Boyfriend loophole

From Wikipedia, the free encyclopedia

The term boyfriend loophole refers to a gap in American federal and some state gun laws that allows access to guns by adjudicated dating abusers. While federal law and many states' laws restrict firearm access by respondents to final protective orders (individuals who are subject to domestic violence protective orders issued after a hearing at which the individual had the opportunity to appear)[1] and domestic violence misdemeanants (individuals who have been convicted of the misdemeanor crime of domestic violence),[2] the federal prohibition on firearm possession by an intimate partner only applies if parties are current or former spouses, current or former cohabitants, or share a child in common.[3] People who have been convicted of a misdemeanor crime of domestic violence against a dating partner and respondents to final dating violence protective orders are not prohibited by federal law from possessing firearms, nor are prohibited in many states from possessing firearms. Approximately half of intimate partner homicides are committed by abusive dating partners,[4] and dating violence comprises approximately 80% of domestic violence law enforcement contacts.[5]

Background[]

In 1994, Congress passed the Violence Against Women Act (VAWA)[6] as part of the 1994 omnibus crime bill. The 1994 VAWA included a provision prohibiting respondents to final protective orders from possessing firearms if the order includes certain finding and/or certain relief and protects an intimate partner (defined as a current or former spouse, current or former cohabitant, or a person who shares a child in common)[7] or the child of such intimate partner.[8]

Two years later, in 1996, Congress passed what is now known as the Lautenberg Amendment, which prohibits domestic violence misdemeanants from possessing firearms if the crime for which the individual was convicted included as elements the use or attempted use of physical force or a threat with a deadly weapon.[9] Similar to the domestic violence protective order prohibitor (status that prohibits the person with that status from possessing firearms), the misdemeanor crime of domestic violence prohibitor applies to current or former spouses, current or former cohabitants, people who share a child in common, parents, and guardians of the victim.[10]

Neither the domestic violence protective order prohibitor nor the misdemeanor crime of domestic violence prohibitor cover dating partners who do not cohabit or share a child in common.

Connection between domestic violence, dating violence, and firearms[]

The Kelly Report. (Gun Violence in America, 2014)[11]

Intimate partner violence stems from the abusive partner's feelings of entitlement to exert power and coercive control over their victim.[12] Firearms are regularly used as a tool of power and coercive control. Abusers threaten to harm or kill their partners, their children, their pets, community members, and themselves. A 2021 study found that 13.6% of American women and 5.6% of American men are threatened by intimate partners with firearms in their lifetimes. Of women who were threatened by armed abusers, 43% sustained an injury.[13] 10% of respondents to a survey by the National Domestic Violence Hotline reported that an abusive partner had fired a gun at them; of these, two-thirds believed their abusive partner was capable of killing them.[14]

Firearms are also the tool of choice for intimate partner homicides. Most intimate partner homicides are committed with firearms - i.e. more intimate partners are killed using firearms than by all other methods combined.[15] A male abuser's access to firearms increases the risk of intimate partner femicide (homicide of a woman) by 1,000%.[16] Moreover, although intimate partner homicides using means other than firearms are decreasing, the overall rate of intimate partner homicides has increased in recent years, driven entirely by a substantial increase in homicides committed using firearms.[17] Armed abusers also target people other than their intimate partners. 20% of people killed in intimate partner homicides were individuals other than the abused party, including family members, new partners, lawyers, and law enforcement. Half of the family members who were corollary victims were children.[18] 54% of mass shootings between 2009 and 2017 involved intimate partners or family members.[19] 95% of homicides committed against law enforcement responding to a domestic violence call between 1996 and 2010 were committed using firearms.[20]

Dating violence is intimate partner violence against a dating partner. It has the same dynamics as spousal abuse, and survivors experience the same level of physical violence that victims of spousal abuse do. Approximately half of intimate partner homicides are committed against dating partners rather than current or former spouses.[21] As societal patterns change, and people date for longer periods before moving in together, getting married, and/or having children, this percentage is expected to increase.[22] Recognizing the danger that dating abusers pose to their victims, in 2005, Congress included dating partners in the interstate crime of domestic violence.[23]

Historical Development: The Violence Against Women Act (1994) and the Lautenberg Amendment (1996)[]

