Guns, Domestic Violence, and State Law: The Path Forward
The fifth anniversary of Sandy Hook has passed, mournfully, and surpassed in cost, if not pure horror, by its demented offspring in first Orlando, and now Las Vegas. By the time you read this, of course, some other town and some other locale may have taken its mournful place as the location du jour in America’s unceasing free-fire zone of sudden death. Instinctively, we have all accepted our role in the impotent farce that follows: the right will offer thoughts and prayers and focus rhetorically on mental illness, taking care to pay no attention to the gun control man behind the curtain. The left, meanwhile, will bring facts to a culture fight, screaming into the void of the deaf and decided. What both sides will tacitly agree is that words will, as always with gun violence, speak louder than actions; the fierce urgency of feebleness is all that shall animate the moribund political response. Nothing, at all, will change, legislatively, culturally, and practically, until the next Las Vegas or Orlando or San Bernardino begins the pathetic pantomime of societal incapability all over again. They killed our children, goes a popular dirge of resigned defeat, and we did nothing. Nothing will happen now. And so it goes, and ever will.
I can offer no — in a wincingly inappropriate phrase- silver bullet to solve the plague of 34,000 gun deaths per year in the United States. Following the rest of the Western World and disarming large swaths of the population, whatever its utility, is a debate that has been settled; nothing is served by repeating the tired arguments pro and for gun control, as if the sheer repetition will wear down the walls of cultural antagonism which separate the parties. Yet doing nothing is a resigned sigh of acceptance that our children, and their children, will be forever practicing active shooter drills, that simply walking in public carries a nonzero risk of dying in a sudden hail of bullets. We must look for some areas of progress to ensure that the obscene may become the normal, but never the accepted.
First, though, we need a proper foil. What degree of human malevolence should we recognize as a practical precursor to opening fire on the innocent? Who, precisely, needs to be disarmed? The question has been co-opted by the moment, viewed through the racialized fracture of American politics. Mass shooters are conceptualized as either brown-skinned adherents of Sharia law bringing unfathomable violence to American shores, or white-skinned loners of questionable mental sanity. The two occupy opposite ends of American mental spectrums: either a rational, evil foreigner or an irrational, deranged lost native soul. The left criticizes the dual box as racist; the right views the left as denying reality. Yet there is a middle ground, for both jihadi and native-born mass killers often share one trait.
I would not be the first to point out that trait is misogyny. Numerous press reports have now made the connection between misogynistic men and the physical expression of that impulse, domestic violence, to mass shootings. Omar Mateen, Orlando’s Pulse killer, beat his wife. So did Devin Patrick Kelley, the newest name in the annals of unrestrained American bloodshed. Senugh Hui Choi, the Virginia Tech killer, was accused of harassment and had been ordered by police to cease contacting a female student. Elliot Rodger, of course, despised women for rejecting him. Adam Lanza, who murdered 20 children and six adults at Connecticut’s Sandy Hook Elementary School in 2012, had a Word document on his computer explaining “why females are inherently selfish.” Dylan Roof mixed racial animosity and antifeminist loathing into an elixir of self-revulsion, justifying his murders at Charleston by saying “I have to do this because you are raping our women.” Jihadi killers, meanwhile, are not exactly known for progressive views on female equality: London Bridge terrorist Rachid Redoune beat his wife, as did Nice attacker Mohamed Lahouaiej-Bouhel.
The problem is not a new one, nor the putative solution: disarm domestic abusers, and perhaps, we can make great strides toward not only protecting intimate victims, but also toward solving the high tide of mass shootings. The law should be an obvious ally. At the federal level, disarmament already exists, at least on paper. Under the 1996 Lautenberg Amendment, which amends the Federal Gun Act of 1968, persons convicted of a felony or domestic violence misdemeanor, or who are subject to a domestic violence protective order, are prohibited from possessing guns. The Lautenberg Amendment also makes it a felony for anyone to sell or provide a firearm or ammunition to anyone they knew, or reasonably should have known, was convicted of a misdemeanor domestic violence offense or had a restraining order issued against them for an act of domestic violence. Violating the law carries a federal felony charge with a 10-year maximum sentence attached.
For over twenty years, therefore, domestic abusers have been, by federal law applicable to all Americans, disarmed by operation of law. So why hasn’t it worked out that way?
