interviewing ex-wives, neighbors and former employers for signs of trouble.
She also advocates checking the address of every previous residence for 911 calls related to domestic violence.
"It's time-consuming and expensive but worth it," she said.
Besides the usual psychological tests, applicants for police jobs should be questioned closely for sexist attitudes that could spell trouble, she said. Lie-detector tests should include questions about domestic violence in the same way that drug abuse is scrutinized.
Once hired, officers must be trained to handle domestic violence calls, including the complexities of sorting out who's the primary aggressor. Under Washington law, officers are required to sort out who is most to blame and arrest that person.
"Mandatory arrest laws are a horrible thing without training," said O'Dell, adding that poor training results in arrests of victims.
Relying on visible signs of assault at the scene, for example, can be misleading, said Wynn, the Nashville consultant.
"If there are two injuries, somebody may have acted in self-defense," Wynn told officers at a training session in Tacoma last month.
When choking is involved, the judgment call can be especially tricky. Victims often leave bite marks on their attacker's arm. Teeth tear and break the skin, creating the appearance of a vicious attack.
But the pressure applied to the neck by a stranglehold can cause serious internal injuries, with little or no external bruising for several days.
He urges officers to photograph the alleged victim over the course of several days to document wounds as they surface.
Said Wynn: "If we just go on the fact that we can't see the injuries we may be missing the boat."
Model policy's value questioned
Police departments also need to provide clear policies and train officers on allegations involving other police, experts say.
That includes requiring officers to tell their bosses if they are served with a protection order or restraining order, or if accusations of abuse arise during a divorce. The duty to report should extend to allegations involving other officers as well, experts say.
The Seattle Police Department recently tightened its code of conduct by requiring officers to report protection orders filed in other jurisdictions, said Chief Gil Kerlikowske.
His internal affairs investigators are also testing a plan to check criminal and civil court records at regular intervals to make sure officers are complying, he said.
Until new guidelines are adopted, the Tacoma Police Department will not investigate its own officers when they're accused of domestic violence.
The criminal investigations for three pending complaints have been referred to the Pierce County Sheriff's Office, which also will handle the internal reviews.
"One of the things we wanted to do was show how we don't operate in a vacuum and we'll take these cases outside to be looked at," said Acting Chief Don Ramsdell.
Washington State Patrol Capt. Brian Jones has also suggested revising their policy so that all troopers must report if their names appear on restraining orders - either as the subject or petitioner. That's because the civil order may contain criminal allegations, he said.
In 1999, the International Association of Chiefs of Police outlined a nine-page policy for handling officer-involved domestic violence. Police officials across Washington have been told to use the model policy as a guide and consult with the public as well, Gregoire said.
"If all they do is adopt the international protocol they get an `F,'" Gregoire said.
The international policy recommends going ahead with investigations even if the victim is uncooperative or recants, as is often the case.
That's going too far, according to Ken Saucier, president of the 1,200-member Seattle Police Guild, who said the model policy is "kind of fanatical."
Domestic violence shouldn't be tolerated, but Saucier said it's not fair to "use a lesser standard of evidence" when investigating officers.
Some large law enforcement agencies, such as the 13,500-officer Chicago Police Department and 9,000-officer Los Angeles Police Department, have set up special domestic violence units to investigate problem officers.
That initially resulted in an almost 50 percent jump in the number of officers investigated for abuse in Los Angeles. In Chicago, the number tripled and now stands at one complaint for every 54 officers.
But Washington law enforcement officials say that's unrealistic in a state where even the largest police force, the State Patrol, has fewer than 2,300 troopers.
Gregoire has asked the Washington Association of Sheriffs and Police Chiefs to propose other options for conducting unbiased investigations. The group is discussing whether smaller police departments could set up regional task forces to investigate officer-involved domestic violence, said Sumner police Chief Colleen Wilson, who heads a committee examining reforms.
Another possibility would be to set up a statewide agency to investigate such allegations, Wilson said.
"We need to be sure we have good cops on the street," she said.
Post-Brame liability concerns
Even the best policies are useless without enforcement, said Maj. John Feltgen, who has put domestic violence reforms in place at the 2,800-officer Broward County Sheriff's Office in Fort Lauderdale, Fla.
One way to chip away at the "Blue Wall of Silence" is to fire or demote senior officers who ignore accusations of domestic violence, Feltgen said.
"Show me one agency that has held their supervisors accountable. We should be doing this all the way through the chain of command."
In the mid-'90s, Feltgen conducted several informal surveys and discovered that domestic violence-related 911 calls to officers' homes were often "written off" or recorded as "noise complaints."
"If there are no reports, there's no problem. That's where we fool ourselves," Feltgen said.
Officers with a history of domestic violence are more likely to minimize such calls, said one expert.
"We know just by tracking them that they're not particularly wonderful in how they respond," said Linda Olsen, executive director of the Eastside Domestic Violence Program in Bellevue.
But police officials said it can be difficult to fire an officer accused, but not convicted, of domestic violence.
State Patrol Chief Ronald Serpas cited the case of a Yakima district trooper, Mark Sholtys, who was offered a "last-chance" agreement after he was charged with fourth-degree assault in 2002. The charges will be dismissed in two years if he meets court-ordered conditions.
Sholtys was suspended for 30 days and put on notice that he'd be fired for any future serious policy or law violations. He is now facing termination for failing to appear as a witness April 30 at a drunken-driving hearing, according to a State Patrol official. On Wednesday, he was placed on paid administrative leave and his gun and badge were taken away.
Such an approach is a gamble, Serpas acknowledged, especially when domestic violence research indicates abuse is rarely a one-time incident.
"I guess you just have to hope you did the best with what you knew at the time," said Serpas. "There's always the possibility that it'll never happen again."
Police unions wield considerable clout and a termination is likely to go to arbitration, which requires a higher standard of evidence than the typical internal investigation, said Patty Shelledy, legal adviser for the King County Sheriff's Office.
Attorneys who represent police officers say protecting officers' rights is even more important in the climate created by the Brame murder-suicide.
"It's practically a given that any policeman charged is at substantially more risk than any ordinary citizen of a conviction now," said Bill Murphy, a Federal Way defense attorney.
Yet, departments must weigh whether retaining an officer with a history of abuse allegations not only undermines public trust but leaves them vulnerable to lawsuits, Wynn said.
The $75 million damage claim filed by Crystal Brame's family against the city of Tacoma is just the latest example of the potential liability facing law enforcement agencies.
"I've been warning chiefs and sheriffs about this for at least 15 years," Wynn said. "It's a huge problem."
Gun law ups ante for cops
Under the 1996 Lautenberg Amendment to the federal Gun Control Act, anyone convicted of a domestic violence crime, including a misdemeanor, is banned from carrying a weapon.
That has upped the stakes for cops accused of such crimes, although experts say most avoid being fired by pleading to charges other than domestic violence or by having past convictions expunged.
Officers can also agree to comply with court-ordered conditions that result in charges being dismissed, a deal typically offered to any first-time offender.
Prosecuting any domestic violence case is difficult, let alone those involving police officers, said King County Deputy Prosecutor Barbara Flemming, who runs the special assault unit. At least a third of all domestic violence cases are prosecuted without the victim's cooperation.
"We have recanting victims, victims who are easy to impeach. There are threats, and we can't promise victim safety," Flemming said.
Those realities are intensified when the suspect is an officer, she said.
"There's that brotherhood of cops thing going on," Flemming said. "Their fear that the system can be co-opted by the perpetrator is pretty real. There's a chilling effect."
Advocates for abused women are troubled by one provision of the federal gun law. It bans anyone served with a permanent protection order from carrying a weapon - but gives judges the discretion to allow a police or military officer the right to carry a service weapon. Even some longtime police officials are concerned.
Former Des Moines Police Chief Don Obermiller said a suspected abusive officer under a protection order should be stripped of weapons like anyone else.
"I realize we're talking about their careers," said Obermiller, who retired last month. "But they have to be held to a higher standard than the general public."
Departments must also worry about liability if an officer facing a protection order is allowed to carry a duty weapon: "What if he comes in and checks out his gun and then does something?" Obermiller asked.
In 1998, he fired one of his officers, Robert Thompson, after the employee failed to report he'd been served with a restraining order by his ex-wife, and continued to carry off-duty weapons in violation of federal law.
During an internal investigation, Thompson also admitted he'd "roundhoused" his wife and slammed her against the car, according to federal court papers.
Thompson sued for wrongful discharge but lost.
"Officers make choices and once they cross that line they're putting their jobs on the line," Obermiller said.
Crystal Clear Initiative
Advocates for battered women shudder when the wife of an abusive cop seeks help.
"We just aren't equipped for it," said Olsen, of the Eastside program. "It's a frightening feeling, even for the domestic violence advocates."
That's because officers know the locations of confidential shelters, or can easily find out, posing a risk to everyone, Olsen said. Victims are usually referred elsewhere.
The week after the Brame murder-suicide, Tacoma Mayor Bill Baarsma asked Tacoma attorney Debra Hannula, who also is a pro tem judge in King and Pierce counties, to head a committee that could research and recommend changes in Police Department and city policies.
The question was, "How do you protect someone like Crystal Brame?" Hannula said.
Since then, the Crystal Clear Initiative Committee has morphed into a statewide task force of domestic violence and criminal justice system experts delving into everything from police department policies to legal reforms.
Providing victims a safe place to report is paramount, say committee members. According to domestic violence advocates, only 15 percent of victims who call crisis hot lines ever enter the criminal justice system, Hannula said. "When victims do reach out to the justice system, there are gaps and failures."
If a victim makes an allegation, for example, in the same city where the officer works, "she's entering into a world that the abuser knows, where he is well liked and well respected," Hannula said.
To address those gaps, the committee is considering:
Creating a separate team within police departments that would work with domestic violence advocates to make sure victims have taxi fare, motel rooms or whatever they need to be safe before going to Internal Affairs to make allegations against officers.
Adding officers' addresses to the 911 system so dispatchers know immediately if a call is coming from an officer's home.
Appointing an independent ombudsman at the state or county level who would lead investigations of officer-perpetrated abuse.
The committee could also recommend more intense scrutiny of police department applicants' domestic violence history, mandatory domestic violence training for family law judges and attorneys, and educating family members of police cadets about what to do if an officer becomes abusive.
Police departments should also do more to provide financial support for the families of abusive officers, said Margaret Moore, director of the National Center for Women & Policing in Arlington, Va.
If an officer is fired, departments should consider assigning pension benefits to the victim, or paying for health insurance until children reach age 18.
"She's a victim of a police officer in their department," Moore said. "They made a bad hiring decision. They should bear some responsibility for this situation."
THIS SERIES
WEDNESDAY: Abusers are on police forces throughout the Puget Sound region. And even when abuse allegations surface, abusive officers suffer few consequences.
YESTERDAY: Police who batter their wives and girlfriends know better than most how to intimidate and use force without leaving telltale marks.
TODAY: Advocates for victims of domestic violence say the time has come to hold abusive officers and their departments more accountable.
ABOUT THIS SERIES
These stories are the result of a Seattle Post-Intelligencer investigation that began five months ago - before the David Brame murder-suicide put a national spotlight on the issue.
Reporters Ruth Teichroeb and Julie Davidow scoured public records, obtained Internal Affairs investigative reports and conducted scores of interviews to identify 41 Puget Sound-area police officers who have been accused of domestic violence in recent years.
The screening process was non-scientific, using rosters of sworn officers as a starting point.
The actual number of officers linked to domestic violence allegations is probably significantly higher, because some of those with common names could not be reliably cross-checked with court files.
A list of the agencies and the number of accused officers employed by each of them can be found online at seattlepi.com/police.
It is the newspaper's policy not to identify victims of abuse. In this report, the names of women raising domestic violence allegations appear only with their consent.
Efforts being made to deal with domestic violence among police officers
Morning Edition [NPR] (USA)
August 14, 2003
https://infoweb.newsbank.com/
RENEE MONTAGNE, co-host: Earlier this year, the police chief of Tacoma, Washington, shot and killed his wife in front of their two young children, then he turned the gun on himself. The story follows a well-known pattern of domestic abuse. It is more complicated because he was a police officer, the top officer in a city of about 200,000. Experts say victims of domestic violence by police officers are especially vulnerable. As NPR's Wendy Kaufman reports, the systems intended to get rid of abusive police may make things worse for their victims.
WENDY KAUFMAN reporting: Police chief David Brame was a classic abuser. He controlled the money, where his wife Crystal went, and what the petite woman, 11 years his junior, did. They fought verbally at first, then things escalated. Crystal's father, Lane Judson, says that on one occasion this past February, the police chief cornered his wife in the closet and told her he wanted to teach her how to fire his gun.
Mr. LANE JUDSON (Crystal's Father): She says, `What do I want to do that for, David?' This is her telling us. `I don't need to know how to fire a gun.' `Well, you might,' he says. `You know, I'm not going to be around here.' She says, `I'm not going to touch that gun and have my fingerprints get on it.' She says, `I'm smarter than that.' She said he pointed the gun at her and said, `Well, accidents happen.'
KAUFMAN: That's when Crystal Brame decided to leave her husband. She had talked about leaving him years earlier, but told her parents that her husband had made it very difficult.
Mr. JUDSON: She says, `He has told me over and over again that he has laid the groundwork if I ever try to leave him or divorce him, "Nobody's ever going to believe you."'
KAUFMAN: Chief Brame apparently disparaged his wife and cast doubt on her mental state.
Mr. JUDSON: My daughter says, `What do I do? Who do I go to? I can't go to the police. He is the police.'
KAUFMAN: Like so many other victims, Crystal Brame felt trapped. Experts on police-perpetrated domestic violence say that officers who abuse often try to discredit their victims, sometimes even calling 911 themselves, claiming that they are being victimized.
There is little solid and reliable data about the incidence of domestic violence in the general population, and there is no comprehensive data relating to police officers. Still, there is evidence to suggest that law enforcement officials abuse in higher numbers. John Firman is research director for the IACP, the International Association of Chiefs of Police.
Mr. JOHN FIRMAN (IACP): The victim of the police officer DV is the most vulnerable domestic violence victim in the world. They're dealing with a very savvy person who has huge, huge access to the criminal justice system and a level of power and authority and a level of freedom of movement that they don't enjoy.
KAUFMAN: It's more difficult for police victims to seek refuge at a shelter. Police officers know where they are, and many shelters won't accept police victims because of safety concerns. If the victim rents a car, gets on a plane, uses a credit card or driver's license or even a cell phone, the police officer can easily track that.
The 1996 Lautenberg Amendment to the federal Gun Control Act forced police departments to confront the issue of domestic violence within their ranks. The law says that anyone convicted of domestic violence, even a misdemeanor, cannot carry a gun. In other words, they can't be a cop. Diane Wetendorf, a longtime advocate for victims, says the law has had unintended consequences.
Ms. DIANE WETENDORF (Victim Advocate): It's had a very chilling effect on the victims, because victims now are afraid to come forward. They know that it could cost him his job.
KAUFMAN: Wetendorf says many victims don't want that to happen because they love the individual, they need the financial benefits the position brings, or because they know that if the abuser loses his job, the violence could escalate.
As police departments struggled with the implications of Lautenberg, the IACP developed a model policy for dealing with officer abuse. It addresses things like prehiring screening, better training, counseling and more independent investigation of officers. It embraces a zero-tolerance policy and says that any officer who knows that a colleague is engaged in violence at home must notify a superior, and then, says the IACP's John Firman...
Mr. FIRMAN: Specific things must happen. A written report must occur. You know, notification, conversation, a call to the victim, further discussion, referral to counseling, whatever has to happen, whatever's determined. But the bottom line is, something is going to happen because that notification has put the policy in action.
KAUFMAN: In short, no sweeping allegations of abuse under the rug. Many major cities have adopted at least parts of this policy, but the Police Association says policies differ significantly across the country.
But even the model policy has its limits. Much of it is directed at keeping a police department free of abusive cops. It doesn't always make the victims safer. In fact, victim advocate Wetendorf says the model policy, like the Lautenberg amendment, can actually make matters worse.
Ms. WETENDORF: The more seriously a department takes it and the more that they say that they are not going to tolerate this, the more afraid a woman is to report it.
KAUFMAN: It may sound like a catch-22. The problem is that women are most at risk when they report abuse or when they try to leave their abuser. Couple that with the possibility that the abuser might lose his job, and the stakes get higher. Many times women who are abused recant their accusations. Often the investigation simply dies. But as Wetendorf notes, the model policy says that even if a victim recants, the investigation must proceed.
Ms. WETENDORF: Once the victim makes that 911 call, she has no way to back out of the process.
KAUFMAN: Recognizing the perils, the Chicago Police Department has done the most to assure the safety of victims, while at the same time stopping domestic violence. While a few other cities have separate domestic violence units, only Chicago has one solely for police victims. Jan Russell, a civilian, heads the unit, which is housed in a secret location. Conversations with victims are, by law, confidential.
Ms. JAN RUSSELL (Domestic Violence Unit): We're able to say to a victim, `If you don't want to cooperate with the department, that's OK. You can still talk to us and find out what your rights are. If at some point in time you're prepared to talk to the department, you know, we can assist you with that, but it's not a requirement for receiving services.' So it allows some victims to come forward and talk about safety issues and then make some informed decisions about what they want to do.
KAUFMAN: While maximizing victim safety, the department works with abusers. Russell says if officers believe they can keep their job if they stop the abuse, they often do. If they're fired, there may be fewer constraints on their behavior. Russell says if abuse continues, though, she can move very quickly to get an officer arrested and into custody if that's what's warranted. But always, she says, the victim's safety must come first.
Wendy Kaufman, NPR News, Seattle.
2004: Lautenberg DV Gun Ban - News Articles And Reports
Domestic violence consequences
Daily Jeffersonian, The (Cambridge, OH)
June 27, 2004
https://infoweb.newsbank.com/
Editor: Anyone charged with domestic violence should know what the real punishment is they are receiving. Get a copy of the Lautenberg Amendment to the Gun Control Act of 1968, effective Sept. 30, 1996.
It makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess or receive firearms or ammunition. The amendment also makes it a felony to transfer a firearm or ammunition to an individual reasonably believed to have such a conviction.
All soldiers known to have, or soldiers whom commanders have cause to believe have, a conviction of a misdemeanor crime of violence are non-deployable for missions that require possession of firearms or ammunition.
This is a four-page memorandum, AFZA-JA-A, 09 Feb 98.Subject: Implementation of the Lautenberg Amendment.
Domestic abuse targeted by gun laws
State in top five districts for prosecution of federal firearms violations
Bangor Daily News (ME)
June 29, 2004
https://infoweb.newsbank.com/
Marc George Taft is just the kind of man for whom an 8-year-old federal gun law now getting a boost in enforcement was designed. Like many people the law might affect, he had no idea it existed.
The 35-year-old Dexter native has been convicted four times in the past decade in state courts for domestic assault. The incidents involved his former wife and at least one other woman with whom Taft had an intimate relationship.
In May 2002, he was sentenced to seven days in jail and one year of probation for assault and other charges related to an incident with his wife. After learning from his probation officer that he couldn't have his three shotguns and three rifles, Taft placed the weapons in the custody of the Dexter police.
Taft completed his probation and got the guns back from a Dexter police officer, who knew the man had been convicted of a domestic assault.
Now, though, Taft is serving 18 months in federal prison for possessing firearms while subject to a protection-from-abuse order.
Taft didn't learn he was violating federal law until the Hampden police answered a domestic disturbance call a year later and found the guns at his residence. Claiming he was unaware that the protection-from-abuse order sought by his former wife was still in effect, the man was arrested and eventually convicted on the federal firearms charge.
Using a 3-year-old program aimed at reducing gun crimes, the U.S. Attorney's Office in Maine has prosecuted more domestic violence offenders on firearms charges in the life of the program than almost any other district.
Maine is among the country's top five federal court districts in terms of the number of prosecutions for federal firearms violations, U.S. Attorney Paula Silsby said recently.
In the fiscal year ending Sept. 30, 2003, 75 people were prosecuted in federal court in Bangor and Portland, up from 36 in 2001.
Silsby's office already has prosecuted 72 people in the current fiscal year and is on pace to prosecute 96 by the end of September.
Critics have said Project Safe Neighborhoods, a federally funded program designed to combat gun violence, is being overused in Maine. Silsby maintains she is doing what she can to combat a persistent problem by using federal gun laws to go after people with a record of domestic violence, whether or not their original offense involved a gun.
"Gun violence isn't really an issue for us[in Maine]," Silsby said. "But the consistent violent crime problem in Maine is domestic violence. We asked: What can we do to address it? [The answer was] use the federal firearms laws."
Some federal gun cases in Maine are brought against robbers, drug dealers and other criminals who use a gun while committing a crime. Most prosecutions, however, are for gun possession by people forbidden from having guns, including those convicted of domestic violence misdemeanors.
Although the federal prohibition has been in effect for eight years, the fact that a misdemeanor conviction for domestic assault, even one that is decades old, bars Mainers from possessing guns is not well-known. Outside the legal community and those who counsel victims of domestic abuse, prosecutors and attorneys admit that the provisions of the Lautenberg Amendment are not well known.
Named after former U.S. Sen. Frank Lautenberg of New Jersey, the law makes it illegal for a person who has been convicted of domestic assault - no matter how long ago - from possessing firearms of any kind ever again.
Passed in 1996, the law also made it illegal for people subject to protection from abuse orders from possessing firearms while the order is in effect.
State and local police work with federal officials to prosecute gun crimes in federal court, where sentences are harsher than in state court.
Silsby said last week that the legal system starts with the premise that all citizens are presumed by the courts to know what the laws are and that ignorance is no defense.
Nonetheless, in an effort to inform citizens about gun law provision, her office regularly places ads in the firearms section of Uncle Henry's Weekly Swap or Sell It Guide, warning that possession of a firearm after a domestic violence conviction is a federal crime.
"In Maine we target violent criminals and illegal gun possessors for federal prosecution," she said in a press release issued earlier this month. "Tough federal penalties apply to those who commit crimes with guns, and those who illegally possess guns, especially those with a history of domestic violence.
"If you choose to abuse, then you lose your right to possess a gun," she added.
Returning from the national Project Safe Neighborhoods conference held earlier this month in Kansas City, Silsby said that some of the $320,000 in federal money designated for Maine might be used to get the word out.
"The [multi-agency] Violent Crimes Task Force is now at the stage of exploring a more intense public outreach program to educate people not just on the domestic violence prohibition, but on federal firearms laws generally," the federal prosecutor said.
A majority of domestic violence cases are handled through Maine's 31 district courts. District court judges, who handled nearly 150,000 cases in 2003, are not required to inform defendants that a conviction would prohibit them ever possessing a firearms, but defense attorneys are, according to attorney Jeffrey Silverstein of Bangor.
"It's probably happening routinely that defendants are not being told that their convictions mean they can't ever have a gun again," he said. "The problem is not so much what's happening now, but what happened before the law went into effect.
"The law allows the government to reach back into the past."
Deputy Chief District Court Judge Robert Mullen said Monday that he did not know how many judges from the bench informed defendants that they would never be able to possess a gun.
"I like to think that I usually do, especially if the defendant is not represented by counsel," he said.
Attorney Stephen Smith of Bangor called the federal legislation "seriously flawed ... because it has no restrictions on how far back it reaches."
"I have represented many soldiers and civilians alike who have lost long, outstanding careers in the military, or have lost the ability to hunt with firearms based on [misdemeanor domestic] assault convictions that stretch back decades before the Lautenberg Amendment's effective date," he said.
Smith said that police officers and others required to carry weapons for their jobs have had distinguished careers cut short because of decades-old misdemeanor assault convictions. Often, defendants represent themselves and plead guilty to 'get it over with' and 'move on' because the prosecutor offered a fine but no jail time.
"Little did they realize that decades later, they would, in effect, be punished twice for the same crime," Smith said.
Correction: A story published Tuesday on Page B1 about federal gun prosecutions in Maine incorrectly stated that a Dexter police officer was aware that Marc George Taft had been convicted of a misdemeanor domestic assault. Taft, at that time, hadn't been convicted of domestic assault, but had been convicted of terrorizing. The misinformation was presented at Taft's sentencing in federal court. Dexter police said Tuesday that they had answered domestic disturbance calls at Taft's residence on numerous occasions. Also, Taft's guns had been placed in police custody by a relative, and his 2002 assault conviction was on a store clerk, not his wife.
COORS IS NO FAN OF MANY GUN LAWS
Rocky Mountain News (Denver, CO)
September 2, 2004
https://infoweb.newsbank.com/
Both Pete Coors and Ken Salazar hold themselves up as defenders of the Second Amendment - the right to bear arms.
If Coors, a former National Rifle Association poster boy, had his way, a lot more people would be able to bear a lot more arms.
Queried at the Republican National Convention about his stance against continuing the federal assault weapons ban, Coors responded that in Colorado, "we believe in the right to bear arms without restrictions."
The decade-old ban is to expire Sept. 14. President Bush has said he'll sign an extension if it reaches his desk.
Coors' spokeswoman, Cinamon Watson, said Wednesday that the Republican candidate for U.S. Senate "is not an advocate for further gun laws. However, he does support strong enforcement of the gun laws on the books."
Earlier this year, though, Coors spoke at a Pikes Peak Firearms Coalition meeting in support of the repeal of several of those laws.
In response to a question from the group's Steve Gresh, Coors said that the Brady Bill, which requires background checks for gun buyers, should also be repealed, along with federal firearms laws from 1934 and 1968 that impose a host of controls.
Under those laws, people can't own machine guns or sawed-off shotguns, nor can people convicted of serious crimes, juveniles, aliens or people dishonorably discharged from the military own guns.
In a questionnaire posted on the group's Web site, Coors also said he supported repealing the Lautenberg Amendment, which bars those convicted of domestic violence misdemeanors from owning guns; opposed any sort of firearms registration; and opposed limiting the number of guns a person can own.
Although the Pikes Peak Firearms Coalition can't formally endorse federal candidates, both Gresh, the group's secretary, and Harry Wellman, its treasurer, said Wednesday they personally support Coors.
Watson said Wednesday that "Pete stands by his positions. He's not flip-flopping on any issues."
However, she said, "in many cases, some of these laws that are 50 years old need to be retooled and reworked so they don't inhibit the rights of law-abiding citizens."
Colorado Attorney General Ken Salazar, Coors' Democratic opponent in the Senate race, said he finds Coors' position "too extreme."
"When you talk about repealing bans on machine guns and sawed-off shotguns, it's not where the people of Colorado are and not where the people of the country are," he said.
COMMUNITY SERVICES TAKES ON VIOLENCE
WORKSHOPS WILL INFORM FAMILIES
Augusta Chronicle, The (GA)
October 10, 2004
https://infoweb.newsbank.com/
Army Community Services has joined with other organizations to cast a spotlight on domestic violence and its prevention during National Domestic Violence Awareness Month.
The theme of October's campaign is It Takes a Community to Prevent Domestic Violence.
"Violence affects the entire family," said Gwendolyn Pugh, Community Services' family advocacy program manager.
For soldiers, there can be added repercussions, she said.
The Lautenberg Amendment to the Gun Control Act of 1968, which went into effect in September 1996, prohibits anyone convicted of a misdemeanor crime of domestic violence to possess, ship, transport or dispose of firearms and ammunition in the course of employment. Soldiers, if convicted, could lose their jobs, Pugh said.
Fort Gordon's community services has several workshops and other events to prevent domestic violence.
At the fort's Family Resource Center, from 1:30 to 3:30 p.m. Thursdays during October, there will be a workshop open to the community about the effects of domestic violence on families.
"We want to raise awareness about domestic violence," Pugh said.
To lessen the chances of domestic violence, "the belief is, if we can empower couples to work through their differences it will make an impact," said Vanessa Stanley, the Community Services director.
From 9 a.m. to noon Oct. 26-27, Community Services staffers will hold training for volunteers interested in assisting domestic violence victims. Volunteers would be advocates for the victim, offering support such as going to court with the victim, Stanley said.
DOMESTIC VIOLENCE OFFENDERS: REST OF THE STORY
US Fed News (USA)
By Capt. Sondra Bell 22nd Air Refueling Wing Legal Office
October 28, 2004
https://infoweb.newsbank.com/
MCCONNELL AIR FORCE BASE, Kan., Oct. 28 -- The U.S. Air Force issued the following press release:
Domestic violence is a problem nationwide, and the military is not exempt. However, Department of Defense officials have made a substantial commitment of resources over the past two decades to address domestic violence in the military.
Domestic violence happens in military families of all ranks and ages. But few people are aware of what happens after an Airman beats his wife and the neighbors call the police, or what happens after a wife hits her military husband with a frying pan
When these scenarios occur on base, security forces perform an initial investigation and immediately notify family advocacy officials and the servicemember's commander.
While military offenders living off-base are subject to jurisdiction of local police departments, base legal officials normally request jurisdiction in these cases and are often successful in doing so. In cases where jurisdiction is given to military authorities, the offenders are subject to the Uniform Code of Military Justice.
Depending on the facts and circumstances, rehabilitative or punitive action may be taken.
Committing domestic violence can be a career-ending act for all military offenders.
The 1996 Lautenberg Amendment to the Gun Control Act of 1968 makes it unlawful for anyone who is convicted of felony or misdemeanor domestic violence crimes to possess firearms.
An Airman who cannot carry a firearm may be unable to perform all of his or her assigned duties, and therefore, commanders may be forced to recommend administrative discharge.
Civilian offenders living on-base are also held accountable. Security forces provide an initial investigation of domestic violence incidents and notify key agencies. Offenders are subject to prosecution in federal court through the base magistrate court program.
People in abusive relationships, or those who know someone who is, can contact the installation family advocacy office. People needing emergency assistance should contact local or military police immediately, officials said.
Fort Bragg revisions: Privately-Owned-Weapons
Fayetteville Observer, The (NC)
December 26, 2004
https://infoweb.newsbank.com/
Fort Bragg's regulation 190-12 on privately owned guns and ammunition and prohibited items, has been revised.
This is a comprehensive revision. The title has been changed from ''Privately Owned Weapons and Ammunition Control and Prohibited Items,'' to ''Privately Owned Weapons and Ammunition Control and Prohibited Weapons,'' to clarify the scope of the regulation.
It outlines the requirements for purchasing, transporting, and storing privately owned weapons and ammunition on Fort Bragg. It also lists prohibited weapons.
Among key changes:
Eliminates the requirement for registering weapons brought on to Fort Bragg, but not actually stored on Fort Bragg. This includes situations like service members living off post (and storing their weapons off post), and unaffiliated personnel living off post who come on post only to hunt.
Streamlines the procedures for processing paperwork for service members purchasing firearms. Service members have only one local records check at the Provost Marshal Office (not two, as previously). They take paperwork to their commander only for handguns (not rifles or shotguns, as previously), and only in those cases where derogatory info has been found and annotated.
Specifies that persons to whom the provisions of the Lautenberg Amendment apply are prohibited from owning firearms.
Revises Form 1380-E. This revised form more clearly specifies the procedures the service member must follow. It clarifies that the approving authority for handgun purchases is the Sheriff's Office. It provides for listing any derogatory information directly on the form itself.
Adds three tables to assist readers in reviewing various requirements at a glance without having to read through lengthy narrative:
1) Firearms storage locations (page 4)
2) Firearms registration requirements (page 6).
3) Firearms purchase requirements for service members (page 7).
2005: Lautenberg DV Gun Ban - News Articles And Reports
The bigger questions in the Galanos case
Press-Register (Mobile, AL)
January 1, 2005
https://infoweb.newsbank.com/
THE SEEMINGLY lenient disposition of a domestic violence case against former Mobile County District Attorney Chris Galanos raises broader questions about how such cases should be handled as a matter of course.
All too often, it seems, domestic offenders are allowed to escape being found officially "guilty" of criminal wrongdoing.
Police arrested Mr. Galanos on Sept. 17 after he reportedly broke out a glass door at the home of his ex-wife and shouted threats at her and their adult daughter. It was the third time in about two decades that Mr. Galanos had been arrested, with one of the previous charges also involving a home break-in. Both of the earlier charges were dropped.
In the current case, prosecutors last month agreed to defer action in lieu of a sort of informal probation combined with a court-supervised assessment of whether Mr. Galanos has a substance-abuse problem.
The deal allows the court to force Mr. Galanos into treatment if such a problem is found, and requires him to "stipulate" that the state could likely prove its case against him if it went to trial.
But if Mr. Galanos completes a domestic-counseling program, prosecutors said they may drop the charges.
The Register editorial board's inquiries on the subject found that Mr. Galanos did not appear to be a beneficiary of favoritism. Broadly speaking, the severity of his sanctions falls in the middle range of how such domestic cases are usually handled in Mobile.
What is more troubling isn't that Mr. Galanos specifically may get no "guilty" verdict (or plea) on his record, but that so many such cases are handled without official findings of guilt.
For several good reasons, the same actual sanctions - counseling, probation and the like - are surely far less effective at deterring similar acts of domestic violence if they are not backed by a legal verdict of guilt than if they are instead part of an indelible criminal record.
That's the conclusion reached in a 2004 book called "The Criminal Justice Response to Domestic Violence," written by former Quincy, Mass., probation officer Andy Klein, who holds a doctorate in criminal justice.
"If you don't have a 'guilty' verdict-, you have nothing," Dr. Klein told the Register this week. "As long as you treat domestic violence as lesser than other violent offenses, what you are saying is that there is no crime. ... It's a bluff, and the defendant knows it."
Studies by the National Institute of Justice in 2001 and 1996 found at least modest evidence that arresting domestic offenders helps deter them from future offenses, and that "the continuing threat of legal sanctions evidently has a stronger deterrent effect than the actual imposition of a sanction through the arrest process alone-. ... Deterrence ultimately results from the actions of prosecutorial and judicial actors whose actions lead to substantial punishment."
Dr. Klein noted two particular ways that counseling without a formal finding of guilt falls short of effective deterrence. First, he said that most states have "elevator" clauses in their criminal justice statutes that significantly increase the penalties for multiple offenses. If there is no official guilt, those clauses won't automatically kick in if the defendant offends again.
He further noted that, compared to other misdemeanor offenders, domestic abusers show an "extremely high" rate of recidivism. While it might be a good idea to send them to counseling, he said, it helps to have available the "stick" of the multiple-offense statutes if the counseling alone fails to deter future violent behavior.
Second, Dr. Klein cited the federal Violence Against Women Act, in which the so-called Lautenberg Amendment prohibits anybody found guilty of domestic violence from owning a firearm.
Obviously, if there is no formal guilt, the Lautenberg Amendment doesn't apply - and for the victims of any subsequent offenses, it might mean the difference between life and death.
None of which is to say that Mobile's prosecutors and judges intend to make light of domestic violence. There is much to be said for their efforts to respond to such cases with sureness and dispatch. Municipal court sets aside most Wednesdays specifically for domestic violence cases, and the city prosecutor's office has specialists in that field.
But Register inquiries found that the combination of dropped cases and "diverted" cases such as the Galanos one leaves only, by very broad estimates, about a third of all "first offender" arrests that lead to guilty verdicts.
This compares, according to Dr. Klein, to about a 70 percent conviction rate (or better) in cities such as Everett, Wash., Omaha, Neb., and San Diego.
For all these reasons, and because of the growing statistical evidence that domestic violence is a major national problem, it would behoove Mobile and surrounding communities to secure "guilty" pleas from first-offenders - even if, along with such a plea, the actual sanctions assessed for it lean more toward treatment (at least for lesser violence) than toward harsher punishment.
Soldier's command unaware of felony
Fayetteville Observer, The (NC)
March 17, 2005
https://infoweb.newsbank.com/
The 82nd Airborne Division says it has safeguards in place to detect paratroopers who have been convicted of domestic violence and other crimes, but it is ultimately up to the soldier to self-report.
It is still unclear why Staff Sgt. Jessie L. Ullom, a convicted child abuser now facing a charge of killing his son, was allowed to possess a weapon and deploy to Iraq in December.
Army regulations prohibit soldiers subject to the Gun Control Act of 1968 -- which bars convicted felons and those convicted of misdemeanor domestic violence from possessing firearms -- from deploying.
Ullom, a 24-year-old squad leader in C Company, 2nd Battalion, 325th Airborne Infantry Regiment, pleaded no contest in March 2004 to a felony child abuse charge in Johnston County. Prosecutors agreed to place him on probation for two years and waive jail time for his plea.
He was indicted Monday by a Johnston County grand jury on a charge of involuntary manslaughter in the death of his son, Christian Zachary Norris.
Christian died of lingering complications from shaken-baby syndrome in December, about two weeks before his 3rd birthday.
Maj. Amy Hannah, an 82nd Airborne spokeswoman, said Ullom is on his way back to Fort Bragg from Iraq and should be here within a week.
He left for Iraq in December with other members of the 325th Airborne Infantry Regiment to provide security for the Iraqi elections.
Hannah said Ullom's current chain of command was not aware of his 2004 conviction but is doing everything it can to conform to federal law and cooperate with Johnston County authorities.
Hannah said Fort Bragg has agreements and relationships with authorities in Cumberland, Hoke and Harnett counties, but Ullom's chain of command only found out about his 2004 conviction after Monday's indictment.
2002 charge
According to court documents, Ullom's company commander signed for his release from jail when Ullom was arrested on the felony abuse charge in May 2002.
Hannah said the captain named in the court document is no longer in the division. He was replaced as C Company commander in July 2003.
She said unit commanders and first sergeants are trained on the Lautenberg amendment to the Gun Control Act of 1968 and its implications for their soldiers.
The amendment, passed in 1996, prohibits people convicted of misdemeanor domestic violence from possessing firearms.
Hannah said there are at least two other checks to detect paratroopers with domestic violence convictions or investigations.
Paratroopers are asked whether they have any such convictions or investigations before they deploy, she said.
They also are asked that same question, under oath, when enlisting or re-enlisting in the Army.
“The onus has to be placed on the soldier to identify any domestic assault convictions or investigations,” Hannah said.
“Every soldier is asked under oath at their initial and every subsequent enlistment if they have any such convictions.”
Still on probation
Ullom is still on probation. He was transferred to the Hoke County probation office Sept. 14, according to Frank Davis, the judicial district manager of the probation office covering Hoke County.
“The military was aware that he was on probation,” Davis said. “(His probation officer) was in contact with the Army about his probation.”
Davis said it was his understanding that it was OK for Ullom to deploy because of a stipulation in his probation judgment.
Johnston County Superior Court Judge Knox V. Jenkins Jr. wrote last year that Ullom's probation “is not to interfere with deployment by the U.S. Army.”
“The thing that has come to the forefront now is the possession of a weapon by a felon issue,” Davis said. “We were operating on his court order. That usually takes predominance.”
Hannah said Ullom has been stripped of supervisory responsibilities, and his commanders are ensuring that he is not in control of any firearms. She said he will likely be placed on administrative duties when he returns to Fort Bragg and could be dismissed from the military.
Army knew of arrest
Fayetteville Observer, The (NC)
March 18, 2005
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The Army was involved at every step of Staff Sgt. Jessie L. Ullom's legal situation -- from his arrest for felony child abuse in 2002 to his conviction and probation last year -- despite claims by the 82nd Airborne Division that his current supervisors knew nothing about it.
According to court documents and interviews with civilian court officials, Ullom's former company commander signed him out of jail after he was arrested in May 2002, Ullom was accompanied by soldiers every time he appeared in court, and Ullom's probation officer was in contact with a staff sergeant at the 82nd Airborne.
Maj. Amy Hannah, an 82nd Airborne spokeswoman, said Ullom, 24, was on his way back from Iraq on Thursday.
Gun control law
Ullom, a 24-year-old squad leader in C Company, 2nd Battalion, 325th Airborne Infantry Regiment, deployed to Iraq in December despite Army regulations that prohibit soldiers subject to the Gun Control Act of 1968 from deploying. The act bars convicted felons and those convicted of misdemeanor domestic violence from possessing firearms.
Ullom was indicted Monday by a Johnston County grand jury on a charge of involuntary manslaughter in the death of his son, Christian Zachary Norris. He faces arrest upon his return.
Hannah said Ullom's current chain of command -- which includes his immediate supervisor up to the commander of the 82nd Airborne -- knew nothing about Ullom's March 2004 conviction for felony child abuse until he was indicted Monday.
Ullom's son died in December of lingering complications from shaken-baby syndrome. The abuse happened in March 2002, when the boy was 3 months old.
The boy's mother, Kelly Lynn Norris, was also charged with felony child abuse, but the case was dismissed a couple months after it was filed.
Hannah said division officials are researching the circumstances of Ullom's situation and Army legal officers have been in contact with prosecutors in Johnston County.
Military custody
Court records say a Capt. Carson signed Ullom out of jail on May 3, 2002, after he was arrested, and that Ullom was “released to the custody of the military.” Capt. Adam Carson was commander of C Company in May 2002.
Hannah said Carson is no longer in the division.
Elisabeth Dresel, an assistant district attorney in Johnston County who worked on Ullom's abuse case, said there was someone from the military with Ullom at every court appearance he made.
“It was somebody in a dress uniform who appeared to be a supervisory person,” Dresel said. “The assumption was that (the military) knew what was going on and backed him.”
Dresel said Ullom's good military record played a role in his probation sentence. Ullom is on probation in Hoke County until March 10, 2006.
Frank Davis, the judicial district manager of the probation office that covers Hoke County, said that Ullom's probation officer corresponds with a staff sergeant at the 82nd Airborne Division about Ullom's probation.
Hannah said she did not know who accompanied Ullom to court and did not know the staff sergeant named by Ullom's probation officer.
Dresel said Ullom would be arrested and served with the manslaughter indictment when he returns from Iraq. She said Ullom is not considered a flight risk because he had a good record of showing up for his previous court appearances.
Judge's order
One source of confusion in Ullom's case is a probation judgment signed by Johnston County Superior Court Judge Knox V. Jenkins Jr. The judgment says that Ullom's probation “is not to interfere with deployment by the U.S. Army.”
Dresel said Ullom's defense lawyer requested that stipulation during plea negotiations.
“My recollection is that the intent was that if the military decided that he was eligible to stay and deploy that he could,” she said. “It was not to intrude on any judgment the military might make.”
Hannah said 82nd officials now know that federal law supersedes the probation order. It is unclear if division officials were aware of the probation order prior to learning of the case Monday.
“The current chain of command takes this very seriously and is committed to living up to the letter of the law,” Hannah said.
Hannah said the onus is on the paratrooper to report domestic-violence convictions or investigations. She said soldiers are asked, under oath, whether they have any such convictions when they enlist and each time they re-enlist and are also asked prior to deployments.
Hannah said unit commanders and first sergeants are trained on the Lautenberg amendment to the Gun Control Act of 1968 and its implications for their soldiers.
The amendment, passed in 1996, prohibits people convicted of misdemeanor domestic violence from possessing firearms.
Child Abuse And the Law
Fayetteville Observer, The (NC)
March 22, 2005
https://infoweb.newsbank.com/
Our View: Army sent the wrong message when it deployed a soldier convicted of battering his infant son.
Army officials misunderstood a federal law and wrongly allowed a soldier convicted on a felony child abuse charge three years ago to be deployed abroad. They say the law is fully understood now.
But they have an even larger problem: perception. Or, to put it more bluntly, rumors. This soldier's case won't help on that front.
Child-abuse prevention efforts occasionally make the news and, when that happens, a person or two will respond and say “the Army says it cares but I know of a case where ...” and repeat whatever rumor they heard.
Officials can't chase after every rumor, of course. Cases can be more legally complex than is widely understood.
But when a soldier's life and career in the 82nd Airborne doesn't change much after he is convicted for felony child abuse, that makes a strong statement -- not one the Army wants to make.
Soon enough, however, Staff Sgt. Jessie L. Ullom's life will change. He is still on probation for the child-abuse conviction. A Johnston County grand jury has also indicted Ullom, who is 24, on a charge of involuntary manslaughter in the death of his son. The boy died in December from complications from the “shaken baby” injuries he received in 2002, when he was three months old.
Whatever the outcome of the court case, Ullom will never again serve outside the United States in a U.S. Army uniform.
The Lautenberg amendment to the Gun Control Act of 1968 prohibits convicted felons and those convicted of misdemeanor domestic abuse from possessing firearms -- and prohibits them from deploying.
Federal law outranks anything, or anyone, else.
Violent crime: Are we being all that we can be?
Fayetteville Observer, The (NC)
Author/Byline: Gene Smith - Senior editorial writer
April 16, 2005
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I know of nothing that, after Christian Zachary Norris was violently shaken in 2002, could have prevented his death last December from complications from that abuse. So this isn't about homicide.
I know of nothing that could either help or hurt his father, Staff Sgt. Jessie L. Ullom, in defending himself against a manslaughter charge now that his little boy has died. So this isn't about Ullom's guilt or the lack of it.
We debated the Lautenberg amendment to the 1968 Gun Control Act, which prohibited violent felons from possessing firearms, a decade ago. A few people expressed concern that it would apply to soldiers as well as civilians. I remember writing an editorial saying that people who committed crimes of rage against the small and weak were precisely the kind of people we didn't need doing our soldiering. Some debate. Anyway, this isn't about the amendment.
This is about the Fort Bragg paratrooper's conviction following his no-contest plea in the child-abuse case that preceded the boy's death. More particularly, it's about things that could have prevented Ullom's deployment to Iraq, with weapon, as his son's condition worsened. Most particularly, it's about things that might be done to make it harder for anyone to slip around the Lautenberg restriction again.
See what you think.
It appears that GIs convicted of “domestic” violence and other such crimes are on the honor system: They're supposed to volunteer the information, to their commanding officers, that they may be ineligible for armed service because they've become violent criminals. The military, leaving nothing to chance, asks them about such charges prior to deployment and re-enlistment. But, call me a cynic, I think I see a loophole there.
Not the first loophole, actually. Fort Bragg has working arrangements with civil authorities in neighboring counties. But Ullom made his plea in Johnston County, which doesn't adjoin the fort. And at sentencing, Superior Court Judge Knox Jenkins not only gave him no active prison term; he took it upon himself to write that Ullom's probation was “not to interfere with deployment by the U.S. Army.”
Company commanders and first sergeants are supposed to be versed in the Lautenberg rule, and were said to have been briefed about Ullom's case by a Hoke County probation officer. This would have been an opportune time to put a copy of that report into Ullom's personnel file and place him under an administrative hold -- no deployment -- pending review. But it didn't happen.
As for the Hoke probation officials, they, like Judge Jenkins, appear to have assumed that a state judge's order supersedes a regulation arising from an act of Congress. The U.S. Constitution, supreme law of the land, says otherwise.
How many loopholes does that make?
Try another case, one set in the future, and see what a few regulatory nips and tucks might accomplish.
Corporal Jones batters his wife so badly that she's hospitalized with broken teeth and ribs. Fayetteville police officers take him to jail, and he's charged with felonious assault. Before he's released on bail his company commander is notified. The CO drops a sheet into Jones' file and places him under a hold, with orders to report back to the CO after his trial so that the sheet can be destroyed or become part of his permanent record, whichever is appropriate. Jones is convicted and a judge who knows his business gives him an active term of at least 31 days -- enough to make Jones a deserter unless he makes his situation known to his superiors.
Not perfect, and not applicable to every defendant. But at least the situation is covered two different ways: by the military and by civil authority. Justice would be done. The issue of Jones' fitness to carry a weapon would be settled. And I suspect that Mrs. Jones would feel, if not better, a little less like a stick of furniture in someone else's courtroom drama.
Army in dark on crimes
Fayetteville Observer, The (NC)
April 16, 2005
https://infoweb.newsbank.com/
North Carolina courts do not notify the Army when soldiers are convicted of domestic-violence crimes.
Fort Bragg officials must then rely on the soldiers themselves to report domestic-violence charges and convictions.
The Lautenberg amendment to the federal Gun Control Act of 1968 bars people convicted of domestic violence, including soldiers, from possessing firearms.
The issue of who, if anyone, is responsible for keeping track of soldiers charged with or convicted of domestic violence arose last month when 82nd Airborne Division officials discovered that -- in violation of Army rules -- they deployed a paratrooper with a felony child-abuse conviction.
Staff Sgt. Jessie Lee Ullom, 24, was sent to Iraq in December even though his conviction and probation order prohibit him from possessing weapons and Army rules bar him from deploying.
Maj. Amy Hannah, a division spokeswoman, said Ullom's current supervisors became aware of his 2004 conviction March 14, when Ullom was indicted on an involuntary manslaughter charge by a Johnston County grand jury.
Ullom's indictment came three months after his son, Christian Zachary Norris, died of lingering complications of shaken-baby syndrome. Norris died just before his third birthday. He was 3 months old when the abuse happened in March 2002.
Hannah said that as soon as the unit learned of the indictment, it removed Ullom from his supervisory duties, took away his weapon, placed him under the supervision of a senior noncommissioned officer and brought him back from Iraq. Ullom returned March 20.
After being arrested twice upon his return -- once in Hoke County for violating his probation and once in Johnston County on the indictment -- and posting bail, Ullom is performing administrative duties on Fort Bragg and awaiting two court dates.
Ralph Walker, director of the N.C. Administrative Office of the Courts, said that although having a notification mechanism would make sense, especially in light of Ullom's case, it would overburden an already stressed state court system to notify the Army of soldiers' convictions.
He said the best way to handle these situations would probably be for judges to make note of firearms prohibitions in their judgments and stipulate that the Army be notified of the conviction.
Ullom's judgment says nothing about contacting the Army, but it does clearly state that he should not possess firearms.
However, the judgment, signed March 10, 2004, by Superior Court Judge Knox V. Jenkins Jr., also says that Ullom's probation “is not to interfere with deployment by the U.S. Army.”
Jim Levinson, a Smithfield lawyer who represented Ullom in the Johnston County child-abuse case, said he asked for the stipulation so that Ullom could continue doing his job. Ullom is on probation in Hoke County until March 10, 2006.
A legal view
Frank Davis, the judicial district manager of the probation office that covers Hoke County, said he considers probation judgments law. “If there's a superseding law, then somebody else has to make a judgment call on that,” he said.
Davis said that Ullom told him he was part of the honor guard and wouldn't have a weapon. Davis said no one questioned Ullom further, and no one from the probation office talked to Ullom's supervisors until after Ullom was indicted.
Davis said he assumed Ullom's supervisors knew about the conviction because officials in Johnston County told him that someone in uniform was with Ullom during court appearances.
Hannah said last month that the division has safeguards designed to identify paratroopers with domestic violence charges or convictions.
She said leaders asks paratroopers whether they have domestic-violence investigations or convictions before they deploy. She said they are asked that same question, under oath, when re-enlisting.
Hannah declined to say whether Ullom was asked those questions, and, if he was, how he answered them.
One officer knew
Court documents show that one of Ullom's former commanders knew of his legal troubles.
According to a first appearance record from Johnston County District Court, a “Captain Carson” bailed Ullom out of jail May 3, 2002, after Ullom's arrest on the child-abuse charge. The document says Ullom was “released to the custody of military.”
Capt. Adam Carson was the commander of Ullom's unit, C Company, 2nd Battalion, 325th Airborne Infantry Regiment, in 2002. He has since left the division, Hannah said.
Martha Rudd, a spokeswoman for Army headquarters at the Pentagon, said commanders are supposed to “flag” a soldier's record when they are facing charges. “It is Army policy to flag a record,” she said.
Rudd said a flag places a soldier's career in a holding pattern. He or she cannot be promoted, transferred or deployed until the flag is lifted.
Hannah said last month that Ullom was “flagged” upon his return from Iraq last month. She declined to say whether his record contained any mention of his 2002 arrest, or whether his record had been flagged before his indictment.
Mike Hardin, an assistant district attorney for Hoke County who is working on Ullom's probation-violation case, said it is not uncommon for the Army to be unaware of charges.
But, he said, most of the time the charges are less serious. “It's very commonplace for a soldier to have an offense and then be sent somewhere else,” he said.
“Quite often the military does not know (the soldier) has that speeding ticket needing to be dealt with because the soldier has not told them they have it.”
Pols Have 'Seen The Light'
Waycross Journal-Herald (GA)
October 26, 2005
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Americans have bypassed a bitter cup by deciding to remove Democrats from positions of power in the White House and Congress. For the first time since the departure of the scandal-plagued Clinton administration, Americans are regaining their Second Amendment rights while the anti-gun crowd is in full retreat.
The anti-gunners and their high-profile Democratic cronies, including Sens. Charles Schumer, John Kerry, Teddy Kennedy, Diane Feinstein, Frank Lautenberg and others, were on the attack when the Clinton regime went out of business at the close of the 20th century.
But as George W. Bush begins his second term in the White House, the much-maligned "assault weapons ban" has followed the dinosaur into extinction largely because both parties — Democrat and Republican — have come to realize that gun control legislation is a big-time political loser. Just ask defeated House Speaker Tom Foley and defeated House Democrats who were turned out of office in 1994 after passing Clinton's assault weapons ban, effectively turning over control of the House to Republicans. And don't forget Vice President Al Gore, whose 1999 tie-breaking vote for the anti-gun "Lautenberg Amendment" in the Senate ensured his defeat for the presidency in Tennessee (his home state), West Virginia and Arkansas in 2000.
The Congress has "seen the light," as Jake and Elwood would say. Last week the House passed the Protection in Lawful Commerce in Arms Act by a vote of 283-144. The bill has been the Holy Grail for the National Rifle Association since 1999, when big city Democratic mayors like Chicago's Richard Daley and Atlanta's Bill Campbell began suing firearms manufacturers, alleging they were somehow responsible for the criminal misuse of their products.
The Georgia General Assembly saw to the dismissal of Atlanta's lawsuit in 1999 by asserting its legislative power as the sole governing authority over Georgia's firearms makers. They passed a law in just two weeks' time which ultimately led to the dismissal of Atlanta's junk lawsuit.
Elsewhere, in case after case, similar lawsuits were dismissed by judges in summary judgment as having no basis in law. Judges found that when a lawful product (such as a firearm) is manufactured and sold within the dictates of existing federal and state laws, it's not legal to assign criminal responsibility to the manufacturer, wholesaler or retailer when that product is criminally misused by a third party.
These junk lawsuits were modeled after suits against the tobacco industry. They hinged on the notion that guns are a "public nuisance" and that their makers and dealers should take "special precautions" in selling them. But everyone licensed by the federal government to sell firearms takes "special precautions." The gun-grabbers' claims were specious and arbitrary, to say the least.
But the anti-gunners and their Democratic pals knew this. Their aim was to bleed gun manufacturers and dealers with costly attorneys fees over many years, with an eye toward bankrupting them in the final analysis. As more and more manufacturers and dealers fell by the wayside, the American people would ultimately lose their Second Amendment rights because there would be no new guns and ammunition available to buy. This was the ulterior motive of the antigunners and their political cronies. They couldn't achieve disarmament of the American people at the ballot box, so they sought to do so through the courts.
Americans saw their armed countrymen defend their homes and families from criminal gangs in New Orleans after law and order vanished there in September. Americans know that without their constitutional right to armed self-defense, they are powerless to stop those who would murder, rape and steal. That's why the Congress has "seen the light."
Commentary: Ever heard of the Lautenberg Amendment? You're not alone
Daily Record, The (Kansas City, MO)
Author/Byline: Matthew A. Radefeld
November 5, 2005
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Many criminal defense attorneys have never heard of the Lautenberg Amendment. Some know of its ramifications, just not its name. Because there are so many avid hunters, gun collectors and military personnel in Missouri, it is something every criminal defense attorney should keep in mind when representing a client accused of a domestic violence offense.
The Lautenberg Amendment to the Gun Control Act of 1968
The Lautenberg Amendment to the Gun Control Act of 1968 became effective Sept. 30, 1996. The amendment makes it a federal offense for anyone convicted of a misdemeanor crime of "domestic violence" to ship, transport, possess or receive firearms or ammunition. Also, it prohibits the knowing sale or disposition of any firearm or ammunition to a person with such a conviction.
There is no exception for military personnel or law enforcement officers.
The Gun Control Act of 1968 (GCA) is codified in 18 U.S.C. Sect. 922. Section 922(g) of the GCA delineates nine classes of individuals who are prohibited from shipping, transporting, possessing or receiving firearms or ammunition in interstate commerce.
These targeted individuals include persons convicted of a crime punishable by a term of imprisonment exceeding one year; fugitives from justice; individuals who are unlawful users or addicts of any controlled substance; persons legally determined to be mental defective, or who have been committed to a mental institution; aliens illegally or unlawfully in the United States, as well as those who have been admitted pursuant to a nonimmigrant visa; individuals who have been discharged dishonorably from the Armed Forces; persons who have renounced United States citizenship; individuals subject to a pertinent court order (i.e. a restraining order); and finally, persons who have been convicted of a misdemeanor domestic violence offense.
It is this ninth disqualification category that is commonly referred to as the "Lautenberg Amendment."
Violators of the Lautenberg Amendment face a maximum term of imprisonment of 10 years and/or a fine up to $250,000.
Elements of the Offense
Pursuant to the amendment, a misdemeanor conviction for "domestic violence" triggers the firearm possession prohibition only if the underlying offense has as its factual elements the use or attempted use of physical force, or the threatened use of a deadly weapon committed by a defendant against a current or former spouse, child or another similarly situated person.
Similarly situated individuals may include stepchildren or cohabiting significant others. Although crimes may be charged as "domestic violence" in some jurisdictions the crime will be charged as "assault," "battery" (for those that practice in Illinois) or similar offenses and would still fall under the amendment.
Exemptions?
Basically there are none.
Under the Lautenberg Amendment, if a law enforcement officer or a member of the military is convicted of a misdemeanor crime of domestic violence they cannot possess a firearm ever again. Such a conviction may result in loss of employment or permanent reassignment to a position that does not involve carrying or possessing a firearm.
Accordingly, a police officer convicted of a qualifying misdemeanor crime of domestic violence at any time in the past may likely be terminated from employment, since they may not possess a firearm under any circumstances.
If you ever represent a servicemember, you must inform your client that pleading guilty and being convicted of a misdemeanor crime of domestic violence could have serious consequences to their military career.
Each branch of the Armed Forces have been handling this issue in different ways, but the consequences vary from reassignment, loss of military occupational specialty (MOS) and in some cases possible discharge with a less than favorable characterization.
Another group of people that this amendment has significantly affected is the "blue collar" worker, such as the forklift operators, truck drivers and various other personnel who manufacture, transport, receive or somehow come in contact with firearms and ammunition.
If these persons have a qualifying conviction, they will not be allowed to maintain their employment if they are considered to be in "possession" of firearms and/or ammunition. Generally, if an employee has the ability to put their hands on firearms or ammunition or otherwise has the ability to control firearms or ammunition, they possess them.
Rationale Behind the Amendment
According to Senator Frank Lautenberg (R-NJ), the amendment's namesake, the purpose of the legislation was to close loopholes in state law that allowed persons convicted of domestic violence offense to have firearms. (See, 142 Cong. Rec S10377-01 (daily ed. Sept. 12, 1996). Lautenberg's rationale behind this law is to prevent firearms from falling into the hands of those who are more likely to use them to commit domestic violence.
Opponents of the amendment, such as the National Rifle Association, argue that this law infringes on a person's right to bear arms because the amendment is so broad and over reaching.
One example that opponents of the amendment bring up often is the case of Kathi Herren of Novi, Mich. who slapped her wayward 14-year old daughter and was convicted of misdemeanor assault and battery. Although she never went to jail and was sentenced to only pay a small fine, she has forever forfeited her Second Amendment rights for a mere swat given as discipline.
Statutory Defenses
18 U.S.C. Sect. 921(a)(33) establishes two statutory defenses to the application of the Lautenberg Amendment, extending procedural protections that are generally only available to individuals charged with felonies to those charged with misdemeanor crimes of domestic violence. Specifically, Sect. 921(a)(33)(B) provides that the underlying misdemeanor offense may not be used as a predicate to a violation of Sect. 922(g)(9) unless the individual in question was represented by counsel or they knowingly and intelligently waived their right to counsel, and, that in the instant case, the individual was entitled to a trial by jury, the case was indeed tried by jury or they knowingly and intelligently waived this right.
Constitutionality
Since its enactment, there have been several challenges to the amendment's constitutionality. Opponents of the amendment have unsuccessfully argued that Sect. 922(g)(9) violates the Second and Tenth Amendments and operates as a bill of attainder.
Others have made arguments relating to the amendment's violation of the Commerce Clause, the Equal Protection Clause and the Ex Post Facto Clause. Only the Equal Protection Clause argument has achieved even marginal success.
Equal Protection Argument
In the case of Fraternal Order of Police v. United States, 152 F.3d 998 (D.C. Cir. 1998), the court held that it was an Equal Protection violation to treat those with misdemeanor convictions more harshly than those with felony convictions. However, one year later the same three-judge panel reheard the case because of procedural irregularities in the first decision. This time the court reversed itself because it felt that Congress was permissibly addressing a serious problem "one step at a time."
In F.O.P v. United States, 173 F.3d 898 (D.C. Cir. 1999) (FOP II), the court ruled that the Lautenberg Amendment was fixing a loophole in state law and it satisfied the "rational basis test" of the Equal Protection Clause.
Ex Post Facto Argument
The reality of the amendment is that if anyone has ever been convicted of a misdemeanor domestic violence offense, they can never possess, receive, transport, etc. a firearm or ammunition, regardless of how long ago the person was convicted. Much like arguments surrounding the Sex Offender Registration Laws that exist today, opponents of the Lautenberg Amendment propose that its provisions make it an ex post facto law and therefore unconstitutional.
An ex post facto law is any law that makes criminal an act that was not criminal when done, or which inflicts a greater punishment than the law annexed to the crime when committed. Critics argue that the Lautenberg Amendment adds a punishment that did not exist at the time of the crime. The argument is that innocent men might take into consideration the slight punishment they were then facing and plead guilty simply to avoid a trial. Later, they would be confronted with an additional punishment of not being able to ever own a gun.
Sen. Lautenberg defends his amendment and has argued that the provision is not being applied in violation of the ex post facto clause of the Constitution. The law does not impose additional punishment upon persons convicted prior to the effective date, but merely regulates the future possession of firearms on or after the effective date. The amendment is a remedial measure to keep firearms out of the hands of people who might use them to commit domestic violence offenses. He states that the amendment is not retroactive merely because the person's conviction occurred prior to the effective date.
The Supreme Court has not resolved this issue, but they have previously validated this reasoning, by upholding seemingly criminal, yet actually civil measures that protect the public.
For example, in Kansas v. Hendricks, 521 U.S. 346 (1997), the Supreme Court held that civil confinement of a predatory sex offender following the completion of his criminal prison sentence does not violate either double jeopardy or ex post facto notions.
Conclusion
Although the Lautenberg Amendment has been around for some time, it is a severe collateral consequence that many criminal defense attorneys fail to advise their clients of when they are facing a domestic violence conviction. Neither the judge nor the prosecutor will advise your client as to the ramifications of a conviction for domestic violence, that is something you must do.
More and more criminal cases are being filed in the federal courts every year. It would not be a surprise to see more federal prosecutions of violators of the Lautenberg Amendment. Therefore, in the best interests of your clients, be sure to tell those who have been convicted of or are facing a conviction of a misdemeanor domestic violence that they risk federal prosecution if they ever possess a firearm or ammunition.
This article was originally published in Missouri Lawyers Weekly, another Dolan Media publication.
Matthew A. Radefeld is a Senior Associate at the criminal defense firm of Frank & Juengel, Attorneys at Law in Clayton, MO. He is also a Captain in the U.S. Army Reserves JAG Corps where he handles military justice and legal assistance matters for soldiers.
2007: Lautenberg DV Gun Ban - News Articles And Reports
WHO'S THE REAL TARGET?
PRO-GUN ACTIVISTS SAY DOMESTIC RIGHTS LAWS ARE ONE MORE WAY WOMEN ARE TAKING AWAY THEIR RIGHTS
Seattle Post-Intelligencer (WA)
January 7, 2007
https://infoweb.newsbank.com/
He was much larger than me and had a beefy football-player build and short dark hair -the bouncer type. He was going to get physical if I objected. He was ready to push as we walked quickly past the long row of tables covered with guns and ammunition, past the woman collecting money for admission. Talk to him, I said to myself. Talk to him. I kept telling him I didn't work for the newspapers as he herded me to the exit.
"No pictures," he kept repeating.
"No pictures," he insisted one last time as he opened the heavy door and gently pushed me out. Then he closed the door and left me standing outside with my camera dangling from my hand. A hand-lettered sign appeared outside the entrance: NO CAMERAS ALLOWED.
Thirty minutes earlier I had walked into the public fairgrounds to attend a local gun show in Moscow, Idaho. It was the mid-1990s, and I was taking photographs of abandoned lumber mills and deserted mines in the Pacific Northwest. I was shooting what I thought were the industrial ruins of the rural West. I had also taken pictures of men in gun stores eyeing new rifles, and men hunting during deer and elk seasons. I wanted to add pictures of men and women at gun shows. At that point, I wasn't writing about gun culture. I was only taking pictures of daily life in small, rural Western towns.
When I came back to the gun show to talk with the organizer, an unofficial compromise had been reached with the relevant public officials. I could come back the next morning with my camera and take pictures before the public was admitted, provided the exhibitors agreed.
Before I left, I asked him why they enforced rules against cameras. What was the problem? Was it a distrust of government? Did they think I worked for the ATF, the IRS or the FBI? Was it anger against gun-control groups? Did they think I worked for Sarah Brady's handgun organization, or for CeaseFire, a Seattle-based gun violence prevention group? Maybe it was about hunting and animal rights? Or worse, I could be a PETA activist?
He looked at me hard and responded with one word, "Alimony."
"What?" I asked. Had I heard right? "Alimony?"
"Yes, alimony." He explained that the men inside the gun show didn't want their pictures showing up in newspapers where their ex-wives might see them spending what was legally theirs.
Wives were threats. Girlfriends were threats. They are the new scourges of secular life, hunting down unsuspecting men to get bucks and tear out their hearts. Women who talked too much were threats. And women who held public office and wouldn't shut up were the scourge of the land. I also have picked up bumper stickers at gun shows that said: "I just got a gun for my wife. It's the best trade I ever made." Or handouts detailing the "Top 10 Reasons Handguns Are Better than Women," ending with the No. 1 reason, "You can buy a silencer for a handgun." I also had seen some pretty vicious materials on Hillary Clinton and Janet Reno. A new fear floated above some of the gun exhibits: judges, lawyers and voters were giving women too much power, and the women were using that power to take guns away from their husbands, their boyfriends and their constituents. A gun-grabber lurked in the heart of the liberated woman.
Maybe the no-camera rule was about alimony. In this latest male fantasy about the war between the sexes, I could have been hired by a female predator to shoot pictures at a gun show for a ruthless ex- or estranged wife. I was just part of a new generation of bottom feeders out to get men, one of the vast army of women intent on misandry, a new word invented to capture this hatred of men by women.
At the law seminar in Reno during the 2002 National Rifle Association annual convention, I learned about other ways women can grab guns. In the midst of these carefully paced presentations, I first heard about the legal problems gun owners confronted when faced with domestic-violence restrictions. Under the terms of certain restraining orders, ownership of guns is prohibited. Domestic violence and divorce set in motion a range of state and federal statutes and laws aimed at disarming violent or potentially violent intimate partners. The 1996 Lautenberg Amendment that followed passage of the 1994 Violence Against Women Act made it a federal crime to possess a firearm while subject to a restraining order or after a misdemeanor conviction of the crime of domestic violence.
No one at the law seminar lingered on why there was domestic violence in the United States, or how this violence affected men, women and children, or what steps could be taken to reduce or prevent such violence. For many of the lawyers present, it was strictly a legal issue about due process, federal statutes and legal precedents. What happened in the living room or bedroom, likely sites of what crime analysts called simple assault, was off the political and rhetorical radar screens. I also heard no discussion on how to protect women from men in their own homes. No, the subject was about individuals convicted of misdemeanors or slapped with restraining orders who had lost their right to own firearms. And the big issue was how to get them back. It was all about the guns.
I found out that the police were particularly vulnerable. There was mention of how the Minneapolis Police Department was practically disarmed because so many police had present or past restraining orders against them. No one talked about domestic violence, because violence in the home didn't have the emotional punch of a violent predator breaking into your home. Then the homeowner was a hero defending his property, not a villain beating up on his spouse. The vigilante gun owner could hang a sign in his window announcing "Warning, Trespassers will be shot. Survivors will be shot again." But what kind of sign could the battered wife hang up?
In 2005, Ted Nugent, in his keynote address to the NRA annual meeting in Houston, could rant about plugging all the bad guys: "I want 'em dead." But what if the cop or the soldier or the storeowner was the bad guy? Cops were a touchy subject in gun-rights circles. Some police organizations wanted exceptions made for officers under restraining orders, which would make it more difficult for them to lose their firearms. Other cops wanted "law enforcement persons" held to a "higher standard, not a different standard." In 1997, Ronald Hampton, the executive director of the National Black Police Association, testified before the House Subcommittee on Crime. He spoke against exempting police officers. According to other testimony, police and military personnel were implicated in the crime of domestic violence at higher rates than were the general population.
In 1998, the National Institute for Justice reported that each year 1.5 million women were raped or physically assaulted by intimate partners. Many of these attacks occurred in the privacy of the home. Men were more likely to be attacked by strangers. In contrast, women were seven to 14 times "more likely to report that an intimate partner beat them up, choked or tried to drown them, threatened them with a gun, or actually used a gun on them."
As a woman at gun shows, I am usually pitched specific guns to ward off the predator breaking into my house or stalking me. At a gun show in the state of Washington, I spent time talking with an arms manufacturer who specialized in variations of the AR-15, originally made by Colt. This marketing specialist at the booth told me that the AR-15 could be adapted for home defense. I could put in a short barrel, less than 16 inches long - what cops used in closed spaces to shoot the bad guys. He warned me that he couldn't put the short barrel in the gun receiver because he would be breaking the law. No barrel under 16 inches can go into the gun frame. Instead, he held it about a half-inch from the gun frame and demonstrated how it would work. It was an impressive-looking weapon. Stocky and mean, a dull black.
Only once do I remember a salesman trying to sell me a gun to shoot my husband or boyfriend if he turned abusive. His personal philosophy on life was that everyone should be armed and packing. If everyone in the world were armed, there would be no domestic violence; in fact, there would be no violence at all. The bad husbands would finally get what they deserved. And all the bad people in the world would be stopped - killed or executed on the spot. He insisted that even everyone in a bar, the traditional hot spot for assault, should be packing heat. Forget about alcohol. The gun itself would stop the violence. So what if the guy packing was drunk out of his skull? The gun had this amazing magic to prevent violence. It was a talisman of peace. I had reached the logical end of the gun-rights argument. Stop crime: Arm everyone.
Yet something was desperately wrong with this picture, even though I knew that some women, fearing for their lives every day, have decided to arm themselves against their ex-loved ones. Overall, domestic violence took the glamour out of the crime scene that pro-gun activists loved to describe. Husbands and wives shooting it out in the living room didn't have the same appeal as the brave homeowner gunning down a crazed burglar. And what about all those ad campaigns to get me to buy guns? The magazine and book tales of masked young predators generated gun sales. How do you advertise buying guns when the criminal was an ex-husband, a boyfriend, or a guy you dated a couple of weeks ago?
At the law seminar, I sat thinking about how much the right to own a gun owed to the typical crime-scene scenario. Those millions of hours that Americans spend watching cop shows and vigilante heroes have helped pump up the psychic investment in guns. Still, I was having a hard time understanding how teams of lawyers for the National Rifle Association and other gun groups were ready to defend men under restraining orders. Maybe I just wasn't listening right.
At one point a question came up about Attorney General John Ashcroft and his push in the Department of Justice to accept the Second Amendment as an individual right to own guns. We were told that the Emerson case would determine whether Ashcroft's position would hold. Over the next couple of years, everywhere I turned in the gun-rights world the Emerson case was heralded as a great Second Amendment victory. Second Amendment activists would hand me copies of the complete legal ruling in paperback form. It was the greatest news to hit the gun lobby in years.
It came down to this: In 1998, the wife of Timothy Joe Emerson filed for divorce and applied for a restraining order against her husband. At a hearing, Sacha Emerson alleged that her husband made a threat over the telephone. He threatened to kill her "friend." The restraining order was granted. Later, her husband was indicted for "possession of a firearm while being under a restraining order." But, in a Texas federal district court, this indictment was dismissed by Judge Sam Cummings. In a memorandum brimming with colonial history, the Second Amendment reared its righteous head. Cummings argued that the federal actions to protect women against intimate partner violence didn't hold up against the struggles of our revolutionary fathers to found a nation with arms.
The government appealed to the 5th U.S. Court of Appeals, which upheld the indictment against the husband. Emerson's attorneys argued there were insufficient judicial findings that he was a "credible threat"; the 5th Circuit Court disagreed. Two of the three judges accepted the argument that while the Second Amendment gave an individual a right to own a gun, it did not give an individual under a restraining order the right to own a gun. This was especially true, the court found, since upon purchasing a Beretta semiautomatic pistol, the husband had signed a BATF Form 4473, stating that "so long as he was under a court order such as that of Sept. 14, 1998, federal law prohibited his continued possession of that weapon." The third judge on the court "chose not to join" in the lengthy individual rights argument because they were "dicta" and "at best an advisory treatise on this long-running debate" and really had nothing to do with the decision made by the court. He went on to say that if the Second Amendment was interpreted as an individual and not a collective right, in a way, who cares? There would still be legal grounds for "reasonable restriction" on gun ownership.
Was Sacha Emerson just another gun-grabbing wife? In reading the opinion of the 5th Circuit Court, I wondered, because most of the opinion was not about the restraining order at all. That question was settled in a concise statement by the judges. Supported by amicus curiae submitted by the NRA, the Second Amendment Foundation, the Citizens Committee for the Right to Keep and Bear Arms, and the Texas State Rifle Association, two of the three federal judges had used the opinion to expound for more than 50 pages about how the Second Amendment protected individual rights.
At meetings of the NRA, including their law seminar, I repeatedly heard these legal opinions, especially arguments focused on what our founding fathers said or didn't say about the right to bear arms. I guess the two federal judges were hoping that the Supreme Court would jump on their position and finally give the gun-rights activists what they had been claiming in their brand of conservative politics for 30 years. The final, sweet vindication by the highest court in the land seemed within reach. The prize was finally in sight. Who cared if some frightened wife in Texas was worried enough to get a restraining order? She was probably overreacting. She didn't need protection; his gun did.
In the end the U.S. Supreme Court refused to hear any further appeals. Gun rights activists would have to wait. I wonder how Sacha Emerson reacted to this court drama.
An abusive spouse, with a badge
Police culture may contribute to domestic violence, some experts say
Staten Island Advance (NY)
February 25, 2007
https://infoweb.newsbank.com/
STATEN ISLAND, N.Y. - When she read about the murder of Jeanne Kane two weeks ago, Carla Giordano got chills.
It wasn't just because she could relate to the years of abuse Ms. Kane allegedly suffered at the hands of her police officer husband.
"It was because that could have been me," said Ms. Giordano, a resident of the Rossville neighborhood of Staten Island who was married to an NYPD officer for seven years.
While Ms. Giordano admits her ex-husband was not as physically violent as Ms. Kane's ex-husband, John F. Galtieri, is alleged to have been, she said the details of their two marriages appear eerily similar. Galtieri, a retired NYPD sergeant, has been charged with shooting Ms. Kane in a Pleasant Plains parking lot on Jan. 30.
These women's stories may not be uncommon.
Domestic violence is the No. 1 cause of calls to police departments nationwide, according to a U.S. Department of Justice study. The study concluded one incident of domestic violence occurs every 29 seconds.
Even though there are very few studies on domestic violence specific to police officers, one study suggested domestic abuse occurs about four times more frequently in families with police officers than in those without.
Some experts blame the job itself. Police work is filled with stress, irregular working hours, violence and hyper-machismo - all ingredients for difficult marriages, they say.
Others say department initiatives are insufficient and department policies are ineffective.
The NYPD disagrees. Spokesman Martin Speechley said domestic violence involving police officers is less of a problem than it is among the general population. The so-called Lautenberg Amendment to the Gun Control Act of 1996 has served as an effective deterrent, he added.
The amendment makes it a felony for anyone with any domestic violence conviction to own or even handle any firearm or ammunition, effectively taking away an officer's ability to perform his or her duties.
However, the NYPD has not conducted an internal study nor would it disclose any statistics on domestic violence incidents involving police officers to bolster its claim.
Margaret Moore, a former NYPD officer and Bureau of Alcohol, Tobacco and Firearms official who is now the director National Center for Women & Policing (NCWP), said domestic violence by police officers "a real problem," even though there are few statistics to prove it. The NCWP conducted one of those rare studies on the issue in 1991, and about 40 percent of police officers surveyed admitted to some form of spousal abuse.
A Princes Bay marriage counselor - who has worked with police officers and their spouses for over 35 years - linked the problem of spousal abuse to the "extremely difficult culture" of the police department.
Officers are taught to take charge of situations, tamp down their feelings, and employ a "fix-it mentality" rather than a listening mentality, said the counselor, who did not wish to reveal his name for fear of the compromising the privacy of his clients.
"The job is always at odds with family life. Even ordinary things, like the hours these guys work," he added.
One of the largest obstacles police officers have to overcome is their mistrust of just about everyone, said the Prince's Bay marriage counselor. Most cops are jaded by the department's beauracracy, and often have an "us vs. them" mentality. They don't trust their superiors, they don't trust counselors, and they feel civilians - including their spouses - don't understand them.
"The whole thing comes together to make a very difficult marriage," he said.
The ones in happier marriages try very hard not to "bring the job home," and to separate their work social system with their family social system. They make a deliberate effort not to join in the fraternizing after work.
But that also costs them - often in lost promotions, he added.
And if they ever admit they have domestic abuse problems, officers are offered little help from inside their departments, he said. Many departments, including the NYPD, have a "zero tolerance" policy for officers convicted of domestic violence offenses.
Ms. Moore said this puts both the victim and the perpetrator in a "lose-lose" situation. She suggested better psychiatric screening for officer candidates, and an intervention program that addresses the needs of police officers' spouses.
"Very few people are going to go through with reporting these cases, because what they stand to lose," she said.
Ms. Giordano ran into that very dilemma.
Shortly after she and her husband split, Ms. Giordano's former husband was arrested for harassing her. But she was told by officials in the NYPD that if she pursued the charges, he would lose his job and his pension, and thus Ms. Giordano and her two children would lose the family's primary source of income and health insurance.
Ms. Giordano eventually obtained a permanent order of protection from a judge, but without much help from the police department, she said.
"I really don't think the NYPD cares ... they don't want to get involved," she added.
Ms. Giordani formed the Staten Island Single Parents Meetup group last year, in part, so single women like herself can help each other deal with the difficult adjustment of life after an abusive relatuionship. She was surprised to find there many others, she said.
Diane Wetendorf, who developed S.A.B.L.E. (Spousal Abuse By Law Enforcement), a specialized program for victims of police domestic violence, thinks that police departments must be willing to get involved - because the status quo is unacceptable.
"Many departments are simply reluctant to change. It's still a very authoritarian, domineering culture that sometimes transfers to domestic violence at home," she said.
Ms. Wetendorf, who has spoken to hundreds of domestic violence victims around the country and wrote a book about the abuse suffered by female police officers, offered another way to address the problem: Hire more female police officers.
In recent years, the NYPD has made a concerted effort to recruit more female officers. Currently, 17.4 percent of the NYPD officers are women, more than double the percentage a decade ago.
"More female officers may help a lot to address the hyper-macho police culture," she said.
Answers as to where you can carry a handgun
Cherokee Tribune (Canton, GA)
Author: Judge Kip McVay - Cherokee County Probate Court
September 2, 2007
https://infoweb.newsbank.com/
Recently there was a commentary that complained about "warring gangs" with guns in a park in the metro area. The solution offered by the writer was to ban handguns from parks. That is like saying that people who don't have driver's licenses are driving vehicles anyway, so let's ban vehicles.
The questions are who can carry a handgun and where?
Unfortunately, the laws don't tell you where and how you may carry a handgun but where and how you may not carry a handgun.
It is generally accepted that a person not otherwise under restraint may have a handgun in his or her home, business, and personal vehicles.
The right to possess a handgun is tempered based on many State and Federal laws.
In Georgia, a person who is age 21 or older and is not otherwise under restraint may possess a handgun based on the Constitutional right to bear arms.
There are numerous categories of persons who may not possess a handgun because of being under restraint. One example is a felon who has not received a pardon with restoration of the right to bear arms. Another example is anyone under a protective (restraining) order issued pursuant to the Family Violence Act. Also, a person adjudged to be mentally incompetent is ineligible to possess a handgun.
Where does the age 21 appear? Based on analysis of the laws. It is a violation of law to carry a handgun without a license outside the home, business, vehicle without a license. (Code Section 16-11-128. One may not have a license unless he or she is at least age 21. (Code Section 16-11-129.)
As it turns out, one has to figure out what is allowed by reading the criminal provisions as to what is prohibited. For example, the prohibition of carrying a handgun without a license set out in Code Section 16-11-128 makes an exception of the home, business and vehicle. That's how we know that a person (not otherwise under restraint) may have a handgun in the home, business and vehicle.
State law is not the only controlling law. One has to be familiar with federal law to know who can carry a handgun and where. For example, under what is known as the Lautenberg Amendment, found in 18 U.S.C. Section 922(g)(8)-(9) (2000), anyone who has ever been convicted of a family violence offense is prohibited from possessing a weapon.
Ever? Yes, unless a person is able to get a pardon, a conviction for family violence, no matter how long ago and no matter whether a misdemeanor or felony, acts as a prohibitor from possessing a weapon. Forever.
Let's go back to having a weapon in the vehicle, a person not under restraint, that is.
In the glove compartment, in the console, or lying in open view.
Does the handgun have to be unloaded? No. The absence of a criminal "not" means you can. Besides, why bother having a handgun in your vehicle if it can't be loaded? On the other hand, you can see why law enforcement have to be so cautious when they make a traffic stop. Do them and yourself a favor and move slowly and keep your hands in view.
Does the glove compartment or console have to be locked?
Generally, no.
One exception is where a person licensed to carry a weapon goes onto school property. In that case, IF the person is not a student and IF the person is there on legitimate business such as to deliver or pick up a student or attend a function, then the weapon may remain in the vehicle IF it is locked in the glove compartment or console.
What if the driver has a license to carry a weapon but there is no lock on the glove compartment or console? Sorry, you'll have to remove the weapon from the vehicle before driving onto school property. If that new car or truck you just purchased doesn't have a lockable cabinet, you'll need to get a locksmith to add a lock or you will have to remove the handgun when going onto school property.
By the way, the license to carry a handgun is one and the same as a concealed weapons permit and they are issued by the probate court as a firearms license.
Where a licensed person may carry a handgun concealed is a whole other topic. The law has even more "nots."
The writer of the recent commentary, which made reference to warring gangs shooting in a park, suggested that handguns be prohibited from all parks.
Why is another law needed? No one may carry a weapon in the park, or anywhere else (outside of the home, business vehicle) without a license. None of the members of those "warring gangs" have licenses. Go ahead and arrest them.
On the other hand, why infringe on the rights of the law abiding licensed citizen just because of "warring gangs." The truth of the matter is that persons licensed to carry a weapon are the least likely to be committing crimes.
Getting a firearms permit is not easy. In fact, it has been my experience that those who get permits treat them like gold and are, or become, your most law abiding citizens.
Did I mention that I'm an ardent gun rights advocate?
2008: Lautenberg DV Gun Ban - News Articles And Reports
When Strains on Military Families Turn Deadly
Ocala Star-Banner (FL)
February 15, 2008
https://infoweb.newsbank.com/
A few months after Sgt. William Edwards and his wife, Sgt. Erin Edwards, returned to a Texas Army base from separate missions in Iraq, he assaulted her mercilessly. He struck her, choked her, dragged her over a fence and slammed her into the sidewalk.
As far as Erin Edwards was concerned, that would be the last time he beat her.
Unlike many military wives, she knew how to work the system to protect herself. She was an insider, even more so than her husband, since she served as an aide to a brigadier general at Fort Hood.
With the general's help, she quickly arranged for a future transfer to a base in New York. She pressed charges against her husband and secured an order of protection. She sent her two children to stay with her mother. And she received assurance from her husband's commanders that he would be barred from leaving the base unless accompanied by an officer.
Yet on the morning of July 22, 2004, William Edwards easily slipped off base, skipping his anger-management class, and drove to his wife's house in the Texas town of Killeen. He waited for her to step outside and then, after a struggle, shot her point-blank in the head before turning the gun on himself.
During an investigation, Army officers told the local police that they did not realize Erin Edwards had been afraid of her husband. And they acknowledged that despite his restrictions, William Edwards had not been escorted off base "on every occasion" according to a police report.
That admission troubled the detective handling the case.
"I believe that had he been confined to base and had that confinement been monitored," said Detective Sharon L. Brank of the local police, "she would not be dead at his hands."
The killing of Erin Edwards directly echoed an earlier murder of a military wife that drew far more attention. Almost 10 years ago, at Fort Campbell in Kentucky, a different Army sergeant defied a similar restriction to base, driving out the front gate on his way to a murder almost foretold.
That 1998 homicide, one of several featured in a '60 Minutes; on domestic violence in the military, galvanized a public outcry, Congressional demands for action and the Pentagon's pledge to do everything possible to prevent such violence from claiming more lives.
Yet just as the Defense Department undertook substantial changes, guided by a Congressionally chartered task force on domestic violence that decried a system more adept at protecting offenders than victims, the wars in Afghanistan and then Iraq began.
Pentagon officials say that wartime has not derailed their efforts to make substantive improvements in the way that the military tackles domestic violence.
They say they have, for example, offered more parenting and couples classes, provided additional victims advocates and afforded victims greater confidentiality in reporting abuses.
But interviews with members of the task force, as well as an examination of cases of fatal domestic violence and child abuse, indicate that wartime pressures on military families and on the military itself have complicated the Pentagon's efforts.
"I don't think there is any question about that," said Peter C. McDonald, a retired district court judge in Kentucky and a member of the Pentagon's now disbanded domestic violence task force. "The war could only make things much worse than even before, and here we had a system that was not too good to begin with."
Connie Sponsler-Garcia, another task force member, who now works on domestic violence projects with the Pentagon, agreed.
"Whereas something was a high priority before, now it's 'Oh, dear, we have a war. We'll get back to you in a few months,'"she said.