The primary legislation is the Gun Control Act of 1968 (GCA).[24] This is one of the United States federal laws that regulate firearm owners and the firearm industry. The first effort to address the GCA to sift out individuals who were under domestic violence protective orders from accessing firearms occurred in 1994.[25] This provision was part of the first Violence Against Women Act. It prohibits respondents to protective orders issued after a hearing at which the respondent had the opportunity to appear from possessing firearms if: a) the protected party is an intimate partner (current/former spouse, current/former cohabitant, shares a child with the respondent) or is the child of an intimate partner; and b) restrains the respondent from harassing, stalking, threatening, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to themself or their child; and c) includes a finding that the respondent represents a credible threat to the intimate partner or child or explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.[26] This prohibitor is only in effect for the period of time in which the protective order is in effect.

This provision, however, did not prohibit most people convicted of domestic violence from possessing firearms.[27] Thus, Congress passed what is commonly known as the Lautenberg Amendment to address this gap.

The Lautenberg Amendment was proposed by Senator Frank Lautenberg, a Democrat from New Jersey. On March 21, 1996, the United States Senate passed the bill as an amendment to a federal omnibus appropriations bill, and President Clinton signed it into law four months later.[28] The Lautenberg Amendment prohibits individuals convicted by a court of a misdemeanor crime including physical harm or attempted physical harm or a threat with a deadly weapon against an individual committed by a current/former spouse, current/former cohibitant, individual with whom the offender shares a child in common, parent, guardian, or person similarly situated to a spouse, parent, or guardian.[29] The prohibitor is not permanent - it does not apply to individuals who have had their convictions expunged or set aside, been pardoned, or had their civil rights restored, unless the status change specifically stipulates that they remain ineligible to possess firearms.[30]

The Senate voted almost unanimously in favor of this amendment.[31] This law was an amendment to the existing eight other statuses restricting an individual's firearms access.[32]

Senator Frank Lautenberg of the United States Congress
Restraining Order detailing a potential firearms ban

The amendment was intended to close an existing gap in the federal Gun Control Act of 1968 (GCA) directed towards domestic violence prosecutions, which were usually either charged as a misdemeanor or, as a result of a plea-bargain agreement was reduced from a felony to a misdemeanor, due entirely to the relationship between the victim and the perpetrator.[27] Testimony in support of the bill's passage was given by National Coalition Against Domestic Violence[33] and the National Network to End Domestic Violence.[34] Senator Lautenberg in his address repeated what a previous speaker said in that this bill he proposed “stands for the simple proposition that if you beat your wife, you should not have a gun".[28]

States addressing the boyfriend loophole[]

As of 2020, 19 states and Washington DC.[35] have taken up legislation to impose stricter controls than the federal law does. These states have adopted laws prohibiting abusive dating partners, boyfriends or girlfriends who have been convicted of domestic violent crimes from possessing guns. Further, domestic violence restraining orders have been passed by 20 states and Washington DC.[35] In all, 32 states and the District of Columbia have taken steps to partially or fully close the boyfriend loophole.[36] Laws prohibiting stalkers from possessing guns have similarly been addressed by 19 states.[35] An analysis in the American Journal of Epidemiology argues that the impact of these state laws includes a 16% decrease in intimate partner homicide rates and a 13% decrease in intimate partner homicide rates.[35]

Closing the boyfriend loophole in federal law[]

Closing the boyfriend loophole in federal law does not require the creation of a new category of prohibited persons. Instead, it brings the definitions of 'intimate partner'[37] and 'misdemeanor crime of domestic violence'[38] in the firearms code into alignment with the federal crime of interstate domestic violence[39] by adding dating partners to the covered relationships. Thus, the outcomes of the Supreme Court challenges to the domestic violence prohibitors below apply equally to dating partners as to individuals who committed violence against a person protected under current definitions.

History of Constitutional challenges to the Federal domestic violence prohibitors[]

The Supreme Court has heard three cases challenging the misdemeanor crime of domestic violence prohibitor. In United States v. Hayes, the Court ruled that a misdemeanor crime did not need to be called 'domestic violence' in order to trigger the federal prohibitor, as long as the relationship between the parties was one of those enumerated in federal law.[40] In United States v. Castleman,[41] the Supreme Court ruled that the degree of physical force required to trigger the federal firearms prohibitor is such that would be required for a common law battery conviction. Finally, in Voisine v. United States, the Court ruled that reckless domestic assault triggers the federal firearms prohibitor.[42] In none of these cases did the Supreme Court find that any element of the misdemeanor crime of domestic violence prohibitor was unconstitutional.

