A Greater Priority

The recent murder of a young woman in Kentucky has given legislators cause for concern about current laws regarding domestic violence and firearms. Despite the fact that approximately 1,800 women are murdered each year by men in single victim/single offender incidents, it remains surprisingly easy for known domestic abusers to obtain guns and hold onto them—even after engaging in violent acts.

On September 11, Amanda Ross, 29, was found shot and lying in the back corner of a parking lot outside her Lexington home. She was taken to the University of Kentucky Medical Center, where she died. Hours later, police found Ross’ ex- fiancée, former state Rep. Steve Nunn, in a cemetery near his parents’ graves with what appeared to be self-inflicted wrist wounds and a .38 revolver—the same caliber weapon used to kill Ross. Nunn fired the gun at police and was immediately arrested. After telling investigators that he was “at the end of his rope and wanted revenge,” he was charged with the murder of Ross and violation of a protective order.

Nunn had become the subject of the restraining order after he was accused of attacking Ross in February. In the complaint, Ross claimed that Nunn become violent during an argument at her home, hit her in the face four times, pushed her against a wall, broke a lamp, and threw a cup of bourbon at her. Nunn was put on administrative leave from his job as the Deputy Secretary of the Cabinet for Health and Family Services and officially resigned from his position in March.

It is not known at this time where Nunn obtained the .38 revolver found in his possession. As the subject of an active restraining order, Nunn was prohibited under federal law from possessing firearms. Unfortunately, there are few state laws in this area (24 states have restrictions on access to firearms by persons under active restraining orders, 13 have restrictions on access to firearms by domestic violence misdemeanants, and 18 allow confiscation of firearms at a domestic violence scene) and state and local law enforcement authorities rarely confiscate firearms from domestic abusers. Typically, local law enforcement would rely on federal agents to confiscate these firearms, but the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) lacks the manpower to handle such requests. As Greg Vincent, the president of the Kentucky County Attorney Association, has noted, “For the average Joe who doesn't make it onto the front page or onto every TV station, the ATF doesn't come down.”

Only one county in Kentucky, Jefferson County, is currently removing guns from the homes of domestic violence offenders. The county’s Sheriff’s Department now holds 4,700 firearms in a vault that were confiscated from such individuals. The Operations Commander for the department, Chris Hancock, has said, “I most certainly think it saves lives.” Still, there are challenges in getting others to follow suit. Jefferson Family Court Judge Jerry Bowles, a national domestic violence expert who served on a statewide domestic violence task force with Steve Nunn in 1991, has stated that the effort to uphold the law on a state level is “a struggle because a lot of judges work to circumvent the laws because of their own personal views.”

Kentucky legislators, to their credit, have stepped up to address the problem. Reps. Joni Jenkins and Mary Lou Marzian of Louisville are drafting a state law to prevent those under protective orders from retaining their firearms. Jenkins has also proposed a measure that would extend Domestic Violence Orders (DVOs) to dating couples (currently, DVOs are available only to those who are married or living together). Finally, Kentucky House Speaker Greg Stumbo plans to offer legislation named for Ross that would allow judges to require those with protection orders against them to wear ankle bracelets that track their whereabouts.

In commenting on the murder of Amanda Ross, Brian Namey of the National Network to End Domestic Violence pointed out that “more than three times as many women are murdered with guns by their partners than are murdered by a stranger’s weapon.” Thankfully, even those who typically pay homage to the gun lobby are now taking note of that fact. In February, the U.S. Supreme Court affirmed the federal law that bars those convicted of domestic violence misdemeanors from owning guns. And Kentucky Judge Bowles recently set the stage for action in his own state by declaring that “the priority to protect women’s lives is greater than the constitutional right to bear arms.”

Those will be welcome words to women across America who are suffering in abusive relationships.

