by Judge Amy Karan and Helen Stampalia
Rose Mary Hollifield is able to walk, talk, and function despite the bullet buried deep within her brain.”1 Rose Mary is both a victim and a survivor of domestic violence. In 1997, she was trying to escape her violent marriage, when her husband, Donald Vick, pulled in front of her car and shot a bullet through the window into her left temple.
Unfortunately, this tragedy was predictable. It was predictable because there were “red flags” indicating that Vick was capable of shooting Rose Mary. At a domestic violence protection order hearing, Rose Mary told a judge that Vick, “threatened to kill her every time she tried to leave him.” The judge entered the restraining order, and ordered Vick to counseling.
Notwithstanding, on Christmas Day of 1996, Vick violated the restraining order and police officers seized a gun believed to be thrown from his car during a high-speed chase. Despite stating “I’m going to blow you all away,” Vick was released on bond two days later. Two weeks later, in January of 1997, he kept his promise and gunned Rose Mary down.
Today Rose Mary suffers from headaches, dizziness, double vision, and memory loss. Intangible wounds and scars have penetrated her soul and will linger forever. However, in comparison to other unfortunate domestic violence cases, Rose Mary’s story has a happy ending; she lived.
National studies confirm the fact that firearms and domestic violence is a deadly combination. Family and intimate assaults involving firearms are 12 times more likely to end in fatality than those not associated with firearms.2 Households with guns are almost eight times more likely to involve a firearm homicide by a family member or intimate acquaintance than homes without guns.3 Two-thirds of intimate partner homicides in the U.S. are committed using guns.4 One-fourth of intimate offenders killed themselves after killing the victim with a gun.5
Most domestic homicide firearms are kept in the home where the homicide occurred, and one out of every four battered women who attempt suicide use the gun located in their homes.6 Abusers who use guns to kill their intimate partners may also injure or kill innocent third parties, including children, interveners, and innocent bystanders.7 In light of such alarming statistics, federal and state lawmakers have responded by passing laws prohibiting abusers and stalkers from possessing firearms and ammunition.
Civil Orders of Protection and the Prohibition of Firearms Possession
In 1994, the Violence Against Women Act’s amendment to the Gun Control Act of 1968 made it a federal crime for a person who is subject to a qualifying order of protection to possess, ship, or receive a firearm or ammunition which has been shipped or transported in interstate or foreign commerce.8 A “qualifying” order means that the court order must be issued after a hearing where the restrained person received actual notice, and where the person had an opportunity to participate.9 Basically, a qualifying order conforms to basic concepts of due process.Further, the court order must restrain the person from harassing, stalking, or threatening an intimate partner or child of such person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.10 Additionally, the court order must include a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibit the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.11
Federal law defines “intimate partner” as the spouse of the person, former spouse of the person, a parent of a child of the person, and/or a person who cohabitates or has cohabited with the person.12 It should be noted that dating relationships, where the partners have never resided together, are not included.13
Mere “knowing” possession of a firearm or ammunition while subject to a qualifying order will support a criminal prosecution. The order of protection does not need to include any “magic language,” and the respondent does not have to commit any other chargeable violation to violate the law. Therefore, crossing out the firearm prohibition language on a preprinted form or failing to check or initial the box reciting the prohibition will not exempt an otherwise qualifying order from qualifying status.
Official Use Exemption
Federal law provides an “official use exemption” for law enforcement officers and/or officers employed by any department, agency, or political subdivision of the U.S., as well as active military personnel, who are subject to a qualifying order of protection.14 This exemption permits the restrained individual to retain their official firearm while on official duty.
The Bureau of Alcohol, Tobacco and Firearms (ATF) has specified that the federal firearm prohibition may not be enforced against police officers or active military personnel if their official duties require the possession of the firearm at all times and that the exemption applies only to service weapons.15 Law enforcement employers may be more restrictive than the law requires and many mandate that any employee subject to an order of protection work in a capacity not requiring the possession of a firearm. There is no authority, however, to be less restrictive. State court judges cannot provide any additional exemption; therefore, employees allowed to carry firearms for official duty must check the weapon in and out at the beginning and end of each shift.