The fatalities examined by The New York Times show a military system that tries and sometimes fails to balance the demands of fighting a war with those of eradicating domestic violence.
According to interviews with law enforcement officials and court documents, the military has sent to war service members who had been charged with and even convicted of domestic violence crimes.
Deploying such convicted service members to a war zone violates military regulations and, in some cases, federal law.
Take the case of Sgt. Jared Terrasas. The first time that he was deployed to Iraq, his prosecution for domestic violence was delayed. Then, after pleading guilty, he was pulled out of a 16-week batterers intervention program run by the Marine Corps and sent to Iraq again.
Several months after Sergeant Terrasas returned home, his 7-month-old son died of a brain injury, and the marine was charged with his murder.
Deployment to war, with its long separations, can put serious stress on military families. And studies have shown that recurrent deployments heighten the likelihood of combat trauma, which, in turn, increases the risk of domestic violence.
"The more trauma out there, the more likely domestic violence is," said Dr. Jacquelyn C. Campbell, a professor at the Johns Hopkins School of Nursing who also was a member of the Pentagon task force.
The Times examined several cases in which mental health problems caused or exacerbated by war pushed already troubled families to a deadly breaking point.
In one instance, the Air Force repeatedly deployed to Iraq, Afghanistan and elsewhere Sgt. Jon Trevino, a medic with a history of psychological problems, including post-traumatic stress disorder.
Multiple deployments eroded Sergeant Trevino's marriage and worsened his mental health problems until, in 2006, he killed his wife, Carol, and then himself.
The military declared his suicide "service related."
A Call to Action
Within a six-week period in 2002, three Special Forces sergeants returned from Afghanistan and murdered their wives at Fort Bragg in North Carolina. Two immediately turned their guns on themselves; the third hanged himself in a jail cell. A fourth soldier at the same Army base also killed his wife during those six weeks.
At the beginning of this wartime period, the cluster of murder-suicides set off alarms about the possible link between combat tours and domestic violence, a link supported by a study published that year in the journal Military Medicine. The killings also reinvigorated the concerns about military domestic violence that had led to the formation of the Defense Task Force on Domestic Violence two years earlier.
National attention to the subject was short-lived. But an examination by The Times found more than 150 cases of fatal domestic violence or child abuse in the United States involving service members and new veterans during the wartime period that began in October 2001 with the invasion of Afghanistan.
In more than a third of the cases, The Times determined that the offenders had deployed to Afghanistan or Iraq or to the regions in support of those missions. In another third, it determined that the offenders never deployed to war. And the deployment history of the final third could not be ascertained.
The military tracks only homicides that it prosecutes, and a majority of killings involving service members are handled by civilian authorities. To track these cases, The Times used records from the Army, Air Force and Navy - the Marines did not provide any information - and local news reports.
It is difficult to know how complete The Times's findings are. What is clear, though, is that these homicides occurred at a time when the military was trying to improve its handling of domestic violence.
The Pentagon's domestic violence task force, appointed in April 2000 and comprising 24 military and civilian experts, met regularly for three years to examine a system where, they found, soldiers rarely faced punishment or prosecution for battering their wives and where they often found shelter from civilian orders of protection.
When the moment arrived to explain their findings and recommendations to Congress, however, the timing could not have been poorer. Deborah D. Tucker and Lt. Gen. Garry L. Parks of the Marines, the leaders of the task force, presented their final report to the House Armed Services Committee on the very day that the Iraq war began, March 20, 2003. Ms. Tucker called it "one of the more surreal experiences of my life."
"Periodically, members of the committee would call for a break and there would be some updated information provided on the status of our troops' entry into Iraq and how far they'd gotten," she said. "There was a map on an easel to the side."
"I knew that while we were at war all other considerations would push back," she added, "and I hoped that Operation Iraqi Freedom would be a quick matter on the order of Desert Storm."
The task force was disbanded, and its request to reconvene after two years to evaluate progress was rejected. But the Defense Department embraced most of its 200 recommendations and gradually made many changes, from the increase in advocates to domestic violence training for commanding officers.
"The services have taken huge strides to implement the recommendations," said David Lloyd, director of the Pentagon's Family Advocacy Program, starting with sending out "a strong message across the department that domestic violence is not acceptable."
Further, after the killings at Fort Bragg, Congress passed a law that made civilian orders of protection binding on military bases, and the Army gradually slowed the transition from war to home to help soldiers adjust.
Mr. Lloyd said he could not verify or comment on The Time's findings on domestic killings. But, he said, domestic fatalities do not provide a complete picture of the incidence of domestic violence in the military.
"You have a pie, a nine-inch shell, and you have a slice of that pie, but there are other slices: verbal abuse and psychological control and assault that didn't result in a homicide," Mr. Lloyd said. "Even if the fatality slice has increased and it would look larger, the other numbers have gone down."
According to the military, the number of general spouse and child abuse incidents reported to on-base family advocacy programs began declining in 1998, before the special effort to address the issue began, and continued to decline significantly through 2006. But whether those numbers reflect a genuine decline is a matter of debate, given that large numbers of service members have spent considerable time away on deployments and that the strengthening of sanctions for domestic violence has made some women more reluctant to report abuse.
The accuracy of the military's domestic violence data has also been questioned, by advocates, the Government Accountability Office and military officials themselves.
Last fall, in a statement released during domestic violence awareness month, Mike Hoskins, a Pentagon official, said, "We shouldn't necessarily take comfort in reduced rates of violence." He said they probably reflected "good news," but urged caution in interpreting the numbers.
Dr. Campbell, the former task force member, said the task force had recommended periodic anonymous surveys to ascertain the full extent of domestic violence. She also said that she believed the "true incidence" of domestic violence had probably increased as a result of service members returning from Iraq with combat trauma, which can exacerbate family violence.
"It's sort of like, on the one hand, they're improving the system, and on the other hand, they're stressing it," she said.
Others agree, noting that wartime places a burden on the military as a whole, even on those who do not deploy to combat zones but absorb additional duties at home.
Christine Hansen, executive director of the Miles Foundation, which provides domestic violence assistance mostly to the wives of officers and senior enlisted men, said the organization's caseload had tripled since the war in Iraq began.
And John P. Galligan, a retired Army colonel who served as a military judge at Fort Hood and now represents military clients in private practice, said he, too, had seen a "substantial" increase in military domestic violence cases in his area.
"Sometimes I just sit and scratch my head," he said.
The separation of deployment, in and of itself, often causes marital strains.
"Even with a healthy marriage, there is a massive adjustment," said Anita Gorecki, a lawyer and former Army captain who represents soldiers near Fort Bragg and is married to an officer currently in Iraq. "Add on to that combat stress and injuries and sometimes it can create the perfect storm."
Some researchers draw a fairly firm connection between post-traumatic stress disorder and domestic violence. A 2006 study in The Journal of Marital and Family Therapy looked at veterans who sought marital counseling at a Veterans Affairs medical center in the Midwest between 1997 and 2003. Those given a diagnosis of PTSD were "significantly more likely to perpetrate violence toward their partners," the study found, with more than 80 percent committing at least one act of violence in the previous year, and almost half at least one severe act.
Pamela Iles, a superior court judge who was permitted by the Marines to set up a privately financed domestic violence education program at Camp Pendleton in California, views much of the domestic abuse on the base as "collateral" from the war. She sees the domestic violence committed by marines, many of them young, as a reaction to jumping back and forth between the dangers of war and the trouble at home.
"One minute you are in Baghdad waiting for a bomb to go off and the next minute you are in Burger King," Judge Iles said. "There is a lot of disorientation."
A 9-Year-Old Witness
It was a little before dawn on Feb. 20, 2006, in a bedroom in Edwardsville, Ill. Carol Trevino and her 9-year-old son, sleeping deeply after watching 'Wayne's World,' were startled awake by a series of booms. "What was that?" Carol Trevino asked her son.
In seconds, Sgt. Jon Trevino, her estranged husband, barged through the door, according to a police report. Mrs. Trevino had just enough time to reach for her pepper spray before he shot her five times, the last time in the head. Then he shot himself.
Their son, wide-eyed, sat in bed watching his life explode, bullet by bullet.
Few details escaped the boy's notice. His father used a silver gun and it "didn't have a wheel on it, like the cowboys used" he told the Edwardsville police. The boy could even name the precise time of his mother's death: 4:32 a.m., as the glowing clock read.
Outside in Mr. Trevino's car was the immediate motive for the murder-suicide: divorce papers, evidence of a marriage destabilized by multiple deployments to war zones and by Sergeant Trevino's own increasing instability.
T. Robert Cook, his brother-in-law, said he believed Sergeant Trevino's domestic violence was triggered by his combat trauma. "I'm 100 percent sure it was the war," said Mr. Cook, who is raising the Trevino's son along with his wife, Sheryl Gusewell, who is Carol's sister. "I don't have any doubt their marital problems placed a burden on him, but I am quite sure that, but for the war, he would have taken a different approach. When you see people being shot every day, death is not a big thing."
Sergeant Trevino, who had endured childhood sexual abuse and a difficult first marriage, suffered psychiatric problems long before he was dispatched to war zones to perform the highly stressful job of evacuating the wounded.
And the Air Force knew it.
Air Force mental health records show that Sergeant Trevino, who was 36, had been treated twice for mental health problems before the war: once in 1995 for serious depression as his first marriage crumbled, and then in 1999 for post-traumatic stress disorder stemming from the childhood abuse and marital problems with his new wife, Carol. He was counseled and treated with medication both times.
As a result of these problems, the Air Force insisted that he secure a medical waiver for a promotion that he sought to become an aeromedical evacuation technician. And military doctors certified that he could handle the job, despite research that shows that pre-existing post-traumatic stress disorder is exacerbated in a war zone.
Col. Steven Pflanz, a senior psychiatrist in the Air Force, who was not involved in the Trevino case, said the Air Force considered the stress disorder to be treatable and therefore was willing to deploy an airman with a history of it. But the decision is not taken lightly, he said.
"It's not an exact science," he said. "You try to make your best prediction. We spend a lot of time with our customers."
In Sergeant Trevino's case, the prediction was wrong. He had trouble shaking off the carnage that he experienced so viscerally while evacuating injured service members. After one deployment to Afghanistan and two to Iraq, his mental health and his marriage deteriorated. When he returned from his second tour in Iraq, Sergeant Trevino acknowledged in a health assessment that he had "serious problems" dealing with the people he loved and that he was feeling "down, helpless, panicky or anxious."
The Air Force acted quickly. He was abruptly restricted from "special operational duty." An Air Force doctor diagnosed "acute PTSD," calling it a reaction to the war and marital problems. Sergeant Trevino began taking a cocktail of antidepressants and underwent therapy. According to doctor's notes, he did not express thoughts of homicide or suicide. By the time Hurricane Katrina hit the Gulf Coast in August 2005, he was considered well enough to be deployed domestically.
But his wife's family, which had taken him under its wing, found the once affable, quick-witted sergeant to be profoundly altered. His temper flashed unpredictably, white-hot. He acted threatened and paranoid, his behavior so erratic that he frightened his son. One late night, he took his son on a rambling drive to nowhere, ranting to the boy about his mother.
At least one time, he struck his wife. A friend gave Carol Trevino the pepper spray that she reached for the night of her murder. But she never considered his abuse serious enough to report him to the authorities.
Four days before the murder-suicide, Sergeant Trevino bought a gun.
"This is just one of those things that unfortunately happens," he wrote to his son in a suicide note. "I love you, and I know I let you down."
Justice Delayed
The Pentagon task force had one overarching recommendation: that the military work hard to effect a "culture shift" to zero tolerance for domestic violence by holding offenders accountable and by punishing criminal behavior.
There was, members believed, a core credo that needed to be attacked frontally: "this notion that the good soldier either cantt be a wife beater or, if they are, that it's a temporary aberration that shouldn't interfere with them doing military service," as Dr. Campbell put it.
The way the military handled several cases involving the deaths of babies and toddlers indicates that this kind of thinking has been difficult to demolish at a time of war.
In October 2003, four months after Jose Aguilar, 24, a Marine Corps sergeant, returned from the initial invasion of Iraq, his infant son, Damien, wound up in the intensive care unit of a local hospital with bleeding in his brain and eyes.
Sergeant Aguilar, a mechanic based at Camp Lejeune in North Carolina, acknowledged to the local police that he had been rough with the 2-month-old baby, shaking Damien to stop him from squirming during a diaper change. He said that he had been abused himself as a child and that he did not mean to hurt the baby.
After the marine was charged with felony child abuse, he and his wife completed a parenting program.
The following summer, while the felony charge was pending, Sergeant Aguilar was deployed once more to Iraq, this time for nine months. His court case was delayed, which did not surprise local prosecutors.
Michael Maultsby, the assistant district attorney in Onslow County, N.C., who prosecuted Sergeant Aguilar, said that such frustrating delays in justice sometimes occur in his county, home to Camp Lejeune.
"It depends on the needs of the unit," Mr. Maultsby said. "We can't overrule them."
In April 2006, a year after Sergeant Aguilar returned from Iraq but before his felony case was resolved, Damien, who by then was 2, died of a brain injury. His father claimed that the boy had been injured by a fall in the bathtub. The medical examiner disputed that explanation. The marine was arrested, pleaded guilty to second-degree murder and felony child abuse, and was sentenced last fall to 28 to 35 years in prison.
Marine officials would not comment on individual cases. Elaine Woodhouse, a Marine Corps social services program specialist, said that "the family advocacy program does not recommend or advise deployment of a marine when domestic or felony child abuse charges are pending." Still, that decision, she said, is left to the discretion of the commanders.
A conviction for domestic violence, unlike pending charges, almost always renders a service member ineligible to go to war, but that restriction has not always been considered binding, as is clear in the case of Sergeant Terrasas, who was stationed at Camp Pendleton.
One night in late December 2002, Sergeant Terrasas, drunk and angry over a telephone conversation about the looming war in Iraq, vented his anger by punching his wife, Lucia, in the face.
"He seemed to just lose it," Mrs. Terrasas told the police in Oceanside, Calif., who arrested him on misdemeanor charges.
But Sergeant Terrasas was deployed to Iraq before his case was heard. It was not until his return seven months later that he pleaded guilty, was placed on probation and was ordered to complete a 16-week batterers intervention program run by the Marine Corps.
Sergeant Terrasas attended a few classes. But the Marine Corps, facing a runaway insurgency in Iraq, pulled him out of the batterers program and shipped him off to war for a second time in early 2004.
This deployment was illegal. A 1996 law bans offenders who are convicted of domestic violence misdemeanors from carrying firearms, with no special exception for military personnel. The ban is referred to as the Lautenberg amendment after its sponsor, Senator Frank R. Lautenberg, Democrat of New Jersey.
Army and Marine regulations, formulated in response to the weapons ban, explicitly prohibit deployments for missions that require firearms, and extend the policy to felony domestic violence offenders, too. The Marine Corps would not comment on Sergeant Terrasas's deployment, citing confidentiality rules.
When Sergeant Terrasas returned from war, he completed his batterers program, said his lawyer, Philip De Massa. But his anger, tested by two tours in Iraq, still surfaced. In September 2005, when the police responded to a domestic argument, he broke down crying and told one officer that he suffered from "postwar traumatic syndrome." There is no record that he sought or received mental health help.
Nearly two weeks later, the Terrasases' 7-month-old son, Alexander, died from a powerful blow to the head. Mr. Terrasas was charged with murder. Last August, after a deal with prosecutors, he was sentenced to seven years in prison for felony child endangerment.
He never admitted to abusing his child.
Broken Promises
Sgt. Erin Edwards, emboldened by a year in Iraq, returned to Texas with the courage to end her troubled marriage.
"Being apart for such a long period of time enabled her to realize she could survive without him," said Sgt. Jami Howell, 28, who was her best friend.
When Erin Edwards told her husband that she wanted a divorce after four years of marriage, he responded as she had long feared.
On June 19, 2004, he followed her to their baby sitter's house to hand her a written proposal for a custody arrangement. When she did not immediately respond, he beat her so badly that she wound up in the emergency room.
Even before the assault, William Edwards's troubles had so badly affected his performance at work that his commanding officer, Capt. Brian Novoselich, took the time to meet with him weekly to check on his welfare. After the assault, it was the captain who confined him to the base.
But William Edwards repeatedly left unescorted and often stayed with his brother, who lived across the street from Erin Edwards in Killeen. On several occasions, she alerted the police and his superiors that he was lurking.
On July 21, 2004, Erin Edwards went to court to make the temporary protection order permanent. At the hearing, William Edwards told the judge that he had enrolled in alcohol and domestic violence classes after the June assault, according to a transcript.
"I had hit rock bottom when I touched my wife, man," he said in court. "That was the worst day ever in my life. I had always told my wife that I would never touch her, ever, physically."
William Edwards also acknowledged that when the police showed up that day, he begged his wife not to press charges, saying: "Don't do this to my career. Don't do this."
Erin Edwards spoke of the effect on their children, who witnessed the assault. "Since the incident happened, all my son talks about is how his father hurt his mother, and that Daddy is going to kill Mommy,'" she said.
She also stated, and her husband learned for the first time, that she was transferring and moving with the children. William Edwards was "visibly upset" by this, according to Army documents turned over to the police.
The following morning, after reporting to an exercise session with other soldiers, William Edwards left the base alone one final time. After the murder-suicide, local police officers securing the scene noted that both bodies were dressed in military camouflage clothing with nameplates that said Edwards. Both were 24.
At Erin Edwards's funeral, her boss, Brig. Gen. Charles Benjamin Allen, who was killed in a helicopter crash in late 2004, eulogized the soldier with a cracking voice. More than three years later, her relatives note that not even he, with his high rank, was able to ensure that the military was doing more than taking a troubled soldier "at his word," as Mary Lou Taylor, Erin's aunt, said.
"He couldn't or failed to help her be safe." Ms. Taylor said.
William Edwards's former commanding officer, Major Novoselich, said in a recent interview that he was "shocked by the end result." Now a professor at West Point, he said he had assumed that William Edwards's immediate supervisors were monitoring him.
Near Fort Hood, Detective Brank of the Killeen police said soldiers continued to defy restrictions to the base.
"I am surprised," she said. "Fort Hood is not enforcing these orders."
The Army examined Erin Edwards's death as part of a fatality review program recommended by the Pentagon task force "to ensure no victim dies in vain."
A one-paragraph summary of the review seemed to discount the findings of the civilian police investigation. The summary noted that Erin Edwards had refused the assistance of the base's family advocacy program, while William Edwards had enrolled in it. It added that William Edwards had "appeared to comply" with his restrictions. Until the day he "eluded his military escort" and killed his wife.
GUNS POSE A DEADLY THREAT TO VICTIMS OF DOMESTIC VIOLENCE
Seattle Post-Intelligencer (WA)
April 22, 2008
https://infoweb.newsbank.com/
In April 2007, after months of stalking and threatening, Rebecca Griego's ex-boyfriend shot and killed her on the University of Washington campus. Just weeks later in Des Moines, Monique Vance was chased down and shot to death by her husband as she ran to a neighbor for help.
While those crimes may appear to be isolated incidents, they are in fact intrinsically linked.
Chances are the deaths of those two women won't be a prominent topic of discussion when the U.S. Supreme Court issues its decision in District of Columbia v. Heller, the challenge to the district's handgun ban, in late June. But they should be, because as Griego's and Vance's stories show, guns pose a uniquely deadly threat to victims of domestic violence.
Domestic violence directly affects one in four women in every corner of this country. Each year, almost two million injuries and more than half a million emergency room visits are attributed to this kind of abuse.
Domestic violence is also a crime. It accounts for more than one-third of all reported violent crimes in 18 states and the District of Columbia, and it claims the lives of three women each day.
And guns are undeniably the weapon of choice in domestic violence homicides. Studies show that from 1980 to 2000, 60 percent to 70 percent of abusers who killed their female partners used guns to do so.
In Washington state, where 359 people were killed by domestic violence abusers between Jan. 1, 1997 and June 30, 2006, abusers used guns in 200 of those murders. Women are more likely to be killed by guns than all other methods combined. Simply having a gun in the house makes an abused woman six times more likely than other women to be killed.
For more than a decade, the federal government has recognized the devastating and deadly role guns play in domestic violence. In 1994, Congress passed the Domestic Violence Firearm Prevention Act, which prohibits gun possession by anyone who has a restraining or protective order issued against them in a case of reported domestic violence.
Congress strengthened its commitment to keeping guns out of the hands of abusers in 1996 by passing the Domestic Violence Offender Gun Ban. Commonly referred to as the Lautenberg Amendment, the ban prohibits anyone convicted of a misdemeanor crime of domestic violence from purchasing or possessing a gun. Statistics collected by the Department of Justice and analyzed by the Congressional Research Service estimate that by the end of 2006, the law had blocked more than 150,000 attempted gun purchases by people convicted of domestic violence crimes.
Seeing the promise of such restrictions in preventing domestic violence murders, state and local governments have followed in the footsteps of the federal government by enacting laws to prevent abusers from wielding guns.
These reasonable gun restrictions have been instrumental in protecting thousands of domestic violence victims.
Guns exacerbate an already pervasive problem, intensifying the violence and the likelihood that such violence will lead to death. Reasonable gun restrictions save lives by keeping guns out of the hands of individuals prone to harming others.
We hope the justices will uphold the D.C. law - and in the process, protect victims and enable communities to do what it takes to make sure our homes are safe.
Brady Campaign Strongly Endorses Senator Frank Lautenberg, A Hero in The Fight to Reduce Gun Violence
PR Newswire (USA)
May 22, 2008
https://infoweb.newsbank.com/
The President of the Brady Campaign to Prevent Gun Violence announced today that the organization was endorsing New Jersey Senator Frank Lautenberg in the Democratic primary to serve New Jersey in the United States Senate. The organization rarely endorses primary candidates.
"Senator Frank Lautenberg is a hero to those who fight to reduce gun violence in America. He has always been a courageous champion for sensible gun laws and has worked tirelessly to make our communities safer," said Paul Helmke, Brady's President. "We will do everything we can to ensure that Senator Lautenberg is re-elected."
According to the Brady Campaign, Senator Lautenberg has a stellar record of fighting to keep guns out of the hands of dangerous people, including the following:
-- Senator Lautenberg cosponsored the Senate version of the Brady Handgun Violence Prevention Act (Public Law 103-159), which, since going into effect in 1994, has stopped more than 1.5 million felons and other dangerous people from buying guns.
-- Senator Lautenberg authored the Domestic Violence Gun Ban (Public Law 104-208) which, since its enactment in 1996, has denied guns to domestic abusers over 150,000 times.
-- Senator Lautenberg is the author of legislation to require background checks at gun shows so that criminals, terrorists, and other dangerous people cannot exploit these events to buy and sell guns. Although the Senate passed the Senator's legislation in 1999 with Vice President Gore's tie-breaking vote, the gun lobby killed it in the House of Representatives. Senator Lautenberg has reintroduced this legislation in the 110th Congress.
-- Senator Lautenberg has introduced legislation that would, for the first time, give the Attorney General the power to prevent known and suspected terrorists from purchasing firearms (S. 1237). In 2007, at Senator
Lautenberg's urging, the Bush Administration endorsed Lautenberg's proposal to close the "terror gap."
"We make it too easy for dangerous people to obtain dangerous weapons," Helmke said. "There are only a few sensible gun laws on the books at the federal level, and Senator Lautenberg is one of the big reasons we have most of those. The Brady Campaign fights for sensible gun laws to protect Americans and their families and our community, and no one has worked harder for progress than Frank Lautenberg. We strongly support his reelection."
Brady Center, Law Enforcement Leaders Urge Supreme Court to Reverse Appeals Court Ruling Allowing Domestic Violence Abusers to Have Guns
PR Newswire (USA)
June 17, 2008
https://infoweb.newsbank.com/
National law enforcement groups joined the Brady Center to Prevent Gun Violence and other gun violence prevention groups in filing a "friend of the court" brief in United States v. Hayes, urging the U.S. Supreme Court to reverse an appeals court ruling allowing convicted domestic violence abusers to possess guns.
If upheld, the appeals court ruling could require the names of thousands of dangerous, convicted abusers purged from the Brady background check system, enabling these individuals to possess firearms.
The "Lautenberg Amendment," enacted by Congress in 1996, prohibits abusers convicted of misdemeanor domestic violence from possessing firearms. Last April, the 4th Circuit Court of Appeals overturned a wife beater's conviction for illegal gun possession. The Court narrowly interpreted the Lautenberg Amendment to bar gun possession only by abusers convicted of laws specifically barring domestic violence, rather than all persons convicted of domestic violence under general battery laws. The 4th Circuit ruling is contrary to the rulings of nine other Federal Circuit Courts. More than half of the states do not have laws specifically barring violence against spouses or family members, but instead charge abusers under general battery laws.
"We urge the Supreme Court to recognize the importance of protecting the families of domestic violence victims and the law enforcement personnel who risk their lives stopping violent abusers by affirming that convicted abusers should not possess guns," said Brady Center President Paul Helmke. "We should not make it easier for dangerous domestic violence abusers to get their hands on firearms."
The Brady Center brief argues that the lower court ruling, if affirmed, could re-arm thousands of convicted domestic violence abusers, placing in jeopardy the family members of these abusers as well as the law enforcement officers summoned to address such violence. On average, more than three people are killed by intimate partners every day in this country. Intimate partner homicides account for up to one-half of all homicides of females. Every year between 1,000 and 1,600 women die at the hands of their male partners, and 14 percent of all police officer deaths occurred during a response to domestic violence calls.
The Supreme Court will consider United States v. Hayes in its term beginning in October. It will likely be the first Supreme Court case interpreting federal gun laws to be decided after the Court issues its Second Amendment decision in District of Columbia v. Heller which is expected in the next few days.
The groups joining the Brady Center brief are the International Association of Chiefs of Police, Major Cities Chiefs, National Sheriffs' Association, National Organization of Black Law Enforcement Executives, Hispanic American Police Command Officers Association, Police Executive Research Forum, National Black Police Association, National Latino Peace Officers Association, Legal Community Against Violence, and School Safety Advocacy Council.
Reasonable Gun Restrictions Are Necessary to Protect Victims of Domestic Violence
PR Newswire (USA)
June 26, 2008
https://infoweb.newsbank.com/
The following is a statement by Sue Else, President of the National Network to End Domestic Violence:
The National Network to End Domestic Violence is disappointed in the Supreme Court's decision in District of Columbia v. Heller. Guns pose a very grave threat to domestic violence victims, and communities must be able to implement the necessary tools to keep victims safe.
Domestic violence accounts for over one-third of all reported violent crimes in 18 states and the District of Columbia. Domestic violence claims the lives of three women each day and guns are undeniably the weapon of choice in these homicides. Studies show that from 1980 to 2000, 60% to 70% of abusers who killed their female partners used guns to do so. Simply having a gun in the house makes an abused woman seven times more likely than other women to be killed.
The mere presence of a gun, whether it is fired or not, has long-term, devastating effects on domestic violence victims. An abuser will often use the gun to terrorize the victim - pointing it at the victim, threatening to harm others or even commit suicide. Such threats lead to a constant state of fear and post-traumatic stress. Justice Breyer's dissent pays specific attention to the deadly role guns play in domestic violence.
Although it makes it harder for legislatures to protect victims of domestic violence, the Court's opinion does not strike down existing, effective restrictions that keep guns out of the hands of batterers. There is a well-established federal framework for regulating gun possession and such laws are precisely the sort of lawful regulatory measure referred to by the Court. For example, the federal Domestic Violence Offender Gun Ban prohibits anyone convicted of a misdemeanor crime of domestic violence or subject a protective order from purchasing or possessing a gun. Similar gun restrictions at the federal, state and local level have been instrumental in protecting thousands of domestic violence victims. Domestic violence convictions and restraining orders are the second most common reasons for the denial of hand gun applications. Statistics collected by the Department of Justice and analyzed by the Congressional Research Service estimate that the Lautenberg Amendment had blocked over 150,000 attempted gun purchases by people convicted of domestic violence crimes.
The National Network to End Domestic Violence will work with the District of Columbia and other states to ensure their firearms prohibitions meet the standards of the Court while keeping guns out of the hands of batterers.
U.S. District Court upholds domestic violence firearms ban
Wisconsin Law Journal (Milwaukee, WI)
September 8, 2008
https://infoweb.newsbank.com/
The ban on possession of firearms by persons convicted of misdemeanor domestic violence is constitutional.
In one of the first challenges to the validity of 18 U.S.C. 922(g)(9), since the U.S. Supreme Court's landmark holding in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), U.S. District Judge Barbara B. Crabb held that Heller does not affect the validity of the prohibition.
Judge Crabb reasoned, “These persons have shown that it is they and not any outside intruders that pose the greater danger to their families.”
The defendant, Steven M. Skoien, had moved to dismiss the indictment against him on the ground that the statute violates the Second Amendment's guarantee of the right to bear arms. On Aug. 27, Judge Crabb denied the motion to dismiss.
In Heller, the Supreme Court held that the Second Amendment's right to bear arms protects an individual right to possess and carry weapons in case of confrontation.
However, the court made a point of saying that its opinion was not intended to suggest that all gun laws and firearms restrictions are unconstitutional.
The Supreme Court wrote, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill ..." Judge Crabb read this caveat to include the ban on possession by those convicted of domestic violence.
Crabb concluded, "the Court's statement about &longstanding prohibitions on arms possession by felons' is an explicit recognition of the fact that persons may forfeit their Second Amendment right to bear arms along with other rights when they commit serious crimes. Congress has made the judgment that one of those &serious crimes' is domestic violence serious enough to result in a misdemeanor conviction."
Crabb declined to decide what level of scrutiny applies to Second Amendment challenges, finding that, even under the highest level, the statute passes muster.
Before concluding, Judge Crabb noted that the Seventh Circuit has upheld the statute against constitutional challenge (albeit before Heller) in Gillespie v. City of Indianapolis, 185 F.3d 693 (7th Cir. 1999), and that remains binding on district courts in the circuit.
Case analysis
Absent from the court's discussion is any attempt to classify the prohibition on those convicted of misdemeanor domestic violence as "longstanding."
The federal ban on felons and the mentally ill possessing firearms goes back to 1968. In addition, some state prohibitions on felons possessing firearms predate the federal law (Wisconsin's dates to 1981).
In contrast, the Lautenberg Amendment, which created subsec. (g)(9) did not become law until 1996.
Arguably, this is not included in the Supreme Court's reference to "longstanding prohibitions on the possession of firearms by felons and the mentally ill or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms (emphasis added)."
The Supreme Court in Heller could easily have included in the list of bans its holding does not reach, "persons convicted of domestic violence."
The omission from the list, and the fact that the law is not especially "longstanding," make for a strong argument that the ban may be unconstitutional, and defense attorneys should continue to challenge indictments under this statute.
Supreme Court to Hear Arguments in Case That Could Re-Arm Thousands of Convicted Domestic Violence Abusers
PR Newswire (USA)
November 10, 2008
https://infoweb.newsbank.com/
The U.S. Supreme Court will hear arguments today at 11 a.m. in United States v. Hayes, a case that will determine whether thousands of convicted domestic violence abusers will be allowed to possess guns.
The Court will interpret the federal Lautenberg Amendment, which bans gun possession by convicted domestic violence abusers. The Brady Center to Prevent Gun Violence and law enforcement groups filed a brief in June urging the Court to reverse an appeals court ruling that, if allowed to stand, could re-arm convicted abusers in a majority of states.
The Lautenberg Amendment, enacted in 1996, prohibits abusers convicted of misdemeanor domestic violence from possessing firearms. In April 2007, the 4th Circuit Court of Appeals overturned a wife beater's conviction for illegal gun possession by narrowly interpreting the Lautenberg Amendment as only barring gun possession by abusers convicted of laws specifically barring domestic violence, rather than all persons convicted of domestic violence under general battery laws. Most states do not have laws specifically barring violence against spouses or family members, but instead charge abusers under general battery laws.
If the Supreme Court affirms the 4th Circuit ruling, the names of thousands of dangerous, convicted abusers could be purged from the Brady background check system, enabling them to possess firearms.
"The Supreme Court should follow the will of Congress and protect domestic violence victims and law enforcement officers who risk their lives stopping abusers by affirming that convicted domestic violence abusers cannot have guns," said Brady Center President Paul Helmke. "We should not make it easier for dangerous abusers to get firearms."
The brief submitted by the Brady Center and law enforcement highlights the great danger that armed abusers pose to family members of these abusers as well as law enforcement officers summoned to address such violence. On average, more than three people are killed by intimate partners every day in this country. Intimate partner homicides account for up to one-half of all homicides of females. Every year between 1,000 and 1,600 women die at the hands of their male partners, and 14 percent of all police officer deaths occur during a response to domestic violence calls.
The groups that joined the Brady Center brief are the International Association of Chiefs of Police, Major Cities Chiefs, National Sheriffs' Association, National Organization of Black Law Enforcement Executives, Hispanic American Police Command Officers Association, Police Executive Research Forum, National Black Police Association, National Latino Peace Officers Association, Legal Community Against Violence, and School Safety Advocacy Council.
An appropriate response
News & Politics Examiner (USA)
November 21, 2008
https://infoweb.newsbank.com/
There's been a local standoff.
SWAT was called in. Thankfully, the suspect gave up and no one was hurt:
Police Chief Robert Osiecki, the man charged with keeping the peace in this rural community, had a four-hour confrontation with heavily armed officers on Thursday that shut down much of his quiet neighborhood.
After two SWAT teams patrolled outside his house and police talked to him for hours Thursday afternoon, Osiecki surrendered peacefully. Police from Osiecki's own department had called the Medina County Sheriff's Office for help after the chief threatened to harm himself.
A police chief? And there were no warning signs?
Oh--there were:
Osiecki, 50, who has a history of alcohol-related troubles, was accused by township trustees of handling a loaded gun while intoxicated during a domestic altercation at his home Oct. 29...In 2003, trustees suspended him for 10 days after he was found guilty of driving under the influence and crashing his township car into a ditch....In 1998, Osiecki and his wife, Doreen, were charged with disorderly conduct after a fight outside a local fast-food restaurant.
Yet throughout, Osiecki has been one of the "only ones," a person deemed by the state more trustworthy to carry a gun than you and I. We're the types police hold gun "buybacks" for, to replace our silly notions of being free and responsible sovereigns of the Republic with bread, circuses, gas cards and Cavs tickets.
And special privileges and immunities, that is, the super citizen status, extend beyond being trusted with a gun. Osiecki only served a tenth of his drunk driving sentence, and tried to use his position to get all charges dropped "as a 'professional courtesy.'" And after an armed "domestic altercation" in his home, Osiecki still retained a weapon on the job and had "at least two handguns in the house."
Tell me you and I would not have lost our guns forever (or at least "legal" possession of them) under the Lautenberg domestic violence gun ban.
And while I'm glad the standoff ended peacefully with an appropriate response, and that responding officers showed such restraint, tell me they would have held themselves back once in position around one of our houses. Tell me the flash bangs and the gas grenades wouldn't have been used to flush us out, and that positioned snipers wouldn't have taken us out should we so much as twitch while stumbling blindly and retching our way to air.
Tell me, had we survived the experience, the first response would be to whisk us off for a mental evaluation. And tell me police officials would be standing in front of news cameras making sure everyone knew how saddened they were by events, how it hurt, how it was like it happened to one of their family members...
And tell me that whatever charges and sentences come out of this will be the same as what you or I would face.------------Speaking of "buybacks"...It looks like the one in Akron is missing its mark by half.
Lt. Charles Brown, commander of community relations for the Akron Police Department, said it's a shame that a lack of funding should prevent the program from taking in as many guns as possible.
''With the holiday season approaching and people inviting guests into their homes, they want to make sure any firearms won't be picked up by the wrong hands,'' he said. '' . . . It's sad we won't be able to get more guns off the streets and out of people's homes.''
Yeah, right. Because we all know highly trained community relations professionals like yourself are the "only ones" with powers and abilities far beyond those of mortal men.
It seems another Charlie Brown quote would be an appropriate response: "Good grief."
Supreme Court weighs domestic abusers' gun rights
Daily Record, The (Baltimore, MD)
November 12, 2008
https://infoweb.newsbank.com/
The Supreme Court heard argument Monday in a case that could restore gun-ownership rights to some domestic abusers.
Under an amendment to the Federal Gun Control Act, people who have been convicted of a "misdemeanor domestic violence offense" are barred from gun ownership. However, the 4th U.S. Circuit Court of Appeals held last year that the prohibition does not apply to a man who was convicted of misdemeanor battery, even though the victim was his wife.
That decision, which created a conflict between the 4th Circuit and nine others that have considered the question, was under review by the high court on Monday.
Arguments turned into a painstaking scrutiny of the muddled wording and punctuation of the amendment, which Justice Anthony Kennedy called "a mess."
Justice Antonin Scalia, meanwhile, cautioned against reading too much into legislative intent.
"People are governed by the law that is passed, not by the law that Congress intended to pass," Scalia said.
Even so, the attorneys and justices tried as best they could to determine the intent of the amendment's author, Sen. Frank Lautenberg of New Jersey.
"Sen. Lautenberg specifically said in the legislative record [domestic abusers] are often charged as offenses like assault and battery, and we need to get at these offenses because these people should not have firearms," said Nicole A. Saharsky, assistant to the solicitor general arguing on behalf of the government. "They should not put their families in that type of powder keg situation."
But Troy N. Giatras of the Giatras Law Firm in Charleston, W. Va., disagreed. A broader version of the amendment was proposed and rejected by Congress, he noted.
"The government's reading ignores the legislative compromise that led to the contested language; and, if adopted by this court, would rewrite the statute and hand one side the legislative victory that they were unable to achieve in Congress," Giatras said.
Commas and clauses
The case stems from the 1993 conviction of Randy Edward Hayes under a West Virginia general battery statute for striking his then-wife.
In 2004, police responding to a domestic violence call involving Hayes and his girlfriend found an unloaded Winchester rifle under his bed.
Hayes pleaded guilty to violating the Federal Gun Control Act but preserved his right to appeal.
The 4th Circuit, which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia, found that the statute did not apply to him.The Justice Department sought review by the high court.
On Monday, oral arguments centered on the language of the so-called Lautenberg Amendment, which defines a "misdemeanor crime of domestic violence" as:
an offense that (i) is a misdemeanor under Federal or State law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
Saharsky argued that the most natural reading of the admittedly untidy language is that it includes general misdemeanors if the victim is a domestic partner.
"Nine Courts of Appeals have determined that the text does not require a domestic relationship to be an element to the predicate offense," Saharsky argued. "That's because the statute's text uses only one element - using the singular word "element" - which relates to mode of aggression. It then introduces a new concept related to domestic relationship, using a comma and the word &committed.' The word &committed' naturally modifies the word offense.' In common usage, a person commits an offense; he doesn't commit a use or attempted use of physical force."
The argument wasn't an easy sell as the justices jumped into the thorny interpretation.
"You have the &that,' and the &that' applies to both (i) and (ii), and [&committed'] is part of (ii)," Scalia said. "I think you've got to either say &that committed' or put in an &is' - &that is committed.' … Yes, it's not usual to talk about &committing a use of force,' but it happens sometimes."
Saharsky also argued that, under the 4th Circuit's reading, the Lautenberg amendment would have no effect in states that don't separate domestic violence from their criminal laws on assault and battery - including Lautenberg's home state of New Jersey.
"If a lawyer reading this would not think that it applied, I don't care what Congress intended," Scalia said. "If the law doesn't say that, the person is not governed by it."
During Giatras' argument, Justice Stephen Breyer tried to get to the bottom of Lautenberg's aim.
"[First] Sen. Lautenberg put in the language to say, &I'll tell you a group of people who shouldn't have guns: the people who commit a crime of domestic violence,'" Breyer said. "Then he says after, &I changed that language a little. I'll tell you why. Because somebody told me misdemeanor crime of violence is too broad. It could include cutting up a credit card.'"
Giatras, though, said Lautenberg's intent is not necessarily co-equal with Congress' intent.
"The legislation that the senator introduced was not the legislation that was passed by Congress," Giatras said, noting "the staunch opposition that was in the House, and the fact that his bill was going nowhere. This may have been his intended purpose with respect to what was introduced, but it was then the will of Congress" to pass the final version with different language from House lawmakers.
On Heller's heels
Although the case does not turn on the Second Amendment, it does come on the heels of the court's landmark decision in Heller v. D.C. finding gun ownership to be a personal right protected by the Constitution. Hayes is being closely watched by gun rights groups as well as domestic violence advocacy groups.
A decision is expected later this term.
Kimberly Atkins writes for Lawyers USA, a sister publication of The Daily Record.
Guns and domestic violence
Blade, The (Toledo, OH)
November 16, 2008
https://infoweb.newsbank.com/
A DISPUTE over legal semantics could have serious repercussions for convicted domestic violence abusers if the U.S. Supreme Court upholds the flawed ruling of a lower court in a federal gun possession case.
At issue is an amendment to the federal Gun Control Act of 1968 that barred convicted felons from possessing firearms. In 1996, Congress amended the law so it would apply to persons convicted of misdemeanor crimes of domestic violence. It was known as the "Lautenberg Amendment," after Sen. Frank Lautenberg, who championed it.
The New Jersey Democrat's intention was to close a loophole that allowed domestic violence abusers to own guns, but because of a discrepancy in legal terminology among states, the loophole wasn't closed entirely. And it took the case of a convicted wife beater, who successfully challenged firearms possession charges, to expose the problem.
Randy Hayes pleaded guilty in 1994 to misdemeanor battery of his then-wife in Marion County, West Virginia. Several years later, police were again summoned to his home on a domestic violence call and found several rifles in his possession.
Mr. Hayes was indicted on federal charges of possessing firearms following conviction of misdemeanor domestic violence. But his lawyer managed to convince the 4th U.S. Circuit Court of Appeals in Richmond that because the language of the West Virginia law on battery in the 1994 case did not contain specific wording about a domestic relationship between the offender and victim, the federal law didn't apply.
Herein lies the rub: The appellate court narrowly interpreted the Lautenberg Amendment to only cover those in states with laws that specifically designate domestic violence, not the more common laws against assault and battery. So Mr. Hayes and thousands of batterers convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend get a pass on what is essentially a technicality.
But Congress intended to prohibit abusers convicted of misdemeanor domestic violence from owning guns, not give a break to abusers in two-thirds of the states which don't happen to have laws specifically targeting domestic violence.
Attorneys for the Justice Department and other groups are urging the Supreme Court to reject this attempt to weaken the law and give abusers the opportunity to legally arm themselves. The Supreme Court should follow their lead.
So far, judges on nine other federal courts have rejected the narrow interpretation of the law offered by the 4th Circuit Court. They understand what's at stake. We wish we could say the same for Justice Antonin Scalia, who had the audacity to say the wife-beating charge lodged against the West Virginia man was "not that serious an offense."
He obviously doesn't get it.
Gun ruling unlikely to affect cases in Indiana
State battery statute prohibits ownership
Journal Gazette, The (Fort Wayne, IN)
November 16, 2008
https://infoweb.newsbank.com/
While the U.S. Supreme Court ponders recent arguments that some convicted domestic abusers be allowed to own firearms, two area prosecutors are not concerned about the local effect.
The case of the United States v. Hayes, heard Monday by the U.S. Supreme Court, involves the interpretation of the Lautenberg Amendment. Enacted in 1996, the amendment prohibits abusers convicted of misdemeanor domestic violence from possessing firearms.
The question the Supreme Court is to answer is whether the Lautenberg Amendment applied only to those convicted under specific domestic violence laws, rather than a general battery statute.
If the Supreme Court upholds a 4th Circuit Court of Appeals ruling from April 2007, those who physically harm their spouses or domestic partners and are charged with a general misdemeanor battery statute could again have access to firearms, according to the Brady Center to Prevent Gun Violence.
And the names of thousands of domestic batterers convicted under misdemeanor general battery laws would be purged from the Brady background check system, officials at the Brady Center said.
While in some states that might be an issue, particularly those without a specific law regarding domestic battery, it is not an issue here, Allen County Prosecutor Karen Richards said.
Years ago, Indiana enacted a domestic battery statute, making it a Class A misdemeanor, punishable by up to a year in jail, to physically harm a spouse, someone living as a spouse or someone with whom there is a child in common. If a person has a prior conviction for domestic battery, or if the crime occurs in the presence of a child younger than 16, the charge is elevated to a Class D felony punishable by up to three years in prison.
"Normally, if we can prove a domestic violence case, we file as a domestic battery as opposed to a generic battery," she said. "That does carry with it, under federal laws (the Lautenberg Amendment), the prohibition of carrying a handgun. ... I think we're a lot more progressive than people think we are."
Allen County's prosecutors have tried to take a more narrow view of federal laws when charging the crime so that fewer cases would be affected if the higher courts ever required a more narrow view.
"We have always had some concern in our office that a generic battery conviction does not necessarily prohibit someone from carrying a handgun," Richards said.
And Allen County is likely not the only county in the state to stick with the domestic battery statute in charging cases of domestic abuse, Adams County Prosecutor Chris Harvey said.
"I think everybody files the domestic and pursues the domestic, unless the case goes south with the victim, ... then uses general battery only to resolve the case," he said.
Former Fort Wayne Mayor Paul Helmke, president of the Brady Center to Prevent Gun Violence, said Indiana has done a good job with the domestic battery statute, putting the state in a better position than most.
But he would like to see Indiana's statute expand to include violence to children, rather than just violence to a spouse or live-in partner, thus expanding the firearm prohibition. Those who are willing to harm their children might be willing to do greater harm to others in the home, Helmke said.
Richards said she sees some wisdom in including battery to children as part of the domestic battery statute.
"It would be good to have the least number of weapons available to them," she said.
More 'gun control'? Oy vey!
News & Politics Examiner (USA)
Author/Byline: David Codrea
December 5, 2008
https://infoweb.newsbank.com/
First, an update from yesterday's report of the "standoffish" former police chief:
Former Ravenna Police Chief Michael Swartout peacefully surrendered to authorities...after a standoff that lasted more than 35 hours.
Here's the thing:
Swartout resigned as police chief in 1998 after pleading guilty to charges that he threatened to shoot and kill one of his officers at a Christmas party. In 2004, he was arrested for domestic violence against his wife and his 22-year-old daughter.
One of the reasons I use the term "only ones" is to point out how a different standard can apply in terms of both privileges and immunities. Who among us who are not LEOs think we could get away with threatening to shoot a cop and suffer no criminal repercussions--assuming we survived the experience? And domestic violence qualifies one to become a "prohibited person," forbidden to own guns under the Lautenberg amendment. Which means either the system gave the chief a pass, or we have yet one more example of "gun control" laws being ignored by the non-"law abiding.
"What a surprise that would be.----------------
Meanwhile, before we were so rudely interrupted...I'd planned on talking about the second sponsor of the Mayors Against YOUR Guns conference, the National Council of Jewish Women. I know you're just dying to meet them--or could be if they have their way.
My radar goes up when I hear terms bandied about like "social justice," not because I don't believe in it, but because certain groups have appropriated it as code-speak for--how did Mr. Obama put it?--"spread[ing] the wealth around." Then I hear "progressive" (and I like progress as much as the next guy, as long as we're not progressing toward national socialism), and I have to ask myself what they mean by it. And as for being "inspired by Jewish values," I frankly get baffled: Aren't the "progressives" the same ones who scream for separation of church and state? Yet they're imposing those values on the rest of us through gun law advocacy?In the case of gun rights, what they mean by "progressive" is clear, Here are some recent press release titles:
NCJW Urges Reauthorization of Assault Weapon BanNCJW Outraged by Repeal of DC Gun BanNCJW Denounces Passage of DC Gun BillNCJW Urges Renewed Effort on Gun Control in Wake of Tragedy at Virginia TechNCJW Urges Renewal of Assault Weapon BanNCJW Deplores Gun Decision, Warns of Court's DirectionNCJW Urges Congress to Protect Public Safety
And if you need further enlightenment on how our legislative "progressives" view gun ownership, perhaps this will help.Next week I intend to examine whether or not this commu... uh... progressive group has the market cornered on "Jewish values" and guns. If you don't already know him, I'll introduce you to one of my favorite patriots, Aaron Zelman, executive director of Jews of the Preservation of Firearms Ownership.Until then, you might be interested in listening to an interview he did a while back with probably the smartest, best-looking, nicest and most humble guy I know.----------------From the ExaminersSounds like I'm pretty rough on "progressives," doesn't it? I sometimes get agitated. Let me make things up by directing you to the Birmingham Progressive Politics Examiner, who gives us further enlightenment on one of my favorite Mayors Against Guns, the recently-arrested Larry Langford.Also, the Miami Veterans Affairs Examiner just posted "Vets and Guns."
It looks like Ohioans for Concealed Carry is almost there in terms of a location for their Holiday Meet and Greet-Cleveland on Dec.13. I'd like to attend if I can, and I'll let you know when they've agreed on a place. You can see plans for all Ohio locations on their forum.
U.S. District Court upholds domestic violence gun ban
Wisconsin Law Journal (Milwaukee, WI)
December 8, 2008
https://infoweb.newsbank.com/
The federal statute making it a crime for a person subject to a domestic violence injunction to possess a firearm does not violate the right to bear arms.
U.S. District Judge Lynn Adelman distinguished the ban from the Washington D.C. gun control law, struck down by the U.S. Supreme Court's decision in D.C. v. Heller, 128 S.Ct. 2783 (2008).
"Heller held only that the federal government may not forbid possession of handguns for self-defense in the home," Adelman wrote in a recent decision.
The case involved Kenneth Luedtke, who was charged with a violation of the statute, 18 U.S.C. 922(g)(8). Luedtke moved to dismiss the complaint on Second Amendment grounds, but Judge Adelman denied the motion on Nov. 18.
Adelman relied primarily on the following language in Heller: "Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill " Heller, 128 S.Ct. at 2816-17.
Adelman acknowledged that the statute -- part of the Lautenberg Amendment, which also prohibited possession of a firearm by a person convicted of misdemeanor domestic violence -- was not enacted until 1996, and thus, is not a "longstanding" prohibition.
Nevertheless, he concluded that the examples given in Heller are not an exhaustive list of permissible restrictions, but "are best understood as representing the TYPES of regulations that pass constitutional muster (emphasis added by court)."
Accordingly, Adelman framed the question as "whether a statutory prohibition against the possession of firearms by felons and the mentally ill is similar enough to the statutory prohibition against the possession of firearms by persons convicted of the misdemeanor crime of domestic violence to justify its inclusion in the list of &longstanding prohibitions' that survive Second Amendment scrutiny (quoting U.S. v. Booker, 570 F.Supp.2d 161, 163 (D.Me.2008)."
Noting that the statutes prohibiting possession of firearms by felons and the mentally ill were designed to keep firearms out of the hand of "potentially irresponsible persons," Adelman concluded that the 1996 amendments were similar enough to pass constitutional muster.
"Nothing in Heller suggests that Congress may not -- based on further experience and study -- close such loopholes, adding to the list of dangerous individuals historically barred from firearm possession," Adelman wrote.
He further held that the statute was neither overbroad nor did it contain insufficient procedural protections.
Under Wisconsin law, sec. 813.12(4)(a)3, a domestic abuse injunction may not be issued unless there are reasonable grounds to believe that the person has or may engage in domestic abuse of the petitioner, and the court must warn the person that he may not possess a firearm.
Accordingly, Adelman concluded the statute was not procedurally flawed, and denied the motion to dismiss.
Analysis
Unlike some previous cases in Wisconsin's U.S. district courts -- U.S. v. Skoien, 08-CR-12 (W.D.Wis., Aug. 27, 2008); U.S. v. Yancey, 08-CR-103 (W.D.Wis., Oct. 3, 2008) -- the opinion in this case at least acknowledges that the 1996 Lautenberg Amendment, which created the restriction at issue, is not a "longstanding" prohibition on the possession of firearms.
Still, the court's analysis leaves other avenues for defense attorneys to make constitutional arguments against the law not addressed by the parties or the court in this case.
For example, in footnote 3 of the opinion, the court rejected a claim by Luedtke that the originalist approach used by the Supreme Court in Heller disapproves supplanting constitutional protections with 21st century policy decisions.
Adelman wrote, "He cites no authority in support of this argument, and many of the procedural protections criminal defendants now take for granted did not exist in the 18th century (citing Gideon v. Wainwright, 372 U.S. 335 (1963))."
However, defense attorneys can easily find authority for the proposition that the Second Amendment protections are static, and cannot be supplanted by modern policy decisions -- most notably, the U.S. Supreme Court's recent Confrontation Clause jurisprudence.
In Giles v. California, 128 S.Ct. 2678 (2008), and Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court effectively read the Sixth Amendment's Confrontation Clause as carved in 18th century stone, and held that the right must be interpreted only by reference to 18th century common law.
Whether the Second Amendment should be read the same way or not may be subject to debate, but if defense attorneys cite these Confrontation Clause cases, at least no court can say they have produced "no authority" for such a reading.
In addition, it is not clear why Gideon v. Wainwright has any bearing on the issue. Gideon expanded constitutional rights; in contrast, the congressional restrictions on firearm possession, like the evidentiary rules at issue in Crawford and Giles, contract those rights.
Later, in footnote 5, Adelman wrote, "I can leave for another day the issue of whether a viable constitutional challenge to sec. 922(g)(8) may be mounted if the applicable state law fails to provide the fundamentals of due process."
This also leaves a lot of room for argument. Before a person can be prohibited from possessing a firearm based on a felony conviction or a misdemeanor conviction for domestic violence, he has the full panoply of constitutional protections available: right to jury trial; proof beyond a reasonable doubt; right to counsel; etc.
For a domestic violence injunction to issue under Wisconsin law, however, the respondent need not even engage in domestic violence. All that is necessary is that a court find "reasonable grounds" that the respondent "may engage in domestic abuse."
Thus, the ease with which an injunction may be obtained, compared to a criminal conviction, gives defense attorneys room to make a Second Amendment/due process argument against the statute, at least where the underlying injunction was issued in Wisconsin.
Defense attorneys should take advantage of this opening, and continue to argue in future cases that while a person may forfeit the constitutional right to bear arms by committing, and being convicted of, a crime, he cannot forfeit it based on a civil court's prediction of what "may" occur.
2009: Lautenberg DV Gun Ban - News Articles And Reports
Supreme Court Upholds Reasonable Restrictions on Guns for Domestic Abusers
PR Newswire (USA)
February 24, 2009
https://infoweb.newsbank.com/
The United States Supreme Court today rejected arguments by the gun lobby and convicted wife beater Randy Edward Hayes that federal law allowed Hayes to possess firearms, upholding the broad federal ban on gun possession by convicted misdemeanor domestic violence abusers. The Court cited arguments made by the Brady Center to Prevent Gun Violence about the risks posed by firearms in the hands of domestic abusers.
The 7-2 ruling in United States v. Hayes was a blow to gun lobby groups that had urged the Court to severely narrow the federal Lautenberg Amendment that bars gun possession by abusers convicted of misdemeanor crimes of domestic violence. The Court reversed an earlier ruling by the United States Court of Appeals for the Fourth Circuit that, if upheld, would have allowed convicted abusers in at least 25 states to rearm themselves with firearms.
"In its first gun case since the landmark Heller decision, the Court wisely upheld this reasonable restriction," said Brady Center President Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."
"Today, the Supreme Court sided with abused women and children and against the gun lobby," said Sen. Frank Lautenberg (D-NJ), a leader in the fight to reduce gun violence and the author of the domestic violence gun ban. "Since it was enacted, my domestic violence gun ban has kept more than 150,000 guns out of the hands of domestic abusers. We know a gun in the home makes it much more likely that domestic abuse results in death and today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives."
Congress enacted the Lautenberg Amendment in 1996 to prohibit abusers convicted of misdemeanor domestic violence crimes from possessing firearms. In April 2007, the 4th Circuit Court of Appeals overturned a wife beater's conviction for illegal gun possession by narrowly interpreting the Lautenberg Amendment as only barring gun possession by abusers convicted of laws specifically barring domestic violence, rather than all persons convicted of domestic violence under general assault and battery laws.
The Brady Center to Prevent Gun Violence, joined by law enforcement organizations, had filed a brief in support of the ban on gun possession by all abusers convicted of misdemeanor domestic violence, which was cited by the Court. The brief highlighted the great danger that armed abusers pose to family members of these abusers as well as law enforcement officers summoned to address such violence. On average, more than three people are killed by intimate partners every day in this country. Intimate partner homicides account for up to one-half of all homicides of females. Every year between 1,000 and 1,600 women die at the hands of their male partners, and 14 percent of all police officer deaths occurred during a response to domestic violence calls.
The groups that joined the Brady Center brief are the International Association of Chiefs of Police, Major Cities Chiefs, National Sheriffs' Association, National Organization of Black Law Enforcement Executives, Hispanic American Police Command Officers Association, Police Executive Research Forum, National Black Police Association, National Latino Peace Officers Association, Legal Community Against Violence, and School Safety Advocacy Council.
The Brady Center to Prevent Gun Violence is a national non-profit organization working to reduce the tragic toll of gun violence in America, through education, research, and legal advocacy. The programs of the Center complement the legislative and grassroots mobilization of its sister organization, the Brady Campaign to Prevent Gun Violence with its dedicated network of Million Mom March Chapters.
National Network to End Domestic Violence Praises Landmark Supreme Court Decision
PR Newswire (USA)
February 25, 2009
https://infoweb.newsbank.com/
Advocates against domestic violence today applauded the U.S. Supreme Court's 7-2 decision to uphold the federal Lautenberg Amendment that bans convicted domestic violence abusers from possessing firearms. The United States v. Hayes ruling reversed a decision by the U.S. Court of Appeals for the Fourth Circuit that would have posed a serious danger to victims of domestic violence by allowing convicted abusers to maintain firearms.
"We are delighted with the Court's decision to uphold reasonable limits on the possession of firearms," said Sue Else, President of the National Network to End Domestic Violence (NNEDV). "Batterers should not have access to guns. This decision is a major victory for victims of domestic violence and their families."
Sen. Frank Lautenberg (D-NJ), a leader in the fight to reduce gun violence and the author of the domestic violence gun ban, said, "Since it was enacted, my domestic violence gun ban has kept more than 150,000 guns out of the hands of domestic abusers. We know a gun in the home makes it much more likely that domestic abuse results in death and today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives."
The case originated in West Virginia, and the West Virginia Coalition Against Domestic Violence (WVCADV) is also celebrating today's victory. "The U.S. Supreme Court's ruling aligns the Fourth Circuit with the rest of the country; confirms the intention of Congress in responding to the seriousness of domestic violence; and affirms levying real and long term consequences on people who use violence. WVCADV is pleased with the ruling of the U.S. Supreme Court Justices," said Sue Julian and Tonia Thomas, Team Coordinators for WVCADV.
NNEDV, joined by the Domestic Violence Legal Empowerment and Appeals Project (DV LEAP) at George Washington University Law School, filed a brief supporting the sensible ban on gun possession by all offenders convicted of misdemeanor domestic violence. The Court cited the brief in its decision.
Joan Meier, DV LEAP's Director, said, "It is gratifying to see a strong majority of the Court reject the cramped and frankly illogical reading of the statute put forward by the Fourth Circuit and instead endorse the clear purpose of the legislature, not to mention common sense."
"Arming the people who brutally beat their spouses or partners is a recipe for disaster," Else said. "The Supreme Court made the right decision by upholding the domestic violence gun ban, keeping guns out of the hands of batterers and helping victims recovering from abuse to stay safe."
The National Network to End Domestic Violence Fund (NNEDV) is a 501(c)(3) non-profit organization dedicated to providing public education, training and technical assistance to maintain and develop the professional expertise of advocates working to end domestic violence. NNEDV strives to strengthen advocates as organizers and activists in the tradition of social change movements.
Gun laws can save lives
Star-Tribune (Casper, WY)
Section: Opinion
February 28, 2009
https://infoweb.newsbank.com/
The U.S. Supreme Court has reinstated a federal ban on gun possession for people previously convicted of certain domestic violence misdemeanors.
Sen. Paul Wellstone (advocate of the Lautenberg Amendment and for victims of domestic violence) once said, "All too often the difference between a battered woman and a dead woman is the presence of a gun."
The Violence Policy Center confirms the fact that although firearms are used in a relatively small percentage of domestic violence incidents, when a firearm is present, domestic violence can and all too often does turn into domestic homicide. Congress, recognizing the deadly role firearms play in domestic violence, passed the Protective Order Gun Ban in 1994. The law prohibits gun possession by a person against whom there is a restraining or protective order for domestic violence.
In 1996, Congress passed the Domestic Violence Misdemeanor Gun Ban, which prohibits anyone convicted of a misdemeanor crime of domestic violence or child abuse from purchasing or possessing a gun.
One-third of all female homicide victims are murdered by an intimate partner. Of these domestic violence victims, two-thirds were killed by a firearm. In Wyoming, a firearm killed an estimated 73 percent of women (33 out of 45) that were murdered as a result of domestic violence between 1985 and 2001. Firearms and domestic violence can be a deadly mix. The federal firearm provision regarding misdemeanor domestic violence crimes focused particularly on the reality of domestic violence prosecutions, which, despite the severity of the physical assault, are almost always charged as, or plea-bargained down to, misdemeanor convictions. This was the primary reason the Gun Control Act was amended to criminalize firearm possession not only for perpetrators of felonies, but also for perpetrators of domestic violence misdemeanors.
The Lautenberg Amendment recognizes domestic violence usually involves recurring and escalating acts of violence that will more likely result in murder if the abuser has access to firearms. It is critical that those involved in the legal system be familiar with the dynamics of domestic violence and the federal and state laws that apply so as to not undermine the effectiveness of legislation that has the potential to and, in fact, can save lives.
DC Council's Mendelson's defense of DC gun registration stretches truth beyond breaking point
Washington Examiner (DC)
Author/Byline: Mike Stollenwerk
March 22, 2009
https://infoweb.newsbank.com/
Last month the United States Senate approved a vote in Congress for DC provided that DC end its onerous and odious gun registration scheme.
Then last week DC's pragmatic Mayor Fenty agreed that it would be a net gain for DC to win the right to vote in Congress even if Congress preempted DC's power to require gun registration.
And DC civic leader Valencia Mohammed, director of Mothers of Unsolved Murders, a D.C. advocacy group for mothers of homicide victims, said she would welcome the deal, even though she has lost two sons to gun violence in the city.
Said Mohammed, "This is one of the inalienable rights that I wanted. I want my vote to be counted. I want representation in Congress. And I also want the right to bear arms. I'm just looking at the history of my ancestors and what they went through and how they were shot and killed, tarred and feathered and burned to death. Guns was one of those things that they could not have and a tool for other people that kept them enslaved. I'm saying no more of that. I want to enjoy all of those rights that they were denied. . . . It's time."
But today Councilmember Phil Mendelson insists in a Washington Post commentary that Congress must allow DC gun registration scheme to continue. Let's consider Mendelson's arguments in detail.
First, Mendelson said that the Supreme Court "upheld the constitutionality of gun registration."
Um, wrong. In DC v. Heller the Supreme Court said that"Respondent conceded at oral argument that he does not 'have a problem with ... licensing' and that the District's law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.' Tr. of Oral Arg. 74-75. We therefore assume that petitioners' issuance of a license will satisfy respondent's prayer for relief and do not address the licensing requirement."
128 S.Ct. 2783, 2819.
In other words, the issue of registration per se was not before the Heller Court.
But regardless, the federal Supreme Court, as well as the high courts of the fifty states, have consistently struck down laws requiring Americans to pay fees and register with the government as a precondition to exercise constitutional rights. E.g., Murdock v. Pennsylvania, 319 U.S. 105 (1943) (striking down Pennsylvania statute requiring license to sell religious materials because "[a] state may not impose a charge for the enjoyment of a right granted by the Federal Constitution"); Talley v. California, 362 U.S. 60 (1960) (holding that the First Amendment provides the right to anonymous speech and striking down state requirement to obtain license to distribute literature); City of Tampa v. Tampa Times, Co., 153 Fla. 709 (Fla. 1943) (state may not require license to operate a newspaper); State v. Kerner, 181 NC 574 (NC 1921) (striking down state requirement to obtain license to openly carry handguns in public places); State v. Rosenthal, 75 Vt. 295 (Vt.1903) (requirement to obtain a permit to carry a pistol concealed or openly "is inconsistent with and repugnant to the Constitution and the laws of the state").
Given this historical constitutional tapestry disfavoring rights registration schemes, it seems unlikely that gun registration can be sustained, especially the onerous and odious scheme that the DC City Council instituted in December 2008.
Second, Mendelson charges that the Ensign Amendment would allow "firearms purchases by people who have a history of violent behavior or who have committed domestic violence."
Uh, not true. The federal Gun Control Act of 1968 and its so-called "Lautenberg amendment" prohibits all gun possession by, and all gun sales to, persons who are convicted of violent felonies and even misdemeanor crimes of domestic violence.
Third, Councilman Mendelson says that "when an unregistered gun is seized by police, they have encountered a criminal, not an otherwise law-abiding citizen."
Huh Phil? This is just the self-fulfilling legality of gun registration. If DC were like most of America, which has no gun registration, a person possessing a gun is simply presumed to be law abiding until proven otherwise.
Gun registration is almost unknown in the United States. Only 5 states require guns to be registered - New York, Massachusetts, Hawaii, California, and Michigan - yet only Hawaii requires registration of long guns and only New York has no way for new residents and non-residents to easily bring their guns into that state without running afoul of state law.
Not only does DC require registration of long guns, but there is no way for new residents and non-residents to possess guns in the city. No state has such an extreme gun registration regime.
But there's more.
In December 2008, Phil Mendelson and the rest of the DC City Council enacted additional arbitrary and capricious standards for gun registration that have barred (1) registration of the same handgun the Supreme Court ordered DC to register last year for Mr. Heller, (2) registration of another handgun based merely upon its color, (3) registration of another handgun because the manufacturer did not pay a fee to California, and (4) re-registration of certain rifles merely because they have scary pistol grips or some other cosmetically offensive feature. A federal lawsuit challenging this scheme was filed two weeks ago.
So don't tell us Mr. Mendleson that you are defending garden variety gun registration. You Sir are just spinning tall tales to defend a plainly constitutionally offensive scheme of gun control that in practice, actively bars Americans from possessing ordinary guns in America's City, the District of Columbia.
And that's why now more than ever its time for Congress to tell DC's rulers: If you wanna vote in America's house, no more gun registration!
EDITORIAL - No guns for abusers
Providence Journal (RI)
April 28, 2009
https://infoweb.newsbank.com/
The Supreme Court has strengthened a federal domestic-violence law in a Feb. 24 ruling by affirming its relevance to all the states, not just those with their own explicit statutes. Importantly, the decision shores up Congress's effort, in 1996, to bar those who commit domestic violence from owning firearms.
The case at hand involved Randy Hayes, a West Virginia man who pleaded guilty in the 1990s to a misdemeanor battery charge against his wife. In 2004, he was found to possess three guns, and convicted of illegal possession under the federal law. The Lautenberg Amendment, as it is called, prohibits anyone convicted of misdemeanor domestic abuse from owning a firearm. (Congress had made it illegal for felons to own guns several years earlier.)
Mr. Hayes challenged the law, and won before the U.S. 4th Circuit Court of Appeals. The high court disagreed, and reversed the lower court's ruling.
Writing for a 7-to-2 majority, Justice Ruth Bader Ginsburg sensibly reasoned that the law covers any assault in which there is a domestic relationship, regardless of whether state laws consider it domestic abuse. Only about half the states define assaults against intimate partners or close relatives as domestic violence, or explicitly criminalize domestic abuse. Instead, such offenses are likely to be prosecuted as assaults.
But as Justice Ginsburg noted, Congress was less concerned with what the crime was called than with who was involved. Its paramount aim was simply to keep guns out of abusers' hands. Indeed, why should Congress have bothered writing a law that shields victims in only half the states?
Over and over, Americans have seen guns raise the stakes in domestic-assault cases. According to the Brady Center to Prevent Gun Violence, domestic violence claims roughly three lives daily in the United States, with guns frequently the weapon of choice. More than a tenth of police officers killed in the line of duty die responding to a domestic-violence call.
In his dissent, Chief Justice John Roberts declared the federal statute ambiguous, and said that ambiguity ought to favor the defendant. But, joined by the court's majority, Justice Ginsburg gave the law the clear-eyed reading it invites, and Americans the protections that Congress intended.
NCIS Protecting Those Who Are In The Service
All Hands
August 1, 2009
https://infoweb.newsbank.com/
Picture the following, if you can:
A ship's weapons officer has discovered that the topside weapons aren't being properly maintained. His LPO doesn't even notice the coating of rust on the 50-cal guns because she recently found out her identity was stolen.
A Top Secret document is left exposed in an unsecured area. The intelligence specialist who had custody of the document is too distraught to pay attention to proper information security procedures because he has discovered signs of abuse on his child.
The Navy depends on its Sailors to rise to the challenge of being the world's preeminent force in 21st century sea power. These men and women are charged with the responsibility of protecting their homeland and the maritime freedom that is the basis for global prosperity. They are responsible for protecting the peace from any threats that may emerge.
But who protects the Sailors?
The Sailors need someone to safeguard them from, and educate them about, the crimes that may potentially befall them. The Navy needs a "security blanket" of its own to keep the peace for Sailors and their families, so they may keep the peace - and be at peace - both at home and abroad.
The men and women of Naval Criminal Investigative Service (NCIS) are up to the task.
NCIS 101
NCIS is the Department of the Navy's (DON) primary law enforcement and counterintelligence force. The agency works in tandem with local, state, federal and foreign agencies to counter and investigate the most serious crimes. These crimes range from terrorism and espionage to common felonies involving DON personnel which include - but are not limited to - homicide, domestic violence including child abuse, identity theft, child predators and sexual assault and arson.
NCIS exists for one reason - to prevent and solve crimes that threaten the warfighting capability of the Navy and the Marine Corps.
NCIS is comprised of roughly 2,400 special agents, investigators, forensic experts, security specialists, intelligence analysts and support personnel who come from a wide variety of backgrounds. Roughly 25 percent of employees are either prior military or serve in the Reserve component. In addition to those with prior military service, many come to NCIS with experience gained from the Secret Service, the Federal Bureau of Investigation, the Drug Enforcement Administration, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the U.S. Marshals office or local or metropolitan hometown law enforcement.
Many agents with local law enforcement backgrounds had worked with NCIS in the past and were impressed. On-the-job experience is not required to join the ranks, and a number of agents have backgrounds as lawyers or teachers.
No law enforcement agency relies solely on brute force to keep the peace; intellectual strength and knowledge is essential to the success of any unit. NCIS is no exception. The varied educational backgrounds of the agents and other employees are possibly the greatest asset to the force. Though a baccalaureate degree is the minimum educational requirement to join NCIS, many employees possess a master's degree in their respective fields, to include criminal justice, chemistry, forensics, law and international studies.
Many agents have studied a variety of foreign languages. The average NCIS agent is not your archetypal Eliot Ness-type gangbuster, but more of a walking library of knowledge with a sidearm and a badge. The experience varies with each individual.
The Crime reduction Program
The television program "NCIS" provides the impression most people have of NCIS. The agency takes a less aggressive, but highly assertive approach to fighting the crimes that threaten the mission of the Navy and the Marine Corps. Education has proven to be just as effective a weapon as a loaded firearm or a police baton; in that line, NCIS aims to arm Sailors and Marines with the knowledge they need to cut the odds of falling victim to certain crimes through an initiative known as the Crime Reduction program (CRP).
In the CRP, NCIS works with the judge advocate general, its own public affairs office, the Family Advocacy program, the Chaplain Corps and other Navy commands to proactively fight crime within the military community. NCIS spearheads this partnership from its headquarters in Washington, D.C., working with the Fleet and Family Support Center (FFSC), Navy Family Ombudsman Program and other Navy and Marine Corps support systems.
"NCIS has primarily been a reactive agency," said Special Agent Carrie Nelson, coordinator for the CRP. "We react to crimes that happen, and we decided that that's not always enough. We [want] to be proactive and help our Sailors and Marines prevent crime rather than react to a crime that's already occurred."
NCIS does not work solely within the ranks of DON, though; the insight of other organizations, whether law-enforcement oriented or non-profit groups, is actively sought. Counsel is especially sought from organizations that target the topic dujour for the CRP. These resources can provide invaluable information to disseminate to those who fall under DON jurisdiction to reduce their risk of falling victim to the same crimes that NCIS wishes to tackle.
"We want to make sure our Sailors and Marines can focus their lives on their duties at hand rather than worry about how to recover from [these crimes]," said Nelson. "We want to get the message out before the incident occurs.
"Awareness is the biggest prevention step. That's the goal [of] these campaigns, to educate our Sailors and Marines."
Domestic violence
When NCIS formally kicked off the CRP in October 2008, domestic violence was the first topic in the playbook.
The facts are clear: domestic violence is a serious problem including within the Navy and the Marine Corps. It can destroy families, shatter relationships within and transform the sanctuary of home into a suffocating, nightmarish prison.
"Domestic violence is an overriding problem not only in the military but in the civilian community," said Special Agent Jocelyn Dillard, stationed at NCIS headquarters, Naval District Washington (NDW). "When there are children within the family, they are often witnesses and victims themselves. A lot of times, children intercede in an incident that they see occurring and subsequently get injured. [Children] can be vastly impacted not only by actual physical violence, but also by the [emotional and] psychological ramifications of domestic violence."
The destruction wrought at home can send shockwaves into the work environment as well. A Sailor or Marine facing a domestic violence charge can have an adverse effect on unit morale and operational readiness. That person might lose sight of operational responsibilities during the lengthy investigative and legal process.
The consequences of domestic violence can be professionally devastating. A Sailor or Marine can face criminal adjudication in both a military and a civilian court for the same offense, particularly if local law enforcement is called to the home. A service member can expect consequences ranging form a reduction in pay grade to the loss of his career and benefits. The latter can be especially damaging to the family.
"Military families are somewhat different from civilian families," said Dillard. "[They] get housing, medical benefits through the military member, [and] commissary privileges. Everything goes away, and here you now have an unemployed spouse. Maybe the spouse is employed, or [is a stay-at-home mom] with two or three kids. Now you have two unemployed adults out in the world with no form of support whatsoever."
A criminal domestic violence conviction, whether at the felony or misdemeanor level, is often catastrophic for a career. The Lautenberg Amendment to the Gun Control Act of 1968, enacted in 1996, makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess or receive firearms or ammunition. DoD expanded this to include those with a felony domestic violence conviction as well. Not only are military personnel not exempt from the Lautenberg Amendment, they are required to fill out a DD Form 2760, Qualification to Possess Firearms or Ammunition, asking whether that service member was ever convicted of a crime of domestic violence.
"If you have a Sailor out in town [who] pushed his wife, was arrested by the [local] police department and was convicted of that offense," Dillard explained, "that Sailor can never, ever handle a weapon or ammunition. Is that going to impact his or her job? Obviously."
The amendment also makes it a felony to transfer a firearm or ammunition to an individual known, or reasonably believed, to have such a conviction. A Sailor or Marine whose authority to carry, operate or transport a firearm is permanently revoked is non-deployable. Many billets in the military require the use of a firearm, so those barred from carrying a firearm under the Lautenberg Amendment can be subjected to administrative separation, losing pay and benefits.
NCIS works with FFSC, the Marine Corps Community Services and other community aid organizations to reach as wide an audience as possible on this topic. A video titled "The War At Home," put together by NCIS, illustrates the consequences of domestic violence for the offenders and the victims. NCIS also works with local law enforcement, with special agents personally meeting with commands and briefing them on the effects of domestic violence.
NCIS seeks to not only educate Sailors and Marines about the consequences of domestic violence, but also about how they can prevent it from happening in the first place. The importance of having a structured social network is emphasized in preventing a Sailor from becoming an offender, especially considering the isolating nature of constant transfers and permanent change of station moves.
"There are people [who Sailors] can reach out and talk to, [and] there are doctors that they can speak with," said Nelson. "If you are at risk of becoming an offender, get help. Talk to your friends, talk to your family members. [DON] offers a number of services [and] counseling sessions [so you] can seek that help before it becomes an issue."
"If you see, or suspect, that you're escalating and you're feeling the stressors - whether it's work stress, family life stress or financial stress - seek help," said Dillard.
If nothing else, Nelson wants to get the following point across to the Navy and the Marine Corps.
"Domestic violence is not allowed in DON. It is an unacceptable behavior, and there will be dire consequences," added Dillard.
Law aims at gun-related domestic violence
Bangor Daily News (ME)
November 18, 2009
https://infoweb.newsbank.com/
Horace W. Salley III is one of the reasons U.S. Sen. Frank Lautenberg, D-N.J., in 1996 sponsored a bill making it a federal crime for a person convicted of a misdemeanor crime of domestic violence to possess a gun for any reason. The law also made it a crime to have a gun if a protection-from-abuse order is in place.
Salley, 34, of Smyrna is serving a 14-year sentence in Maine State Prison for gross sexual assault, assault and tampering with a witness. He was convicted on those charges in November 2007, a year after his arrest, after a jury trial in Aroostook County Superior Court in Houlton.
After he completes the state prison term, Salley will serve an additional five years and three months in federal prison for illegally possessing a firearm. He was prohibited from possessing guns due to his conviction in 2003 of a misdemeanor assault on his then-girlfriend.
Congress enacted the legislation with the broad purpose of addressing the widespread problem of gun-related domestic violence by taking guns out of the hands of all individuals with a history of domestic abuse. It is named after Lautenberg, its primary sponsor.
It's almost certain Lautenberg had never heard of, let alone met, Salley when he sponsored his amendment. But given Salley's history - outlined in documents filed in federal court in Bangor - he would have been one of the reasons the senator cited in advocating for the bill's passage.
In putting the bill forward, the senator emphasized the link between the availability of guns in the home and statistics that showed victims of domestic homicides often had been abused and-or threatened with weapons for years.
There were 31 homicides in Maine in 2008, the last year for which statistics are available, according to the Department of Public Safety. Twelve of the victims died from gunshot wounds and four of those homicides were related to domestic violence.
Salley never killed a partner, but he appears to have abused every woman with whom he ever had a relationship. The abuse he inflicted on four women and two of their children between 1992 and 2006 was detailed in court documents.
When the woman he lived with from 1992 to 1998 cut her hair without his permission, Salley loaded her and her three children into his car and forced her to drive for several hours into the North Maine Woods. Once there, he allegedly dragged her out of the car by her hair and told the children he was going to kill her, then come back for them. Only by begging for her life did she survive, according to court documents.
After the next woman Salley lived with left him in 2002, he broke into her apartment and severely beat her. He broke her nose, knocked out several teeth and reinjured the ribs he had broken in an earlier fight, according to court documents.
A few years later, he held his infant son in his lap and wrapped the baby's finger around the trigger of his rifle, court documents state. Another time, he told his wife that the only way he would ever allow her to leave him was "in a casket."
Serial abusers are not uncommon, according to advocates for victims of domestic violence.
The 911 call from Salley's wife that led to his arrest on state charges was one of more than 5,700 reports of domestic violence between July 1, 2006, and June 30, 2007, to law enforcement, according to the Department of Public Safety.
A gun was used to threaten the victim in less than 1 percent of them, according to statistics gathered annually by the department. Personal weapons - hands, feet and-or fists - were used in 97.5 percent. Other kinds of weapons, such as knives, were used in the rest.
One of the questions police officers routinely ask victims of domestic violence is, "Does your partner have any guns at the house?" If the answer is yes, the guns usually are confiscated while the case is pending, since protection-from-abuse orders often are filed against an alleged perpetrator.
Victims, however, don't often mention that their abusers have guns, Margo Batsie, the hot line coordinator for Spruce Run, a shelter for victims of domestic violence in Maine, said recently.
"Firearms come up from time to time," she said. "But we have more guns than people in Maine, so I think it doesn't come up more often because it's fairly commonplace [to have guns in a home]."
Criminal charges are not pursued in every case of suspected domestic violence assault reported to law enforcement officials. During fiscal year 2007, which ended June 30, 2007, state prosecutors filed charges in just over 5,000 cases, according to statistics gathered by the Maine Attorney General's Office. Of those, slightly more than 2,800 defendants were convicted, 26 were acquitted and charges were dismissed in just over 1,500.
Out of those, a couple of dozen, including Salley's case, were turned over to the U.S. Attorney's Office for prosecution under the Lautenberg Amendment. Nearly all resulted in a conviction and some time in prison for the defendant.
In Maine, the federal prosecution of gun crimes rose dramatically from 2000 to 2004 under a program called Project Safe Neighborhoods. The final report on the project, submitted earlier this year to the National Institute of Justice, showed that the prosecution of all gun crimes in U.S. District Court in Maine rose from eight cases in fiscal year 2000 to 52 in fiscal year 2007, an increase of 425 percent.
The project, aimed at decreasing gun violence across the country, provided funding to set up anti-violence task forces that included local, state and federal law enforcement officers. It also provided money for training so a small town police officer, county sheriff's deputy, state police and local prosecutors understood how to refer cases to the U.S. Attorneys' Offices for prosecution.
One of those task forces was credited by the U.S. Attorney's Office with aiding in the prosecution of Salley under the Lautenberg Amendment.
Penobscot County Sheriff Glenn Ross said recently that federal officials have been very cooperative in working with his department.
"Sometimes common sense says something needs to be done about a particular individual, but state law doesn't fit," he said. "Sometimes, federal law does."
Neale Adams, district attorney for Aroostook County, said the federal gun statutes give state prosecutors "another tool" in dealing with serial abusers such as Salley and individuals local police know are dangerous.
"The work the U.S. attorney has done to prosecute abusers is an amazing part of our community response to domestic violence and one more way to hold abusers accountable," Batsie said.
The advocate for victims said local authorities do a very good job of informing people that they cannot have guns when a protection-from-abuse order is filed. A video shown to defendants facing charges of domestic violence assault also informs them that a conviction would mean they would not be able to have a gun again.
"Our Project Safe Neighborhoods initiative is one of the most positive I've seen in my 32 years in this office," U.S. Attorney Paula Silsby said recently. "We've engaged a vast array of stakeholders on a common issue to take guns out of the hands of people who shouldn't have them and reducing gun violence."
Second Amendment debate dates to 1873
Bangor Daily News (ME)
November 18, 2009
https://infoweb.newsbank.com/
"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." - 2nd Amendment
Every citizen has a right to keep and bear arms and this right shall never be questioned. - Maine Constitution Article 1, Section 16
The ink was long dry on the U.S. Constitution when the debate over the 27 words in the 2nd Amendment started to heat up in the decade after the Civil War.
It would be another century before the arguments over the "right to bear arms" reached a full boil and take until 2008 - nearly 217 years after the Bill of Rights was ratified - for the U.S. Supreme Court to rule that the 2nd Amendment does protect an individual's right to own and use guns for lawful purposes, including self-defense.
In a 5-4 decision issued in June 2008, the justices struck down parts of a 32-year-old Washington, D.C., law that banned handguns and required that all rifles kept in homes be either trigger-locked or unloaded and disassembled. The law essentially prohibited handgun ownership except by retired district police officers, according to a McClatchy Newpapers report.
The justices also upheld federal laws that regulate the carrying of concealed weapons, gun sales and who is prohibited from possessing guns. The court found that guns may be banned from certain locations, such as government buildings and schools.
The nation's first "gun laws" were passed by Congress in May 1792, just five months after the Bill of Rights, including the 2nd Amendment, was ratified by the states. The Calling Forth Act clarified when and how the president can call state militia into service. The Uniform Militia Act required all free white men between the ages of 18 and 45 to enroll in their state militias.
It wasn't until 1873 that the U.S. Supreme Court first weighed in on the question that would shape arguments over the 2nd Amendment for the next 135 years - whether the so-called right to bear arms applies only to militia or to individuals as well. The court found that the amendment only protected states' rights to maintain militias.
It was not until the 20th century that Congress, backed by the court, began regulating the sale and possession of guns. In 1903, lawmakers passed the Militia Act, which replaced the 1792 law. It laid the groundwork for the formation of the modern National Guard by increasing federal funding for militia and setting training and equipment standards.
In 1934, Congress passed the National Firearms Act. It imposed a $200 per gun tax on the sale of sawed-off shotguns and machine guns. President Franklin Roosevelt signed a law four years later which required interstate gun dealers to be licensed and record the names and addresses of purchasers. The Federal Firearms Act also prohibited the sale of guns to people convicted of violent felonies.
President Lyndon Baines Johnson on Oct. 22, 1968, signed into law the Federal Gun Control Act, which created categories of people prohibited from owning guns including all felons, those involuntarily committed to mental institutions, addicted to illegal drugs, dishonorably discharged from the military or in the country illegally. The Lautenberg Act in 1996 added to the list people convicted of the misdemeanor crime of domestic violence and those subject to protection-from-abuse orders.
The Brady Handgun Violence Prevention Act was passed in November 1993. It mandated a five-day waiting period and background checks for all handgun purchases. The waiting period no longer applies and has been replaced by a national computerized background checking system that is required in sales by licensed dealers but not in private sales.
In 1994, Congress banned 19 types of assault weapons. The law was allowed to sunset five years ago.
While the central question over whether the 2nd Amendment applied to individuals or militia appears to have been settled for now, the U.S. Supreme Court early next year will hear arguments in what is expected to be the first in a series of cases asking justices to decide what, if any effect, the court's decision in the Washington, D.C., case has on state and municipal gun laws.
The argument over what the 2nd Amendment means is not expected go on the back burner any time soon.
Who is prohibited from possessing firearms?
Under the Gun Control Act of 1968, which later was modified and clarified in the Firearm Owners Protection Act of 1986, the possession of firearms by the following categories of individuals is prohibited:
* Anyone who has been convicted in any court of, a felony punishable by imprisonment for a term exceeding 1 year, excluding those crimes punishable by imprisonment related to the regulation of business practices.
* Anyone who is a fugitive from justice.
* Anyone who is an unlawful user of or addicted to any controlled substance.
* Anyone who has been adjudicated as a mental defective or has been committed to a mental institution.
* Any alien illegally or unlawfully in the United States or an alien admitted to the United States under a nonimmigrant visa. The exception is if the nonimmigrant is in possession of a valid hunting license issued by a US state.
* Anyone who has been discharged from the Armed Forces under dishonorable conditions.
* Anyone who, having been a citizen of the United States, has renounced his or her citizenship.
* Anyone that is subject to a court order that restrains the person from harassing, stalking, or threatening an intimate partner or child of such intimate partner. (Added in 1996, with the Lautenberg Amendment.)