Related Supreme Court cases[]

The Supreme Court has rejected arguments that domestic violence is potentially a violation of the Fourteenth Amendment's Due Process Clause.[43] Its position is that the clause does not impose duty upon states to protect persons from injury caused by other private individuals. This position was amplified in Deshaney v. Winnebago County Department of Social Services, where the courts held that "(a) State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause".[44] The Fourteenth Amendment rights of a 4-year-old child were not held to be violated after the child suffered near-fatal abuse that was alleged to have been partly the fault of the state's child protection agency. The Court held that the Constitution does not impose an obligation for the government to provide help, “even when such aid may be necessary to secure life, liberty, or of which government itself may not deprive the individual.[44]

This argument eventually developed to encompass the area of intimate partner violence in the case of Town of Castle Rock v. Gonzales.[45] The Supreme Court found that no constitutional responsibility was imposed by the Fourteenth Amendment’s procedural Due Process clause.[45] In this case, failure by police to take action against Jessica Gonzales’ allegedly abusive husband, who was accused of violating a protective order by kidnapping the couple's children. The bodies of her deceased children were found that evening. Ms. Gonzales had called the police several times during the day to report the missing children, and she had visited the police station at least once to report the matter in person. Her husband later arrived at the Castle Rock police station died in a shootout with officers there. The Courts held that the Colorado officials’ actions (or inaction) did not violate Ms. Gonzales’ constitutional rights.

Both rulings in Deshaney v. Winnebago County Department of Social Services and Town of Castle Rock v. Gonzales show that constitutionally enshrined individual rights does not protect an individual from harm by abusers due to action (or inaction) by the government.[46] The implication is that constitutional challenges brought by alleged or convicted abusers claiming police action (inaction) directly resulting in abuse involving firearm from a boyfriend is likely to fail.

Legislation to close the boyfriend loophole[]

Recognizing the importance of closing the boyfriend loophole, many Members of Congress have introduced bills to close the Federal loophole. While not an exhaustive list, the following highlights some of the bills that have been introduced in the 117th Congress that include provisions to close the boyfriend loophole.: Protecting Domestic Violence and Stalking Victims Act of 2021 (S.527)/Zero Tolerance for Domestic Abusers Act (H.R.1494); Lori Jackson Domestic Violence Survivor Protection Act (H.R.1923/S.763); Protecting Domestic Violence and Stalking Victims Act of 2021 (H.R.1906); Violence Against Women Reauthorization Act of 2021 (H.R.1620)

H.R.1620, the Violence Against Women Reauthorization Act of 2021, passed the House of Representatives with strong bipartisan support. Negotiations are ongoing on a Senate companion bill. Although the National Rifle Association (NRA) did not weigh in on H.R.1620, they issued a “key vote” alert against a similar VAWA reauthorization bill in the 116th Congress to members of Congress during the proceedings to warn that they may be scored and rated in NRA ratings as a result of their votes.[47] The public position of the National Rifle Association (NRA) is that closing the boyfriend loophole is an attempt to increase gun control by Democrats.[48] The NRA is the oldest advocacy group in America.

Example of House of Representatives (State of Kentucky)

Opponents of closing the boyfriend loophole express concern about two issues: (a) that closing the boyfriend loophole is retroactive and (b) that adding dating partners to the misdemeanor crime of domestic violence prohibitor will result in a lifetime ban. According to the National Coalition Against Domestic Violence, closing the boyfriend loophole is not retroactive. "Closing the boyfriend loophole does not impose a criminal punishment based on conduct that occurred before the loophole was closed. The penalty would accrue to adjudicated abusers who illegally possesses a firearm after the boyfriend loophole is closed, not to abusers who legally possess firearms before the loophole is closed. None of the prohibitors are retroactive, and this definition change to an existing prohibitor does not change that."[49] The National Coalition Against Domestic Violence also states that the misdemeanor crime of domestic violence prohibitor is not permanent: ". . . adjudicated abusers can have their gun rights restored by having their records expunged or set aside, obtaining a pardon, or having their civil rights restored."[50]

Public survey[]