No Small Offense

The Second Amendment—as defined by the Supreme Court in the recent District of Columbia v. Heller decision—provides “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” In the same decision, the Court defined certain areas of firearm regulation that are both reasonable and constitutional. For example, the Court said that its opinion “should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill…”

Such “longstanding prohibitions” were defined in the 1968 Gun Control Act. The Act also prohibited “anyone who is a subject to a court order that restrains a person from harassing, stalking, or threatening an intimate partner or child of such intimate partner” from purchasing or owning a firearm(s). The U.S. Congress took further action in 1996, adopting the Lautenberg Amendment, which made it a felony for anyone convicted of a misdemeanor crime of “domestic violence” to ship, transport, possess or receive firearms or ammunition. The Amendment also made it a felony for anyone to sell or issue a firearm or ammunition to a person with such a conviction.

Unfortunately, this latter category of domestic abusers could find themselves rearmed after an upcoming Supreme Court ruling in the case of U.S. v. Hayes.

The case originated last year in the U.S. Court of Appeals for the 4^th Circuit. The defendant in the case, Randy Hayes of West Virginia, abused his wife and pled guilty to a misdemeanor battery charge in 1994. Ten years later, police responded to a domestic violence call from his home and learned that he had owned or sold five firearms (one was found on the premises). In light of this, he was convicted in 2005 of illegal gun possession under the terms of the Lautenberg Amendment.

Hayes challenged the conviction in the courts, alleging that since the West Virginia statute under which he was originally convicted did not have a domestic relationship between offender and victim as an element, he could not be prosecuted under the Lautenberg Amendment. A District Court upheld Hayes’ conviction, citing the United States v. Ball definition of domestic abuse as “needing only to have one element—the use or attempted use of physical force; the relationship between the perpetrator and the victim need not appear in the formal definition of the predicate offense.” The Court of Appeals, however, overturned this decision and ruled that the Lautenberg Amendment applies only to individuals convicted under state domestic violence laws (only 1/3 of the states currently have such statutes on the books). Exempt were individuals convicted of simple misdemeanor assault or battery (even for offenses that occur inside the home).

The case has now been appealed to the Supreme Court, which heard oral arguments on November 10. The Justices’ comments that day suggest that they are leaning toward upholding the Court of Appeals ruling. In one interesting exchange, Justice Antonin Scalia stated that possessing a gun was “lawful conduct” and the wife-beating charge against Hayes was “not that serious of an offense.” The government’s attorney countered that Hayes “hit his wife all around the face until it swelled out, kicked her all around her body, kicked her in the ribs…” Justice Scalia was unmoved, declaring that Hayes therefore “should have been charged with a felony, but he wasn’t.”

Justice Anthony Kennedy (a critical swing vote on the Court) found fault with the language of the Lautenberg Amendment, stating that it was “a mess.” Justice Ruth Bader Ginsburg countered this notion, however, saying: “Wasn’t the statute responding to just that problem, that domestic abuse tended to be charged as misdemeanors rather than felonies? And it was that fact that the Senator [Lautenberg] was responding to when he included misdemeanor. The whole purpose of this was to make a misdemeanor battery count for the statute’s purpose ... All the circuits that had this question before the floor read it the way the Government is urging.”

There is certainly a great deal at stake in the case. According to the Family Violence Prevention Fund, “Access to firearms increases the risk of intimate partner homicide more than five times than in instances where there are no weapons, according to a [2003 study entitled “Risk Factors for Femicide in Abusive Relationships: Results from a Multi-Site Case Control Study”]. In addition, abusers who possess guns tend to inflict the most severe abuse on their partners.” The Brady Center to Prevent Gun Violence has also pointed out that “about 14% of all police officer deaths occur during a response to domestic violence calls.”

It is disturbing to think that thousands of criminals such as Hayes (who failed to change his spots a full decade after his initial battery conviction) could find themselves rearmed in the near future. Indeed, a High Court ruling in favor of Hayes would force Congress to go back to the drawing table to redraft the language of the Lautenberg Amendment—an uncertain proposition even in an era of Democratic control.