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Susan Hoke should have been safe. The 50-year old grandmother took precautions against Scott Hoke, her estranged husband: she used a curtain rod to barricade the door in what had been their shared home in York County, Pennsylvania, changed the locks and security codes on her home, and told her 17 year old daughter to keep a rifle in her room — just in case. Multiple times during the summer of 2016, she trusted in the system to protect her, as she turned to law enforcement for assistance. Scott had been convicted in August, 2016 of abusing her: he had pulled her hair, grabbed her by the head, and slammed her into a picnic table. A judge granted a temporary protective order, which Scott promptly violated, and then approved a final protective order shortly thereafter. Under both the Lautenberg rule and Pennsylvania state law, Scott Hoke was barred from owning a gun. Yet Scott Hoke never divested himself of his guns. The officers who arrested him made no search of his home. The judge who granted the protective order did not order him to give up his guns — in fact, the hearing records show that the judge did not even ask about firearms- and law enforcement took no actions to seize Hoke’s gun. Pennsylvania’s system, like that of so many states, ignores firearm ownership in domestic abuse matters if a gun wasn’t used in the abuse or the victim doesn’t specifically ask that the federal law be enforced, putting the victim in the impossible position of fearing retaliation from an abuser if such a request is denied or carried out half-heartedly. If Susan Hoke was even aware of governing law, she made no request for its enforcement. The protection order granted simply recited that if Hoke did possess a firearm, he “may be charged with a federal offense.”
Anodyne words are no match for the violent impulse of rage endemic to contaminated masculinity. Just two weeks later, Scott Hoke fatally shot Susan at the home they had once shared, put a gun to their daughter’s head, and then killed himself. Susan Hoke placed her trust in governing law as applied by public servants entrusted with the enforcement thereof, and she paid for that trust with her life.
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The Lautenberg Amendment, as a specific prohibition, has its holes. Domestic violence is narrowly defined to cover only co-habiting spouses or if they have a child in common. Dating partners are not covered. But 49% of intimate homicides are now committed by a non-spousal current or former romantic partner. Misdemeanor stalking is not covered, despite the fact that 85% of women whose partners attempted to kill them had first been the victim of stalking. And Lautenberg only applies to final orders of protection, which can often take weeks to receive; those men who were first subject to a temporary protective order, like Scott Hoke at first, are outside of the law’s grasp at the precise moment when they are at their most enraged.
Each of these defects are substantive, real flaws which undermine the purpose of the law. And yet the biggest issue with the Lautenberg Amendment isn’t what it doesn’t cover. It’s what it does. For while Lautenberg does bar the possession of guns, nowhere does it contain an enforcement mechanism to actually strip gun owners of their rights. Having adopted a standard, the law leaves it to local authorities to actually choose how, and in large part, whether, to enforce the provision at all. As it currently stands, the most likely method of enforcing Lautenberg as regards existing guns is the decision by convicted domestic violence abusers to learn of the law and voluntarily abide by it. As Susan Hoke learned, the gap between the intent of the law and its operation is a vast ocean.
Suffice it to say that a law that relies on the good faith of wife beaters is no law at all. It is a mere suggestion, a statement of how society should be rather than what we as its members demand it must be. It leaves enforcement to the vicissitudes of luck and hope, and all too often luck and hope fall before the iron and blood of actual bullets. Nothing speaks louder about the relative importance placed on disarming domestic violence offenders than the fact that a federal government which outlays $4 trillion per year allocates virtually no resources toward enforcing its own law.
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As we dig deeper, we begin to perceive that the vehicle for solving a defined problem is itself a bigger issue than the showier, headline issue. For while random mass shootings shock us with the brief burst of newsworthy intensity, murder by domestic violence, usually by gun, is a steady rain of acidic bitterness which continues unabated, day after day. Three women in America die each day on average, murdered by an intimate. That is appreciably more than the death toll from mass shootings of the Las Vegas kind. But we remember Las Vegas. We don’t remember Susan Hoke.