* Anyone who has been convicted of a misdemeanor crime of domestic violence. (Added in 1996, with the Lautenberg Amendment)[6]
* A person who is under indictment or information for a crime (misdemeanor or felony) punishable by imprisonment for a term exceeding one year cannot lawfully receive a firearm. Such person may continue to lawfully possess firearms obtained prior to the indictment or information, and if cleared or acquitted can receive firearms without restriction.
Matt Mead - rejected for governor by Wyoming Gun Owners
Cheyenne Examiner (WY)
Author/Byline: Anthony Bouchard
November 19, 2009
https://infoweb.newsbank.com/
The headline should read "Gun owners beware of formers U.S Attorneys". But it's best that you decide...
In 2004, The Sovereign State of Wyoming enacted legislation that established a procedure to expunge misdemeanor convictions “for the purposes of restoring any firearm rights lost”.
This was specifically to aid Wyoming citizens in restoring gun rights if they had a misdemeanor such as domestic violence on their record. The NRA backed Lautenberg legislation bans gun ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence. Wyoming legislators recognized there was nothing to protect individuals that were erroneously convicted.
The unfairness of Lautenberg legislation is that it applies retroactively. So anyone who took a “plea” and accepted and agreed upon sentence suddenly had a large penalty added to their plea bargain, they lose their gun rights retroactively.
Another unintended consequence of the Lautenberg Amendment was that Police and Correctional Officers across the country were terminated for misdemeanor domestic violence that might have happened several years prior. Of course many of the Peace Officers found ways to expunge their records.
The Wyoming legislation would have given citizens a process to remove such a misdemeanor from their record so they could legally purchase and own firearms or just go hunting.
That brings us to the feds fighting back in Wyoming V. United States of America BATF and Matt Mead was on the side of the "Gun Grabbers" and as the U.S. Attorney welcomed a brief filed by the Brady Campaign. Obviously former U.S. Attorney Mead puts more stock in the Brady Campaign than in the people of Wyoming.
Wyoming rightly argued that ”an expungement granted pursuant to this section shall only be used for the purposes of restoring firearm rights that have been lost to persons convicted of misdemeanors. Nothing in this section shall be construed to affect the enhancement of penalties for second or subsequent convictions of misdemeanors under the laws of this state”.
However Matt Mead, a Jackson Hole native disagreed with individual rights and has historically fought on the side of the “gun control crowd” and he has used firearms for a conviction even when the search warrant stated nothing about firearms.
The Wyoming GOP Platform on the "Second Amendment" states, “Supports our rights as stated in the U.S. and Wyoming Constitution as the fundamental guarantees of free speech, to keep and bear arms, private property rights and protection from an oppressive government”. Mead stated this about his own platform, Mead also said he believes in the principles of the state GOP’s platform, but that does not mean he will literally agree with every word of it. “We should commit to the spirit of it“.
Mead has an appealing video on his website but it lacks any substance and speaks about working as a prosecutor and that brings to the bitter taste of trusting these "special attorneys" with gun rights. Laramie County Prosecutor Scott A. Homar also ran on the GOP platform but failed to up-hold the Second Amendment when he went after the victim instead of thugs.
Gun owners need more than a "commitment to the of the spirit" of the Bill of Rights and the Sovereign State of Wyoming doesn't need another U.S. Attorney like Dave Freudenthal to be the governor.
Federal firearms conviction vacated by 7th Circuit
Wisconsin Law Journal (Milwaukee, WI)
November 23, 2009
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The Seventh Circuit last week vacated a man's conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence.
However, the court did not strike the statute down as unconstitutional, but remanded the case to the district court to give the government the opportunity to :establish a reasonable fit 'between the statutes means and its end'."
Addressing the record made before the district court, Judge Diane S. Sykes wrote for the court, "The government has premised its argument almost entirely on Heller's reference to the presumptive validity of felon-dispossession laws and reasoned by analogy that sec. 922(g)(9) therefore passes constitutional muster. That's not enough."
In 2006, Steven Skoien was convicted of domestic battery in Wisconsin state court and placed on probation. In 2007, he was arrested with a hunting shotgun in his truck. He admitted he had gone hunting and shot a deer earlier in the day. He did not own the gun.
Skoien was charged in federal court and sentenced to two years in prison after pleading guilty before U.S. District Court Judge Barbara B. Crabb; however, he reserved his right to challenge the denial of his motion to dismiss the indictment on Second Amendment grounds. The Seventh Circuit reversed the conviction on Nov. 18.
Dicta
The government's argument, and the district court’s denial of Skoien's motion to dismiss, were both based on the following statement in the U.S. Supreme Court's 2008 opinion in District of Columbia v. Heller, 128 S.Ct. 2783: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
Calling the passage dicta, the Seventh Circuit concluded it was not dispositive of whether Skoien's possession of the firearm was protected by the Second Amendment. Instead, the court concluded that all gun laws must be independently justified.
Examining the statute, and the individual facts in this case, the court noted that the firearm was "a conventional hunting gun", and therefore within the scope of the Second Amendment as understood at the time of its adoption.
The court also noted that the ban on firearms possession by domestic-violence misdemeanants the "Lautenberg Amendment" is not longstanding, but "quite new"; it was enacted in 1996.
The court thus rejected the district court's conclusion that the statute fell squarely within the Heller dicta.
Intermediate scrutiny
The court next addressed the appropriate standard of scrutiny to apply and concluded that intermediate scrutiny was appropriate.
In Heller, the Supreme Court explicitly rejected rational basis review for bans on possession of firearms.
The Seventh Circuit held that the Court in Heller also implicitly rejected strict scrutiny by stating that some firearms laws are "presumptively lawful."
Left with only intermediate scrutiny as an option for the appropriate standard of review, the court articulated it as follows: "for gun laws that do not severely burden the core Second Amendment right of self-defense there need only be a reasonable fit; between an important governmental end and the regulatory means chosen by the government to serve that end", with the government bearing the burden of proof."
Because the government in this case rested its entire case on the Heller dicta, the court held that it had failed to meet its burden, vacated Skoien's conviction, and remanded the case to the trial court to give the government a further opportunity to meet its burden.
Should a misdemeanor conviction strip a person of a basic human right forever?
Knoxville Examiner (TN)
Author/Byline: Liston Matthews
November 24, 2009
https://infoweb.newsbank.com/
Natural Law tells us we all have the right to defend ourselves from harmful aggression. As technology has developed, the firearm has become the tool of choice of both the criminal and citizen. Without the right to a gun, the citizen is at a great disadvantage in an encounter with the criminal. The Lautenberg Amendment has stripped many citizens of this basic human right.
Last week, the Seventh Circuit Court of Appeals issued a ruling on Lautenberg which could have a far-reaching positive effect on gun rights. Ironically, this is the same court that earlier ruled against gun rights in McDonald v Chicago, which is now on the way to a Supreme Court decision next spring.
In this more recent case, Steven M. Skoien had been convicted of misdemeanor domestic violence. Some time later, he was found to be in possession of a Winchester 12 gauge shotgun. As a result he was prosecuted under Lautenberg.
There are two problems with the Lautenberg Amendment.
One, this law , passed during the presidency of William (what does the word is mean) Clinton, is another statist attempt to increase the classes of persons prohibited from possessing firearms.
Two, this law is an ex post facto law. From The Constitutional Dictionary:
Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
While I am strongly opposed to domestic violence, there are many cases of people who, long before passage of Lautenberg, plead guilty to a misdemeanor domestic violence charge, maybe paid a small fine, and have been exemplary citizens for decades. But, when Lautenberg was passed, these people suffered a greater punishment in that they were stripped of their gun rights. Further, if they were in a profession that required carrying of a firearm, their career took an abrupt turn since they could not possess a firearm.
We can all take a lesson from this. Be very cautious about pleading guilty to anything. Although the current punishment may be minor, if Congress, or your state legislature passes an ex post facto law such as Lautenberg, you could suffer future punishment you never imagined possible.
Gun ruling reversal tests law Hunter couldn't have gun after domestic violence
Milwaukee Journal Sentinel (WI)
November 28, 2009
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A Rock County man sentenced to two years in federal prison for shooting a deer while he was on probation for domestic violence has had his case overturned by a federal appeals court.
The case could have far-ranging impact in the gun-rights debate. For Steve Skoien, it meant he’ll be home for the holidays.
The 7th Circuit Court of Appeals in Chicago ruled earlier this month that, in light of a major Supreme Court ruling about individual gun rights last year, prosecutors need to show that a lifetime ban on gun ownership for those convicted of domestic violence has a reasonable connection to reducing domestic gun violence. That 1996 law, the appeals court found, should not be grouped with other "presumptively legal" firearm restrictions mentioned in the 2008 Supreme Court case, known as District of Columbia vs. Heller.
The opinion by Judge Diane Sykes says that Heller’s "reference to exceptions cannot be read to relieve the government of its burden of justifying laws that restrict Second Amendment rights."
And so Skoien’s conviction was reversed and his case sent back to Madison so prosecutors can try to meet that burden. On Wednesday, a judge ordered his release from federal prison in North Carolina, where he had been assigned to serve his sentence.
Skoien, 30, was convicted of misdemeanor domestic violence in 2006 and sentenced to probation. In 2007, probation agents learned Skoien had gotten a gun deer license. They went by his house and found a shotgun in his pickup. He admitted he’d used it to shoot a deer that morning. In fact, the carcass was in his garage.
A federal grand jury indicted Skoien for violation of a 1996 federal law that prohibits anyone convicted of domestic violence from ever possessing guns for any reason, often referred to as the Lautenberg Amendment. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.
From the beginning, Skoien argued that applying the federal law in his situation violated his 2nd Amendment right to possess a gun for hunting. U.S. District Judge Barbara Crabb denied a motion to dismiss, and a second motion made after the Heller ruling. That case found that the 2nd Amendment guarantees individual rights to have guns for self-defense, and that the total handgun ban in Washington, D.C., was therefore unconstitutional.
But the Heller court also said it wasn’t trying to undo the many "presumptively lawful" gun regulations, such as those prohibiting felons and the mentally ill from having guns, or restricting guns from certain places.
While Crabb thought the ban on guns for people convicted of misdemeanor domestic violence obviously fit the same category, Sykes found that conclusion premature.
"We take all this to mean that gun laws — other than those like the categorically invalid one in Heller itself — must be independently justified," Sykes wrote after discussing aspects of the Heller ruling.
Sykes explains that an intermediate level of review should apply. In other words, the government would need to show more than just a rational basis for the law, but not have to meet the very high standard known as strict scrutiny.
Preventing domestic gun violence certainly qualified as an important government interest. But the government must still show a law that perpetually bans someone convicted of domestic violence from ever having a gun is a reasonable means to that end. Sykes said the government didn’t make enough of a record on that question, and sent the case back.
"If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction," Sykes wrote
Lautenberg Introduces Bill to Preserve Gun Records Critical to Law Enforcement, Terrorism Prevention
Sen. Frank R. Lautenberg (D-NJ) News Release
Government Press Releases (USA)
December 2, 2009
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WASHINGTON, DC - Sen. Frank R. Lautenberg (D-NJ) today introduced the PROTECT Act, legislation to preserve records of gun sales for longer periods of time to aid law enforcement officials in preventing gun crimes and terrorist acts. Under current law, the Federal Bureau of Investigation (FBI) must destroy these records in most cases within 24 hours of allowing a gun sale to proceed.
"It makes no sense to immediately destroy information linking a gun purchase to its buyer and seller," said Sen. Lautenberg. "We are too often asking law enforcement to protect our communities with one hand tied behind their back. Preserving background check information would help law enforcement do its job and keep our families safe from criminals and terrorists. We must overturn the ill-conceived 24-hour destruction policy so we can successfully combat gun violence and terrorism in America."
The Brady Law requires federally-licensed gun dealers to conduct background checks using the National Instant Criminal Background Check System (NICS) before they sell guns. The NICS system creates an audit log of the purchase during the course of the search. A rider that has been attached to appropriations bills each year since 2004 mandates that the FBI destroy this audit log within 24 hours of allowing the gun sale to proceed.
The 24-hour destruction requirement hinders the FBI's ability to verify that gun dealers are conducting background checks properly and to retrieve guns from those who are prohibited from having them. In 2002 - prior to the 24-hour rule - the Government Accountability Office (GAO) reported that over a six-month period the FBI used retained records to initiate 235 actions to retrieve illegally possessed guns, 228 (97 percent) of which would not have been possible under a 24-hour destruction policy.
Records are also destroyed when known and suspected terrorists purchase firearms, since nothing in current federal law prohibits them from purchasing guns. The FBI's current practice is to keep background check records for these purchases for 90 days. If, at the end of the 90-day period, the FBI still has not found any other disqualifying reason to prohibit the purchase under current federal law, all records related to the purchase are destroyed.
At the request of Sen. Lautenberg, the GAO released a report earlier this year finding that from February 2004 through February 2009 there were 963 cases in which a known or suspected terrorist identified in federal terrorist watch list records attempted to buy a gun or explosives. In 90 percent of these cases -- a total of 865 different times -- the known or suspected terrorist was cleared to buy a firearm or explosive. Last week, Attorney General (AG) Holder announced his support for a separate Lautenberg bill, the Denying Firearms and Explosives to Dangerous Criminal Act of 2009, which would give the Department of Justice discretion to deny a gun purchase to someone on the terrorist watch list.
Sen. Lautenberg's legislation, the Preserving Records of Terrorist & Criminal Transactions (PROTECT) Act of 2009, would:
* require the FBI to retain for 10 years all records related to a NICS transaction involving a valid match to federal terrorist watch list records; and
* repeal the requirement that other background check records be destroyed after 24 hours, and instead require that the records of all non-terrorist transactions be maintained for 180 days.
When asked about the 24-hour destruction rule at a Senate Appropriations Subcommittee hearing in April 2007, FBI Director Robert Mueller said, "[T]here is a substantial argument in my mind for retaining records for a substantial period of time." Video of Director Mueller's remarks can be found here.
Last week, Tom Kean, former Republican governor of New Jersey and Chairman of the 9/11 Commission, and Mayor Bloomberg of New York City wrote an op-ed opposing the 24-hour destruction of gun records and the inability of law enforcement to block gun sales to terror suspects.
The measure is cosponsored by Sens. Charles Schumer (D-NY), Carl Levin (D-MI), Jack Reed (D-RI), Sheldon Whitehouse (D-RI) and Dianne Feinstein (D-CA). Sen. Lautenberg is a long-time advocate for responsible gun safety measures. He has also introduced legislation to close a loophole that allows guns to be sold at gun shows without a background check. And Sen. Lautenberg is the author of the domestic violence gun ban, which has successfully kept more than 170,000 guns away from domestic abusers.
As nation cries out for Tiger Woods domestic violence rumors, courts reconsider Lautenberg Amendment
Chicago Examiner (IL)
December 4, 2009
https://infoweb.newsbank.com/
If he cheated, and she hit him . . . . are her 2nd Amendment rights gone forever?
What does Tiger Woods story tell us about "gun control?" Should a misdemeanor conviction strip a personof a basic human right forever? Sen. Frank Lautenberg's continued war on gun ownership
Yesterday, National Gun Rights Examiner David Codrea found a way to discuss gun rights in the context of a national news story that most Americans plainly find more interesting than Constitutional rights or efforts to smother those rights: unsubstantiated rumors of infidelity and domestic violence in Tiger Woods' private life. If the rumors are true, Codrea points out, and Woods' wife Elin Nordegren is convicted of even misdemeanor domestic violence, she'll become a "Prohibited Person" under a federal law commonly known as the "Lautenberg Amendment."
Not long before the Woods story began to dominate most news sources, Knoxville Gun Rights Examiner Liston Matthews covered a much less sensational story with much greater potential for long-term consequences for all Americans, especially gun owners. The 7th Circuit Federal Court of Appeals, he reported, had just issued its ruling in U.S. v. Skoien, (No, Chicago readers, not that Skoien) a case involving the Constitutionality of the Lautenberg Amendment. Briefly, Steven Skoien was convicted of misdemeanor domestic violence in Wisconsin in 2006 and was sentenced to two years' probation. About a year later, his name was flagged when he applied for a Wisconsin permit to hunt deer with a firearm, and police officers found him in possession of a 12-gauge shotgun, hunting gear, and a dead deer. They also found a handgun and a rifle in the house, but prosecutors declined to charge Skoien with possession of those, saying there was evidence that they belonged to Skoien's wife and a roommate, respectively. Skoien was convicted of possessing the shotgun in violation of the Lautenberg Amendment. At sentencing, his penalty was based on his admitted possession of the shotgun in his truck, plus "constructive possession" of the two other firearms in the house.
Skoien argued on appeal in the 7th Circuit Court of Appeals that the Lautenberg Amendment is unconstitutional, because it denies his Constitutional right to self-defense as embodied in the right to keep and bear arms. The government argued that Justice Antonin Scalia's decision in Heller v. D.C. had established that some anti-gun regulations, even those that infringed the right to keep and bear arms, were "presumptively legal." In fact, Scalia had written: "[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
The 7th Circuit decision makes it clear that the government cannot expect simply to sit back and refer to that passage every time a gun control law is challenged. The Supreme Court, they decided, clearly did not establish that any gun control law is necessarily Constitutional; it simply cautioned that its decision couldn't be taken to mean that no gun control law can ever be Constitutional. Thus the Heller decision simply establishes that such laws may be challenged and the government may argue that they are permitted because they are necessary, because they are narrow enough not to represent significant infringements, or whatever theory they like.
Unfortunately, there has been some premature celebration in the gun rights community over the Skoien decision, with some gun-rights proponents acting as if the 7th Circuit had invalidated the Lautenberg Amendment and sent it to a well-deserved place at the bottom of a circular file. Sadly, that is not the case. First, if the 7th Circuit did strike down Lautenberg, its decision would have force only within the boundaries of the 7th Circuit, meaning only Illinois, Indiana and Wisconsin would be free of Lautenberg. Even more importantly, it's important to note that the Skoien decision does not invalidate Lautenberg even within the 7th Circuit; the judges noted that the government had made no effort to argue that the Lautenberg Amendment meets any standard of Constitutionality, and so they remanded the case back to the original court in which Skoien was convicted. This time, both sides will have to argue over how strictly Lautenberg's Constitutionality should be scrutinized, what the government's real interest in protecting the public from misdemeanor domestic violence convicts is, and how much leeway the Heller decision allows the government in continuing to infringe on an individual right to keep and bear arms when it determines that infringement is necessary.
Domestic violence gun case drawing much attention
Milwaukee Journal Sentinel: Blogs (WI)
December 4, 2009
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The 7th Circuit's recent opinion vacating a Rock County man's conviction of having a gun despite a domestic violence conviction, has gotten lots of attention in the law and gun rights blogospheres (see here, here, and here, for samples).
The court essentially said prosecutors needed to show some reason for restricting Steve Skoien's 2nd amendment rights. On remand to the federal court in Madison, they will likely do that and get the conviction reinstated.
But the story left some advocates for limiting domestic violence a little concerned.,
Tony Gibart, policy coordinator with the Wisconsin Coalition Against Domestic Violence, said he was concerned that news reports about U.S. v. Skoien might leave a wrong impression that firearm restrictions imposed on those convicted of domestic violence are somehow different in kind from similar restrictions on felons and those deemed mentally incompetent.
The latter were referred to as presumptively constitutional in a landmark 2nd Amendment ruling last year.
Gibart said he didn't want any misunderstaning of Skoien to give pause to Wisconsin lawmakers considering two bills that would give state procedures much like the federal law that led to Skoien's charges. In the Assembly, those are AB 558 and 559. In the Senate, SB 380 and 381.
Gibart said the bills would establish a state version of the Lautenberg Amendment and provide better notice and procedures for the surrencer of firearms by people who are subject to domestic violence injunction.
As the Skoien court and Gibart point out, there is likely ample evidence to support the gun restrictions on people convicted of domestic violence under the standard announced in Skoien.
"Between October 31, 2008 and October 31, 2009 at least seven people inWisconsin were shot by domestic abusers who had previous convictions of domestic abuse," Gibart said. " An abused woman who has a gun in her home is six times more likely to be killed than an abused woman who lives in a home without a gun."
Gun bans through the back door-part two
Clarksburg Examiner (WV)
December 17, 2009
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In part one of this series, I explained how thousands of citizens are in danger of losing their right to own or possess a firearm as a result of minor misdemeanor or misdemeanor drug convictions. The present article focuses on the Lautenberg Amendment, a law passed by the U. S. Congress and signed by Bill Clinton in 1997.
This Federal law amended the Gun Control Act of 1968, and expanded the group of citizens who are not allowed to own or possess firearms. Before this law, anyone convicted of a crime in which the possible prison term exceeded one year was prohibited from possessing a firearm. This meant felony convictions in most states.
Now, (since 1997) federal law makes it a crime to own or possess a firearm if a citizen is convicted of a domestic violence misdemeanor offense under local, federal, or state law. This applies if the offense involves the “…use or attempted use of physical force, or the threatened use of a deadly weapon.” Domestic violence , as defined in most state laws, can mean such an offense between spouses, live-in partners or relatives, parent and child, or even a dating relationship if the couple lives together, or formerly lived together.
This is a drastic expansion of former law and creates real problems because of the misuse of the domestic violence laws by individuals wanting to get out of a relationship, or to get another person removed from the household to gain a perceived advantage in divorce or juvenile court.
Certainly we can all agree that convicted felons should not be permitted to possess firearms (unless they apply for removal of the disability, as is possible in some states). Convicted felons, by their own illegal acts, have forfeited many of their rights.
However, now a simple household argument can result in the absolute denial of a citizen’s right to possess a firearm, in spite of the clear language of the Second Amendment. Judges are not currently required to warn a defendant that he or she (and yes, I have represented female defendants on this charge) is jeopardy of losing his or her constitutional right to own a firearm, if he or she pleads or is found guilty of the charge.
Domestic violence is usually a misdemeanor of the first degree, meaning it can carry a possible sentence of six months in jail, and a $1,000 fine, similar to petty theft and DUI. In addition, domestic violence convictions can’t be expunged from the record: It is a permanent conviction.
A slap to the face, a push, a shake, a pinch, a scratch, throwing an object at the other spouse (even if you miss), the mere words “I’ll shoot you” or “I’ll stab you” can all be grounds for a conviction. Once convicted of the first degree misdemeanor Domestic Violence, if you are caught in possession of a firearm, you are guilty of a violation of Title 18, Section 922(g), United States Code. In February of this year, the United States Supreme Court upheld the constitutionality of this law in a 7 to 2 vote, in the case of U.S. v. Hayes. Under the Federal Sentencing Guidelines, a first violation of this section is a level 14 offense, assuming no prior criminal record, the sentence starts at 15 to 21 months in a federal prison.
Also connected with domestic violence charges are usually court-issued “restraining orders”, which many times will prohibit a defendant from possessing a firearm while it is in effect, even before trial or conviction. If a citizen violates this “temporary” gun ban, he or she is violating the same federal law, and faces the same federal prison term as if already convicted of the domestic violence offense.
It would be interesting to see how many U.S. citizens have lost their gun rights as a result of this, in addition to the drug conviction gun ban discussed in the previous article. The Lautenberg Amendment should be repealed, and new laws should be passed to permit those convicted of domestic violence to expunge or seal the records of their convictions after rehabilitation is demonstrated to the Court, and sufficient time has passed.
Useful link: THE LAUTENBERG DOMESTIC CONFISCATION LAW
2010: Lautenberg DV Gun Ban - News Articles And Reports
Should John Edwards be a 'prohibited person'?
News & Politics Examiner (USA)
February 5, 2010
https://infoweb.newsbank.com/
Is there a dark and violent side to former senator and democratic vice presidential candidate John Edwards? Two recent reports make that disturbing case. From the New York Daily News:
John Edwards' ex-aide Andrew Young speaks on alleged Rielle Hunter sex tape - and fears for his life
He got taken for a ride? He didn't want to end up like Vince Foster? He used to wake up at 3:00 AM and arm himself with a bat and a knife? Should we just dismiss this as someone who wants to sell a book spicing things up? But now there's corroboration of a propensity for violence. From the New York Post:
Disgraced former presidential candidate John Edwards reportedly beat his cancer-stricken wife during a horrific marriage-ending fight.
We're all aware that a misdemeanor conviction for domestic violence qualifies one for becoming a "prohibited person" under the Lautenberg Amendment--forever barred from even touching a firearm? We should also know that while Edwards made noises about supporting sport shooters as a campaign necessity in North Carolina, NRA's Chris Cox had this to say:
In the early years of his Senate career, Edwards voted to "commend" the Million Mom March, to end private sales at gun shows, and to maintain long-term federal registration of gun buyer records. He voted for national registration of all gun show vendors, and voted to ban importation of ammunition magazines. There wasn't much in the way of gun control legislation that Edwards didn't support.
While it's true that Edwards hasn't been convicted of anything, his gun-grabbing Democrat pals are trying to not let that minor detail stop them--in fact, none other than Frank Lautenberg is at it again, proposing that people merely suspected by the government be barred from buying guns via a "terror watch list." Don't expect the gun-grabbers to point this out when it involves one of their own--had it been a prominent pro-gun politician, well, do you think they'd keep silent? But hey, they're too busy with important stuff, like pestering coffee companies.
Domestic violence gun ban granted en banc hearing by 7th Circuit
Wisconsin Law Journal (Milwaukee, WI)
March 1, 2010
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The Seventh Circuit on Feb. 22 took the rare step of granting a petition for an en banc hearing.
This summer, the entire court will consider the constitutionality of 18 U.S.C. 922(g)(9), which makes it a crime for a misdemeanant convicted of a domestic violence charge to possess a firearm.
In U.S. v. Skoien, 587 F.3d 803 (7th Cir.2009), a unanimous three-judge panel reversed the conviction of a Wisconsin man under the statute.
Adopting and applying intermediate scrutiny, Judge Diane S. Sykes wrote that the government failed to meet its burden of showing a reasonable fit between its interest in reducing domestic gun violence and total disarmament of domestic-violence misdemeanants.
The court found that it was insufficient for the government to rely solely on a statement by the U.S. Supreme Court in District of Columbia v. Heller, 128 S.Ct. 2783 (2008), that the Second Amendment does not invalidate "longstanding" prohibitions on felons and the mentally ill possessing firearms.
In its request for en banc review, the government contended that, under Heller, federal prohibitions on firearms are "presumptively lawful." It also noted that the circuit courts are in conflict, because the Eleventh Circuit held the statute constitutional in U.S. v. White, No. 08-16010 (11th Cir., Jan. 11, 2010).
In an added twist, the day after the Seventh Circuit granted the en banc petition, the Fourth Circuit weighed in on the issue, adopting the reasoning in Skoien to also reverse a conviction under the statute. (U.S. v. Chester, No. 09-4084 (4th Cir., Feb. 23, 2010).)
Michael W. Lieberman, who represents the defendant, Steven Skoien, opposed en banc review, arguing, "the government's petition for rehearing en banc is nothing more than an attempt to reargue the same points already considered and rejected by the Court. Because rehearing en banc is not a vehicle for a losing litigant to complain about the result, the Court should deny the government's petition."
In his response to the government's petition, Lieberman criticized the "presumptively lawful" standard proposed by the government as one that would render any federal gun statute unreviewable. He also noted that, unlike prohibitions on firearm possession by felons, the statute in this case was enacted in 1996, and thus, is not "longstanding" as the term is used in Heller.
Skoien's brief is due March 26; the government's brief is due April 26; and Skoien's reply brief is due May 10. The en banc oral argument will be scheduled after submission of the briefs.
First termers faced with career decisions
Government Press Releases (USA)
May 28, 2010
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Many Marines anticipate summer for the warm, sunny weather and the days relaxing at the beach or camping with friends. However, many first term Marines whose active duty end of service dates are in FY11, will be approached this summer with the opportunity to have a future in the Marine Corps.
Incentives for reenlistment will be available in July and the retention specialist office will be accepting reenlistment packages from July 1 to Aug. 1.
"Right now, first term Marines need to reach out," said Staff Sgt. Nichole R. Richard, career planner, career retention specialist, Headquarters and Service Battalion. "The opportunity to reenlist is getting slimmer and slimmer. The slimmest it has been in a very long time."
The Corps are getting back to when it was a lot more competitive, like in 2001 and 2002. We are enforcing our higher standards more strictly, and allowing only the best of the best to reenlist, she said.
"Roughly 36,000 first term Marines join the ranks of the Marine Corps every fiscal year, and only about 6,300 get to stay in," said Master Sgt. Marcus L. Cook, career retention specialist, Headquarters and Service Battalion.
He advises Marines to submit their reenlistment packages as early as possible because boat space is limited, he said.
However, those who want to reenlist will comply with thorough background checks, Richard said.
Marines must not fall under the Lautenberg Amendment, which is the Gun Control Act of 1968, making it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition. If they legally cannot have a weapon because they got in trouble in the civilian sector, either involving spousal abuse or harboring a weapon without a permit, they cannot reenlist.
In addition, Marines must have no more than two non-judicial punishments; not be guilty of driving under the influence or driving while intoxicated; have little, but preferably nothing adverse in their page 11s, have high proficiency and conduct marks, and have a very high score on the physical fitness test and combat fitness test, Richard said.
"First termers may feel like they are competitive," said Richard. "But even if they meet the bare minimum requirements, they still could be only average or below average compared to their peers. The more important question is, how competitive am I compared to my peers Corps-wide? It's those who are most competitive and well-rounded that will get the opportunity to reenlist."
Reenlistment incentives may include special duty, duty station preference, jump school, 60 points added to composition scores, lateral moves and bonuses.
"There will be very small bonuses for this FY," said Richard. "It's essentially on a first come, first serve basis. If you wait, the bonuses go fast. "
For example, a Marine could get a bonus one month for a particular military occupational specialty, and the next month that Marine's friend won't qualify for a bonus and wonder why. That's how time-sensitive this is, said Richard.
I advise first termers not to wait and to be ahead of the game," said Richard. "I have a screening checklist I go over with them so if they need to re-take the Armed Services Vocational Aptitude Battery test (to increase their scores to be more competitive), they have the time to do so."
Marine's who choose to make a lateral move may choose an MOS that requires the Marine to have a higher GT score than what they currently have. If this is the case, the Marine will have to retake the ASVAB.
If a Marine would like more time to think about reenlisting, he or she can ask for another three-year or two-year contract. However, there will be no incentives or bonuses accompanying that because that would be considered their incentive, said Richard.
Career specialists are available for guidance for those individuals who wish to reenlist as well as those who don't. For either choice, it's important to start now and have a good plan, said Richard.
It's paramount Marines start thinking about their future in the Corps a year before their end of active service to ensure they have a good plan, she said.
"I also encourage spouses to talk to career specialists as well, so everyone is informed and there are no surprises for anyone," said Richard.
It's important to keep family involved in the Marines' decision making, she said.
"We just want to ensure there are no missed opportunities," said Richard.
My advice for Marines considering a career in the Corps, it's crucial for them to ask themselves what kind of path they're on. If they can be doing something to better themselves as Marines, like volunteer work, it will be noticed that they go above and beyond, said Richard.
"Marines must be aware that the decisions they make today can impact their lives down the road," said Richard. "For example, excessive tattoos can affect incentives like Marine Corps Security Guard duty, recruiting duty, officer programs, warrant officer and police officer."
Lautenberg Statement on Supreme Court Decision in McDonald v. Chicago
Sen. Frank R. Lautenberg (D-NJ) News Release
Government Press Releases (USA)
June 29, 2010
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WASHINGTON, DC - U.S. Senator Frank R. Lautenberg (D-NJ) issued the following statement today following the U.S. Supreme Court ruling to strike down the City of Chicago's ban on handguns:
"Today's Supreme Court ruling bears the hallmark of activist justices appointed during the Bush era who put their own rigid ideology ahead of public safety," Lautenberg said. "While I am disappointed that this decision limits the ability of states and communities to determine how best to protect their residents, we must continue to focus on the reasonable restrictions that are critical to keeping guns out of the hands of felons, terrorists and domestic abusers. The Supreme Court has made it clear that communities across our country may still enact strong, common-sense regulations to protect the safety of families and reduce gun violence."
Sen. Lautenberg is a leader for responsible gun safety measures. He is the author of the domestic violence gun ban, enacted in 1996, which prohibits those who have been convicted of domestic violence misdemeanors from buying or possessing firearms. The law has succeeded in keeping approximately 170,000 guns out of the hands of domestic abusers since it was enacted.
Lautenberg has also introduced legislation to:
* deny the sale of firearms to known or suspected terrorists;
* close a loophole that allows guns to be sold at gun shows without a background check, and;
* prevent individuals from carrying firearms into commercial airports to strengthen airport security and protect the safety of passengers and airline employees.
At risk: thousands of poor performers
Navy Times
July 12, 2010
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If you're a proven poor performer, the Navy is putting you on notice - your commanding officer has five new ways to send you home.
Effective immediately, at least 3,000 petty officers are at risk of being discharged because of tough new performance rules issued by Navy Personnel Command, which make it easier for COs to cut non-hackers.
Sailors at risk include those with low performance mark averages and promotion recommendations, those who have lost their Navy enlisted classifications, those who fail to cross-train during a rating conversion and those who lose the right to carry and operate firearms.
"This gives commanding officers much more latitude in getting poor performers off their ships," said Capt. Leo Falardeau, head of career progression at Navy Personnel Command. "None of these things are mandatory - but it does give commanding officers options."
The rules were announced in NAVADMIN 210/10, released June 25.
Exactly how many could be affected by the new rules isn't known, Falardeau said, because Millington doesn't maintain performance records of E-4s and below. But the command took a "snapshot" of E-5s and E-6s who had up to 16 years of service and at least one year in their grade and found 2,941 sailors violated one or more of the five new rules.
These new rules follow last year's announcement that skippers must begin discharging sailors with clear conduct violations, such as sexual harassment, drug abuse, alcohol-rehabilitation failures or sexual misconduct. For whatever reason, COs had not been processing those sailors out. These new rules significantly raise the bar for who can stay.
Until now, the Navy outlined just two reasons a skipper could separate sailors for poor performance: Sailors had 1.0 marks on their evaluations or had lost security clearances needed for their rating. Those remain in effect.
But these new rules do not mean an automatic out. "We do need to stress that these aren't mandatory," Falardeau said. "But this does put anyone with sustained poor performance on notice: We're now going to take a long and hard look at you."
Those sent home under these new rules could get a full honorable discharge, but that's unlikely.
"You can't give a guy a dishonorable discharge if he got a couple 1.0s on an evaluation," Falardeau said. "I would say most of the time these sailors would get a general discharge under honorable conditions and a re-enlistment code that doesn't allow them to re-enlist in any service again."
The new policy has no minimum or maximum paygrade limit. So a deadwood E-2 could be discharged, as could a chief with 17 years in. By law, those with 18 in years are usually allowed finish their remaining two years and retire. The rules for misconduct are different, because misbehaving sailors can be kicked out at any time.
The reason for the new rules comes down to inventory. The Navy's retention is high, and there are high-performing sailors in the fleet who can't re-enlist because lesser sailors are hogging up billets.
Sailors with misconduct that warrants a discharge, and who also meet the new poor-performance criteria, are to be processed out under the misconduct rules.
"Maybe if I get this substandard performer off the books now, that might just open up a quota for someone else," Falardeau said. "I may not see it on my ship, but it's a bigger Navy issue he needs to consider."
The new rules involve:
* Performance. There are now two new reasons to discharge a sailor based on his eval: a cumulative performance mark average of 2.49 or less, and a less-than-promotable recommendation - with no improvement - over two consecutive evaluation periods.
* Loss of NEC. If a sailor loses his Navy enlisted classification for poor performance, he's out. This does not include sailors who lose an NEC for medical reasons.
"Usually we see this happen again for poor performance on the job," Falardeau said. "For some reason they just can't hack the work."
* Rating conversion dropouts. Sailors who receive a Perform to Serve re-enlistment quota to switch ratings and then fail to complete the formal training required to convert can now be discharged.
"If you don't complete your training through negligence or simply not studying, then we can send you home and free up space for another sailor," Falardeau said.
But commands should avoid a knee-jerk reaction, he said. Instead, they should determine if that sailor just wasn't suited for the new rating, in which case the CO should help that sailor find a rating for which he is suited.
* Domestic abuse. Under the Lautenberg Amendment of 1997, sailors convicted of misdemeanor domestic violence or who have restraining orders against them can no longer carry or use weapons. Now a CO can discharge such sailors.
"If you can't carry a weapon, you can't stand a quarterdeck watch or go on an [individual augmentee] assignment," Falardeau said.
The new rules won't likely lead to an immediate exodus from the fleet, he said.
"If [that sailor has] turned a corner and the captain and [command master chief] agree - he'll probably stay in the Navy," he said.
This effectively raises the level for performance in the fleet and tells sailors that shrugging off their performance won't fly.
"If you want to make this a career, or at least you want to fulfill your obligation and finish your hitch successfully, then you are on notice," Falardeau said.
Appeals
Sailors with less than six years in have no formal appeals process, although they may make a statement that can be viewed by Millington during the discharge process.
But if you have been in the Navy for longer than that, you can request an admin separation board and appeal your case, Falardeau said.
The three-person board reviews your case and decides whether you stay, he said.
"The rules state the board must be made up of three people not associated with that individual directly, so they can be objective," he said.
For example, he said, a sailor from the deck department would have his administrative board held by officers from a separate department on the ship.
"Once the board rules, that's it," Falardeau said. "Though the chain of command can make recommendations, only the secretary of the Navy can overturn that decision."
Court upholds gun ban
Domestic violence can hinder right to arms
Milwaukee Journal Sentinel: Web Edition Articles (WI)
July 17, 2010
https://infoweb.newsbank.com/
In a case watched by gun rights advocates nationwide, the U.S. 7th Circuit Court of Appeals last week reinstated the convictions of a Rock County man for possessing a hunting shotgun while on probation for domestic violence.
The ruling upholds a categorical exception from full Second Amendment rights for certain people convicted of misdemeanors, and it is likely to generate more challenges to the 1996 law at issue following recent U.S. Supreme Court rulings on gun rights.
"We see this as more incremental usurpation of the federal government into the business of regulating the ownership of private property - a power never granted to it by the people," said Corey Graff, executive director of Wisconsin Gun Owners Inc.
Graff said a woman convicted of domestic violence also would be deprived of having a gun that might be her best protection against a rapist breaking into her home.
But the Wisconsin Coalition Against Domestic Violence praised the ruling.
The decision "means victims and law enforcement officers in Wisconsin will continue to be protected by laws that keep guns out of the hands of abusers," said Patti Seger, executive director of WCADV.
"Just as law-abiding citizens have a right to own a gun for self-defense in their homes, domestic violence victims have the right to be free in their homes from the terror and increased risk of death that comes when abusers have guns."
She said many studies indicate that when abusers have guns, their victims are much more likely to be killed.
Steve Skoien, 30, was convicted of misdemeanor domestic violence in 2006 - it was his second domestic battery conviction - and sentenced to probation. In 2007, probation agents learned Skoien had obtained a gun deer license. They went by his house and found a shotgun in his pickup truck. He admitted he'd used the gun to shoot a deer that morning. The carcass was in his garage.
A federal grand jury indicted Skoien for violation of a 1996 federal law, often referred to as the Lautenberg Amendment, that prohibits anyone convicted of domestic violence from ever possessing guns for any reason. Skoien entered a conditional guilty plea, was sentenced to two years in prison and appealed.
Last fall, a three-judge panel of the 7th Circuit overturned his conviction. The opinion was written by Judge Diane Sykes of Milwaukee, who said that before the government can infringe on an enumerated right like keeping a gun, prosecutors needed to show a stronger connection between the lifetime gun ban and the goal of reducing domestic gun violence. That ruling freed Skoien and sent the case back to the trial court.
Federal prosecutors, however, asked that the case be reconsidered by all 11 7th Circuit Appeals Court judges, or "en banc." It was re-argued in May. Skoien's attorney again argued that lifetime prohibition on gun ownership over a misdemeanor violated Skoien's Second Amendment rights, as highlighted in the 2008 U.S. Supreme court ruling that struck down Washington D.C.'s ban on handguns.
Last week the court came out the other way - except for Sykes, who wrote an 18-page dissent.
Writing for the majority, Chief Judge Frank Easterbrook noted that that case, known as Heller, did allow for certain restrictions on the right to possess guns, and that if nonviolent felons can be banned from having guns, perpetrators of domestic violence certainly can.
In her biting dissent, Sykes accused her colleagues of making the government's case for prosecutors, of misconstruing both Heller,of overstating what colonists thought about gun restrictions in state constitutions in 1791, and more.
Sykes reaches the same conclusion she did in November: The case should be sent back to the trial court, where prosecutors should meet their own burden of showing that the Lautenberg Amendment survives an intermediate level of scrutiny about its constitutionality in the wake of the U.S. Supreme Court's latest views on the Second Amendment.
While those cases clearly established that the Second Amendment applies to states, they also said some gun restrictions are constitutional. The extent of those allowable restrictions - such as a lifetime ban on gun possession for people convicted of domestic violence - likely will be the subject of further litigation and legislation for years to come.
Few finish counseling programs for domestic abuse
Fayetteville Observer, The (NC)
September 29, 2010
https://infoweb.newsbank.com/
Fort Bragg sometimes orders soldiers who commit domestic violence to deploy before they have finished court-mandated programs designed to correct their abusive behavior, court and military officials said.
There are two primary programs for abusive soldiers: The county operates the RESOLVE program, and Fort Bragg oversees the Marching to Change program. Judges refer soldiers to both, and a review committee at Fort Bragg sends soldiers to the on-post program, as well.
Numbers provided by Fort Bragg and the county show that fewer than half of the soldiers enrolled have completed either program. A variety of reasons are listed for the failure to finish, including deployments.
In Cumberland County, District Court judges often defer prosecution for soldiers who commit domestic violence, allowing the soldiers to clear their records if they abide by the terms of their probation. Many times, those terms include the completion of the RESOLVE or Marching to Change programs.
Debby Tucker, executive director of the National Center on Domestic and Sexual Violence, calls the numbers “very discouraging.”
She believes soldiers should not be allowed to deploy or switch Army bases before they complete a rehabilitation program.
She believes that courts routinely look for ways to keep domestic abusers from suffering the full consequences of their actions. In a military town, she said, it is likely that soldiers get special consideration.
Tucker said there are two schools of thought about letting soldiers deploy before they complete an intervention program.
Some people believe it is an acceptable practice because the abusive soldier is back in the field and cannot do more harm to his family, she said.
“While that may create a respite for the victim, it might create a soldier in theater who is not exercising good judgment,” Tucker said. “If we can't trust you to make good decisions on how you treat family, we may not be able to trust you when you are in the field, interacting with citizens.”
Beth Keever, the county's chief District Court judge, said Tucker poses a good argument.
“In the best of all possible worlds, they would complete the course in one period of time,” Keever said.
But she said there is a big difference between what happens in a soldier's home and what happens in combat, where the soldier is under strict supervision and is accompanied by other soldiers.
Linda Giles, a Fort Bragg social worker who helps administer Marching to Change, said she has concerns about allowing soldiers to leave the program before they complete it.
“It is a problem,” Giles said. “We want to stop the escalation to violence. The soldiers' change process is interrupted.”
Giles said follow-up therapy after the soldiers return is not always consistent. Some of the soldiers move on to other units or other posts or leave the Army, she said.
“Sometimes it takes a long time for the case managers to locate them,” Giles said. “They may have moved on and do not want to be reminded of their incident.”
The Lautenberg Amendment to the Gun Control Act of 1968 makes it a felony for anyone convicted of misdemeanor crimes of domestic violence to carry firearms. The amendment was approved by Congress in 1996. Under the amended law, soldiers who have such a conviction on their records cannot be deployed. But if a soldier has been granted a deferred prosecution, he has no conviction on his record and he will be cleared if he meets the terms of his probation.
Department of Defense policy allows soldiers charged with domestic violence “reasonable time” to have their records cleared.
That policy allows soldiers with deferred prosecutions to deploy without finishing the rehabilitation program, said Sharon Phillips, manager of the state probation office. The soldiers are required to return to the program after deployment, Phillips said.
But it appears from records provided by the county Department of Social Services that many soldiers are not completing the RESOLVE program.
Those records show that the courts have ordered 94 soldiers into RESOLVE since 2006. Of the 94, the statistics show, only 31 have completed the course. Thirteen soldiers are still enrolled and nine were ordered to take the course but never showed up.
The figures show that eight soldiers left because of deployment, four were suspended from the program and three are expected to return to it.
Bill Dukes, assistant director of adult services, could not say specifically what happened to 26 soldiers who left the course for “unknown reasons.”
He said their cases could have been dismissed or plea bargained, or they could have changed Army posts, been discharged by the Army or lost contact with Social Services.
Dukes also could not say what happened to the nine soldiers who were ordered to take the RESOLVE program but never enrolled.
“We would not know their disposition,” Dukes said. “We provide probation with information on who enrolled from court and their attendance.”
Phillips, manager of the probation office, said soldiers who violate terms of their probation are punished.
“We don't just go, 'Oh, they didn't finish it, oh well.' We do deal with it,” Phillips said.
Dukes said privacy laws prevent him from providing the names of soldiers who didn't finish the program.
Ben Abel, a civilian spokesman for Fort Bragg, said it would be inappropriate to discuss soldiers in the RESOLVE program because Fort Bragg has no authority over it. The responsibility of completing a community-based training course lies with the soldier, Abel said.
Of the 90 soldiers enrolled in Marching to Change in the past year, Womack spokeswoman Shannon Lynch said, 12 deployed, 10 left because their service ended, five moved to other Army installations, four were separated from the Army and three were removed because of clinical need or inappropriateness for group treatment.
Lynch said 24 soldiers have graduated from the program in the past year. The program typically takes two to six months to complete, though it can last up to a year depending on individual progress.
Abel, the Fort Bragg spokesman, said Marching to Change allows flexibility so soldiers can meet responsibilities to the program and their unit.
Abel said there are only two reasons that soldiers would not complete Marching to Change — they are separated from the military or they complete their service obligation.
Soldiers who deploy while in Marching to Change must complete the program when they return, Abel said. Soldiers who change duty stations must pick up the program at their new locations, he said.
In recent months, Abel said, Marching to Change has received excellent support from the commands regarding their soldiers' participation in the program.
2011: Lautenberg DV Gun Ban - News Articles And Reports
Help Repeal The Lautenberg Amendment
Cleveland Examiner (OH)
Author/Byline: Charles Hairston | Section: Cleveland Gun Rights Examiner
January 22, 2011
https://infoweb.newsbank.com/
The Domestic Violence Offender Gun Ban ("Gun Ban for Individuals Convicted of a Misdemeanor Crime of Domestic Violence", Pub.L. 104-208,[1]18 U.S.C. § 922(g)(9)[2]) is an amendment to the Omnibus Consolidated Appropriations Act of 1997 enacted by the 104th United States Congress in 1996. The act is often referred to as "the Lautenberg Amendment" after its sponsor, Senator Frank Lautenberg.
The act bans shipment, transport, ownership and use of guns or ammunition by individuals convicted of misdemeanor domestic violence, or who are under a restraining (protection) order for domestic abuse in all 50 states. The act also makes it unlawful to knowingly sell or give a firearm or ammunition to such person.
One of things that Clevelanders, Ohioans and people in general don’t realize is that Domestic Violence is a crime of Degrees that range from a fourth degree misdemeanor to a third degree felony, with penalties ranging from 30 days to 5 years. The lowest degree of domestic violence “(C) No person, by threat of force, shall knowingly cause a family or household member to believe that the offender will cause imminent physical harm to the family or household member” can result from a stern look, a sudden movement or spoken words (not necessarily threatening). For example: A family argument ensues when dad tells junior he can’t go out tonight and if he does, he’ll be grounded for a month. Junior really wants to go, so he calls police and makes a statement that he’s afraid of dad because dad threatened him. Dad gets arrested and charged with domestic violence. At court, Junior learns that he can’t drop the charges because the State has taken up the prosecution. Dad gets convicted and his gun rights are gone forever. Even the courts have no power to restore dad’s gun rights.
This holds particular significance to Cleveland, one of Ohio's largest cities. So much depends on the responding officer, whether or not he's had a good day and how he files his report. More experienced officers play the role of mediators, while some, particularly junior officers feel that if they respond "somebody's going down". I single Cleveland out because Bill Mason's office is notorious for objecting to and contesting everything, even when they know the law is against them. As a general rule, prosecutors have a duty to ascertain the truth, and if te evidence favors the accused, to abandon the prosecution. Case after case reveals that Mason's office has withheld evidence favorable to a accused and prosecuted individuals with less than circumstantial evidence. One individual reports that he was convicted because a Cuyahoga County Common Pleas Judge stated that he "believes that something happened that day". The law interprets this as reasonable doubt...Mason's office interprets it as a win.
This happens in the real world. Granted, Domestic Violence is a problem, but something as simple as the scenario above should not affect a person for life. The laws need to change. Prosecute wife beaters and abusers and ban them for life, but not the concerned parent or spouse.
If you agree with this and want to do your part in changing this, click here to read the contents of the petition and sign it. An ever-increasing number of members of congress are joining this fight, so you are in good company.
Dissecting The Lautenberg Amendment
Cleveland Examiner (OH)
January 29, 2011
https://infoweb.newsbank.com/
Many Clevelanders and Ohioans, as a result of being turned down for either a firearm purchase or Concealed Carry license have resorted to various forums, such as Ohioans for Concealed Carry and the Buckeye Firearms Association among others, asking the question “Can I be denied because of a misdemeanor domestic violence charge?” or some similar question.
As a familiar in these forums, the Cleveland Gun Rights Examiner has seen a lot of answers; some are on point, but only partially answer the question while others are out in left field or miss the mark completely.
The answer to the question depends on the facts of each case individually. People see “convicted of a misdemeanor crime of domestic violence” and stop at that point. The federal law governing the “domestic violence” gun prohibition is 18 U.S.C. 922(g)(9). The legal definition of domestic violence is defined by 18 U.S.C. 921(a)(33)(A)(ii) as any offense that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon”.
Following D.C. v. Heller, most courts have taken the position that it would be a mistake to uphold “presumptively lawful regulatory measures” (of which 18 U.S.C. 922(g)(9) is one), without more, and therefore adopted “intermediate” scrutiny as the standard of review. This places the burden of proof on the government to prove that a domestic violence conviction rises to the level of prohibition on a case-by-case basis.
In short, no one in the general sense can definitively answer the question of domestic violence being prohibitive without knowing the details of a specific case. For those of you that have posed the question, if there was a physical altercation, chances are that you are prohibited. For those that only had arguments, you are probably not.
Fortunately, Ohio prosecutors neglect to charge domestic violence under specific degrees of the offense; therefore, most defendants can be convicted and sentenced for ONLY the lowest degree, absent aggravating factors, thus without the records of the case, you have a better than average chance of winning.
[DISCLAIMER] The above analysis is not intended as legal advice; it is simply an explanation of the Lautenberg Amendment as it applies to Ohio law. Readers are advised to consult professional legal help that is specific to them.
Lautenberg Marks 15 Years of Domestic Violence Gun Ban
Targeted News Service (USA)
September 30, 2011
https://infoweb.newsbank.com/
WASHINGTON, Sept. 30 -- The office of Sen. Frank R. Lautenberg, D-N.J., issued the following news release:
Today, U.S. Senator Frank R. Lautenberg (D-NJ) marked 15 years since legislation he authored was signed into law to prohibit individuals convicted of domestic violence misdemeanors from buying or possessing firearms. Since it was enacted in 1996, the law has succeeded in keeping guns out of the hands of spousal and child abusers on approximately 200,000 occasions.
"Over the past 15 years, this law has made a significant impact on the lives of innocent women and children. Instead of living in fear, domestic violence victims have protections from gun violence as they rebuild their lives," Lautenberg said. "The law is plain and simple: If you are convicted of assaulting your wife or beating your child, we are not going to allow you to arm yourself with a gun. Common-sense laws like this have made our country safer and I will continue working in Washington and fighting the gun lobby to protect our families from gun violence."
The Domestic Violence Gun Ban was approved in Congress and signed into law in 1996 by former President Bill Clinton as part of the Omnibus Consolidated Appropriations Act of 1997. This law specifically bans the shipment, transport, sale or ownership of guns by individuals convicted of domestic violence.
Sen. Lautenberg is a leader in Congress for responsible gun safety measures. Earlier this year, he introduced a package of three common-sense bills that would ban high-capacity gun magazines, close the gun show loophole, and keep deadly weapons out of the hands of criminals and terrorists.
Both Sides of the Law: At least 93 Milwaukee police officers have been disciplined for violating law
Milwaukee Journal Sentinel
Gina Barton
October 23, 2011
This is part one of a three-part series. Read part two and part three.
At least 93 Milwaukee police officers — ranking from street cop to captain — have been disciplined for violating the laws and ordinances they were sworn to uphold, a Journal Sentinel investigation found.
Their offenses range from sexual assault and domestic violence to drunken driving and shoplifting, according to internal affairs records. All still work for the Police Department, where they have the authority to make arrests, testify in court and patrol neighborhoods.
Officers who run afoul of the law often aren't fired or prosecuted, the newspaper found. Consider:
At least six officers disciplined by the department for illegal behavior suffered no legal consequences whatsoever. One was Reginald Hampton, accused of sexually assaulting two women he met on duty. Another was Mark Kapusta, suspended after a woman said he pointed a gun at her head during a drunken road-rage incident. Neither officer was charged or ticketed.
Twenty-three officers got breaks from prosecutors that allowed them to avoid being convicted of serious charges — or any charges at all — as long as they didn't commit more crimes and followed prosecutors' instructions. One was Patrick Fuhrman, originally charged with a felony for a beating that sent his wife to the hospital and, according to a witness, left blood in every room of their house. A conviction on that charge could have gotten him fired from the department, banned from carrying a gun for life and imprisoned for 3½ years. Instead, he ended up with two tickets for disorderly conduct.
Nine of the 93 officers were convicted of crimes. Some even spent time behind bars. Yet when their criminal cases were concluded, they went back to their careers with the Milwaukee police. At least one, John P. Corbett, was a police sergeant by day and an inmate by night. Convicted of driving drunk with a child in the car, Corbett did his job at the police station while on work release from jail. His 13-year-old daughter told authorities Corbett took the wheel after she got lost driving back from a tavern.
The Police Department, district attorney's office and Fire and Police Commission share responsibility for keeping officers in line.
All three fall short.
INTERACTIVE DATABASE: Search officers and their case histories
The department tolerates misconduct. Prosecutors give cops career-saving deals. The commission reduces punishments when officers break the rules. As a result, police who have crossed to the other side of the law keep the power that comes with the badge. Meanwhile, citizens have no way of knowing whether the officers responsible for protecting them have tarnished records.
None of the agencies has a comprehensive list of cops who have broken the law.
It took the Journal Sentinel nearly two years of records requests, a court case and $7,500 in fees to compile the list of 93 — which is about 5% of the force. The list doesn't include cops with juvenile records, arrests before they were hired or discipline under different department rules.
What's more, no department policy prevents officers from enforcing the same laws they've been disciplined for breaking. An intoxicated motorist may be stopped — or allowed to drive on — by one of more than 30 cops who have been arrested for drunken driving. A woman who calls 911 in fear of her husband may be met by one of more than a dozen officers with a history of domestic violence.
Cops who break the law should be fired, said Milwaukee County Sheriff David A. Clarke, who worked for the Milwaukee Police Department for 24 years. Illegal conduct undermines officers' authority and erodes the public trust, he said.
"There should be a higher standard for (an) . . . employee who enforces the law than for a worker who cuts the grass," Clarke said. "There's no understanding why a cop would drive drunk. There's no understanding why a cop would be abusive to a spouse. When you start to justify and rationalize this type of behavior, it gets ugly."
The newspaper's review — the first of its kind involving the Milwaukee police — has uncovered information even those in charge of the department didn't know.
In a recorded speech to officers, the audio portion of which was obtained by the Journal Sentinel, Milwaukee Police Chief Edward Flynn said he was surprised at the large number of officers arrested for driving drunk.
"We've got an issue of conduct here that's related to culture that we need to confront and deal with," he said.
A video of the speech was shown to officers a month after a Journal Sentinel reporter shared the newspaper's key findings with a police spokeswoman and asked for an interview with the chief. In the speech, Flynn announced a new program of training, support and discipline for officers dealing with alcohol-related problems.
He also warned of the newspaper's investigation.
"I understand they are going to post . . . names on their website," Flynn said during the presentation. "They are also selecting . . . officers for special scrutiny in their newspaper, with the operating question being whether they should be police officers given their prior conduct."
Flynn didn't answer that question in the video. He also wouldn't answer questions about the newspaper's findings. Instead, he issued a one-sentence statement:
"We recognize that alcohol abuse, divorce and suicide are overrepresented in the law enforcement profession, and we actively educate, intervene, discipline and provide resources for our members to ensure they understand the inherent risks of the job, and the personal and professional consequences of their behavior."
Milwaukee County District Attorney John Chisholm also would not discuss the problem with a reporter. His chief deputy, Kent Lovern, provided a written statement, pointing out that 70 Milwaukee officers have been charged over the past 10 years.
Of those, 42 were convicted of misdemeanors or felonies under Milwaukee County's jurisdiction, according to an analysis by the newspaper. Most of them are no longer on the force.
But the list was started in 2000, making it incomplete. About one-third of the officers identified by the newspaper were disciplined before that point.
Mayor Tom Barrett, who recruited Flynn to Milwaukee and who appoints the members of the Fire and Police Commission, also refused to meet with a reporter. He issued a statement supporting the chief and the commission.
Only Michael G. Tobin, executive director of the Fire and Police Commission, agreed to discuss the issue with the Journal Sentinel.
INVESTIGATING AN OFFICER: A look at the complaint and review process
Significant improvements have been made to the commission — a civilian board that oversees hiring and discipline — over the past decade, he said. In 2001, the board began requiring a written psychological test for job candidates. Since 2005, it has been followed up with an in-person mental health exam.
In addition to getting a new slate of members in recent years, the commission was reorganized in 2008, Tobin said. Two independent investigators now handle citizen complaints to the commission. In the past, the commission referred complaints to the department.
The commission also has hired a research analyst who studies trends within the department, including use of force and vehicle pursuits. Some of those reports have resulted in improved training for officers, Tobin said.
As for disciplinary appeals, commissioners can't always do what they want - they must follow procedures dictated by state law, Tobin said. He believes they try their best to protect the public without violating officers' rights.
"It's not a fail-safe system," he said. "With the passage of time it could be proven that a different course of action could have been taken."
Only on the force
The 93 officers identified during the newspaper's two-year investigation include only those the department concluded broke the law while on the force. To compile the list, the newspaper reviewed officers' disciplinary records and built a database of discipline imposed since their hire dates, which range from 1979 to 2010.
The department provided the disciplinary records over a one-year period beginning in January 2010. The list may not include incidents or discipline that occurred after the records were released. It does not include officers hired after 2010. Officers who left the force after Oct. 1 may not have been removed.
More than half the officers disciplined for violating laws or ordinances were suspended for three days or less, according to the newspaper's analysis.
Seven officers were fired but got their jobs back during the appeal process. Four were reinstated by the Fire and Police Commission; two reached agreements with chiefs to return to work; and one was rehired as the result of a settlement in a discrimination lawsuit.
Nine officers were disciplined for more than one instance of illegal behavior. Five were disciplined for breaking the law while employed as police aides — a program that gives teenagers a head start on becoming recruits — yet were allowed to become officers anyway.
No one tracks how many cops committed crimes before they were hired. A state law that keeps job applications secret and blocks access to their birth dates makes it impossible for the public to figure out that number.
Until about four years ago, applicants with multiple misdemeanor convictions could be hired as Milwaukee police officers, as long as the offenses were not domestic violence and did not occur within three years of applying.
"Now there's no magic number," Tobin said. "Every time there's even a single one, that individual gets greater scrutiny."
Several other states ban convicted drug dealers, people who have lied in court and people with recent drunken-driving convictions from working in law enforcement. Not Wisconsin. A state law here prohibits all employers — even police departments — from discriminating against applicants with misdemeanor criminal records unless their convictions are related to the job.
Which crimes are considered related to the job of policing is open to interpretation, Tobin said.
The only absolute bars to working in law enforcement here are felonies or crimes of domestic violence, because federal law precludes people convicted of those crimes from carrying guns.
Once officers are on the job, it is difficult to convict them of crimes. Experts say jurors are inherently biased in favor of police.
"Your competence and credibility sort of come with the badge," said Dennis C. Elias, who serves on the board of the American Society of Trial Consultants. "Additionally, people don't want to believe the people that we trust to protect us would ever do anything bad."
Deputy District Attorney Lovern has acknowledged that prosecutors take police credibility into consideration when deciding whether to issue charges.
"We always have to consider how a jury will react in considering evidence against a police officer," he said in January, after his office declined to charge fired officer Ladmarald Cates with an on-duty rape.
Federal authorities later launched an investigation, and the U.S. attorney's office secured an indictment against Cates on two felony charges last month. He has pleaded not guilty and is scheduled for trial Jan. 9.
Five prior allegations
Cates was indicted and fired amid allegations that he raped a woman after responding to her 911 call in July 2010. The Journal Sentinel examined the case and published an interview with the victim in January. The newspaper later found Cates had been accused of breaking the law five times before, all without being charged or losing his job. Three of the previous allegations involved sexual misconduct — two with female prisoners and one with a 16-year-old girl who said he offered her cash in exchange for sex.
Another Milwaukee cop who avoided criminal charges because prosecutors thought the evidence wouldn't stand up in court was Mark Kapusta.
Here is what the woman who encountered Kapusta at a southwest side intersection told investigators, according to a summary of the internal investigation:
She was helping her boyfriend deliver newspapers around 4:45 a.m. Jan. 20, 2006, when she turned the corner. The driver of a black pickup truck, who also had been waiting to turn, started honking his horn. He pulled behind her, swerving all over the road.
When she honked back at him, the man pulled his truck in front of her car, forcing her to stop. The man, who turned out to be Kapusta, got out of the truck, yelling. His bloodshot eyes and slurred speech told the woman he was probably drunk.
He was holding a gun.
Kapusta, who was not in uniform, approached the woman's car. Her window was partially open. He pointed his weapon through it, aiming at her head.
"Put your hands where I can see them!" he shouted. "I'm the f---ing police!"
She feared she was about to die.
But Kapusta didn't fire.
The woman told him she was going to call the police, and he went back to his truck and drove away.
The woman's boyfriend told investigators a similar story, except he said he did not see Kapusta point the gun at the woman's head, according to the summary. The document does not name the boyfriend. He could not be reached for this story.
When two sergeants showed up at Kapusta's house around 7 a.m., he didn't answer the door.
Two hours later, two detectives knocked for 10 minutes before an intoxicated Kapusta came to the door, the summary says. One of the detectives overheard Kapusta on the phone, telling his partner: "I f---ed up." Asked about it later that day, Kapusta's partner said he "did not recall" the statement.
Around noon — seven hours after the incident — Kapusta's blood-alcohol level was 0.15, nearly twice the legal limit for driving, the summary says.
Kapusta did not respond to requests for comment. Here is what he told investigators, according to the summary:
After he finished work around midnight, he had two drinks with fellow officers. Around 4:30 a.m., he was on his way home when he noticed the car behind him following too closely and too quickly. Kapusta, who was assigned to the gang unit, suspected its occupants were gang members who recognized his truck. Kapusta approached the car, showed his badge, and identified himself as a police officer, keeping his gun at his side, he said.
He instructed the woman to call 911 because he was afraid of her boyfriend. But then the couple left, so he went home.
At first, Kapusta said he went to sleep as soon as he arrived. He later changed his story to say he went home, drank five to seven shots of alcohol, and then went to sleep.
About two weeks after the incident, the woman called investigators and said she was too afraid to continue pursuing charges, the summary says. Although she denied being intimidated or threatened, she would not come to the door to discuss her decision with a detective because she was terrified, her boyfriend told police.
Without the woman's cooperation, Milwaukee County Assistant District Attorney Karen Loebel concluded she could not prove the case, the summary says.
Nannette Hegerty, police chief at the time, initially fired Kapusta. While his appeal was pending before the Fire and Police Commission, she agreed to reduce his punishment to a 60-day suspension and allow him to remain on the force, records say.
Records do not explain Hegerty's reasons for changing her mind. She could not be reached for comment.
Three years later, Kapusta received an award for distinguished service for devising a system to reduce thefts from cars.
Domestic violence
In the years following a case in which seven police officers were convicted of beating a man at a Bay View party that was held seven years ago this week, both DA Chisholm and Chief Flynn vowed to take a hard line on officer misconduct.
That didn't happen in the case of Patrick Fuhrman, who beat his wife so badly there was blood in every room of their house, according to a summary of the internal investigation.
Fuhrman's wife and a neighbor who helped her — both police officers themselves — gave the following description of events, according to the summary:
When Fuhrman's wife got home from work on Nov. 3, 2008, she was upset because he had told her he wanted a divorce. She tried to talk with him, but the conversation turned into an argument.
Then it turned physical.
Fuhrman grabbed his wife by the neck and threw her to the ground. The force caused her to hit her head on the floor and bite her lip. He punched her several times in the head, then in the nose. While she was on the ground, he kicked her and stomped on her repeatedly, calling her a "n----- lovin' crazy whore woman."
She was able to get up from the floor, but he came at her again. She threw her police baton at him but missed, cracking the TV screen.
"You disgust me," he said, laughing. "I should have never married you. If you are going to fight, you should learn how."
Then Fuhrman left for work and his wife went to Community Memorial Hospital. She arrived with bruises on her face, legs, elbows and shoulders, the summary says. She needed three stitches in her lip.
In an interview with internal investigators, Fuhrman admitted throwing his wife to the ground, but said he did it because he wanted to get away from her. Fuhrman also admitted striking her "in the chest, chin and/or face area with an open hand," but said he only did so after she tried to hit him with the baton. He also said he may have "gotten her in the nose," the summary says.
When the investigator asked Fuhrman if he had called his wife a whore and used a racial slur, "he stated he called her many things to that effect and that many hurtful things were said by both of them," the summary says.
Fuhrman also told investigators he was sorry.
"I just want to apologize that I brought shame and embarrassment to the Police Department and to my wife and my family," he said.
Jeffrey Greipp, then an assistant district attorney, initially charged Fuhrman with domestic violence-related substantial battery, a felony.
A conviction on that charge would have cost him his job.
Within five weeks, prosecutors reduced the felony charge against Fuhrman to misdemeanor battery, according to court records. A conviction on that charge would have knocked him off the force as well. Because his wife was the victim, he would not have been allowed to carry a gun under federal law.
A deferred-prosecution agreement, signed by Assistant District Attorney Gilbert F. Urfer in March 2009, reduced the charge even more and saved Fuhrman's job.
Agreements for deferred prosecution allow defendants to avoid serious criminal convictions if they meet certain conditions, such as getting treatment and not committing more crimes. They must plead guilty to a crime initially, but the charge is reduced or dismissed if they live up to their end of the bargain.
Fuhrman's deal required him to plead guilty upfront to two misdemeanor counts of disorderly conduct, which is less serious than battery.
Prosecutors agreed to reduce the charges a third time — to noncriminal tickets — if Fuhrman completed domestic violence treatment, substance abuse assessment and treatment, and a parenting class. For the seven months of the agreement, Fuhrman also agreed not to commit any additional crimes and not to use alcohol or illegal drugs.
"The agreement was offered to Fuhrman at the request of the victim in the matter, and in consideration of the fact that there was more than one consistent account of the events that supported the prosecution," according to the statement from Lovern, chief deputy prosecutor.
Neither Fuhrman nor his wife responded to requests for interviews.
Lack of cooperation from the victim, which is common in domestic violence cases, is not a valid reason to let an accused batterer go free, said Judy Munaker, who prosecuted such cases in Dane County before working for five years as a state Office of Justice Assistance trainer, where she taught police about officer-involved domestic violence.
Victims of domestic violence almost never participate in prosecution, said Munaker, now a consultant. When the perpetrator is a police officer, cooperation from the victim is even less likely.
"I've never had a case with a law enforcement officer when the victim is willing to testify," she said. "We expect most victims to recant or not testify because they're trying to stay alive."
Fuhrman satisfied his conditions and walked out of court with the municipal tickets and a fine. Flynn suspended him for 30 days.
Fuhrman's personnel record includes an award for arresting an armed robber in 2000. In 2007, he received the chief's superior achievement award for pursuing an armed suspect.
More diversions
Fuhrman is among 14 Milwaukee police officers who have benefitted from deferred prosecutions and similar deals known as diversion from Milwaukee County prosecutors. Another four officers have gotten such treatment from prosecutors in other municipalities.
It isn't easy for the public to figure out all the information about either type of case.
As reported by the Journal Sentinel last year, Chisholm has greatly increased the number of deferred prosecutions since he took office in 2007. He has touted the program as a solution to take pressure off the overcrowded court system, but has not specifically addressed the deferred prosecutions or diversions of police officers.
Deferred prosecutions are supposed to be entered into the state's online records system, known as CCAP. But that isn't always done. When it is, the details available electronically are sketchy. The full story is contained only in a paper file at the courthouse.
There are even fewer records of diversion cases, in which prosecutors agree to hold off on filing charges in the first place. In exchange, potential defendants must meet certain conditions, ranging from staying out of trouble to attending counseling or paying restitution. Diversion cases are not entered into the online database. Because prosecutors don't file charges upfront, there are no paper court records of the deal, either.
The newspaper located limited documentation on diversion cases involving police officers by filing public records requests with the Police Department and district attorney's office.
Those records also contained information about six officers whose cases were "held open" with instructions from prosecutors to meet certain conditions in order to avoid charges, but without a formal deferred prosecution or diversion agreement.
Agreement ignored
At least one officer who was offered a diversion agreement, Robert A. Brown II, slipped through the cracks.
Brown was never charged even though he failed to attend anger management classes after a fight with his girlfriend in January 1998, according to a summary of the internal investigation.
The document gives these details:
Brown was arrested for domestic violence battery after the woman, who was six months pregnant with his child, was treated at St. Joseph's Hospital for cuts on her forehead, neck pain and a swollen nose. The woman told investigators Brown choked her and punched her in the face.
The woman said she wanted to prosecute because Brown had choked her three times before.
Milwaukee County Assistant District Attorney William Hanrahan — now a Dane County circuit judge — told Brown he would not issue charges if Brown completed an anger management course and refrained from further violent contact with the victim. Brown agreed.
Nine months after the fight, a police sergeant contacted the district attorney's office for an update.
"Due to a possible error or oversight on the part of the District Attorney's office, this case never made it into the diversion program and records indicated Officer Brown never attended the stated program," the summary says.
In his written statement, Lovern said that because the case was so long ago, he had no information about why charges weren't filed.
Brown's only punishment was a one-day suspension. He did not respond to an email seeking comment.
His record also includes recognition for arresting a burglary suspect in 1995.
Altercation with senator
Jeremy Gonzalez, an officer involved in an altercation with state Sen. Tim Carpenter (D-Milwaukee), also was offered a diversion program. Although Gonzalez was still a probationary officer when the incident occurred on Aug. 14, 2004, he was allowed to remain on the force.
Carpenter, who lived upstairs from his elderly parents in a duplex, was running for U.S. Congress at the time. He heard a noise, and he and his father went outside, Carpenter said in an interview.
Gonzalez and his brother had torn down a campaign sign.
"I came out and said, 'What happened?' " Carpenter recalled. "(Gonzalez) got upset. He was kind of combative. He told me to shut my mouth and get inside my house. He (grabbed) my shirt and twisted it and ripped my shirt."
Meanwhile, Gonzalez's brother tackled Carpenter's father, who was in his 80s, Carpenter said.
"My dad went flying through the air," Carpenter said. "As soon as he hit the ground, he said, 'Oh, my back.' It still goes through my mind in slow motion: Standing on our own property, having someone come at my dad like a linebacker going after a quarterback."
Gonzalez, who did not respond to a certified letter seeking comment, told internal investigators he kicked the sign because he was angry with his brother. After that, Carpenter started the fight by threatening to "kick his ass," according to a summary of the internal investigation, which also includes Carpenter's account.
Gonzalez denied shoving Carpenter, as a witness reported, or grabbing his shirt.
Gonzalez's blood-alcohol level was 0.10, according to the summary. He was arrested for disorderly conduct. As part of his deal to avoid charges, he completed an anger management program.
His brother, Dimitri A. Gonzalez — who is not a police officer — was charged with misdemeanor battery and pleaded no contest, court records show.
Jeremy Gonzalez was suspended for two days. He has not been disciplined since, according to his personnel record.
He has received three awards from the Police Department for meritorious arrests: armed robbers in 2004 and 2007 and a marijuana dealer in 2005.
A few days after Gonzalez's fight with Carpenter, Jon Reddin, who has since retired as deputy district attorney, told the Journal Sentinel that Carpenter's reluctance to press charges was part of the reason prosecutors gave the rookie cop a break.
Like Gonzalez, most of the officers disciplined for violating the law did so off duty.
But that isn't always the case.
Assault accusations
As the Journal Sentinel first reported in March, three current officers avoided criminal convictions and kept their jobs after women accused them of on-duty sexual assaults, according to records. Unlike Cates, who ultimately was fired, Reginald Hampton, Milford Adams and Scott Charles kept their jobs.
Hampton was accused by two women he met on the job. Internal investigators referred both cases to the district attorney's office, but Hampton was never charged. He was not disciplined as a result of the first investigation, in 1990, according to his personnel record.
After the second woman came forward in 1991, then-Chief Philip Arreola fired Hampton. But the punishment was overturned by the Fire and Police Commission, which instead suspended him for 60 days.
The commission also overturned the firing of Adams, who was accused of allowing a woman to avoid arrest in exchange for performing a sex act in his squad car in 2004. The woman previously had been convicted of prostitution and drug charges.
After a jury found Adams not guilty at a criminal trial, the commission rescinded all internal discipline against him, leaving him with a clean employment record.
The commissioners did not find the woman's testimony credible — in part because the jury in the criminal case did not believe her, according to their written decision.
The third officer, Charles, was accused of sexually assaulting a woman after he pulled her over for drunken driving in 1994, according to a summary of the internal investigation. The investigator concluded that Charles went into the woman's apartment "under the guise of ensuring her safety . . . and did have an act of sexual contact with her," the summary says.
The woman told investigators she was very intoxicated and may have blacked out during the assault. Charles told investigators the two sexually touched each other consensually and the woman was not unconscious at any point, the summary says.
Investigators expected Charles would be criminally charged with misconduct in public office, the summary says. But he was not.
The summary does not contain an explanation of why Charles was not charged. The district attorney's records of the incident no longer exist because of a county policy that calls for the destruction of files in uncharged cases after 10 years, Deputy District Attorney James J. Martin wrote in response to an open records request from the newspaper.
Charles was suspended for 60 days, according to his personnel record. He avoided being fired by receiving satisfactory monthly reports from his supervisor for a year. Charles, who did not appeal the punishment to the commission, has since been promoted to sergeant.
Just because officers haven't been criminally convicted doesn't mean they are fit to serve, Sheriff Clarke said.
"That type of behavior is incompatible with working in law enforcement," he said.
Guilty, but still on force
Even when officers are successfully prosecuted, they don't automatically lose their jobs.
Nine officers on the force as of Oct. 1 have been convicted of crimes. Of those, seven were prosecuted by the Milwaukee County district attorney's office. One of them was later pardoned.
The other two convicted cops broke the law while in different jurisdictions.
One of them was John Corbett. He was sentenced to jail by a Fond du Lac County judge, but he didn't have to take a leave from the Police Department while he served his time.
According to a police report:
A sheriff's deputy spotted Corbett's car, alternately swerving across the centerline and weaving onto the shoulder, around 1:30 a.m. Nov. 21, 2010.
When the deputy pulled over the car, she saw two men passed out in the back seat, covered in vomit.
Corbett swayed and stumbled as he performed field sobriety tests such as walking a straight line and standing on one foot. His eyes were red and he smelled of alcohol.
Corbett told the deputy he drank just two beers, but a preliminary breath test showed a blood-alcohol level of 0.18, more than twice the legal limit for driving. Two knives hung from Corbett's belt, and a handgun was tucked into the passenger side visor.
Corbett's 13-year-old daughter was crying in the passenger seat. She told another deputy that after a day of deer hunting, she, her father, and some friends went to a bar called Mr. Lucky's. Because the adults were drunk, the 13-year-old was driving them back to Kiel, where they were staying.
Then she got lost, and her father took over.
Corbett did not respond to a request for comment.
He told internal investigators he had seven drinks over about 7½ hours. He had used the knives to field dress deer, and had forgotten the gun was in the car, he said. Corbett also told investigators he let his daughter drive for about a mile in a rural area, but said it was on the way to the bar, not after they left.
Corbett pleaded guilty to first-offense drunken driving with a child younger than 16 in the car, a misdemeanor. He was fined $1,059, and sentenced to 30 days in jail, which he was allowed to serve in Waukesha County. His driver's license was suspended for 15 months.
Department spokeswoman Anne E. Schwartz confirmed that Corbett, a desk sergeant, was on the job while on work release from jail. Corbett was on administrative duty, which means his police powers were suspended and he had to turn in his badge and gun. Practically speaking, however, his day-to-day tasks didn't change much, since desk sergeants generally do paperwork and answer phones and don't usually respond to emergency calls or make arrests.
Corbett was suspended from the department for 60 days beginning in June, 21/2 months after his jail term had ended.
The Police Department should not tolerate drunken driving or domestic violence by officers, said Carpenter, the state senator.
The small percentage of officers who engage in those behaviors or otherwise violate the law make the rest — who do a good job of protecting the city and serving as role models — look bad, he said. And those with a pattern of wrongdoing also could pose a liability for the city.
"Those people need to be screened out and they can't be allowed on the police force," he said. "It's just too dangerous."
Both Sides of the Law: Police Department ignores national standards for officers accused of domestic violence
Milwaukee Journal Sentinel: Web Edition Articles (WI)
October 30, 2011
When Robert Velez's wife left their home to escape his abuse, he used his Milwaukee police training — and his badge — to track her down.
First, Velez connected his missing wife to the Exel Inn hotel chain. He initially showed his badge at the Wauwatosa location, according to court and internal affairs records. Lying to the clerk, Velez said he was working undercover, looking for a suspect.
The woman wasn't checked in there, but the clerk located her in Oak Creek. She had alerted staff that her abusive husband — a cop — might come looking for her.
Nonetheless, the hotel desk clerk led Velez to his wife's room, knocked on the door, and told her to open it. If she didn't, the clerk said, he would use the master key.
She did.
Velez shoved past her into the room, where he found one of his fellow officers — whom he and his wife had known for about three years. Velez immediately began beating the man, telling him: "I'll break your f---ing neck! I'm going to kill you!"
When his wife tried to break up the fight, Velez punched her in the face. He put the man in a headlock and dragged him down the stairs, the records say.
When Oak Creek officers arrived, Velez also fought with them. He repeated the lie about working undercover a third time and pulled back his black leather jacket to show the gun in his waistband, according to a summary of the internal investigation.
As a result of the 2001 incident, Velez was arrested for battery while armed, domestic violence battery and misconduct in public office — charges that could have landed him in prison for 5 ½ years and barred him from possessing a gun for the rest of his life.
But that didn't happen. Not only did Velez avoid prison, he was suspended from the department for just six days.
Velez is one of at least 16 Milwaukee police officers disciplined after internal investigators concluded they had committed acts of domestic violence, according to internal affairs records obtained by the Journal Sentinel during a two-year investigation. They are among 93 officers on the force who have been disciplined for violating state laws or local ordinances, according to the newspaper's analysis, the first of its kind involving the Milwaukee police.
INTERACTIVE DATABASE: Search officers and their case histories
Department leaders don't follow national standards on how to handle accusations of domestic violence against officers. Prosecutors often charge them with lesser crimes — or no crimes at all. As a result, officers who abuse their spouses or romantic partners are allowed to keep their jobs, carry loaded weapons and respond when battered women call for help, the newspaper found.
Law enforcement agencies that tolerate abusive officers endanger victims, erode the community's trust and leave themselves vulnerable to lawsuits, said Judy Munaker, an attorney who spent five years training cops about officer-related domestic violence through the state Office of Justice Assistance.
'Protecting their own'
"They see it as protecting their own, but it's corruption," she said. "They need to stop protecting their own and start protecting victims."
It is impossible to tell how many domestic incidents the Milwaukee Police Department has not investigated. Last year, for example, the wife of a high-ranking commander in the Professional Performance Division, which investigates officer misconduct, called 911 in fear of her husband.
No one wrote up a report, and department officials say a recording of the emergency call does not exist.
Just three of the Milwaukee officers disciplined for abusing their spouses or romantic partners, including Velez, ended up with criminal records — but none of those convictions was for a felony or misdemeanor domestic violence, crimes that would have ended their careers by stripping them of their right to carry firearms under federal law.
Prosecutors charged Velez with only misdemeanor battery, and he pleaded no contest.
Even though he later violated a court order by contacting the victim, Milwaukee County Circuit Judge Jean DiMotto sentenced Velez to a year of probation.
He spent three days in jail.
Officer Edward McCrary was convicted of disorderly conduct after he fought with his wife and choked her cousin. He was sentenced to one day in jail.
Sgt. Charles Cross was convicted of criminal damage to property for kicking in the door of the apartment he shared with his girlfriend. He was fined $500. Prosecutors offered him a deferred prosecution agreement on the charge of domestic violence-related disorderly conduct. He got treatment for depression and alcohol abuse and the charge was dismissed.
A fourth officer, Zebdee Wilson, now has a clean criminal record despite pleading guilty to violating a restraining order in 1994. His wife needed oral surgery after he punched and kicked her repeatedly in the face, court records say.
That conviction should have stopped Wilson from continuing to serve as a police officer after the federal law banning domestic violence offenders from carrying guns took effect in 1996. The ban was retroactive and applies no matter when the conviction occurred. There is no exception for police officers.
But then-Gov. Tommy Thompson pardoned Wilson, erasing his conviction and saving his career.
Another provision in the federal law allows officers to carry weapons on duty despite domestic abuse restraining orders if their employers allow it.
The Milwaukee Police Department does.
What's more, the department does not have a written policy on how to handle officer-involved domestic violence — a practice that goes against recommendations by both the International Association of Chiefs of Police and the state Department of Justice. The assistant chief who oversees officer performance and discipline, Darryl Winston, said in May he had not read the state's model policy, released by the Wisconsin Department of Justice in 2009.
INVESTIGATING AN OFFICER: A look at the complaint and review process
The model policy contains an educational component that discusses the causes of the problem and its impact on the community. It gives clear, step-by-step instructions for investigations, including lists of who should be called to the scene and what kinds of paperwork should be completed. The policy also addresses how departments should deal with abusive officers.
"Ignorance is no excuse," said David R. Thomas, an instructor at Johns Hopkins University in Baltimore, who helped write a model policy for the international association.
"If they're willing to look the other way on this type of criminal activity, where does it stop?"
Milwaukee Police Chief Edward Flynn and Milwaukee County District Attorney John Chisholm declined to discuss the issue with the Journal Sentinel.
In a written statement, Chief Deputy District Attorney Kent Lovern said prosecutors handle officer-involved domestic violence cases the same as any others.
"Domestic violence victims often are forced to struggle with interests in addition to their own personal safety, including children in the household and financial distress," he wrote. "Cases involving police officers are no different, and we evaluate those cases just as we evaluate domestic violence cases involving citizens of other occupations, with a goal of achieving an appropriate measure of accountability under the circumstances."
Certified letters to Velez, McCrary and Wilson were returned, and they did not respond to emails requesting comment. Cross, via email, declined to comment.
Velez received a meritorious service award in 2010 for dragging a burning trash bin away from a building and a crowd assembled for an immigration rights march.
He also provided support during a domestic violence awareness walk in the Latino community in 2006, according to a letter in his personnel file.
Wilson received the chief's superior achievement award in 1993, the year before his criminal conviction, for rushing into a burning building and waking seven people inside. In 2002, he received a commendation for disarming and arresting a dangerous suspect.
Far above norm
Domestic violence is far more common among the families of police officers than among the rest of the population, according to the U.S. Department of Justice and the National Center for Women and Policing. At least 40% of police families are affected by domestic violence, as opposed to an estimated 10% in other households.
Because of the unique stresses that result from confronting dangerous suspects, analyzing bloody crime scenes and witnessing breakdowns in the criminal justice system, police officers also experience higher rates of suicide and post-traumatic stress disorder, experts say. If officers don't learn to manage their stress and to separate their jobs from their personal lives, the results can be disastrous.
The very training that makes someone a good police officer can produce a frightening abuser, experts say.
For example, officers are trained to take control of every situation. They learn to interrogate suspects and to conduct effective surveillance. They learn how to pursue suspects and physically restrain them — in many cases, without leaving a mark. When they use force, they know how to provide legal justification.
Friends who work in the criminal justice system also tend to believe abusive officers who label their victims crazy or dishonest, according to Thomas.
"He's a master manipulator," Thomas said of an abusive officer. "He's a batterer with a PhD."
And a gun.
The law that prohibits people convicted of domestic violence from carrying firearms, known as the Lautenberg Amendment, has been counterproductive when it comes to police officers, according to Diane Wetendorf, an Illinois-based consultant who has specialized in officer-involved domestic violence for the past 15 years.
Instead of taking guns away from abusive officers across the nation, it has made prosecutors — who work closely with cops every day — more lenient with them for fear of ruining their careers, she said.
Take the case of McCrary, now a detective.
On July 14, 1998, McCrary's then-wife fled in fear to a neighbor's house after he threw books and disconnected the phone wires when she tried to call 911, court records say. She was six months pregnant at the time.
Prosecutors agreed not to charge McCrary with a crime as long as he got counseling and stayed out of trouble. The Milwaukee County district attorney's office has offered that type of deal, known as a deferred-prosecution agreement, to at least five other current Milwaukee police officers accused of domestic violence, according to the newspaper's analysis.
But McCrary didn't live up to his side of the bargain, according to a summary of the internal investigation. He didn't go to therapy.
And in October 1998, he got into another argument with his wife. When her cousin intervened, McCrary grabbed the woman by the neck, according to a criminal complaint.
"He choked her, lifted her up off the floor, and started moving her backwards toward the front door," the complaint says.
He yelled obscenities at the woman, pushed her out the door and threw out her clothes and shoes behind her, the complaint says. She had scratches on her neck and her hand was bleeding.