Two national public surveys by GfK Knowledge Networks between the 2nd and 14 January 2013, applied equal probability sampling from a selected frame covering 97% of residential addresses in America.[51] The aim of the survey was to find out the level of American support for gun restriction policies and was published in the New England Journal of Medicine (NEJM). The survey indicated that of the 31 gun policies proposed, only 4 were not supported.[51] The same survey indicates that 62% National Rifle Association (NRA) members also support policies which include preventing individuals convicted of domestic violence from owning a gun for 10 years, though legislative efforts to date have generally aimed at a ban based on the individual's status as someone who has been convicted of a criminal act.[51]

See also[]

  • Gun Control Act
  • Violence Against Women Act § Reauthorizations

References[]

  1. ^ 18 United States Code 922(g)(8)
  2. ^ 18 United States Code 922(g)(9)
  3. ^ 18 United States Code 921(a)(32) & (33)
  4. ^ Cooper, A. & Smith, E. L. (2011).  Homicide trends in the United States, 1980-2008. Retrieved from http://www.bjs.gov/content/pub/pdf/htus8008.pdf.
  5. ^ Sorenson, S. B. & Spear, D. (2018).  New data on intimate partner violence and intimate relationships: Implications for gun laws and federal data collection.  Preventive Medicine, 107, 103-108.  https://doi.org/10.1016/j.ypmed.2018.01.005
  6. ^ Pub.L. 103–322
  7. ^ 18 United States Code 921(a)(32)
  8. ^ 18 United States Code 922(g)(8)
  9. ^ 18 United States Code 921(a)(33), 18 United States Code 922(g)(9)
  10. ^ 18 United States Code 921(g)(9)
  11. ^ Kelly, Robin L. (2014). Kelly Report. United States: Congress.
  12. ^ National Coalition Against Domestic Violence. Dynamics of abuse. Retrieved from https://ncadv.org/dynamics-of-abuse.
  13. ^ Adhia, A., Lyons, V. H., Moe, C. A., Rowhani-Rahbar, A., & Rivara, F. P. (in press). Nonfatal use of firearms in intimate partner violence: Result of a national survey. Preventive Medicine. https://doi.org/10.1016/j.ypmed.2021.106500
  14. ^ National Domestic Violence Hotline (2014).  Firearms and domestic violence.  Retrieved from http://www.thehotline.org/resources/firearms-dv/#tab-id-2.
  15. ^ Violence Policy Center (2020).  When men murder women: An analysis of 2018 homicide data.  Retrieved from http://www.vpc.org/studies/wmmw2020.pdf.
  16. ^ Spencer, C. M. & Stith, S. M. (2020). Risk factors for male perpetration and female victimization of intimate partner homicide: A meta-analysis. Trauma, Violence, & Abuse, 21(3), 527-540. DOI: 10.1177/1524838018781101
  17. ^ Fridel, E. E. & Fox, J. A. (2019). Gender differences in patterns and trends in U.S. homicide, 1976-2017. Violence and Gender, 6(1), 27-36. doi: 10.1089/vio.2019.0005
  18. ^ Smith, S. G., Fowler, K. A., & Niolon, P. H. (2014). Intimate partner homicide and corollary victims in 16 states: National Violence Death Reporting System, 2003 - 2009. American Journal of Public Health, 104(3), 461-466. DOI: 10.2105/AJPH.2013.301582
  19. ^ "Guns and Violence Against Women: America's Uniquely Lethal Domestic Violence Problem". EverytownResearch.org. Retrieved June 1, 2019.
  20. ^ Kercher, C., Swedler, D. I., Pollack, K. M., & Webster, D. W. (2013). Homicides of law enforcement officers responding to domestic disturbance calls. Injury Prevention, 19(5), 331-335. http://dx.doi.org/10.1136/injuryprev-2012-040723
  21. ^ Cooper, A. & Smith, E. L. (2011).  Homicide trends in the United States, 1980-2008.  Retrieved from http://www.bjs.gov/content/pub/pdf/htus8008.pdf.