Enforcing disarmament of domestic abusers can serve a twin purpose of protecting everyday women and victims of random mass terror. It is a goal well worth pursuing. The easiest, and the most important step to knowing who to disarm is who actually owns a gun. Federal law, however, makes it illegal for the federal government or any state to keep any sort of database or registry that ties firearms directly to their owner. The NRA, doubtless having seen Red Dawn too often, feared that any sort of registry was a reverse-Schindler’s list of identifying gun owners, the predicate for mass confiscation. Therefore, there is no mechanism to simply run the names of domestic abusers through some database and know who, precisely, is in violation of Lautenberg. The federal background check system, or NICS, requires licensed gun dealers to check the record of a buyer use before selling a gun. Records of misdemeanor crimes of domestic violence and domestic violence restraining orders are housed in two of the three databases that feed the NICS. But these records are often incomplete — for instance, arrest records don’t always indicate whether they were followed by the conviction that would trigger a gun prohibition — making additional investigation necessary to determine if someone is ineligible to buy a gun. Worse, if that investigation exceeds 72 hours and a determination on a buyer’s record isn’t reached, a gun dealer can make the sale anyway. This is called the default-proceed loophole — the way by which Charleston church shooter Dylan Roof purchased the handgun he used to kill nine people. In any event, federal law requires all approved checks run through NICS to be destroyed within 24 hours. And of course, private sales, or sales through gun shows, are completely unregulated. If Ayman al-Zawahiri walked into a gun show and announced his desire to purchase an AR-15, no federal law would impede him. One could be forgiven in assuming that this collection of federal laws and regulations successfully impede, rather than enforce Lautenberg, because the rights accorded gun owners are accorded higher priority than the victims of domestic violence.
The federal government is in thrall to the Gun Power; its lone action since Las Vegas has been to pass a bill through the House federalizing concealed carry laws. But federalism works the other way as well. The states can, and have, with varying degrees of attempt, stepped into the enforcement breach. It is to the states that we must turn, with mournful eyes, to plug the gaps as best as they can.
Domestic violence is a state crime, as are the majority of violent acts: those to whom the federal Lautenberg rule applies are often therefore arrested on wholly state charges. The states, therefore, are the first — and often only — responders to the intractable issue of armed, dangerous abusers. In the dim light of hopelessness, we can begin to see the outline of an aggressive, intrusive regime which, if adopted throughout state governments, could dramatically reduce the threat of domestic violence and its demented offspring, mass shootings, without touching the proverbial “good guy with a gun” or “gentle hunter” archetypes.
Restricting the purchase of new guns by those who have committed domestic violence is a necessary first step. States can begin by requiring background checks on every gun sale, including online sales and at gun shows. Only 19 states require such background checks at the moment, meaning there are 31 states where an online or gun show buyer could well be subject to Lautenberg, and simply disregard it to purchase arms. This matters: in states with full background checks, 47% fewer women are shot by intimate partners. Background checks can be strengthened by ensuring proper state reporting to the federal government on the identity of abusers, but only 4 states- New York, Illinois, Massachusetts, and Minnesota explicitly require and establish procedures for the stage agency to report domestic violence offender identities to the NCIS databases. Only one state- Washington- currently notifies victims of domestic abuse when their abuser fails a background check. One would assume this information would be a glaring klaxon warning to a victim, and yet 49 states deem it functionally irrelevant to communicate.
That, perhaps, will make it harder for abusers to acquire guns. But what can be done about the guns already possessed by abusers? The heart of the intent of Lautenberg is forcible disarmament when an abuser is convicted of a misdemeanor or is subject to a final protective order. Yet only 27 states have any requirement to surrender of guns upon the issuance of a protective order, and even within these states, the mechanism to ensure compliance varies greatly. Some states permit, but do not require, judges to mandate that the abuser surrender firearms, which as we have seen, is wholly ineffective. The strongest state laws are those passed recently by New Jersey, which requires law enforcement to remove firearms upon the issuance of the order. Yet only 4 states have such a strict standard. Many states have carve-outs and exceptions built in to ensure that the requirement is less than mandatory and less than enforced. In New York, for example, a court issuing a protective order (including an ex parte order) must order the immediate surrender of all firearms owned or possessed by an abuser, but only if the court finds a “substantial risk” that the abuser may use or threaten to use a firearm unlawfully against the victim. Requiring the surrender on the issuance, and requiring law enforcement to ensure surrender occurs, using search warrants if necessary, is the guts of a regime to get guns out of the hands of those subject to protective orders.