Because McCrary fell short of completing the deferred prosecution deal, prosecutors charged him with domestic violence-related disorderly conduct in connection with the July incident. He also was charged with battery against his wife's cousin as a result of the October fight.
But under a plea agreement, the charge involving his wife was dropped and the battery charge involving her cousin was reduced to misdemeanor disorderly conduct.
McCrary pleaded no contest. Because he was not convicted of a charge in which his wife was a victim, he was not prohibited from carrying a firearm and kept his job.
Milwaukee County Circuit Judge Dominic Amato sentenced McCrary to a single day in jail.
At the sentencing hearing, McCrary apologized and said he accepted responsibility for his actions, according to a transcript.
"I didn't want it to go this far," he said. "Me and my wife, we decided that we weren't going to be together, we should have just parted without incident."
McCrary initially didn't go to counseling because his insurance didn't cover it, but he later started treatment, his attorney, Steve Kohn, said at the hearing.
McCrary was suspended from the department for 15 days for breaking the rule against violating laws or ordinances. He did not respond to interview requests. His ex-wife declined to comment. Her cousin could not be reached.
Lovern, chief deputy in the district attorney's office, said the plea deal in the cousin's case was done "in accordance with the wishes of the victim." His written statement did not address the charge involving McCrary's wife or explain why he was offered deferred prosecution in the first place.
Police exemption
Domestic violence injunctions, more commonly known as restraining orders, also don't keep guns away from abusive officers in Milwaukee — and don't always lead to department discipline.
Most people with restraining orders against them lose the right to possess firearms. But the Milwaukee Police Department allows officers in that situation to "check out" their duty weapons at the beginning of each shift and return them afterward.
That is a constant source of stress for Jill Glidewell, who recently divorced Milwaukee police Detective Herb Glidewell.
"He said if I ever told the things he'd done, I'd disappear," she told the Journal Sentinel.
Nonetheless, she testified in an attempt to get a restraining order against him, detailing abuse dating back to 2006.
Milwaukee County Court Commissioner Dean B. Zemel granted the restraining order based on an incident that occurred Nov. 1, 2008, in which Jill Glidewell — a police officer herself — ended up with a damaged rotator cuff.
The week before, she had told her husband she was pregnant with their second child.
"He viciously attacked me while I was in bed," she testified later. "He got on top of me. With all his weight, he was picking me up and slamming me down as hard as he could on the bed, over and over, more than 10 times. I was screaming for him to stop and get off of me. That it was hurting me. "
She grabbed the phone, but he yanked it out of her hand and started beating the barking dog with it, she said. Taking the dog and her baby daughter, she drove to the District 6 police station, barefoot, at 3 a.m.
She was too embarrassed to go inside. A friend who was on duty came out to comfort her, but didn't push her to file a report, she said.
Herb Glidewell appealed the commissioner's decision to grant the restraining order. He denied wrongdoing at a hearing before Milwaukee County Circuit Judge Francis T. Wasielewski, according to court transcripts.
"We argued often, yes," Herb Glidewell testified. "And I'm sure on all those dates, we probably did have disputes; but never, at one point, ever, was it physical. I've never harmed her, never touched her, hit her, pushed her, any of those things."
At the end of a two-day hearing, Wasielewski, who has since retired, left the restraining order in place. It is in effect until 2013. He based his decision on medical records, which showed Jill Glidewell sought treatment for the shoulder injury and told her doctor it was the result of domestic violence, the transcripts say.
Herb Glidewell is among seven police officers who have had restraining orders imposed against them by a commissioner. Of those, three orders were later dismissed — two by the women and one by a judge when the woman didn't show up at an appeal hearing.
In another 11 cases, officers' spouses or romantic partners filed for restraining orders that were not granted by a commissioner in the first place, either because there was not enough evidence or because those who filed for them did not follow through with the cases. One was later granted by a judge after the victim appealed.
But Herb Glidewell's attorney, Barry Book, characterized the burden of proof for restraining orders as extremely low. In the Glidewell case, the law allowed the commissioner and the judge to "err on the side of caution," he said.
Book said the timing of the application for the restraining order was suspect, since his client was served with it the same day he signed away his rights to the couple's house in a pending divorce.
Jill Glidewell says she would have done it sooner, but he was out of town. He wanted his name off the house because he already offered to purchase another one, she said. Property records back up her assertion, showing Herb Glidewell closed on a new house five days later.
The attorney also questioned Jill Glidewell's continued assertions of abuse, saying he suspected she was using them as ammunition in a contentious custody battle.
"I do think there are some extenuating circumstances in this particular case that call Ms. Glidewell's credibility into question," Book said. "The divorce proceedings lasted about 21/2 years. It was very acrimonious from the beginning."
Nearly two months before she sought the restraining order, Jill Glidewell discussed her then-husband's abusiveness with internal affairs, alleging the same mistreatment she testified about in court.
After an investigation, the Police Department referred the case to the district attorney's office. Local prosecutors often review cases against Milwaukee police officers themselves. But in this case, they asked Chris Freeman, then a Dane County assistant district attorney, to serve as a special prosecutor.
"The Glidewell case was referred to Dane County due to the appearance of a conflict, although to our knowledge, no actual conflict existed," Lovern's written statement says. It does not say what the perceived conflict was.
In a letter to the department, Freeman, who has since been promoted to deputy DA, said "three major incidents stood out as strongest for charging." One was the episode in which Jill Glidewell's shoulder was injured. In another, Herb Glidewell grabbed her by the throat and pushed her into a wall, Jill Glidewell said. The third "was an incident in which Herb Glidewell started a fire on a grill in front of the residence while he was intoxicated," Freeman's letter says. "The fire raged to such a degree that the wheels of the grill melted into the pavement."
To corroborate her statements, Jill Glidewell provided the medical records regarding her shoulder, as well as pictures of redness on her neck and of the melted grill.
Freeman did not charge Herb Glidewell with a crime.
"The reason for the lack of charges does not stem from the belief that these events did not occur as Jill Glidewell describes, but that I do believe based on the entirety of the record and reports that this case could not be proved beyond a reasonable doubt," Freeman wrote in the letter, which explained his decision to the Police Department.
Herb Glidewell was not disciplined, and his personnel record remains spotless.
His ex-wife is frustrated that he hasn't been held accountable.
"He told me, 'If you ever leave me or try to fight me, I'll ruin you,' " she said. "Criminals are afforded the right to a fair and speedy trial. Why aren't victims of domestic violence?"
Herb Glidewell primarily works burglaries and robberies, according to Book. He carries his gun while on duty. If the department ever asked Glidewell to work domestic violence cases, his attorney said that wouldn't be a problem.
"I think he is able to separate his personal situation from his professional obligations," Book said. "I have no question in my mind that if he were to investigate a domestic violence case he would do the right thing. If he had to put a dad under arrest, he would do it."
Jill Glidewell said she has never feared a suspect as much as she fears her ex-husband.
"This is the most dangerous thing I've ever done," she said of leaving him. "I live in fear every day that someone is going to shoot up my house."
Police departments that give abusive officers access to their guns need to be aware of that possibility, according to Thomas, of Johns Hopkins.
"People think you go on duty and all of the sudden there's a protective shield around you and you're not going to do anything stupid anymore? It's just ignorant," he said.
Higher standard needed
While officers' attitudes about domestic violence in the community have evolved over time, most police around the country still don't take it seriously when the perpetrator is one of their own, according to experts. Handling such accusations the same as any other criminal allegation against police, as Milwaukee does, isn't good enough, experts say.
Because responding officers can be biased, one of the goals of a model policy on officer-involved domestic violence is to remove their discretion, said Thomas, who retired from the Police Department in Montgomery County, Md., in 2000. Following written guidelines step by step protects the victim, the investigator and the alleged perpetrator, he said.
"If I'm accused of being involved in this activity and I didn't do it, I want a good, clear exhaustive investigation so I can be exonerated," he said.
That didn't happen in the case of Lt. David Salazar, a supervisor in the Milwaukee police's Professional Performance Division, which investigates wrongdoing by officers.
After receiving a tip that Salazar's wife called 911 during a fight with him, the Journal Sentinel made a public records request for audio recordings of all calls associated with his home address and any police reports affiliated with them.
No reports were written, according to the department's response.
The department provided only a dispatcher's log of the June 2010 incident, which confirms that Salazar's wife called for help during an argument over suspicions he was cheating. She told the dispatcher he was intoxicated and trying to break down the door.
The newspaper requested the information in August 2010. Three months later, the department said the recording of the call had been inadvertently purged from the system.
Then, in January, the story changed.
Department spokeswoman Anne E. Schwartz said that actually, the system malfunctioned and no emergency calls were recorded the entire day Salazar's wife called 911.
The supervisor called to the scene, Capt. Aaron Raap, determined Salazar "had not operated a motor vehicle, had not had physical contact with the caller and did not appear to be intoxicated," Schwartz said in an email.
Raap decided an internal investigation was not necessary, and Salazar was not reassigned or disciplined as a result of the incident, Schwartz said.
"The determination was based on Capt. Raap's years of training and experience," she said. "Police officers use their discretion every day in every situation."
The state's model policy says if no arrests are made, "the on-scene supervisor shall submit a written report explaining any and all reasons why an arrest was not made or a warrant was not sought."
Allowing officers to hide behind discretion in cases such as Salazar's is "unacceptable," Thomas said.
"It's saying we're just not going to uphold the law with our own the way we do with a citizen," he said. "We should, in law enforcement, be held to a higher standard because we're supposed to enforce the law. . . . Otherwise, it's the fox watching the henhouse."
Neither Salazar — who received a unit service award in 2009 as part of the department's homicide division — nor his wife responded to certified letters seeking comment.
Salazar continues to supervise investigations of other officers accused of wrongdoing.
Still investigating cases
Officers such as Velez, convicted of the beating in the hotel room, continue to investigate domestic violence, the newspaper's investigation found. In April alone, Velez responded to domestic disputes five times — an average of more than once a week, according to the most recent records released to the newspaper.
That's another direct contradiction to the recommendations in the state's model policy. It's a recipe for destroying community confidence and placing victims at risk, the policy says.
"There are grave concerns regarding how officers who commit the crime of domestic violence respond to domestic violence calls in the community," the policy says. "Obviously, their personal conduct affects their capability to effectively deal with these situations impartially. Moreover, an officer, sympathetic to an abuser, may not adequately protect a victim."
Munaker, the former Office of Justice Assistance trainer, agreed.
"We can't let abusers investigate this. We just can't," she said.
Flynn has said fighting domestic violence is a priority for the department. In February, he rolled out a new initiative to combat the problem, targeting repeat offenders and calling for greater protection of frequent victims.
"A violent assault is a violent assault, and that warrants justice," he told department supervisors at the time.
John Diedrich and Ben Poston of the Journal Sentinel staff contributed to this report.
2012: Lautenberg DV Gun Ban - News Articles And Reports
Gun-legislation comment more than a shot in the dark
Star-Ledger, The (Newark, NJ)
January 9, 2012
https://infoweb.newsbank.com/
STATEMENT:
"We haven't had any legislation which took away one gun in the past 20 years from any body in this country-not one."
DATE: Nov.16,2011
CONTEXT: Bill Pascrell comment during a U.S. House hearing.
RULING: Half True. The statement is Partially accurate but Leaves out important details Or takes things out of context.
There's another gun battle heating up in Congress that divides politicians not only on the right to bear arms, but to carry them across state lines without penalty.
And Rep. Bill Pascrell (D-8th Dist.) doesn't want that to happen.
During a Nov. 16 House hearing, Pascrell spoke against the proposed National Right-to-Carry Reciprocity Act of 2011. If H.R. 822 becomes law, states that allow people to carry concealed weapons would be required to recognize other states' valid concealed-carry permits. At least 40 states already have some form of reciprocity for out-of-state concealed carry permits. The bill has been referred in the Senate to the Committee on the Judiciary.
In opposing the bill, Pascrell said, "We haven't had any legislation which took away one gun in the past 20 years from anybody in this country -- not one."
Pascrell's spokesman, Paul Brubaker, said the congressman was specifically referring to federal legislation, noting that his point "would have been clearer had he specified that he was referring to nonviolent, law-abiding gun owners."
Politi Fact New Jersey found Pascrell's argument somewhat on target.
But two gun-rights organizations we spoke with say two laws do take guns from people.
Larry Pratt, executive director of the Virginia-based Gun Owners of America, and Joe Waldron, legislative director for the Washington state-based Citizens Committee for the Right to Keep and Bear Arms, said a provision of the Violent Crime Control and Law Enforcement Act of 1994 banned semiautomatic weapons with detachable devices. That, in effect, takes a weapon away from someone who wants it, they said.
Brubaker disagreed.
"The 1994 federal assault weapons ban prohibited for 10 years the possession, transfer and manufacturing of semi-automatic assault weapons and large-capacity ammunition feeding devices," Brubaker said in an e-mail. "However, there was a grandfather clause in the bill, and semi-automatic assault weapons that were legally owned before the ban went into effect were NOT restricted. Those weapons could be transferred and sold within the confines of federal and state laws. "¦ Neither the assault weapons ban, nor any federal prohibition of particular guns from being imported, resulted in the federal government taking legally owned guns away from Americans."
Waldron also pointed to the Domestic Violence Gun Ban, more commonly called the Lautenberg Amendment for its author, Sen. Frank Lautenberg (D-N.J.). The amendment to the Omnibus Consolidated Appropriations Act of 1997 bans anyone convicted of a misdemeanor domestic violence offense from owning or possessing a firearm, even if the person had it before the conviction. The law requires that person to immediately surrender the weapon -- but not necessarily to law enforcement.
That person's gun and ammunition should be transferred to a "third party who may lawfully receive and possess them, such as their attorney, a local police agency, or a federal firearms dealer," according to the federal Bureau of Alcohol, Tobacco, Firearms and Explosives website. "In addition, such firearms and ammunition are subject to seizure and forfeiture."
The result of the Lautenberg Amendment is "people have been disarmed of weapons within the past 20 years and they've been sent to prison when they've been caught in possession," Waldron said.
The consequences of one's actions are central to the issue, according to ATF spokeswoman Ginger Colbrun. As an example, she said that if a gun owner is convicted of misdemeanor domestic violence, the person's actions are to blame for him no longer being allowed to possess a weapon -- not the law.
"It really is semantics when you look at it," she said.
But the person still has to give up the gun and to some, that's taking it away.
Our ruling
Pascrell said there hasn't been any legislation in the past 20 years that took a gun from anyone in the United States. Gun advocates disagree, pointing to the federal crime bill and the Lautenberg Amendment. But the facts are a gun can't be taken from someone who never had it, and having to surrender a gun because of a misdemeanor domestic violence conviction can be construed as it being taken away. We rate Pascrell's claim Half True.
Senate Appropriations Subcommittee on Defense Hearing
FY13 Department of the Army Budget Request
March 22, 2012
Government Press Releases (USA)
https://infoweb.newsbank.com/
Section 519(b)
*Below the zone active component officers serving in reserve component assignments at time of consideration.
**Below-the-zone active component officers not serving in reserve component assignments at time of consideration.
8. The number and distribution by grade, shown for each State, of personnel in the initial entry training and non-deployability personnel accounting category established under section 1115 of ANGCRRA for members of the Army National Guard who have not completed the minimum training required for deployment or who are otherwise not available for deployment. (Included is a narrative summary of information pertaining to the Army Reserve.)
In FY 11, the ARNG had 49,454 Soldiers considered non-deployable for reasons outlined in Army Regulation 220-1, Unit Status Reporting (e.g., initial entry training; medical issues; medical non-availability; pending administrative or legal discharge; separation; officer transition; non-participation or restrictions on the use or possession of weapons and ammunition under the Lautenberg Amendment). The National Guard Bureau (NGB) maintains the detailed information.
In FY 11, the Army Reserve had 34,180 Soldiers considered non-deployable for reasons outlined in Army Regulation 220-1, Unit Status Reporting (e.g., initial entry training; medical issues; medical non-availability; pending administrative or legal discharge; separation; officer transition; non-participation or restrictions on the use or possession of weapons and ammunition under the Lautenberg Amendment). The U.S. Army Reserve Command (USARC) maintains the detailed information.
Lautenberg Calls for Passage of Violence Against Women Act
YouTube
April 26, 2012
On April 26, 2012, U.S. Senator Frank R. Lautenberg (D-NJ) urged his Republican colleagues to vote for reauthorization of the Violence Against Women Act (VAWA) to support victims of domestic violence.
Senator Frank Lautenberg:
"Saving the lives of women should be above politics. The Violence Against Women Reauthorization Act passed the Senate unanimously in 2000 and 2005. And it's incomprehensible that we would turn our backs on those who are so abused. I asked those who would vote against passing this bill, think about your own families; think about your spouse; think about your daughters; think about your children.
Apparently, some of our colleagues would vote against protecting women if it means that they also have to protect immigrants and people in the gay and lesbian community.
I call on our colleagues on the other side of the aisle. Join us. Join us on our families. We know that you care. Show it. Show it in this vote we're about to take. Send a clear message that this country does not tolerate brutality against anyone. And show it, you know with a little bit of courage stand up and say 'no I want to protect my family. I want to protect those who are abused."
Senate Approves Violence Against Women Reauthorization Act
Lautenberg Delivers Remarks on Senate Floor Shortly Before Passage
Government Press Releases (USA)
April 27, 2012
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WASHINGTON, D.C. - Speaking on the Senate floor today shortly before passage of the Violence Against Women Act (VAWA) reauthorization bill, U.S. Senator Frank R. Lautenberg (D-NJ) urged his colleagues to vote for the bill and support victims of domestic violence. The reauthorization extends critical programs and updates the law by including non-discrimination protection for all victims, regardless of their race, color, religion, national origin, sex, gender identity, sexual orientation, or disability. The reauthorization was approved in the Senate this evening, by a vote of 68-31 and it must now be approved in the House.
In his floor speech before the vote, Lautenberg said, "Saving the lives of women should be above politics. The Violence Against Women Reauthorization Act passed the Senate unanimously in 2000 and 2005--and it's incomprehensible that we would turn our backs on those who are abused. I call on my colleagues on the other side of the aisle: join us and our families. Send a clear message that this country does not tolerate brutality against anyone."
The Violence Against Women Act was originally enacted in 1994 in response to the prevalence of domestic and sexual violence and its impact on the lives of women. The law provides federal funding for programs and initiatives designed to help victims. It has been reauthorized twice--in 2000 and 2005--with unanimous Senate approval. The most recent extension expired in 2011. A reauthorization is needed to ensure that local communities and law enforcement agencies get the full resources they need to fight domestic violence.
In New Jersey, more than 74,000 domestic violence offenses were reported by the police in 2010. Since 2006, nearly $30 million in federal funding has been provided to more than 40 domestic violence programs in New Jersey through the Violence Against Women Act.
Senator Lautenberg has a long history of protecting victims of domestic violence. He is the author of the "Domestic Violence Gun Ban," a law that prohibits individuals convicted of domestic violence misdemeanors from buying or possessing firearms. Since it was enacted in 1996, the law has succeeded in keeping guns out of the hands of abusers on approximately 200,000 occasions.
Despite law, domestic abusers can buy guns
Star-Ledger, The (Newark, NJ)
May 3, 2012
https://infoweb.newsbank.com/
U.S. Sen. Frank Lautenberg pushed through a law 15 years ago that prohibits people convicted of domestic violence from acquiring a gun. But the New Jersey Democrat said there are still avenues for those individuals to arm themselves.
Lautenberg spoke April 26 on the Senate floor in favor of reauthorizing legislation that supports efforts to help victims of domestic violence and sexual abuse. During his speech, he said even more needs to be done in this area.
"Let me be clear. It would be tragic to turn our backs on victims and the people who dedicate their lives to supporting them. While we can't stop all malicious acts, we can do more to keep women and their families safe," Lautenberg said. "In 1996, I wrote the domestic violence gun ban, (which) forbids anyone convicted of domestic violence from getting a gun.
"Since the law's inception, we have kept guns from falling into violent hands on over 200,000 occasions. For instance, in our gun laws we're allowing domestic abusers to sidestep this ban on getting a gun. The loophole allows a convicted abuser to walk into a gun show and walk out with a gun, no questions asked."
PolitiFact New Jersey wondered if a gun purchase is that simple for someone who, under federal law, isn't allowed to have one.
"Yes," said James Jacobs, director of the Center for Research in Crime and Justice at New York University School of Law. It's "that simple."
Lautenberg was describing what is commonly known as the "gun show loophole." The Brady Handgun Violence Prevention Act, or Brady Act, requires all federally licensed firearms dealers to run a background check on potential customers to ensure they are not prohibited from owning a gun.
But private sellers without a federal license don't have to meet the same requirement. Though this exception is known as the "gun show loophole," unlicensed individuals don't have to perform background checks whether they are selling a gun at a gun show or somewhere else.
"Of course, a prohibited possessor can also buy from a private party outside of a gun show with no paperwork or background check," said Gabriel Chin, a professor at the University of California's Davis School of Law. "But the trick is that many of the private sellers at gun shows are really unlicensed full-time dealers, so they may be selling scores or hundreds of guns a year with no paperwork. Because of the volume, they are much more reliable sources of firearms for prohibited possessors."
As a result of the loophole, "it's possible a convicted felon could go into a gun show and buy a firearm without ever being checked," said Chris Bombardiere, public information officer at the Newark Field Division of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
That isn't possible everywhere, however, because some states have passed more restrictive gun laws.
According to the Brady Campaign to Prevent Gun Violence, 17 states, including New Jersey, "have either closed the gun show loophole or have taken action to close the loophole."
Our ruling
Lautenberg said that "in our gun laws we're allowing domestic abusers to sidestep this ban on getting a gun. The loophole allows a convicted abuser to walk into a gun show and walk out with a gun, no questions asked."
That statement is true because federal law does not require individuals who are not federally licensed to perform background checks before a gun transaction, whether they are at a gun show or not.
Though laws can vary from state to state and some states have passed laws that have essentially closed that loophole, this does not diminish Lautenberg's statement. He was speaking on the Senate floor about federal law.
We rate the statement True.
VERONA NATIVE KILLED WHILE SAVING GIRLFRIEND
Herald News (Woodland Park, NJ)
July 23, 2012
https://infoweb.newsbank.com/
Jacci Fry survived because she played dead while her co-worker next to her succumbed to gunfire. Alexander Teves died under a hail of bullets while protecting his girlfriend.
More about the lives of the two New Jersey natives emerged Sunday from grieving relatives and friends still trying to cope with the midnight madness at a Colorado movie theater when a gunman unleashed a barrage of bullets.
Fry, 23, a native of Sussex County and an aspiring nurse, was recuperating in a hospital Sunday with 33 pieces of shrapnel in her legs and lost teeth when shrapnel punctured her cheek, said Jamie Fry of Byram Township, her younger sister.
Teves, 24, born in Verona, covered his girlfriend with his own body when the bullets started flying. "He protected his girlfriend," said Barbara Slivinske, an aunt who lives in East Brunswick. "He pushed her to the ground and protected her and saved her. He's a hero."
Details of one of the deadliest shooting sprees in U.S. history began to unfold Sunday as police in Aurora, Colo., continued to investigate the massacre.
A 24-year-old graduate school dropout, James Holmes, was arrested outside the movie theater where he is accused of shooting 70 people early Friday at a midnight premiere of the new Batman movie, "The Dark Night Rises." Twelve of the victims died.
Teves spent the first 13 years of his life in Verona, attending elementary school there. When he was a teenager, his family moved to Phoenix, where his father transferred for work. He graduated from high school there, and attended college locally.
He pursued a master's degree in psychology counseling at the University of Colorado in Denver, where he met his girlfriend in that program. The two graduated in May, but Teves wasn't done with school; he was planning to study physical therapy, his aunt said.
He was someone, the aunt said, who always wanted to help others.
"A wonderful person," Slivinske said. "He was very good to everyone. Everyone loved him."
One friend, identified only as Caitlin, attended the movie with Teves and his girlfriend. She escaped the carnage without injury, but worried for hours about whether Teves and his girlfriend made it out safely.
Taking to Twitter, she tweeted, "Everybody please pray for my friend Alex." By midmorning she learned of his death. "Alex Teves was one of the best men I ever knew," she tweeted. "The world isn't as good a place without him," adding that he died a hero.
Jacci Fry, meanwhile, remained hospitalized Sunday and requires a walker to get around, her sister said.
Jamie Fry said doctors repaired her sister's cheek but may not be able to remove all of the shrapnel in her legs because of their location or because the pieces are too small. She said her sister is using a walker to get around and that their parents are with her.
"They haven't started working on the legs yet, which is going to be the tough part," Jamie Fry said.
Jacci Fry, who moved to Denver with a friend five months ago after graduating from Dover Business College, was at the theater with about 15 co-workers from a local Red Robin restaurant, where she was the head waitress.
The group was sitting toward the back of the theater when Jacci Fry told her sister that she heard what she described as a "warning shot" from the gunman.
Two seconds later, her co worker Alex Sullivan was lying next to her.
"She nudged him to see if he was awake," Jamie Fry said. "She didn't know if he was unconscious at that point or if he had already passed away. She was playing dead, and also in a lot of pain."
Alex Sullivan, who also worked at Red Robin, was killed in the massacre. He was celebrating his 27th birthday and would have celebrated his first wedding anniversary Sunday, according to media reports.
Holmes was being held in solitary confinement pending his first court appearance Monday.
The deadly rampage prompted New Jersey's senior U.S. senator to renew his call for better gun safety laws.
"[W]e need to start today on efforts to prevent the next attack," Democratic Sen. Frank Lautenberg said in a statement Sunday.
Lautenberg urged Congress to pass legislation he introduced last year to ban the sale of high-capacity ammunition clips. He said the National Rifle Association, which has successfully fought to block a host of proposed gun restrictions, to "join with us and the rest of America on sensible gun safety reform to stop the violence."
"No sportsman needs 100 rounds to shoot a duck," the senator said, "but allowing high-capacity magazines in the hands of killers like James Holmes and Jared Loughner puts law enforcement at a disadvantage and innocent lives at risk."
Loughner is charged in the Oct. 31 deadly shooting in Tuscon, Ariz., that left six people dead and more than a dozen others injured, including U.S. Rep. Gabrielle Giffords. Police have said Loughner used an oversized gun clip, allowing him to fire 31 bullets without stopping to reload.
Authorities say Holmes used an AR-15 assault rifle, a Remington 12-gauge shotgun and a 40-caliber Glock handgun to open fire on moviegoers. Aurora police said a 100-round drum magazine was recovered at the scene, which has a capacity to fire 50 to 60 rounds a minute.
Lautenberg's high-capacity ammunition clip ban was among a set of three gun control bills he introduced in January 2011. The other pieces of legislation would ban sales of guns to anyone on a terror watch list and to anyone at a gun show without a criminal background check.
Lautenberg also sponsored the Domestic Violence Gun Ban, which bans the shipment, transport, sale or ownership of guns by individuals convicted of domestic violence. Since 1996, the law has kept guns out of the hands of spousal and child abusers 200,000 times, according to the senator's office.
Assault rifles like the AR-15 are illegal in New Jersey, which has strict rules on where gun owners can carry their weapons. Getting a gun permit in New Jersey also is a lengthy process, authorities said.
Lautenberg on the Need for Gun Safety Reforms
Sen. Frank R. Lautenberg (D-NJ) News Release
Government Press Releases (USA)
July 24, 2012
https://infoweb.newsbank.com/
WASHINGTON, DC--U.S. Senator Frank R. Lautenberg (D-NJ) released the following statement today on the need for gun safety reforms:
"Far too many American families have felt the horror of gun violence. Our hearts are still heavy with sadness after the tragedy in Colorado, but we need to start today on efforts to prevent the next attack. We should begin by passing my legislation to ban the sale of high-capacity gun magazines," Lautenberg said. "No sportsman needs 100 rounds to shoot a duck, but allowing high-capacity magazines in the hands of killers like James Holmes and Jared Loughner puts law enforcement at a disadvantage and innocent lives at risk. The NRA should join with us and the rest of America on sensible gun safety reform to stop the violence."
Senator Lautenberg is a leader in Congress for responsible gun safety measures. Last year, Lautenberg introduced common-sense legislation to ban high-capacity ammunition magazines. Lautenberg also is the author of two bills aimed at closing significant loopholes in U.S. law--the "gun show loophole" and the "Terror Gap"--that make it easier for criminals and terrorists to obtain guns and explosives to carry out their crimes.
Senator Lautenberg authored the Domestic Violence Gun Ban, which bans the shipment, transport, sale or ownership of guns by individuals convicted of domestic violence. Since it was enacted in 1996, the law has succeeded in keeping guns out of the hands of spousal and child abusers on approximately 200,000 occasions.
On Senate Floor, Lautenberg Calls for Real Action on Gun Reform
Sen. Frank R. Lautenberg (D-NJ) News Release
Government Press Releases (USA)
July 25, 2012
https://infoweb.newsbank.com/
WASHINGTON, DC--During a floor speech on the Senate floor yesterday evening, U.S. Senator Frank R. Lautenberg (D-NJ) called for real action on gun reform:
Senator Lautenberg is a leader in Congress for responsible gun safety measures. Last year, Lautenberg introduced common-sense legislation to ban high-capacity ammunition magazines. Lautenberg also is the author of two bills aimed at closing significant loopholes in U.S. law--the "gun show loophole" and the "Terror Gap"--that make it easier for criminals and terrorists to obtain guns and explosives to carry out their crimes. Additional information about Lautenberg's common-sense gun safety reforms can be found here.
Senator Lautenberg authored the Domestic Violence Gun Ban, which bans the shipment, transport, sale or ownership of guns by individuals convicted of domestic violence. Since it was enacted in 1996, the law has succeeded in keeping guns out of the hands of spousal and child abusers on approximately 200,000 occasions.
Office of the Florida Attorney General Issued the Advisory Legal Opinion - AGO 2012-29
Targeted News Service (USA)
September 21, 2012
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TALLAHASSEE, Fla., Sept. 18 -- The office of the Florida Attorney General issued the following advisory legal opinion:
Number: AGO 2012-29
Date: September 18, 2012
Subject: Weapon possession, nolo contendere plea
Major General Emmett R. Titshaw, Jr.
Florida National Guard
Office of the Adjutant General
Post Office Box 1008
St. Augustine, Florida 32085-1008
RE: FIREARMS--WEAPONS--CRIMES--DOMESTIC VIOLENCE--plea of nolo contendere with adjudication withheld as conviction for barring possession of a firearm. ss. 790.06, 790.065, and 790.233, Fla. Stat.
Dear Major General Titshaw:
You have asked this office to comment on the following question:
Does a plea of nolo contendere to a misdemeanor charge of domestic violence with adjudication of guilt withheld and a term of probation imposed constitute a conviction for purposes of barring an individual from possessing a firearm or weapon pursuant to 18 United States Code section 922(g)(9)?
In sum:
An individual who has entered a plea of nolo contendere to a misdemeanor charge for domestic violence, with adjudication of guilt withheld and a term of probation imposed, would not be considered "convicted" for the purpose of permanently barring such individual from possessing a firearm pursuant to 18 United States Code section 922(g)(9).
You indicate that under 18 United States Code section 922(g)(9), the "Lautenberg Amendment," an individual who is "convicted" of a misdemeanor crime involving domestic violence is precluded from carrying or possessing a firearm.[1] Your letter states that in determining whether a "conviction" is a qualifying Lautenberg conviction, the controlling law is that of the state in which the proceedings for the domestic violence charge were held.
The pertinent provision in 18 United States Code section 922, states that it is unlawful for any person "who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce."[2] (e.s.) As you have noted, and the federal act appears to indicate, the determination of whether an individual has been "convicted" of a misdemeanor crime of domestic violence for purposes of the act is made by the laws of the jurisdiction in which the proceedings were held.[3]
In Florida, the term "conviction" is generally recognized as a "determination of guilt by verdict of the jury or by plea of guilty, and does not require adjudication by the court."[4] An adjudication of guilt following a plea of no contest also qualifies as a "conviction."[5] A no contest plea followed by withholding of adjudication of guilt, however, is not generally considered a conviction. In Garron v. State,[6] the Supreme Court of Florida concluded there was no conviction or guilty plea where a defendant had pled no contest and adjudication of guilt was withheld, stating:
"A nolo plea means 'no contest,' not 'I confess.' It simply means that the defendant, for whatever reason, chooses not to contest the charge. He does not plead either guilty or not guilty, and it does not function as such a plea."[7]
It has been recognized that the term "conviction" used in Florida law is "a 'chameleon-like' term that has drawn its meaning from the particular statutory context in which the term is used."[8] (e.s.) As a result, there have been departures from the general rule of no conviction when there is a nolo contendere plea with adjudication of guilt withheld. For instance, in Montgomery v. State,[9] the Supreme Court of Florida found that an individual is considered "convicted" when he or she enters a nolo contendere plea and adjudication of guilt is withheld, in the context of determining whether an individual has a prior conviction for sentencing guidelines purposes. For sentencing purposes, the Montgomery Court noted that Chapter 921, Florida Statutes, for purposes of the sentencing statute, defines "conviction" as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld."[10] (e.s.) The Court further noted that the Florida Rules of Criminal Procedure, used to implement the sentencing guidelines, define "conviction" as "a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended."[11] (e.s.) Following the plain language of the statute, the Court concluded that a no contest plea is a conviction, regardless of adjudication being withheld, for sentencing guideline purposes.[12]
It should be recognized, however, that the Montgomery Court did not overrule Garron, but rather acknowledged that the Legislature had created an exception to the general rule in Florida and made a nolo contendere plea with adjudication of guilt withheld a conviction for purposes of sentencing matters. No such similar definition or language recognizing a nolo contendere plea with adjudication of guilt withheld as a conviction is found in the statutes relating to misdemeanor domestic violence. Clearly, had the Legislature wished to make the entry of a nolo contendere plea with adjudication of guilt withheld tantamount to a conviction in such matters, it could easily have done so.[13]
Absent statutory language which treats a nolo contendere plea with adjudication of guilt withheld in a proceeding for a misdemeanor crime of domestic violence as a "conviction," I cannot say that Florida law makes such a situation a "conviction" for purposes of permanently barring possession of a firearm under the federal law at issue here. Had the Legislature so intended, it could easily have defined "conviction" for purposes of a misdemeanor domestic violence charge to include withheld adjudications.
Accordingly, it is my opinion that Florida law does not treat a plea of nolo contendere to a misdemeanor charge for domestic violence with adjudication of guilt withheld and a term of probation imposed as a "conviction" which would permanently bar an individual from possessing a firearm pursuant to 18 United States Code section 922(g)(9).
Sincerely,
Pam Bondi, Attorney General
[1] Your question is prompted by a situation in which a member of the Florida National Guard entered a plea of nolo contendere to misdemeanor battery under s. 784.03, Fla. Stat., and the court withheld adjudication and placed the service member on probation for 12 months. In this instance, the guard member was charged in Flagler County and the victim was the member's child.
[2] See 18 U.S.C.A. s. 922(g)(9). See also 18 U.S.C.A. s. 922(d)(9), making it 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 "has been convicted in any court of a misdemeanor crime of domestic violence."
[3] See 18 U.S.C.A. s. 921(a)(20). See United States v. Willis, 106 F.3d 966 (11th Cir. 1997) (Federal law states that "conviction" with the meaning of s. 922[g][1] to be determined in accordance with the law of the jurisdiction in which the proceedings are held, citing 18 U.S.C. s. 921[a][20]).
[4] See State v. Gazda, 257 So. 2d 242, 243-44 (Fla. 1971).
[5] Raydo v. State, 696 So. 2d 1225 (Fla. 1st DCA 1997), approved in part and quashed in part, 713 So. 2d 996 (Fla. 1998).
[6] 528 So. 2d 353 (Fla. 1988).
[7] Id. at 360.
[8] See Raulerson v. State, 763 So. 2d 285, 291 (Fla. 2000), citing State v. Keirn, 720 So. 2d 1085, 1086 (Fla. 4th DCA, 1998).
[9] 897 So. 2d 1282 (Fla. 2005). In Montgomery, the Court approved the appellate court's decision and disapproved a line of cases in which it was held that a no contest plea followed by a withhold of adjudication is not a "conviction" for sentencing purposes. See Negron v. State, 799 So. 2d 1126 (Fla. 5th DCA 2001); Batchelor v. State, 729 So. 2d 956 (Fla. 1st DCA 1999); State v. Freeman, 775 So. 2d 344 (Fla. 2d DCA 2000); and Garron v. State, 528 So. 2d 353 (Fla. 1988).
[10] See s. 921.0021(2), Fla. Stat. (2002).
[11] 897 So. 2d at 1284. See Fla. R. Crim. P. 3.701(d)(2).
[12] The Montgomery Court found that its conclusion was consistent with the legislative intent of s. 921.0021(2), Fla. Stat., as expressed by the statute's plain language that a "conviction" is a "determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld." 897 So. 2d at 1285.
[13] Cf. s. 784.03, Fla. Stat., providing that a person with a prior conviction for battery who commits a second or subsequent battery commits a felony of the third degree and defining "conviction" as "a determination of guilt that is the result of a plea or a trial, regardless of whether adjudication is withheld or a plea of nolo contendere is entered;" s. 775.13(1), Fla. Stat., defining "convicted" as "a determination of guilt which is the result of a trial or the entry of a plea of guilty or nolo contendere, regardless of whether adjudication is withheld" for purposes of registration of convicted felons; s. 517.161(1)(j), Fla. Stat., allowing denial of registration of a securities dealer who "[h]as been convicted of, or has entered a plea of guilty or nolo contendere to, regardless of whether adjudication was withheld, a crime against the laws of this state or any other state or of the United States or of any other country or government which relates to registration as a dealer, investment adviser, issuer of securities, associated person, or branch office; which relates to the application for such registration;" and s. 458.331(1)(c), Fla. Stat., stating as a grounds for denial of a medical license or disciplinary action, "[b]eing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine."
2013: Lautenberg DV Gun Ban - News Articles And Reports
Capps Introduces Domestic Violence Survivors Protection Act
Noozhawk (Santa Barbara, CA)
March 18, 2013
https://infoweb.newsbank.com/
Rep. Lois Capps, D-Santa Barbara, has introduced legislation to improve existing laws to protect domestic violence survivors from gun violence at the hands of their perpetrators.
Today, one-third of women homicide victims are killed by an intimate partner with a firearm. However, current law makes a distinction between protections from an abusive spouse and protections from an abusive dating partner.
The Domestic Violence Survivors Protection Act (House Resolution 1177) would rectify this inequality by extending federal firearms prohibitions on individuals subject to a domestic violence restraining order to dating partners. It also would extend the Lautenberg Amendment to dating partners, which would prohibit an individual convicted of a domestic violence misdemeanor from purchasing a gun.
The legislation is modeled after existing California law. On Monday, the New York Times detailed current loopholes in the law as they pertain to domestic violence and gun possession, in an article by Michael Luo titled “Ruled a Threat to Family, But Allowed to Keep Guns.”
“Our current legal system makes an arbitrary distinction between protections for dating partners and protections for spouses and ex-spouses, creating a loophole in our gun laws and increasing danger for domestic violence victims and survivors. This is wrong, and that’s why I authored the Domestic Violence Survivors Protection Act, which would ensure that all abused women, whether married or not, are provided the same protections,” Capps said. “In addition, this bill would provide greater security for domestic violence survivors by protecting them during the time when they are most at risk, in the minutes, hours and days immediately after leaving a violent partner. An abusive ex-boyfriend with a gun is no less lethal than an abusive ex-husband with a gun. It is time for federal law to join 18 states in recognizing that reality by passing the Domestic Violence Survivors Protection Act.”
Additionally, the Domestic Violence Survivors Protection Act would allow an emergency or ex-parte hearing to trigger a temporary prohibition on possession of a firearm. This change would allow a judge to issue a temporary protective order that would prohibit an abuser from possessing or purchasing a weapon in the days between the time when a woman leaves her partner, and the time at which a full hearing can be scheduled.
Women are most vulnerable in the hours and days immediately after leaving a violent partner, and these protective orders often serve as the first notification to an abuser that his partner is ending their relationship. Allowing temporary prohibitions on firearms would help protect women in the immediate aftermath of an incident and end of the relationship and before a full hearing can be conducted. Research has shown that these early moments in the separation are often the most dangerous to women leaving their abusers.
Last week at a hearing held by the House Gun Violence Prevention Task Force, Dr. Daniel Webster, director of the Center for Gun Policy and Research at the Johns Hopkins Bloomberg School of Public Health, testified about the importance of passing Capps’ legislation and addressing the existing loopholes in the background check system that allow abusers to purchase firearms.
“Research demonstrates that domestic violence perpetrators’ gun ownership increases the risk of homicide 5 times above that of perpetrators without guns, but that prohibiting abusers access to firearms while they are subject to a restraining order saves lives,” Dr. Webster said. “The Domestic Violence Survivor Protection Act will extend that protection to many who are in danger of armed and dangerous abusers.”
The Domestic Violence Survivors Protection Act has been endorsed by the Brady Campaign, the National Coalition Against Domestic Violence and Futures Without Violence.
“Inconsistent application of and loosely worded laws regulating the sale of guns has led to far too many homicides, whether as mass shootings or the nearly every day occurrence of victims of domestic violence being murdered by their abuser,” said Rita Smith, executive director of the National Coalition Against Domestic Violence. “Research shows that one out of three domestic violence victims are killed annually. Females whose partner threatens them with a gun or other weapon are 20 times more likely to be murdered than other abused female victims. One study shows that 40 percent of mass shootings that occurred between 2009 and 2012, the shooter targeted and killed a female intimate partner among other innocent bystanders.
“It is imperative that Congress act immediately and pass strong laws such as the Domestic Violence Survivor Protection Act. Law enforcement must be armed with sensible gun legislation in order to keep as many guns out of dangerous hands as possible. No more senseless violent gun tragedies. One is too many.”
Kiersten Stewart, director of Public Policy, Futures Without Violence, said: “Guns and domestic violence are a deadly combination, killing thousands of women and children every year. Congresswoman Capps’ bill is a critical step in ending domestic violence homicides. This is legislation that will save lives.”
Fayette sheriff's office sued over seized weapons
Owner wants guns returned
Lexington Herald-Leader (KY)
June 6, 2013
https://infoweb.newsbank.com/
A man filed a lawsuit Tuesday in federal court in an attempt to get back guns that he says the Fayette County sheriff's department seized from him nearly three years ago.
Eric Laubis of Lexington claims in the lawsuit filed in U.S. District Court for the Eastern District of Kentucky that the sheriff's department took 10 guns - including rifles, a shotgun and an 1860 Derringer handgun - from his home on June 14, 2010, when a domestic violence order was granted against him.
The DVO was dismissed on Dec. 15, 2010, but Laubis says in the lawsuit that he has been unable to get the sheriff's department to release the guns.
Sheriff Kathy Witt is named as the defendant in the lawsuit.
Mjr. Jay Pittman, public information officer for the sheriff's office, said late Tuesday that Witt had not seen the lawsuit and did not have any comment on it.
According to Laubis' complaint, he contacted the sheriff's department the day after the DVO was dismissed and talked to Deputy Chris Tudor, who he says told him that "it would take a year or two for his guns to be released."
Tudor was charged in May 2012 with official misconduct - a misdemeanor - after being accused of writing a false report to cover up for some missing guns that had been confiscated by the sheriff's department in domestic violence cases.
Tudor entered an Alford plea and paid a $404 fine in December. When defendants enter an Alford plea, they do not admit guilt but acknowledge that there is enough evidence to convict them.
Two other sheriff's department employees resigned and were sentenced to house arrest and probation last year, after entering Alford pleas in cases involving firearms seized by the sheriff's department.
Former Sgt. Chester "Merle" McDaniel was convicted of two felony counts of theft of a firearm and one misdemeanor count of first-degree official misconduct. Former Sgt. William Beers was convicted of attempted theft and official misconduct, both misdemeanors.
Laubis said he met with Witt after hearing of those cases, but was told then and on subsequent occasions by sheriff's department employees that "the matter was under investigation."
An agreed order issued Jan. 14 in Fayette Family Court orders that Laubis' firearms be returned.
Laubis says in the lawsuit that Witt told him the sheriff's department "could keep his guns regardless of any court order because of the Lautenberg Amendment."
That legislation - sponsored in 1996 by Sen. Frank Lautenberg, D-N.J., who died Monday - prohibits people convicted of misdemeanor domestic violence from having guns.
Laubis states in the court documents that he has never been convicted of a felony or of misdemeanor domestic violence.
Firearms and the Family Violence Act
Douglas County Sentinel (GA)
July 15, 2013
https://infoweb.newsbank.com/
I am almost hesitant to write this column because the information you are about to receive is not widely known and will be shocking to some. However, I do think that the public should be aware of how our rights under the 2nd Amendment can be affected by our actions.
Everyone knows that convicted felons cannot legally possess firearms in Georgia. However, there is a federal law that in my opinion impedes the right of people convicted of misdemeanors under the Georgia’s Family Violence Act (FVA) to possess firearms as well. This law could even be interpreted to take away gun rights of people convicted of other misdemeanors not charged under the FVA.
The Gun Control Act of 1968 was signed by President Lyndon Baines Johnson to broadly regulate the firearms industry and firearms owners. In 1996, the “Lautenberg Amendment” added a striking provision to The Act by prohibiting citizens from possessing firearms if they have been convicted of a “Misdemeanor Crime of Domestic Violence.”
Before I go further, it should be noted that a person shall not be considered to have been convicted of such an offense under The Act if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.
According to the website for the Bureau of Alcohol, Tobacco, and Firearms (BATF), a misdemeanor crime of domestic violence is:
• A misdemeanor under Federal or State law.
• Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.
• Was committed by a current or former spouse, parent or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.
This federal definition of a misdemeanor crime of domestic violence seems to fit within the parameters of Georgia’s Family Violence Act. It also seems that if a person is charged with a battery, assault or other misdemeanor crime involving family members, that person could lose their 2nd Amendment rights even though he or she was not necessarily charged under the FVA.
I am no fan of family violence. Repeat offenders under the FVA should be punished severely. However, there are thousands of cases in Georgia every year when a couple gets into a heated argument that leads to poor judgment. Oftentimes, these are once in a lifetime occurrences. These people should not have their gun rights placed in jeopardy.
While sometimes misdemeanors are not taken as seriously as they should, if a lawful gun owner is ever charged in Georgia with a misdemeanor offense under the FVA, an offense involving family members, or involving violence, that person needs the assistance of counsel in navigating their case.
Each case is different. However, there are a number of ways that convictions can be avoided. If you care about your guns, the obvious advice is to remain lawful and avoid getting arrested for any crimes. If you do happen to get arrested, it would be wise to keep this federal law in mind when dealing with your case.
Cottage Grove man challenges concealed-carry denial
Milwaukee Journal Sentinel: Web Edition Articles (WI)
September 2, 2013
https://infoweb.newsbank.com/
Wisconsin has issued nearly 200,000 permits to carry concealed firearms since Act 35 took effect in late 2011, while turning down about 5,800 requests.
Only one of those who were denied a permit has appealed that decision, according the state Department of Justice, and if he prevails it could clear the way for those with certain domestic violence convictions to legally carry hidden guns.
Congress in 1996 banned people convicted of domestic violence from possessing guns, and some gun rights advocates have challenged the reach of the so-called Lautenberg Amendment ever since.
Citing the federal ban, Wisconsin's Department of Justice, which administers the concealed-carry law, denied Robert W. Evans Jr. a permit in April 2012 because he had been convicted in 2002 of domestic violence/disorderly conduct.
As Act 35 provides, Evans appealed the denial to circuit court, arguing the offense isn't a misdemeanor crime of violence under federal law and that he didn't have a domestic relationship with the victim — his 36-year-old stepdaughter — under the federal definition.
But after a hearing, Dane County Circuit Judge C. William Foust in February upheld the DOJ's decision to deny the permit.
Evans, 68, of Cottage Grove has now taken the case to the Court of Appeals. In a brief, Evans' attorney argues the stepdaughter was an adult when Evans married her mother, and so he never had a parental relationship with her, and that she was only living with Evans and his wife temporarily. He denied ever punching the woman, admitting when he entered a no-contest plea only to pushing her out a door.
Evans has no other criminal record.
He argues his conviction doesn't meet the federal definition of a crime of domestic violence because in Wisconsin "disorderly conduct" does not require that a person use force against another as an element of the offense.
The federal law prohibits gun possession by anyone convicted of a misdemeanor that "has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim."
Evans argues "the elements of the offense of conviction, the legal definition of the crime, is the focus of the analysis. The conduct of the defendant in committing the crime is irrelevant."
Wisconsin defines disorderly conduct as "violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance."
Evans argues the DOJ wrongly presumes that violent conduct always means use of physical force against another person, when the Wisconsin statute clearly covers different conduct as well. He offers an example of an Illinois aggravated battery statute that also allows conviction for non-violent touching, and which he says also would not be considered a violent crime for purposes of the Lautenberg Amendment.
The state disagrees and argues in its brief that Wisconsin's disorderly conduct offense does include an element of physical force, and that Evans and his adult stepdaughter did have a domestic relationship under the federal definition.
The DOJ says that if a statute includes two different modes of committing an offense, one involving violence and one not, a court is free to consider the facts to see which mode a defendant employed.
Further, it argues the Lautenberg Amendment was intended to be broadly applied and enforced. And though Evans was a stepfather to an adult woman he didn't raise or continuously reside with, he was still "similarly situated" to a biological parent who might be a threat to their child.
"Nothing in the language or legislative history of the amendment suggests that Congress intended to withhold protection from adults whose family relationship with a biological parent put them at risk for violence at the hands of their biological parent's spouse," the state's brief reads.
"More basically, the notion that an element of 'violent' conduct does not satisfy the definition of 'use of physical force' is nonsensical," the state argues.
A different Wisconsin case briefly seemed to challenge the lifetime ban on guns for those convicted of domestic violence. U.S. Circuit Judge Diane Sykes found, that in light of new U.S. Supreme Court rulings on the Second Amendment, prosecutors should at least have to show a stronger connection between the ban and the goal of reducing domestic violence.
But Sykes' ruling was later overruled by the full 7th U.S. Circuit Court of Appeals. Evans does not raise any Second Amendment arguments in his appeal regarding his denial of a Wisconsin concealed-carry permit.
Supreme Court agrees to hear case over gun ban for domestic abusers
Milwaukee Journal Sentinel: Blogs (WI)
October 1, 2013
https://infoweb.newsbank.com/
The U.S. Supreme Court on Tuesday announced it will review a case that could clarify when people convicted of domestic abuse misdemeanors can be banned from possessing guns.
The so-called Lautenberg amendment says anyone convicted of using or trying to use physical force during an act of domestic violence can no longer ever possess firearms. A man convicted of a misdemeanor domestic assault in Tennessee, James Alvin Castleman, was later charged with having a gun.
But a federal appeals court found that the particular Tennessee offense could not serve as the basis for a gun possession ban, since the state law didn't include "violence" as an element.
Federal officials fear that if that interpretation were widely adopted, it would largely gut the law meant to keep guns away from violent family members.
A similar claim has been raised in Wisconsin by the only person to appeal a denial of a concealed carry permit. The state Department of Justice turned down Robert Evans' application in 2012 because of a domestic violence/disorderly conduct conviction 10 years earlier.
Evans says his offense should not ban him from having a guns under the federal law because the Wisconsin statute doesn't require force against another person as an element of the crime.
In Wisconsin, 53 people were killed in Wisconsin by an abuser who shouldn't have had a gun. since 2000, the Journal Sentinel reported Tuesday.
Victims’ Institute to put “Research into Practice”
Huntsville Item, The (TX)
November 20, 2013
https://infoweb.newsbank.com/
HUNTSVILLE — The Crime Victims’ Institute (CVI) at Sam Houston State University initiated a new series of reports to help victim advocates translate the latest research in the field into practical services and resources for victims.
Called “Research into Practice,” the new report series began with a study on firearms and intimate partner violence. It provides a summary of laws and policies that can be used to better protect victims of domestic violence.
“This report summarizes existing research, law and policy on this issue and recognizes that advocates play a critical role in communicating with survivors about firearms and raising awareness,” said Dr. Leana Bouffard, Executive Director of the CVI. “The intent of these reports is to summarize existing research and information on topics of interest to victim advocates and to provide resources to assist in translating that research into specific practices in victim services.”
In 2012, 114 women were killed by current or former intimate partners in Texas. Sixty percent of these victims were killed with firearms, and many of the incidents resulted in the death or injury of bystanders, including children.
Research has consistently demonstrated a link between firearms and lethal intimate partner violence. One study showed the most significant factor for predicting homicide in domestic violence cases was gun ownership by the abuser. Another study found that women living with a gun in the home have a significantly higher risk of being murdered, and that risk is 20 times higher when there is a history of abuse combined with gun ownership.
To protect victims of domestic violence, several laws and policies have been enacted. They include:
The federal Gun Control Act of 1968 makes it illegal to purchase or possess firearms or ammunition by a person who has been convicted of a felony, who is the subject of a protective order, or who has been convicted of misdemeanor domestic violence.
For protective orders to fall under this federal law, several factors have to be met, including a qualifying relationship, a hearing process, and a specific prohibition against the threat or use of force against the petitioner or child. There is an exception for government employees who use firearms to perform their duties, such as law enforcement officers or military personnel.
Under the Lautenberg Amendment of 1996, the weapons prohibition was added to the federal law for a misdemeanor domestic violence conviction. Under this provision, the charge must include the threat or use of physical force or deadly weapon against a spouse, co-habitant, parent or guardian. The law is retroactive, there are no exemptions for those who use weapons in their official duties, and the ban on gun ownership is effective for a lifetime.
Texas law is similar to federal statues, but also prohibits concealed handgun licenses.
Several Texas judges have required the surrender of firearms in domestic violence cases, verification of compliance by county attorneys and notification of victims if weapons are returned. Many of these steps are identified in Texas Family Violence Bench Book.
A manual published by the National Center on Protective Orders and Full Faith & Credit, “Enforcing Domestic Violence Firearms Prohibitions,” includes a firearms checklist for advocates, law enforcement, prosecutors and judges. It is available here.
As part of safety planning, advocates should discuss issues with victims about the ownership or use of weapons by the abusers.
A copy of the report is available here.
'Minor' domestic violence charge can doom career
Air Force Times
Author/Byline: Mathew B. Tully - Veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC
December 23, 2013
https://infoweb.newsbank.com/
Q. I was arrested for a minor domestic violence dispute. How worried should I be?
A. A misdemeanor charge is anything but a minor offense as far as a military career is concerned.
Under the so-called Lautenberg Amendment to the Gun Control Act of 1968, troops convicted of a misdemeanor crime of domestic violence in violation of state, federal or tribal law could be barred from possessing a firearm â€" something that could severely limit their usefulness to the military and all but doom their careers in uniform.
A "misdemeanor crime of domestic violence" is defined as an offense that involves "the use or attempted use of physical force, or the threatened use of a deadly weapon."
The perpetrator must be "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 with or has cohabited with the victim as a spouse, parent, or guardian"; or "a person similarly situated to a spouse, parent, or guardian of the victim."
General and special court-martial convictions, as well as convictions in civilian courts, of a misdemeanor crime of domestic violence qualify under this law (but not summary court-martial and nonjudicial punishment convictions).
Service members are required to notify commanders of any qualifying convictions. If a commander suspects a member has been convicted of a qualifying domestic violence crime, he or she can order the subordinate to complete DD Form 2760, which has to do with the "Qualification to Possess Firearms or Ammunition."
Under Defense Department Instruction 6400.06, upon learning or reasonably believing a service member has a qualifying conviction, an appropriate authority must collect the member's government-issued firearms and ammunition, and the member's authority to possess these items must be suspended.
How the various branches handle troops with a qualifying conviction varies, but the recourses generally are the same. Under Army Regulation 600-20, soldiers with qualifying convictions may be prohibited from re-enlisting, receiving a commission as an officer, attending service schools and being promoted. The Army will not mobilize these soldiers or deploy them for missions involving firearms or ammunition.
Officers can request a release from active duty or unqualified resignation. Enlisted members can ask to be separated for the convenience of the government. Involuntary separation is another â€" actually, the likeliest â€" possibility.
The other services' policies are spelled out in MARADMIN 186/03, MILPERS-MAN 1910-156 and AFI 36-3208.
These harsh consequences make it imperative for troops to consult with a military law attorney who can help them fight domestic violence charges. Depending on the circumstances, an attorney can help prove that the service member did not use or attempt to use physical force, or threaten to use a deadly weapon.
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC.
Commentary: On the Defensive: Walker fails with decision to bypass pardons
Wisconsin Law Journal (Milwaukee, WI)
Author/Byline: Anthony Cotton
December 30, 2013
https://infoweb.newsbank.com/
Since he was elected governor, Scott Walker has not appointed a single person to Wisconsin’s Pardon Advisory Board.
Walker summed up his viewpoint of the topic to WKOW-TV in Madison: “The only people seeking pardons are people who are guilty and I don’t have any reason to undermine the criminal justice system.” Walker elaborated on that statement by asserting that people who are innocent can be “granted a change in their sentence, based on the court system.”
That myopic view is unfortunate because the pardon process is an important function in Wisconsin.
The Wisconsin Constitution vests pardon power exclusively with the governor. Having a power conferred, but refusing to exercise that power, is a clear abuse of discretion.
Despite Walker’s cynical view, pardons serve an important function.
First, there are tens of thousands of people in Wisconsin who, because they have been convicted of nonviolent felonies, have been stripped of their rights to possess firearms. Those people may have been convicted of low-level crimes, such as second-offense marijuana possession or certain types of theft.
And it matters little whether those people committed crimes in their teens, in college or as young adults. A felony is a felony, and the law forever strips those offenders of their right to possess firearms.
Sadly, it was not until 2009 that Wisconsin law even permitted expunging certain low-level felonies. However, because the 2009 law is not retroactive, people who committed offenses prior to the law’s passage cannot secure the benefit.
Second, federal law prohibits domestic violence offenders from possessing firearms. The law, known as the Lautenberg Amendment, was passed in 1997. But that one is retroactive, meaning anybody who has a domestic violence conviction is categorically barred from possessing a gun, and it is a lifetime ban.
But such low-level offenses as arguing with a spouse qualify as crimes of domestic violence.
The governor’s pardon power provides the cleanest mechanism by which a reformed offender could have such an unfortunate stigma removed.
Finally, pardons help people reintegrate into the community and find employment. That reduces the financial burden on taxpayers because pardons help people contribute toward, rather than receive, government benefits.
Without a pardon, too many people are stymied in their efforts to find meaningful employment.
Walker’s political calculations come at the expense of others.
If he persists in his blanket refusal to consider pardons, he may soon find himself on the losing end of a mandamus action.
2014: Lautenberg DV Gun Ban - News Articles And Reports
Wisconsin issues concealed gun carry permit No. 200,000
Milwaukee Journal Sentinel: Blogs (WI)
January 8, 2014
https://infoweb.newsbank.com/
Wisconsin has reached a concealed weapons permit milestone.
Attorney General J.B. Van Hollen announced Tuesday that permit number 200,000 was printed Monday at the Department of Justice's secure processing center in downtown Madison.
Wisconsin became the 49th state to license people to carry concealed weapons in 2011 with the passage of Act 35. The law took effect Nov. 1 that year and Van Hollen announced extra staffing to handle the expected rush of applicants.
Van Hollen said the DOJ continues to receive 500 to 1,000 applications a week. "The dedicated staff is able to process the majority of these applications in less than a week," he said in a news release.
The announcement also noted that since the adoption of the permanent rules for administering Act 35, the cost of an application has fallen from $50 to $40.
More than 5,800 applications have been denied. One person has appealed their denial in circuit court, a man who was turned down over a 2002 misdemeanor conviction for disorderly conduct related to a domestic dispute. A federal law known as the Lautenberg amendment bans firearm possession by anyone convicted of domestic violence.
The U.S. Supreme Court on Tuesday announced it will hear an appeal that involves a similar issue. A Tennessee man who had been convicted of domestic violence was later charged with possessing a firearm in violation of the federal ban.
But an appeals court found that Tennessee's specific statute didn't require violence for the conviction, and threw out the charge. The federal government is concerned that interpretation could gut the law's effect if adopted by other federal circuits, and petitioned for the high court review.
Sean Penn owning guns after domestic violence plea raises legal questions
News & Politics Examiner (USA)
January 15, 2014
https://infoweb.newsbank.com/
At the request of actress girlfriend Charlize Theron, actor Sean Penn is getting rid of 65 guns, Fox 411 reported Tuesday. The guns will be melted down into a sculpture to be made by “artist” Jeff Koons, the report advises.
Theron’s aversion to guns results from a terrible personal tragedy, her mother killing her father.* That’s an unimaginable horror to most of us, and it’s a natural reaction to be sympathetic. Respect for freedom requires we accept that personally living “gun free” is her choice and her right. Even so, her high profile makes it fair to point out those convictions haven’t stopped her from wielding firearms for glamor, excitement and profit in her movies, such as 2005’s “Aeon Flux” (see embedded video, above). And when the day’s filming is done, like many elites, Theron can afford to rely on the best bodyguards money can rent, something those of lesser means considering making a similar personal choice might want to keep in mind.
Penn is another story altogether. Aside from the fact that, as a zealous “progressive” he has supported outright communist tyrants (which should hardly be a surprise coming from someone who advocates conservatives being committed to mental institutions by executive order), this is a guy who obtained an almost-impossible-to-get (for “ordinary people”) concealed carry permit -- resulting in his allowing more weapons to be “put on the streets” in gun-hating in Berkeley, of all places. And while government enforcers in New Orleans were busy neutralizing the dreaded Konie menace in her own home, Penn was reportedly free to walk the streets open-carrying a shotgun.
What Penn is even doing with guns in the first place is a mystery, if the reports are true that when partnered with Madonna, he tied her to a chair and beat her up with a baseball bat.
The Lautenberg amendment prohibition on gun ownership applies to those convicted of misdemeanor domestic violence, and according to the New York Daily News, “Penn was also charged with felony domestic assault during his marriage to Madonna. He pleaded to a misdemeanor.”
Was that report in a major metropolitan newspaper accurate, and if so, is Penn a prohibited person, or have his legally-recognized gun rights been restored? How? Those would seem to be fair questions to explore.
It also makes it fair to ask if Piers Morgan, who bid $1.3 million for the proposed Penn gun sculpture, supports enforcing Lautenberg against all who are caught up in its net, which would demand prosecution of Penn if the law has been broken -- for each occurrence. And it removes all pretenses that winning $1.4 million bidder Anderson Cooper might make about being objective when “reporting” on the gun issue.
Knowing that California has been rated as the top state by the Brady Campaign for its gun laws, how Penn was able to pass the background checks to amass and keep a collection of 65 guns and also maintain a concealed carry permit is worth understanding, particularly to see if there’s anything that those who aren’t comparably privileged could also do to protect their rights. And how he can lawfully transfer his guns to artist Koons’ studio in New York City, with its own set of requirements and permits and prohibitions, is also something worth learning. But the logistics of that aside, how Penn is able to participate in any of this without incriminating himself is unclear.
That will be interesting to try to find out, not that any “Authorized Journalists” will, and certainly not Morgan or Cooper. But, per Penn, it’s going to happen.
“Koons will decommission [and] render inactive all of my cowardly killing machines,” he pledged.
Whether that means he thinks guns themselves are cowardly -- or just gun owners who are conservative and ought to be committed to institutions by executive order -- remains unclear. Still, it’s telling that a man who reportedly beat up a woman would inject that element into the discussion.
Not that Penn has to worry about his own safety, even without guns, when all he needs do when he wants armed protection after a night on the town is pick up the phone and order a police escort.
* Article corrected -- initially said "father killed mother." While it was ruled self-defense, the link shows not all in the family accept that version of the incident.
Court deciding on reach of federal gun ban
Associated Press News Service, The
January 15, 2014
https://infoweb.newsbank.com/
WASHINGTON (AP) — The Supreme Court debated Wednesday how to apply a federal gun ban to those with misdemeanor domestic violence records, with justices trying to figure out a middle road between what one justice called two extreme positions.
Justices heard arguments from government officials who want the ban to apply to James Castleman, who pleaded guilty to misdemeanor domestic assault in 2001 in Tennessee. He was then charged in 2009 with illegal possession of a firearm after he and his wife were accused of buying guns and selling them on the black market.
Federal law bars a person convicted of misdemeanor domestic violence involving physical force or a deadly weapon from possessing a firearm. A federal judge threw the gun charges out because the Tennessee law doesn't require that physical force must have been used in misdemeanor domestic assaults. That decision was upheld by the 6th U.S. Circuit Court of Appeals.
Federal officials say under their interpretation, violent force is not required for the gun ban to apply, which could mean that just touching could lead to a conviction. Castleman's lawyer said under his interpretation, not all attacks that led to bodily injury would apply, only those "involving a powerful use of force."
"We sort of have two extreme positions here. The government is arguing that the statute covers mere touching. That's one extreme," said Justice Antonin Scalia. "And you're arguing that the statute doesn't cover all bodily injury, but only what, severe bodily injury? ...Why isn't there something in the middle? It doesn't cover touching, but it covers bodily injury?"
Justice Department lawyer Melissa Arbus Sherry argued that if the court listened to Castleman's arguments, it would neuter Congress' intent in passing a domestic violence gun ban. Congress "wanted to intervene at an early stage before the violence escalated and certainly before it turned deadly, before the offender reached for a gun," she said.
But Castleman's lawyer Charles Rothfeld said the government's expansive reading of what constitutes misdemeanor domestic violence could lead to conviction and gun bans that Congress never intended, an argument Scalia sympathized with. He said that parents who wash their children's mouth "with soap for improper speech or a mother pinching a child ... to bring the child under control in public" could be covered by the law since both inflict pain and injury.
"There is no question that those would be covered under the terms of the text that the government is adding," Rothfeld said.
Justices will make a decision later this year.
Feminist Majority to Supreme Court: Don't Gut Federal Domestic Violence Law
Targeted News Service (USA)
January 17, 2014
https://infoweb.newsbank.com/
ARLINGTON, Va., Jan. 16 -- The Feminist Majority Foundation issued the following news release:
The Feminist Majority today urges the U.S. Supreme Court to uphold the Domestic Violence Offender Gun Ban.
The Court heard arguments yesterday in U.S. v. Castleman, a case that appears to narrowly involve just one individual, but if the Court does not reverse lower federal court decisions, the Domestic Violence Offender Gun Ban will be gutted. Castleman is arguing that the law does not apply to him because his conviction did not state whether or not he used physical force against the victim. However, in most local jurisdictions, misdemeanor domestic violence cases are resolved under assault and battery statutes and do not specify whether physical force was used. The conviction only states that the offender is guilty.
Domestic violence is violence and convicted abusers should be covered under the Domestic Violence Offender Gun Ban, said Feminist Majority President Eleanor Smeal.
"In a country where three women are already murdered every day through domestic violence, it would be tragic beyond measure to re-arm tens of thousands of abusers," said Kim Gandy, President and CEO of the National Network to End Domestic Violence (NNEDV).
According to NNEDV, women in the United States are 11 times more likely to be murdered with a gun than women in other high-income countries, and victims of domestic violence who live in homes with guns have an 8-fold increase in homicide risk.
"The Domestic Violence Offender Gun Ban has protected millions of women and domestic violence victims since it was first enacted," said Smeal. "Abusers cannot be given access to deadly weapons."
The Feminist Majority played a pivotal role in passing the Domestic Violence Offender Gun Ban often referred to as "the Lautenberg Amendment," after its sponsor Sen. Frank Lautenberg (D-NJ) in 1996. The law prohibits individuals convicted of misdemeanor domestic violence crimes from owning or possessing a gun.
Demanding Moms have strange bedfellow in NAACP ‘jaywalking’ apologist
News & Politics Examiner (USA)
February 14, 2014
https://infoweb.newsbank.com/
The head of the New England Area Chapter of the NAACP decried the expulsion of a Massachusetts state representative by comparing his assaulting a woman to jaywalking.
“[Carlos Henriquez] was convicted of two misdemeanors -- not felonies -- misdemeanors, and there is no standard in the House for expulsion based on misdemeanor convictions” NEAC President Juan Cofield told talk radio host Michael Graham. “Almost every one of us . . . commits a misdemeanor. Jaywalking is a misdemeanor. Would you have a state representative legislator expelled from the House for jaywalking?”
This column reported on the Henriquez conviction last weekend, noting the leading role he played in advocating for stricter “gun control.” It also noted insidious silence on the part of some of his conspicuous allies in disarmament.
“What especially concerns me is how black leadership, most recently the NAACP, has supported Henriquez in his desperate attempt to stay in office, or has remained silent on the issue,” The Rev. Mark V. Scott wrote in an opinion piece in The Boston Herald. “This is as disgraceful as the violence itself. Black leaders have, with rare exceptions, failed to raise their voices to call for Henriquez’s expulsion from the Legislature.”
Also adopting a whistling and looking around with their hands in their pockets posture is the Massachusetts Coalition to Prevent Gun Violence, which can’t find a word to say about their rally supporter Henriquez on their website or Facebook page, but does manage to share links to pieces with titles like “Local moms band together to fight for gun controls” and “Ladies, put your LIPSTICK on! We’re going places in 2014!” as well as links for Moms Demand Action.
That the NAACP, which never found a citizen disarmament edict they didn’t jump on as an opportunity to exploit, would exhibit racialist solidarity over doing the right thing to condemn abuse of women is hardly unexpected, but it is illustrative of the cynical lack of sincerity that defines the organization’s leadership. Still, it does present a unique chance to cite them, MCPGV and the Bloomberg Moms (BMs) yet again for hypocrisy that qualifies as absurd.
After all, misdemeanor domestic abuse is enough to get placed on the “no guns” list for a lifetime ban as a prohibited person ever since the Lautenberg Amendment passed. If NAACP leadership is serious that this is tantamount to jaywalking, then they ought to be consistent and call for overturning that gun ban.
That they won’t, and that none of these “progressive” leaders will condemn fellow citizen disarmament ally Henriquez for assaulting a woman while undermining the ability of all women to defend themselves, shows them to be the hollow frauds they are.
The truth is, every one of them, NAACP, the Coalition, the Demanding Moms, and all the rest of the hive mind groups like MAIG, Brady, VPC, CSGV, etc., would rather see women, including women of color, beaten, raped and killed than armed.
Don’t believe me?
Ask any one or all of them, and see how they will do everything but give a straight answer, including dismissing your arguments due to the color of your skin.
Court shoots down concealed carry gun applicant's appeal
Milwaukee Journal Sentinel: Blogs (WI)
February 28, 2014
https://infoweb.newsbank.com/
The one person out of 5,800 denied Wisconsin concealed carry permits who decided to challenge the decision has lost another round, this time at the state Court of Appeals.
If he had prevailed, Robert W. Evans might have cleared the way for those with certain domestic violence convictions to legally carry hidden guns.
Congress in 1996 banned people convicted of domestic violence from possessing guns, and some gun rights advocates have challenged the reach of the so-called Lautenberg Amendment ever since.
But the Court of Appeals has affirmed a Dane County Circuit Court ruling that the state Department of Justice properly rejected Evans' application because his 2002 misdemeanor conviction for disorderly conduct met the federal law's definition of domestic violence.
It prohibits gun ownership when someone is convicted of any crime, an element of which is the use of physical force, against someone in one of several kinds of relationships to the victim.
Evans, 68, of Cottage Grove had argued that his misdemeanor did not meet the federal definition because in Wisconsin "disorderly conduct" does not require that a person use force against another as an element of the offense.
Evans had pleaded no contest to pushing his adult stepdaughter. He denied her claims that he struck her. He has no other criminal record.
But the court said Wisconsin's statute doesn't require that disorderly conduct be all the things listed (profane, abusive, boisterous, violent, etc.) but any of them, or any combination of them.
Writing for a three-judge panel of the District 4 court, Judge Paul Lundsten concluded that Evans was convicted of "violent, abusive, and otherwise disorderly conduct" and that "violent conduct necessarily implies the use of physical force."
The court did not consider Evans' actual conduct.
"We have considered only the fact of his conviction, the statutory definition of disorderly conduct, and the ‘permitted class of documents," " Lundsten wrote.
Evans also had argued that his case didn't meet the second prong required to trigger the federal firearm prohibition -- that he was "similarly situated... as a parent" to the stepdaughter, because she was already an adult when Evans married her mother, he was never involved in her parenting, and she was only staying with the couple temporarily.
But the court ignored those particulars and said without much discussion that because Evans was a stepparent to the victim, he met the second prong of the federal law.
Lawmakers in Minnesota push new domestic violence bills
St. Paul Legal Ledger Capitol Report (MN)
February 28, 2014
https://infoweb.newsbank.com/
In response to a sharp rise in domestic abuse-related homicides, lawmakers are mulling a bill that would give police more time to make arrests in misdemeanor domestic assault cases without first obtaining a warrant. A separate measure would provide victims with “location information” on convicted batterers when they are released from jail or prison.
The two bills — introduced at the House Public Safety Finance and Policy Committee on Wednesday — are the product of five “convening sessions” organized by the Minnesota Coalition for Battered Women in the wake of a series of headline-grabbing domestic abuse-related homicides last year.
By the end of 2013, according to the MCBW annual Femicide Report, there were at least 37 such homicides in Minnesota, more than twice the number in 2012.
“When you see this huge spike in domestic homicides, it should propel all of us to ask, ‘Are we doing enough? What more needs to be done?’ There are no easy answers to those questions,” committee chair Michael Paymar, DFL-St. Paul, said in an interview after the hearing.
Paymar said he was distressed by the increased number of deaths, particularly given national trends that show overall declining rates of domestic violence. The emphasis on improving police’s ability to make misdemeanor arrests is seen as critical, because domestic violence often escalates.
Rebekah Moses, policy director for the MCBW, said the two bills were winnowed from 23 policy ideas developed in meetings with law enforcement, legislators and victim advocates during the summer and fall. The goal is “to hold perpetrators accountable before they murder someone,” said Moses, who called the proposed legislation “proactive” and “life-saving.”
Arrest rule change proposed
The first bill, HF 2141, authored by Rep. Paul Rosenthal, DFL-Edina, would remove the 24-hour time limit under which police can make arrests in non-felony level domestic assaults without first obtaining a court warrant. That exemption would also apply to non-felony violations of court orders.
In 2009, the Legislature raised the time limit from 12 hours to 24 hours. That came in response to complaints that the shorter limit didn’t give police enough time to track down abusers, especially those repeat offenders savvy enough to realize they could evade immediate arrest by fleeing the scene and waiting out the clock.
“It really did work for a little a while and had a great effect,” Rosenthal of the 24-hour limit. “But as we know, people change. And once they understand the rules and the ramifications, they tend to hide longer.”
Rosenthal said the 24-hour exemption to the warrant requirement “is no longer having the effect that we hoped.” Rep. John Ward, DFL-Baxter, agreed that a change is needed, saying “perpetrators know the system and they play the system.”
Rep. Tony Cornish, R-Vernon Center, said he, too, favored extending the time-limit, but that it should not be “in perpetuity.” He proposed a 72-hour limit — a measure to which Rosenthal said he was amenable.
Two members of the public testified in opposition to any time extension for warrantless arrests. Michael Jones, the director of the Minnesota Parent/Child Advocacy Center in north Minneapolis, said domestic abuse has a disproportionate effect on the African-American community but “at some time, we have to balance the rights of the accused with the rights of the victim.”
Bill Ronan, a self-described clinical social worker and hypnotherapist from Hopkins, was more vociferous. Ronan said that extending the time limit would effectively empower people who make false accusations. “The domestic violence industry is like graduate school for psychopaths and sociopaths,” he told lawmakers.
In a telephone interview later, Ronan said he was motivated to testify because his former spouse falsely accused him of abuse, which led to expensive and lengthy legal travails and jaundiced his view of the courts. “I feel obligated to inform people about what’s happening,” he said.
Notification bill
The Public Safety Finance and Policy Committee also took testimony on a bill that would provide domestic abuse victims with information about the whereabouts of convicted batterers upon their release from custody. Under the measure, HF 2142, authored by Rep. Barb Yarusso, DFL-Shoreview, victims would not be provided with a street address, only the ZIP code, and the request for information could be denied for public safety reasons.
Paymar said he expects the House will take up some additional domestic abuse-related legislation this session, although that was not broached at Wednesday’s hearing.
The most notable prospect: an effort to codify on a state level the federal Lautenberg Amendment. That law, enacted by Congress in 1996, prohibits people from possessing guns if they have been convicted of misdemeanor level domestic abuse or are subject to a civil order of protection with a finding of domestic abuse.
Nationally, advocates for domestic abuse victims have long complained that enforcement of the law is spotty at best, especially in instances involving protective orders.
“If you look at the research, the highest risk for lethality for a battered woman is an offender’s access to firearms,” Paymar said. “Presently, our courts have not responded to that issue very well and neither has law enforcement.”
Paymar said the proposal is still in the drafting stages but added that several lawmakers have expressed interest and he expects that a bill will emerge this session or next. “I don’t think it will raise Second Amendment issues, because this would just create conformity with a federal law that already exists,” he said.
Greenfield man challenges law after he's denied gun, carry permit
Milwaukee Journal Sentinel: Blogs (WI)
March 3, 2014
https://infoweb.newsbank.com/
A Greenfield man who was refused the purchase of a gun over a 14-year-old disorderly conduct conviction has challenged whether it meets the federal definition of a domestic violence offense.
Carmelo Terranova, 68, tried to buy a gun from a licensed dealer in April, and was rejected on the grounds that his 2000 conviction prohibited him from ever having a gun. His application for a permit to carry a concealed weapon was also rejected.
The state Department of Justice affirmed the denial in August, and in September Terranova petitioned a Milwaukee County Circuit Court judge to review the agency's decision.
Last week, the state Court of Appeals ruled against Robert W. Evans, another man who raised a similar challenge after he was denied a permit to carry a concealed weapon, and the opinion may now control the outcome of Terranova's claim.
Congress in 1996 banned people convicted of domestic violence from possessing guns, and some gun rights advocates have challenged the reach of the so-called Lautenberg Amendment ever since. It defines domestic violence as any misdemeanor that includes as an element the use or threat of force.
In last week's case, the court said that Wisconsin's disorderly conduct statute does involve an element of violence, which implies force, even if actual violence is not required to commit disorderly conduct.
Like Evans, Terranova argues that Wisconsin's law doesn't meet the the federal definition. The state law says:
"[w]hoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor."
"By its terms, the statute can be violated in any number of manners, so long as the conduct tends to provoke a disturbance," wrote Terranova's attorney, Matt Ricci in a petition for review.
"Some of these manners may be violent; some may not." He notes that jurors aren't required to find a defendant was loud, profane, abusive or violent, only that he was disorderly.
"The element, and all that a person who pleads guilty acknowledges, is disorderliness," the petition reads. "By its elements, disorderly conduct is not a violent crime."
Wisconsin's disorderly conduct law is as generic as they come, Terranova argues, and clearly does not have an element requiring the defendant and victim be in any domestic relationship. He argues it is inappropriate for the reviewing agency to read beyond the elements of the offense - like the specific facts in Terranova's case as gleaned from the criminal complaint and plea documents.
According to the state, during an argument over his $40,000 gambling debt in 1999, Terranova grabbed a case containing a handgun and threatened to kill himself, then pushed his wife away several times when she tried to take the case away from him.
He eventually pleaded guilty to disorderly conduct, with a sentencing enhancement of possessing a dangerous weapon. In a plea questionnaire, he said he understood he was pleading to "armed and violent or otherwise disorderly" conduct.
The state argues that in reviewing an administrative ruling, Circuit Judge Kevin Martens must give "due weight deference," to the DOJ's interpretation of the gun restriction rules.
The state argues that whenever a statute is "divisible," meaning it can violated in one of several enumerated ways, courts can consider other information to determine which mode applies, and it even cites the Evans' case, when it was at the circuit court level.
In last week's Evans ruling, the Court of Appeals found that the Wisconsin statutes listed ways of being disorderly are all alternate elements of the crime, not merely alternate modes of meeting the single element of disorderliness, as Terranova argues.
Judge Martens has not yet ruled in Terranova's case.
Empowerment or subjugation?
GOP, Dems offer real difference on Women's Issues
Long Island Examiner (NY)
March 26, 2014
https://infoweb.newsbank.com/
Recently, former Secretary of State (and First Lady) Hillary Clinton and philanthropist Melinda Gates came together for a new Clinton Foundation initiative, to collect data "to make the case why investing in girls and women, and empowering girls and women is not only the right thing to do but the smart thing to do."
All around the world, those who look to lift the masses out of devastating poverty, social violence and upheaval have focused on women and girls. They find that when girls are able to get educated and women have access to jobs, the birth rate goes down and living standard goes up. And when capitalists and philanthropists invest in women's enterprise, the investment pays off in a better life for their children, families and community.
As Oxfam noted in a recent "Tell Congress" email, "Women around the world bear the brunt of poverty.... They perform 66% of the world's work, but earn only 10% of the income. In many countries, women are responsible for the majority of food production... yet they're more likely to face hunger in food shortages....Investments in women are key to winning the fight against poverty and hunger.."
But instead of focusing on the inequities women endure abroad, they should look to the United States, where these lessons are not only ignored but are being contradicted. And what is horrifying is the unabashed misogyny that has been unleashed, without repercussion.
Here's a sampling. Republican power brokers - the fundraisers and the politicians themselves - have said: that if there abortion is available in any form, then sexual violence is okay (Lawrence Lockman, former press secretary of a pro-life group and ally to Maine Governor LePage); that wives have to "voluntarily submit" to sex with their husbands (Rep. Steve Pearce, R-NM, citing the Bible); wives should "consent to at least some form of sexual relations as much as possible" (Dennis Prager, fundraiser for Sen Mitch McConnell, R-KY); that women who use contraception are promiscuous sluts who don't exercise self-control and are becoming dependent on Uncle Sugar (Mike Huckabee).
And more: that a pregnant woman is merely a "host" to nurture the fetus rather than a mother (Virginia State Sen. Steve Martin, R); that a woman's right to choose should be ended because it robs a man of his right to fatherhood (Rep. Vicky Hartzler, R-MO); that those who teach Women's Studies "should all be taken out and shot" (Austin Ruse, Catholic Family & Human Rights Institute); that "The toxic stew of the modern university is gender studies, it's 'Sex Week,' they all have 'Sex Week' and teaching people how to be sex-positive and overcome the patriarchy. (Austin Ruse again); that a feminist is "Some Fat Pig Who Doesn't Get It Often Enough" (Ted Nugent, actively campaigning for Greg Abbott, candidate to be the next Texas Governor).
These aren't aberrations, nor are they mere rhetorical flourishes. They describe the underlying philosophy to the policies they have the power to inflict. The statements go directly to actions designed to perpetrate the "patriarchy."
Pick any issue: Pay equity. Living Wage. Health care. Public Education. Environment. Gun violence. Public health. Food stamps. Unemployment benefits. Domestic violence. Immigration reform. Family planning. Voting Rights. The stance that Republicans have taken do damage to all Americans, but especially women and by extension, their children.
Two-thirds of those in minimum wage jobs are women; 2/3 of single parents are women; 2/3 of sole breadwinners are women. 2/3 of "tipped workers" (who make $2 an hour) are women.
It is estimated that if women, who currently earn 77c to every $1 a man earns for the same job, would have income parity, that could mean a $447.6 billion boost to the economy.
Indeed, "at the current rate of change, it will take until the year 2085 for women to reach parity with men in leadership roles in our country," the Center for American Progress reported.
"The opportunity loss implications of women who continue to be marginalized in today's corporate and overarching economic landscape cannot be taken lightly," notes esteemed working women's advocate Michelle Patterson, Founder and President of The California Women's Conference and President and CEO of Women Network.
* Although women are 50.8 percent of the U.S. population earning almost 60 percent of both undergraduate and Master's degrees, also holding almost 52 percent of all professional-level jobs, American women lag substantially behind men when it comes to their representation in leadership positions (CAP, Catalyst, Center for Economic Development):
* They are only 14.6 percent of executive officers, 8.1 percent of top earners, and 4.6 percent of Fortune 500 CEOs.
* Their presence in top management positions today remains below 9 percent.
* They hold just 16.9 percent of Fortune 500 board seats, representing "no significant year-over-year uptick for the 8th straight year."
* The percentage of women on all U.S. corporate boards has been stuck in the 12.1 percent to 12.3 percent range over the past decade.
* The United States, once a world leader in gender equality, now lags behind other similarly wealthy nations in women's economic participation. In the two decades from 1990 to 2010, our country fell from having the sixth-highest rate of female labor-force participation among 22 Organisation for Economic Co-operation and Development, or OECD, countries to 17th on the list. (CAP)
* America ranks number six in women's economic participation and opportunity on the World Economic Forum's 2013 Gender Gap Index of 136 countries. (Catalyst)
* Stereotypes and skewed perceptions remain powerful and still impede the advancement of women. The dearth of women in leadership roles—and in whole fields—creates the perception that women do not belong in those positions or professions. (CAP)
* Structural barriers: A shortage of role models, for example, means that women—and women of color in particular—lack mentors, sponsors, and opportunities in male-heavy organizations to develop the sorts of social relationships out of which mentorship, sponsorship, board appointments, or simply promotions, naturally evolve. (CAP)
You have to wonder why, if Republicans are just so very upset about government spending, particularly on food stamps, why they wouldn't want employers to pay their workers a living wage, so taxpayers wouldn't have to make up the difference.
Gun violence is another example. Certainly this is an issue that affects all Americans - in fact, the vast majority of Americans, including Republicans and gun owners, support sensible gun regulations like universal background checks, limits to military-style weapons and magazine capacity. But the facts - not the "beliefs" or the "wishes" or the rhetoric - show that women and children are victims:
"Congressional action has meant the difference between life and death for many women," says former Congresswoman Gabby Giffords, who had to leave office after being shot in the head in a massacre that killed women, children and her own Congressional aide. "The Violence Against Women Act protects millions of Americans every year. The Lautenberg Amendment alone has prevented more than 250,000 domestic abusers from purchasing a gun from a licensed gun dealer. But many of those who perpetrate violence against women are still allowed easy access to firearms. And the violence continues." Giffords, the co-founder of Americans for Responsible Solutions, notes that:
* Women are more than three-and-a-half times as likely to be killed by an intimate partner as men.