In accordance with 18 U.S.C. 922(d) (8), it is a federal crime to knowingly sell or transfer a firearm or ammunition to a person subject to a qualifying order of protection. It is also a federal crime for a purchaser of a gun to knowingly make any false or fictitious oral or written statements likely to deceive gun sellers with respect to any facts material to lawfulness of the sale.16 Federal law requires purchasers to complete ATF form 4473 before purchasing a gun. Question 9-J asks, “Are you subject to a court order restraining you from harassing, stalking, or threatening an intimate partner or child of such partner?” Any person who knowingly violates any of these federal statutes is subject to imprisonment for up to 10 years and/or fined up to $250,000.17
Misdemeanor Domestic Violence Conviction and Prohibition of Firearms Possession
Most lawyers and laypersons are aware that the law prohibits convicted felons from possessing a firearm or ammunition.18 Many people, however, are unaware of a 1996 federal law that prohibits a person with a “qualifying” misdemeanor domestic violence conviction from possessing, shipping, or receiving a firearm or ammunition which has been shipped or transported in interstate or foreign commerce.19 This prohibition is commonly referred to as the “Lautenberg Amendment,” after its sponsor, New Jersey Sen. Frank Lautenberg, and is the only federal misdemeanor law that prohibits firearm or ammunition possession.
A qualifying “misdemeanor crime of domestic violence” is defined as any offense that is a misdemeanor under either federal or state law that has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon. The Lautenberg Amendment applies to convicted persons who are “intimate partners,” as well as parents or guardians of the victim.20
Under the Lautenberg Amendment, the person convicted must have been represented by counsel, or knowingly and intelligently waived that right; must have been tried by jury if entitled to one under state law, unless the person knowingly and intelligently waived jury trial; or voluntarily pleaded guilty.21
The term “conviction” is defined by state law, but clearly does not encompass a “withhold of adjudication,” an “adjournment in contemplation of dismissal,” a “deferred adjudication,” or other creative solution. Further, it is not considered a conviction if the record has been expunged or set aside, the defendant is pardoned, or has had civil rights restored. However, the expungement or pardon may still prohibit firearm possession if the order expressly provides that the person may not ship, transport, possess, or receive firearms even after the expungement 22
Addtionally, under the Lautenberg Amendment, there is no exemption for law enforcement officers or military personnel convicted of a misdemeanor crime of domestic violence. Therefore, such a conviction may result in loss of employment or permanent reassignment to a position which does not involve carrying or possessing a firearm. Misdemeanor convictions dated before 1996, the date the Lautenberg Amendment was enacted, also trigger the prohibition.
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. The prohibition from possessing firearms after conviction is also permanent without provisions for the return of firearms. The Lautenberg Amendment has withstood numerous constitutional challenges including the second amendment,23 due process,24 equal protection,25 commerce clause,26 and ex post facto.27 Courts have also ruled that even if a defendant is unaware of the Lautenberg Amendment, prosecution will lie, as “ignorance of the law is no excuse.”28
Civil Injunction for Protection and the Prohibition of Firearms Possession
Florida law essentially mirrors the federal law. It is unlawful for a person subject to a final judgment of injunction for protection against domestic violence, pursuant to F. S. §741.30, to have a firearm or ammunition in their care, custody, possession, or control.29 A final judgment of injunction for protection against domestic violence is required to recite the Florida laws regarding firearm prohibition including penalties for violations.30 Additionally, the federal prohibitions and penalties must also be reflected.31 Persons who are licensed to carry concealed firearms will have their licenses suspended or application denied if subject to a valid repeat violence or domestic violence injunction under F. S. §790.06(2) (l).32
Individual counties can, with Supreme Court approval, insert local provisions into the mandatory Florida family law forms. Both the temporary ex parte and final orders of protection in Miami-Dade County contain a local directive requiring respondents to surrender any firearms and ammunition in their possession within 24 hours after service. Further, the respondent must file a receipt with the court. At the final hearing an “on the record” colloquy regarding the surrender of firearms is conducted. Failure to comply with the surrender directive results in enforcement actions or potential contempt charges.