  22. ^ National Coalition Against Domestic Violence (2015). Teen, campus and dating violence. Retrieved from https://assets.speakcdn.com/assets/2497/dating_abuse_and_teen_violence_ncadv.pdf.
  23. ^ 18 United States Code 2261
  24. ^ Neumann, Caryn (2013), "Gun Control Act of 1968", Encyclopedia of the Fourth Amendment, CQ Press, doi:10.4135/9781452234243.n342, ISBN 9781604265897
  25. ^ "1116. Prosecutions Under 18 U.S.C. § 922(g)(8)". www.justice.gov. February 19, 2015. Retrieved June 1, 2019.
  26. ^ 18 United States Code 921(a)(32), 18 United States Code 922(g)(8)
  27. ^ a b https://www.justice.gov/sites/default/files/osg/briefs/1999/01/01/99-0106.resp.pdf
  28. ^ a b Bovard, James (December 23, 1996). "Disarming Those Who Need Guns Most". Wall Street Journal. Retrieved June 1, 2019.
  29. ^ 18 United States Code 921(a)(33), 922(g)(9)
  30. ^ 18 United States Code 921(a)(33)
  31. ^ "U.S. Senate: U.S. Senate Roll Call Votes 104th Congress - 2nd Session".
  32. ^ 18 United States Code 922(g)
  33. ^ Franzblau, Susan H.; Echevarria, Sonia; Smith, Michelle; Van Cantfort, Thomas E. (December 2008). "A preliminary investigation of the effects of giving testimony and learning yogic breathing techniques on battered women's feelings of depression". Journal of Interpersonal Violence. 23 (12): 1800–1808. doi:10.1177/0886260508314329. ISSN 0886-2605. PMID 18319369. S2CID 40624539.
  34. ^ "The Hon. Donna F. Edwards | Brennan Center for Justice". www.brennancenter.org. Archived from the original on June 1, 2019. Retrieved June 1, 2019.
  35. ^ a b c d Zeoli, April M; McCourt, Alexander; Buggs, Shani; Frattaroli, Shannon; Lilley, David; Webster, Daniel W (November 29, 2017). "Analysis of the Strength of Legal Firearms Restrictions for Perpetrators of Domestic Violence and Their Associations With Intimate Partner Homicide". American Journal of Epidemiology. 187 (7): 1449–1455. doi:10.1093/aje/kwx362. ISSN 0002-9262. PMID 29194475.
  36. ^ CA, CT, DE, DC, HI, IL, IN, KS, LA, ME, MD, MA, MI, MN, MT, NE, NV, NH, NJ, NM, NY, NC, ND, OH, OR, PA, RI, TX, UT, VT, WA, WV, WI
  37. ^ 18 United States Code 921(a)(32)
  38. ^ 18 United States Code 921(a)(33)
  39. ^ 18 United States Code 2261
  40. ^ 555 U.S.415 (2009)
  41. ^ 134 S. Ct. 1405 (2014)
  42. ^ 136 S. Ct. 2272 (2016)
  43. ^ "14th Amendment". LII / Legal Information Institute. Retrieved June 1, 2019.
  44. ^ a b "DeShaney v. Winnebago Cty. DSS, 489 U.S. 189 (1989)". Justia Law. Retrieved June 1, 2019.
  45. ^ a b "Castle Rock v. Gonzales, 545 U.S. 748 (2005)". Justia Law. Retrieved June 1, 2019.
  46. ^ CASSELL, PAUL G.; MITCHELL, NATHANAEL J.; EDWARDS, BRADLEY J. (2014). "Crime Victims' Rights During Criminal Investigations? Applying the Crime Victims' Rights Act Before Criminal Charges Are Filed". The Journal of Criminal Law and Criminology. 104 (1): 59–103. ISSN 0091-4169. JSTOR 44114700.
  47. ^ "The NRA is actively opposing a new law that would stop domestic abusers from having firearms". The Independent. March 28, 2019. Retrieved June 2, 2019.
  48. ^ Ashley Killough (April 4, 2019). "House passes reauthorization of Violence Against Women Act". CNN. Retrieved June 2, 2019.
  49. ^ National Coalition Against Domestic Violence (2021). Closing the boyfriend loophole. Retrieved from https://assets.speakcdn.com/assets/2497/closing_the_boyfriend_loophole_fact_sheet.pdf?1621612898920.
  50. ^ Ibid.
  51. ^ a b c Barry, Colleen L.; McGinty, Emma E.; Vernick, Jon S.; Webster, Daniel W. (March 21, 2013). "After Newtown — Public Opinion on Gun Policy and Mental Illness". New England Journal of Medicine. 368 (12): 1077–1081. doi:10.1056/nejmp1300512. ISSN 0028-4793. PMID 23356490.
Retrieved from ""