* A gun in a household with a history of domestic violence increases the risk that a woman will be killed there by 20 times, compared to households without guns.
* More than 1,000,000 women are stalked annually, and more than half are stalked by an intimate partner — with stalkers using guns to harm or threaten their victims in 1 out of 5 of those cases.
RNC chairman Reince Priebus dismisses any actual Republican War on Women with the sugar coating. "I've said many times before that the policies and principles of our party are sound. However, as we look to grow the ranks of our party, we must all be very conscious of the tone and choice of words we use to communicate those policies effectively." Priebus said at the RNC winter meeting in Washington. In other words, it's all tone and phrase rather than actual policies.
When you hear them wistfully long "to return to the America of my youth" they mean an America where it was okay to prey upon women and minorities, where men had control.
"What strikes one American woman in four and claims a life in the United States every six hours?" Nicholas Kristof asked in a New York Times column on March 8. The answer is domestic violence. (Obama has proposed in his 2015 budget added funding for reducing the backlog of untested rape kits and assisting prosecution of sexual assault cases - fat chance of being passed. The Republicans, after all, refused to pass the Violence Against Women Act because it would have protected undocumented immigrants and Native Americans).
President Obama "gets it" and in announcing his proposal to increase funding said, "Sexual violence is more than just a crime against individuals. It threatens our families, it threatens our communities; ultimately, it threatens the entire country. It tears apart the fabric of our communities. And that's why we're here today -- because we have the power to do something about it as a government, as a nation. We have the capacity to stop sexual assault, support those who have survived it, and bring perpetrators to justice."
Texas is the epicenter, a veritable laboratory Petri dish of noxious bacteria, of how to send women back to the 19th century and not just because the Republican candidate, state Attorney General Greg Abbott uses misogynist Ted Nugent as his surrogate, or one of his top advisers dismissed the Democratic Candidate, State Senator Wendy Davis– a Harvard graduate – as "too stupid to be governor" and another Tea Partier labeled her "Abortion Barbie" and, oh yes, a "bad mother."
In Texas, women are being turned away from the polls - being denied the franchise won in 1920 after decades of fighting - because of the discrepancy in their married or divorced name. In other words, their marital status becomes a determinant in whether they get to vote.
Texas offers clear evidence for what Republicans in power actually intend for women (as opposed to that happy face they hope to portray), and what they would do if (heaven forbid) they take over the US Senate in 2014. You only have to look at how, despite a woman's constitutionally protected right to choose, they have passed laws resulting in shuttering of all but a handful of women's health clinics in the state, and also denied low-income women access to Medicaid.
One of the issues in the Texas gubernatorial campaign is the issue of a state version of the Lily Ledbetter Fair Pay Act (recall the Lily Ledbetter Act was the first law Obama signed when he became president in 2009, when he had a Democratic majority in House and filibuster-proof majority in Senate.)
Wendy Davis, the Democratic candidate, as a State Senator sponsored a law in Texas but it was vetoed by Governor Rick Perry.
Now, Abbott has dodged answering directly whether he would veto such legislation, but has said that there is no need for such a law because "women are already protected."
But we do know if he would veto such a law if he had the chance, because as Attorney General, Abbott defended the state University of Texas against a woman who was paid less, arguing that Lily Ledbetter doesn't apply to state cases. He won and the woman didn't get compensated for the years of discriminatory pay.
Abbott even discriminates in his own staff: he pays a male assistant attorney $79,464 but a female assistant attorney $73,649, according to San Antonio Express-News.
Abbott put up surrogates with Red State Women and the state Republican Party to parrot the Republican meme, "We don't believe Lily Ledbetter Act will solve the problem; we want a real world solution, not more rhetoric. Women are extremely busy" to fight pay disparity, and access to more jobs are what women really want. And this from a woman in the Texas Republican Party, "Men earn more because they are better negotiators. We would encourage women to be better negotiators."
The claim that women get paid less simply because they aren't good negotiators (get it - it's their own fault) apparently includes women CEOs, who are inexplicably not very good negotiators despite becoming CEO. Women CEOs earn 80% of what male CEOs make.
As MSNBC correspondent Crystal Ball said guest-hosting "Up" on March 22, regarding Republicans' opposition to fair pay, "Republicans assign blame to culture [it's your own fault if you are unemployed, poor, if you earn less money] rather than structural factors.....
"It gets to a bigger issue – the fact that Republican economic policies benefit people who are already well off, benefits businesses (campaign contributors ) and people at the top of income – increasingly, people feeling this party has nothing to offer."
Part of the reason for persistent gap in pay is that women do still - despite all the technological advancements - are the ones giving birth and still are the primary caregiver for their young children, even though the majority mothers with children younger than 2 are working outside the home.
While unemployment rates were low, employers were more amenable to offering flexible work solutions to accommodate parents; now that unemployment rates are high, they do not need to make any such accommodation (in fact, I would submit that part of the thrust against contraception is that this crew wants high birth rates to create a large population of workers to keep wages low and demand for products high, along with the fact that women's ability to make demands in the workplace is more limited when they can't afford to challenge their employer). This is the real reason that right wingers are so gung-ho against making contraception available to women. Also, it is empowering, and we can't have any of that.
Still, New School economist Teresa Ghilarducci estimates that 20-30% of the pay gap is purely discrimination. Employers feel they can get away with paying women less, so they do (yet another example where given a "free market," businesses will take a mile).
But here, I would suggest that just as the overpopulated job market makes workers more fearful to ask for higher wages, women, who may well be single-parents and sole-providers in their family, are more fearful of losing their jobs than men are. And up until the Affordable Care Act (Obamacare) uncoupled the dependency on employer-sponsored health insurance, women were also subjugated to abysmal jobs and abusive husbands for fear of losing access to affordable health care.
In his proclamation of Women's History Month this year, President Obama stated:
"Throughout our Nation's history, American women have led movements for social and economic justice, made groundbreaking scientific discoveries, enriched our culture with stunning works of art and literature, and charted bold directions in our foreign policy. They have served our country with valor, from the battlefields of the Revolutionary War to the deserts of Iraq and mountains of Afghanistan. During Women's History Month, we recognize the victories, struggles, and stories of the women who have made our country what it is today.
"This month, we are reminded that even in America, freedom and justice have never come easily. As part of a centuries-old and ever-evolving movement, countless women have put their shoulder to the wheel of progress -- activists who gathered at Seneca Falls and gave expression to a righteous cause; trailblazers who defied convention and shattered glass ceilings; millions who claimed control of their own bodies, voices, and lives. Together, they have pushed our Nation toward equality, liberation, and acceptance of women's right -- not only to choose their own destinies -- but also to shape the futures of peoples and nations.
"Through the grit and sacrifice of generations, American women and girls have gained greater opportunities and more representation than ever before. Yet they continue to face workplace discrimination, a higher risk of sexual assault, and an earnings gap that will cost the average woman hundreds of thousands of dollars over the course of her working lifetime.
"As women fight for their seats at the head of the table, my Administration offers our unwavering support. The first bill I signed as President was the Lilly Ledbetter Fair Pay Act, which made it easier for women to challenge pay discrimination. Under the Affordable Care Act, we banned insurance companies from charging women more because of their gender, and we continue to defend this law against those who would let women's bosses influence their health care decisions. Last year, recognizing a storied history of patriotic and courageous service in our Armed Forces, the United States military opened ground combat units to women in uniform. We are also encouraging more girls to explore their passions for science, technology, engineering, and mathematics and taking action to create economic opportunities for women across the globe. Last fall, we finalized a rule to extend overtime and minimum wage protections to homecare workers, 90 percent of whom are women. And this January, I launched a White House task force to protect students from sexual assault.
"As we honor the many women who have shaped our history, let us also celebrate those who make progress in our time. Let us remember that when women succeed, America succeeds. And from Wall Street to Main Street, in the White House and on Capitol Hill -- let us put our Nation on the path to success."
It speaks volumes that Obama has made his Opportunity Agenda about initiatives to benefit women and families. These include:
Expanding women's access to education (women are disproportionately dependent on financial aid, and many enrolled women, especially those over the age of 25, are mothers, meaning they have additional considerations on their time and finances as they work to achieve their educational goals. ) To addressing this issue he is creating the $2,500 American Opportunity Tax Credit (AOTC); increasing the maximum Pell grant award by $1,000; keeping student loan interest rates low.
Ensuring that women have access to the skills they need to succeed in the workforce: increasing opportunities for STEM mentorship; providing real world job experience to high schoolers; focusing on job-driven training.
The White House is organizing five regional forums on women's issues hosted by senior administration officials that will take place across the country this spring, leading up to the White House Summit on Working Families hosted by the President on June 23. Also, the Small Business Administration and the National Women's Business Council are hosting a roundtable, STEM for Her, that will bring together the private sector, academic experts and other stakeholders to identify actions that can encourage more women entrepreneurs in STEM fields to start and grow their businesses.
"The feedback we hear at all of these events will help inform the Summit and our efforts to build 21st century workplaces that meet the needs of a 21st century workforce," the White House stated.
At this year's International Women of Courage Awards (did you know there is an Office of Global Women's Issues in the State Department?), First Lady Michelle Obama said, "They teach us that if a woman can fight torture and oppression and get her name on the ballot in Tajikistan; if she can break a glass ceiling and advocate for equality and tolerance as a bishop in Georgia; if she can go door to door, police station to police station, court to court to combat domestic and child abuse in Saudi Arabia -- if these women can do all of that, then surely we can summon a fraction of their bravery in our own lives and communities -- whether that means ending wage discrimination in the workplace, or fighting sexual violence on college campuses, or confronting any of the small injustices that we see every day."
"That is what this day is about. It's about understanding that while our circumstances may be different, in so many ways, the solutions to our struggles are the same. So when we see these women raise their voices and move their feet and empower others to create change, we need to realize that each of us has that same power and that same obligation."
Karen Rubin, Long Island Populist Examiner
Supreme Court Unanimously Rejects Challenge to Domestic Abuser Gun Law
Targeted News Service (USA)
March 26, 2014
https://infoweb.newsbank.com/
WASHINGTON, March 26 -- Brady Campaign to Prevent Gun Violence issued the following news release:
"Victory for Families Everywhere," According to The Brady Center to Prevent Gun Violence Washington, D.C. -
The U.S. Supreme Court today unanimously agreed that federal law prohibits all convicted domestic abusers from owning guns in U.S. v. Castleman. This is a victory over the corporate gun lobby that argued that federal law allows some domestic violence offenders to possess firearms. The Court rejected the gun lobby's argument as contrary to the federal Lautenberg Amendment, which prevents persons convicted of misdemeanor domestic assaults from owning guns.
"The overwhelming majority of Americans - and every Supreme Court Justice - agrees that guns and domestic violence are a deadly mix, and that we need to make it harder, not easier, for dangerous people to get guns," said Dan Gross, President of the Brady Center to Prevent Gun Violence. "This decision will save lives by keeping guns out of the hands of domestic abusers. Make no mistake, more needs to be done to expand and strengthen the Brady background check system to keep guns out of the hands of dangerous people."
"The U.S. Supreme Court's ruling is an important victory for women, children and families across the country, who thankfully will continue to be protected by strong, sensible federal laws that keep domestic violence abusers from obtaining guns," said Jonathan Lowy, Director, Legal Action Project, Brady Center to Prevent Gun Violence. "It is a telling indictment of the gun lobby's extremism that not a single Justice agreed with its call to explode a gaping hole in the law that would have enabled domestic abusers to buy and possess guns in many states."
In U.S. v. Castleman, a Tennessee man was charged with gun trafficking and illegal possession of a firearm, following a conviction for misdemeanor domestic assault in 2001. He argued that the Lautenberg Amendment did not bar him from possessing a firearm because the Tennessee domestic assault law did not require a sufficient degree of physical force. In 2010, a federal district court agreed, and the U.S. Court of Appeals for the Sixth Circuit upheld the ruling in 2012. The Supreme Court today unanimously reversed that decision.
"The ban on domestic abusers owning firearms has been an important part of federal firearms law since it was proposed by the late Senator Frank Lautenberg in 1996. Keeping guns out of the hands of domestic abusers unquestionably prevents gun violence. In 2010 alone, at least 574 women in the United States were shot to death by a husband, ex-husband, or boyfriend--that is more than one woman murdered by a domestic partner every day," added Lowy. "As the Supreme Court recognized, strong laws are needed to help remedy the undercharging of domestic assaults and difficulties in prosecuting domestic violence."
The Brady Center to Prevent Gun Violence filed an amicus brief opposing Castleman's arguments in November 2013. The brief was joined by numerous gun violence prevention organizations, including the Coalition to Stop Gun Violence, The Law Center to Prevent Gun Violence, Moms Demand Action for Gun Sense in America, States United to Prevent Gun Violence, and the Violence Policy Center. Jonathan Lowy is available for comment on today's ruling by the Supreme Court.
Arming All Personnel on Installations Unsafe, DOD Official Says
Targeted News Service (USA)
April 5, 2014
https://infoweb.newsbank.com/
WASHINGTON, April 4 -- The U.S. Department of Defense's American Forces Press Service issued the following news:
The Defense Department does not support allowing its personnel to carry weapons on military installations, Pentagon spokesman Army Col. Steve Warren said today.
"The department took a close look at this after the 2009 shooting at Fort Hood and again after [last year's] Washington Navy Yard shooting," Warren said.
Such a move would create a number of complications, he said, not the least of which is safety.
"Another reason is the ... prohibitive cost of the training, the qualification requirements [and] recertification," the colonel said.
There are legal obstacles as well, he said. Local, state and federal policy requirements pose numerous challenges.
Warren pointed at the Lautenberg Amendment to the Gun Control Act of 1968, which makes it illegal for persons convicted of misdemeanor domestic violence crimes to possess firearms or ammunition, as one example. Service members convicted of such crimes may continue to serve under certain circumstances, but still are prohibited from possessing firearms or ammunition.
"So, there are a lot of barriers to this besides the department's position, and we've spelled this out before that we do not support it," the colonel said.
The ongoing investigation into the shootings April 2 at Fort Hood, Texas, should be allowed to develop in due course, Warren said.
Defense Secretary Chuck Hagel has been clear that something did go wrong, the colonel said. "Now we're allowing this investigation to unfold before we make any major steps," he added. "The focus right now is on caring for the wounded, caring for the family members of those wounded and the greater Fort Hood community, and proceeding with the investigation."
Investigators are looking for potential gaps in the mental health care system or in security procedures, Warren said. One aspect of the investigation will cover whether red flags were raised about the alleged shooter by mental health professionals, he noted.
"It's entirely too early to make a judgment. ... We have to let the investigation unfold, and then we have to examine what we can do better," he said.
COMMON SENSE, PROTECTION PREVAIL
Times Union, The (Albany, NY)
Author/Byline: Gwen Wright - executive director of the state Office for the Prevention of Domestic Violence
April 26, 2014
https://infoweb.newsbank.com/
Domestic violence is a complex societal problem that requires a complex, multifaceted approach. A recent unanimous opinion by the U.S. Supreme Court recognizes this fact and will make a real difference by enhancing protections for victims of this crime.
In U.S. vs. Castleman, the court issued an important opinion about interpretation of the law that prevents people convicted of misdemeanor crimes of domestic violence from possessing firearms (the Lautenberg Amendment). This case held that the legal standard for force that would constitute a misdemeanor crime is less than the standard for force constituting a violent felony. Common sense? Yes, and that point was reinforced by the court's unanimity in the case, a rarity these days.
This case is particularly important for domestic violence victims because the court recognized that: (1.) Domestic violence is a crime unlike most others. (2.) Domestic violence offenders are often convicted only of misdemeanors. (3.) The presence of firearms in a home is highly correlated with lethality in domestic violence. (4.) The law that prohibits domestic violence perpetrators from having firearms is vital to victim safety and should be interpreted so it has broad application.
James Castleman, a Tennessee man, pleaded guilty in 2001 to "intentionally or knowingly" causing bodily injury to his girlfriend. When he was later charged with selling black-market firearms, and with possessing firearms in violation of the Lautenberg Amendment, he argued the crime for which he was convicted did not involve use of "physical force" as required in the federal statute, so he was not prohibited from possessing firearms. Based on a Supreme Court case interpreting "physical force" in the context of a law defining when someone can be classified as a "violent felon," Mr. Castleman convinced the trial court, and the 6th Circuit, that his argument made sense. The Supreme Court agreed to hear his case.
Justice Sonia Sotomayor, writing the majority decision, vividly outlined the problem of domestic violence and the increased likelihood of lethality when a firearm is present in a home where domestic violence is being perpetrated. She highlighted the benefits of Lautenberg and noted that interpreting "physical force" to mean the "violent" physical force required for the "violent felon" classification might render the law almost meaningless.
The New York state Office for the Prevention of Domestic Violence, which works to prevent domestic violence and improve the state's response to the crime, knows that this decision will save lives -- lives of the victims and lives of law enforcement officers who respond to this crime. We are happy to see common sense prevail.
Rhinelander man prevails in concealed carry lawsuit
Northwoods River News, The (Rhinelander, WI)
July 11, 2014
https://infoweb.newsbank.com/
A judge has ordered the state to issue a concealed carry license to a Rhinelander man, finding that his license application was improperly denied.
If appealed, the ruling could impact state law and how future concealed carry license applications are processed, according to the man's lawyer, who said he was unaware of any other instances in which a judge in Wisconsin has reversed the denial of a concealed carry license application.
The decision, written by Oneida County Circuit Judge Patrick O'Melia, is also notable given the sheer number of concealed carry licenses issued in Wisconsin.
The state Department of Justice, which administers the state's concealed carry law, has received more than 235,000 applications for concealed carry licenses since the law went into effect in 2011.
Though the lawsuit was filed last year, the case dates back to 1995, when the plaintiff, Raymond von Bober, II, was charged with one misdemeanor count of disorderly conduct in Vilas County.
A police report alleged von Bober "grabbed his wife by her arms with enough pressure to cause pain, and then shoved her into the kitchen."
He pleaded no contest, was ultimately convicted and paid a forfeiture of $202.
He had no prior convictions and has had none since.
Fast-forward 16 years later. The state Legislature in 2011 enacted the state's concealed carry law, allowing qualified persons to possess a concealed firearm.
Under the law, DOJ must issue concealed carry licenses unless applicants can be disqualified for any one of seven specific reasons.
One such reason is based on a federal statute. Called the Lautenberg Amendment after its sponsor, former New Jersey Sen. Frank Lautenberg, the law criminalizes possession of a firearm or ammunition after conviction of a misdemeanor crime of domestic violence.
That definition requires, as an element of the crime, the use or attempted use of physical force or the threatened use of a deadly weapon.
In Wisconsin, for example, the definition of disorderly conduct has two elements. Under the first element, the defendant must have engaged in "violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct." The second element requires that the conduct tend "to cause or provoke a disturbance."
Citing von Bober's 1995 conviction under the disorderly conduct statute, DOJ denied his application for a concealed carry license in April 2013. He filed suit the same month.
This past June, O'Melia issued a decision: DOJ had erred, he concluded, and he ordered the department to issue von Bober a concealed carry license.
The 18-page ruling is highly technical, but the essence of it is that there is ambiguity as to the precise basis for von Bober's disorderly conduct conviction.
"It is unclear whether the basis of the Petitioner's conviction was 'violent' or 'otherwise disorderly,'" O'Melia wrote.
That haziness matters, according to O'Melia, because the Lautenberg Amendment restricts firearms based on the legal definition of a crime -- not the actual facts of the case.
Even though the police report in von Bober's disorderly conduct conviction alleged use of physical force in a domestic violence context, the legal issue centers around whether the crime he was convicted of -- misdemeanor disorderly conduct -- actually requires the use of physical force.
Importantly, prosecutors did not attach a domestic violence enhancer against von Bober.
But even if there was clarity as to what von Bober was charged with -- for instance, if he was charged only with "violent" conduct -- O'Melia raised questions as to whether that charge would necessarily trigger the Lautenberg Amendment, which covers the use or attempted use of physical force.
O'Melia noted there is no definition of the term "violent" in state statutes, and that the charge of "otherwise disorderly conduct" can include mere speech and written statements - acts that clearly do not require the use of physical force.
Those are reasons why von Bober's attorney, Mark Maciolek, of Madison, has argued that a misdemeanor disorderly conduct conviction can never be considered a misdemeanor crime of domestic violence under federal law, and therefore not a legitimate basis to deny a concealed carry license.
But he's had trouble convincing other judges. In a case similar to von Bober's, the state Court of Appeals affirmed the denial of a concealed carry license earlier this year. In that decision, out of Dane County, the court noted that violent conduct "necessarily implies the use of physical force," though the court did not cite any legal authority or written definition in making that finding.
And just this week, a separate Court of Appeals panel upheld another denial of a concealed carry license, reciting the finding that "violent conduct necessarily implies the use of physical force."
Maciolek said he was not surprised by the difference in legal conclusions between O'Melia and the appeals courts, noting "there's a lot of confused law out there."
Indeed, Tom Grieve, a Brookfield lawyer who specializes in Second Amendment law, said judges around the country are grappling with similar issues.
"It's a question that we're seeing litigated actually across the United States right now," Grieve said. "It's something that we're watching courts struggle with."
Grieve, who praised O'Melia's ruling, said the task was "like translating French into German." The process of applying the Lautenberg Amendment to state law, he said, is heavily dependent on parsing legal language and precise definitions.
"I do think that there are fair questions about what specific words and what specific things need to happen in Wisconsin cases to determine whether or not those federal qualifiers are actually met on a case by case basis," Grieve said.
Aside from the legal arguments, Maciolek said the state could help resolve similar disputes by ensuring prosecutors issue charges that are most congruent with the facts of the case. Lowering the seriousness of charges, he said, has consequences.
"If the prosecution wants to ensure that there are certain collateral consequences that go with a conviction, then they need to choose the right crime to accuse somebody of," Maciolek said in an interview.
Whether the Department of Justice will appeal O'Melia's ruling was unclear as of press time. DOJ spokesperson Dana Brueck said the agency has not yet made a decision on that question.
Brueck said she too was unaware of any other cases in which a judge in Wisconsin has reversed the denial of a concealed carry license.
Wisconsin circuit courts have upheld denials of concealed carry license applications in at least three cases, according to Brueck. Two of those cases were appealed, and appeals courts affirmed the denials. A court has also upheld the revocation of a concealed carry license. Two cases -- one a denial of an application, the other a revocation of a license -- remain pending in circuit courts.
Brueck declined to otherwise comment on O'Melia's ruling.
Maciolek said if DOJ does appeal, there's a chance the case could clarify whether disorderly conduct convictions can ever be used to deny concealed carry licenses.
TAKING EFFECTIVE ACTION AGAINST PERPETRATORS OF DOMESTIC VIOLENCE
US Fed News (USA)
July 31, 2014
https://infoweb.newsbank.com/
WASHINGTON, July 30 -- Senate Judiciary Committee Ranking Member, Chuck Grassley, issued the following news release:
Mr. Chairman, we discuss today an important subject. All of us want to see the federal government take appropriate action to assist in fighting domestic violence, and especially domestic homicides.
I have met with many victims of domestic violence over the years. I feel compassion for the physical, mental and emotional injuries they have suffered. They have told me of the fear that they confront. And I want to take effective action against perpetrators of violence against women.
Today, I am one of the lead Republicans in a group of bipartisan senators who have come together on a bill to address sexual assault on our nation's college campuses.
To me, all domestic homicides are tragedies. It does not matter how the victim died. Forty-five percent of domestic homicides now do not involve guns, a figure considerably higher than in the 1980's.
In 1996, I voted for the Lautenberg Amendment. Those convicted of domestic violence misdemeanors were prohibited from owning firearms. So were those against whom permanent restraining orders were entered because of domestic violence.
For these prohibitions to be effective, records of the convictions and restraining orders must be entered into the national instant background check system.
So it distresses me that even now, all these years later, according to the Center for American Progress, "only 36 states have submitted any domestic violence misdemeanor convictions to the NICS Index, and of these, 21 states have submitted 20 or fewer of these records. ... An even smaller number of states have submitted records regarding restraining orders: 19 states have submitted domestic violence restraining order records to the NICS Index, and of these, 9 states have submitted 10 or fewer."
Mr. Chairman, I note that Rhode Island has submitted exactly zero misdemeanor domestic violence records to NICS and exactly zero domestic violence restraining order records. The corresponding numbers for Delaware are zero and zero; Hawaii, three and zero; Illinois, one and zero; Minnesota, sixteen and two; New York, zero and ten; Vermont, two and zero.
These states are failing to do their jobs.
Iowa ranks near the top among the states in this regard, but we still need to do better.
Seventy-nine percent of the records submitted come from three small states. As the report notes, "If all states submitted records of misdemeanor domestic violence convictions at the average rate of these three states, we can project there would be 2.9 million records in the NICS Index in this category, more than 40 times the number currently submitted."
This means that large numbers of prohibited persons under the law today can purchase a firearm through legal channels because the instant background check system fails to identify them as such. Our NICS system is full of holes with respect to current gun prohibitions, greatly reducing the effectiveness of background checks.
Last year, Senator Cruz and I offered an amendment to legislation before the Senate that would have helped fix the NICS system. Our amendment would have improved state compliance with NICS reporting for mental health records for prohibited persons.
It received the most bipartisan support of any similar legislation, but failed to get the needed 60 votes. We should do the same with respect to persons who have been convicted of domestic violence crimes and subject to permanent restraining orders. We should be able to gain a bipartisan effort to enact legislation of this type.
But that is not the majority's approach.
There are two bills before the committee on domestic gun violence.
One of them, from Senator Klobuchar, expands the definition of prohibited persons to include dating violence, beyond the cohabitating relationships in current law, as well as to add convicted stalkers to the list of prohibited persons.
Another, by Senator Blumenthal, also expands the relationships, and would make those subject to temporary restraining orders, entered without notice to the alleged abuser, prohibited persons.
A significant problem exists with the completeness of background checks under current law. It is hard to believe that expanding the universe of prohibited persons whose records will not show up when a background check is performed will reduce gun homicides.
I fear that false hopes are again being raised. In many states, few persons are convicted of misdemeanor stalking. In Maryland, for instance, zero were convicted of that crime last year, one in Arkansas, and five in New Mexico. Making these offenders prohibited persons will not accomplish very much, even if their records made it into NICS, a questionable assumption.
These bills would expand retroactively the definition of a prohibited person. But they will also make actual individuals who were allowed to own guns criminals retroactively, not by virtue of their crime, but from passing the bill.
Who is going to spend the time and personnel to go over every domestic violence conviction record and examine the relationship between the parties to determine whether they fit the definition of these bills? Who is going to actually input those records into NICS?
Suppose someone determines erroneously that a prior conviction was for conduct against a dating partner. What recourse will the individual have to demonstrate that he is not a prohibited person? How will guns actually be taken from prohibited persons? How soon would an officer be diverted from another law enforcement activity to remove these guns?
The restraining order provisions could pose even greater problems. In a large percentage of cases, temporary restraining orders issued without notice to the defendant do not lead to permanent orders. Yet, the constitutional rights of the accused would be taken away without due process. That person will not know that he or she is a prohibited person if, during the brief period the order is in effect, law enforcement should show up to take away the gun.
We should also be very skeptical that a temporary order will be entered into NICS in time to stop someone from passing a background check. Making existing NICS records more complete is far more likely to make a difference in domestic violence homicides, especially gun homicides, than the bills the Committee is considering.
I understand that domestic violence advocates asked the majority to hold a hearing on domestic violence homicides many months ago but were repeatedly put off. The Klobuchar bill was introduced more than one year ago. But only as we are about to head out of town, with very few legislative days remaining, did the majority grant the advocates their request for a hearing. Only as the number of days until the election grew short did the committee schedule this hearing.
The committee has not held a markup for bills for two weeks now. Had the majority been serious about reducing domestic homicide, we had the time to work together to come up with a bipartisan solution. There was a real opportunity in this Congress for a bipartisan effort to combat intimate homicides of all kinds. That opportunity was squandered.
The bills before the committee today could exacerbate the problem of keeping currently prohibited persons from owning firearms. I hope that going forward, we will work together to find bipartisan, well thought out, practical ways to protect women and men from violence of all kinds.
Senators discuss protecting women from gun violence
Daily Record of Rochester (NY)
August 1, 2014
https://infoweb.newsbank.com/
Elvin Daniel is helping to raise his sister Zina’s children because she is no longer around to take care of them.
“Every happy milestone is now covered in sadness,” he said. “Mother’s Day is now a day to survive, rather than celebrate because we know that Zina isn’t here to watch over her girls. She won’t be able to take pictures of her youngest daughter dressed up for prom or congratulate her daughters on their wedding day and dance with them. Those moments will be happy and sad at the same time. I’m committed to honor her memory, but working to reduce the number of women killed.”
Zina Daniel Haughton was 42 when she was shot down at her Wisconsin workplace on Oct. 21, 2012, by her abusive ex-husband who also killed two of her co-workers and wounded four others before taking his own life.
Just two days before, an order of protection had been issued against Radcliffe Haughton and his information had been entered into the National Instant Criminal Background Check System, but he skirted the law and was able to buy a gun through a website, paying $500 cash to a seller he met in a McDonald’s parking lot.
“It has been nearly two years since Zina was murdered and it is heartbreaking to know that our weak gun laws continue to allow dangerous abusers to buy guns without a background check,” Daniel told members of the Senate Judiciary Committee, choking back tears.
With a portrait of his sister in front of him, Daniel, a self-described proud Republican, gun owner, National Rifle Association member and strong supporter of the Second Amendment, testified in favor of common-sense gun laws requiring background checks for everyone and keeping guns out of the hands of abusers.
Daniel was one of five witnesses, most with tragic accounts, at a hearing on the “Violence Against Women Act Next Steps: Protecting Women from Gun Violence.”
“American women are 11 times more likely to be killed with guns than women in any other industrialized country,” said Sen. Sheldon Whitehouse, D-R.I., who chaired the hearing, filling in for Chairman Sen. Patrick Leahy, D-Vt. “Put another way, women in the United States accounts for 84 percent of all female firearm victims in the developed world.
“Of all the women murdered in this country, more than half are killed by family members or intimate partners,” Whitehouse said. “If fact, when a gun is present in a domestic violence situation, it increases the risk of homicide (against] women by 500 percent.”
Ranking minority member Sen. Charles E. Grassley, R-Iowa, noting all domestic homicides are tragic, indicated appropriate measures are already in place, such as the Lautenberg Amendment, also known as the Domestic Violence Offender Gun Ban, which he voted for in 1996.
He said the law prohibits those convicted of misdemeanor domestic violence or under a restraining order of protection from owning firearms. To be effective, Grassley said the information has to be entered into the National Instant Criminal Background Check System, but only 36 states submit any information.
He ran down statistics on some of the worst, noting New York has not submitted any records of misdemeanor domestic violence convictions and only 10 filings on restraining orders.
“Our NICS system is full of holes with respect to the current gun prohibitions, greatly reducing the effectiveness of background (checks],” Grassley said, noting he and Sen. Ted Cruz, R-Texas, offered an amendment last year he said would have helped fix the system, but it failed to receive the required 60 votes.
Before the committee are two new bills. One by Sen. Amy Klobuchar, D-Minn., the Protecting Domestic Violence and Stalking Victims Act, would expand prohibitions to include convicted stalkers and people dating, as opposed to just married couples or those cohabitating.
A proposal by Sen. Richard Blumenthal, D-Conn., the Lori Jackson Domestic Violence Survivor Protection Act, would prevent someone subject to a temporary restraining order from buying a firearm and expand federal law to protect individuals who have been victims of abuse by dating partners. The bill is named after a murdered victim whose parents were in the audience.
Blumenthal said in most states, people under a temporary restraining order can lose access to their home, children and car, but under federal law, can still keep their guns.
“Somebody might be considered too dangerous to see their son, but not too dangerous to buy a handgun and because of that loophole in our law, abuse victims are the least protected by the laws of our nation at the moment they are in the most danger,” he said.
Joyce Lee Malcolm, Patrick Henry professor of constitutional law and the Second Amendment at George Mason University School of Law, said the proposed bills violate the Second Amendment, a right against unreasonable search and seizure, and due process.
“A fact very seldom advertised is that homicides in this country have been down sharply for the last 20 years, as well as other violent crimes,” she said, noting the last time the rate for serious crimes was this low, the cost of a gallon of gasoline was 29 cents and the average working person made $5,807 a year.
Malcolm said a new focus on stalking and expanding the definition of “intimate partner” to include non-cohabitating individuals would involve not just serious acts of domestic violence, but bullying and a wide range of other acts under the definition of harassment, “which can be verbal and very vague.” She said the result is large numbers of people who might be convicted of verbally harassing someone would lose their right to own a firearm.
Malcolm said a mere allegation could have police searching homes for firearms without any kind of a hearing, calling it “sentence first, verdict afterwards.” She said another troubling aspect is the laws would be retroactive so many people who have accepted plea bargains with the intent of knowing what that entailed would find they no longer have a right to be armed for the rest of their lives.
Justice Seamus McCaffery, of the Supreme Court in Pennsylvania, asked where all the newly convicted people would be housed, noting there has been a movement to reduce prison populations.
He said to keep in mind there are two parties — the accused and accuser and that his goal has always been to have a level playing field.
He suggested a more proactive approach to deal with the problem is prevention, saying police have GPS technology and can know if a convicted stalker is approaching his victim and can get there to prevent violence before it happens.
Justice McCaffery said legislation is great, but at the end of the day, some woman in a row house in North Philadelphia is going to be battered, probably has been for years and when the case comes to court, she and her abuser kiss and hug and the case disappears, leaving a frustrated prosecutor and even more frustrated police.
“My point is we need to do things that really make things happen,” he said. “You want to send a message out there, you put that bracelet on the abuser, you come within a mile of that victim and not only will you be locked up, but it will be strict, it will be swift and it will be really really bad for you.”
Racine County, Wisconsin Sheriff Christopher Schmaling said he is also a conservative Republican, but is in favor of the Klobuchar and Blumenthal proposals.
He said more than half of the women murdered each year are killed by intimate partners, increasingly by boyfriends, and that domestic violence not only poses a threat to the victims, but to his deputies.
“Any cop will tell you that domestic violence calls are the most dangerous calls that law enforcement officers respond to,” he said. “The last thing that victim needs and the last thing my officers need is a dangerous abuser armed with illegal weapons. Abusers routinely threaten to shoot my deputies prior to our arrival at domestic violence calls.”
Schmaling said FBI statistics show 150 law enforcement officers have been killed in action while responding to domestic disturbances.
The United States has a higher homicide rate of women than all other westernized countries and is among the highest in the world, according to Dr. Jacquelyn Campbell, professor and Anna D. Wolf chair at John Hopkins University School of Nursing, who said she was testifying as a citizen, nurse and with the endorsement of the American Academy of Nursing.
“This disparity is particularly pronounced for homicides of women committed by guns, in which the country’s rate exceeds by 11 times the average rate in other comparable countries,” she said.
Texas Dems: Texas Republicans Commemorate the Violence Against Women's Act
Targeted News Service (USA)
September 14, 2014
https://infoweb.newsbank.com/
AUSTIN, Texas, Sept. 13 -- The Texas Democratic Party issued the following news release:
When the Violence Against Women Act was signed into law in 1994 it had significant bipartisan support. It was reauthorized in 2000 and again in 2005 with support from both parties. But in 2013, many Texas Republicans voted against a bipartisan reauthorization.
Its not only in Washington, D.C. that Republicans are waging a war on women. Here in Texas the top of the Republican ticket, Greg Abbott, and Dan Patrick have been actively working against the well-being of women.
Chairman of the Texas Democratic Party Gilberto Hinojosa released the following statement:
"The war on women is real, and the heart of the battle is right here in Texas.
"Texas Republicans, from Ted Cruz to Greg Abbott to Dan Patrick, continue to treat women like second class citizens. From voting against VAWA, to cutting funds for victims assistance programs, and opposing funding for rape kits, Republicans continue to make it clear that women and their safety, health, and well-being are not a priority for them."
Background on Texas Republicans And Violence Against Women
Greg Abbott Supported Reducing Funding For Victims Assistance Program
* Abbott's Legislative Appropriations Request Reduced Funding For The Compensation to Victims of Crime Fund Grant Program By 57 Percent. According to the Attorney General of Texas' 2014-15 Legislative Appropriation Request, "based on the formula prescribed by the Crime Victims' Act, the OAG currently estimates that just $42.8 million will be available for grant awards to crime victim services organizations during the FY '14-'15 budget cycle. As required by the Act, that calculation is based on the CVCF's projected available balance after accounting for compensation payments to crime victims and their families. Under this scenario, CVCF-funded grant awards to crime victims service organizations must be reduced by $45 million - an amount that reflects a 57% reduction from FY '12-'13 funding levels. Accordingly, the OAG's Legislative Appropriations Request reflects a 57% reductions in funding for the CVCF grant program, which is equally apportioned on a pro rata basis among all program participants."
Dan Patrick Repeatedly Voted Against Measures To Aid Victims of Rape and Domestic Violence
* Patrick Opposed Funds For Rape Kits, Leaving Rapists To Go Free In Texas. In May of 2013, Patrick voted against SB 1, the general budget bill for 2014 and 2015, which allocated funding for rape kits. The bill was signed by the governor. In June 2013, Texas Tribune reported, "The final [2013] budget also allots the Texas DPS $11 million to help address the state's massive backlog of untested rape kits. In 2011, the Legislature passed Senate Bill 1636, by state Sen. Wendy Davis, D-Fort Worth, which requires that state law enforcement agencies report the number of untested rape kits and submit a certain number to DPS for testing. The line item will cover the outsourcing costs to have the kits tested, and DPS estimates that based on historical data, about half of the untested kits will yield traces of DNA."
* Patrick Advocates Nullifying Federal Restrictions On Gun Ownership. Under a page on his official website titled "Dan Patrick Defender of the Second Amendment," Patrick pledged to "nullify federal laws that go against our second amendment right to bear arms."
* The Lautenberg Amendment To The Federal Gun Control Act Prevents Convicted Domestic Abusers From Owning Firearms. As of September 30, 1996, the Federal Gun Control Act was amended via the Lautenberg Amendment to make it "a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition." [Army Study Guide, accessed08/08/14 (l)]
* Patrick Voted Against Streamlining the Process For Victims Of Domestic Violence To Get Unemployment Compensation. On May 21, 2007 Sen. Dan Patrick voted against HB 550 on third reading and final passage as amended. According to the Enrolled Bill Summary for HB 550, "Previous law specified that unemployment benefits paid to an employee or former employee could not be charged back to the employer's unemployment tax account and an employee could not be denied unemployment benefits if the employee resigned because of family violence or stalking and provided three forms of documentation of such activity, one of which was a physician's statement or other medical record of family violence. House Bill 550 amends the Labor Code to prohibit the chargeback or denial of benefits if the employee presents any one of the forms of documentation and requires that the physician's statement or medical record identify the employee as the patient and relate to the patient's history, diagnosis, treatment, or prognosis." The bill passed the Senate 28 to 3 before it was signed in to law by Governor Perry. [Senate Journal: 80th Legislature, 05/21/07, pg 2452; 80th Legislature, Enrolled Bill Summary:HB 550]
Texas Congressional Republicans Opposed Violence Against Women Act
* Both Texas Senators Voted Against Reauthorizing the Violence Against Women Act. U.S. Senators John Cornyn and Ted Cruz voted against the Reauthorization of the Violence Against Women Act of 2013. [S 47, Vote Number 19,2/12/2013]
* The Majority of The Texas Republican Congressional Delegation Opposed Reauthorizing the Violence Against Women Act. All but two members of the Texas Republican delegation voted against the Reauthorization of Violence Against Women Act of 2013. [S 47, Roll Call Vote 55,2/28/2013
The false promise of background checks
Jeff Knox explains controllers' 'incremental approach to achieving their true goals'
WorldNetDaily (USA)
Author/Byline: Jeff Knox
September 25, 2014
https://infoweb.newsbank.com/
The idea of background checks for firearm purchases seems to sound sensible, but the reality is much different from the appearance. In truth, expecting firearm background checks to stop criminals is like trying to catch a few particular salmon during spawning season by placing a rock in the middle of the stream and watching for the specific fish to jump over the rock.
There are more than 15 million NICS background checks processed every year, totaling over 180 million checks since the program’s inception in 1998. Between 98 and 99 percent of those checks were on regular, unrestricted people – most of whom already owned at least one firearm. Of the few prohibited persons caught trying to purchase a firearm, the vast majority didn’t realize they were prohibited and had no criminal intent. In 2010, which is typical of recent years, only about 60 individuals – out of 15 million – were considered worthy of prosecution, and only 13 people – out of 15 million – were actually convicted of illegally trying to purchase a firearm. Not a very impressive return from a program that infringes on an enumerated constitutional right – that “shall not be infringed” – and has cost taxpayers an estimated $2 billion dollars so far.
Now the same people who brought us this incredibly inefficient and wasteful system want to expand it to include private transfers between individuals. Again, the idea seems, on the surface, logical and reasonable. But again, it is just another rock in the stream – a minor obstacle at best. The arguments in favor of so-called “universal background checks” are, in part, an acknowledgment that the present system can’t work; there’s just too much stream around the rock. One more rock in a wide flowing stream won’t stop, or even perceptibly slow the flow. There will always be plenty of ways for those wishing to acquire guns for criminal purposes to easily get them. Criminals get guns by stealing them, buying them on the black market, or by convincing a girlfriend, family member, or paid associate to purchase them.
The idea of “universal background checks” sounds good and seems reasonable, but it is a fantasy that cannot work to keep guns away from criminals. What it would do is increase the cost of firearms, some by as much as 30 to 40 percent, encumber the law-abiding with additional regulations and generate a paper trail that could be – and historically has been in places like California, New York and New Jersey – later used for registration and confiscation. Even a recent special commission set up by the president concluded that background checks on private transfers would be ineffective at reducing illegal gun trafficking unless there was also universal registration of all guns and gun owners – something Americans are vehemently opposed to.
So why are advocates like billionaire Mike Bloomberg pushing so hard for something they know will not produce the results they say they are after?
The answer is that anti-rights advocates have a proven, incremental approach to achieving their true goals. They push for whatever legislation they can get, then when it proves ineffective, they point to the law’s failure as proof that their next solution is desperately needed.
Up until 1968, anyone could buy a gun just about anywhere. Hardware stores, gas stations and general stores all sold guns, and guns could be purchased through the mail from catalogs or ads in the backs of magazines. That changed with passage of the Gun Control Act of 1968, but for the next 30 years crime continued to rise. The law failed to do what its backers promised, but that failure was touted as proof that stricter measures were needed, and we got the Brady Background Check Law, the Lautenberg Amendment expanding the “prohibited person” list to include people convicted of certain types of misdemeanors and the Clinton “Assault Weapons” Ban. None of those “desperately needed” measures accomplished what their proponents claimed they were going to accomplish, and each time, that failure was pointed to as proof that more laws were needed.
Gun control laws simply don’t work. That’s a historical fact. They impact the law-abiding, and often harm the innocent – like Shaneen Allen. Criminalizing private transfers – which is what “universal background checks” really do – will not reduce crime or save lives. It is just a reasonable-sounding proposal to increase the cost and inconvenience of exercising a constitutional right. Ask any proponent of these laws what they will do if the law is passed. If they are honest they will go into a litany of other laws and regulations they want to see enacted culminating in the total restriction of firearms in private hands.
Anti-rights zealots are never satisfied. Each reasonable-sounding proposal is just another incremental step toward the next, more restrictive proposal, and each failure of their laws to accomplish their stated goals is their excuse for the next restrictive, unworkable scheme.
Gun laws are not about public safety or crime reduction or, or even gun control. They’re about government control over citizens.
Bloomberg Moms’ political spots relied on deceptive voter manipulation
News & Politics Examiner (USA)
November 12, 2014
https://infoweb.newsbank.com/
Employing the same cynical political strategy and contemptuous duping of "stupid" voters as Obamacare promoters, Michael Bloomberg’s Moms Demand Action relied on deception to exploit ignorance, prejudices and fears in the midterm elections, a Gun Rights Examiner analysis of social media messages on TPM Livewire demonstrates. The professionally-produced “Explain Your A” campaign featured in the story targeted three Republican candidates who had received high marks from the National Rifle Association: Carl Domino of Florida, Paul Chabot of California, and Larry Kaifesh of Illinois.
“Does your A grade from the NRA mean you support gun rights for suspected terrorists?” the attack on Domino read. Along with his picture, the Moms included a photo of Al Qaeda’s American-born propaganda tool, Adam Gadahn, whose previous affiliations in the “gun control” debate were with anti-gunners shamelessly exploiting another lie, that full-auto weapons could be bought without background checks and IDs at U.S. gun shows.
“Does your A grade from the NRA mean you support the rights of felons to buy and own guns?” the hit piece on Chabot asked. His portrait was paired with a heavily tattooed prisoner behind bars.
“Does your A grade from the NRA mean you oppose taking guns from domestic abusers?” the smear against Kaifesh insinuated. Accompanying his picture was the image of a distraught, heavily-mascaraed woman with her fists clenched against her cheeks suggestive of both Edvard Munch’s “The Scream” and MacCaulay Culkin in “Home Alone.” For some unexplained reason, the model in the staged photo shoot has what appears to be masking tape across her mouth -- either that or she’s wearing a turtleneck like Mort from “Bazooka Joe” comics. With these crazy MILMs, who the hell knows?
“If they can get you asking the wrong questions, they don't have to worry about answers,” novelist Thomas Pynchon noted in “Gravity’s Rainbow.” In this case, the minds behind the Moms ask those questions for us in order to manipulate emotions and suppress critical examination. After all, who wants terrorists, gangbangers and wife-beaters shooting victims?
The targets of the misleading Bloomberg hit pieces are enabling nothing of the sort, of course. And nothing being demanded would stop the bad guys anyway.
If a person is a known threat, public safety demands he be apprehended. If he’s only a suspected threat, there’s this little protection we’re supposed to have called due process, where people get a trial, are proven guilty and are sentenced. What they’re going for here is a “terror watch list” for guns, as if tipping off those who are under surveillance makes for smart intelligence work. What they’re also going for is people who are not in custody being stripped of fundamental rights and liberty, not that the Bill of Rights means anything when you‘re a “progressive” with an agenda to shove down throats. Besides, there’s another, bigger deception going on: These people are using fear of an Al Qaeda boogeyman to justify deprivation of liberties they really want extended to those they paint as domestic terrorists – that is, anyone who believes the right to keep and bear arms is a legitimate deterrent to tyranny, and in a last-resort right to rebellion.
OK, but what about felons, that is, people who have already received their due process? We’ll put aside my longstanding contention that anyone who can’t be trusted with a gun can’t be trusted without a custodian, and focus on the way things are. Such criminals are already prohibited by law from having a gun – for all the good that does at stopping them. What the Bloombergians want here is to end all lawful (!!!) private sales and transfers, done under another deception as we’re seeing unfold in Washington State, so-called “universal background checks.” And yes, of course they’re aware that the National Institute of Justice produced a “Firearm Violence Prevention Strategies” report in which it concluded “Effectiveness depends on the ability to reduce straw purchasing, requiring gun registration...”
So of course what they really want is gun registration (something the gun-grabbers know felons are exempted from, because requiring it of them would violate their right against self-incrimination). If all they really intended was to ensure recipients of firearms transfers were legally eligible, “common sense gun safety advocates” would be promoting a Blind Identification System, which could verify no legal impediment to a transfer exists but record no information identifying either gun buyers or what they purchased. And, again of course, the real reason they want registration is to facilitate confiscation.
This is where the ignorant and the intentionally deceptive chime in with accusations of paranoia, and ridicule that "No one wants to take your guns." Of course they do. That's what this is all about -- and always has been. But don’t take my word for it: take the word of The Hartford Courant, which is urging Gov. Dannell Malloy to do just that, and to ruin the lives of “scofflaws” in the bargain.
So what about the wife-beaters? This one is like the old Certs commercials, with two, two, two edicts in one. The grabbers are not only going after ending private sales, they also want to try another end run around due process. Understand that domestic abusers are already prohibited persons “thanks” to the Lautenberg Amendment, which caught some up in its citizen disarmament net that no one in their right mind would find dangerous. But Bloomberg & Co. aren't satisfied just taking guns away from people convicted of domestic abuse. They also need to stomp a police state boot in the faces of people merely accused of such a crime.
See?
Then again, who ever heard of a vengeful, jilted or bipolar ex-spouse making things up just to make life hell for a former partner? In the immortal words of Rex Kramer, “That never happens. Sorry ... it's a dumb question, skip that.”
This Bloomberg character and all his Gundupes are incapable of honestly holding that “national conversation on guns” they say they want (but really don’t). Plutocrat funding to buy elections isn't enough for them, nor is the endless line of “real reporters” eager to supplement those efforts with shamelessly blatant PR presented as “news.” It’s not enough because nothing is ever enough for those compelled to control all, to control you.
That’s why, on top of everything else, they lie.
Wyoming Gun Laws: Quotes From Heated Debate
Newsmax.com
December 11, 2014
https://infoweb.newsbank.com/
Wyoming leaders have consistently pushed for strong laws to protect gun owners, even standing up to federal gun regulations, making those restrictive laws unenforceable within Wyoming borders.
Whether or not Firearms Freedom Acts, which say that guns manufactured within state borders are not subject to federal regulations, will hold up when challenged in court, passage of such acts was a way for Wyoming to make a statement about firearms and freedom.
The act, passed by Wyoming in 2010, was “harsher” than the laws passed by other states because it included a section saying that any federal official trying to enforce federal gun laws in the state could be subject to a $2,000 fine and a year in prison.
As is always the case with gun laws, the debate around such acts and regulations sometimes gets contentious. In the last year, Wyoming has failed to pass a law that would allow public school teachers to carry concealed weapons on school grounds and another that would have barred the enforcement of federal regulations regarding the size of magazines and whether semi-automatic weapons were banned.
Here are six quotes that have come out of contentious gun issue debates:
• "We have no state laws to keep guns out of those who we should be keeping guns away from," Suzan Campbell, of the Wyoming Coalition Against Domestic Violence and Sexual Assault, told Wyoming Public Media. "No state laws. We rely on the federal law, the Lautenberg amendment and that doesn’t even really get enforced. I think we’re probably at the bottom as far as having any state laws to try to deal with that because we just don’t. We actually try to extend people that can get guns instead of trying to keep it away from those that shouldn’t get it."
• State Rep. John Eklund proposed a bill passed by the Wyoming House in February that would allow school employees to carry a firearm on school property. (It later died in the Senate.) “I believe that it might be a deterrent for a terrorist or criminal to break into a school or harm our kids,” Eklund told The New American. “It might be a deterrent to know that there might be guns waiting on the other side of the wall.”
• Not everyone agreed with Eklund’s bill. “I don’t want a student to be injured because something happens,” The New American quoted Kathy Vetter, president of the Wyoming Education Association.“We’ve had people drop their guns right here in Cheyenne in businesses and people have been hurt.”
• State Rep. Kendell Kroeker proposed a bill that would make it a felony to enforce federal gun laws, including assault weapon bans and high-capacity gun magazine bans. “We take the Second Amendment seriously in Wyoming. I take an oath to uphold, support and defend the Constitution of the United States and the constitution of Wyoming," Kroeker told The Huffington Post. "I believe it is my duty to take that oath seriously. If the federal government is going to pass laws taking back our rights, it is our right as a state to defend those rights."
*State Sen. Larry Hicks spoke with the Washington Examiner about Kroeker’s proposed legislation, telling the newspaper that his constituents were concerned about Washington’s attempt to take their gun rights. “They are very, very upset that we’re going to see some level of federal takeover of our weapons and abuse of our rights given to us by the Second Amendment,” Hicks said. “Also that the federal government will bypass our legislative officials and confiscate our weapons through executive order. This gives citizens of the Western United States a great deal of concern.”
• Kerry Drake, columnist for Wyofile, wrote about Wyoming’s joining in a “friend of the court” brief about New York gun laws: “Not content to pass gun laws for its own citizens, the state of Wyoming is attempting to force its will on the people of New York. … I don’t understand. Wyoming and its conservative neighbors continually preach about states’ rights, and the fundamental premise states should be allowed to make their own decisions about guns within their borders. Yet here we are telling New York it’s wrong; we and like-minded states know what’s best for the safety of its citizens.”
This article does not constitute legal advice. Check the current gun laws before purchasing or traveling with a firearm.
2015: Lautenberg DV Gun Ban - News Articles And Reports
Criminal - Firearm - Domestic violence
Massachusetts Lawyers Weekly (MA)
February 3, 2015
https://infoweb.newsbank.com/
Where two defendants pleaded guilty after being indicted under 18 U.S.C. §921(a)(33) for possessing a firearm following a misdemeanor domestic violence conviction, the denial of the dismissal motions must be affirmed despite the fact that the state statute that formed the basis of the domestic violence convictions applies a recklessness standard.
“The Supreme Court has directed us, in light of United States v. Castleman, 134 S. Ct. 1405 (2014), to consider again our decision in these two cases that both defendants had indeed been convicted under state law of ‘misdemeanor crimes of domestic violence,’ as defined in 18 U.S.C. §921(a)(33)(A), even though the state statutes allowed conviction based on a recklessness mens rea. .. . If so, then their motions to dismiss their federal charges for possessing firearms after such convictions, in violation of 18 U.S.C. §922(g)(9), were properly denied.
“Our answer is informed by congressional recognition in §922(g)(9) of the special risks posed by firearm possession by domestic abusers. ‘Domestic violence often escalates in severity over time ... and the presence of a firearm increases the likelihood that it will escalate to homicide. ...’ Castleman, 134 S. Ct. at 1408. It is also informed by the congressional choice in the federal sentencing scheme to honor each state's choice as to how to define its own crimes, through statutory text and judicial decision.
“As we see it, this case turns on the unique nature of §922(g)(9). That section is meant to ensure that individuals who engage in the ‘seemingly minor act(s]’ that actually constitute domestic violence, like squeezing and shoving, may not possess a firearm. Castleman, 134 S. Ct. at 1412. This range of predicate acts is broader than that found in other federal prohibitions involving the use of physical force. Applying the teachings of Castleman, we find that Maine's definition of reckless assault fits within §922(g)(9). …
“To be clear, we do not decide that, on the spectrum from negligence to intentional acts, recklessness is always closer to the latter. … We also do not decide that recklessness in the abstract is always enough to satisfy §922(g)(9). We decide only that the Maine definition is sufficiently volitional that it falls within the definition of ‘use of physical force’ applied in §922(g)(9). …
“The question before us is a narrow one. We are asked to decide whether a conviction for reckless assault against a person in a domestic relationship in Maine constitutes a federal ‘misdemeanor crime of domestic violence.’ Congress in passing the Lautenberg Amendment recognized that guns and domestic violence are a lethal combination, and singled out firearm possession by those convicted of domestic violence offenses from firearm possession in other contexts. Castleman recognizes as much.”
Dissenting judge’s comments
Torruella, J. “The majority opinion concedes that this case presents a ‘close’ question. ... I agree. Given the Supreme Court and circuit court cases interpreting similar statutes and holding that merely reckless conduct is insufficient to constitute the ‘use’ of physical force, I believe that the rule of lenity also forecloses the defendants' convictions here. …
“The Lautenberg Amendment is premised upon grave concerns and laudable purposes, as articulated both by the Supreme Court in Castleman and by the majority in this case. I share those concerns and strongly agree with those purposes. However, a general agreement with those goals need not dictate the result here. This case does not present a litmus test for judges, asking whether we oppose domestic violence and gun violence. Were our job so simple, it would be an easy matter to decide in favor of the government. But that is not our role. Our judicial obligations preclude us from such results-oriented decision making.
“Rather than deciding on the basis of personal beliefs and policy preferences, or seeking to ensure that the Lautenberg Amendment encompass the broadest possible swath of conduct within its ambit, this case requires us to engage in statutory interpretation. This legal task implicates the difference between Congress's broad policy goals versus the precise statutory language employed to achieve those ends. That is, does the language chosen by Congress — the ‘use or attempted use of physical force’ — necessarily apply to all Maine misdemeanor assault convictions for recklessly causing offensive physical contact? Applying the relevant precedent to this question of statutory interpretation counsels that we answer this inquiry in the negative and resolve this appeal in favor of the defendants. I conclude that the particular subsumed Maine offense at issue here, the reckless causation of offensive physical contact, does not necessarily require the ‘use ... of physical force’ and thus does not categorically constitute a misdemeanor crime of domestic violence under the Lautenberg Amendment.
“For the reasons stated herein, I would reverse the defendants' convictions. Indeed, I believe that the Supreme Court has obligated us to do so. Therefore, I respectfully dissent.”
United States v. Voisine, et al. (Lawyers Weekly No. 01-019-15) (98 pages) (Lynch, C.J.) (Torruella, J., dissenting) (1st Circuit) Appealed from the U.S. District Court for the District of Maine (Docket Nos. 12-1213 and 1216) (Feb. 2, 2015).
Evaluation of the Defense Criminal Investigative Organizations' Compliance with the Lautenberg Amendment Requirements and Implementing Guidance
Targeted News Service (USA)
February 7, 2015
https://infoweb.newsbank.com/
WASHINGTON, Feb. 6 -- The U.S. Department of Defense Office of the Inspector General issued the following audit report:
Objective
We evaluated the Defense Criminal Investigative Organizations' (DCIOs') compliance with the requirements in the Lautenberg Amendment as implemented by DoD Directive (DoDD) 5210.56, "Carrying of Firearms and the Use of Force by DoD Personnel Engaged in Security, Law and Order, or Counterintelligence Activities," and DoD Instruction (DoDI) 6400.06, "Domestic Abuse Involving DoD Military and Certain A ffiliated Personnel." Specifically, we determined whether the DCIOs have adequate procedures and processes to ensure:
* a qualifying domestic violence conviction (state or Federal convictions for misdemeanor crimes of domestic violence, felony crimes of domestic violence (adjudged on or after November 27, 2001), or general or special court-martial convictions for Uniform Code of Military Justice offenses otherwise meeting the elements of a crime of domestic violence) can be identified prior to entrance on duty;
* domestic violence convictions are reported for all their personnel during their employment with the DCIO;
* personnel actions are taken if a qualifying domestic violence conviction is discovered or occurs after an employee enters on duty; and
* qualifying domestic violence convictions are documented.
Findings
The DCIOs did not comply with the Lautenberg Amendment as implemented by cited DoD policies in the following areas.
* U.S. Army Criminal Investigation Command (USACIDC) did not require personnel applying for covered positions to use the DD Form 2760 to certify that they did not have qualifying convictions, in accordance with DoDD 5210.56 and DoDI 6400.06.
* Defense Criminal Investigative Service (DCIS), USACIDC, and Naval Criminal Investigative Service (NCIS) did not have clear and consistent policies regarding the disposition of privately owned firearms and ammunition by agents found to have a qualifying conviction.
* DCIS, USACIDC, and NCIS did not periodically inform employees in covered positions that they have an affirmative, continuing obligation to inform their commander or supervisor if they have an existing qualifying conviction or later obtain one. * DoDI 6400.06 paragraph 6.1.5 requires a memorandum of understanding (MOU) between DoD and civilian law enforcement agencies for the purposes of sharing information about domestic violence incidents involving DoD employees. USACIDC, NCIS, a nd A FOSI h ave not established MOUs in accordance with DoDI 6400.06, but the requirement is redundant because DoDI 6400.06 also requires an MOU between base legal officials and civilian prosecuting attorneys.
Despite the findings identified, we determined that it is unlikely the DCIOs hired or retained anyone with a qualifying conviction because the suitability investigation process is very thorough.
Recommendations
The Office of the Deputy Assistant Secretary of Defense for Military Community and Family Policy (ODASD/MC&FP) and the Military Criminal Investigative Organizations (MCIOs) should revise their policies to comply with the Lautenberg Amendment. Specifically, their policies must be clear and consistent regarding the disposition of privately owned firearms and ammunition by agents found to have a qualifying conviction. Additionally, the MCIOs should require all employees serving in covered positions to complete the DD Form 2760 annually. Also, ODASD/MC&FP should revise DoDI 6400.06 by removing the requirement for a separate MOU between civilian law enforcement agencies and the MCIOs.
Management Comments and Our Response
The Deputy Assistant Secretary of Defense for Military Community and Family Policy agreed with our findings and r commendation to revise DoDI 6400.06. In addition, the MCIOs agreed with our findings and recommendations to revise their policies and to implement additional measures to ensure compliance with the Lautenberg Amendment and DoD policies. No further comments are required.
Senators seek compromise to overcome objections to domestic violence gun ban
Aiken Standard (SC)
February 19, 2015
https://infoweb.newsbank.com/
COLUMBIA — Senators working on toughening domestic violence laws were forced to take a step back Thursday to try to work out a compromise between those who want to ban batterers from possessing guns and those who fear it encroaches on Second Amendment rights.
Sen. Larry Martin, then-chairman of the Senate Judiciary Committee and the bill’s sponsor, said he is reluctant to weaken the proposed ban on anyone convicted of domestic violence having a firearm for a decade, but concessions might be necessary to get it passed.
“If that brings enough people on board to pass the bill, we may have to speak our piece on it,” Martin said.
Sen. Chip Campsen, R-Charleston, is expected to file an amendment next week that would give judges the discretion to decide whether to take guns away from first-time offenders convicted of third-degree domestic violence.
“I think the judge ought to have discretion,” Campsen said. “Gun rights are important for self-defense, for people who are outdoorsmen. It should not be taken away lightly.”
He also said that the amendment could make it less likely that senators who have objected to the ban and have tried to strip it from the bill will continue to try to block it.
“I think my amendment will help the bill win support,”Campsen said.
Sara Barber, executive director of the S.C. Coalition Against Domestic Violence and Sexual Assault, said the proposed amendment would severely weaken the bill in a state where gun violence plays a pronounced role in domestic homicides.
Studies have shown that a woman is five times more likely to be killed in a domestic confrontation if a gun is in the house, Barber said. Since August, 22 people have been killed in domestic violence in South Carolina, and 73 percent of those killings have involved a gun, according to a Post and Courier analysis.
“If you have been convicted of third-degree, you have made a choice to commit that crime,” she said. “You have been arrested, prosecuted and convicted of a violent crime against your family. I think it’s common sense that you would lose your gun rights. In effect, you have chosen to give those rights away.”
The bill would simply bring the state in line with federal law, Barber said.
Federal law bars anyone convicted of domestic violence from possessing a gun, but, other than voluntary compliance, there is no enforcement, victims advocates have argued. A state ban is needed so that local and state law enforcement agencies can ensure offenders give up their weapons.
Martin, R-Pickens, has said the gun ban is crucial to protecting women in a state that consistently ranks as one of the deadliest for domestic violence victims. The Legislature’s current effort to strengthen penalties and the appointment of a task force to look at the culture of violence that perpetuates it are credited to the Post and Courier’s series “Till Death Do Us Part” last year.
The newspaper’s series revealed that more than 300 women in South Carolina have been killed by their husbands, exes and live-in boyfriends over the past decade and that guns were used in nearly two-thirds of the deaths.
Martin argued strenuously for the gun ban, which currently is not part of the domestic violence bill in the House.
The Senate on Wednesday defeated an attempt to strip the gun ban from the bill by a 45-5 vote after hours of heated debate that included claims Martin was a pawn of former New York City Mayor Michael Bloomberg, who bankrolls the gun-control advocacy group Everytown for Gun Safety.
Sen. Tom Corbin, R-Travelers Rest, called the proposed ban “nothing but a big gun grab,” the Anderson Independent Mail reported.
Martin said the debate escalated when Corbin suggested that he was sponsoring the bill on Bloomberg’s behalf.
“Nothing could be further from the truth,” Martin said. “What’s driving my sponsorship of this bill is the fact that we happen to be consistently No. 1 in the nation for domestic violence deaths, and it doesn’t seem to be improving with anything else we do.”
In addition to the gun ban, the Senate bill would establish three degrees of domestic violence offenses with stiffer jail sentences based on the level of violence involved. Currently, first-time abusers face only a 30-day jail sentence.
Citizens have become prohibited persons for less than what Hillary allegedly did
News & Politics Examiner (USA)
April 7, 2015
https://infoweb.newsbank.com/
A new book about life inside the Clinton White House notes reported incidents of violent physical assaults using a lamp and/or other objects as weapons by the former First Lady and presumptive Democrat presidential contender against then-President Bill Clinton, The Washington Times reported Monday. One reported row, over the Monica Lewisnky affair required stitches to the former president's head, and left blood all over the bed.
Noting the allegations were provided by multiple White House staffers and are based on claimed witnessed accounts, whether the object thrown was a lamp or heavy books including the Bible is irrelevant. What is relevant is, per the Lautenberg Amendment, which Bill Clinton signed into law, such assaults are cause to rule those found guilty of misdemeanor domestic violence to be "prohibited persons," forever barred by law from possessing a gun. And to be found guilty, you don't need to draw blood or send your victim to the ER.
"A wife tears her husband's pocket during an argument. A daughter throws keys at her mom - and misses. Both 'assailants' are arrested, fingerprinted and booked," Gun Owners of America informed members in a 1998 alert, citing The Washington Post Magazine as a source. "Page after page of examples showed how innocent men, women and children are becoming victims of the latest war against domestic violence ... how easy it is for honest citizens to lose their Second Amendment rights as a result of the Lautenberg domestic gun ban [which] imposes a lifetime gun ban on those who have committed minor infractions in the home – 'offenses' as slight as shoving a spouse or spanking a child."
Hillary Clinton, of course, is perceived as a big champion of "common sense gun safety laws," if by that you mean edicts to eviscerate the Second Amendment, and urges "It's time to get tough on violence against women."
Presumably, violence against men is OK, but lest charges of sexism be unfairly leveled, Ms. Rodham is not completely one-sided. As long as the guy administering the beat-down is her hubby and the target of his abuse is someone who can be dismissed as just another in a long line of bimbo eruptions, Hillary doesn't have all that much to say on the subject.
Which is too bad. Because if any "real reporter/legitimate media" member pressed Hillary for a "yes" or "no" answer to the question "Is Juanita Broaddrick a liar?" we'd also get the answer by default to "Would she have been justified in shooting the 'dysfunctional' [her words] accused rapist?"
Seeing as how people have been killed with blunt and thrown objects, would Hillary feel justified having her armed Secret Service detail use all force necessary to protect her from someone coming at her with a lamp?
Lawmakers wary of domestic violence gun ban because of political risks
Post and Courier, The: Web Edition Articles (Charleston, SC)
April 11, 2015
https://infoweb.newsbank.com/
COLUMBIA — Rep. Chip Limehouse is proud of his high rating by the National Rifle Association for supporting the Second Amendment, and it certainly doesn't hurt when he's up for re-election in a state known for guarding gun rights.
Yet the Charleston Republican believes a gun ban keeping convicted batterers from having firearms is needed if the state is going to stem an epidemic of domestic violence.
The gun ban is in the Senate bill that passed by a lopsided 38-3 vote, but is not in the House bill and Limehouse doesn't think it has much of a chance in the House.
"They're worried, and rightfully so, that someone will take a quote or a vote, and in a Republican primary in the most conservative state in the union ... (the gun ban vote) could be used in a primary situation against a person and it could have an impact," Limehouse said. "That's the big elephant in the room. Some legislators don't want to be seen as being soft on gun rights. They just don't want to have that hanging over their head come election time."
The NRA has remained neutral on the domestic violence bills in South Carolina, as it did on similar bills in other states, including Wisconsin.
But the fear that voting for a gun ban to combat domestic violence could come back to haunt a politician is not out of the question. In Colorado, two state senators were recalled in 2013 for backing a ban on high-capacity magazines and requiring background checks on private gun sales in the wake of the Aurora movie theater shooting.
The NRA and gun-control activists poured money into the recall, which was seen as a warning to lawmakers about the risks of voting for firearms restrictions.
Senate Judiciary Chairman Larry Martin, R-Pickens, fought hard for the gun ban in shepherding the bill through the Senate and expects to have to answer for it if he is challenged in the Republican primary.
But, he said, it was the right thing to do, and he expects the House to realize that.
"I just can't imagine the House won't at the end of the discussion say, 'Hey, they've abused their family members ... we ought not worry too much about their gun rights,' " Martin said.
Demonstrators have rallied at the Statehouse to denounce the gun ban, but local gun rights organizations have mostly stayed out of the debate.
GOP Majority Leader Rep. Bruce Bannister said the House's approach recognizes that domestic violence primarily deals with mental health and education problems. He also said the House didn't want to imperil the bill by making domestic violence solely about guns.
"You would alienate a lot more members in the majority party if you said you were going to do a gun control bill," Bannister said. "We wanted to make sure the debate did not become 'this is about gun control.' This is about how to protect spouses who are being abused."
Still, he said he recognizes that guns are an important part of the debate. He said that House Republicans could amend the Senate's bill after the House passes its own measure, which would leave some bargaining room and the gun ban on the table.
Sen. Katrina Shealy, R-Lexington, made the gun ban a personal crusade, recounting during Senate hearings how her sister was nearly killed by an abusive husband.
"People in the House aren't willing to stand up and say, 'This doesn't have anything to do with the Second Amendment,' " Shealy said. "When you break the law you lose those rights. ... If the only reason they ran was to get re-elected they don't deserve to be re-elected."
The ban is considered key by advocates, who say federal law banning felons from having guns is rarely enforced in domestic violence cases.
The effort to strengthen the state's domestic violence laws was spurred by last year's Post and Courier series "Till Death Do Us Part," which revealed that more than 300 women have been killed by a spouse or partner in the last decade, and that guns were used in nearly two-thirds of the deaths.
Army Updates Law Enforcement Reporting Requirements
Targeted News Service
May 19, 2015
https://infoweb.newsbank.com/
WASHINGTON, May 19 -- The U.S. Army published the following rule in the Federal Register:
Law Enforcement Reporting
A Rule by the Army Department on 05/19/2015
Publication Date: Tuesday, May 19, 2015
Agencies: Department of Defense
Department of the Army
Dates: Effective May 22, 2015. Consideration will be given to all comments received by: July 20, 2015.
Effective Date: 05/22/2015
Comments Close: 07/20/2015
Entry Type: Rule
Action: Interim rule; request for comments.
Document Citation: 80 FR 28545
Page: 28545 -28555 (11 pages)
CFR: 32 CFR 635
Agency/Docket Number: Docket No. USA-2010-0020
RIN: 0702-AA62
Document Number: 2015-11943
Shorter URL
Action - Interim Rule; Request For Comments.
Summary
The Department of the Army amends its regulation concerning law enforcement reporting for a number of statutory requirements to better coordinate law enforcement work and personnel both within the Department of the Army, across DoD, and with other Federal, State, and local law enforcement officials. It meets law enforcement reporting requirements for selected criminal and national security incidents and provides law enforcement agencies, such as the Department of Homeland Security and Transportation Security Administration, with the most current information available. It also provides the Army chain of command with timely criminal information to respond to queries from the Department of Defense, the news media, and others. The rule establishes policies and procedures for offense and serious-incident reporting with the Army; for reporting to the Department of Defense and the Department of Justice, as appropriate; and for participating in the Federal Bureau of Investigation's National Crime Information Center, the Department of Justice's Criminal Justice Information System, the National Law Enforcement Telecommunications System, and State criminal justice systems. It also updates various reporting requirements described in various Federal statutes.
DATES:
Effective May 22, 2015. Consideration will be given to all comments received by: July 20, 2015.
ADDRESSES:
You may submit comments, identified by 32 CFR part 635, Docket No. USA-2010-0020 and or RIN 0702-AA62, by any of the following methods:
Federal eRulemaking Portal. Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.
Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet as they are received without change, including any personal identifiers or contact information.
SUPPLEMENTARY INFORMATION:
Justification for Interim Final Rule
Publication of this rule as interim is necessary to maintain national security, ensure the safety and well being of the Soldiers, and/or to avoid legal action against the DOD. While DOD and the Army have implemented many of these requirements through official messages and memorandum, they are not yet published in the internal Army Regulation until this rule becomes final.
For example, until this rule is published:
Army law enforcement does not have a regulation directing them to report Suspicious activity to the FBI's threat reporting system, eGuardian.
Sexual assaults are not properly reported using the 2012 National Defense Authorization Act Sexual Assault definition.
Offense codes used by Army law enforcement to describe the complaint or offense as used in reports to congress are not adequately updated.
Changes to the restricted sexual assault evidence kits retention schedule from one year to 5 years per the most recent version of the NDAA is causing confusion regarding proper procedures which could result in inconsistency in retaining sexual assault evidence.
In addition, the rule adds the requirement to report positive drug urinalysis tests to the National Instant Checks System (NICS) under the authority of the Brady Handgun Violence Prevention Act of 1993 as amended (18 U.S.C. 922). While the United States Army Criminal Records Center is currently providing these reports to NICS, it may be happening inconsistently.
The Lautenberg Amendment to the Gun Control Act of 1968, requires commanders and family advocacy programs report all domestic violence incidents to the local Installation Provost Marshal Office/Directorate of Emergency Services (PMO/DES). This rule provides guidance to Army Commanders on reporting domestic violence to the PMO/DES in accordance with the Lautenberg Amendment. Without this rule in place, it is possible for a soldier who is prohibited from carrying a weapon due to a qualifying conviction not being properly identified and continuing in assignments and missions which are prohibited.
The rule ensures crime victims and witness are notified about their rights according to the Victim Rights and Restitution Act (42 U.S.C. 10601) and Victim and Witness Protection Act (Sections 1512-1514 of Title 18, U.S.C.). The Army currently must advise the victim or witness of their rights using the Department of Defense Form 2701 (Initial Information for Victims and Witnesses of Crime) in accordance with Army Regulation (AR) 190-45. This rule requires victim witness notifications to be reported on the Department of the Army Form 3975 which feeds into the Army's law enforcement records management system, Centralized Operations Police Suite (COPS). This provides the Army an ability to query the number of victim witness notifications for congressional inquiries.
The rule adds the requirement to input Army crime data into the Defense Incident-Based Reporting System (DIBRS) to comply with the Uniform Federal Crime Reporting Act, Section 534 note of title 28, U.S.C.
The rule adds registration of sex offenders on Army installation to effectuate federal and state registration requirements including the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16901 et seq,. This ensures all registered sex offenders who reside or are employed on an Army installation register with the installation PMO or DES. This allows the Army to track or monitor sex offender registration compliance on Army installations which impacts the safety of all personnel residing on Army installations.
The rule ensures compliance with the requirement from the Protecting the Force: Lessons from Ft. Hood, report of the DoD Independent Review, January 2010, which requires reporting of Suspicious Activity to the FBI's eGuardian.
I. Purpose of the Regulatory Action
a. The publication of this rule will ensure the Army is in compliance with multiple Department of Defense and Federal requirements.
This regulatory action will add policy pertaining to the collection of fingerprints and DNA from individuals suspected of certain offenses through the Department of the Defense Instruction 5505.14, Deoxyribonucleic Acid (DNA) collection requirements for criminal investigations, found here and Department of Defense Instruction 5505.11, Fingerprint Card and Final Disposition Report Submission Requirements, found here.
This rule adds policy on sex offenders on Army Installations and thus ensures the safety of our Soldiers, family members, and civilians that live and work on Army installation through identifying, monitoring and tracking sex offenders on Army installations.
This rule includes policy pertaining to the release of Military Police (MP) records by adding reporting requirement of domestic incidents to the Army Family Advocacy Program. This rule authorizes the limited use of the Federal Bureau of Investigations (FBI), National Crime Information Center (NCIC) pursuant to FBI regulations and policy to conduct checks of visitors to an installation.
The rule implements the reporting requirements of DODD 7730.47, Defense Incident-Based Reporting System (DIBRS), by mandating the use of the Centralized Operations Police Suite (COPS) Military Police Reporting System. This implements reporting requirements of Section 534 of Title 28, United States Code (also known as "The Uniform Federal Crime Reporting Act of 1988"), the victim and witness assistance notifications of Sections 10607 10608 of Title 42 (also known as "The Victims' Rights and Restitution Act of 1990"), Section 922 of Title 18, United States Code (also known as "The Brady Handgun Violence Prevention Act and The Lautenberg Amendment to the Gun Control Act"), Sections 16901 through 16928 of Title 42, United States Code (Sex Offender Registration and Notification Act (SORNA)), Section 1701, NDAA FY 14, DoDD 1030.01, DoDI 1030.2. and Public Law 107-188, "Public Health Security and Bioterrorism Preparedness and Response Act of 2002," June 12, 2002.
The rule implements the sex offender registration requirements of DODI 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, found here. The rule's registration requirements allow the Provost Marshal or Director of Emergency Services to provide all military sex offenders with the "State registration" document(s) and direct Soldiers to the local or State law enforcement agency, which will register them based on their physical residence address. If a MOU/MOA exists with the local or State law enforcement agency, they will notify the installation. Installation PMs and DESs in the United States will provide written notice of the conviction or transfer to the offender's gaining unit commander, the State's chief LE officer, the chief LE officer of the local jurisdiction in which the accused will reside, the State or local agency responsible for the receipt or maintenance of a sex offender registration where the person will reside, and upon request, governmental officials of foreign countries. Installation PM and DES notifications to State and local officials are described in DODI 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, found here.
The rule implements the victim/witness requirements contained in DODI 1030.2, Victim and Witness Assistance Procedures, found at http://dtic.mil/whs/directives/corres/pdf/103002p.pdf, which implements Sections 1512-1514 of Title 18, United States Code and Sections 113 (note), 1058, 1059 and 1408 of Title 10, United States Code by providing guidance on assisting victims and witnesses of crime from initial contact through investigation, prosecution, and confinement.
The Army will use eGuardian to report, share and analyze unclassified suspicious activity information regarding potential threats or suspicious activities affecting DOD personnel, facilities, or forces in transit in both CONUS and OCONUS. eGuardian is the Federal Bureau of Investigation's (FBI) sensitive-but-unclassified web-based platform for reporting, and in some instances, sharing, suspicious activity and threat related information with other federal, state, tribal, and territorial law enforcement and force protection entities. Information entered into eGuardian by the Army may be either shared with all eGuardian participants or reported directly to the FBI. All information entered into eGuardian by the Army will comply with the policy framework for the system and any existing agency agreements, which incorporate privacy protections.
Analysis of Suspicious Activity Reporting (SARs) will assist Criminal Intelligence analysts and commanders in mitigating potential threats and vulnerabilities, and developing annual threat assessments.
b. The Department is issuing this interim final rule pursuant to its authority under 28 U.S.C. 534, Acquisition, preservation, and exchange of identification records and information, 42 U.S.C. 10607, Services to Victims, 18 U.S.C. 922, Unlawful Act,, 10 U.S.C. 1562, Database on domestic violence incidents, 10 U.S.C. Chap. 47, Uniform Code of Military Justice, Section 1701, National Defense Authorization Act for Fiscal Year 2014, Sexual Assault Prevention and Response and Related Reforms, DoDD 1030.01, Victim and Witness Assistance, and DoDI 1030.2, Victim and Witness Assistance Procedures. Implements crime reporting requirements of the Uniform Federal Crime Reporting Act (Title 10, United States Code, Section 534), the Brady Handgun Violence Prevention Act (18 U.S.C. 922), and the Victim Rights and Restitution Act (42 U.S.C. 10607).
II. Summary of the Major Provisions of the Regulatory Action in Question
The major provisions of this regulatory action include: Records administration, release of information, offense reporting, victim and witness assistance procedures, and the National Crime Information Center policy.
The records administration section includes procedures for safeguarding official information, special requirements of the Privacy Act of 1974 to protect personal information, purpose of gathering police intelligence/criminal information, name checks for criminal background check purposes using the Army's law enforcement databases, registration of sex offenders on Army Installations in the Continental United States and Outside the Continental United States (CONUS and OCONUS), and collection by law enforcement officials of deoxyribonucleic acid (DNA) from subjects of certain offenses. The System of Records Notice, SORN A0190-45, Military Police Reporting Program Records (MRRP) describes the policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system, it can be found here. The Privacy Impact Assessment can be found here.
The release of information section discusses release of information from Army records, under the Freedom of Information Act (FOIA) and Privacy Act of 1974, and release of law enforcement information furnished by foreign governments or international organizations. The section also contains procedures for requesting amendment of records and accounting for military police record disclosure.
The section on offense reporting provides information on completing the DA Form 4833 (Commander's Report of Disciplinary or Administrative Action) for civilian subjects, requirements for submitting fingerprint card and final disposition reports, releasing of domestic incidents reports to the Army Family Advocacy Program (FAP). This section also includes reporting of domestic violence incidents to law enforcement, issuing of protective orders, procedures for establishing Memoranda of Understanding with civilian law enforcement agencies, and reporting of Suspicious Activity to the FBI's eGuardian.
The victim and witness assistance procedures ensure Army personnel involved in the detection, investigation, and prosecution of crimes protect victims and witnesses rights. The National Crime Information Center (NCIC) policy section authorizes NCIC checks, pursuant to FBI regulations and policy, of visitors to a military installation.
III. Cost and Benefits
This rule will not have a monetary effect upon the public. This rule facilitates information sharing between authorized agencies to enhance protection of personnel and resources critical to DoD mission assurance.
IV. Retrospective Review
The revisions to this rule will be reported in future status updates as part of DoD's retrospective plan under Executive Order 13563 completed in August 2011. DoD's full plan can be accessed here.
V. Regulatory Procedures
A. Regulatory Flexibility Act
The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.
B. Unfunded Mandates Reform Act
The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more.
C. National Environmental Policy Act
The Department of the Army has determined that the National Environmental Policy Act does not apply because the rule does not have an adverse impact on the environment.
D. Paperwork Reduction Act
The Department of the Army has determined that the Paperwork Reduction Act (PRA) does apply to this rule's sex offender registration requirement; all other requirements are exempted since it is information collected during a criminal investigation.
DoD has submitted the sex offender registration requirement to OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35). Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
Title: Army Sex Offender Information.
Type of Request: New.
Number of Respondents: 550.
Responses per Respondent: 1.
Annual Responses: 550.
Average Burden per Response: 20 minutes.
Annual Burden Hours: 183 hours.
Needs and Uses: The Army requires tracking and management of sex offenders that reside or are employed on an Army installation due to the transient nature of the Army community. Without such a requirement, the Army would have difficulty tracking sex offenders once they transfer to other states or overseas without anyone's knowledge. All registered sex offenders who reside or are employed on an Army installation will submit their registration information with the installation Provost Marshal Office (PMO).
Affected Public: Individuals or households.
Frequency: On occasion.
Respondent's Obligation: Voluntary.
OMB Desk Officer:
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, DoD Desk Officer, Room 10102, New Executive Office Building, Washington, DC 20503, with a copy to the Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.. Comments can be received from 30 to 60 days after the date of this notice, but comments to OMB will be most useful if received by OMB within 30 days after the date of this notice.
You may also submit comments, identified by docket number and title, by the following method:
*Federal eRulemaking Portal. Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet as they are received without change, including any personal identifiers or contact information.
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.
E. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights)
The Department of the Army has determined that Executive Order 12630 does not apply because the rule does not impair private property rights.
F. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review)
The Department of the Army has determined that according to the criteria defined in Executive Order 12866 and Executive Order 13563 this rule is a significant regulatory action and has been reviewed by OMB.
G. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks)
The Department of the Army has determined that the criteria of Executive Order 13045 do not apply because this rule does not implement or require actions impacting environmental health and safety risks on children.
H. Executive Order 13132 (Federalism)
The Department of the Army has determined that the criteria of Executive Order 13132 do not apply because this rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
List of Subjects in 32 CFR Part 635
Crime
Law
Law enforcement
Law enforcement officers
Military law
Thomas Blair
Chief, Law Enforcement Branch, Operations Division, Office of the Provost Marshal General, DA.
Editor's Note: Regulatory text omitted. It can be viewed here.
No guns for Social Security recipients?
Jeff Knox warns of Obama administration scheme to make millions 'prohibited persons'
WorldNetDaily (USA)
July 24, 2015
https://infoweb.newsbank.com/
The Los Angeles Times reported Saturday that the Obama administration is pushing a plan to submit the names of up 4.2 million recipients of Social Security benefits to the FBI's National Instant Check System, or NICS, the massive database used for criminal background checks on gun buyers. Only "prohibited persons," those for whom possession of firearms and ammunition is illegal under the Gun Control Act, are included in the NICS database. Inclusion in NICS not only blocks gun sales to people on the list, it flags them as "prohibited persons" under the Gun Control Act and makes it a felony for them to be in possession or have access to firearms or ammunition under any circumstances.
The law regarding "prohibited persons" has become increasingly broad over the past few decades. It was originally passed as restrictions on violent felons, fugitives, people with dangerous mental disorders and others who pose a significant threat to public safety, but in fact took away the rights of many non-violent offenders and people who would not be considered dangerous. With the addition of the Lautenberg Amendment in the 1990s, the prohibition was expanded to include anyone convicted of a misdemeanor crime of domestic violence. Under this provision, a wife fined $25 for slapping a cheating husband's face is barred from possession of firearms for life.
The law (USC Title 18, Section 922, subsection g.) also prohibits possession of guns or ammunition by anyone "who has been adjudicated as a mental defective or who has been committed to a mental institution."
Note the key word "adjudicated." While most reasonable people would interpret that to mean a ruling from a court, the implementing regulations for this law use a much broader definition. Under the Federal Code of Regulations (27 C.F.R. § 478.11) the relevant section reads as follows:
"(1) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:
"Is a danger to himself or to others; or
"Lacks the mental capacity to contract or manage his own affairs."
Many years ago, under President Clinton, the Veterans Administration, began submitting the names of veterans and dependent beneficiaries to NICS, whom they said met that definition of "mentally defective," including anyone who is not considered able to manage their VA benefits. Anyone who has had a fiduciary – usually a spouse, parent, or other relative – designated to manage their VA account is added to NICS and considered a prohibited person.
The VA makes this "incompetence" determination, not through a court or commission, but through its own bureaucratic process. There is no judge, or even a determination from a physician required, and the VA determination of incompetence is not binding on any other aspect of the person's life. A person rated as "mentally incompetent" under the VA can still enter into contracts, buy and sell real estate, incorporate a business, marry, divorce, or even adopt a child. The only things they can't do are sign VA-related documents or purchase or possess firearms or ammunition.
The Social Security Administration standards for "incompetence" are similar; it is merely a bureaucratic finding that the person's interests are best served by having their benefits processed through what they call a "Representative Payee" rather than going directly to the beneficiary. If the Obama administration gets its way, all of these people will also be prohibited from ever possessing a firearm or ammunition – even under close supervision – for the rest of their lives.