A person subject to an order of protection may seek the return of their weapon when the case is dismissed, or the order of protection expires, provided there are no other federal disqualifiers.33 Miami-Dade county’s domestic violence court has developed a specific procedure together with a set of forms for return of firearms requests. The protocol includes running a National Crime Information Center (NCIC) check to ensure no other disqualifiers exist, as well as notifying the petitioner in the case prior to entering the order for return. 34
Florida law, like federal law, also has “an official use” exemption. State or local officers as defined by F.S. §943.10 (14), who hold an active certification, and who receive or possess a firearm or ammunition for use in performing official duties on behalf of the officer’s employing agency, may retain their weapons for official duty unless otherwise prohibited by the employing agency.35 This language clearly recognizes the right of the employer to be more restrictive if it so chooses.
Criminal Domestic Violence Conviction and the Prohibition of Firearms Possession
Conviction of a felony or misdemeanor crime of domestic violence results in loss of the right to possess a firearm under Florida law. To ensure that the law is followed, prospective firearm purchasers are required to fill out ATF form 4473. One of the questions contained in ATF form 4473 is, “Have you been convicted in any court of a misdemeanor crime of domestic violence?” Prospective buyers are warned that it is a third degree felony for a purchaser to obtain delivery of a handgun by fraud, false pretense, or false representation.36
In addition, a firearms vendor must request that the Florida Department of Law Enforcement (FDLE) conduct a check of the NCIC and the Florida Crime Information Center (FCIC) systems to check for disqualifiers.37 The sale must be denied if the check indicates the purchaser has been convicted of a misdemeanor crime of domestic violence,38 or has had adjudication of guilt withheld, or had imposition of a sentence suspended for any misdemeanor crimes of domestic violence, unless three years have passed since probation conditions have been fulfilled or the record has been sealed or expunged.39
The Department of Agriculture and Consumer Services is also directed to revoke the license to carry a firearm or deny an application to carry a firearm by any person found guilty of, who had adjudication of guilt withheld, or had imposition of sentence suspended for a misdemeanor domestic violence crime within the preceding three years. 40 Uniquely, Florida law directs the Department of Agriculture and Consumers Services to suspend the license or pending application for license for any person who is arrested or formally charged with a crime of felony or misdemeanor domestic violence until final disposition of the case.41 Accordingly, firearms must be relinquished or surrendered at the time of arrest. This differs from federal law, where the prohibition only attaches upon conviction.
Which Laws Apply?
Both Florida and federal law apply to all persons in Florida. Enforcement, however, is up to the respective jurisdictions. Therefore, the state authorities are responsible for enforcing the Florida statutes, while the federal authorities will enforce the federal laws.
The federal authorities have the sole discretion to determine whether Florida orders meet “qualification” standards that sustain federal prosecutions. “Simply put, state court judges do not determine the applicability of the federal law.”42
Florida, on the other hand, must follow state guidelines and make the required findings under F. S §741.30 and Florida Family Law Rule of Procedure 12.610. Additionally, it is good judicial practice to give civil respondents and criminal defendants actual notice of the state and federal prohibitions. Finally, judges should advise parties that the firearm prohibitions extend to all 50 states and Indian country.43
Gun control laws can enhance domestic security within the family context.44 Federal firearm laws have been described as an “aggressive policing tool needed to combat gun violence in . . . [local] communities.”45 Both the Florida Legislature and the U. S. Congress have taken steps to ensure that the criminal justice system provides safety to victims of domestic violence while holding perpetrators accountable for their actions. Floridians have their constitutional right to keep and bear firearms for hunting, sporting activities and for defense of self, family, home, and business, or as collectibles.46 The Florida Legislature, however, also intends to prevent the use of firearms in crimes. As the late U.S. Senator Paul Wellstone has often been quoted as saying, “[All too often], the only difference between a battered woman and a dead woman is the presence of a gun.” 47
As the statistics reveal, there is always potential danger or lethality in cases involving domestic violence where allegations involve the use or possession of firearms. Therefore, lawyers should ask whether the perpetrator carries, owns, or has access to firearms, or has ever made threats or inflicted physical harm upon anyone with a weapon of any kind.