For most people, a determination of incompetence and the assignment of a fiduciary results in additional financial benefits. Both the VA and Social Security see this as an additional disability, and they increase benefit payments accordingly. In the VA system, this can result in monthly benefit payments going up as much as $1,000 per month or more. That can be a pretty strong incentive for a person to go along with, or even seek, an incompetency determination. Some people, when they discover that this is going to cost them their right to arms, have tried to fight the system, but saving their rights means giving up the additional financial assistance – and that can be a tough choice.
Nobody wants violent lunatics and suicidal individuals to get their hands on guns, but infringing on the rights of millions of innocent, harmless citizens is by no means a reasonable way for the VA or Social Security to attempt that.
The Republicans failed to address this problem when they controlled both houses of Congress and the White House, but they have had a bill in Congress every session for the past five years called the Veterans Second Amendment Protection Act, which would correct VA's dangerous overreach by requiring an actual adjudication that a person is a danger to themselves or others, before firearms rights could be revoked. Now that they once again control Congress, things aren't looking much better. The bill only has four House cosponsors.
If you are outraged by this situation, your elected representatives need to hear from you. The VA practice needs to be stopped, and it must not be allowed to spread to Social Security or other government programs. You can reach your senators and representative through their House.gov and Senate.gov links, or by calling 202-224-3121.
Safety after the shootings
Air Force Times
August 3, 2015
https://infoweb.newsbank.com/
The military has a gun problem.
Following the murder of five service members in a violent and still-unexplained shooting spree in Chattanooga, Tennessee, by 24-year-old Mohammad Youssduf Adbulazeer, the Defense Department again finds itself in the midst of a broader national feud about gun control, gun rights and public safety.
Defense Secretary Ash Carter ordered a quick turnaround on a full review of facility security policies.
Inside the military, many leaders remain skeptical that the solution to safety concerns is more troops carrying more weapons.
One exception is Army Gen. Mark Milley, tapped to become the next Army chief of staff, who said July 21 that the service should "seriously consider" arming recruiters "under certain conditions."
At his Senate confirmation hearing, Milley called the Tennessee shootings "a horrible tragedy" and noted that "force protection is a key task for any commander."
He acknowledged that arming recruiters is "complicated legally," but said he believes that "under certain conditions, both on military bases and in outstations, we should seriously consider it."
Outside the military, the issue has become a political lightning rod. Several governors already have rushed to allow National Guard personnel to carry weapons on bases and in recruiting stations.
And on Capitol Hill, several top lawmakers are looking at similar measures for active-duty members, in effect allowing more troops to carry personal firearms around military property.
Several Republican presidential candidates are voicing support for those measures. For months, Tea Party favorite Sen. Ted Cruz, R-Texas, has pressed congressional leaders to hold hearings on loosening restrictions regarding arming troops on domestic military bases.
And a top National Rifle Association leader has released a statement blaming the deaths of the five service members on misguided gun control policies.
"It's outrageous that members of our armed services have lost their lives because the government has forced them to be disarmed in the workplace," said Chris Cox, executive director of NRA's Institute for Legislative Action. "Congress should pursue a legislative fix to ensure that our service men and women are allowed to defend themselves on U.S. soil."
But so far, DoD has not expressed concern about existing laws.
Pentagon resistance
The July 16 Chattanooga attack is the latest in a series of tragic incidents that has prompted Pentagon reviews, in particular after the 2009 shooting at Fort Hood, Texas, and again after the 2013 shooting at the Navy Yard in Washington, D.C.
Each review has underscored the military's caution about the inherent risk of carrying firearms.
"DoD does not support arming all personnel. We hold this position for many reasons," said Army Lt. Col. Valerie Henderson, a Pentagon spokeswoman.
She said those include safety concerns and the risk of accidental discharges â€" a concern driven home just a day after the Chattanooga shootings when a Navy recruiter in Georgia accidentally shot himself in the leg with his own handgun, according to police.
Moreover, Henderson said, providing law enforcement-style training and qualification tests for additional segments of the force could be extraordinarily costly.
Other costs of expanding firearms use would include complying with various screening laws, for example the Lautenberg Amendment that restricts weapons access for those with domestic violence convictions, Henderson said.
And any change in military procedures or federal law must comport with a dizzying patchwork of state-level gun control laws.
Complicating the issue further: Concerns about weapons in the military community has intensified in recent years amid the soaring rate of military suicides, most of them involving firearms.
Increases access to firearms can indeed pose public health concerns, said Dr. Elspeth Cameron "Cam" Ritchie, a retired Army colonel and psychiatrist.
"This is a very complex issue without easy solution," she said in an interview. "We know increased availability of weapons leads to increases suicides, homicides, domestic violence. That is something we have to take very seriously."
She added, however, that while the majority of military suicides are by firearms, most involve personal weapons during off-duty hours. Expanding the use of government-issued weapons during work hours might pose less risk.
"The military is very cautious when it comes to weapons," Ritchie said. "I'd say military folks in general are trained on the use of weapons, know how to take care of them, know how lethal they are and have a great deal of respect for them."
Gun control or gun rights?
Intelligence reports during the past year have repeatedly suggested that Islamic State militants are encouraging their followers to attack U.S. troops at home.
It remains unclear whether the Chattanooga shooter, Mohammad Youssuf Abdulazeez, a Tennessee resident reportedly born in Kuwait, was linked to Islamic State militants or whether his shooting spree was inspired by extremists.
Ladd Everitt, spokesman for the Coalition to stop Gun Violence, said his group is waiting to get more details on how Abdulazeez obtained his guns before launching their next lobbying push. Local law enforcement reports so far indicate that some of the weapons may have been obtained illegally.
But Everitt also said he is not surprised that the incident is quickly turning into a rallying point for groups that support more guns in public spaces.
"Putting the onus for security on the military is insane," he said. "Telling them they have to arm their own guys for security is a pretty perverse idea of freedom. On base, it's the same safety concerns as anywhere else when you arm more and more people."
But Rep. Duncan Hunter, R-Calif. "who plans to introduce new legislation to mandate arming at least one service member at all recruiting stations" argues that troops have more familiarity with firearms than the average citizen, and boosting their ability to defend themselves would heighten everyone's security.
Legislation from Hunter and Sen. Steve Daines, R-Mont., also will require training those armed individuals in proper security response techniques for non-battlefield settings.
2016: Lautenberg DV Gun Ban - News Articles And Reports
Domestic shooting homicides trigger changes in laws
Macomb Daily, The (MI)
February 6, 2016
https://infoweb.newsbank.com/
He tried to kill her with a knife.
But she got away.
She ran and barricaded herself and her three children in a room upstairs, hoping the 911 call her son had made would bring help in time.
But he grabbed his shotgun and blew the door open, hitting both his wife and son.
He saw that she was still alive.
So, he dragged her into the hall and shot her five more times. Then he held the gun to his chin and in front of his children, pulled the trigger one last time.
That's when Dave Herrington of Mount Clemens, a retired high school math teacher and former Mount Clemens City Commissioner, got a call from his granddaughter.
'She said, 'Grandpa! You got to come quick, Daddy shot Logen and he shot Mommy many times,'' Herrington said, recalling the horrific night of Dec. 6, 2011.
By the time he and his wife, Mary Jane, arrived at the family's home, everyone was gone but the police and stunned members of the rural Lapeer community where they lived.
Left for the Herringtons were the terrible realities of domestic violence. Their daughter, Lara Herrington-Stutz, a successful family law attorney, former U.S. Air Force officer and Sunday school teacher, was shot to death by her husband, Marcel Stutz, in front of their three children.
Herrington knew there were problems, which is why he made sure his grandson had his own cellphone. But his daughter always told him not to worry. 'Everything would be OK,' she would say. 'That was Lara,' Herrington said. She was optimistic and energetic by nature. 'As a family law attorney, she helped a lot of women get out of bad situations.'
Yet, she never helped herself.
'At her funeral, women came up to me saying, 'It was Lara who helped get me out of an abusive marriage,'' said Mary Jane Herrington, in an article by the Michigan Bar Journal. 'They said, 'that could have been me if she hadn't gotten me out.''
At times things got better but then the drinking and verbal abuse would return. At one point, police were called to the home and Marcel Stutz was arrested. He spent a weekend in jail and was ordered by the court to take anger management classes, attend Alcoholic Anonymous and relinquish his firearms. 'He started the classes but eventually blew them off and since no one showed up to take his gun away, he kept it,' Herrington said.
Domestic shootings
The tragic shooting of Herrington-Stutz is among at least 15 domestic violence deaths across Macomb County involving firearms between 2006 and 2014, reported to local police agencies, according to an analysis of FBI data by The Associated Press. Those agencies include the Macomb County Sheriff's Office and police departments in Chesterfield Township, Clinton Township, Eastpointe, Macomb Township, Roseville, Shelby Township, Sterling Heights and Warren.
In the past two years, Macomb County has been rocked by five domestic shooting homicides including:
Aug. 14, 2014: Woman kills ex-boyfriend and then takes her own life
Feb. 16, 2015: Trial set for great-grandfather charged with shooting the father of his grandchildren
Feb. 26, 2015: Police investigating murder-suicide in Macomb Township
April 3, 2015: Lenox Township man shot his wife, then himself
June 25, 2015: Father of three shoots wife, then himself
Nationally, an average of 760 Americans were killed with guns annually by their spouses, ex-spouses and dating partners between 2006 and 2014, according to The Associated Press analysis.
In the past two years, stories of women like Herrington-Stutz and statistics showing hostile relationships often turn deadly when guns are present, has triggered a response. According to The Associated Press analysis, more than a dozen states have strengthened laws designed to keep firearms out of the hands of domestic abusers in the last two years, a rare and growing area of consensus in the nation's polarized debate over gun rights.
Under the 1996 Lautenberg Amendment to the Federal Gun Control Act anyone convicted of misdemeanor domestic abuse crimes or subject to a domestic violence protective order can't own a gun or buy guns. The law does not apply to dating partners, does not ban guns during temporary restraining orders and says nothing about how or when an abuser must surrender their firearms to authorities.
It is these legal loopholes that a broad coalition of advocates for domestic violence victims, law enforcement groups and gun control supporters hope to close.
Strengthening laws
Among the states making changes are South Carolina and Wisconsin, usually dominated by Republicans and with a strong tradition of gun ownership.
Wisconsin Gov. Scott Walker signed a law in 2014 requiring people subject to domestic abuse restraining orders to turn over their guns within 48 hours. The National Rifle Association has taken a cautious approach toward such bills, opposing the farthest-reaching measures but staying neutral or negotiating compromises on others. In this case, the NRA stayed neutral after negotiating language that allows individuals to seek the return of their weapons after restraining orders are lifted.
Gov. Nikki Haley of South Carolina recently signed a measure that includes a life ban on gun ownership for the most serious domestic violence offenders. 'South Carolina is no longer thinking about the convenience of the abuser,' Haley said after signing the bill in June. 'South Carolina is thinking about strengthening the survivor.'
Michigan is not among the states listed as strengthening its laws but that could soon change.
Zero tolerance
Congresswoman Debbie Dingell (D-Michigan) and Congressman Robert Dold (R-Illinois) introduced the Zero Tolerance for Domestic Abuse Act.
'It's personal for me,' said Dingell, who is a domestic violence survivor.
'No woman and no child should ever live in fear of their life or their safety because of domestic violence. We should do everything we can to prevent families from experiencing senseless tragedies. This bipartisan, common sense bill will help ensure every woman and child is protected -- and it will save lives.'
When Dingell was a young girl, about to start middle school, her father came close to shooting her mother.
'It was another of their many ugly fights,' she wrote in a Washington Post opinion column. 'I got between them -- literally -- and tried to grab the gun. I will never forget that night: The shouting, the fear, the raw terror that we would all die, my brothers and sisters along with my parents. We survived that occasion, physically. Emotionally, I am not so sure. My baby sister, Grace, was supposed to start first grade the next day. I walked her to school because I believed in trying to be normal, to keep everything together. She died several years ago, after suffering all of her life from demons that haunted her. I cannot help but think that night was the source of many of them.'
That's what pushes Dingell to push for change.
'If I can help someone else not go through what I went through, then I have a moral responsibility to do so,' she said.
Among the supporters of the legislation is Suzanne Coats, CEO of Turning Point, one of four domestic violence and sexual assault service agencies in the tri-county area.
'This legislation will address key loopholes such as allowing for the seizure of firearms when temporary protection orders are issued, and expanding the definition of 'intimate partner' to include dating partners and convicted stalkers,' Coats said. 'Many are under the false belief that just leaving a domestic violence situation ends the violence. Many women are stalked and harassed long after they leave and some are killed. Many are forced to see their abuser during custody exchanges.'
Critics who argue against gun restrictions believe that if an abuser is determined to hurt someone, he or she will just find another way. The chances of escaping are greater when no firearm is present.
'If you're in a domestic violence situation and there's access to firearms it increases the risk of homicide by 500 percent,' Coats said.
The data used by The Associated Press is a summary from the FBI's Supplementary Homicide Reports for 2006-2014. The SHR includes data from law enforcement agencies in 49 states and Washington, D.C. Florida does not report its data to the FBI. The report includes more than 122,000 homicides over the nine-year period.
Nevada among states outlawing guns for domestic abusers
Associated Press State Wire: Nevada (NV)
February 6, 2016
https://infoweb.newsbank.com/
LAS VEGAS (AP) — As convicted felons with criminal histories including violence against former domestic partners, neither Keith Junior Barlow nor Robert Brown Jr. should have had a gun.
But both did, according to criminal charges against them, and both are accused of shooting ex-girlfriends to death in Las Vegas in attacks that law enforcers and gun safety advocates say illustrate a terrifying pattern of repeat domestic violence.
"A history of abuse is highly suggestive of future abuse," said Ted Alcorn, research chief for the advocacy group Everytown for Gun Safety. He pointed to FBI data that found that more than half of women slain with guns in the U.S. in 2011 were killed by intimate partners or family members.
Other FBI data analyzed by The Associated Press shows that in Nevada, 94 people were shot to death by a spouse, ex-spouse or dating partner from 2006 to 2014, including 71 in the Las Vegas area.
Brown's case dates to December 2012. He's accused of fatally shooting his ex-girlfriend, Nichole Nick, and wounding Nick's mother. Police also reported finding a bullet hole in the bed of Nick's 3-year-old niece, who wasn't wounded. Brown was arrested a little more than a year later in Los Angeles.
Barlow allegedly confronted his ex-girlfriend and her boyfriend in February 2013 in an alley behind a convenience store and warned that he'd be back. Two hours later, he kicked in an apartment door and shot Danielle Woods and Donnie Cobb to death with a .40-caliber handgun he got from a friend, according to the criminal charges against him. The gun owner later reported the weapon had been stolen.
Repeat violence involving domestic partners is an issue that state lawmakers tried to address last year, passing a law banning anyone convicted of misdemeanor domestic violence in Nevada or any other state from possessing a gun.
The law went into effect with Republican Gov. Brian Sandoval's signature in June. It also prohibits people from buying a gun if they've been ordered by a court to stay away from their estranged partner.
The new law made Nevada one of 13 states to tighten restrictions in the last two years to keep guns out of the hands of domestic abusers, according to the AP survey. Such laws are a rare area of consensus in the nation's highly polarized debate over guns.
In Carson City, Democrats lost a bid to go further. The GOP-controlled Legislature rejected a stricter measure that would have required people to turn over guns they already have if a restraining order is filed against them.
Nevada's domestic violence gun ban was part of a wider law hailed by the National Rifle Association as a victory for law-abiding gun owners. It also eliminated a registration requirement for gun owners in Clark County, home to Las Vegas and some 2 million of the state's 2.5 million residents. The law extended from homes to vehicles the reach of the so-called "castle doctrine" or stand-your-ground right to use lethal force for self-defense.
No permit is required to obtain most firearms in Nevada, and guns can generally be openly carried, although buying high-powered weapons may require a federal permit.
Clark County District Attorney Steve Wolfson, the top prosecutor in Las Vegas, said enforcing the domestic violence gun ban hasn't been easy. But he said people convicted of misdemeanor domestic violence are being informed in court — in writing and by a judge — that they can't possess a gun.
Both Brown and Barlow have pleaded not guilty in their cases. Brown's defense attorney didn't respond to messages. Barlow's lawyers declined to comment.
Prosecutor Richard Scow, who is handling both cases, said Barlow had prior convictions in Nevada in 1987 for shooting at a former girlfriend and her new boyfriend and in 1997 for shooting at Woods.
Brown was convicted in Los Angeles and sentenced to prison in 1998 for felony carjacking and corporal injury to a spouse in a case arising from allegations that he stabbed and slashed his then-wife. Attempted murder, kidnapping and assault with a deadly weapon charges were dropped.
With his felony convictions, Brown wouldn't have been able to purchase a gun under the new law or the old law, Scow said.
DOD Inspector General Issues Report on Compliance with Lautenberg Amendment Requirements, Implementing Guidance
Targeted News Service (USA)
February 23, 2016
https://infoweb.newsbank.com/
WASHINGTON, Feb. 23 -- The U.S. Department of Defense Office of the Inspector General issued the following report:
Investigative Oversight
Evaluation of the Defense Agencies' Law Enforcement Divisions' Compliance with the Lautenberg Amendment Requirements and Implementing Guidance (Project No. 2015C010) DODIG-2016-053
Objective
Our objective was to determine whether the law enforcement divisions (LED) in the Defense Intelligence Agency (DIA), Defense Logistics Agency (DLA), National Geospatial-Intelligence Agency (NGA), National Security Agency (NSA), and Pentagon Force Protection Agency (PFPA) complied with the Lautenberg Amendment as implemented by DoD Directive 5210.56, "Carrying of Firearms and the Use of Force by DoD Personnel Engaged in Security, Law and Order, or Counterintelligence Activities," and DoD Instruction (DoDI) 6400.06, "Domestic Abuse Involving DoD Military and Certain Affiliated Personnel."
Specifically, we evaluated whether the LEDs have adequate procedures and processes to ensure:
* qualifying domestic violence convictions could be identified before an employee's entrance on duty;
* qualifying domestic violence convictions were reported for all personnel during their employment with the LED;
* qualifying domestic violence convictions were documented; and
* required personnel actions were taken if a qualifying domestic violence conviction was discovered or occurred after an employee entered on duty.
Finding
We determined that the LEDs fully complied with the Lautenberg Amendment requirements as implemented by DoDD 5210.56, DoDI 6400.06, and the LEDs' agency guidance. We reviewed the agencies' policies and determined that the policies comport with the Lautenberg Amendment as implemented by DoDD 5210.56 and DoDI 6400.06. We also conducted a randomly selected statistical sampling of the agencies' personnel records and found that the DD Forms 2760 were completed and filed correctly. We noted that DIA, NGA, NSA, and PFPA exceeded the requirements of DoDI 6400.06 by requiring their employees to recertify annually that they do not have a qualifying domestic violence conviction. Furthermore, DIA, NGA, and PFPA went beyond policy requirements when they implemented internal processes to conduct annual records checks of personnel in covered positions, helping ensure that the divisions did not issue firearms or ammunition to anyone with a qualifying domestic violence conviction. Therefore, we are not making any recommendations.
Evaluation of the Defense Agencies’ Law Enforcement Divisions’ Compliance with the Lautenberg Amendment Requirements and Implementing Guidance
Inspector General
U.S. Department of Defense
February 23, 2016
Ohio lawmakers want to keep guns from domestic abusers, like in Hudson murder-suicide
Plain Dealer, The: Web Edition Articles (Cleveland, OH)
March 22, 2016
https://infoweb.newsbank.com/
COLUMBUS, Ohio -- A Hudson man who murdered his wife before killing himself might not have had access to a gun under a bill introduced by a pair of Northeast Ohio lawmakers.
Democrat Reps. Nickie Antonio of Lakewood and Janine Boyd of Cleveland Heights said Saturday's murder-suicide in Hudson is the latest example showing Ohio law does not do enough to keep guns out of the hands of abusers.
Antonio and Boyd introduced a bill Tuesday that would prohibit persons subject to certain civil protection orders and anyone convicted of a domestic violence crime from buying or possessing firearms.
Additionally, the bill would allow judges to place the same restrictions on people accused of abusing, if they were subject to a temporary protection order.
Stephen Bice was subject to both civil and temporary protection orders in the months before he killed his wife Kristi Bice. Bice had recently bought the Ruger 9-millimeter semiautomatic handgun used in the crime, according to police reports, but it was unknown how or when he bought it.
Previous coverage: Hudson man texted sons to get them out of their home before murder-suicide
"As a legislator, as a neighbor, as a member of a community who never knows what goes on behind closed doors, this is personal," Boyd said at a Tuesday press conference. "The fact of the matter is guns are the leading weapon of choice when an abuser makes the irreversible decision to murder his victim. The fact of the matter is the most dangerous period for a victim is immediately after they file a civil protection order."
The bill faces an uncertain future in a GOP-controlled Statehouse that has advanced bills expanding gun rights.
As of Tuesday, the bill had no Republican co-sponsors. But Boyd and Antonio were hopeful they will get Republican support, as both sides of the aisle have approved bills to protect domestic violence victims.
Want to know more?
What would the bill do?
Antonio and Boyd said the bill mirrors federal law that has been largely unenforceable in Ohio.
The Domestic Violence Offender Gun Ban, also called the Lautenberg Amendment, prohibits gun sales to people convicted of domestic violence crimes and subject to protection orders restraining the person from harassing, stalking, or threatening an intimate partner or child of the intimate partner.
Under the Ohio bill, domestic violence victims could list in a protection order all firearms owned by the alleged abusers. Like the federal law, the Ohio bill would require those protection orders to be issued after a hearing that the person was notified of and given an opportunity to be heard.
Abusers would have to surrender their firearms to local law enforcement or federally licensed firearms dealer within 24 hours of the judgment. Violating the law would be a fifth-degree felony.
The firearm restriction would show up during a criminal background check and bar a gun shop from selling to the abuser. Firearms would be returned when the protection order expires.
What is the response?
Nancy Neylon, executive director of the Ohio Domestic Violence Network, said women in abusive relationships are six times more likely to be killed when a gun is present in the house. Neylon said the bill will allow courts to enforce federal law and will save lives.
Antonio said the bill won't stop every domestic abuse case from ending in homicide but it will help protect families.
"The reality is we do the best we can," Antonio said. "We don't want a woman to be murdered. I don't think we want that intimate partner to spend the rest of his life in jail either. This is giving time for both sides to cool off and maybe step back."
Domestic Violence Gun Bill Ohio lawmakers proposed legislation that would ban the sale of new guns to people who are convicted of domestic violence crimes, or people who are subject to domestic violence orders. The bill came after Kristi Bice was killed by her husband. Stephen Bice turned the gun on himself and took his own life after the killing.
Domestic Violence Could Affect 2nd Amendment Rights
Targeted News Service (USA)
April 29, 2016
https://infoweb.newsbank.com/
MALMSTROM AIR FORCE BASE, Mont., April 28 -- The U.S. Air Force Malmstrom Air Force Base (341st Missile Wing) issued the following story:
The Lautenberg Amendment to the Gun Control Act of 1968 makes the possession of firearms or ammunition unlawful for certain civilian and military members. The amendment creates a felony classification for anyone "who has been convicted in any court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." Therefore, essentially, if a person has a domestic violence conviction, they cannot legally possess ammunition or a firearm. Additionally, the person who knowingly gives a firearm or ammunition to a person with a domestic violence conviction can be prosecuted for a felony as well.
The domestic violence conviction (state or federal) qualification covers a range of offenses. Basically, a qualifying conviction represents any offense that involves the use or attempted use of physical force, or threat of a deadly weapon, by a spouse, parent, guardian or domestic partner. Further, the amendment applies to convictions that happened at any time, whether before of after passage of the amendment.
Additionally, the Lautenberg Amendment does not apply to major military weapon systems or "crew served" military weapons and ammunition. The "crew served" military weapons include tanks, missiles, aircraft and other non-individual weapons. Thus, the amendment does not prohibit an A-10 aircraft pilot from flying the aircraft and shooting its 30 mm guns or Sidewinder missiles.
The amendment does, however, cover personal firearms such as the M-4 carbine and 9 mm. Anyone required by their position to qualify on either of these weapons or carry one on a daily basis will be unable to do so. This affects Air Force military personnel, as well as civilians, in positions requiring the handling of firearms or ammunition. In addition, this prohibition can have an immediate effect on the deployment readiness of any individual.
Department of Defense policy requires civilian and military personnel to inform their supervisor if they have a qualifying conviction or if they later receive one. Such information should be recorded on a DD Form 2760, especially before deployment. DoD policy further requires all Air Force facilities storing, issuing, disposing or transporting firearms or ammunition to display a notice about the Lautenberg Amendment.
The practical effect of the Lautenberg Amendment on military and civilian personnel is to limit the career paths of those with domestic violence convictions. If personnel are in a career that requires them to carry a firearm, qualify periodically on a firearm, or handle ammunition, such as security forces, they will not be able to meet their responsibilities in that career field. For some, this can mean a practical end to their Air Force career, or at least their current Air Force specialty code.
Dems seek to override Gov. on domestic violence gun ban
Jersey Journal, The (Jersey City, NJ)
June 17, 2016
https://infoweb.newsbank.com/
TRENTON - State Senate President Steve Sweeney (D-Gloucester) said yesterday Democratic lawmakers will push to override Gov. Chris Christie's veto of a bill that would force those convicted of domestic violence in New Jersey to surrender their guns and their permits to buy new ones.
Flanked by Assemblywoman Gabriela M. Mosquera (D-Camden) and Senate Majority Leader Loretta Weinberg (D-Bergen), Sweeney told reporters at the Statehouse that the mass shooting in Orlando earlier this week made their override attempt especially timely.
"If that doesn't send a signal that we need to do more to protect our citizens, I don't know what does," Sweeney said.
Originally passed with broad bipartisan support, the bill (S-805) would create a formal process to remove firearms from the hands of domestic abusers both in cases where a restraining order was in effect and upon conviction of a domestic violence offense.
"If you abuse your partner, you shouldn't be able to have a gun," Sweeney said.
In May, the governor vetoed the bill, proposing a rewrite of it that would instead expedite the permit process for domestic abuse victims seeking access to guns for their own protection.
A visibly angry Weinberg yesterday called Christie's veto and his call for women to arm themselves against abusers "stupid and insensitive."
Ruling upholds scope of gun ban for domestic violence
Milwaukee Journal Sentinel: Web Edition Articles (WI)
June 27, 2016
https://infoweb.newsbank.com/
Anti-domestic violence organizations cheered a U.S. Supreme Court ruling Monday that bars people with misdemeanor domestic violence convictions from owning guns, a ruling gun rights groups called unnecessary.
The ruling, which came on the last day of the court's session, says the 1996 amendment passed by Congress to ban people convicted of domestic abuse from purchasing or owning firearms does not exclude people who are convicted of "reckless" misdemeanors.
"For the vast majority of voters or concerned citizens, it is common sense that someone who has been violent to a spouse or ex-spouse is a dangerous individual and should not possess a gun," said Tony Gibart, public policy director at End Domestic Abuse Wisconsin, which contributed to a brief filed in the case.
The petitioners in the case, Voisine vs. United States, were two men from Maine who were charged with violating the federal statute after police discovered they had been convicted of domestic abuse misdemeanors.
The men took the conviction to court, arguing that the language of the amendment — referred to as the Lautenberg amendment after the bill's sponsor, Sen. Frank Lautenberg — only applied to people convicted of felonies and intentional misdemeanors.
In a 6-2 decision, with Justice Elena Kagan writing the majority and Justice Clarence Thomas writing the dissent, the court rejected that argument.
According to Gibart, if Congress had intended for the ban to exclude people who have been convicted of reckless domestic abuse misdemeanors, legislators would have explicitly written that into the amendment.
"That's not what Congress said," Gibart said. "They said that when someone uses force (in domestic abuse incidents), they've demonstrated themselves to be dangerous and they've demonstrated that they're not able to responsibly possess a firearm."
But local gun rights groups see the decision as unwarranted.
"I think if something wasn't serious enough to warrant a felony charge, it shouldn't be serious enough to warrant losing your gun rights over a misdemeanor conviction," said Nik Clark, chairman and president of Wisconsin Carry.
Clark said he's received multiple calls from people with misdemeanor convictions who are no longer able to buy firearms.
The Lautenberg amendment, which was tacked onto a 1996 omnibus appropriations bill, is targeted at people convicted of domestic violence crimes. The court, in looking only at that statutory language, did not address what it would think of a law that banned firearms possession for people convicted of reckless misdemeanors unrelated to domestic violence.
But Clark took issue with what he thinks is an inconsistency in how domestic violence and non-domestic violence misdemeanors are treated.
"If you commit the exact same act (of assaulting someone), and the only difference is the relationship between you and the person — shouldn't that be the exact same crime?"
Gibart said there is a distinction, saying domestic violence is "a pattern of intentional acts to exert power or control over a victim."
According to the FBI's 2010 homicide reports, the presence of a gun in a domestic violence situation increases the risk of homicide for a woman by 500%.
Domestic Violence: Firearms
Uintah Basin Standard (Roosevelt, UT)
September 15, 2016
https://infoweb.newsbank.com/
In a politically charged climate, such as the one which envelops the country at the present time, any mention of “gun control” or “gun laws” is likely to evoke lively reactions, pro and con. Nevertheless, in an era of ever increasing numbers of incidents of domestic violence, such discussions are essential to addressing the connections between domestic violence and firearms.
According to the Law Center to Prevent Gun Violence, guns increase the probability of death in incidents of domestic violence, and abused women are five times more likely to be killed by their abuser if the abuser owns a firearm. In practice, many existing gun laws are poorly defined and poorly enforced, with predictably devastating results.
The Lautenberg Amendment to the Omnibus Consolidated Appropriations Act of 1997 bans access to firearms by people convicted of crimes of domestic violence. The act applies to individuals convicted of misdemeanor domestic violence or who are under a protective (restraining) order for domestic abuse. This federal gun ban has been upheld by the United States Supreme Court, with justices rejecting arguments that the law only covers “intentional or knowing acts of abuse and not those committed recklessly—where a person is aware of the risk that an act will cause injury, but not certain it will.” Gun-rights groups argued that perpetrators should not lose their constitutional right to bear arms. The judges chose to rule otherwise, despite the argument that the ban could “trigger a lifetime ban on gun ownership.”
Unfortunately, domestic abusers frequently get to retain their guns. There are a number of reasons why this is the case:
Federal law does not outline a procedure for gun surrender, so states have to craft their own. Some, but not all, states have closed this gap, and these actions have proved to be successful in addressing domestic violence.
Even where relinquishment laws do exist, some judges don’t order abusers to surrender their guns, perhaps because they don’t see domestic violence as “a real type of violence.”
Some police departments aren’t familiar with relinquishment laws, or don’t have the resources to enforce them.
It can take weeks for protective orders to come through. A gun prohibition may become effective only when a permanent protective order is issued, providing a window during which an abuser can retain access to these weapons.
The so-called “boyfriend loophole” can limit the definition of domestic abuse. This gap in legal protection results in the assumption that if a couple have no children together and were never married, the appropriate charge is “simple assault,” rather than “domestic violence,” and the gun ban does not apply.
Domestic violence records may not appear in the federal background check data base. Without the additional investigation that would trigger a ban on firearms, an abuser is free to retain or purchase firearms without restrictions. The National Rifle Association has consistently fought legislation to strengthen protective laws, citing due process issues that may or may not apply, while ignoring the risk to the lives of domestic violence victims.
While the National Rifle Association has not done an about-face, the organization has recently softened its opposition to certain state laws regarding the possession of firearms by abusers convicted of misdemeanor domestic abuse, served with protective orders, or deemed by a court to pose significant threats to their families. The timing of the willingness of the NRA to work with lawmakers in addressing these issues may be related to the political climate in which recent polling by the Wall Street Journal showed that 65 percent of women favor stricter gun laws, compared to 44 percent of men.
Victims of domestic abuse are almost certain to be aware of ownership of firearms by the abuser. Here are important questions for the victim to address:
Did the abuser commit a domestic violence misdemeanor? A permanent domestic violence ban must fit the legal definitions, including the use or attempted use of physical violence or force against a person who is in a close personal relationship with the abuser (spouse, parent, girlfriend or boyfriend, for example).
Did you get a restraining order? If you have gotten a final restraining order or an order of protection, you may be able to prevent the abuser from purchasing, owning, or using a gun for as long as the order remains in effect. State laws vary, and it is important that you be informed of the various legal technicalities that may exist.
What to do if you think the abuser has a gun: Once you have determined that the preceding requirements have been met, notify local law enforcement and let them know the reasons you believe the gun ban applies. An investigation will be initiated and the police will sort out the details. Contacting an attorney who specializes in domestic violence issues is a good option.
There are numerous sources of information, including the following:
Domestic Violence Offender Gun Ban for links to Department of Justice Criminal Resource Manual; The Consumer Law Page Article; Misdemeanor Crime of Domestic Violence; The Emerson Case; and others.
Being informed may well be the best defense.
At Start of Domestic Violence Awareness Month, Reminder that Kelly Ayotte Wants to Repeal Lautenberg Amendment
Targeted News Service (USA)
October 6, 2016
https://infoweb.newsbank.com/
CONCORD, N.H., Oct. 5 -- The New Hampshire Democratic Party issued the following news:
At the beginning of Domestic Violence Awareness Month, New Hampshire voters are reminded that Kelly Ayotte supports repealing the Lautenberg Domestic Misdemeanor Gun Ban and allowing those convicted of domestic violence to own deadly weapons. You can view that questionnaire HERE.
People with a history of domestic violence are five times more likely to murder their intimate partner if there is a firearm in their home, yet Ayotte told the New Hampshire Firearms Coalition in 2010 that she supported repealing the ban on misdemeanor domestic abuser gun ownership.
"When a Senator supports allowing convicted domestic abusers to own guns, despite the evidence that such gun ownership dramatically increases intimate partner murders, it could not be more clear that she puts her campaign backers at the gun lobby ahead of the safety of the people she allegedly represents," said New Hampshire Democratic Party Press Secretary Melissa Miller.
"New Hampshire needs a Senator who will stand up for common sense gun safety measures like blocking domestic abusers from owning guns and expanding criminal background checks for gun purchases. Granite Staters have had enough of Kelly Ayotte siding with the gun lobby instead of public safety."
2017: Lautenberg DV Gun Ban - News Articles And Reports
Domestic offenders in Colorado are supposed to relinquish their guns, but it doesn't always happen
Enforcement of 2013 law is inconsistent, and state doesn't track weapons
Denver Post, The: Web Edition Articles (CO)
April 8, 2017
https://infoweb.newsbank.com/
Glen Galloway knew the two-story home on Miramont Street in Colorado Springs well.
He had been there many times before May 30, 2016, when police say he shot Janice Nam twice in the head in her home, killing her.
Nam and Galloway had dated and broken up years before, but he remained a malevolent presence in her life. He allegedly stole her washer, dryer and refrigerator, and left food to rot on the kitchen counter. Another time, Nam's faucets were left on and her television remote was stolen.
Galloway was charged in 2014 and later convicted of stalking Nam, and twice he was ordered to relinquish his firearms. The first time he complied and turned over three weapons, but the second time, about a year later, he told the court he had none. It is not known whether anyone investigated to confirm that claim, but it was not required.
Roughly a year later, Nam was shot dead. Galloway has pleaded not guilty to 29 counts against him, ranging from murder to bail bond violation and theft.
Colorado passed a law three years before Nam's death to ensure domestic violence abusers who are subject to protection orders surrender their firearms. But The Denver Post found that judicial districts across the state vary wildly in their interpretation and enforcement of the law, leaving some domestic violence survivors more protected than others.
The Post uncovered other problems that make it difficult to measure the law's effectiveness.
At least 45,000 men and women have been ordered to surrender their firearms under the law — either by selling or transferring them to a licensed firearms dealer or a third party who underwent a background check, or by storing them at a law enforcement agency or licensed firearms dealer.
Transferring a weapon requires a receipt as proof. But individual courtrooms have differing protocols for filing and organizing relinquishment receipts. They are not required to keep track of the receipts, and the state does not track what happens to the weapons.
Logistical issues also hinder enforcement. Colorado, like most states, does not have searchable registries of firearms owners that authorities can use to assist in getting guns out of domestic offenders' hands.
Advocates and law enforcement officials say systems like Colorado's put too much accountability on offenders to police themselves.
"It is somewhat naive to just expect all of these people to follow the honor system and relinquish their firearms," said April Zeoli, an associate professor at the School of Criminal Justice at Michigan State University who specializes in studying domestic violence firearms law and crime statistics.
Relinquishment "is something law enforcement should be responsible for, because it is about keeping the public safe," she said.
Enforcement varies
The Post reviewed state records analyzed by the nonprofit Everytown for Gun Safety that show enforcement varies widely across the state.
The data show that judges reported they ordered offenders to relinquish their guns in fewer than 1 percent of protection order cases last year in counties including Dolores and Montezuma, the 22nd Judicial District, while judges in the 17th Judicial District, which includes Adams and Broomfield counties, filed those orders nearly 70 percent of the time. On average, across the state, judges filed relinquishment orders in 36.3 percent of their total protection order cases, according to data they reported to the state.
Since SB-197 became law in Colorado in 2013, 126 people have been charged in violation of it, according to the Colorado Judicial Branch.
Analysis of some of those cases by Everytown found that the incidents tended to happen during chance encounters with law enforcement during traffic stops or unrelated crimes, or when they tried to purchase firearms from licensed dealers. Everytown was unable to find a case in which an offender was charged for neglecting to file a receipt.
"If you look at it statistically, if 45,000 people are charged with relinquishment and you can't find many charges brought against them, that's a problem," said Robert Wareham, a Highlands Ranch attorney who also runs a firearms storage business for people who are ordered to relinquish.
The level of scrutiny domestic violence offenders face is unequal across the state and is based on each judicial district's interpretation of the law, not their crimes, critics say.
Judicial districts are concerned that the law conflicts with several statutes, including the state Constitution and the Rules of Criminal Procedure, said Jon Sarche, a public information officer at the state judicial branch. "In some counties or judicial districts, no law enforcement agency can or will accept firearms under relinquishment orders," he wrote in an email.
The law requires courts to issue a warrant for the party's arrest if they fail to file a receipt in the allotted time. "Several districts noted, however, that finding a defendant or restrained party noncompliant may be left up to chance (occurring only if the court receives outside information) because of the statute's silence on follow-up," Sarche wrote.
Judges order relinquishment of firearms in protection-order cases when they find the relationship between the parties qualifies it as domestic-violence related. If the court doesn't deem the case domestic violence, both parties may be allowed to keep their firearms.
In Weld County, people are informing the courts that they've surrendered their firearms, District Attorney Michael Rourke said. "What we have done on the front end is to train law enforcement in a domestic violence situation to ask 'are there any firearms in the home?' We're including it in the filings," he said. Judges in the 19th Judicial District, which includes Weld County, ordered relinquishment in about 32 percent of their cases.
Judges in the 18th Judicial District, which includes Arapahoe, Douglas, Elbert, and Lincoln counties, ordered relinquishment in 28 percent of their protection order cases in 2016.
"The intent of the legislation is right. We want to keep guns out of the hands of people who would most likely turn them on a loved one," said George Brauchler, district attorney for the 18th district. "The legislation is flawed, and almost impossible to enforce."
Forcing people to admit to owning firearms is a potential violation of the 5th Amendment of the Constitution, Brauchler said. That amendment forbids the justice system from forcing citizens to self incriminate through testimony.
Federal law since 1996
In 1996, Congress passed the Lautenberg Amendment, which bans firearm possession for anyone convicted of a misdemeanor domestic violence crime or subject to a protection order.
Enforcing this law was left up to states and up until 2013, Colorado had no mechanism of enforcement. Colorado now is one of 25 states that has passed domestic violence relinquishment laws, and it is one of just five that requires proof of relinquishment in all cases.
"What happened before 2013 was nothing," said Annmarie Jensen, a lobbyist who worked on passing the bill. "Nobody did anything in court and nothing happened to make it go away."
Gun violence researchers hold a handful of law enforcement agencies as exemplary in seeking out solutions to the problems that plague the effort to retrieve firearms. The Montgomery County Sheriff's Department in Maryland is one of them.
When a protection order gets filed in the county, the Family Justice Center in the sheriff's office is notified immediately. Deputies research the offender in the state's gun ownership database, a tool Colorado does not have, that includes new residents of the state and assault rifle owners.
The sheriff's office interviews the protected party to see if they know of weapons the offender did not previously mention to the courts. The best intelligence usually comes from the victim, explained Captain Rodney Brown of the Montgomery County Sheriff Department. After that, they travel to the offender's home.
"Sometimes when we go there, the weapon can be taken legally if it's in plain view," said Lt. Zachary Grant. "If the gun is not there, we emphasize, 'If you access this gun, there will be criminal charges.' "
The sheriff's department confiscates about 100 to 300 firearms a year using this system. The guns are booked into the sheriff's office, and "it's a process" to get them back, he said.
To get their firearms back, offenders have to send a letter to the sheriff. Many end up leaving their firearms with the sheriff's department, which melts them down if no one comes to retrieve them. The sheriff's office has been recovering firearms like this for about a decade, Brown said. The only cost has been hiring a few extra deputies to replace those reassigned to the unit, he said.
Few states have registry
Only six states and Washington D.C. maintain easily searchable gun registries at varying levels of detail, according to the the Law Center to Prevent Gun Violence.
Authorities use the databases to learn whether an offender previously purchased a weapon before they became ineligible for ownership. Colorado, like eight other states, has a law that prohibits such a database from existing. Without a searchable registry, Colorado law enforcement is hindered by a lack knowledge of who in the state owns a firearm.
Police stations and sheriff's departments across the state said that requests to tally the firearms they have in their possession would take weeks to fulfill, because of the lack of an established filing system for these guns. Sheriff's departments have little room for storing firearms at their facilities and don't want to be held liable for damage to the guns, said Chris Johnson, executive director of County Sheriffs of Colorado.
"None of us want to become gun holders. We actually encourage people to relinquish them to family members or friends," said Carrie Haverfield, a public information officer at the Boulder County Sheriff's Department.
Judges from the 20th Judicial District, which includes Boulder, filed relinquishment orders in 0.57 percent of their cases, which county officials say is artificially low due to the court's document filing protocol.
Other states have found creative ways around the gun storage issue
In Vermont, a law orders the state's department of public safety to create a list of facilities where offenders can store their firearms and a fee schedule for using the service. Those fees are paid to the law enforcement agency, which can also take out a loan to build more space for the guns. The law also releases all offices of liability from damage to the firearms if they're stored properly.
A private gun range in Dallas County, Texas, takes in relinquished firearms. There, judges begin by assessing defendants' access to firearms at their initial court appearances and using information acquired through law enforcement. The court orders defendants to relinquish firearms to the gun range or a third party for the duration of their cases.
Domestic violence advocates say relinquishment laws — if enforced properly — not only can save lives but are valuable in removing the looming threat of a gun at home, explained Lydia Waligorski, director of public policy at the Colorado Coalition for Domestic Violence.
"The mere presence of a gun says, 'I can kill you whenever I want,' " she said.
Texas killer was able to buy guns because of Air Force lapse
Albert Lea Tribune (MN)
November 6, 2017
https://infoweb.newsbank.com/
The gunman who slaughtered 26 people at a Texas church was able to buy weapons because the Air Force failed to report his domestic violence conviction to the federal database that is used to conduct background checks on would-be gun purchasers, authorities said Monday.
Federal officials said the Air Force didn't submit Devin Patrick Kelley's criminal history even though it was required to do so by Pentagon rules.
Kelley, 26, was found guilty of assault in an Air Force court-martial in 2012 for abusing his wife and her child and was given 12 months' confinement followed by a bad-conduct discharge in 2014. That same year, authorities said, he bought the first of four weapons.
Under Pentagon rules, information about convictions of military personnel for crimes like assault should be submitted to the FBI's Criminal Justice Investigation Services Division.
It's the kind of lapse that gun-control advocates say points to loopholes and failures with the background check system.
At issue is the Lautenberg Amendment, enacted by Congress in 1996. The federal law was designed to prohibit people convicted of domestic violence from buying or possessing a firearm regardless of whether the crime was a felony or a misdemeanor.
"This is exactly the guy the Lautenberg Amendment is supposed to prevent from possessing a firearm," said Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles and a retired Air Force lieutenant colonel and former judge advocate. "Of course, the law only works if folks are abiding by the law."
Air Force spokeswoman Ann Stefanek said in an email that the service is launching a review of its handling of Kelley's case and taking a comprehensive look at Air Force databases to make sure other cases have been reported correctly.
An initial review indicates that Kelley's conviction was not entered into the federal database by officials at Holloman Air Force Base's Office of Special Investigations, the Air Force said.
Kelley served at Holloman in New Mexico from 2010 until his discharge. He was in logistics, responsible for moving passengers and cargo.
Law enforcement authorities said Kelley owned four guns, including the three he had with him during the attack: a Ruger AR-15 that was used in the church and two handguns that were in his car. The weapons were purchased — one each year — from 2014 to this year.
A 2015 report by the Pentagon's inspector general found lapses in the military's reporting to civilian authorities of domestic violence convictions.
From Nov. 30, 1998, until last week, firearms purchases in the U.S. were denied 136,502 times because of a domestic violence conviction, according to Justice Department statistics.
"The fact this guy was even court-martialed at all indicates it reached a certain level of severity that should act as a red flag that this is a dangerous person and shouldn't have a gun," said Lindsay Nichols, the federal policy director at the Giffords Law Center to Prevent Gun Violence, named after former Rep. Gabby Giffords, who was gravely wounded by a gunman in 2011.
How was the Texas gunman able to buy a firearm?
Associated Press State Wire: Arizona (AZ)
November 6, 2017
https://infoweb.newsbank.com/
ATLANTA (AP) — A two-decade-old federal law is supposed to prevent people with a history of domestic violence from buying or owning a firearm. So why didn't Devin Kelley's conviction prevent him purchasing weapons before he killed 26 parishioners at a Texas church?
The answer isn't clear, but it may have to do with where his domestic violence case was handled: in a military court.
Kelley was found guilty of abusing his wife and her son and received a bad-conduct discharge from the Air Force. But it's unclear if the Defense Department reported his conviction to the federal database that is used to conduct background checks on citizens looking to purchase a firearm.
The Lautenberg Amendment, enacted by Congress in 1996, was designed to prohibit people convicted of domestic violence from buying or possessing a firearm regardless of whether the crime was a felony or a misdemeanor.
"This is exactly the guy the Lautenberg Amendment is supposed to prevent from possessing a firearm," said Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles and a retired Air Force lieutenant colonel and former judge advocate. "I'm not sure how he was able to obtain his weapon. Of course, the law only works if folks are abiding by the law."
Neither the Air Force nor the federal Bureau of Alcohol, Tobacco, Firearms and Explosives returned messages seeking information on what the military is required to report — and what reports, if any, were filed in Kelley's case.
Local law enforcement said that Kelley did not have a permit to carry a firearm in Texas. However, a license to carry is not required to buy a gun in the state.
Kelley served at Holloman Air Force Base in New Mexico from 2010 until his discharge in 2014. He was in logistics, responsible for moving passengers and cargo. He served 12 months' confinement after his 2012 court-martial.
Law enforcement authorities said Monday that Kelley owned four guns, including the three he had with him: a Ruger AR-15 that was used in the church and two handguns that were in his car. The weapons were purchased — one each year — from 2014 to this year.
Some experts said the military is required to report only criminal cases that result in dishonorable discharges into the database, while others said any military conviction for domestic violence should be reported.
A 2015 report by the Pentagon's inspector general found lapses in the military's reporting to civilian authorities of domestic violence convictions.
Robert Spitzer, chairman of political science at the State University of New York at Cortland and an expert on firearms and Second Amendment issues, said it appears Kelley was able to avoid being flagged when he bought his guns because he received a bad-conduct discharge and not a dishonorable one.
"This apparently is why he cleared the background check. That certainly poses a problem," Spitzer said.
From Nov. 30, 1998, until last week, firearms purchases in the U.S. were denied 136,502 times because of a domestic violence conviction, according to Justice Department statistics.
"The fact this guy was even court-martialed at all indicates it reached a certain level of severity that should act as a red flag that this is a dangerous person and shouldn't have a gun," said Lindsay Nichols, the federal policy director at the Giffords Law Center to Prevent Gun Violence, named after former Rep. Gabby Giffords, who was gravely wounded by a gunman in 2011.
Gunman in church attack was convicted of fracturing stepson's skull
San Antonio Express-News: Web Edition Articles (TX)
November 6, 2017
https://infoweb.newsbank.com/
The gunman who killed at least 26 people in a church south of San Antonio was kicked out of the Air Force after cutting a plea deal in which he admitted to fracturing his stepson's skull, the former head of Air Force prosecutors said Monday.
Devin Patrick Kelley faced at least five years in a military prison for attacking the baby and also his wife, the former top Air Force prosecutor, retired Col. Don Christensen, said.
An Air Force jury handed him a 12-month sentence in 2012, he said.
"He entered pleas of guilty to fracturing his son's skull, his stepson's skull, and to assaulting his wife. And as a result of that there really is no question about his guilt," Christensen said. "He should not have been able to get a gun (after Kelly's discharge from the service.) There is no way this man should have legally owned a gun based upon what he was convicted of."
A traffic management apprentice after entering the Air Force nearly eight years ago, Kelley bought four guns from 2014-2017. Two were purchased in Colorado, while two others were purchased in Texas, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
No one has yet to explain how that happened.
Kelley entered First Baptist Church of Sutherland Springs on Sunday wearing a body armor and military-style clothing, and gunned down the worshipers, making the mass shooting the worst in the state's history. Dozens more were wounded. He approached the church with an assault rifle, shooting at the building from outside before entering and continuing the gunfire, witnesses said.
A neighbor grabbed his rifle and shot at Kelley, who drove off toward Guadalupe County, crashed his vehicle and shot himself, authorities said..
Kelley had at least three weapons with him. Authorities recovered a Ruger AR-556 rifle at the church. They also found a Glock 9mm and a Ruger .22-caliber handgun from the Ford Explorer he had been driving, said Fred Milanowski, a special agent in charge of the Bureau of Alcohol, Tobacco, Firearms and Explosives field office in Houston.
Kelley did not have a license to carry a concealed handgun but did have a "non-commissioned, unarmed private security license similar to a security guard at a concert-type situation," said Freeman Martin of the Texas Department of Public Safety.
Christensen said Kelley's conviction was automatically appealed because he received a bad-conduct discharge in addition to the 12-month sentence. A record obtained by the Express-News on Monday shows that the Air Force Court of Criminal Appeals affirmed his conviction. A higher court rejected Kelley's request to overturn that ruling.
Details of the case were not immediately available from the Air Force, but Christensen said the potential five-year prison sentence for badly injuring the child should have precluded Kelley from legally obtaining a firearm.
The Lautenberg Amendment to the Gun Control Act of 1968 makes it a felony for those convicted of misdemeanor crimes of domestic violence to ship, transport, possess, or receive firearms or ammunition.
The amendment, which took effect Sept. 30, 1996, also made it a felony to transfer a firearm or ammunition to an individual known, or reasonably believed, to have a domestic violence conviction, according to the Army.
Christensen said there were two legal reasons why he should not have had a firearm — his conviction of an offense punishable by more than a year in confinement, and the Lautenberg Amendment. Because he was convicted of two domestic violence offenses, Kelley should not have been able to have a gun.
"Without a doubt, the system failed. Your question to be discovered is, why did it fail? Who failed?" said Christenson, the director of a group called Protect Our Defenders that advocates for assault and sexual assault victims. "Did the military fail in their reporting obligations? Was it a failure that we use archaic language in the military to describe our process that didn't translate well into the civilian system?
"And was it a failure that civilians had the right information and still allowed him to do it? So I don't know where the failure happened, but without a doubt there was a failure."
Rifle, handguns linked to gunman in Texas church shooting
Herald-Dispatch, The (Huntington, WV)
November 7, 2017
https://infoweb.newsbank.com/
ATLANTA - A two-decade-old federal law is supposed to prevent people with a history of domestic violence from buying or owning a firearm. So why didn't Devin Kelley's conviction prevent him purchasing weapons before he killed 26 parishioners at a Texas church?
The answer isn't clear, but it may have to do with where his domestic violence case was handled: in a military court.
Kelley was found guilty of abusing his wife and her son and received a bad-conduct discharge from the Air Force. But it's unclear if the Defense Department reported his conviction to the federal database that is used to conduct background checks on citizens looking to purchase a firearm.
The Lautenberg Amendment, enacted by Congress in 1996, was designed to prohibit people convicted of domestic violence from buying or possessing a firearm regardless of whether the crime was a felony or a misdemeanor.
"This is exactly the guy the Lautenberg Amendment is supposed to prevent from possessing a firearm," said Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles and a retired Air Force lieutenant colonel and former judge advocate. "I'm not sure how he was able to obtain his weapon. Of course, the law only works if folks are abiding by the law."
Neither the Air Force nor the federal Bureau of Alcohol, Tobacco, Firearms and Explosives returned messages seeking information on what the military is required to report - and what reports, if any, were filed in Kelley's case.
Local law enforcement said that Kelley did not have a permit to carry a firearm in Texas. However, a license to carry is not required to buy a gun in the state.
Kelley served at Holloman Air Force Base in New Mexico from 2010 until his discharge in 2014. He was in logistics, responsible for moving passengers and cargo. He served 12 months' confinement after his 2012 court-martial.
Law enforcement authorities said Monday that Kelley owned four guns, including the three he had with him: a Ruger AR-15 that was used in the church and two handguns that were in his car. The weapons were purchased - one each year - from 2014 to this year.
Some experts said the military is required to report only criminal cases that result in dishonorable discharges into the database, while others said any military conviction for domestic violence should be reported.
A 2015 report by the Pentagon's inspector general found lapses in the military's reporting to civilian authorities of domestic violence convictions.
Robert Spitzer, chairman of political science at the State University of New York at Cortland and an expert on firearms and Second Amendment issues, said it appears Kelley was able to avoid being flagged when he bought his guns because he received a bad-conduct discharge and not a dishonorable one.
"This apparently is why he cleared the background check. That certainly poses a problem," Spitzer said.
From Nov. 30, 1998, until last week, firearms purchases in the U.S. were denied 136,502 times because of a domestic violence conviction, according to Justice Department statistics.
"The fact this guy was even court-martialed at all indicates it reached a certain level of severity that should act as a red flag that this is a dangerous person and shouldn't have a gun," said Lindsay Nichols, the federal policy director at the Giffords Law Center to Prevent Gun Violence, named after former Rep. Gabby Giffords, who was gravely wounded by a gunman in 2011.
Sens. Flake and Heinrich Press Conference on Domestic Violence Loophole Closure Act
Senator Jeff Flake
November 7, 2017
U.S. Sens. Jeff Flake (R-Ariz.) and Martin Heinrich (D-N.M.) hold a press conference and media avail to introduce the Domestic Violence Loophole Closure Act; legislation that will close the background check loophole exploited by the Sutherland Springs, Texas shooter and prevent any individual convicted of domestic violence – whether it is in civilian or military court – from legally purchasing a firearm.
Sens. Flake, Heinrich Introduce Bill To Permanently Close Gun Loophole Used By Texas Shooter
Targeted News Service (USA)
November 7, 2017
https://infoweb.newsbank.com/
WASHINGTON, Nov. 8 -- The office of Sen. Jeff Flake, R-Ariz., issued the following news release:
U.S. Sens. Jeff Flake (R-Ariz.) and Martin Heinrich (D-N.M.) today introduced the bipartisan Domestic Violence Loophole Closure Act; legislation that will close the background check loophole exploited by the Sutherland Springs, Texas shooter and ensure that any individual convicted of domestic violence - whether it is in criminal or military court - cannot legally purchase a firearm.
Currently, the Uniform Code of Military Justice does not have a specific charge of domestic violence, instead charging such cases as general assault. This can complicate the enforcement of the domestic-violence ban on gun purchases, as happened with the shooter responsible for the deaths of 26 people in Sutherland Springs, Texas this week, whose crime of domestic violence did not disqualify him from purchasing a firearm.
This bill permanently clarifies the ambiguity in 1996 Lautenberg amendment to the Gun Control Act of 1968 as it applies to the military, and requires the military to report misdemeanors of domestic violence to the NICS database to be used in background checks for all legal gun purchases.
Despite the Lautenberg amendment's intentions, since the NICS database was modernized in 2007, only one case of a misdemeanor crime of domestic violence conviction has been reported by the DOD.
To view video of Flake and Heinrich's press conference on the bill, click here.
"It appears this loophole allowed a man who was clearly unfit to purchase a firearm to do so at the cost of 26 innocent lives," said Flake. "This bill will ensure that a situation like this will not happen again and that anyone, anywhere convicted of domestic violence is kept from legally purchasing a gun."
"Our country is weary from violence and grief and the American people deserve meaningful action from Congress. With each new tragic shooting, we see clear examples of how we are failing to keep guns out of the hands of those who would turn them against our communities," said Heinrich. "We must address the loopholes that helped lead to this weekend's mass shooting in Texas. The military failed to report a domestic violence conviction that should have prevented the gunman from purchasing weapons. The Department of Defense has a responsibility to report these convictions and ensure the NICS database is accurate to prevent tragedies like the Sutherland Springs shooting. This is something Republicans and Democrats can agree on and action we must take to prevent future tragedies."
2018: Lautenberg DV Gun Ban - News Articles And Reports
Guns and domestic violence
Union-Sun & Journal (Lockport, NY)
January 1, 2018
https://infoweb.newsbank.com/
In December 2015, a Chautauqua County man went to the Orchard Park home of his girlfriend, stole some of her property, destroyed other property and started a small fire in her garage.
The following January, David Lewczyk, 53, turned himself in and was charged felony criminal mischief and misdemeanor arson and petit larceny. A judge also issued a "refrain from" order, requiring that Lewczyk be cordial in any future contact with the victim, Ruby Stiglmeier, 51.
The order did not force Lewczyk to temporarily surrender his legally-registered pistol, and on March 29, he used it to shoot Stiglmeier to death in her Queens Place home, before turning the gun on himself.
Stiglmeier was one of 25 New Yorkers killed last year by a domestic partner using a firearm.
They're tragedies that Gov. Andrew Cuomo believes can be prevented with stronger state laws aimed at keeping firearms away from those convicted of or charged with domestic violence crimes.
And in his first proposal for 2018, Cuomo introduced sweeping legislation aimed at just that. His proposal calls for extending the state-level firearm ban to domestic violence misdemeanors, including long guns in the ban and requiring judges to order the removal of firearms when issuing orders of protection, including "refrain from" orders.
Cuomo framed the proposal as a crucial tool to protect women, who are overwhelmingly the victims of domestic violence, and to prevent mass shootings. In nine of the past 10 deadliest mass shootings, including the recent massacres in Las Vegas and Sutherland Springs, Texas, the shooter had a prior history of domestic violence.
"Building on the Women's Equality Agenda, we are continuing our mission for progressive values and women's rights with this legislation to target the unquestionable relationship between domestic violence and gun violence," Cuomo said in a statement.
Federal law
However, as some wary Second Amendment rights activists point out, federal law already bars convicted domestic abusers bars owning or buying guns.
The Domestic Violence Offender Gun Ban, passed in 1996 with broad bi-partisan support (97-2), makes it a crime to own a firearm if one has been convicted of a domestic violence misdemeanor or is under a restraining order for domestic abuse. The Gun Control Act of 1968 had previously banned convicted felons from owning or buying firearms.
"It's very, very redundant to what's already in place federally," Don Hey, chairman of the Shooters Committee on Political Education, said of Cuomo's proposal.
But domestic violence victim and gun control advocates say the federal law, often called the Lautenberg Amendment, is not consistently enforced and contains loopholes that can prove deadly.
For one, the law only applies to couples that are or were married, co-habitat and/or have a child in common, allowing what many call the "boyfriend loophole."
As marriage rates continue to trend downward, these type of relationships may be growing more prevalent, putting more domestic violence victims at risk.
"That boyfriend can certainly be someone who could be a domestic violence perpetrator, and they wouldn't fall under the current federal law," said Mary-Brennan Taylor, vice president of programs for the YWCA of the Niagara Frontier, which offers services for domestic violence victims. "I'm hoping it ... addresses some loopholes — loopholes that can be deadly."
State proposal
According to a Cuomo spokesperson, the proposal would cover more misdemeanor charges, such as stalking, and more domestic situations, including the boyfriend loophole, than are currently covered under the Lautenberg Amendment. It would also empower state law enforcement, as opposed to the gun ban being a lower-level federal priority.
"This will hopefully clarify for all levels of law enforcement and courts how gun removal is to be handled in these types of situations," Taylor said. "There shouldn't be any ambiguity about the removal of firearms, and I think that's where federal law has been a bit weak."
Meanwhile, under current state and federal law, judges have discretion on whether to order removal of firearms when issuing an order of protection in a domestic violence case.
Cuomo's proposal would require judges to order removal of firearms whenever an order of protection is issued, which typically occurs after an individual is arrested but before conviction. Firearms are returned upon expiration of a temporary order of protection, assuming the individual is not first convicted of a domestic violence or other felony charge.
As Stiglmeier's case shows, this discretion can allow dangerous individuals to retain their guns.
"Some judges may see a perpetrator and see them as a serious threat and another judge may not. I'm hoping this legislation would remove that discretion," Taylor said.
But pro-gun rights activists say this discretion is crucial to ensuring non-abusers do not face a violation of their Constitutional rights.
Hey used an example of a person charged with harassment for repeatedly and disruptively contacting an elected official's office. Others worry about domestic violence charges brought against someone who was acting in self-defense.
"We do have judges for a reason, because every case is different," Hey said.
The proposal also would extend firearm removals to include long guns, such as rifle and shotguns. State law currently requires removal of handguns when orders of protection are issued or when an individual is convicted of a felony or other serious offense, but excludes long guns.
However, unlike handguns and assault weapons, which have licensure and registration requirements, there is no state or federal system that tracks long guns.
Federal efforts
Domestic violence victim advocates say more needs to be done at the federal level to keep weapons out of the hands of convicted abusers.
After the Sutherland Springs shooting, a bi-partisan group of senators introduced legislation to ensure federal and state agencies report relevant criminal histories to the National Instant Criminal Background Check System. The bill also would penalize agencies that fail to do so.
Shooter Devin Patrick Kelly should not have been able to legally purchase the AR-15-style rifle he used in the church massacre after a 2012 court-martial for assaulting his then-wife and stepson.
Meanwhile, a bi-partisan group of Congress members are pushing legislation to bolster state and local authorities' ability to prosecute convicted felons and domestic abusers who attempt to buy guns by lying on background check forms.
Currently, when a NICS denial occurs, the information is sent to the Bureau of Alcohol, Tobacco, and Firearms; however, the federal government rarely prosecutes these cases.
The House bill, NICS Denial Notification Act, would require that state and local authorities be notified whenever a NICS denial occurs.
Second Amendment lobby
Gun-control legislation aimed at domestic abusers often draws mixed reactions from pro-gun advocates, many of whom have adopted an increasingly absolutist position against any restriction of 2nd Amendment rights.
A New York State Rifle & Pistol Association spokesperson declined to comment on Cuomo's proposal until legislation is introduced. However, like Hey, he called the proposal redundant because of the Lautenberg Amendment.
Hey said he's wary of any gun control legislation proposed by Cuomo, who angered many gun-owners when he passed the Secure Ammunition and Firearms Enforcement Act in 2013.
"What Gov. Cuomo has shown in the past is a propensity that goes beyond the norm and try to remove guns from people that aren't a threat to society," Hey said.
Assembly member Michael Norris said he was "anxiously waiting" hearing the details of Cuomo's proposal.
"Any time we can have a dialogue about protecting New Yorkers from such senseless violence like domestic abuse, I am happy to take the first seat at the table," Norris said.
Norris added such efforts should include passage of Brittany's Law, which would create a public registry of felons convicted of domestic violence-related crimes.
New York State Sen. Robert Ortt, R-North Tonawanda, when asked about the proposal, simply replied in an emailed statement: "I remain a steadfast supporter of the Second Amendment."
When asked if he would oppose a bill similar to Cuomo's proposal, Ortt's office did not reply.
Taylor said she didn't believe Cuomo's proposals would affect law-abiding gun-owners.
"What this legislation addresses are these bad actors who are dangerous individuals and pose a threat to their intimate partners and children," Taylor said. "I don't believe that this is in any way a violation of Second Amendment rights. I think what it is is a protection for innocent individuals who face certain lethality from domestic violence perpetrators."
Keeping guns from the most dangerous
Daily Leader, The (Pontiac, IL)
January 3, 2018
https://infoweb.newsbank.com/
Hooray! America has just set a new record. Want to guess what it is?
Record-breaking high school math scores, you say?
Nope. Maybe a record number of workers pulling themselves out of poverty, or a banner year for a decline in infectious diseases?
No and no.
Here's the news: On just one day last month, the citizenry of the United States filed the largest number of applications for an instant gun background check. Yup. On Black Friday, the day after Thanksgiving, a record-breaking 203,086 of us weren't just counting our blessings; we were asking the FBI to hurry up and approve our gun purchase.
So, who are these people?
Were they simply exercising their Second Amendment right to own a firearm, or did some of them have more sinister motives?
There isn't enough room in this column to include everything that needs to be said about gun ownership in America - both pro and con. And please understand this is not an attack on the constitutionally protected right to bear arms, so hold off on the angry emails. This is a call to take a close look at the criminal damage done by those who use guns to kill people.
Who are they?
How can we identify them?
And can we stop the most damaging shooters - the mass murderers - before they take innocent lives?
"You could think of domestic violence as a canary in the coal mine for future violence," said Sarah Tofte of the nonprofit group Everytown for Gun Safety.
The group's analysis of the problem concludes that in 54 percent of mass shootings between 2009 and 2016, the gunman had a history of family or domestic violence that should have been viewed more seriously.
Think about that. There were red flags of domestic abuse for more than half of mass shooters before they turned their gun on others. Tofte told Time magazine, "We may not know everything we need to know about why and when it reverberates outside the home, but we know that it does, and we've seen it over and over again." Yet only 17 states and the District of Columbia have passed gun-relinquishment laws that force those convicted of domestic violence and other violent offenders with restraining orders to hand over their firearms.
Could a determined offender get another gun illegally?
Yes. That's a different and difficult problem. But according to a study by Michigan State University, states that take guns from those with domestic-violence restraining orders have a 22 percent lower rate of intimate-partner homicide. Naturally, it is women and children who suffer the most.
Two decades ago, Congress passed the so-called Lautenberg Amendment that prohibited people from owning or buying a gun if they've been convicted of assaulting a spouse or child, or are under a permanent protective order. That is reported to have kept guns out of the hands of some 195,000 angry people. But over the years, the family dynamic has changed. Live-in partners, boyfriends, ex-spouses and convicted stalkers aren't covered under that law.
Gee, I know Washington lawmakers are busy these days, but maybe they could find some time to update this?
You know what else would help keep guns out of the hands of dangerous people?
The Department of Defense obeying the existing federal law requiring the military to report service members who are violent felons and domestic abusers convicted of crimes that disqualify them from owning guns.
Each branch of the service is supposed to pass on to the FBI the names of those with court-martialed convictions, so they can be added to the national gun background-check database. The DOD has ignored its own inspector general, who has been warning about this lapse since back in the 1990s. According to a 2015 report and another issued just weeks ago, nearly 1 in 3 military convicts who should be barred from gun ownership remains unknown to the FBI.
The most recent case in point is Devin Kelley. He was found guilty during a court-martial on two vicious domestic-abuse charges against his wife and infant stepson, and he had a history of violence against women.
The Air Force never reported Kelley to the FBI for inclusion on the do not-buy gun list. After serving time in a military prison and being discharged, the disgraced former airman bought more firearms and committed mass murder at a Texas church earlier this year. Twenty-six people died, and more than 20 others were wounded.
By the way, three cities (New York, Philadelphia and San Francisco) are now suing the Pentagon to force it to comply with the federal reporting law. It's sad that the department tasked with ensuring national security has to be forced into action.
Every state and the U.S. Congress should pass laws that take away a violent convict's right to own a gun.common sense tells us that those who have perpetrated violence against others in the past should not be allowed to have the deadliest of weapons.
If Texas can protect domestic violence victims from guns, why not Missouri?
St. Louis Post-Dispatch (MO)
Author/Byline: the Editorial Board
January 3, 2018
https://infoweb.newsbank.com/
The Missouri Legislature opens its 2018 session Wednesday. Before moving on to tax breaks and special interest legislation, lawmakers should consider protecting women from being murdered by their husbands and boyfriends.
Yes, this will involve putting some limits on the sale and possession of firearms. But Republican lawmakers in states as conservative as Texas, Tennessee and Utah have decided that if an individual has been convicted of domestic abuse, or if there’s an order of protection against him, he shouldn’t possess firearms. It’s not an argument the gun lobby wants to publicly oppose.
Here’s a chance for a bipartisan effort to protect at least a few women and children, and the police officers who intervene in domestic disputes, from unhinged individuals.
Federal law passed in 1996, and upheld by the Supreme Court in 2016, bars domestic partners convicted of misdemeanor domestic-violence offenses from owning firearms. The law is hardly foolproof, as witness the killing of 26 churchgoers in Sutherland Springs, Texas, in November by a man the Air Force forgot to enter in the domestic violence database. More than half of mass killings stem from domestic disputes.
Some 22 states and the District of Columbia have passed even stronger laws that extend bans to ex-boyfriends and stalkers. Eleven of those states, including Texas, flatly bar people under restraining orders from having or buying guns.
Some states rely on voluntary compliance, but others give judges or law enforcement the right to seize weapons from high-risk individuals. Some states allow judges to issue “extreme risk” protection orders barring gun possession.
Missouri is among 13 states that offer women no protection of any sort from angry men with guns.
Clearly these sorts of laws are not a panacea. But researchers at Michigan State University who studied 34 years of data found that making it harder for abusive partners to possess weapons can cut homicide rates in such cases by about 10 percent to 23 percent. The stronger the laws, the greater the reduction.
Nationally, some 10,018 women were murdered between 2003 and 2014, nearly half of them by current or former domestic partners. Guns were used in the majority of the killings. In Missouri in 2015 there were 30 domestic-violence related homicides, the Highway Patrol reported, with guns used in 22 cases.
Last year there was some support among Republicans in the Missouri House for restricting access to firearms in domestic violence cases. This year only Democrats have filed bills. With a veto-proof Republican majority in both houses, these bills will go nowhere without GOP support.
We enter each legislative year with hope, but the usual Missouri Republican response to any common-sense limit on guns is more guns — in schools, campuses, churches, etc. If that’s all they’ve got this year, Missouri’s vulnerable women can only conclude they don’t care.
Five years after Sandy Hook: Nothing
Free Press, The (Mankato, MN)
Author/Byline: Rich Cowles Special to The Free Press
January 5, 2018
https://infoweb.newsbank.com/
Five years ago December, a disturbed young man armed with an assault rifle and two handguns walked into Sandy Hook Elementary School and turned his deadly distress on first graders, killing 20 of them and six adults trying to protect them.
The massacre of children horrified us. The president shed tears on behalf of a grieving nation. Congressional bills were introduced to make it harder for dangerous people to possess guns and to ban assault weapons.
But in the end, Congress offered its thoughts and prayers, and moved on. Nothing changed.
For many Americans, this congressional shrug following the Sandy Hook massacre became the watershed moment when our country's identity changed. America changed from balancing individual rights and the public good to placing gun rights above even the rights of children to live to the ripe old age of 7.
Suddenly it was undeniable that our elected representatives were subservient to the gun industry, unwilling to even attempt to prevent mass shootings, not to mention address our gun homicide rate that's 25 times the average of other wealthy countries (American Journal of Medicine).
It doesn't need to be this way. Evidence shows that the right to bear arms and dramatically improved gun safety can co-exist.
For instance, in the 19 states (Minnesota isn't one of them) that have closed the criminal background check loophole — extending required checks to include the 40 percent of sales from private sellers such as at gun shows and online — deaths have been reduced by nearly 50 percent (EverytownResearch.org).
Another example: According to FBI data gathered since its 1996 enactment, the Lautenberg Amendment banning the possession of firearms by people convicted of a misdemeanor crime of domestic violence — or having a protection/restraining order — has prevented 195,000 people from purchasing firearms. However, efforts to expand this life-saving coverage to include dating partners or other family members have not found sufficient support in Congress, in spite of the fact that the presence of a gun in a domestic violence situation makes it five times more likely that a woman will be killed (American Journal of Public Health).
This is an agonizing time — and a vexing issue — for the concerned citizen infused with an optimistic belief that concerted action on behalf of the common good will win the day. It's like we're caught in a maze of horrors with no way out. There are proposed solutions in different paths but, try as we might, there's an NRA-sponsored politician blocking every hopeful path, waving a Second Amendment banner in our face. Meanwhile the clock ticks — often only a few seconds — till the next preventable death by gun.
That the Second Amendment permits gun regulation was unambiguously upheld even in the 2008 Supreme Court decision that opened the door to individual ownership of guns. In the 5-4 majority opinion, Chief Justice Scalia wrote "Like most rights, the right secured by the Second Amendment is not unlimited … not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … nothing in our opinion should be taken to cast doubt … on laws imposing conditions and qualifications on the commercial sale of arms."
Surveys show that most Americans share a belief in sensible gun laws. Most recently, both the Gallup and Quinnipiac polls taken this October show 60 percent of Americans support stricter gun laws. It would seem the large majority of us expect that with rights go responsibilities.
Yet, as if culturally tone-deaf, the first bill passed by the U.S. House since the recent spate of mass shootings — Concealed Carry Reciprocity — would make it easier for people to carry guns anywhere, even those who can't pass a background check. If Congress refused to act after Sandy Hook, we shouldn't be surprised at its latest kowtowing to the gun lobby.
While individual states have had some success in enacting reasonable and effective gun laws like background checks on all gun sales and protections against domestic violence, Congress has the unique power to quickly pass measures that safeguard our daily lives and, ultimately, define our national identity.
What will it take for the U.S. to begin to shed its gun-dominated identity and rejoin the ranks of civilized nations that place paramount value on the lives of their citizens?
Rich Cowles of Eagan, a retired nonprofit leader, is a volunteer for gun violence prevention groups.
Wisconsin woman who lost gun rights for a misdemeanor conviction can't withdraw plea
Milwaukee Journal Sentinel: Web Edition Articles (WI)
February 8, 2018
https://infoweb.newsbank.com/
A Johnson Creek woman says she should be able to withdraw her guilty pleas to a misdemeanor because her lawyer didn't warn her it would result in a lifetime ban on having a gun.
But the Court of Appeals on Thursday rejected Amanda Longley's argument that losing gun rights should be treated like being deported when it comes to important consequences of a guilty plea.
The key for Longley, 29, was that her disorderly conduct was part of domestic violence. She says she didn't know that such a conviction, even though not a felony, would mean she could never again possess firearms.
That has been the law since the 1996 Lautenberg Amendment but has also been under attack in recent years by gun rights advocates after Supreme Court decisions expanding some other Second Amendment rights.
When she learned that truth, she tried to withdraw her guilty plea and was denied. On appeal, she argued that a 1999 Wisconsin case should be reconsidered in light of other rulings since then that found a defendant should be able to withdraw a plea because he wasn't told he could be deported upon conviction.
The 1999 case held that a defense lawyer need not discuss a gun ban with a client if the ban is merely a collateral consequence of a guilty plea.
In 2010, the U.S. Supreme Court found that lawyers must tell clients if a plea carries the risk of deportation, which the court found to be a unique and serious risk akin to "banishment or exile."
In 2016, Wisconsin's Supreme Court said even indefinite civil commitment as a violent sexual offender under the state's Chapter 980 wasn't equivalent to deportation and said lawyers were not required to mention the possibility to clients considering pleas to certain sex offenses.
And so appellate Judge Paul Lundsten rejected Longley's argument. He found that even though the 2016 case recognized factors that went into the deportation case, it "did not, however, indicate that courts are now generally free, let alone required, to apply these factors to expand counsel's duties as to all manner of collateral consequences."
According to court records, Longley struck the father of her child and his girlfriend during an argument at the man's home in August 2015. The disorderly conduct charge carried a domestic abuse enhancer because of Longley's relationship with the man and their child, who was also present.
Longley was convicted of battery of the girlfriend, which did not have domestic violence enhancer because the two women had never met.
A judge sentenced Longley to a year of probation.
Offenses sent to database way up
FBI didn't get case of church gunman
San Antonio Express-News (TX)
February 13, 2018
https://infoweb.newsbank.com/
In the weeks after Devin Patrick Kelley gunned down 26 people in a Sutherland Springs church Nov. 5, the U.S. military sent more than 4,500 dishonorable discharge records to an FBI database used to prevent former service members from obtaining firearms.
Kelley, 26, of New Braunfels had been kicked out of the Air Force after serving time for a 2012 domestic assault and child abuse conviction. The service did not report his case to the National Instant Criminal Background Check System database, which would have prevented him from legally buying four firearms after his discharge - one of which was used in the killings.
The military failed to forward thousands of similar records to the FBI. The database contained just under 11,000 dishonorable discharges from all service branches at the time of the shooting, the worst in modern Texas history. FBI records show that the number of dishonorable discharges on the list increased to 14,825 in November and 15,583 at the end of December.
"I'm disappointed that it took a tragedy like this to get them to do what they're supposed to do, but am not surprised there were that many they had to add," said retired Air Force Col. Don Christensen, president of Protect Our Defenders, an advocacy group for military assault and sexual assault victims. "They were not complying with the law, there were multiple IG (inspector general) investigations . and it was never a priority to comply with it, and they didn't."
Kelley's rampage, which ended in his suicide, occurred during a Sunday service at First Baptist Church of Sutherland Springs. He had served in the Air Force but was kicked out after being convicted of spousal and child abuse at a base in New Mexico. The Air Force admitted that its Office of Special Investigations, responsible for reporting Kelley's conviction and discharge status, failed to do so.
The problem was decades old. A Pentagon inspector general's report released Dec. 5 said the Army, Navy, Air Force and Marine Corps often failed to submit fingerprint cards and documentation of convicted felons and noted that such widespread failures went back more than 20 years.
Stung by outrage over the shooting, Air Force Secretary Heather Wilson and Air Force Chief of Staff Gen. David Goldfein ordered a review of all records with reportable offenses across the Air Force back to 2002. More than 60,000 cases described as "serious offenses" were said to be under scrutiny. The status of that review isn't known.
There was no indication of how far back the newly added cases went. The Air Force said it could not discuss the changes, citing lawsuits filed since the shooting spree, and referred all questions to the Justice Department, which had not responded as of late Monday.
At least five lawsuits have been filed by families of the victims or survivors.
"Given we are in ongoing litigation, I don't have any additional details I can release at this time," Air Force spokeswoman Ann Stefanek said.
The latest NICS database information shows that dishonorable discharges represent a relatively small number of prohibited categories, which include convictions of crimes punishable by more than one year in prison. More than 3.4 million people were included in that category.
But the Defense Department and service branches appear to have reported dishonorable discharges much more frequently than other required categories. A summary of the NICS database published at the end of 2016 showed that the military had forwarded only one domestic violence case, a handful of "adjudicated mental health" reports, one felony and 10,958 dishonorable discharges to the list.
The database is one of three used for background checks on gun purchases. The others are the Interstate Identification Index and the National Criminal Information Center.
Kelley was given a bad-conduct discharge after his conviction at Holloman AFB in New Mexico on charges of assaulting his wife and infant child, who suffered a skull fracture. He was sentenced to a year in a Navy brig and drummed out of the Air Force with a the bad-conduct discharge in 2014.
Crimes under military law are not classified as felonies or misdemeanors, said Geoffrey Corn, a professor at South Texas College of Law in Houston. The Manual for Courts-Martial lists sentences for a variety of crimes and allows for punitive discharges, including dishonorable and bad-conduct discharges, that can be issued as punishment after a conviction.
Federal law prohibits any person charged or convicted of a crime with an authorized penalty of more than one year, or any person discharged from the military under dishonorable conditions, from possessing a firearm. In 1997, under the Lautenberg Amendment, Congress added people convicted of misdemeanor domestic violence crimes.
Because not all military offenses authorize a dishonorable discharge as part of the sentence, many service members were not disqualified from possessing weapons. To resolve the uncertainty, Corn said, the military required that any domestic violence case be reported as if it fell under the Lautenberg Amendment.
In Kelley's case, the Air Force's failure to report his conviction and discharge allowed him to legally buy a firearm each year between 2014 and 2017. In 2016, he bought a Ruger AR-556 rifle at an Academy Sports & Outdoors in San Antonio. Academy said Kelley passed his background check. The weapon was used in the church shooting.
The Pentagon inspector general report cited failures by the military to report required names to the FBI in 2015 and 2016, and it noted similar failure rates from a 2010 to 2012 study period and in 1996.
"What's disappointing about this is that for decades multiple service chiefs knew about this happening, and multiple service chiefs didn't make sure that it was corrected and not a single one of them will be held accountable for failing to ensure their service followed the law," said Christensen, a former Air Force judge who served as the service's chief prosecutor. "The shooting showed the serious consequences of not doing your job."
Appearing on the database is no guarantee that the rules will be followed. A 2016 report from the Government Accountability Office examined domestic violence-related NICS checks from 2006 to 2015, reviewing 59,000 cases that ended in convictions and 30,000 involving protective orders. It found more than 6,700 instances where purchasers still walked away from retailers with firearms.
CSRA Probation Service talks gun laws amid recent tragedies
Northeast Georgian, The (Cornelia, GA)
March 28, 2018
https://infoweb.newsbank.com/
EVANS – In 2018, according to data from Gun Violence Archive, there have already been more than 30 mass shootings in the United States. After one of the most recent shootings at a school in Florida, the constant debate on gun control continues with many questions, also many opinions. But, how many people really know the gun laws in their state?
In Georgia, if you have been charged with a crime but you have no prior felony convictions, the First Offender Act may allow you to avoid conviction, thus allowing you to keep your right to bear arms. But, when it comes to domestic violence, even if you are convicted on a misdemeanor charge, your right to purchase or even own a gun is stripped away from you.
The Lautenberg Amendment is the provision that makes it lawful to ban guns from misdemeanor domestic violence offen-ers. The offender’s right to bear arms can never be gained back, preventing them from participating in recreational activities like hunting. In order to keep track of offenders who are now on probation, it’s important that the reporting from the supervising agencies is done properly.
At CSRA Probation Service Inc., the probation offi-cers use different means of monitoring and supervising to follow up with higher-risk offenders, who may potentially find a way to unlawfully purchase a gun. They work closely with the Georgia Crime Information Center to report information about probationers who may have committed other crimes.
This keeps background checks, and other information about offenders, as accurate as possible and helps in the prevention of future crimes.
Once a person completes their probation sentence, it is up to that offender to apply to have his or her civil rights and rights to own a firearm restored, but it is not the same process. Just because a person has his or her civil rights restored, it doesn’t automatically give that person the right to purchase or own a firearm.
Probation and probation officers play a key role in keeping track of offenders who could potentially commit other violent crimes. There is no guarantee that reporting to other governmental criminal justice agencies will stop all offenders from purchasing firearms or committing other crimes, but it is a way of aiding the criminal justice system to prevent future errors within the system.
CSRA Probation Services is a state-regulated company committed to providing professional, ethical and diligent services to the courts, clients and citizens of Georgia.
Bill passed to confiscate guns for domestic-violence misdemeanors
Buffalo News, The: Web Edition Articles (NY)
March 31, 2018
https://infoweb.newsbank.com/
New York gun owners convicted of misdemeanors in domestic-violence cases would have their firearms taken away under a bill lawmakers approved along with the new state budget.
Convicted felons already are barred from gun ownership in the state. The new bill, promoted by Gov. Andrew M. Cuomo, would strip guns from people convicted of misdemeanor counts of assault, menacing, criminal contempt, unlawful imprisonment, aggravated harassment and similar charges if the victims are members of their family or their household.
The bill, which was swiftly approved Friday along with general budget legislation, also clarifies that long guns, as well as handguns, are to be surrendered for felony convictions, serious criminal convictions and matters involving orders of protection, along with now misdemeanor domestic-violence convictions. The bill's authors said existing laws had left unclear when rifles and shotguns were to be taken.
Gun owners will have the right to a hearing to challenge orders to surrender weapons, though guns can be confiscated taken and held before such hearings occur.
Early this year, Cuomo talked up the need for such a law, pointing out that the shooters in many of the deadliest mass shootings in recent U.S. history had an existing record of violence against women, threatening violence against women, or harassing or disparaging women. In 2016, firearms were used in 25 domestic homicides in New York, according to the governor's office.
"Domestic violence is one of the main indicators of the potential for deadly use of weapons," said Paul McQuillen of Hamburg, upstate coordinator for the group New Yorkers Against Gun Violence. "To be honest, I don't think anybody is a supporter of allowing an individual who is capable of misdemeanor domestic violence to have access to a weapon. Anybody who is capable of engaging in domestic violence is certainly capable of escalating that."
However, doubts were raised Saturday about the usefulness of the new legislation. In practice, law enforcement officers already have discretion to take guns from people accused in domestic violence cases, especially after a judge issues an order of protection, said Harold "Budd" Schroeder, chairman emeritus of the Shooters Committee on Political Education, a longtime critic of Cuomo for his gun-control measures.
"The procedure is already there to take away a weapon from any person the police deem to be a problem," Schroeder said. "But Cuomo is looking for any ways to deny people their Second Amendment rights."
Further, the federal "Lautenberg amendment" – named in 1996 for U.S. Senate sponsor Frank Lautenberg, D-N.J. – already makes it illegal for people convicted of misdemeanor domestic violence to own guns, Schroeder said.
But even supporters of the Lautenberg amendment say it can be problematic because of gaps in the way states and other authorities report those convictions for background checks.
One who slipped through was Devin Kelley, the shooter who in November massacred parishioners in a church in Sutherland Springs, Texas. Kelley obtained an AR-15 rifle even though he had been convicted while in the Air Force of beating his wife and fracturing his stepson's skull. His conviction had not been entered into the National Criminal Information Center database. The Air Force has since acknowledged its error.
"The Lautenberg Amendment was bare bones," Kim Gandy, the chief executive of the National Network to End Domestic Violence, told The New York Times in November. "There are a lot of gaps in the instant criminal background check system; the data is only as good as what goes into it. "
GUN LAW TARGETS DOMESTIC ABUSERS
Times Union, The (Albany, NY)
April 2, 2018
https://infoweb.newsbank.com/
The state tightened gun restrictions for domestic violence abusers by passing legislation Friday that increases the list of crimes that would prevent someone from purchasing or owning a gun.
Now, if a member of a family or household is convicted of one of more than 10 different crimes -- including criminal obstruction of breathing or blood circulation, menacing and unlawful imprisonment -- the conviction is reported to the state Division of Criminal Justice Services, which then allows that agency to report the information to the Federal Bureau of Investigation.
Such information held by the FBI would then be seen during firearm purchase background checks.
Conviction of domestic-related crimes now will also require the loss of a gun license and the surrender of all firearms.
Federal law already bans gun ownership by those convicted in domestic violence cases. But there are gaps in how such people are tracked nationally.
The new state legislation also added the term "rifle or shotgun" to the firearms prohibited, and included a ban on anyone trying to obtain a gun license who is being sought by law enforcement on a warrant for a felony or "serious offense."
Late last year, Gov. Andrew Cuomo announced his intention to tie gun ownership with lesser misdemeanor crimes that are commonly linked with domestic abuse. State law had largely prohibited weapons possession only in felony convictions.
As budget negotiations wound down Friday, the domestic violence gun ban was removed from the spending plans and was voted on separately as a governor's program bill in the state Assembly and Senate.
The governor's office issued a statement Saturday saying that in nine of the 10 deadliest mass shootings in U.S. history, the shooter had a record of committing or threatening violence against women, or harassing or disparaging women.
Cuomo's office said that in 2016, firearms were used in 35 domestic homicides in New York.
Prevent Child Abuse New York, along with the New York State Coalition Against Domestic Violence and the YWCA of NorthEastern NY, had previously asked sheriffs from across the state to sign a letter in support of the proposal.
The legislation was built on bills previously pushed by Assemblymember Amy Paulin, Sen. Diane Savino and other members of the Legislature, the governor's office said.
Such legislation, however, is not a failsafe in keeping weapons out of the hands of those convicted of domestic-related crimes.
In the case of the Sutherland Springs church mass shooting in Texas last November, the U.S. Air Force acknowledged it should have provided information to the FBI that the shooter was previously convicted by a general court-martial for domestic assault. The Air Force said the offense was not entered into a national database, which meant the shooter was able to pass background checks to purchase weapons.
Cuomo's office said that in 2016, firearms were used in 35 domestic homicides in New York.
Cuomo signs abuser gun ban
New York Daily News (NY)
May 2, 2018
https://infoweb.newsbank.com/
JOINED BY House Minority Leader Nancy Pelosi and Florida school shooting survivor Aalayah Eastmond, Gov. Cuomo signed a bill Tuesday to take firearms out of the hands of domestic abusers.
The governor hailed the law as a step toward national "common-sense gun reform," and said "50% of the women killed with a gun in this country were killed by an intimate partner." Cuomo (photo) told the approximately 200 politicians and activists at John Jay College of Criminal Justice in Midtown the law will require domestic abusers to surrender all types of firearms. He also said he's pushing to extend the waiting period from three to 10 days for people who aren't readily approved though the National Instant Criminal Background Check System.
Pelosi said the governor and the state have her full support. "This bill will not only save lives, but it will serve as a model for the rest of the country," the California Democrat said. Eastmond, a junior at Marjory Stoneman Douglas High School who hid under the lifeless body of a classmate during the Feb. 14 mass shooting in Parkland, Fla., said, "It's been 66 days since the shooting at my school, and nothing has changed in Washington."
2019: Lautenberg DV Gun Ban - News Articles And Reports
Idaho legislators have a duty to keep guns out of the hands of domestic abusers
Idaho Statesman, The (Boise, ID)
January 27, 2019
https://infoweb.newsbank.com/
It's a shame shared by every resident of Idaho: Since 2017, at least 13 women in our state have been killed by men they loved, or once loved.
Their slayings have helped make homicide one of the top 10 causes of premature death for Idaho women. And we aren't doing all we could do to stop it.
Statesman reporter Audrey Dutton, in a chilling report, documented how frequently Idaho women die at the hands of current and former husbands and boyfriends.
Women like Jaclyn Zabel, 29, who told police as early as 2014 that her husband, Ian Stone, had beaten her in front of her children, and later that he threatened her with his gun. Stone returned May 28 to fulfill his promise.
Or like Lora Skeahan, 48, whose abusive boyfriend repeatedly violated no contact orders, returning home to beat and torment Skeahan, before killing her July 5.
The victims were of different ages and backgrounds, but they had in common boyfriends and husbands with a documented history of violence against women, and the means to carry out their threats to kill, thanks in part to inadequate state laws.
Idaho, unlike most other states, does nothing to prevent monsters who prey upon their former partners from obtaining and possessing firearms. State lawmakers could change that, and should.
Yet last year, the Idaho House of Representatives torpedoed a bill that would have prevented convicted domestic abusers from owning guns for two years.
Opponents said a federal law, the Lautenberg Amendment, already covers this sort of situation. It does. But inadequately.
Because the Lautenberg Amendment is a federal law, it often goes unenforced. Agents from the FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives lack the manpower to follow up on every gun purchase by an abuser, assuming they even find out about it.
State and local law enforcement don't have the authority to enforce federal law. The Lautenberg Amendment also is too limited. It forbids abusers only from buying weapons. It says nothing about weapons they already own.
And it contains a gaping boyfriend loophole. It applies only to a current or former spouse, parent or guardian of the victim, or someone with whom the offender shares a child. Boyfriends convicted of beating up their girlfriend or stalking their ex can go buy a gun that afternoon.
Twenty-nine states have adopted tougher state versions of the Lautenberg Amendment to protect their residents. Many confiscate weapons from abusers not allowed to own them, and they close the boyfriend loophole.
In states with such laws, intimate partner homicides occur with 10 percent less frequency, and domestic killings with guns decrease 14 percent.
Idaho would save lives with a similar law. Prohibit individuals convicted of domestic violence or subject to domestic violence protective orders from buying guns, and require them to surrender any firearms and ammunition. Go even further and empower local law enforcement to temporarily confiscate weapons they find at the scene of a domestic violence incident until the situation is defused.
Such measures would not infringe on Second Amendment rights ... period. The U.S. Supreme Court repeatedly has upheld these restrictions, and Idaho's attorney general agreed last year that they met the state constitutional test.
This should not become a gun rights issue. The Idaho Statesman has always defended the rights of proper gun owners. But women have the right to be safe from violence, and the state has an obligation to do all it can to provide that safety.
Responsible gun owners have nothing to fear from legislation that keeps firearms out of the hands of those who would use them to kill women. In fact, it is in their interest to prevent guns from being misused.
Domestic violence is messy and complex. No single measure will prevent failed relationships from spiraling out of control. But sensible steps should be taken.
Domestic violence hotlines such as the ones run by Boise's Women's and Children's Alliance and the National Domestic Violence Hotline can help if women reach out. So can centers such as Faces of Hope for women and children extracting themselves from abusive relationships.
But the bottom line is that lawmakers have a responsibility to make it harder for abusers to kill women.
If lawmakers don’t act, blood will be on their hands
Lewiston Tribune (ID)
February 2, 2019
https://infoweb.newsbank.com/
It’s a shame shared by every resident of Idaho: Since 2017, at least 13 women in our state have been killed by men they loved, or once loved.
Their slayings have helped make homicide one of the top 10 causes of premature death for Idaho women. And we aren’t doing all we could do to stop it.
Statesman reporter Audrey Dutton, in a chilling report, documented how frequently Idaho women die at the hands of current and former husbands and boyfriends.
Women like Jaclyn Zabel, 29, who told police as early as 2014 that her husband, Ian Stone, had beaten her in front of her children, and later that he threatened her with his gun. Stone returned May 28 to fulfill his promise.
Or like Lora Skeahan, 48, whose abusive boyfriend repeatedly violated no contact orders, returning home to beat and torment Skeahan, before killing her July 5.
The victims were of different ages and backgrounds, but they had in common boyfriends and husbands with a documented history of violence against women, and the means to carry out their threats to kill, thanks in part to inadequate state laws.
Idaho, unlike most other states, does nothing to prevent monsters who prey upon their former partners from obtaining and possessing firearms. State lawmakers could change that, and should.
Yet last year, the Idaho House of Representatives torpedoed a bill that would have prevented convicted domestic abusers from owning guns for two years. The opposition came exclusively from Republicans.
Opponents said a federal law, the Lautenberg Amendment, already covers this sort of situation. It does. But inadequately.
Because the Lautenberg Amendment is a federal law, it often goes unenforced. Agents from the FBI and Bureau of Alcohol, Tobacco, Firearms and Explosives lack the manpower to follow up on every gun purchase by an abuser, assuming they even find out about it.
State and local law enforcement don’t have the authority to enforce federal law. The Lautenberg Amendment also is too limited. It forbids abusers only from buying weapons. It says nothing about weapons they already own.
And it contains a gaping boyfriend loophole. It applies only to a current or former spouse, parent or guardian of the victim, or someone with whom the offender shares a child. Boyfriends convicted of beating up their girlfriend or stalking their ex can go buy a gun that afternoon.
Twenty-nine states have adopted tougher state versions of the Lautenberg Amendment to protect their residents. Many confiscate weapons from abusers not allowed to own them, and they close the boyfriend loophole.
In states with such laws, intimate partner homicides occur with 10 percent less frequency, and domestic killings with guns decrease 14 percent.
Idaho would save lives with a similar law. Prohibit individuals convicted of domestic violence or subject to domestic violence protective orders from buying guns, and require them to surrender any firearms and ammunition. Go even further and empower local law enforcement to temporarily confiscate weapons they find at the scene of a domestic violence incident until the situation is defused.
Such measures would not infringe on Second Amendment rights — period. The U.S. Supreme Court repeatedly has upheld these restrictions, and Idaho’s attorney general agreed last year that they met the state constitutional test.
This should not become a gun rights issue. The Idaho Statesman has always defended the rights of proper gun owners. But women have the right to be safe from violence, and the state has an obligation to do all it can to provide that safety.
Responsible gun owners have nothing to fear from legislation that keeps firearms out of the hands of those who would use them to kill women. In fact, it is in their interest to prevent guns from being misused.
Domestic violence is messy and complex. No single measure will prevent failed relationships from spiraling out of control. But sensible steps should be taken.
Domestic violence hotlines such as the ones run by Boise’s Women’s and Children’s Alliance and the National Domestic Violence Hotline can help if women reach out. So can centers such as Faces of Hope for women and children extracting themselves from abusive relationships. But the bottom line is that lawmakers have a responsibility to make it harder for abusers to kill women.
If lawmakers again refuse to join most other states in prohibiting abusers from owning firearms, the blood of the next woman shot by a boyfriend or an ex will be on their hands.
Federal Prosecutors Are Cracking Down on Domestic Abusers With Guns
As U.S. attorneys prosecute more gun crimes, they are catching domestic abusers in their net
Slate (USA)
March 25, 2019
https://infoweb.newsbank.com/
A version of this article was originally published by the Trace, a nonprofit news organization covering guns in America. Sign up for the newsletter, or follow the Trace on Facebook or Twitter.
In February, Erin Nealy Cox, a Trump-appointed U.S. attorney for the Northern District of Texas, held a press conference to announce steps her office was taking to reduce deaths from domestic violence.
Standing behind a lectern, Cox introduced a districtwide initiative informally called "Abusers with Guns." Its mission: to prosecute people who should not have firearms because of prior domestic violence misdemeanors, felonies, or protective orders.
"Not only could the Justice Department theoretically prosecute you for firearm possession, but in the Northern District of Texas, we will prosecute you," said Cox in her prepared remarks. "And upon conviction, the penalties will be swift, stiff, and serious."
Since she was sworn into office in November 2017, Cox has established one of the most aggressive records in the country for prosecuting domestic abusers who unlawfully keep guns. In fiscal year 2018, Cox prosecuted 23 people with the lead charge of unlawful gun possession despite a prior domestic violence misdemeanor conviction, according to Syracuse University's Transactional Records Access Clearinghouse database (TRAC), which compiles information on federal prosecutions. That tally is the highest of any district in the country. (Cox said the total "sounded high" but her office was unable to provide a precise figure. TRAC's figures were confirmed by several other districts though its national tally was slightly higher than the one provided by the Justice Department.)
Just four years earlier, only 23 people in the entire country were prosecuted under the federal statute banning people convicted of a domestic violence misdemeanor from possessing firearms, according to TRAC.
"Domestic violence cases are just a no-brainer because of the violence associated with them," said Cox. "If I have limited resources and—let's just say I'm going after felons with a gun—why wouldn't you prioritize going after domestic violence felons if you know that they're high-risk offenders?"
The Northern District of Texas is just one of several across the country that has announced new efforts to punish abusers who unlawfully keep guns. In the past five months, U.S. attorneys in Ohio, Oklahoma, and Vermont have also said they are using the force of federal law to crack down on these crimes.
According to data provided by the Justice Department, there has been an 80 percent increase in the past two years in the number of people charged under 18 U.S.C. 922(g)(9), the federal law banning those convicted of a domestic violence misdemeanor from possessing firearms. In fiscal year 2018, 197 defendants were prosecuted, up from 110 in fiscal year 2016.
"We've been saying to anyone who will listen, this is homicide prevention," said Mike Tobin, a spokesman for the U.S. attorney in the Northern District of Ohio. There, prosecutions of 18 U.S.C. 922(g)(9) have increased from zero in fiscal 2014 to six in fiscal 2018, according to TRAC.
It "just doesn't seem like there's much downside" to taking on these cases, added Tobin.
"If you're willing to punch your wife in the face and hit her over the head with a beer bottle, you're probably more likely to pull a firearm and shoot her or shoot the police officers who are responding to the call from the neighbor. And there are countless examples of that."
A woman is shot to death by a current or former romantic partner every 16 hours, according to FBI and state crime data analyzed by the Associated Press. Domestic violence claims the lives of children, innocent bystanders, and police officers called to help; it sometimes escalates to mass shootings. Abused women are five times more likely to die if their abuser has access to a gun.
Recognizing the dangerous link between guns and domestic abuse, Congress passed a federal law known as the Lautenberg Amendment in 1996 to ban those convicted of domestic violence misdemeanors from possessing firearms.
There is some evidence to suggest that the law has saved lives by preventing dangerous people from having guns; it is also thought to be massively underutilized. In 2015, a former federal prosecutor claimed it was "egregiously ineffective" and noted that "hundreds of thousands" of Americans were potentially in violation of it.
Domestic abuse is typically handled at the state and local levels, where laws vary widely. So federal prosecution numbers do not provide a complete picture of how these crimes are handled in the criminal justice system. But for years, experts on the issue have encouraged the feds to do more to punish abusers who unlawfully keep guns.
Now it seems a shift is underway.
As part of the "Abusers with Guns" initiative, Cox designated one federal prosecutor to partner with state and local law enforcement to identify the offenders whose cases should be handled federally.
These efforts are part of a nationwide uptick in federal gun prosecutions that began in 2014 during the Obama administration. It was strengthened by former Attorney General Jeff Sessions. One consequence of trying more gun crimes is that federal prosecutors are catching domestic abusers in their net.
Advocates for survivors of domestic violence say they're glad to see more domestic abusers penalized for unlawful gun possession.
"To the extent that federal prosecutions mean that we are now taking both domestic violence and gun violence against survivors more seriously, I am all for it," said Natalie Nanasi, a law professor at Southern Methodist University who runs the Judge Elmo B. Hunter Legal Center for Victims of Crimes Against Women. She added that any approach should be informed by the opinions of individual survivors.
One advantage of the feds targeting domestic abusers who unlawfully keep guns, says David Keck, director of the National Resource Center on Domestic Violence and Firearms, is that in some states, "the only way of prosecuting somebody is to prosecute federally."
Advocates for survivors of domestic violence say they're glad to see more domestic abusers penalized for unlawful gun possession.
As of this writing, 21 states do not have laws that align with the federal gun ban for those convicted of domestic violence misdemeanors, according to the Giffords Law Center to Prevent Gun Violence.
"If there isn't a state law that mirrors that federal law, it can be very confusing—if not impossible—for states' law enforcement professionals and the state courts to figure out how to implement that federal law," adds Sierra Smucker, an expert on firearms regulations at the RAND Corporation.
A Justice Department spokesman attributed the recent increase in federal prosecutions under this statute across the country to two factors. First, he noted three recent Supreme Court cases (notably Voisine v. U.S in 2016) that clarified the kinds of lower-level cases that can be prosecuted at the federal level. He also cited Project Safe Neighborhoods, an initiative to combat gun violence that was first implemented in 2001 under President George W. Bush and reinvigorated in March 2017 by Jeff Sessions.
One component of Project Safe Neighborhoods is designed to encourage U.S. attorneys to partner with state and local law enforcement officials to identify the most violent criminals and determine the cases that should be handled in federal courts, which typically have harsher penalties.
Several representatives for U.S. attorneys' offices—including those in northern Ohio, western Oklahoma, and Vermont—attributed their increased emphasis on domestic violence to Project Safe Neighborhoods and specifically mentioned the increased cooperation.
In northern Ohio, funding from Project Safe Neighborhoods has paid for additional prosecutors to handle violent crime cases.
In Vermont, a Project Safe Neighborhoods task force, composed of members from state, local, and federal law enforcement, created an education campaign to warn domestic violence offenders of the consequences they faced if caught with illegal firearms.
It is too early to say whether or not these new efforts have reduced intimate partner homicides.
There is some evidence that in its early years, Project Safe Neighborhoods was effective at reducing homicides. Critics of the program have noted that it ignores corrupt gun suppliers, targets black Americans, exacerbates America's overincarceration problem, and catches nonviolent offenders in its net.
Several experts interviewed for this piece say they support the federal efforts but share concerns about America's high rates of incarceration. "I am also concerned about overincarceration," said Nanasi. "However I am more concerned about over incarceration of nonviolent drug offenders, misdemeanants who jaywalk, who can't pay their bond, for crimes that don't endanger the safety of the people around them."
Rather than prosecuting people, Keck of the National Resource Center on Domestic Violence and Firearms would prefer for guns to be surrendered by people who shouldn't have them because they pose a threat to public safety. Ideally this would happen when the offense is first adjudicated—and before the defendant is in violation of federal law.
Still, Keck believes that enforcing the federal law will encourage more people to comply with it. "You send a message that the federal government's going to take it seriously," he added.
That, says Cox, is one of her goals. She hopes it will encourage family violence judges to say to defendants, "This is not just a theoretical prosecution, this is happening, there's an initiative. So don't possess a gun, whatever you do."
After three domestic violence charges made it to court, he walked away with no convictions and the right to keep guns
Then came the deadly shooting on Jan. 4
Danville Register & Bee (VA)
April 20, 2019
https://infoweb.newsbank.com/
There were plenty of red flags in the years before Jason Owen Davis killed his wife, their 12-year-old son and himself earlier this year.
There were three assault-and-battery charges over a one-year period, each time over allegations he hit or threatened his wife. Guns were mentioned in the complaints she penned to police. But after all three charges made it to court, he walked away with two years of probation, a 12-session anger management class, the right to keep firearms and no conviction.
Virginia law helped him do that.
The documents filed in Pittsylvania County Juvenile and Domestic Relations Court illuminate the loophole in state law that helped precipitate the killings of Jan. 4.
The difference between jail time and probation lies in Virginia's first-offender statue.
Davis' first charge of assault and battery of a family member — in 2007 — resulted in a not-guilty verdict.
And though Davis, 44, pleaded guilty to his second charge that same year, it was eventually dropped, pursuant to the law. After a two-year probationary period and an anger management class, which he completed shortly before being charged again, the case was dismissed.
After he was accused of assaulting his wife a third time, he was summoned to court for a hearing on the charges. His wife did not show up for the first hearing on the charge, and he did not show up to the second hearing. Sheriff's deputies could not find him either. So after 10 years, the court dropped the charge in April 2018 — nine months before he would kill wife Twana Rhodes Davis and son Ramand Kassadine Davis at their 3197 Shula Drive home in Hurt.
Though there was a wide wake of paperwork alleging and substantiating domestic violence misdemeanors, nothing in Virginia law prohibited him from having a gun. When police searched his house after the killings, documents filed in Pittsylvania County Circuit Court show, they found quite a few: at least three handguns, two rifles and a shotgun.
Virginia's first-offender laws also shielded him from federal law governing firearms possession, which could have made him ineligible to buy or possess one had he been convicted of a domestic violence misdemeanor in state court. It may have changed the course of Jan. 4.
But, more likely than not, nothing would have happened.
Jan. 4
At 5:51 p.m., Pittsylvania County Sheriff's Office deputies responded to a gas station on Blue Ridge Drive after receiving a call from an employee, who reported that two women with gunshot wounds showed up to the store in a bullet-riddled car Jan. 4. There, deputies found Patricia Poindexter and Deborah Isabel Rhodes as the clerk said — both shot. The two are the mother and aunt, respectively, of Twana Rhodes Davis.
Neither Poindexter nor Rhodes, who were reached through an intermediary, wished to be interviewed for this story.
After talking with the two gunshot victims, deputies went to visit the house on Shula Drive, where the women said Davis had shot up their car. As deputies raced there, warrants were taken out on Davis for gun-related charges. They were not needed.
Deputies found both the elder Davises dead in the kitchen. Their son was dead in a bedroom. The Roanoke Medical Examiner's Office ruled Jason Davis shot himself in the head.
At a news conference the day after, Pittsylvania County Sheriff Mike Taylor said the state of the room and displaced furniture indicated there may have been an "altercation" ahead of the shooting, and that guns were found "in close proximity" to Jason Davis.
Taylor said that Davis was "known to law enforcement" before Jan. 4 for other offenses.
Reached months later, Taylor said federal agencies were probing how Davis came to have those guns. Much of their work is finished, Taylor said, but he declined to release the information he had before informing the family.
"I want to meet with the families first and then meet the media," he said. "I would want them to know the end result first."
Courts of law
Virginia law does not restrict gun ownership among people convicted of misdemeanor domestic abuse, though multiple bills have been put forth to change that. Every year since at least 2013, one or more bills seeking to curtail domestic abusers' gun ownership have cropped up in Virginia's legislature. None have ever passed.
Domestic violence misdemeanors, it turns out, are one class of crime for which the state offers a second chance. Under the first-offender statute, someone found guilty of their first domestic violence offense can forgo traditional sentencing and be placed on a minimum of two years community probation and compelled to take classes or participate in specialized programs at a judge's discretion.
After the conditions of probation are fulfilled, according to Virginia law, the charge is dismissed, though it can be brought back if the person reoffends.
So because Davis was put on first-offender status the second time he was charged, it did not count as a conviction. To be banned from possessing guns, the court would have needed to find him guilty of domestic violence again. It doesn't matter that he'd already admitted wrongdoing in a crime that would have federally disqualified him from buying and owning guns.
Since Congress passed an amendment to federal gun laws — called the Lautenberg Amendment — in 1996, it has been illegal for anyone convicted of a domestic violence misdemeanor to buy or possess a gun. But the amendment bows to local laws, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives.
"The law of the jurisdiction determines whether a conviction has occurred," the ATF website states. "Therefore, if the law of the jurisdiction does not consider the person to be convicted, the person would not have the Federal disability."
So without a conviction officially on the books in state court, the federal law does not apply.
Jody Madeira, a professor of law at the University of Indiana Bloomington, said that constitutes a loophole because it allows an offender to circumvent the federal prohibition.
"It does allow a carve-out," she said. "So it is like a huge loophole."
The attorney who attained first-offender status for Davis is Bryan Turpin, now a judge in Pittsylvania County's Juvenile and Domestic Relations Court. He declined to comment on the 2007 proceedings.
Hamstrung
The federal prohibition can lead to firearms-related charges, but it does not happened often, said Kelly Roskam, legal director of the Washington, D.C.-based Coalition to Stop Gun Violence. Federal agencies that handle those cases, she said, are preoccupied with charging violent felons. Domestic abusers simply do not chart.
"There are very little resources through the FBI and ATF to prosecute these gun cases," she said. "They are considering where to spend those precious resources, and it is not often domestic violence."
The National Rifle Association's public relations office did not respond to multiple requests for an interview on the subject.
An announcement to U.S. Attorney's Offices from the Department of Justice advises prosecutors to consider the date of domestic violence incidents and assess the potential for harm. But even if the offense does not merit prosecution, "steps should be taken to assure that the firearm is removed from the possession of the prohibited individual," the announcement states.
"United States Attorneys' Officers should be working with state and local law enforcement to establish guidelines for handling these cases which will often arise in emergency situations," states the announcement.
Though the law advises federal prosecutors to work with local law enforcement and take guns out of the hands of convicted domestic abusers, there is no system for confiscating or monitoring those guns, Roskam said.
State courts and local law enforcement are also not statutorily bound to inquire if a defendant owns a gun upon their conviction of a qualifying misdemeanor.
"There is no mandate from the state that law enforcement ask, if they have firearms, to turn them over," Roskam said. Furthermore, "there is no federal framework for turning them over to somebody."
Some judges, said federal policy director at the Giffords Law Center to Prevent Gun Violence Lindsay Nichols, do inquire if defendants have guns. But their choice to ask is more a matter of judicial preference than fear of censure or making a procedural misstep.
"There is no consistent policy throughout Virginia," she said. "It is left up to the jurisdiction, and certainly in Virginia there have been no consistent efforts made to close this loophole."
Taylor said that the sheriff's office has worked with federal agencies, but his deputies do not have the power to bring federal charges anyway.
"It is a whole different set of laws on the federal than it is on the state or local," he said.
Senate must act to protect women
Virginian-Pilot, The (Norfolk, VA)
April 23, 2019
https://infoweb.newsbank.com/
THE U.S. SENATE should move promptly to reauthorize the Violence Against Women Act. The House of Representative has already done so, with the support of 33 Republicans who joined the Democratic majority to do the right thing.
For a quarter of a century now, the Violence Against Women Act has done a great deal to protect women and punish those who abuse them.
This is another of many issues that should not fall victim to the polarization that's making it difficult to get worthwhile things done in Washington. Protecting women against violence on the streets or in their homes ought to be a goal that's supported by everyone.
Unfortunately, what ought to be a routine reauthorization has run afoul of the National Rifle Association. The NRA, predictably, opposes a sensible gun-control provision in the bill, and a lot of senators are all too happy to carry the NRA's water.
Of course, there's been controversy over the Violence Against Women Act before. One of the hurdles the original act, passed in 1994, had to overcome was the prevailing idea that women who were abused had somehow "asked for it." There was also a reluctance to interfere in "private" matters.
There was such a stigma about domestic violence that many women suffered in silence, afraid of being judged harshly and not knowing where to go for help.
Back in 1994, even women's groups and civil rights groups didn't take a strong stand in support of increased protections for women who faced domestic violence. But the law passed, and over the years it has done a great deal of good. There is no doubt it has saved lives, even though there's no way of knowing how many.
The law has helped women understand that they don't have to suffer abuse. It has raised awareness of domestic violence and the punishments that await abusers. And it has made it easier to prosecute and punish abusers.
The law has made possible a national hotline and an office within the Justice Department focused on violence against women. It has provided grants that help train local law enforcement and set up rape crisis centers and shelters for abused women and their children. In more recent years, it has increased its focus on education and prevention, including on college campuses.
Like any good law, through periodic reauthorizations, it has evolved to reflect changing times. There's now more emphasis on stalking, including cyberstalking, and provisions to make sure that minority women are equally protected.
Back in 2011, the reauthorization stalled because conservative lawmakers objected to minor provisions that touched on their pet issues, including visas for abused undocumented immigrants and protections for victims in same-sex relationships.
Women voters made their dissatisfaction known at the polls in 2012, and Republicans supported reauthorizing the act the next year.
This time the main opposition is from the NRA, and it's over a needed move to tighten a loophole.
Under the existing Lautenberg Amendment to the Gun Control Act of 1968, a person convicted of specified domestic violence crimes cannot buy or own a gun.
But there's a loophole because the amendment's wording applies only to convicted domestic abusers who are or have been married to the victim, or live with the victim, have a child with the victim or are a parent or guardian of the victim.
In other words, a stalker or boyfriend or dating partner who doesn't meet one of these criteria - for example, a person who's in a long-term relationship with the victim but doesn't live with her - can buy and own a gun even if that person has been convicted of domestic violence.
The reauthorization bill the House passed sensibly closes this "boyfriend loophole." But the NRA opposes just about any gun control language, so it opposes this effort to correct a technicality and keep guns out of the hands of more people with a history of violence against women or children.
Fortunately, the House has already voted to reauthorize the Violence Against Women Act, despite the NRA's stance. Senators should also move promptly to renew this effective and needed law.
Both Sides of the Law: At least 93 Milwaukee police officers have been disciplined for violating law
Milwaukee Journal Sentinel
Gina Barton
April 25, 2019
Editor's note: This report was originally published on Oct. 23, 2011.
This is part one of a three-part series. Read part two and part three.
At least 93 Milwaukee police officers — ranking from street cop to captain — have been disciplined for violating the laws and ordinances they were sworn to uphold, a Journal Sentinel investigation found.
Their offenses range from sexual assault and domestic violence to drunken driving and shoplifting, according to internal affairs records. All still work for the Police Department, where they have the authority to make arrests, testify in court and patrol neighborhoods.
Officers who run afoul of the law often aren't fired or prosecuted, the newspaper found. Consider:
At least six officers disciplined by the department for illegal behavior suffered no legal consequences whatsoever. One was Reginald Hampton, accused of sexually assaulting two women he met on duty. Another was Mark Kapusta, suspended after a woman said he pointed a gun at her head during a drunken road-rage incident. Neither officer was charged or ticketed.
Twenty-three officers got breaks from prosecutors that allowed them to avoid being convicted of serious charges — or any charges at all — as long as they didn't commit more crimes and followed prosecutors' instructions. One was Patrick Fuhrman, originally charged with a felony for a beating that sent his wife to the hospital and, according to a witness, left blood in every room of their house. A conviction on that charge could have gotten him fired from the department, banned from carrying a gun for life and imprisoned for 3½ years. Instead, he ended up with two tickets for disorderly conduct.
Nine of the 93 officers were convicted of crimes. Some even spent time behind bars. Yet when their criminal cases were concluded, they went back to their careers with the Milwaukee police. At least one, John P. Corbett, was a police sergeant by day and an inmate by night. Convicted of driving drunk with a child in the car, Corbett did his job at the police station while on work release from jail. His 13-year-old daughter told authorities Corbett took the wheel after she got lost driving back from a tavern.
The Police Department, district attorney's office and Fire and Police Commission share responsibility for keeping officers in line.
All three fall short.
INTERACTIVE DATABASE: Search officers and their case histories
The department tolerates misconduct. Prosecutors give cops career-saving deals. The commission reduces punishments when officers break the rules. As a result, police who have crossed to the other side of the law keep the power that comes with the badge. Meanwhile, citizens have no way of knowing whether the officers responsible for protecting them have tarnished records.
None of the agencies has a comprehensive list of cops who have broken the law.
It took the Journal Sentinel nearly two years of records requests, a court case and $7,500 in fees to compile the list of 93 — which is about 5% of the force. The list doesn't include cops with juvenile records, arrests before they were hired or discipline under different department rules.
What's more, no department policy prevents officers from enforcing the same laws they've been disciplined for breaking. An intoxicated motorist may be stopped — or allowed to drive on — by one of more than 30 cops who have been arrested for drunken driving. A woman who calls 911 in fear of her husband may be met by one of more than a dozen officers with a history of domestic violence.
Cops who break the law should be fired, said Milwaukee County Sheriff David A. Clarke, who worked for the Milwaukee Police Department for 24 years. Illegal conduct undermines officers' authority and erodes the public trust, he said.
"There should be a higher standard for (an) . . . employee who enforces the law than for a worker who cuts the grass," Clarke said. "There's no understanding why a cop would drive drunk. There's no understanding why a cop would be abusive to a spouse. When you start to justify and rationalize this type of behavior, it gets ugly."
The newspaper's review — the first of its kind involving the Milwaukee police — has uncovered information even those in charge of the department didn't know.
In a recorded speech to officers, the audio portion of which was obtained by the Journal Sentinel, Milwaukee Police Chief Edward Flynn said he was surprised at the large number of officers arrested for driving drunk.
"We've got an issue of conduct here that's related to culture that we need to confront and deal with," he said.
A video of the speech was shown to officers a month after a Journal Sentinel reporter shared the newspaper's key findings with a police spokeswoman and asked for an interview with the chief. In the speech, Flynn announced a new program of training, support and discipline for officers dealing with alcohol-related problems.
He also warned of the newspaper's investigation.
"I understand they are going to post . . . names on their website," Flynn said during the presentation. "They are also selecting . . . officers for special scrutiny in their newspaper, with the operating question being whether they should be police officers given their prior conduct."
Flynn didn't answer that question in the video. He also wouldn't answer questions about the newspaper's findings. Instead, he issued a one-sentence statement:
"We recognize that alcohol abuse, divorce and suicide are overrepresented in the law enforcement profession, and we actively educate, intervene, discipline and provide resources for our members to ensure they understand the inherent risks of the job, and the personal and professional consequences of their behavior."
Milwaukee County District Attorney John Chisholm also would not discuss the problem with a reporter. His chief deputy, Kent Lovern, provided a written statement, pointing out that 70 Milwaukee officers have been charged over the past 10 years.
Of those, 42 were convicted of misdemeanors or felonies under Milwaukee County's jurisdiction, according to an analysis by the newspaper. Most of them are no longer on the force.
But the list was started in 2000, making it incomplete. About one-third of the officers identified by the newspaper were disciplined before that point.
Mayor Tom Barrett, who recruited Flynn to Milwaukee and who appoints the members of the Fire and Police Commission, also refused to meet with a reporter. He issued a statement supporting the chief and the commission.
Only Michael G. Tobin, executive director of the Fire and Police Commission, agreed to discuss the issue with the Journal Sentinel.
INVESTIGATING AN OFFICER: A look at the complaint and review process
Significant improvements have been made to the commission — a civilian board that oversees hiring and discipline — over the past decade, he said. In 2001, the board began requiring a written psychological test for job candidates. Since 2005, it has been followed up with an in-person mental health exam.
In addition to getting a new slate of members in recent years, the commission was reorganized in 2008, Tobin said. Two independent investigators now handle citizen complaints to the commission. In the past, the commission referred complaints to the department.
The commission also has hired a research analyst who studies trends within the department, including use of force and vehicle pursuits. Some of those reports have resulted in improved training for officers, Tobin said.
As for disciplinary appeals, commissioners can't always do what they want - they must follow procedures dictated by state law, Tobin said. He believes they try their best to protect the public without violating officers' rights.
"It's not a fail-safe system," he said. "With the passage of time it could be proven that a different course of action could have been taken."
Only on the force
The 93 officers identified during the newspaper's two-year investigation include only those the department concluded broke the law while on the force. To compile the list, the newspaper reviewed officers' disciplinary records and built a database of discipline imposed since their hire dates, which range from 1979 to 2010.
The department provided the disciplinary records over a one-year period beginning in January 2010. The list may not include incidents or discipline that occurred after the records were released. It does not include officers hired after 2010. Officers who left the force after Oct. 1 may not have been removed.
More than half the officers disciplined for violating laws or ordinances were suspended for three days or less, according to the newspaper's analysis.
Seven officers were fired but got their jobs back during the appeal process. Four were reinstated by the Fire and Police Commission; two reached agreements with chiefs to return to work; and one was rehired as the result of a settlement in a discrimination lawsuit.
Nine officers were disciplined for more than one instance of illegal behavior. Five were disciplined for breaking the law while employed as police aides — a program that gives teenagers a head start on becoming recruits — yet were allowed to become officers anyway.
No one tracks how many cops committed crimes before they were hired. A state law that keeps job applications secret and blocks access to their birth dates makes it impossible for the public to figure out that number.
Until about four years ago, applicants with multiple misdemeanor convictions could be hired as Milwaukee police officers, as long as the offenses were not domestic violence and did not occur within three years of applying.
"Now there's no magic number," Tobin said. "Every time there's even a single one, that individual gets greater scrutiny."
Several other states ban convicted drug dealers, people who have lied in court and people with recent drunken-driving convictions from working in law enforcement. Not Wisconsin. A state law here prohibits all employers — even police departments — from discriminating against applicants with misdemeanor criminal records unless their convictions are related to the job.
Which crimes are considered related to the job of policing is open to interpretation, Tobin said.
The only absolute bars to working in law enforcement here are felonies or crimes of domestic violence, because federal law precludes people convicted of those crimes from carrying guns.
Once officers are on the job, it is difficult to convict them of crimes. Experts say jurors are inherently biased in favor of police.
"Your competence and credibility sort of come with the badge," said Dennis C. Elias, who serves on the board of the American Society of Trial Consultants. "Additionally, people don't want to believe the people that we trust to protect us would ever do anything bad."
Deputy District Attorney Lovern has acknowledged that prosecutors take police credibility into consideration when deciding whether to issue charges.
"We always have to consider how a jury will react in considering evidence against a police officer," he said in January, after his office declined to charge fired officer Ladmarald Cates with an on-duty rape.
Federal authorities later launched an investigation, and the U.S. attorney's office secured an indictment against Cates on two felony charges last month. He has pleaded not guilty and is scheduled for trial Jan. 9.
Five prior allegations
Cates was indicted and fired amid allegations that he raped a woman after responding to her 911 call in July 2010. The Journal Sentinel examined the case and published an interview with the victim in January. The newspaper later found Cates had been accused of breaking the law five times before, all without being charged or losing his job. Three of the previous allegations involved sexual misconduct — two with female prisoners and one with a 16-year-old girl who said he offered her cash in exchange for sex.
Another Milwaukee cop who avoided criminal charges because prosecutors thought the evidence wouldn't stand up in court was Mark Kapusta.
Here is what the woman who encountered Kapusta at a southwest side intersection told investigators, according to a summary of the internal investigation:
She was helping her boyfriend deliver newspapers around 4:45 a.m. Jan. 20, 2006, when she turned the corner. The driver of a black pickup truck, who also had been waiting to turn, started honking his horn. He pulled behind her, swerving all over the road.
When she honked back at him, the man pulled his truck in front of her car, forcing her to stop. The man, who turned out to be Kapusta, got out of the truck, yelling. His bloodshot eyes and slurred speech told the woman he was probably drunk.
He was holding a gun.
Kapusta, who was not in uniform, approached the woman's car. Her window was partially open. He pointed his weapon through it, aiming at her head.
"Put your hands where I can see them!" he shouted. "I'm the f---ing police!"
She feared she was about to die.
But Kapusta didn't fire.
The woman told him she was going to call the police, and he went back to his truck and drove away.
The woman's boyfriend told investigators a similar story, except he said he did not see Kapusta point the gun at the woman's head, according to the summary. The document does not name the boyfriend. He could not be reached for this story.
When two sergeants showed up at Kapusta's house around 7 a.m., he didn't answer the door.
Two hours later, two detectives knocked for 10 minutes before an intoxicated Kapusta came to the door, the summary says. One of the detectives overheard Kapusta on the phone, telling his partner: "I f---ed up." Asked about it later that day, Kapusta's partner said he "did not recall" the statement.
Around noon — seven hours after the incident — Kapusta's blood-alcohol level was 0.15, nearly twice the legal limit for driving, the summary says.
Kapusta did not respond to requests for comment. Here is what he told investigators, according to the summary:
After he finished work around midnight, he had two drinks with fellow officers. Around 4:30 a.m., he was on his way home when he noticed the car behind him following too closely and too quickly. Kapusta, who was assigned to the gang unit, suspected its occupants were gang members who recognized his truck. Kapusta approached the car, showed his badge, and identified himself as a police officer, keeping his gun at his side, he said.
He instructed the woman to call 911 because he was afraid of her boyfriend. But then the couple left, so he went home.
At first, Kapusta said he went to sleep as soon as he arrived. He later changed his story to say he went home, drank five to seven shots of alcohol, and then went to sleep.
About two weeks after the incident, the woman called investigators and said she was too afraid to continue pursuing charges, the summary says. Although she denied being intimidated or threatened, she would not come to the door to discuss her decision with a detective because she was terrified, her boyfriend told police.
Without the woman's cooperation, Milwaukee County Assistant District Attorney Karen Loebel concluded she could not prove the case, the summary says.
Nannette Hegerty, police chief at the time, initially fired Kapusta. While his appeal was pending before the Fire and Police Commission, she agreed to reduce his punishment to a 60-day suspension and allow him to remain on the force, records say.
Records do not explain Hegerty's reasons for changing her mind. She could not be reached for comment.
Three years later, Kapusta received an award for distinguished service for devising a system to reduce thefts from cars.
Domestic violence
In the years following a case in which seven police officers were convicted of beating a man at a Bay View party that was held seven years ago this week, both DA Chisholm and Chief Flynn vowed to take a hard line on officer misconduct.
That didn't happen in the case of Patrick Fuhrman, who beat his wife so badly there was blood in every room of their house, according to a summary of the internal investigation.
Fuhrman's wife and a neighbor who helped her — both police officers themselves — gave the following description of events, according to the summary:
When Fuhrman's wife got home from work on Nov. 3, 2008, she was upset because he had told her he wanted a divorce. She tried to talk with him, but the conversation turned into an argument.
Then it turned physical.
Fuhrman grabbed his wife by the neck and threw her to the ground. The force caused her to hit her head on the floor and bite her lip. He punched her several times in the head, then in the nose. While she was on the ground, he kicked her and stomped on her repeatedly, calling her a "n----- lovin' crazy whore woman."
She was able to get up from the floor, but he came at her again. She threw her police baton at him but missed, cracking the TV screen.
"You disgust me," he said, laughing. "I should have never married you. If you are going to fight, you should learn how."
Then Fuhrman left for work and his wife went to Community Memorial Hospital. She arrived with bruises on her face, legs, elbows and shoulders, the summary says. She needed three stitches in her lip.
In an interview with internal investigators, Fuhrman admitted throwing his wife to the ground, but said he did it because he wanted to get away from her. Fuhrman also admitted striking her "in the chest, chin and/or face area with an open hand," but said he only did so after she tried to hit him with the baton. He also said he may have "gotten her in the nose," the summary says.
When the investigator asked Fuhrman if he had called his wife a whore and used a racial slur, "he stated he called her many things to that effect and that many hurtful things were said by both of them," the summary says.
Fuhrman also told investigators he was sorry.
"I just want to apologize that I brought shame and embarrassment to the Police Department and to my wife and my family," he said.
Jeffrey Greipp, then an assistant district attorney, initially charged Fuhrman with domestic violence-related substantial battery, a felony.
A conviction on that charge would have cost him his job.
Within five weeks, prosecutors reduced the felony charge against Fuhrman to misdemeanor battery, according to court records. A conviction on that charge would have knocked him off the force as well. Because his wife was the victim, he would not have been allowed to carry a gun under federal law.
A deferred-prosecution agreement, signed by Assistant District Attorney Gilbert F. Urfer in March 2009, reduced the charge even more and saved Fuhrman's job.
Agreements for deferred prosecution allow defendants to avoid serious criminal convictions if they meet certain conditions, such as getting treatment and not committing more crimes. They must plead guilty to a crime initially, but the charge is reduced or dismissed if they live up to their end of the bargain.
Fuhrman's deal required him to plead guilty upfront to two misdemeanor counts of disorderly conduct, which is less serious than battery.
Prosecutors agreed to reduce the charges a third time — to noncriminal tickets — if Fuhrman completed domestic violence treatment, substance abuse assessment and treatment, and a parenting class. For the seven months of the agreement, Fuhrman also agreed not to commit any additional crimes and not to use alcohol or illegal drugs.
"The agreement was offered to Fuhrman at the request of the victim in the matter, and in consideration of the fact that there was more than one consistent account of the events that supported the prosecution," according to the statement from Lovern, chief deputy prosecutor.
Neither Fuhrman nor his wife responded to requests for interviews.
Lack of cooperation from the victim, which is common in domestic violence cases, is not a valid reason to let an accused batterer go free, said Judy Munaker, who prosecuted such cases in Dane County before working for five years as a state Office of Justice Assistance trainer, where she taught police about officer-involved domestic violence.
Victims of domestic violence almost never participate in prosecution, said Munaker, now a consultant. When the perpetrator is a police officer, cooperation from the victim is even less likely.
"I've never had a case with a law enforcement officer when the victim is willing to testify," she said. "We expect most victims to recant or not testify because they're trying to stay alive."
Fuhrman satisfied his conditions and walked out of court with the municipal tickets and a fine. Flynn suspended him for 30 days.
Fuhrman's personnel record includes an award for arresting an armed robber in 2000. In 2007, he received the chief's superior achievement award for pursuing an armed suspect.
More diversions
Fuhrman is among 14 Milwaukee police officers who have benefitted from deferred prosecutions and similar deals known as diversion from Milwaukee County prosecutors. Another four officers have gotten such treatment from prosecutors in other municipalities.
It isn't easy for the public to figure out all the information about either type of case.
As reported by the Journal Sentinel last year, Chisholm has greatly increased the number of deferred prosecutions since he took office in 2007. He has touted the program as a solution to take pressure off the overcrowded court system, but has not specifically addressed the deferred prosecutions or diversions of police officers.
Deferred prosecutions are supposed to be entered into the state's online records system, known as CCAP. But that isn't always done. When it is, the details available electronically are sketchy. The full story is contained only in a paper file at the courthouse.
There are even fewer records of diversion cases, in which prosecutors agree to hold off on filing charges in the first place. In exchange, potential defendants must meet certain conditions, ranging from staying out of trouble to attending counseling or paying restitution. Diversion cases are not entered into the online database. Because prosecutors don't file charges upfront, there are no paper court records of the deal, either.
The newspaper located limited documentation on diversion cases involving police officers by filing public records requests with the Police Department and district attorney's office.
Those records also contained information about six officers whose cases were "held open" with instructions from prosecutors to meet certain conditions in order to avoid charges, but without a formal deferred prosecution or diversion agreement.
Agreement ignored
At least one officer who was offered a diversion agreement, Robert A. Brown II, slipped through the cracks.
Brown was never charged even though he failed to attend anger management classes after a fight with his girlfriend in January 1998, according to a summary of the internal investigation.
The document gives these details:
Brown was arrested for domestic violence battery after the woman, who was six months pregnant with his child, was treated at St. Joseph's Hospital for cuts on her forehead, neck pain and a swollen nose. The woman told investigators Brown choked her and punched her in the face.
The woman said she wanted to prosecute because Brown had choked her three times before.
Milwaukee County Assistant District Attorney William Hanrahan — now a Dane County circuit judge — told Brown he would not issue charges if Brown completed an anger management course and refrained from further violent contact with the victim. Brown agreed.
Nine months after the fight, a police sergeant contacted the district attorney's office for an update.
"Due to a possible error or oversight on the part of the District Attorney's office, this case never made it into the diversion program and records indicated Officer Brown never attended the stated program," the summary says.
In his written statement, Lovern said that because the case was so long ago, he had no information about why charges weren't filed.
Brown's only punishment was a one-day suspension. He did not respond to an email seeking comment.
His record also includes recognition for arresting a burglary suspect in 1995.
Altercation with senator
Jeremy Gonzalez, an officer involved in an altercation with state Sen. Tim Carpenter (D-Milwaukee), also was offered a diversion program. Although Gonzalez was still a probationary officer when the incident occurred on Aug. 14, 2004, he was allowed to remain on the force.
Carpenter, who lived upstairs from his elderly parents in a duplex, was running for U.S. Congress at the time. He heard a noise, and he and his father went outside, Carpenter said in an interview.
Gonzalez and his brother had torn down a campaign sign.
"I came out and said, 'What happened?' " Carpenter recalled. "(Gonzalez) got upset. He was kind of combative. He told me to shut my mouth and get inside my house. He (grabbed) my shirt and twisted it and ripped my shirt."
Meanwhile, Gonzalez's brother tackled Carpenter's father, who was in his 80s, Carpenter said.
"My dad went flying through the air," Carpenter said. "As soon as he hit the ground, he said, 'Oh, my back.' It still goes through my mind in slow motion: Standing on our own property, having someone come at my dad like a linebacker going after a quarterback."
Gonzalez, who did not respond to a certified letter seeking comment, told internal investigators he kicked the sign because he was angry with his brother. After that, Carpenter started the fight by threatening to "kick his ass," according to a summary of the internal investigation, which also includes Carpenter's account.
Gonzalez denied shoving Carpenter, as a witness reported, or grabbing his shirt.
Gonzalez's blood-alcohol level was 0.10, according to the summary. He was arrested for disorderly conduct. As part of his deal to avoid charges, he completed an anger management program.
His brother, Dimitri A. Gonzalez — who is not a police officer — was charged with misdemeanor battery and pleaded no contest, court records show.
Jeremy Gonzalez was suspended for two days. He has not been disciplined since, according to his personnel record.
He has received three awards from the Police Department for meritorious arrests: armed robbers in 2004 and 2007 and a marijuana dealer in 2005.
A few days after Gonzalez's fight with Carpenter, Jon Reddin, who has since retired as deputy district attorney, told the Journal Sentinel that Carpenter's reluctance to press charges was part of the reason prosecutors gave the rookie cop a break.
Like Gonzalez, most of the officers disciplined for violating the law did so off duty.
But that isn't always the case.
Assault accusations
As the Journal Sentinel first reported in March, three current officers avoided criminal convictions and kept their jobs after women accused them of on-duty sexual assaults, according to records. Unlike Cates, who ultimately was fired, Reginald Hampton, Milford Adams and Scott Charles kept their jobs.
Hampton was accused by two women he met on the job. Internal investigators referred both cases to the district attorney's office, but Hampton was never charged. He was not disciplined as a result of the first investigation, in 1990, according to his personnel record.
After the second woman came forward in 1991, then-Chief Philip Arreola fired Hampton. But the punishment was overturned by the Fire and Police Commission, which instead suspended him for 60 days.
The commission also overturned the firing of Adams, who was accused of allowing a woman to avoid arrest in exchange for performing a sex act in his squad car in 2004. The woman previously had been convicted of prostitution and drug charges.
After a jury found Adams not guilty at a criminal trial, the commission rescinded all internal discipline against him, leaving him with a clean employment record.
The commissioners did not find the woman's testimony credible — in part because the jury in the criminal case did not believe her, according to their written decision.
The third officer, Charles, was accused of sexually assaulting a woman after he pulled her over for drunken driving in 1994, according to a summary of the internal investigation. The investigator concluded that Charles went into the woman's apartment "under the guise of ensuring her safety . . . and did have an act of sexual contact with her," the summary says.
The woman told investigators she was very intoxicated and may have blacked out during the assault. Charles told investigators the two sexually touched each other consensually and the woman was not unconscious at any point, the summary says.
Investigators expected Charles would be criminally charged with misconduct in public office, the summary says. But he was not.
The summary does not contain an explanation of why Charles was not charged. The district attorney's records of the incident no longer exist because of a county policy that calls for the destruction of files in uncharged cases after 10 years, Deputy District Attorney James J. Martin wrote in response to an open records request from the newspaper.
Charles was suspended for 60 days, according to his personnel record. He avoided being fired by receiving satisfactory monthly reports from his supervisor for a year. Charles, who did not appeal the punishment to the commission, has since been promoted to sergeant.
Just because officers haven't been criminally convicted doesn't mean they are fit to serve, Sheriff Clarke said.
"That type of behavior is incompatible with working in law enforcement," he said.
Guilty, but still on force
Even when officers are successfully prosecuted, they don't automatically lose their jobs.
Nine officers on the force as of Oct. 1 have been convicted of crimes. Of those, seven were prosecuted by the Milwaukee County district attorney's office. One of them was later pardoned.
The other two convicted cops broke the law while in different jurisdictions.
One of them was John Corbett. He was sentenced to jail by a Fond du Lac County judge, but he didn't have to take a leave from the Police Department while he served his time.
According to a police report:
A sheriff's deputy spotted Corbett's car, alternately swerving across the centerline and weaving onto the shoulder, around 1:30 a.m. Nov. 21, 2010.
When the deputy pulled over the car, she saw two men passed out in the back seat, covered in vomit.
Corbett swayed and stumbled as he performed field sobriety tests such as walking a straight line and standing on one foot. His eyes were red and he smelled of alcohol.
Corbett told the deputy he drank just two beers, but a preliminary breath test showed a blood-alcohol level of 0.18, more than twice the legal limit for driving. Two knives hung from Corbett's belt, and a handgun was tucked into the passenger side visor.
Corbett's 13-year-old daughter was crying in the passenger seat. She told another deputy that after a day of deer hunting, she, her father, and some friends went to a bar called Mr. Lucky's. Because the adults were drunk, the 13-year-old was driving them back to Kiel, where they were staying.
Then she got lost, and her father took over.
Corbett did not respond to a request for comment.
He told internal investigators he had seven drinks over about 7½ hours. He had used the knives to field dress deer, and had forgotten the gun was in the car, he said. Corbett also told investigators he let his daughter drive for about a mile in a rural area, but said it was on the way to the bar, not after they left.
Corbett pleaded guilty to first-offense drunken driving with a child younger than 16 in the car, a misdemeanor. He was fined $1,059, and sentenced to 30 days in jail, which he was allowed to serve in Waukesha County. His driver's license was suspended for 15 months.
Department spokeswoman Anne E. Schwartz confirmed that Corbett, a desk sergeant, was on the job while on work release from jail. Corbett was on administrative duty, which means his police powers were suspended and he had to turn in his badge and gun. Practically speaking, however, his day-to-day tasks didn't change much, since desk sergeants generally do paperwork and answer phones and don't usually respond to emergency calls or make arrests.
Corbett was suspended from the department for 60 days beginning in June, 21/2 months after his jail term had ended.
The Police Department should not tolerate drunken driving or domestic violence by officers, said Carpenter, the state senator.
The small percentage of officers who engage in those behaviors or otherwise violate the law make the rest — who do a good job of protecting the city and serving as role models — look bad, he said. And those with a pattern of wrongdoing also could pose a liability for the city.
"Those people need to be screened out and they can't be allowed on the police force," he said. "It's just too dangerous."
Both Sides of the Law: Police Department ignores national standards for officers accused of domestic violence
Milwaukee Journal Sentinel: Web Edition Articles (WI)
April 25, 2019
Editor's note: This report was originally published on Oct. 23, 2011.
When Robert Velez's wife left their home to escape his abuse, he used his Milwaukee police training — and his badge — to track her down.
First, Velez connected his missing wife to the Exel Inn hotel chain. He initially showed his badge at the Wauwatosa location, according to court and internal affairs records. Lying to the clerk, Velez said he was working undercover, looking for a suspect.
The woman wasn't checked in there, but the clerk located her in Oak Creek. She had alerted staff that her abusive husband — a cop — might come looking for her.
Nonetheless, the hotel desk clerk led Velez to his wife's room, knocked on the door, and told her to open it. If she didn't, the clerk said, he would use the master key.
She did.
Velez shoved past her into the room, where he found one of his fellow officers — whom he and his wife had known for about three years. Velez immediately began beating the man, telling him: "I'll break your f---ing neck! I'm going to kill you!"
When his wife tried to break up the fight, Velez punched her in the face. He put the man in a headlock and dragged him down the stairs, the records say.
When Oak Creek officers arrived, Velez also fought with them. He repeated the lie about working undercover a third time and pulled back his black leather jacket to show the gun in his waistband, according to a summary of the internal investigation.
As a result of the 2001 incident, Velez was arrested for battery while armed, domestic violence battery and misconduct in public office — charges that could have landed him in prison for 5 ½ years and barred him from possessing a gun for the rest of his life.
But that didn't happen. Not only did Velez avoid prison, he was suspended from the department for just six days.
Velez is one of at least 16 Milwaukee police officers disciplined after internal investigators concluded they had committed acts of domestic violence, according to internal affairs records obtained by the Journal Sentinel during a two-year investigation. They are among 93 officers on the force who have been disciplined for violating state laws or local ordinances, according to the newspaper's analysis, the first of its kind involving the Milwaukee police.
INTERACTIVE DATABASE: Search officers and their case histories
Department leaders don't follow national standards on how to handle accusations of domestic violence against officers. Prosecutors often charge them with lesser crimes — or no crimes at all. As a result, officers who abuse their spouses or romantic partners are allowed to keep their jobs, carry loaded weapons and respond when battered women call for help, the newspaper found.
Law enforcement agencies that tolerate abusive officers endanger victims, erode the community's trust and leave themselves vulnerable to lawsuits, said Judy Munaker, an attorney who spent five years training cops about officer-related domestic violence through the state Office of Justice Assistance.
'Protecting their own'
"They see it as protecting their own, but it's corruption," she said. "They need to stop protecting their own and start protecting victims."
It is impossible to tell how many domestic incidents the Milwaukee Police Department has not investigated. Last year, for example, the wife of a high-ranking commander in the Professional Performance Division, which investigates officer misconduct, called 911 in fear of her husband.
No one wrote up a report, and department officials say a recording of the emergency call does not exist.
Just three of the Milwaukee officers disciplined for abusing their spouses or romantic partners, including Velez, ended up with criminal records — but none of those convictions was for a felony or misdemeanor domestic violence, crimes that would have ended their careers by stripping them of their right to carry firearms under federal law.
Prosecutors charged Velez with only misdemeanor battery, and he pleaded no contest.
Even though he later violated a court order by contacting the victim, Milwaukee County Circuit Judge Jean DiMotto sentenced Velez to a year of probation.
He spent three days in jail.
Officer Edward McCrary was convicted of disorderly conduct after he fought with his wife and choked her cousin. He was sentenced to one day in jail.
Sgt. Charles Cross was convicted of criminal damage to property for kicking in the door of the apartment he shared with his girlfriend. He was fined $500. Prosecutors offered him a deferred prosecution agreement on the charge of domestic violence-related disorderly conduct. He got treatment for depression and alcohol abuse and the charge was dismissed.
A fourth officer, Zebdee Wilson, now has a clean criminal record despite pleading guilty to violating a restraining order in 1994. His wife needed oral surgery after he punched and kicked her repeatedly in the face, court records say.
That conviction should have stopped Wilson from continuing to serve as a police officer after the federal law banning domestic violence offenders from carrying guns took effect in 1996. The ban was retroactive and applies no matter when the conviction occurred. There is no exception for police officers.
But then-Gov. Tommy Thompson pardoned Wilson, erasing his conviction and saving his career.
Another provision in the federal law allows officers to carry weapons on duty despite domestic abuse restraining orders if their employers allow it.
The Milwaukee Police Department does.
What's more, the department does not have a written policy on how to handle officer-involved domestic violence — a practice that goes against recommendations by both the International Association of Chiefs of Police and the state Department of Justice. The assistant chief who oversees officer performance and discipline, Darryl Winston, said in May he had not read the state's model policy, released by the Wisconsin Department of Justice in 2009.
INVESTIGATING AN OFFICER: A look at the complaint and review process
The model policy contains an educational component that discusses the causes of the problem and its impact on the community. It gives clear, step-by-step instructions for investigations, including lists of who should be called to the scene and what kinds of paperwork should be completed. The policy also addresses how departments should deal with abusive officers.
"Ignorance is no excuse," said David R. Thomas, an instructor at Johns Hopkins University in Baltimore, who helped write a model policy for the international association.
"If they're willing to look the other way on this type of criminal activity, where does it stop?"
Milwaukee Police Chief Edward Flynn and Milwaukee County District Attorney John Chisholm declined to discuss the issue with the Journal Sentinel.
In a written statement, Chief Deputy District Attorney Kent Lovern said prosecutors handle officer-involved domestic violence cases the same as any others.
"Domestic violence victims often are forced to struggle with interests in addition to their own personal safety, including children in the household and financial distress," he wrote. "Cases involving police officers are no different, and we evaluate those cases just as we evaluate domestic violence cases involving citizens of other occupations, with a goal of achieving an appropriate measure of accountability under the circumstances."
Certified letters to Velez, McCrary and Wilson were returned, and they did not respond to emails requesting comment. Cross, via email, declined to comment.
Velez received a meritorious service award in 2010 for dragging a burning trash bin away from a building and a crowd assembled for an immigration rights march.
He also provided support during a domestic violence awareness walk in the Latino community in 2006, according to a letter in his personnel file.
Wilson received the chief's superior achievement award in 1993, the year before his criminal conviction, for rushing into a burning building and waking seven people inside. In 2002, he received a commendation for disarming and arresting a dangerous suspect.
Far above norm
Domestic violence is far more common among the families of police officers than among the rest of the population, according to the U.S. Department of Justice and the National Center for Women and Policing. At least 40% of police families are affected by domestic violence, as opposed to an estimated 10% in other households.
Because of the unique stresses that result from confronting dangerous suspects, analyzing bloody crime scenes and witnessing breakdowns in the criminal justice system, police officers also experience higher rates of suicide and post-traumatic stress disorder, experts say. If officers don't learn to manage their stress and to separate their jobs from their personal lives, the results can be disastrous.
The very training that makes someone a good police officer can produce a frightening abuser, experts say.
For example, officers are trained to take control of every situation. They learn to interrogate suspects and to conduct effective surveillance. They learn how to pursue suspects and physically restrain them — in many cases, without leaving a mark. When they use force, they know how to provide legal justification.
Friends who work in the criminal justice system also tend to believe abusive officers who label their victims crazy or dishonest, according to Thomas.
"He's a master manipulator," Thomas said of an abusive officer. "He's a batterer with a PhD."
And a gun.
The law that prohibits people convicted of domestic violence from carrying firearms, known as the Lautenberg Amendment, has been counterproductive when it comes to police officers, according to Diane Wetendorf, an Illinois-based consultant who has specialized in officer-involved domestic violence for the past 15 years.
Instead of taking guns away from abusive officers across the nation, it has made prosecutors — who work closely with cops every day — more lenient with them for fear of ruining their careers, she said.
Take the case of McCrary, now a detective.
On July 14, 1998, McCrary's then-wife fled in fear to a neighbor's house after he threw books and disconnected the phone wires when she tried to call 911, court records say. She was six months pregnant at the time.
Prosecutors agreed not to charge McCrary with a crime as long as he got counseling and stayed out of trouble. The Milwaukee County district attorney's office has offered that type of deal, known as a deferred-prosecution agreement, to at least five other current Milwaukee police officers accused of domestic violence, according to the newspaper's analysis.
But McCrary didn't live up to his side of the bargain, according to a summary of the internal investigation. He didn't go to therapy.
And in October 1998, he got into another argument with his wife. When her cousin intervened, McCrary grabbed the woman by the neck, according to a criminal complaint.
"He choked her, lifted her up off the floor, and started moving her backwards toward the front door," the complaint says.
He yelled obscenities at the woman, pushed her out the door and threw out her clothes and shoes behind her, the complaint says. She had scratches on her neck and her hand was bleeding.
Because McCrary fell short of completing the deferred prosecution deal, prosecutors charged him with domestic violence-related disorderly conduct in connection with the July incident. He also was charged with battery against his wife's cousin as a result of the October fight.
But under a plea agreement, the charge involving his wife was dropped and the battery charge involving her cousin was reduced to misdemeanor disorderly conduct.
McCrary pleaded no contest. Because he was not convicted of a charge in which his wife was a victim, he was not prohibited from carrying a firearm and kept his job.
Milwaukee County Circuit Judge Dominic Amato sentenced McCrary to a single day in jail.
At the sentencing hearing, McCrary apologized and said he accepted responsibility for his actions, according to a transcript.
"I didn't want it to go this far," he said. "Me and my wife, we decided that we weren't going to be together, we should have just parted without incident."
McCrary initially didn't go to counseling because his insurance didn't cover it, but he later started treatment, his attorney, Steve Kohn, said at the hearing.
McCrary was suspended from the department for 15 days for breaking the rule against violating laws or ordinances. He did not respond to interview requests. His ex-wife declined to comment. Her cousin could not be reached.
Lovern, chief deputy in the district attorney's office, said the plea deal in the cousin's case was done "in accordance with the wishes of the victim." His written statement did not address the charge involving McCrary's wife or explain why he was offered deferred prosecution in the first place.
Police exemption
Domestic violence injunctions, more commonly known as restraining orders, also don't keep guns away from abusive officers in Milwaukee — and don't always lead to department discipline.
Most people with restraining orders against them lose the right to possess firearms. But the Milwaukee Police Department allows officers in that situation to "check out" their duty weapons at the beginning of each shift and return them afterward.
That is a constant source of stress for Jill Glidewell, who recently divorced Milwaukee police Detective Herb Glidewell.
"He said if I ever told the things he'd done, I'd disappear," she told the Journal Sentinel.
Nonetheless, she testified in an attempt to get a restraining order against him, detailing abuse dating back to 2006.
Milwaukee County Court Commissioner Dean B. Zemel granted the restraining order based on an incident that occurred Nov. 1, 2008, in which Jill Glidewell — a police officer herself — ended up with a damaged rotator cuff.
The week before, she had told her husband she was pregnant with their second child.
"He viciously attacked me while I was in bed," she testified later. "He got on top of me. With all his weight, he was picking me up and slamming me down as hard as he could on the bed, over and over, more than 10 times. I was screaming for him to stop and get off of me. That it was hurting me. "
She grabbed the phone, but he yanked it out of her hand and started beating the barking dog with it, she said. Taking the dog and her baby daughter, she drove to the District 6 police station, barefoot, at 3 a.m.
She was too embarrassed to go inside. A friend who was on duty came out to comfort her, but didn't push her to file a report, she said.
Herb Glidewell appealed the commissioner's decision to grant the restraining order. He denied wrongdoing at a hearing before Milwaukee County Circuit Judge Francis T. Wasielewski, according to court transcripts.
"We argued often, yes," Herb Glidewell testified. "And I'm sure on all those dates, we probably did have disputes; but never, at one point, ever, was it physical. I've never harmed her, never touched her, hit her, pushed her, any of those things."
At the end of a two-day hearing, Wasielewski, who has since retired, left the restraining order in place. It is in effect until 2013. He based his decision on medical records, which showed Jill Glidewell sought treatment for the shoulder injury and told her doctor it was the result of domestic violence, the transcripts say.
Herb Glidewell is among seven police officers who have had restraining orders imposed against them by a commissioner. Of those, three orders were later dismissed — two by the women and one by a judge when the woman didn't show up at an appeal hearing.
In another 11 cases, officers' spouses or romantic partners filed for restraining orders that were not granted by a commissioner in the first place, either because there was not enough evidence or because those who filed for them did not follow through with the cases. One was later granted by a judge after the victim appealed.
But Herb Glidewell's attorney, Barry Book, characterized the burden of proof for restraining orders as extremely low. In the Glidewell case, the law allowed the commissioner and the judge to "err on the side of caution," he said.
Book said the timing of the application for the restraining order was suspect, since his client was served with it the same day he signed away his rights to the couple's house in a pending divorce.
Jill Glidewell says she would have done it sooner, but he was out of town. He wanted his name off the house because he already offered to purchase another one, she said. Property records back up her assertion, showing Herb Glidewell closed on a new house five days later.
The attorney also questioned Jill Glidewell's continued assertions of abuse, saying he suspected she was using them as ammunition in a contentious custody battle.
"I do think there are some extenuating circumstances in this particular case that call Ms. Glidewell's credibility into question," Book said. "The divorce proceedings lasted about 21/2 years. It was very acrimonious from the beginning."
Nearly two months before she sought the restraining order, Jill Glidewell discussed her then-husband's abusiveness with internal affairs, alleging the same mistreatment she testified about in court.
After an investigation, the Police Department referred the case to the district attorney's office. Local prosecutors often review cases against Milwaukee police officers themselves. But in this case, they asked Chris Freeman, then a Dane County assistant district attorney, to serve as a special prosecutor.
"The Glidewell case was referred to Dane County due to the appearance of a conflict, although to our knowledge, no actual conflict existed," Lovern's written statement says. It does not say what the perceived conflict was.
In a letter to the department, Freeman, who has since been promoted to deputy DA, said "three major incidents stood out as strongest for charging." One was the episode in which Jill Glidewell's shoulder was injured. In another, Herb Glidewell grabbed her by the throat and pushed her into a wall, Jill Glidewell said. The third "was an incident in which Herb Glidewell started a fire on a grill in front of the residence while he was intoxicated," Freeman's letter says. "The fire raged to such a degree that the wheels of the grill melted into the pavement."
To corroborate her statements, Jill Glidewell provided the medical records regarding her shoulder, as well as pictures of redness on her neck and of the melted grill.
Freeman did not charge Herb Glidewell with a crime.
"The reason for the lack of charges does not stem from the belief that these events did not occur as Jill Glidewell describes, but that I do believe based on the entirety of the record and reports that this case could not be proved beyond a reasonable doubt," Freeman wrote in the letter, which explained his decision to the Police Department.
Herb Glidewell was not disciplined, and his personnel record remains spotless.
His ex-wife is frustrated that he hasn't been held accountable.
"He told me, 'If you ever leave me or try to fight me, I'll ruin you,' " she said. "Criminals are afforded the right to a fair and speedy trial. Why aren't victims of domestic violence?"
Herb Glidewell primarily works burglaries and robberies, according to Book. He carries his gun while on duty. If the department ever asked Glidewell to work domestic violence cases, his attorney said that wouldn't be a problem.
"I think he is able to separate his personal situation from his professional obligations," Book said. "I have no question in my mind that if he were to investigate a domestic violence case he would do the right thing. If he had to put a dad under arrest, he would do it."
Jill Glidewell said she has never feared a suspect as much as she fears her ex-husband.
"This is the most dangerous thing I've ever done," she said of leaving him. "I live in fear every day that someone is going to shoot up my house."
Police departments that give abusive officers access to their guns need to be aware of that possibility, according to Thomas, of Johns Hopkins.
"People think you go on duty and all of the sudden there's a protective shield around you and you're not going to do anything stupid anymore? It's just ignorant," he said.
Higher standard needed
While officers' attitudes about domestic violence in the community have evolved over time, most police around the country still don't take it seriously when the perpetrator is one of their own, according to experts. Handling such accusations the same as any other criminal allegation against police, as Milwaukee does, isn't good enough, experts say.
Because responding officers can be biased, one of the goals of a model policy on officer-involved domestic violence is to remove their discretion, said Thomas, who retired from the Police Department in Montgomery County, Md., in 2000. Following written guidelines step by step protects the victim, the investigator and the alleged perpetrator, he said.
"If I'm accused of being involved in this activity and I didn't do it, I want a good, clear exhaustive investigation so I can be exonerated," he said.
That didn't happen in the case of Lt. David Salazar, a supervisor in the Milwaukee police's Professional Performance Division, which investigates wrongdoing by officers.
After receiving a tip that Salazar's wife called 911 during a fight with him, the Journal Sentinel made a public records request for audio recordings of all calls associated with his home address and any police reports affiliated with them.
No reports were written, according to the department's response.
The department provided only a dispatcher's log of the June 2010 incident, which confirms that Salazar's wife called for help during an argument over suspicions he was cheating. She told the dispatcher he was intoxicated and trying to break down the door.
The newspaper requested the information in August 2010. Three months later, the department said the recording of the call had been inadvertently purged from the system.
Then, in January, the story changed.
Department spokeswoman Anne E. Schwartz said that actually, the system malfunctioned and no emergency calls were recorded the entire day Salazar's wife called 911.
The supervisor called to the scene, Capt. Aaron Raap, determined Salazar "had not operated a motor vehicle, had not had physical contact with the caller and did not appear to be intoxicated," Schwartz said in an email.
Raap decided an internal investigation was not necessary, and Salazar was not reassigned or disciplined as a result of the incident, Schwartz said.
"The determination was based on Capt. Raap's years of training and experience," she said. "Police officers use their discretion every day in every situation."
The state's model policy says if no arrests are made, "the on-scene supervisor shall submit a written report explaining any and all reasons why an arrest was not made or a warrant was not sought."
Allowing officers to hide behind discretion in cases such as Salazar's is "unacceptable," Thomas said.
"It's saying we're just not going to uphold the law with our own the way we do with a citizen," he said. "We should, in law enforcement, be held to a higher standard because we're supposed to enforce the law. . . . Otherwise, it's the fox watching the henhouse."
Neither Salazar — who received a unit service award in 2009 as part of the department's homicide division — nor his wife responded to certified letters seeking comment.
Salazar continues to supervise investigations of other officers accused of wrongdoing.
Still investigating cases
Officers such as Velez, convicted of the beating in the hotel room, continue to investigate domestic violence, the newspaper's investigation found. In April alone, Velez responded to domestic disputes five times — an average of more than once a week, according to the most recent records released to the newspaper.
That's another direct contradiction to the recommendations in the state's model policy. It's a recipe for destroying community confidence and placing victims at risk, the policy says.
"There are grave concerns regarding how officers who commit the crime of domestic violence respond to domestic violence calls in the community," the policy says. "Obviously, their personal conduct affects their capability to effectively deal with these situations impartially. Moreover, an officer, sympathetic to an abuser, may not adequately protect a victim."
Munaker, the former Office of Justice Assistance trainer, agreed.
"We can't let abusers investigate this. We just can't," she said.
Flynn has said fighting domestic violence is a priority for the department. In February, he rolled out a new initiative to combat the problem, targeting repeat offenders and calling for greater protection of frequent victims.
"A violent assault is a violent assault, and that warrants justice," he told department supervisors at the time.
John Diedrich and Ben Poston of the Journal Sentinel staff contributed to this report.
Dangerous Calls: Legislation seeks disarming domestic abusers
Daily Citizen, The (Dalton, GA)
November 24, 2019
https://infoweb.newsbank.com/
TIFTON — Domestic abuse cases can be chaotic, dangerous and even deadly.
Austin Cannon knows.
As a Colquitt County Sheriff's Office criminal investigator, he has dealt with many domestic abuse cases.
"One of the most important steps is going to be separating the two parties involved," he said. "That way you can get a side of the story from each person without input from the other party."
Capt. Steve Hyman with the Tifton Police Department agrees.
That emotional, chaotic nature is the reason why most departments have a policy of sending at least two officers to a domestic call, Hyman said.
Domestic violence pervades every community – friends, family and neighbors often looking the other way — until the "private family matter" turns tragic.
While the primary victims of abusers are significant others and children they share, authorities in the SunLight Project coverage area of Dalton, Moultrie, Thomasville, Tifton and Valdosta say domestic violence calls can be just as dangerous for responding officers, especially if guns are involved.
Even without the presence of firearms, domestic calls pose a high risks for officers.
Lt. Tim Watkins, Thomas County Sheriff's Office chief investigator, also said his agency tries to send a minimum of two officers to a family violence call if possible.
"We ask dispatch to gain as much information as possible while officers are on the way there, such as are there any weapons involved, if so what type," he said. "We try to park adjacent to or away from the front of the residence and listen, then walk up to the residence and announce. We're listening for what type of activity is happening inside the residence, what is actually verbal or physical."
Officers always worry about weapons when responding to domestic calls, because even the victim can turn on responding officers while an arrest is underway.
Hyman said officers double up on the calls not only to separate the parties and get each side of the story but to watch each other's backs.
"I've been in situations where we had an aggressor and when we go to arrest them, they start fighting," Hyman said. "Then I've had the victim see we're arresting their spouse or boyfriend and they jump on me to try to help them out."
Thomasville Police Chief Troy Rich said all domestic violence calls are extremely dangerous for law-enforcement officers.
"Statistics show if an officer can survive the first minute of the domestic violence call, the chances increase dramatically for officer safety as the investigations continue," he said.
Rich said law-enforcement officers must take every precaution to prepare themselves on how to diffuse the situation for a successful outcome for the officer, the victim and other innocent parties involved, as well as the offender.
Family violence calls vary. Most family violence calls generally involve spouses arguing about personal matters with some type of battery involved. Some situations involve children who witness the incident.
Rich could not recall an incident where a gun was turned on officers during a response, but the department has had incidents where other types of weapons have been used, and officers had to defend themselves.
Hyman and Cannon say it's not common for their officers to deal with firearms during domestic calls. Cannon's experience has seen more "weapons of opportunity," something picked up to defend one's self rather than a gun — a blunt object, knife or more likely hands and feet.
Hyman said the Tifton Police Department hasn't experienced many domestics where firearms are involved, but if they are involved, it's a situation that has been an ongoing, escalating issue.
Both the Whitfield County Sheriff's Office and the Dalton Police Department did not report any instances of officers either being threatened or shot at with a gun while responding to a domestic call.
If the abuser is shooting a gun, then it's more likely they'll kill the abused, Serenity House Shelter Manager Melissa Sparks said, but that happening is a rare occurrence.
Sparks said guns are more commonly used as threats of physical abuse.
"A great deal of them — way more than 50% — will say, 'Yeah in the past, he pointed a gun at me or threatened to kill me,'" she said.
Rare but Deadly
While firearms may not be the typical weapon in domestic violence cases, guns prove more deadly for victims of abuse than other weapons or forms of abuse.
According to the Georgia Commission on Family Violence's annual fatality review, in cases reviewed between 2004-18, 59% of domestic violence victim deaths were caused by firearms. That same report states 83% of perpetrators had previous interaction with law enforcement and 55% of perpetrators had previously threatened to kill the victim.
Firearms are more likely to result in more widespread deaths of children, other members of the victim's family and any law enforcement responding to a call for help.
In Thomasville, Watkins said a family violence subject fired at sheriff's officers when they reached the incident location on West Jackson Street. The subject shot at deputies with an AK-47 assault-type rifle.
Domestic disputes "are one of the most dangerous calls you can go on," Lowndes County Sheriff Ashley Paulk said. "A large number of law-enforcement officer deaths take place on domestic calls."
Paulk answered a domestic violence call during his first term in the 1990s where a man was holding his wife and daughter hostage.
When he got to the house, Paulk said he discovered the man was a good friend and he knew the whole family by name. That didn't stop the man from pointing a shotgun at the sheriff and Paulk had to jerk the gun from the man's hand.
Though he couldn't document it, Paulk said he has heard Lowndes County's first deputy to die in the line of duty — in the 1850s — was killed while dealing with a family violence situation.
The Tift County Sheriff's Office has had one deputy killed in the line of duty. The officer was responding to a domestic call.
Capt. Raymond Merritt Sr. was killed while responding to a domestic disturbance call June 8, 1991.
Merritt was not supposed to be working that weekend but was filling in for another deputy when he responded to the call and was shot by the aggressor. The man pleaded guilty to murder and later died in prison.
Georgia House Bill 137/Senate Bill 150
On the state level, there are two pieces of legislation targeting domestic abuse; legislation which could save the lives of victims and law enforcement.
House Bill 137 and Senate Bill 150 would prohibit people convicted of family violence offenses, including misdemeanor offenses, from possessing or carrying a firearm.
State Sen. Jennifer Jordan, D-Atlanta, who introduced SB150, is hoping the legislation will get through the floor and to the Senate rules committee.
"The hope is that we'll be able to get it through," Jordan said. "It's a really common-sense piece of legislation that law-enforcement officers are behind, district attorneys are behind and it makes sense because it saves lives."
Opinion about the efficacy of the proposed law is mixed
Watkins of the Thomas County Sheriff's Office said a federal law, the 1996 Lautenberg amendment, has prohibited domestic abusers from shipping, transporting or owning firearms or ammunition. It is a felony under federal law.
"I am glad to see that our Legislature has caught up with this 23-year-old law," Watkins said.
Thomasville Chief Rich could not recall an incident where a gun was turned on officers during a response, but the department has had incidents where other types of weapons have been used, and officers had to defend themselves.
"The law clearly defines if you are found guilty of violating the family violence law, your privilege to possess a firearm in the state of Georgia has been revoked," the chief said. "Any law that is passed to prevent any violence and protect the community and all officers is a good law."
Sparks said the question of should guns be taken away from those convicted of family violence would be a "double-edged sword question."
"You can say 'All right, he beat the crap out of her,' but he's a hunter and hunting's his life," the shelter manager said. "You just have some people that shouldn't have guns and some people that can handle it. But I think if he threatened to kill her with a gun, no, he should not have a gun."
Paul Nagy, Colquitt County District 5 commissioner, said his feelings on HB137 are mixed.
Of course, abusers and firearms are a dangerous mix, but he wonders how to hinder the bill's hidden agendas.
"When you pass these ordinances over time — five, 10, 15, 20 years — they can expand and they can be abused or used as a tool to just take weapons away from you if you don't watch it," said Nagy, a retired lieutenant colonel in the Marine Corps and adviser to the Colquitt County High School Junior ROTC program.
Safeguards are his answer to making the bill better
"If they can make safeguards to make sure this thing is not fraudulently used in the future to take guns away from people who are law-abiding citizens, I would lean in favor of it," he said.
Austin Cannon doesn't see the point of the bill, saying it won't really change things.
"I don't know that this person would even abide by that rule," he said.
He and Sparks would rather see change or restrictions on drugs and alcohol since they encounter substance abuse more often in domestic violence cases.
"I would say that — and it's a rough estimate — probably nine out of every 10 domestics that I've ever responded to — you'll probably see this department wide, maybe even nationwide — would be that some form of substance abuse was involved," he said.
Sheriff Paulk concurred, saying alcohol and drugs are often a factor in domestic disputes.
Terry Scott wears several hats in the Thomasville community. A U.S. Army veteran, he pastors a church and is Thomasville mayor pro tem.
While counseling men and woman in abusive relationships, he said he has learned a lot of the violence comes from one's childhood.
"A lot of times, an abuser will use anything to get their point across and out of anger will use a weapon for leverage to make them feel like they are in control of the situation," Scott said.
However, Scott said, if an individual is a repeat offender, he said the state should have a law to remove the firearm rights for the protection of residents.
"Law-enforcement officers never know what they are walking into or responding to until they arrive at the scene where an abuser will feel intimidated, due to the fact an officer is carrying a weapon," Scott said, "even though officers are trained on how to deescalate the potential violent situation."
He suggests letting the community know how police officers are trained and how they expect the public to comply when they are approached by an officer.
In addition to Eve Copeland-Brechbiel, SunLight Project team reporters Bryce Ethridge, Patti Dozier, Charles Oliver, Terry Richards and Riley Bunch contributed to this report.
Acevedo had cause to slam GOP senators after sergeant's slaying
Houston Chronicle (TX)
December 11, 2019
https://infoweb.newsbank.com/
Houston Police Chief Art Acevedo was visibly angry in discussing the shooting death of a beloved sergeant, Chris Brewster - and had some choice words for Senate Republicans whom he believes help enable such tragedies.
Brewster, 32, was responding to a domestic disturbance in Magnolia Park on Saturday evening when police say he was shot multiple times by the subject of the complaint, Arturo Solis. Solis opened fire on Brewster as the nine-year veteran was trying to get his attention, authorities said, and he was seemingly remorseless after being apprehended later that evening. Brewster allegedly told investigators that he should have shot his girlfriend, who had called the police. (SEE CORRECTION)
This tragedy fits a familiar pattern in which acts of of gun violence are preceded by instances of domestic violence. So in remarks to reporters, Acevedo singled out Senate Majority Leader Mitch McConnell and U.S. Sens. Ted Cruz and John Cornyn for criticism for not having taken up the reauthorization of the Violence Against Women Act, which has been stalled in the Senate along with other legislation passed by the Democratic-controlled House.
The National Rifle Association opposes the House-approved legislation because in addition to reauthorizing the act itself, it includes a provision intended to tackle the "boyfriend loophole," under which certain domestic abusers are not barred from buying or owning firearms.
As Acevedo sees it, Senate Republicans are putting the political demands of the GOP-allied NRA over the well-being of their own constituents, including law-enforcement officers.
"I don't want to see their little smug faces about how much they care about law enforcement when I'm burying a sergeant because they don't want to piss off the NRA," Acevedo said, referring to the three senators.
"You're either here for women and children and our daughters and our sisters and our aunts or you're here for the NRA," he continued. "Make up your minds."
The outspoken Acevedo, who recently began his fourth year as chief, concluded by saying that he had nothing more to say on the subject for now and intended to spend the week focusing on Brewster's life, and mourning his death.
Cornyn and Cruz seemed to feel that Acevedo had already said enough.
"What the chief neglected to mention yesterday is Solis, who had a prior conviction of family violence, was already prohibited from owning a firearm under Texas and federal law," said Drew Brandewie, a spokesman for Cornyn.
"So the 'loophole' he spent so much time blaming Sens. Cornyn and Cruz for didn't apply because he already wasn't supposed to own a gun," Brandewie said.
The 1996 Lautenberg Amendment to the Federal Gun Control Act bans people convicted of domestic violence against a spouse, co-parent, or family member of possessing a gun. Solis, who has been charged with capital murder, has a previous conviction for misdemeanor assault of a family member.
Cruz made this point also, about the federal law, before suggesting that Acevedo's interest in the reauthorization of the Violence Against Women Act was politically motivated.
"It's unfortunate the chief of police in Houston seems more focused on trying to advance his own political ambitions than on supporting the brave men and women of HPD," said Cruz.
It's true that the reauthorization of the 1994 law, co-sponsored by then-U.S. Sens. Joe Biden and Orrin Hatch and signed by President Bill Clinton, probably wouldn't have prevented Brewster's death.
But it's hard to fault Acevedo for giving voice to the grief and anger many Houstonians are feeling, in the wake of such a tragedy.
And if the chief's critics think there's a more appropriate moment to have a discussion about the nexus between domestic violence and gun deaths, they should feel free to suggest it.
Acevedo, for his part, raised the issue last week, just two days before the sergeant's slaying, at a news conference with Mayor Sylvester Turner, Mayor Pro-Tem Ellen Cohen, Harris County Sheriff Ed Gonzalez and Emilee Whitehurst, the president and CEO of the Houston Area Women's Center.
"Enough is enough," Acevedo said then, noting that the city had seen 40 homicides through November - out of 253 overall, up to that point - that were related to domestic violence.
"Every day that this is not authorized, it gives the notion that there's a passive acceptance that violence against women is acceptable," Gonzalez said.
Acevedo called on Cornyn and Cruz to help pass the measure in the Senate and work with their House counterparts to resolve any disagreements over the "boyfriend loophole," for example, in conference.
"The one thing that we know is that the fear to pass this is a disservice to women, to children, and it's a disservice to our community," he said.
Advocates agree with that.
"Honestly, it's ridiculous that we would even have to have a conversation," said Barbie Breshear, executive director of the Harris County Domestic Violence Coordinating Council. "That it wouldn't be reauthorized .?" she sighed.