The possession of a firearm, by itself, may not raise a “red flag,” but when found in combination with other lethality indicators, such as the presence of obsessive possessiveness, extreme jealousy, rage and/or depression over separation, increase in frequency of violence, stalking behaviors, death threats, and perceived betrayal, there is a legitimate reason for concern and to take action. 48
Such action must include educating family, juvenile, and domestic violence judges of the mandates of the state and federal laws, and to seek compliance with those laws and surrender of firearms when appropriate. As former President Bill Clinton stated, “If you’re stalking or harassing women or children, you shouldn’t have a gun. If you commit an act of violence against your spouse or your child, you shouldn’t have a gun.”49
The right to bear arms must be protected for lawful citizens. That valuable right, however, must be restricted for those who commit acts of domestic violence. Every American deserves the right to be safe in his or her own home.
1 Susan Reinhardt, Surviving Domestic Violence, Asheville Citizen-Times, February 22, 2004.
2 L. E. Saltzman, J. A. Mercy, P. W. O’Carroll, M. L. Rosenberg & P. H. Rhodes, Weapon Involvement and Injury Outcomes in Family and Intimate Assaults, 267 Jama. 3043 (1992).
3 A.L Kellerman, F.P. Rivara & N.B. Rushforth, Gun Ownership as a Risk Factor for Homicide in the Home, 329 N. Eng. J. Med. 1084 (1993).
4 Darren Mitchel & Susan Carbon, Firearms and Domestic Violence: A Primer for Judges, 39 Ct. Rev. 32, (Summer 2002) note 17, at 33 citing the U.S. Department of Justice, Bureau of Justice Statistics, Homicide Trends in the U.S.
5 Office of State Courts, Firearms in Home as a Risk Factor (Sept. 29, 1997).
6 J. E. Bailey, A. L. Kellermann, G. W. Somes, J. G. Banton, F. P. Rivara & N. P. Rushforth, Risk Factors for Violent Death of Women in the Home, 157 Arch. Internal Med. 777 (1997).
7 Darren Mitchell, supra note 17.
8 18 U.S.C. §922(g)(8)(a)-(c) (2004).
9 18 U.S.C. §922(g)(8)(a) (2004)
10 18 U.S.C. §922(g)(8)(b) (2004).
11 18 U.S.C. §922(g)(8)(c) (2004). Florida’s family law form 12.980(d)(1), final judgment of injunction for protection against domestic violence (after notice) is a “qualifying” order of protection under the federal definition. However, some orders may not qualify due to the relationship of the parties. See Note 13 below.
12 18 U.S.C. §921(32) (2004).
13 Notably, most repeat, dating and sexual violence injunctions issued under Fla. Stat. §784.047 will not be considered “qualifying” under this federal statute since the relationship will likely not meet the “intimate partner” requirement. Also, persons qualifying for an injunction for protection against domestic violence under F.S. §741.30 who are “persons related by blood or marriage” may not qualify as intimate partners. However, F.S. §790.233 covers such persons.
14 18 U.S.C. §925(a)(1) (2004).
15 Bureau of Alcohol, Tobacco & Firearms, U.S. Department of the Treasury, interpretation of 18 U.S.C. 925(a)(1)(2004); see letter from John W. Magaw, director, ATF to Daniel Rosenblatt, executive director, International Association of Chiefs of Police, November 21, 1994.
16 See 18 U.S.C. §922(a)(6) (2004).
17 18 U.S.C. §924(a)(2) (2004).
18 18 U.S.C. §922(g)(1) (2004).
19 18 U.S.C. §922(g)(9) (2004).
20 18 U.S.C. §921(33)(a) (2004).
21 18 U.S.C. §921(33)(b)(i) (2004).
22 18 U.S.C. §921(33)(b)(ii) (2004).
23 United.States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
24 United States v. Bostik, 168 F.3d 718 (4th Cir. 1999).
25 United States v. Lewitzke, 176 F.3d 1022, 1025 (7th Cir. 1999).
26 United States. v. Pierson, 139 F.3d 501, 503 (5th Cir. 1998).
27 United States v. Mitchell, 209 F.3d 319 (4th Cir.2000), cert. denied, 531 U.S.849 (2000).
28 See United States v. Kafka, 222 F.3d 1129, 1130-1131 (9th Cir. 2000)(and cases cited therein).
29 Fla. Stat. §790.233 (2004).
30 Fla. Stat. §741.30(6)(g) and §741.31(4)(b) (2004). Under Florida law, possession of a firearm or ammunition while subject to a valid final judgment of injunction for protection against domestic violence is a first degree misdemeanor.
31 See Florida Supreme Court approved family law form 12.980 (d)(1).
32 Note the reference to an injunction against repeat violence here, although it is not mentioned by Fla. Stat. §790.233.
33 The federal disqualifiers include: 1) having been convicted of a crime punishable by imprisonment for a term exceeding one year; 2) being a fugitive from justice; 3) being an unlawful user of or addicted to any controlled substance; 4) having been adjudicated as a mental defective or committed to a mental institution; 5) being an alien who is illegally or unlawfully in the U.S.; 6) having had a dishonorable discharge from the Armed Forces; 7) having renounced U.S. citizenship; 8) being subject to a court order of protection; and 9) having been convicted of a misdemeanor crime of domestic violence.18 U.S.C. §922(g) (2004).
34 A complete set of the procedures and forms regarding surrender and return of firearms are available by contacting the author at [email protected]
35 Fla. Stat. §790.233(3) (2004).
36 Fla. Stat. §790.0655(3)(b) (2004).
37 Fla. Stat. §790.065(1)(c)(d).(2004).
38 Fla. Stat. §790.065 (2)(a)2.
39 Fla. Stat. §790.06(2)(k) (2004) and §790.065(2)(a)3(2004).
40 Fla.Stat. §790.06 (3).
42 Id. at 7-43 and Footnote 56 stating that the FBI does an independent analysis to determine whether a particular order or conviction triggers the protection and the conclusions made by state authorities are not relied upon.
43 18 U.S.C. §2265 (2004). The Florida Final Judgment of Injunction for Protection Against Domestic Violence contains the notification regarding full faith and credit.
44 Justice Enhancement and Domestic Security of Act of 2003: Introduced in Senate, 108th Cong. 1st Sess. (Jan. 7, 2003), citing Part 1—Our Lady of Peace Act.
45 Testimony before the U.S. House of Representatives: Subcommittee on Criminal Justice, Drug Policy and Human Resources, 1999 WL 1015008 (F.D.C.H) (Nov. 4, 1999).
46 Fla. Stat. §790.173(2) (2004).
47 Stated by the late senator from Minnesota during open discussion of the Federal Violent Crime Control and Law Enforcement Act (Crime Control Act) in 1994.
48 Judge Amy Karan and Lauren Lazarus, A Lawyer’s Guide to Assessing Dangerousness for Domestic Violence, 78 Fla. Bar. J. 55 (March 2004).
49 Office of State Courts, Federal Policy Is Clear (Sept. 29 1997).
Judge Amy Karan is the administrative judge of Miami-Dade County’s Dedicated Domestic Violence Court. She received her law degree from the University of Miami.
Helen J. Stampalia is currently a student at St. Thomas University School of Law pursuing her J.D. degree, anticipated for 2006, in Miami.
This column is submitted on behalf of the Family Law Section, Jorge M. Cestero, chair, and Charles Fox Miller, editor.