On Tuesday, the department's SWAT team had a standoff after another such call, involving a boyfriend with a gun and a criminal record.
"It's always in the back of officers' minds, on every call that they run, after we have an incident like (the one) that happened last week," said HPD Lt. Rick Besselman, after the suspect was apprehended. "But we have to do our job."
Senate Republicans, including Cornyn and Cruz, need to do theirs.
2020: Lautenberg DV Gun Ban - News Articles And Reports
Vulnerable adults, guns and a divisive bill
Concord Monitor (NH)
February 2, 2020
https://infoweb.newsbank.com/
Gov. Chris Sununu issued a number of vetoes in 2019 – 57, famously. Only one of them was accompanied by a two-page letter of explanation.
That would be House Bill 696, an effort to establish a procedure for protective orders for vulnerable adults. The bill would have given recourse to older Granite Staters hit by financial crimes, allowing them, for instance, to immediately block fund transfers to the suspect’s account.
The proposal had strong support from legal aid advocates. But it also included a provision allowing the confiscation of “any deadly weapon” involved in that abuse. Bolstered by firearms groups, Sununu vetoed the bill, citing potential confusion with existing domestic violence protective orders and Second Amendment violations.
Now the bill is back as Senate Bill 677, this time with Sununu’s support.
But firearms groups are still split over their position on it. And how that opposition ebbs and flows in the next few months could affect the bill’s future.
“This week there is a nasty anti-gun bill, SB 677, ‘Eldercare Gun Confiscation,’ ” said J.R. Hoell, the secretary of the New Hampshire Firearms Coalition, in an email to supporters.
The conflict came even despite an amendment meant to address gun owners’ concerns. The new change to the bill, submitted by Republican Sen. Jeb Bradley, strips any reference to firearms or deadly weapons in the text.
Still, some see it as an instant non-starter.
“Not only is the bill bad, but the amendment does nothing to fix the issues,” Hoell argued.
To Hoell, even if the state law does not mention guns, creating a new order could allow for firearm confiscation through federal law.
That’s because of what is known as the “Lautenberg Amendment,” a 1997 addition to a federal statute that prohibits firearms possession for those issued protection orders for domestic abuse.
Even though the vulnerable adult order would not entail an outright ban of firearms, if a person applied for one and met the domestic violence criteria under the Lautenberg law, the court could remove firearms from the alleged abuser, Hoell argued.
Hoell also cited issues with due process for those on the other end of the protective order.
But other gun groups disagree with the Lautenberg interpretation.
The National Rifle Association appears satisfied, at least to the point that it isn’t opposing the bill. In a Jan. 28 email to the Senate Judiciary Committee, NRA State Director Lauren LePage said the organization believed the changes made in the new version did not trample on gun rights.
“I understand that this amendment ensures that law-abiding individuals will not be threatened with the unconstitutional removal of their personal property,” LePage wrote.
It’s a split that could pose political challenges to Sununu, who supports the vulnerable adult protection order but has also been a steadfast supporter of gun rights in office.
In 2016, Sununu gave a nod to some gun control advocates by stating his support for universal background checks in a gubernatorial debate.
But largely, the governor has stood firmly with gun rights supporters, signing in a concealed carry bill in his first few months in office and vetoing a raft of bills last year sent by Democrats.
Still, Sununu has supported the efforts to introduce a vulnerable adults protective order, which advocates say is necessary in a rapidly aging state with little immediate recourse for victims of financial crimes. New Hampshire currently has protective orders available for victims of domestic violence and stalking.
In a statement Friday, Ben Vihstadt, a spokesman for the governor, said Sununu remained committed even through any bumps in the process.
“The governor supports passing legislation to protect vulnerable adults,” he said. “Our office is currently working with lawmakers and advocates from both sides of this issue so that we can come to a consensus and get this done.”
And Bradley, the prime sponsor of the new bill, said that he has sought out legal advice from the Attorney General’s Office on whether the concerns have legal merit.
Meanwhile, for supporters of the bill the concerns are overblown.
“We’ve heard a lot about this bill violating the constitution,” said Cheryl Steinberg, the senior law project director for New Hampshire Legal Assistance. “All I can say is it’s based on an already existing (state) law … which has been in effect for 20 years; it’s constitutionally sound.”
And she said that the Lautenberg Amendment would not likely apply because the criteria are so narrow that they’d only apply to those who qualified for domestic violence orders anyway.
Meanwhile, Steinberg said, the bill would allow speedy judicial relief for seniors, people with disabilities and others, which would ordinarily be cumbersome and expensive to obtain.
The effort will move forward to an executive vote in the Senate Judiciary Committee, which is likely to support it.
But as gun groups continue to coalesce, the governor’s support may still be a moving target.
Assault survivor bill won't get a vote because of NRA's unnecessary demands
Times-News, The (Twin Falls, ID)
Author/Byline: Rep. Melissa Wintrow District 19, Boise | Section: Columnists
March 7, 2020
https://infoweb.newsbank.com/
Dear Co-sponsors and Stakeholders,
I have heard from many of you, inquiring about the progress of H383, and it is with a heavy heart that I inform you that H383 will not receive a vote in committee. On Feb. 13, many of you, along with survivors of rape and advocates from throughout the state, showed up to testify in support of H383. I appreciate everyone's efforts to support rape survivors and to support legislation that would have provided them a pathway to seek protection during a very traumatic time.
As Annie Hightower from the Idaho Coalition Against Sexual and Domestic Violence testified, in Idaho, the approximate average time between crime reporting and arrest in these crimes is about 85 days, and since a no-contact order cannot be granted until a criminal charge is filed, these orders could provide some safety for a survivor after a sexual assault or rape.
The bill will not get a vote because the NRA intervened, demanded unnecessary changes to this bill and unrelated changes to the Domestic Violence Protection Act, and will not remain neutral on HB383 unless those demands are met. It was their opinion that the Lautenberg Amendment would apply to civil protection orders under the proposed Sexual Assault Protection Act, thus allowing judges to take firearms from respondents, which has never been substantiated.
In order to ensure a fair process under the proposed legislation, we defined "sexual assault" to be aligned with existing statutes, which should act to further clarify the separation from the Domestic Violence Protection Act. However, the NRA claimed, without evidence, that our definition of sexual assault would be translated by judges into a reference to "sexual abuse" cited in the Domestic Violence Protection Act, still allowing judges to take firearms. There is no indication that judges are currently interpreting the term "sexual abuse" contained within the Domestic Violence Protection Act any more narrowly (or broadly) than the definitions included in H383. Nonetheless, the NRA wanted to amend the definitions of sexual assault and sexual abuse to include a required finding of use of prior force.
The Lautenberg Amendment, as it applies to civil protection orders between intimate partners does not require a finding of prior force. In fact, the Attorney General's Office issued an opinion that clarified what is actually required for the Lautenberg Amendment to apply and that our proposed legislation did not meet those standards, therefore the NRA's demand to change language was unnecessary. In fact, including the terms related to showing force is a major step backwards in how we, as a society, have defined sexual assault and rape in law. Chair Chaney and I met with NRA representatives along with the Criminal Attorney General, the Law and Policy Director for the Idaho Coalition Against Sexual and Domestic Violence, and a scholar/expert in the field of criminal justice and sex crimes. In that meeting, the NRA representative indicated that they actually did not have a problem with the Sexual Assault Protection Act bill.
Even though the NRA's claims about judges and the Lautenberg Amendment are completely unsubstantiated, as mentioned above, we added some language the NRA requested to ensure that victims of domestic violence and sexual assault were directed to the appropriate order, to ensure that a sexual assault protective order would not impact firearm possession of the respondent. At that point, even though the NRA representative indicated they had no problems with civil protection orders for victims of sexual assault, they refused to remain neutral on this bill. Instead, they stated that their true purpose was to redefine domestic abuse in the Domestic Violence Protection Act, a statute that is not even a part of our proposed bill. I let the NRA representatives know that their request was unreasonable and a clear overreach beyond the scope of the bill and their coming out against the bill would surely kill it regardless of the facts.
After considerable discussion and debate, along with the stakeholders, I feel it is inappropriate to go into an unrelated section of code and make such a significant change at the last minute without ample time to consult with the courts, stakeholders, and case law. We know that good policy is not created in such a haphazard manner. Without understanding the entire, potential impact, such changes could unintentionally harm DV victims. Therefore, unless the NRA agrees to remain neutral and to not pressure legislators to vote against this bill, civil protection orders will continue to be unavailable for victims of sexual assault in Idaho.
Sexual assault survivors will continue to be at risk of further harm with one less option to protect themselves. I am deeply disappointed that with all the official endorsements H383 received (Criminal Defense Lawyers, Chiefs of Police, Sheriffs Association, Prosecuting Attorneys, Idaho Coalition Against Sexual and Domestic Violence and many advocates across the state) that one special interest group would have this amount of power to influence public safety policy. In the interim, I will work with criminal justice professionals and community and legislative stakeholders to figure out how we can put forward a bill to provide protections for people who are sexually assaulted, just like we offer protections for people in domestic violence, stalking, and phone harassment situations. Thank you for your support.
DHS I.G.: 'DHS Components Have Not Fully Complied With Department's Guidelines for Implementing Lautenberg Amendment'
Targeted News Service (USA)
November 19, 2020
https://infoweb.newsbank.com/
WASHINGTON, Nov. 19 -- The Homeland Security Inspector General issued the following report (No. OIG-21-09) entitled "DHS Components Have Not Fully Complied with the Department's Guidelines for Implementing the Lautenberg Amendment" on Nov. 13:
* * *
MEMORANDUM FOR: See Distribution List
FROM: Joseph V. Cuffari, Ph.D., Inspector General
SUBJECT: DHS Components Have Not Fully Complied with the Department's Guidelines for Implementing the Lautenberg Amendment
For your action is our final report, DHS Components Have Not Fully Complied with the Department's Guidelines for Implementing the Lautenberg Amendment.
We incorporated the formal comments provided by DHS, CBP, and ICE.
Consistent with our responsibility under the Inspector General Act, we will provide copies of our report to congressional committees with oversight and appropriation responsibility over the Department of Homeland Security. We will post the report on our website for public dissemination.
Please call me with any questions, or your staff may contact Thomas Kait, Assistant Inspector General for Special Reviews and Evaluations, at (202) 981-6000.
Attachment
Distribution List: Mark A. Morgan, Senior Official Performing the Duties of the Commissioner U.S. Customs and Border Protection; Tony H. Pham, Senior Offical Performing the Duties of the Director, U.S. Immigration and Customs Enforcement; The Honorable James M. Murray, Director, U.S. Secret Service; The Honorable David P. Pekoske, Administrator, U.S. Transportation Security Administration
* * *
HIGHLIGHTS
Why We Did This Evaluation
In 1996, Congress amended the Gun Control Act of 1968 (Lautenberg Amendment) to prohibit individuals convicted of misdemeanor crimes of domestic violence from possessing firearms. We conducted this evaluation to determine whether CBP, Secret Service, ICE, and TSA complied with guidelines for implementing the Lautenberg Amendment.
What We Recommend
We made three recommendations to ensure implementation of departmental requirements related to the Lautenberg Amendment.
What We Found
U.S. Customs and Border Protection (CBP), United States Secret Service (Secret Service), Immigration and Customs Enforcement (ICE), and Transportation Security Administration (TSA) have not fully complied with DHS' guidelines for implementing the Lautenberg Amendment. To illustrate, CBP and Secret Service did not ensure law enforcement officers completed annual Lautenberg Amendment certifications as required. CBP and ICE also did not use available resources to monitor the arrests and convictions of law enforcement officers subject to the Lautenberg Amendment. None of the four components provided domestic violence awareness training to law enforcement officers as required by the implementing guidelines. The DHS Office of Strategy, Policy, and Plans should ensure components are uniformly applying and enforcing the Department's guidelines for implementing the Lautenberg Amendment.
Agency Response
DHS concurred with the recommendations and described corrective actions either already taken or planned to address the findings in this report. We consider recommendations 1 and 3 resolved and open. We consider recommendation 2 resolved and closed.
* * *
Introduction
In 1996, Congress amended the Gun Control Act of 1968 (Lautenberg Amendment) to prohibit individuals convicted of a misdemeanor crime of domestic violence (MCDV) from possessing a firearm. As a result, Federal law enforcement officers, whose jobs require them to possess a firearm, cannot continue to hold their positions if convicted of MCDVs. Several Department of Homeland Security components employ law enforcement officers -- including U.S. Customs and Border Protection (CBP) with a force of approximately 45,000, United States Secret Service (Secret Service) with more than 5,000, and U.S. Immigration and Customs Enforcement (ICE) with more than 12,000.
The Transportation Security Administration (TSA) employees also include law enforcement officers./1
* * *
Background
The Lautenberg Amendment prohibits any person convicted of an MCDV from possessing a firearm./2
A qualifying MCDV under the Lautenberg Amendment consists of any misdemeanor conviction that has as an element: the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim./3
There is no exception for law enforcement officers. Therefore, any law enforcement officer with a qualifying MCDV shall not lawfully possess or receive firearms or ammunition for any purpose, including performance of his or her official duties.
In 2017, then-Acting Deputy Secretary Russell Deyo issued Policy Directive 045-05 (Policy Directive)/4 to ensure department-wide compliance with the Lautenberg Amendment. The Policy Directive instructs components to "ensure officer behavior is consistent with the Department's law enforcement mission, responsibilities, and values" and to clarify the "expectation that its law enforcement personnel will uphold the highest standards of conduct." DHS initially assigned responsibility for overseeing implementation of the Policy Directive to its Law Enforcement Policy Division within the DHS Office of Strategy, Policy, and Plans. According to DHS officials, in May 2019 the Office of Strategy, Policy, and Plans reassigned staff from the Law Enforcement Policy Division to other portfolios, and DHS did not reassign oversight responsibility of the Policy Directive to another group. The officials also stated that the Department re-established the Law Enforcement Policy Office in September 2020 to resume the Lautenberg Amendment oversight functions described in the Policy Directive.
The Policy Directive outlines component and law enforcement officer responsibilities for complying with the Lautenberg Amendment and reporting domestic violence offenses and convictions. The Policy Directive states components must, among other actions:
* require law enforcement officers to report all off-duty reportable law enforcement officer/agency and judicial contact, including MCDV convictions;
* require law enforcement officers to annually certify they have no convictions of an MCDV;
* require domestic violence awareness training for all law enforcement officers; and
* revoke law enforcement officers with a qualifying MCDV conviction their authority to carry a weapon and perform law enforcement duties.
At the component level, CBP, Secret Service, ICE, and TSA identify incidents of domestic violence committed by their law enforcement officers through various methods, including employee self-reporting; partnerships with local law enforcement agencies regarding contact or arrests; periodic employee background checks; and information-sharing agreements with the Federal Bureau of Investigation (FBI). According to component field office personnel, after becoming aware of a domestic violence allegation, the components take steps to protect the interests of the public, including removing firearms from law enforcement officers and immediately suspending their authority to perform law enforcement duties. If the allegation involves an arrest, the components cooperate with local law enforcement in the formal investigation and any related legal proceedings. Law enforcement officers convicted of an MCDV are removed from their positions since they can no longer carry a weapon, which is a condition of their employment.
We conducted this evaluation to determine whether CBP, Secret Service, ICE, and TSA complied with DHS' guidelines for implementing the Lautenberg Amendment. Specifically, we evaluated actions taken by each component to comply with various requirements in the Policy Directive and reviewed all domestic violence-related arrests identified by the four components from January 2016 through December 2018. Of these 344 arrests, we selected a judgmental sample of 162 cases and examined investigative and disciplinary files for each. We identified two cases in which the employee was convicted of a domestic violence offense and removed.
* * *
Results of Evaluation
CBP, ICE, Secret Service, and TSA have not fully complied with DHS's guidelines for implementing the Lautenberg Amendment. We found that CBP and Secret Service did not ensure law enforcement officers completed annual Lautenberg Amendment certifications as required. CBP and ICE also did not use available resources to monitor the arrests and convictions of law enforcement officers subject to the Lautenberg Amendment. None of the four components provided domestic violence awareness training to law enforcement officers as required by the Policy Directive. The DHS Office of Strategy, Policy, and Plans should ensure components are uniformly applying and enforcing the Department's guidelines for implementing the Lautenberg Amendment.
Some Components Have Not Taken Steps to Identify Law Enforcement Officer Arrests or Convictions for Domestic Violence Offenses
CBP and Secret Service did not comply with the Policy Directive's requirement that all law enforcement officers complete an annual Lautenberg Amendment certification stating they do not have an MCDV conviction. While TSA and Secret Service have taken advantage of available FBI monitoring programs to identify law enforcement officer arrests and MCDV convictions through continuous background checks, CBP and ICE have not.
CBP and Secret Service Did Not Enforce Completion of DHS-Required Annual Lautenberg Certification
The Policy Directive requires all law enforcement officers to complete an annual Lautenberg Amendment certification stating they have not been convicted of an MCDV. None of the CBP field offices we visited required law enforcement officers to complete the annual certifications mandated by the Policy Directive.
Management at these CBP field offices told us that they were not aware of the annual certification requirement. In addition, CBP did not provide an implementation plan to DHS to outline how the component planned to comply with the Policy Directive, including the annual certification requirement. The DHS Office of Strategy, Policy, and Plans did not conduct oversight to ensure CBP had implemented this requirement. As a result, since the Policy Directive became effective in January 2017, CBP law enforcement officers have not submitted annual certifications attesting that they have not been convicted of an MCDV the previous year.
Secret Service also did not require law enforcement officers to complete annual certifications during the reviewed timeframe. Secret Service management told us that, in lieu of signing annual certifications, agents signed an annual statement of compliance with the contents of the Secret Service Law Enforcement Manual. However, this manual did not specify agent responsibilities related to the Lautenberg Amendment. The implementation plan Secret Service submitted to the DHS Law Enforcement Policy Division suggested DHS should develop an annual Lautenberg Amendment certification for use by all of the components, but did not specify how Secret Service would comply with the annual certification requirement in the absence of DHS action./5
DHS did not conduct oversight to ensure Secret Service had implemented the certification requirement under the Policy Directive.
Unlike CBP and Secret Service, ICE and TSA both complied with the Policy Directive's annual certification requirement. Every ICE field office and all but one TSA field office we visited provided 100 percent of the annual certifications, documentation we requested. One TSA field office was missing 5 of 115 signed annual certifications from the 2 years we examined; according to TSA, this was due to a clerical error.
CBP and ICE Did Not Use Available Resources to Monitor Law Enforcement Officer Arrests and Convictions for Domestic Violence Offenses
Secret Service and TSA currently enroll all their respective law enforcement agents in FBI monitoring programs that notify the components when an officer is arrested or convicted./6
These monitoring programs help Secret Service and TSA comply with the Lautenberg Amendment by identifying officers arrested for or convicted of an MCDV. The FBI monitoring programs are described below:
* Secret Service receives notifications of law enforcement officer arrests and convictions through the Blue Force program, operated by the FBI Specialized Identity Management Unit. Secret Service enrolls each law enforcement officer in Blue Force upon hire and provides the FBI with the identification and biometric data necessary to match the Secret Service officers against FBI crime databases. As the FBI databases are updated, real-time notifications of Secret Service law enforcement officer arrests and convictions, including those for domestic violence offenses, are sent to Secret Service.
* TSA participates in the FBI Rap Back service, which functions similar to the Blue Force Program and provides the component with continuous monitoring of the law enforcement officers enrolled in the service and notifications of any TSA law enforcement officer arrests and convictions.
Like Secret Service, TSA enrolls all of its officers in the service upon hire and provides FBI with a list of the identifying information necessary to match TSA law enforcement personnel with the FBI crime databases.
In contrast, CBP and ICE do not participate in FBI monitoring programs.
Although these free services are currently available to CBP and ICE, DHS officials told us CBP and ICE have not enrolled their law enforcement officers in these programs because they are awaiting full implementation of an internal DHS technology solution that will provide real-time monitoring of FBI databases for arrests and convictions of DHS law enforcement officers ("continuous evaluation program"). DHS is currently enrolling a portion of each component's population into the continuous evaluation program and expects to complete implementation sometime in 2021.
Components Did Not Provide Required Domestic Violence Awareness Training to Law Enforcement Officers
In January 2017, DHS issued Policy Directive 045-05 as part of "the Department's strong stand against crimes of domestic violence." It requires components to provide: 1) annual domestic violence awareness training for law enforcement officers and their supervisors, and 2) quarterly oral advisement to officers, during quarterly firearms qualifications, of the duty to report any off duty reportable contact with law enforcement. However, CBP, Secret Service, ICE, and TSA did not fully develop plans to implement the Policy Directive and did not comply with most of the training requirements.
DHS' Law Enforcement Policy Division requested each component provide a plan to implement the policy. ICE, TSA, and Secret Service provided implementation plans, which identified component officials or offices responsible for implementation, and ICE and TSA identified the written policies that required revisions in order to meet the requirements of the Policy Directive./7
However, none of the implementation plans described specific actions the components intended to take to comply with the new training requirements. For example, none of the implementation plans specified whether the component would develop a new training course, how the component would deliver the training to law enforcement officers in the field, or when the training would begin.
Additionally, none of the components could provide documentary evidence, such as training records or training slides, to demonstrate they consistently provided either annual awareness training or quarterly oral advisements./8
Finally, law enforcement officers from the 15 field offices we visited across the four components unanimously confirmed that the required domestic violence awareness training was not provided annually to either law enforcement officers or supervisors. The law enforcement officers we asked in the field also told us they were not receiving the mandatory oral advisements during quarterly firearms qualifications.
Moreover, we found that DHS did not conduct oversight of, or provide assistance to, components to ensure they met the Policy Directive requirements. When we asked why, DHS' Office of Strategy, Policy, and Plans told us the Law Enforcement Policy Division, the unit responsible for overseeing implementation of the Policy Directive, was eliminated during a May 2019 reorganization and DHS never reassigned the oversight responsibility.
Notwithstanding this explanation, DHS did not provide documentation of oversight conducted by the Law Enforcement Policy Division between the March 2017 request for implementation plans and when the group was eliminated in May 2019.
* * *
Recommendations
Recommendation 1: We recommend the DHS Under Secretary for the Office of Strategy, Policy, and Plans establish an oversight mechanism to ensure Department components implement DHS Policy Directive 045-05 as required, including:
1. Providing annual domestic violence awareness training for law enforcement officers and their supervisors;
2. Orally advising all law enforcement officers, during quarterly firearms qualifications, of their duty to report when law enforcement contacts them concerning engagement in domestic violence; and
3. Ensuring all law enforcement officers annually complete Lautenberg Amendment certifications.
Recommendation 2: We recommend the CBP Commissioner fully implement the DHS continuous monitoring program to allow for notification and tracking of employee arrests.
Recommendation 3: We recommend the ICE Director fully implement the DHS continuous monitoring program to allow for notification and tracking of employee arrests.
* * *
Management Comments and OIG Analysis
DHS concurred with our recommendations and described corrective actions to address the issues identified in this report. Appendix B contains management comments in their entirety. We also received technical comments to the draft report and revised the report as appropriate. We consider recommendations 1 and 3 resolved and open. We consider recommendation 2 resolved and closed.
A summary of DHS responses and our analysis follows.
DHS Comments to Recommendation 1:Concur. On September 28, 2020, the DHS Office of Strategy, Policy, and Plans re-established the Law Enforcement Policy Office, which will perform the oversight functions related to Lautenberg Amendment requirements, as specified in DHS Policy Directive 045-05. These functions include: 1) collecting and reporting department-wide data on revocation of LEO firearm authorities due to violations; 2) ensuring department-wide compliance with relevant domestic violence training and LEO reporting mandates; and 3) compilation and coordination of component implementation plans for Policy Directive 045-05. Estimated Completion Date: October 29, 2021.
OIG Analysis: We consider these actions responsive to the recommendation, which is resolved and open. We will close this recommendation when we receive documentation confirming that the Office of Strategy, Policy, and Plans has completed collecting revocation information, ensuring policy compliance and compiling implementation plans.
DHS Comments to Recommendation 2:Concur. CBP's Office of Professional Responsibility implemented a continuous evaluation program in June 2018 for all active CBP Federal employees in sensitive security positions. The program conducts real-time vetting checks on 52,000 CBP employees, including all active law enforcement officers who would be subject to the Lautenberg Amendment. The program runs a variety of checks daily and/or weekly, including National Crime Information Center address and secondary inspection checks, as well as screenings in terrorist databases. Adjudicators review any derogatory information and refer verified arrest incidents and protection orders to CBP's Investigative Operations Division.
In addition to CBP's continuous evaluation program, since May 2019, CBP also enrolled all eligible employees in the Office of the Director of National Intelligence's continuous evaluation program, which is part of the security clearance process. This program allows for review of information between periodic reinvestigation cycles. Together, these continuous evaluation programs allow for tracking and notification of employee arrests.
DHS requested that the recommendation be resolved and closed, as implemented.
OIG Analysis: We consider these actions responsive to the recommendation, which is resolved and closed. We received documentation confirming CBP has completed the appropriate corrective actions and has fully implemented continuous monitoring of employee arrests.
DHS Comments to Recommendation 3:Concur. ICE stated that per DHS Memorandum, "DHS Enterprise Continuous Evaluation Program," ICE enrolled 25 percent of personnel occupying national security positions in FY 2019 and 50 percent of personnel occupying national security positions in FY 2020 in the Department's Continuous Evaluation Program. ICE's Chief Security Officer and Office of Professional Responsibility staff will continue to ensure ICE meets the established requirement to enroll 100 percent of its personnel occupying national security positions in the program. Estimated Completion Date: October 29, 2021.
OIG Analysis: We consider these actions responsive to the recommendation, which is resolved and open. We will close this recommendation when we receive documentation confirming that ICE has completed enrollment of all its personnel occupying national security positions.
* * *
Footnotes:
1 The number of TSA law enforcement officers is Sensitive Security Information, which is information TSA has determined that, if publicly released, would be detrimental to transportation security, as defined by Federal Regulation 49 Code of Federal Regulations (C.F.R.) Part 1520.5(a)(3). Accordingly, we have not reported the number of law enforcement officers employed by TSA in this report.
2 18 United States Code (U.S.C.) Sec. 922(g)(9).
3 18 U.S.C. Sec. 921(a)(33)(A)(ii).
4 Policy Directive 045-05, Required Reporting of Off-Duty Contact with Law Enforcement by DHS Law Enforcement Personnel and the Suspension and/or Revocation of Authority to Carry a Firearm or other Weapon and Perform Law Enforcement Duties, January 10, 2017.
5 In June 2019, Secret Service issued a policy requiring compliance with the annual Lautenberg Amendment certification requirement. OIG could not examine the implementation of this new policy for compliance with the DHS Policy Directive because Secret Service had not completed a full cycle of certifications at the time of our review.
6 FBI officials explained that although their programs provide comprehensive monitoring of arrests and convictions of enrolled officers based on a thorough search of FBI databases, they are not foolproof because the underlying FBI databases are dependent upon the accurate and timely reporting of arrests and convictions by state and local jurisdictions.
7 According to the Director for DHS Office of Strategy, Policy and Plans, CBP initially acknowledged it received the Policy Directive, but never submitted a completed plan. CBP did not provide evidence that it took action to implement the Policy Directive.
8 TSA did provide policies referencing oral advisements as part of the Federal Air Marshal Service quarterly training, but we could not ascertain if the training was actually provided.
* * *
MEASURE KEEPING GUNS FROM WRONG HANDS NOT BEING ENFORCED
Record, The (Hackensack, NJ)
December 6, 2020
https://infoweb.newsbank.com/
A federal law barring gun ownership to people convicted of a domestic violence offense, including misdemeanors, was enacted 24 years ago at the stubborn and fiery insistence of the late New Jersey Sen. Frank Lautenberg.
But a recent audit at President Donald Trump's Department of Homeland Security found that the "Lautenberg amendment" as it was known, was not properly enforced within law enforcement ranks of the sprawling DHS bureaucracy.
The department's Office of Inspector General last month found that employees at the agencies under Trump's watch failed to follow agency directives designed to comply with the 1996 law.
Inspectors discovered, for example, that Customs and Border Protection and the Immigration and Customs Enforcement -- the two DHS agencies that have carried out Trump's hardline crackdown on undocumented immigrants -- failed to enroll in free FBI programs that would have flagged agents arrested or convicted for domestic violence abuse. Convicted agents are "removed from their positions" since they are no longer permitted to carry firearms, according to the audit.
Customs and Secret Service did not annually certify that they have not been convicted of domestic violence offenses, the report also said. And all four agencies that were audited -- including the Transportation Service Agency -- failed to provide domestic violence awareness training.
The findings prompted a sharp rebuke from one of the nation's leading gun control advocacy groups.
T. Christian Heyne, vice president of policy at Brady United Against Gun Violence, has singled out the ICE and border patrol units' failure to enroll in the FBI monitoring programs.
"That federal agencies with law enforcement authority have not complied with their legal duty is troubling on its own, but the fact that several of them have eschewed a readily available means to ensure this compliance is a dereliction of duty," Heyne said in a statement to NorthJersey.com and the USA TODAY Network. "The reality is that by intentionally putting their heads in the sand, these agencies could allow convicted domestic abusers to continue to possess firearms and (maintain) law enforcement authority."
In response to the audit, DHS officials said Customs and ICE officers are awaiting full implementation of the DHS' own internal screening system that will provide "real-time" monitoring of the FBI databases. ICE has already enrolled about half of its staff in the program and has targeted next October for full compliance. Customs has also been relying on its own internal screening system, the report said.
The report comes amid an increase in violence within homes as couples and families spend extended time together because of joblessness, school closings and restrictions on public and social gatherings.
Lautenberg's bill was crafted in an earlier era. It was included in a sprawling appropriations bill that had bogged down in bitter, partisan deadlock in September 1996.
At one point, the bill, which amended the Gun Control Act of 1968, sailed through the House with a 97-2 vote. But weeks later, Republican Rep. Bob Barr of Georgia had planned to substitute a stripped-down version that would have allowed exemptions for abusers not convicted by a jury.
It also would have exempted anyone whom police failed to inform about the ban at the time of arrest, thus exempting anyone convicted of abuse before the ban went into effect.
Lautenberg, who died in 2013, decried the changes as a "sellout to the most radical fringe of the gun lobby." He delivered a scathing condemnation of Barr's version on the Senate floor, threatened to block any bill that contained the new language, and accused Republicans of opening loopholes in the law large enough to "drive a truckload of wife beaters through."
The law proved to be far from foolproof.
Devin Patrick Kelly, the shooter in the massacre in Sutherland Springs, Texas, church massacre in 2017, was barred from owning or possessing a firearm after his conviction on domestic violence charges during a court-martial while in the U.S. Air Force.
An investigation revealed that the Air Force failed to report the conviction to the FBI's National Crime Information Center database. The incident propelled passage of a 2017 law that created penalties for not reporting the conviction data.
2021: Lautenberg DV Gun Ban - News Articles And Reports
Peters & Menendez Lead Push for DHS to Enforce ‘Lautenberg Amendment’ to Keep Firearms Out of Hands of Domestic Abusers
Federal law enforcement agencies failed to screen their ranks for domestic abusers
Homeland Security And Government Affairs
February 05, 2021
WASHINGTON, D.C. – U.S. Senators Gary Peters (D-MI), Chairman of the Senate Homeland Security and Governmental Affairs Committee, and Bob Menendez (D-NJ) today led several of their colleagues in urging the Department of Homeland Security to establish a zero-tolerance stance for domestic violence and take immediate steps to enforce a federal law that keeps firearms out of the hands of those convicted of domestic violence or subject to a restraining law—including those who carry a federal badge.
The statute, known as the “Lautenberg Amendment” to the Gun Control Act of 1968, is named for the late New Jersey U.S. Sen. Frank Lautenberg and has resulted in a 17% drop in murders of intimate female partners, according to a 2017 Stanford University study. The amendment makes it a felony for anyone convicted of a misdemeanor crime of domestic violence to ship, transport, receive or possess firearms without exceptions for federal law enforcement officers.
“Regrettably, some of the nation’s law enforcement agencies charged with protecting the public have failed to comply with this important law,” the Senators wrote in a letter to DHS Secretary Alejandro Mayorkas. “We request that DHS act swiftly to ensure that federal law enforcement meaningfully addresses domestic violence within its ranks. In addition to mandating domestic violence training at all DHS law enforcement agencies, we request that you take action to ensure that all federal officers are appropriately screened for domestic violence convictions on an ongoing basis.”
The DHS Inspector General (IG) found last year that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) failed to screen their agents for domestic abusers through the Federal Bureau of Investigation (FBI) databases. The IG investigation also revealed these agencies, along with the Secret Service and Transportation Security Administration (TSA), failed to provide required domestic violence awareness training to law enforcement officers.
The Senators also requested DHS report back to Congress within six months on its progress implementing the Lautenberg Amendment to ensure full compliance.
Joining Peters and Menendez on the letter are U.S. Senators Cory Booker (D-NJ), Patty Murray (D-WA), Sherrod Brown (D-OH), Edward Markey (D-MA), Richard Blumenthal (D-CT), Chris Van Hollen (D-MD), Tim Kaine (D-VA), Amy Klobuchar (D-MN), Jeff Merkley (D-OR) and Mazie Hirono (D-HI).
Full text of the letter is below and available here.
Dear Secretary Mayorkas:
We are writing to request that the Department of Homeland Security (DHS) establish a clear zero-tolerance stance for domestic violence and take immediate steps to enforce the current federal law known as the “Lautenberg Amendment.” It is imperative that DHS keep firearms out of the hands of those convicted of domestic violence or subject to a restraining order.
Nearly twenty-five years ago, Congress adopted an amendment by former Senator Frank Lautenberg to prevent domestic abusers from obtaining firearms. The Lautenberg Amendment to the Gun Control Act of 1968 makes it a felony for anyone convicted of a misdemeanor crime of domestic violence to ship, transport, receive or possess firearms. There are no exceptions for federal law enforcement officers. A 2017 Stanford study found that implementing this amendment resulted in a seventeen percent decrease in murders of intimate female partners.
Regrettably, some of the nation’s law enforcement agencies charged with protecting the public have failed to comply with this important law. Last year, the DHS Inspector General found that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) failed to check their agents through the FBI databases that would have flagged domestic abusers. In addition, the Inspector General noted that CBP, ICE, Secret Service, and Transportation Security Administration (TSA) neglected to provide the required domestic violence awareness training to law enforcement officers.
We request that DHS act swiftly to ensure that federal law enforcement meaningfully addresses domestic violence within its ranks. In addition to mandating domestic violence training at all DHS law enforcement agencies, we request that you take action to ensure that all federal officers are appropriately screened for domestic violence convictions on an ongoing basis. Finally, we respectfully ask that you report back to Congress within six months of receipt of this letter on your progress to ensure that DHS is fully compliant with the Lautenberg Amendment.
Thank you for your attention to this serious issue. We look forward to working with you on this important issue.
Despite federal law, many domestic abusers keep their guns in Mississippi
Clarke County Tribune, The (MS)
March 26, 2021
https://infoweb.newsbank.com/
This article is the third in a series about how the criminal justice system fails domestic violence victims in Mississippi.
Last year, 23-year-old Phoenicia Ratliff of Canton was kidnapped and shot by her ex-boyfriend before he turned the gun on himself. Just a week earlier, he had been arrested on domestic violence and stalking charges.
Phoenicia Ratliff, who was killed in 2020.
Ratliff was one semester short of graduating from Jackson State University. She left behind a two-year-old little girl.
"To know her was to love her," her mother Suzanne Ratliff said. "She was always smiling — you never knew what was really going on with her because she smiled through everything."
Her tragic case illustrates the reality of a startling statistic: that the presence of a gun in a domestic violence situation increases the risk of homicide by 500%. And one national study on intimate partner homicides showed women are more likely to be murdered with a gun than all other means combined.
In Mississippi, where gun laws don't mirror the prohibitions placed on domestic violence offenders in federal law, the statistic sounds a loud alarm bell.
Under federal law, anyone convicted of a domestic violence crime, whether a misdemeanor or felony, is not allowed to purchase or possess a firearm. The same goes for anyone with a domestic abuse protection order (a specific type of restraining order) against them. The law is commonly referred to as the Lautenberg Amendment.
Thirty states and the District of Columbia have their own laws mirroring these federal prohibitions, but Mississippi does not.
Across the state, officials are hesitant to take away offenders' guns, and in some cases even charge abusers with other crimes, such as simple assault, to avoid the task, a top law enforcement official told Mississippi Today.
In Forest Municipal Court, for example, Judge Norman Brown has ordered guns returned to domestic violence offenders, according to four sources, including current and former employees of the police department.
"He has literally handed the suspects their guns back in court … and that's with us showing there's a history of a conviction, not just being charged," said one former Forest police officer who now works with another agency.
The officer remembers one particularly violent individual who had multiple run-ins with the law, including assault on a law enforcement officer and at least one misdemeanor domestic violence conviction.
"He still said that's (his) right to own a gun," the officer said.
Brown declined to answer questions from Mississippi Today, saying he does not discuss cases.
In Grenada, guns are never seized from individuals convicted of domestic violence or who are the subject of domestic abuse protections, according to an individual who works in the county court system.
These crimes aren't being prosecuted at the federal level, either. Since 2013, the U.S. Southern District of Mississippi's office prosecuted only three cases dealing with the unlawful possession of a gun by someone who had previously been convicted of a domestic violence crime. There were no cases prosecuted for the illegal possession of a firearm for someone under a domestic violence protection order in that same time period.
"We do train both law enforcement and prosecutors on due process requirements associated with the Lautenberg Amendment," said Colby Jordan, director of communications for the Attorney General's office.
The office declined to answer any other questions about the issue, including whether Attorney General Lynn Fitch would or would not push lawmakers to develop an accompanying state law or what the office is doing aside from training on this issue.
Efforts to align state and federal laws have proved futile in recent years. Last year, the National Rifle Association and global pandemic stomped out even the earliest conversations, according to Luke Thompson, former president of the Mississippi Association of Chiefs of Police and the former chief of police in Byram.
The idea was to modify the existing state statute prohibiting possession of a weapon by a convicted felon by adding "or otherwise prohibited by" the relevant federal law.
"Any type of gun legislation in Mississippi is met with a great amount of resistance, and the (National Rifle Association) got a hint on that and bashed it real quick before we had a chance to have discussions with people and say, 'This is what we're trying to do,'" said Thompson.
The National Rifle Association did not respond to Mississippi Today's request for comment on the issue.
After being painted as "pro-gun control" and supportive of "far-left" gun laws, Thompson penned a letter in February 2020 to Speaker of the House Philip Gunn and all House Republicans explaining his position.
He described a situation that captured the problems that arise because of the lack of a state law. Officers in his department responded to an incident in which a man fired a round from his gun through the ceiling of his home during an argument with his estranged wife. During the investigation, his officers discovered he had a domestic violence conviction and seized his weapons.
"Due to domestic offense being a state misdemeanor, federal authorities would not prosecute the possession case," Thompson explained, going on to describe how he did not return the weapons to the offender, even when the offender and his lawyer began repeatedly contacting him over a five-year period and accusing him of illegally seizing the guns.
So Thompson set out to add the federal law language to the state law detailing which people cannot legally own or buy a gun.
"The intent was to give police chiefs an option when federal authorities would not assist and to keep local law enforcement officers safe," he continued in his letter.
Although he never heard back from Gunn or other lawmakers, House Judiciary B Chairman Nick Bain said he's aware of the issue Thompson was trying to address.
"I'm aware of an inconsistency there. I'm not opposed to talking about it, but I don't want to go into a situation where we're having more gun control than what is needed," said Bain, a Republican from Corinth. "But I'm not opposed to having a discussion about it with our federal prosecutors, federal authorities and local state authorities."
Bain's counterpart in the Senate, Sen. Brice Wiggins responded similarly, saying he was open to a debate about possible legislation.
Advocates have kept their distance from the issue in recent years, though they see firsthand the failure to remove guns from the hands of abusers.
Wendy Mahoney, executive director of the Mississippi Coalition Against Domestic Violence, said she remembers having some talks years ago.
There was always pushback, she said. She remembers one person questioning where law enforcement would put the seized guns. Then last year, she saw what happened to Thompson when he brought the issue to lawmakers.
"I don't think we have the support to even have an open conversation right now, even though we know … in most domestic violence situations, when a gun is involved, the correlation is very high with imminent danger and death," Mahoney said. "That should be enough to have that conversation."
The gap in federal and state law led former U.S. Attorney Mike Hurst to launch an initiative last year to combat what he said is a "lack of knowledge" among law enforcement and courts about federal restrictions on firearm ownership. The initiative, named "Operation Phoenicia" for Ratliff, continues today under the current U.S. attorney.
"Operation Phoenicia" involves educating and training law enforcement and judges about federal domestic violence laws in addition to other efforts to crack down on domestic violence offenders with guns.
Hurst, along with his then counterpart in the northern district of the state, vowed to prioritize prosecution of these crimes, and the efforts continue under his successor, acting U.S. Attorney Darren LaMarca. The plan is to begin by identifying individuals in the city of Jackson who currently have a domestic violence protective order or a domestic violence misdemeanor and calling them into the office to put them on notice.
"We tell them it is a federal crime for them to possess a firearm and we tell them, 'If we catch you, we will prosecute you federally,'" Hurst said.
They are also issuing what is referred to as "call-outs," or working with the Bureau of Alcohol, Tobacco, Firearms and Explosives to put domestic violence victims on notice if their abuser is attempting to buy a gun.
But as of March, no such cases have been prosecuted yet, nor have any call-ins taken place due to the pandemic, according to LaMarca. Call-outs have been ongoing through the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The office is also working to ensure local state and local officials understand certain standards must be met in a domestic violence crime in order for federal prosecution to occur. For example, one deals with whether there was use or attempted use of force, while another deals with the type of relationship the victim has with the perpetrator.
LaMarca said he is collaborating with state and local officials to more fully identify certain specifics of domestic violence offenses, the relationship between the two involved individuals and the amount and type of involvement the offender has with the legal system. By doing that, officials can better understand whether the offense in question falls under the Lautenberg Amendment.
Mahoney, whose organization works with domestic violence shelters and victims, said the mixed messages and lack of enforcement around domestic abusers with guns creates fear and distrust in victims.
"If you're not taking away their firearm, you're invoking more fear" in an already fearful victim, she said. "It makes the victim question, 'Is the system really on my side to help me?'"
GAO Report To Congressional Committees
Domestic Abuse: Actions Needed To Enhance DOD's Prevention, Response and Oversight
May 01, 2021
Sen. Shaheen Joins Letter Calling for Protection of Survivors of Domestic Gun Violence Through Full Enforcement of 'Lautenberg Amendment'
Targeted News Service (USA)
May 4, 2021
https://infoweb.newsbank.com/
WASHINGTON, May 4 -- Sen. Jeanne Shaheen, D-New Hampshire, issued the following news release:
U.S. Senator Jeanne Shaheen (D-NH) joined a letter led by Senator Bob Menendez (D-NJ) urging the Department of Homeland Security (DHS) to take additional steps to ensure federal law enforcement agencies fully comply with the Lautenberg Amendment. The Lautenberg Amendment makes it a felony for anyone convicted of a misdemeanor crime of domestic violence to ship, transport, receive or possess firearms without exceptions for law enforcement officers. Since its enactment as part of the Gun Control Act of 1968, murders of intimate female partners have dropped by 17%, according to a 2017 Stanford University study.
"We are writing to urge the Department of Homeland Security (DHS) to take additional steps to ensure federal law enforcement agencies are in full compliance with the Lautenberg Amendment," said the Senators. "In light of the recent sharp uptick in mass shootings and the escalating gun violence crisis in underserved communities, it is more critical than ever that federal agencies fully enforce all relevant existing laws to keep guns out of the wrong hands."
They continued: "We look forward to working with you to ensure DHS is doing everything required under current law to keep guns out of the hands of individuals who pose an unacceptable risk. Thank you for your efforts to date and your prompt attention to this timely matter."
Last year, the DHS Inspector General (IG) reported that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) failed to screen their agents for domestic abusers through the Federal Bureau of Investigation (FBI) databases. The IG investigation also revealed these agencies, along with the Secret Service and Transportation Security Administration (TSA), failed to provide required domestic violence awareness training to law enforcement officers. Following these serious revelations, the new administration has already taken critical steps to ensure law enforcement agencies are complying with the life-saving Lautenberg Amendment; however, questions remain.
Senators Cory Booker (D-NJ), Sherrod Brown (D-OH), Chris Van Hollen (D-MD), Ed Markey (D-MA), Richard Blumenthal (D-CT), Tim Kaine (D-VA), Jeff Merkley (D-OR) and Amy Klobuchar (D-MN) also signed onto the letter.
Throughout the pandemic, Senator Shaheen has worked to provide more resources and services to domestic violence survivors nationwide. She helped lead calls to Congressional leadership to include additional funding to support the victims of child abuse, domestic violence and dating violence in COVID-19 response legislation. Shaheen helped introduce legislation with Senator Klobuchar (D-MN) that would close what is referred to as the "boyfriend loophole" to prevent people who have abused dating partners from buying or owning firearms and stop convicted stalkers from possessing guns. She also recently helped introduce the Lori Jackson Domestic Violence Survivor Protection Act, which is narrowly crafted to close loopholes that allow domestic abusers to legally obtain weapons.
Shaheen is a leader in Congress on efforts to combat domestic and sexual violence, and to bolster resources to help survivors stay safe, recover and seek justice. Last year, she visited the New Hampshire Coalition Against Domestic & Sexual Violence (NHCADSV) in Concord where she met with NHCADSV's leadership and representatives from crisis centers to hear more about the impact COVID-19 has had on survivors and the state's crisis centers.
Senator Shaheen has led efforts in the Senate to establish basic rights and protections for victims of domestic violence and sexual assault. Her bill, the Survivors' Bill of Rights Act, was signed into law in 2016 and created the first federally codified rights specifically for sexual assault survivors and for the first time allowed survivors the opportunity to enforce those rights in federal court. In 2019, Shaheen introduced the bipartisan, bicameral Survivors' Bill of Rights in the States Act to build on the Survivors' Bill of Rights Act by incentivizing states to pass legislation that guarantees the survivors rights included in the federal legislation. Senator Shaheen - through her leadership on the Senate Appropriations subcommittee that funds the Office on Violence Against Women (OVW) - once again successfully added the highest funding amount ever for Violence Against Women Act programs in the fiscal year (FY) 2021 government funding.
* * *
Dear Secretary Mayorkas,
We are writing to urge the Department of Homeland Security (DHS) to take additional steps to ensure federal law enforcement agencies are in full compliance with the Lautenberg Amendment. While we appreciate the actions your agency's representative described in her response to our February 5, 2021 letter, we believe DHS can do more to prevent domestic abusers from accessing and possessing firearms. In light of the recent sharp uptick in mass shootings and the escalating gun violence crisis in underserved communities, it is more critical than ever that federal agencies fully enforce all existing laws to keep guns out of the wrong hands.
The Lautenberg Amendment prohibits individuals convicted of misdemeanor domestic violence crimes from possessing firearms. There is no exception for law enforcement officers. In November 2020, the DHS Office of the Inspector General (OIG) reported that U.S. Customs and Border Protection (CBP), the United States Secret Service (USSS), Immigration and Customs Enforcement (ICE), and the Transportation Security Administration (TSA) were not fully complying with DHS's Lautenberg Amendment implementation guidelines.
We commend DHS for taking action in response to the OIG's findings and our previous letter, including the reinstatement of the central office tasked with ensuring DHS-wide compliance with the Lautenberg Amendment. Despite this important progress, we believe there may still be gaps in compliance. For example, the OIG's report stated that none of the DHS law enforcement agencies provided the required annual domestic violence prevention trainings. While your office's March 26, 2021 response letter indicated that the agencies updated their official policies to require such trainings, it is unclear if and when agencies implemented the trainings.
Additionally, the OIG's report found that CBP and ICE were not using FBI's databases to monitor the arrests and convictions of law enforcement officers. These systems flag domestic abuse convictions and are helpful for ensuring compliance with the Lautenberg Amendment. Your agency's response letter noted that ICE is on track to implement an alternative database by the end of 2021, but provided no information regarding CBP's progress in this area.
In light of these concerns, we would appreciate responses to the following questions no later than May 14, 2021:
* Your agency's response letter stated that DHS's Law Enforcement Policy team will "ensure DHS-wide compliance with relevant domestic violence trainings." What is the status of such trainings at CBP, USSS, TSA, and ICE? Please provide any available statistics regarding the implementation of the required domestic violence prevention trainings at each of the four listed agencies.
* Your agency's response letter stated that ICE is in the process of implementing a database to monitor the arrests and convictions of its law enforcement officers. TSA and USSS already have such systems in place. Is CBP implementing a similar database to flag domestic abuse convictions? If so, please provide a brief description and an implementation timeline for both ICE and CBP.
* The OIG's November 2020 report found that CBP and USSS were not requiring their law enforcement officers to complete the required annual Lautenberg Amendment certification stating they have no domestic violence misdemeanor convictions. In the case of USSS, the OIG specifically stated the annual statement of compliance the contents of the Secret Service Law Enforcement Manual was insufficient. Have CBP and USSS implemented the compliant Lautenberg Amendment certification processes? If so, please provide a brief description and implementation timelines for the certification processes at CBP and USSS.
Finally, we respectfully reiterate our request that your agency report back to Congress within six months of receipt of our initial February 5, 2021 letter regarding its progress towards achieving full compliance with the Lautenberg Amendment.
We look forward to working with you to ensure DHS is doing everything required under current law to keep guns out of the hands of individuals who pose an unacceptable risk. Thank you for your efforts to date and your prompt attention to this timely matter.
GAO Issues Report: Actions Needed to Enhance DOD's Prevention, Response, Oversight
Targeted News Service (USA)
May 7, 2021
https://infoweb.newsbank.com/
WASHINGTON, May 7 -- The Government Accountability Office has issued a report (GAO-21-289) entitled "Domestic Abuse: Actions Needed to Enhance DOD's Prevention, Response, and Oversight".
The report was sent to Sen. Jack Reed, D-Rhode Island, chairman, Sen. James M. Inhofe, R-Oklahoma, ranking member of the Senate Armed Services Committee, Rep. Adam Smith, D-Washington, chairman, and Rep. Mike Rogers, R-Alabama, ranking member of the House Committee, on May 6, 2021. Here are excerpts of summaries associated with the report.
What GAO Found: "The Department of Defense (DOD) met a statutory requirement to collect and report data for incidents that it determined met its criteria for domestic abuse. In fiscal years 2015-2019, DOD determined that over 40,000 domestic abuse incidents met its criteria (see figure), of which 74 percent were physical abuse. However, DOD has not collected and reported accurate data for all domestic abuse allegations received, including those that did not meet DOD's criteria, as statutorily required. Thus, DOD is unable to assess the scope of alleged abuse and its rate of substantiation. In addition, despite a statutory requirement since 1999, DOD has not collected comprehensive data on the number of allegations of domestic violence--a subcategory of different types of domestic abuse that constitute offenses under the Uniform Code of Military Justice--and related actions taken by commanders. Improving collection of these data could enhance DOD's visibility over actions taken by commanders to address domestic violence.
DOD and the military services have taken steps to implement and oversee domestic abuse prevention and response activities, but gaps exist in key areas. For example, the military services perform limited monitoring of installation incident-screening decisions and therefore lack reasonable assurance that all domestic abuse allegations are screened in accordance with DOD policy. In addition, while DOD and the military services have taken steps to promote awareness of reporting options and resources, DOD has not fully addressed challenges in reaching its audience, or developed metrics to assess the effectiveness of its awareness efforts. As a result, DOD and the military services may miss opportunities to provide available resources to victims.
The military services have developed domestic abuse prevention and response training for key personnel that meets some DOD requirements. For example, installation Family Advocacy Programs provide such training to commanders and senior enlisted advisors, but the training GAO assessed from a nongeneralizable sample of 20 installations did not consistently cover all DOD-required topics, and the services have not provided guidance to ensure that training addresses these requirements. As a result, commanders and senior enlisted advisors may not be aware of key responsibilities for domestic abuse prevention and response."
Why GAO Did This Study: "Domestic abuse can result in devastating personal consequences and societal costs, and according to DOD, is incompatible with military values and reduces mission readiness. In fiscal year 2019, the military services recorded 8,055 incidents that met DOD's criteria for domestic abuse.
House Reports 116-120 and 116-333 included provisions for GAO to review the military services' efforts to prevent and respond to domestic abuse, including domestic violence. This report examines, among other objectives, the extent to which (1) DOD has met statutory requirements to collect and report complete data on reports of domestic abuse, and describes how many incidents were recorded by DOD in fiscal years 2015-2019; (2) DOD and the military services have implemented and overseen domestic abuse prevention and response activities in accordance with DOD policy; and (3) the military services have developed domestic abuse training for key personnel that meets DOD requirements. GAO analyzed program data, policies, and guidance; assessed documents from a nongeneralizable sample of 20 military installations; and interviewed 68 domestic abuse survivors as well as DOD, service, and civilian officials."
What GAO Recommends: "GAO is making 32 recommendations, including that DOD improve its data collection and awareness efforts and that the military services improve monitoring of incident screening and provide guidance for training of key personnel. DOD concurred and described actions planned or underway, as discussed in the report."
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May 6, 2021
To: The Honorable Jack Reed, Chairman, The Honorable James M. Inhofe, Ranking Member, Committee on Armed Services, United States Senate
The Honorable Adam Smith, Chairman, The Honorable Mike Rogers, Ranking Member, Committee on Armed Services, House of Representatives
Domestic abuse, including physical, emotional, or sexual abuse and neglect committed by a spouse or intimate partner, can result in devastating personal consequences and is a significant public health issue that engenders substantial societal costs./1 According to the Department of Defense (DOD), domestic abuse is incompatible with military values and reduces mission readiness.
In fiscal year 2019, the military services recorded 8,055 incidents that met DOD's criteria for domestic abuse./2 DOD defines domestic abuse as a pattern of behavior resulting in emotional or psychological abuse, economic control, or interference with personal liberty that is directed toward a current or former spouse, a person with whom the abuser shares a child in common, or a current or former intimate partner with whom the abuser shares or has shared a common domicile./3 In addition, DOD defines domestic violence, which is an offense under the Uniform Code of Military Justice (UCMJ), as a subcategory of domestic abuse./4 DOD categorizes the types of domestic abuse--including domestic violence--as physical, emotional, sexual, or neglect.
Domestic abuse in the military has been a subject of congressional concern for over 20 years. From 2000 through 2003, DOD convened a congressionally directed Defense Task Force on Domestic Violence, which issued three reports containing nearly 200 recommendations for improvement. In 2006, we reported on the status of these recommendations, finding that further management action was needed to improve domestic violence data tracking, guidance, and training, among other things. We made seven recommendations for improvement in these areas./5 Subsequently, DOD took action to address three recommendations related to entering actions taken by commanders in response to domestic violence into law enforcement data systems, establishing a communications strategy to inform DOD and service officials of new guidance, and developing chaplain guidance and training concerning privileged communications./6
In 2010, we found that sustained leadership and oversight were needed to improve DOD's prevention and treatment of domestic abuse, and we recommended that DOD develop an oversight framework to assess the effectiveness of its efforts and finalize a key policy./7 Subsequently, in 2015, DOD issued an instruction and manual for the Family Advocacy Program (FAP)--a DOD program that is intended to prevent and respond to domestic abuse in military families, among other things--along with an oversight framework in 2016./8 However, the Office of the Under Secretary of Defense for Personnel and Readiness--which is responsible for FAP policy and oversight--has been led by 13 officials in turn since 2010, including eight in an acting capacity. In 2019, the DOD Office of Inspector General found that military service law enforcement organizations did not consistently comply with DOD policies when responding to adult nonsexual incidents of domestic violence./9
House Reports 116-120 and 116-333, accompanying proposed bills for the National Defense Authorization Act for Fiscal Year 2020, included provisions for us to report on the military services' efforts to prevent and respond to domestic abuse, including domestic violence./10 This report assesses the extent to which (1) DOD has met statutory requirements to collect and report complete data on reports of domestic abuse, and describes how many incidents were recorded by DOD in fiscal years 2015-2019; (2) the military services have issued domestic abuse policies in accordance with DOD policy and taken steps to ensure memoranda of understanding are appropriately established with civilian response organizations; (3) DOD and the military services have implemented and overseen domestic abuse prevention and response activities in accordance with DOD policy; and (4) the military services have developed domestic abuse training for key personnel that meets DOD requirements and tracked training completion for commanders and senior enlisted advisors./11
For the first objective, we reviewed DOD domestic abuse data and annual reports against statutory and policy requirements related to the collection and reporting of domestic abuse data. Specifically, we evaluated DOD's annual reports on Child Abuse and Neglect and Domestic Abuse in the Military for fiscal years 2016-2019 against the requirements set forth in Section 574 of the National Defense Authorization Act for Fiscal Year 2017./12 We also evaluated data related to domestic violence and related actions taken by commanders for fiscal years 2015 through 2019, as well as associated collection procedures, against the requirements of Section 594 of the National Defense Authorization Act for Fiscal Year 2000 and DOD policies related to responsibilities for collecting such data./13 We determined the control environment and information and communication components of the Standards for Internal Control in the Federal Government were significant to this objective, along with the underlying principles that management should establish an organizational structure, assign responsibility, and delegate authority and should use quality information and communicate the information internally and externally to achieve the entity's objectives./14
To determine how many incidents of domestic abuse were recorded by DOD during fiscal years 2015 through 2019, we analyzed FAP data from the military services to determine the number and characteristics of domestic abuse incidents reported to the military from fiscal years 2015 through 2019. We selected data from this time frame because it constituted the most recent and complete data available at the time of the review. We also analyzed domestic violence incident and command action data collected by DOD FAP annually from the military services during fiscal years 2015 through 2019 to determine the number and types of domestic violence incidents and actions taken by commanders. We selected data from this time frame because it was consistent with the period that the DOD FAP data collection requirement was in place.
We assessed the reliability of incident and command action data by reviewing the data for errors, omissions, and inconsistencies; reviewing documentation on data collection procedures and systems; interviewing cognizant officials; and administering questionnaires on data collection and synthesis. We determined that the FAP incident data were sufficiently reliable to describe the number and types of incidents that met DOD's criteria for domestic abuse across the services and the number of total allegations each for the Army, the Air Force, and the Marine Corps during fiscal years 2015 through 2019./15 We found that the FAP command action data were of undetermined reliability due to the military services' different compilation processes, but we present the data in this report because they are the most comprehensive data available to DOD decision makers to determine the number and type of command actions taken.
For the second objective, we reviewed military service FAP and domestic abuse policies against key elements of DOD Instructions 6400.01 and 6400.06, including responsibilities of the military services, commanders, and FAP./16 We also reviewed memoranda of understanding (MOU) between military and civilian domestic and sexual response organizations drawn from a nongeneralizable sample of 20 installations that we selected to reflect a range of installations' volume of domestic abuse incidents during fiscal years 2015 through 2019. We evaluated 45 MOUs provided by these 20 installations against content requirements in DOD Instruction 6400.06. We assessed the services' monitoring of these MOUs against requirements in DOD Instructions 6400.01 and 1342.22./17 In addition, to obtain perspectives on coordination of domestic abuse prevention and response efforts between military and civilian organizations, we interviewed officials from four installations and four civilian organizations proximate to those installations.
For the third objective, we reviewed documentation for a nongeneralizable sample of 80 domestic abuse incidents from the 20 selected installations to determine the installations' adherence to key FAP program standards identified in DOD Manual 6400.01 and responsibilities in DOD Instruction 6400.06./18 This review included documentation related to four domestic abuse incidents at each installation. The four incidents included two that were determined to meet DOD's criteria for domestic abuse and two that were determined not to meet these criteria. We also selected four installations, one installation per military service, and conducted 13 or 14 interviews with installation personnel from each one who have roles in responding to domestic abuse. We selected the installations to reflect a range of volume of domestic abuse incidents, among other factors.
We listened by phone to an Incident Determination Committee (IDC) proceeding--the process used to determine whether an allegation meets DOD's criteria for domestic abuse--at each of the four installations and at two additional installations per service to assess the extent to which the IDCs were conducted in accordance with DOD policy. For each military service, we assessed installation FAP certification status and processes against DOD requirements for certification scope and periodicity. We also conducted voluntary, confidential, semi-structured interviews with 68 survivors of domestic abuse who were military servicemembers, spouses, or intimate partners, to obtain their perspectives on the military's domestic abuse prevention and response efforts./19
In key areas, such as risk assessment and incident determination, we evaluated DOD and the military services' implementation, oversight, and planning against the Standards for Internal Control in the Federal Government and, as applicable, the Guide to the Project Management Body of Knowledge (PMBOK(R) Guide)./20 We determined that the control activities, information and communication, and monitoring components of internal control were significant to this objective, along with the underlying principles that management should design control activities to achieve objectives and respond to risks, use and externally communicate quality information, and remediate internal control deficiencies on a timely basis.
In addition, we determined the risk assessment and control environment components of internal control were significant to the objective, along with the underlying principles that management should define program objectives in measurable terms so that performance toward achieving those objectives can be assessed; identify, analyze, and respond to risks related to achieving defined objectives; and oversee the design, implementation, and operation of the entity's internal control system.
For our fourth objective, we evaluated domestic abuse-related training materials for all servicemembers, commanders and senior enlisted advisors, victim advocates, and chaplains to assess their adherence to DOD requirements specified in DOD Instructions 6400.01 and 6400.06, and our Guide for Strategic Training and Development Efforts./21 In addition, we reviewed available training completion data for commanders and senior enlisted advisors to assess the extent to which these personnel received training within the time frames prescribed by DOD Instruction 6400.01 and training completion was monitored consistent with Standards for Internal Control in the Federal Government. We determined that the information and communication component of internal control was significant to this objective, along with the underlying principle that management should receive quality information about the entity's operational processes. We assessed the reliability of the training completion data by reviewing the data for errors, omissions, and inconsistencies; reviewing documentation on data collection requirements and procedures; interviewing cognizant officials; and administering questionnaires on data collection and synthesis. We determined that the data were not sufficiently reliable to report on the completion of the training, which is discussed in more detail later in this report.
For all objectives, we interviewed relevant DOD and military service officials regarding policies, procedures, and responsibilities related to domestic abuse prevention and response. We also interviewed officials from six domestic abuse related nonprofit organizations to obtain their perspectives on leading practices in domestic abuse prevention and response, both generally and in relation to military families. Appendix I provides additional details about our objectives, scope, and methodology.
We conducted this performance audit from September 2019 to May 2021 in accordance with generally accepted government auditing standards.
Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.
See footnotes here.
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Conclusions
Domestic abuse can devastate servicemembers and their families, and it presents profound challenges to the military that include diminished mission readiness. While DOD has acknowledged the impact of domestic abuse and taken various actions to improve its prevention and response capacity, significant gaps exist. For example, DOD has collected and annually reported some required data, such as the number and type of incidents that meet its criteria for domestic abuse. However, it has not met statutory requirements to collect data on all domestic abuse allegations received or the number of allegations received of domestic violence and related command actions. As a result, DOD has limited visibility of the rate at which allegations of domestic abuse are determined to meet its criteria and of the number and type of command actions taken in response to the criminal offense of domestic violence. Until DOD takes action to improve its data collection and reporting, decision makers in Congress and DOD will lack key information needed to evaluate the effectiveness of DOD's prevention and response efforts.
In addition, while each military service has established FAP policies and memoranda of understanding with civilian response organizations that are generally consistent with DOD requirements, gaps exist in service policies for civilian protective orders and service-level monitoring of memoranda of understanding with civilian response organizations which, if addressed, would present opportunities to better coordinate with civilian entities to support domestic abuse victims. For example, by issuing DOD-required regulations that address violation of civilian protective orders, the Army, the Navy, and the Air Force may better ensure that members of the coordinated community response, including victim advocates and commanders, are aware of and communicate that violating a civilian protective order is punishable under the UCMJ and thereby enhance the effectiveness of these orders. Further, by developing a formal process, such as through certification reviews, to ensure installation FAPs engage in memoranda of understanding with civilian organizations, as appropriate, each military service can improve its ability to ensure servicemembers and families have access to key domestic abuse resources and services.
Although DOD and the military services have taken steps to implement domestic abuse prevention and response activities, gaps also exist in key areas, including for initial screening of reports, risk assessment, and creating awareness of reporting options and resources. Specifically, the military services have developed processes for screening of allegations and tools for assessing risk, but no service has developed a timely, consistent process to monitor the screening of allegations at installations, and the Army, Navy, and Marine Corps have not issued guidance to specify the responsibilities for completing risk assessment tools. The military services and DOD have also taken several approaches to create awareness of reporting options and resources for families experiencing domestic abuse, but continue to face challenges that DOD has not comprehensively addressed through a communications strategy or performance metrics. Further, the Army has not yet fully implemented the IDC process for determining whether allegations meet DOD's criteria for domestic abuse--although the IDC has been required across the department since 2016--and its plan for doing so remains incomplete. By taking action to ensure consistent screening and risk assessment and improve awareness efforts across the department, DOD and the military services can improve their ability to consistently identify instances of abuse and provide available safety measures and resources to servicemembers and families affected by abuse. Also, without updating its schedule and milestones and identifying and assigning the necessary resources for its implementation of the IDC Army-wide, the Army may be more likely to experience further challenges in implementing this key process, resulting in a heightened potential for inconsistency in the response to domestic abuse across the department.
Similarly, while DOD and the military services have taken steps to conduct oversight of domestic abuse prevention and response, gaps exist in DOD and service-level oversight of IDC proceedings and visibility of command actions related to domestic violence incidents. By taking actions to enhance oversight of IDC proceedings, DOD, the Army, and the Air Force can better ensure these proceedings are conducted consistently and in accordance with DOD guidance. In addition, by assessing its current model and alternative models for determining dispositions--or command actions--for domestic violence incidents, DOD may be better positioned to identify the effects of such actions on victims and alleged abusers and ensure that abusers who are servicemembers are held accountable in accordance with DOD policy.
Finally, while the military services have developed domestic abuse training for key personnel that meets some DOD requirements, there are opportunities to improve the comprehensiveness and consistency of training provided to some key personnel and to better track training completion for commanders and senior enlisted advisors. For example, by taking steps to ensure that training for new commanders and senior enlisted advisors includes all DOD requirements, the services can better ensure that these personnel are prepared to assist victims in accordance with DOD policy. Additionally, by developing a process to ensure the quality and completeness of training completion data for these personnel, DOD can better ensure that commanders and senior enlisted advisors have received the required training needed to carry out their responsibilities for domestic abuse prevention and response. Further, by specifying content requirements for chaplain training on domestic abuse, DOD can better ensure that chaplains receive training that is comprehensive of chaplains' responsibilities for domestic abuse prevention and response. In doing so, the department may also be able to better position chaplains to respond to disclosures of abuse, such as by connecting victims with available resources.
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Recommendations for Executive Action
We are making a total of 32 recommendations, including 11 to the Secretary of Defense, seven to the Secretary of the Army, nine to the Secretary of the Navy, and five to the Secretary of the Air Force.
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness clarifies guidance for submitting data on the number and types of domestic abuse allegations. (Recommendation 1)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness develops a quality control process for reporting accurate and complete data on allegations of abuse, including those that were determined to not meet DOD's criteria for domestic abuse. (Recommendation 2)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness expands the scope of its planned future reporting of domestic abuse data annually to the Congress to include analysis of the types of allegations of abuse. (Recommendation 3)
The Secretary of Defense should evaluate and, if needed, clarify or adjust responsibilities for tracking domestic violence and related command action data, including how any necessary coordination among responsible offices should occur. (Recommendation 4)
The Secretary of the Army should ensure the cognizant offices revise or issue regulations to clarify that violation of civilian protective orders is punishable under the UCMJ as required by DOD policy. (Recommendation 5)
The Secretary of the Navy should ensure the cognizant offices revise or issue regulations to clarify that violation of civilian protective orders is punishable under the UCMJ as required by DOD policy. (Recommendation 6)
The Secretary of the Air Force should ensure the cognizant offices revise or issue regulations to clarify that violation of civilian protective orders is punishable under the UCMJ as required by DOD policy. (Recommendation 7)
The Secretary of the Army should develop a process, such as through certification reviews, to ensure installation FAPs attempt to enter into memoranda of understanding with civilian organizations, as appropriate. (Recommendation 8)
The Secretary of the Navy should develop a process, such as through certification reviews, to ensure installation FAPs attempt to enter into memoranda of understanding with civilian organizations, as appropriate. (Recommendation 9)
The Secretary of the Navy should ensure that the Commandant of the Marine Corps develops a process, such as through certification reviews, to ensure installation FAPs attempt to enter into memoranda of understanding with civilian organizations, as appropriate. (Recommendation 10)
The Secretary of the Air Force should develop a process, such as through certification reviews, to ensure installation FAPs attempt to enter into memoranda of understanding with civilian organizations, as appropriate. (Recommendation 11)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness updates its Family Advocacy Program manual to (1) add and fully define reasonable suspicion as the standard for determining whether an allegation meets the initial threshold to be referred to the IDC, and (2) establish standardized criteria for determining whether reported allegations of abuse meet that threshold. (Recommendation 12)
The Secretary of the Army should develop a risk-based process to consistently monitor how allegations of domestic abuse are screened at installations to help ensure that all domestic abuse allegations that should be presented to an Incident Determination Committee are consistently presented. (Recommendation 13)
The Secretary of the Navy should develop a risk-based process to consistently monitor how allegations of domestic abuse are screened at installations to help ensure that all domestic abuse allegations that should be presented to an Incident Determination Committee are consistently presented. (Recommendation 14)
The Secretary of the Navy should ensure that the Commandant of the Marine Corps develops a risk-based process to consistently monitor how allegations of domestic abuse are screened at installations to help ensure that all domestic abuse allegations that should be presented to an Incident Determination Committee are consistently presented. (Recommendation 15)
The Secretary of the Air Force should develop a risk-based process to consistently monitor how allegations of domestic abuse are screened at installations to help ensure that all domestic abuse allegations that should be presented to an Incident Determination Committee are consistently presented. (Recommendation 16)
The Secretary of the Army should issue guidance, such as through updating its service FAP policy, to specify the risk assessment tools required to be used and the type of personnel responsible for implementing each tool. (Recommendation 17)
The Secretary of the Navy should issue guidance, such as through updating its service FAP policy, to specify the risk assessment tools required to be used and the type of personnel responsible for implementing each tool. (Recommendation 18)
The Secretary of the Navy should ensure that the Commandant of the Marine Corps issues guidance, such as through updating its service FAP policy, to specify the risk assessment tools required to be used and the type of personnel responsible for implementing each tool. (Recommendation 19)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness develops the planned communications strategy or takes other action to support the services in increasing awareness of domestic abuse reporting options and resources. (Recommendation 20)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness develops metrics to evaluate the effectiveness of DOD and military service domestic abuse awareness campaigns, including by identifying a target audience and defining measurable objectives. (Recommendation 21)
The Secretary of the Army should update its schedule and milestones and identify and assign resources needed for implementation of the IDC Army-wide. (Recommendation 22)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness updates its FAP oversight framework to include oversight of IDC proceedings. (Recommendation 23) The Secretary of the Army should establish a formal process to monitor IDCs to ensure they are conducted in accordance with DOD and service policy. (Recommendation 24)
The Secretary of the Air Force should establish a formal process to monitor IDCs to ensure they are conducted in accordance with DOD and service policy. (Recommendation 25)
The Secretary of Defense should assess the risks associated with its current disposition model and the feasibility, advantages, and disadvantages of alternate disposition models for domestic violence. This could include elevating the disposition authority, requiring additional review of these dispositions, or other methods as appropriate. (Recommendation 26)
The Secretary of the Army should provide additional guidance or sample training materials for installation-level commander and senior enlisted advisor domestic abuse training that meets all DOD requirements. (Recommendation 27)
The Secretary of the Navy should provide additional guidance or sample training materials for installation-level commander and senior enlisted advisor domestic abuse training that meets all DOD requirements. (Recommendation 28)
The Secretary of the Navy should ensure that the Commandant of the Marine Corps provides additional guidance or sample training materials for installation-level commander and senior enlisted advisor domestic abuse training that meets all DOD requirements. (Recommendation 29)
The Secretary of the Air Force should provide additional guidance or sample training materials for installation-level commander and senior enlisted advisor domestic abuse training that meets all DOD requirements. (Recommendation 30)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness, in coordination with the Secretaries of the military departments, develops a process to ensure the quality and completeness of commander and senior enlisted advisor domestic abuse training completion data. (Recommendation 31)
The Secretary of Defense should ensure the Under Secretary of Defense for Personnel and Readiness specifies learning objectives or content requirements for chaplain training on domestic abuse by updating DOD Instruction 6400.06 or through other methods. (Recommendation 32)
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Agency Comments and Our Evaluation
We provided a draft of this report to DOD for review and comment. In its written comments, reproduced in their entirety in appendix III, DOD concurred with each of our 32 recommendations and cited actions it plans to take to address them. In some instances, DOD described planned or completed actions that it indicated would fully address the recommendation, as discussed below. DOD also provided technical comments, which we have incorporated as appropriate.
In concurring with recommendation 10, that the Marine Corps should develop a process to ensure installation FAPs attempt to enter into memoranda of understanding with civilian organizations, as appropriate, the Marine Corps stated that its current certification standards require installation FAPs attempt to enter into MOUs with civilian organizations, as appropriate. Based on these standards, the Marine Corps requested that we close this recommendation as implemented. However, as described in this report, the Marine Corps' certification standards require the review of content for existing MOUs, but do not require a review of whether MOUs have been established, as appropriate. As a result, we continue to believe that by establishing a formal process to ensure that installations establish--or attempt to establish--MOUs with all appropriate civilian response partners, the Marine Corps FAP will have greater assurance that Marine Corps installations appropriately engage civilian response partners and establish processes necessary to successfully operationalize relationships.
In concurring with recommendation 26, that the Secretary of Defense should assess the risks associated with its current disposition model and the feasibility, advantages, and disadvantages of alternate disposition models for domestic violence, DOD noted that the recommendation mirrors language in section 549C of the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. Section 549C requires DOD to seek to contract an independent study of a range of issues related to the prevention of and response to domestic violence, including the potential effect on prevention of elevating the disposition authority for domestic violence offenses. DOD stated that it will comply with this provision. However, as noted in our report, the provision does not require the study to assess the effect of the current disposition model on outcomes, such as eligibility for transitional compensation or qualification for the Lautenberg Amendment, and does not address the feasibility of other alternative disposition models, as specified by our recommendation. We believe that including these elements in the planned study would better position the department and military services to fully understand potential risks associated with the current disposition model and ensure that servicemember abusers are held accountable in accordance with DOD policy and law.
In concurring with recommendation 28, that the Navy should provide additional guidance or sample training materials for installation-level commander and senior enlisted advisor domestic abuse training that meets all DOD requirements, the Navy stated that it implemented domestic abuse training materials in February 2021 for FAP officials that address this recommendation. Based on these training materials, the Navy requested that we close this recommendation as implemented. We will review the sufficiency of these materials as part of our standard recommendation follow-up process.
In concurring with recommendation 29, that the Marine Corps should provide additional guidance or sample training materials for installation level commander and senior enlisted advisor domestic abuse training that meets all DOD requirements, the Marine Corps stated that it updated its sample materials for installation-level commander and senior enlisted advisor domestic abuse training in October 2020 and that these materials meet all DOD requirements. However, as previously described in this report, we found that the Marine Corps' materials address 11 of the 13 DOD-required topics. Further, Marine Corps officials stated that the standardized training materials are intended specifically for the training provided to new commanders, although senior enlisted advisors may sometimes attend those briefings. As a result, we continue to believe that without guidance or sample training materials that include all of DOD's requirements, both commanders and senior enlisted advisors may not be aware of important aspects of the installation's coordinated community response, including their roles and responsibilities in those efforts.
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The text of the GAO report is available here.
City pledges 'prompt and proper resolution' over fate of convicted Erie police officer's job
Erie Times-News: Web Edition Articles (PA)
November 26, 2021
https://infoweb.newsbank.com/
Justin Griffith was found guilty on Nov. 12 of repeatedly striking his wife in face and biting her in face. He is suspended without pay and faces getting fired from his job. His sentencing is Jan. 24.
Two weeks after an Erie police corporal was convicted of physically assaulting his wife, the administration of Mayor Joe Schember said it is close to completing an internal review regarding the corporal's future with the force.
"The city is aware of the verdict and is reviewing the matter internally," City Solicitor Ed Betza told the Erie Times-News. "The city intends to meet with the officer and will work to bring this matter to a prompt and proper resolution."
Erie police corporal convicted of assaulting wife, faces loss of job; wife at odds with DA
The corporal, Justin W. Griffith, convicted Nov. 12 and to be sentenced in January, faces loss of his job under federal law.
As the Erie police have confirmed, the law prohibits possession of a firearm for anyone convicted in any court of a "misdemeanor crime of domestic violence," as was Griffith. The federal law, known as the Lautenberg Amendment, after the late Sen. Frank Lautenberg, of New Jersey, was adopted in 1996.
Such a conviction for domestic violence also disqualifies a police officer for certification in Pennsylvania, according to the Pennsylvania Municipal Officers' Education and Training Commission.
Griffith, 40, on the force since 2008, has been suspended since his arrest in February, with the suspension becoming unpaid after his preliminary hearing in March. With Griffith barred from working as an Erie police officer, the city has not had to take immediate action on his future.
Erie police corporal held for trial in domestic abuse case despite wife's no-show in court
Griffith was found guilty of repeatedly striking his wife in the face and biting her in the face at their residence in Millcreek Township around 1:25 a.m. on Feb. 13, while Griffith was off duty.
Shortly after Griffith was convicted, Erie Police Chief Dan Spizarny reviewed the police's internal review of the case, said Schember's chief of staff, Renee Lamis. A deputy police chief, Mike Nolan, attended Griffith's trial and confirmed to the Erie Times-News that the federal law would bar Griffith from the force if he were convicted of domestic violence.
Lamis, like Betza, said the administration is reviewing the case, including how to proceed under the labor contract with the Erie police.
"The Erie Police Department will work with the City to ensure that we take the appropriate action and that the action is in compliance with applicable law and the collective bargaining agreement," Lamis said in an email. "We need to follow the appropriate process and will share information in a timely manner as soon as it becomes available."
Griffith was convicted of a third-degree misdemeanor related to domestic violence — simple assault by mutual affray, for the fight with his wife. He was found guilty after a two-day trial in the courtroom of Erie County Judge Daniel Brabender. The defense argued self-defense but presented no witnesses and did not have Griffith take the stand.
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Griffith's wife, Dawn Griffith, testified for the District Attorney's Office under subpoena and said she did not want her husband to be charged. She testified that her husband struck her because she struck him.
"I didn't want him arrested," Dawn Griffith, 45, testified. "I was just as much in the wrong as he was."
A jury of eight women and four men convicted Griffith after deliberating for about two hours. Brabender convicted Griffith of a summary count of harassment.
As a third-degree misdemeanor, the simple assault charge carries a maximum sentence of a year in prison. Brabender set sentencing for Jan. 24 and allowed Griffith to remain free on an unsecured bond of $10,000.
Griffith's lawyer, John Carlson, said he has not yet determined whether he will appeal the conviction. He said he is "assessing appealable issues."
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The domestic incident marks the second time in five years that Griffith has been charged with a crime. He was acquitted in 2017 on a misdemeanor simple assault charge that, as an Erie police patrolman, he kicked a handcuffed and prone suspect during an October 2016 arrest at an apartment in Erie. Griffith was reinstated to the police force following his acquittal.
2022: Lautenberg DV Gun Ban - News Articles And Reports
Erie police corporal resigns following conviction
Patrolman was found guilty in November on domestic violence charge
Erie Times-News (PA)
January 13, 2022
https://infoweb.newsbank.com/
Griffith will still be eligible for pension benefits from the city, as he was on the force for at least 12 years, the amount of time an Erie police officer must be on the force to be vested in the pension plan, according to the city.
An acquittal on a simple assault charge in 2017 did not stop an Erie police patrolman, Justin Griffith, from getting promoted to corporal in 2018.
Three years later, a conviction on a domestic violence charge has led to Griffith's resignation from the Erie police force.
Mayor Joe Schember promoted Griffith, and Griffith submitted his resignation to the Schember administration, ending a situation in which the administration could have fired Griffith if he had not stepped down on his own. Griffith, 40, an Erie police officer since 2008, had been suspended without pay since the domestic violence case against him was held for trial at his preliminary hearing in March.
With Griffith's resignation, "the matter is closed," Erie City Solicitor Ed Betza said.
He said the resignation avoids any potential union grievance that could have been filed over Griffith's dismissal had the city fired him.
Betza confirmed the resignation to the Erie Times-News on Tuesday. He said Griffith submitted it on Nov. 23.
The resignation came 11 days after a jury in Erie County Common Pleas Court convicted Griffith of physically assaulting his wife. Griffith was found guilty of repeatedly striking her in the face and biting her in the face at their residence in Millcreek Township around 1:25 a.m. on Feb. 13, while Griffith was off duty.
With the resignation, Griffith will still be eligible for pension benefits from the city, as he was on the force for at least 12 years, the amount of time an Erie police officer must be on the force to be vested in the pension plan, according to the city.
Federal law and domestic violence
Griffith, 40, who is free on an unsecured bond of $10,000, is scheduled to be sentenced before Judge Daniel Brabender on Jan. 24.
A jury on Nov. 12 convicted Griffith of a third-degree misdemeanor related to domestic violence — simple assault by mutual affray, for the fight with his wife. Brabender found him guilty of a summary count of harassment.
As a third-degree misdemeanor, the simple assault charge carries a maximum sentence of a year in prison. The conviction all but guaranteed that Griffith would lose his job under federal law.
The law prohibits possession of a firearm for anyone convicted in any court of a "misdemeanor crime of domestic violence," as was Griffith. The federal law, known as the Lautenberg Amendment, after the late Sen. Frank Lautenberg, of New Jersey, was adopted in 1996.
Such a conviction for domestic violence also disqualifies a police officer for certification in Pennsylvania, according to the Pennsylvania Municipal Officers' Education and Training Commission.
Betza, the city solicitor, said the city will have to disclose Griffith's disciplinary history to any prospective employer who asks.
And Erie Police Chief Dan Spizarny said that Griffith's work history will be automatically available to potential employers under Act 57, the state law that the General Assembly unanimously passed in 2020 in response to the death of George Floyd at the hands of a Minneapolis police officer on May 25, 2020.
Act 57, among other things, requires law enforcement agencies to provide, to a prospective hiring agency, all employment records, including performance evaluations and reasons for separation, for a previously employed law enforcement officer, according to the governor's office.
Griffith's promotion
Griffith's acquittal in the previous case did not prevent him from getting reinstated to the police force after he was suspended without pay following the preliminary hearing in that case. The acquittal also did not prevent him from getting promoted from patrolman to corporal in June 2018.
Schember and Spizarny both approved the promotion, according to records the Erie Times-News obtained from the city through a request under the state's Right-to-Know Law. The promotion, which was effective on June 25, 2018, increased Griffith's pay to $81,612 from $80,012, according to the records. Griffith's final salary as a police officer was not immediately available.
The records show that Griffith applied for an open corporal position that had been posted in March 2018. The promotion was a "first-step" promotion in that Griffith was promoted from a patrolman, the lowest rank on the police force, to corporal, the next-highest rank.
Griffith's promotion came a year after he was acquitted of a misdemeanor simple assault charge that, while on duty, he kicked a handcuffed and prone suspect during an October 2016 arrest at an apartment in Erie. The jury delivered its verdict in June 2017.
Schember, who was elected to his first four-year term in November 2017, took office in January 2018 and was reelected in November. In an interview on Tuesday with the Erie Times-News, Schember was asked whether he knew about Griffith's acquittal when he signed off on his promotion.
"I had no idea who he was at the time," Schember said. "I guess I was not aware of issues then." Of Griffith's promotion, Schember said, "The police chief must have wanted it approved."
Spizarny, the police chief, told the Erie Times-News that Griffith "put in for a corporal's job and he got it." Asked if Griffith's previous criminal case, which ended in the acquittal, was considered as part of the promotion process, Spizarny said, "I'm sure it was considered at that time, but it is a first-step promotion."
In the case in which he was acquitted, Griffith was accused of kicking the suspect in the face when the suspect, who had been handcuffed after a struggle with police, said he might have AIDS and began spitting blood in Griffith's direction. Officers had responded to a call for a domestic disturbance that could involve weapons.
Griffith argued he never kicked the suspect but was justified in moving his foot to the suspect's mouth to prevent the suspect from spitting blood at him.
Multiple Erie police officers testified that they saw Griffith "kick" or "strike" the suspect's face with his foot.
Wife defends Griffith in court
In the domestic violence case, in which he was convicted, Griffith did not testify and the defense called no witnesses. But his lawyer, John Carlson, told the jury Griffith admitted that he struck his wife with an open hand on the left side of the face, which, according to photographs presented in court, caused her face to swell and her lip to bleed.
Carlson argued that Griffith acted in self-defense. He said Griffith's wife, Dawn Griffith, 45, had been hitting and kicking him — including in the crotch — in a fight over him cheating on her and over him taking her cellphone right before the fight. Both had been drinking, according to evidence presented in court.
The self-defense theory fit with Dawn Griffith's trial testimony, in which she diverged from what she initially told the police and instead said that she was the aggressor during the fight and that her husband did nothing wrong.
In his closing argument at trial, Carlson also suggested that Dawn Griffith, to get back at her husband in a possible divorce, could have hurt herself to make her injuries look worse in the photos that were entered into evidence.
The Erie County District Attorney's Office prosecuted the case, and the assistant district attorney who handled it, Hillary Hoffman, pressed for a conviction based on photos of Dawn Griffith's swollen face, a 911 call and Dawn Griffith's statements to Millcreek police at the scene.
Carlson declined to comment on Griffith's resignation from the police force, and Griffith could not be reached for comment. After his acquittal, in 2018, Griffith issued a statement in which he said he was ready to rejoin the force.
Griffith said in the statement in 2018, "The Erie police department has been facing an uphill battle against the gun violence and heroin epidemic that has plagued our community and they have done a great job departmentwide, especially the officers on the street who are subject to those dealings on a daily basis."
His statement at the time continued: "I look forward to getting back in the community to assist with the issues the city has unfortunately been faced with."
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