Just as bad is the surrender rate for those convicted of misdemeanor domestic violence. Only 10 states specifically require those convicted of such crimes to surrender their guns. A strong, powerful system intending to aggressively remove such agents of death would require that any court convicting a person of domestic violence to inquire of the victim and other witnesses whether the abuser owns any firearms and identify where they are located. The law should require the court to provide written and oral notice to the abuser, require the abuser to provide law enforcement with a list, certified under perjury, of the location of all firearms, and the court must — not may- — require the surrender of firearms to law enforcement. The last point is important: even some states requiring the surrender permit the surrender to third parties, which can include parties who themselves should not be owning firearms, thereby simply exacerbating the issue. To effectuate the surrender, courts which have probable cause to believe the defendant owns firearms must be empowered to issue warrants. Law enforcement should then be empowered to transfer the firearms to a federally licensed dealer for further sale.
Broader, still — we can attempt to temporarily remove firearms from those who appear poised to commit violent acts, in certain, limited circumstances. New laws in California, Oregon, and Washington permit concerned family members to petition the court to temporarily disarm a potentially dangerous individual, seeking a new concept in law: an extreme risk protective order. The order is a civil petition filed in a local court in which the person bringing the petition must show that the individual is a potential danger to himself and to others; if a court, weighing the evidence and the individual’s 2nd amendment rights, agrees, the court will issue an order lasting up to one year which requires the respondent to surrender all firearms to local law enforcement or a licensed gun dealer. Critically, the court has the right to issue a search warrant for law enforcement to enter and search a respondent’s home or other locale as necessary to remove the firearms.
We can go further than Lautenberg, too. Even an arrest, without a conviction or protective order, should be a warning sign requiring at least a temporary confiscation. Only 18 states permit law enforcement to temporarily confiscate weapons when they arrive at the scene of a domestic violence incident; only 13 require it. Some states have extraordinarily weak laws: Oklahoma, for example, only permits the confiscation of weapons used in the incident, and only if the abuser is simultaneously arrested. One wonders how a victim of a battering feels if the abuser owns multiple weapons and used “only” his fists in the incident in question.
A brief note on the last point. It may seem irresponsible, let alone incomprehensible, but even visible injuries on a battered woman will not lead police to seize guns of abusers, at least temporarily, to avoid further bloodshed. On February 19, 2014, in Glade Spring, Virginia, police were called to the scene by Kristin Palmer, alleging that her ex-husband Kevin had, as detailed in her harrowing affidavit, “kicked me, strangled me, tried to drown me, slapped me, dragged me by the hair, and bit me.” He was arrested and booked on two counts of assault and battery, and Kristin was granted an emergency protective order. Yet despite her ex husband bragging that he “owned enough guns to take out the entire state of West Virginia”, and despite the visible injuries present at the arrest scene on Kristin Palmer’s face, the protective order only made it illegal for Kevin to purchase firearms. He was explicitly permitted to retain his existing collection, and police made no attempt to search for weapons or disarm him, either at arrest, or thereafter. Just one week later he killed Kristin Palmer and three other family members in a mass shooting.
Suffice it to say that no good people, whether ardent gun owner or dedicated antigun pacifist, desires more stories which end as Kristin Palmer’s did. An aggressive, intrusive state regime incorporating all of the above policies should offend neither party. It should bother the NRA not a whit that batterers are subject to the removal of their firearms: whatever a “good guy with a gun” is, this certainly is not it. It should not offend even the most dedicated Second Amendment scholar, as “well regulated”, if it means anything, surely must mean that regulation aimed at keeping guns from the utter cretins vomiting intimate violence on their most trusted partners is not only permissible, but desirable. Our yawning national partisan schism should not prevent resolute local action: deep red states like Utah and North Dakota have passed laws targeting the bloody nexus between domestic violence and gun ownership. State action is, at minimum, within the tangible grasp of the possible.
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These steps, even if adopted by all 50 states, will stop neither intimate homicide nor mass shootings. Only the mass disarmament (whatever it merits) of the population can or will largely end those twin plagues on our nation. Yet guns are so inexorably linked to the pathology of white individual potency, largely male and rural, and hence, now perceived eclipse and victimization, that there is as much of a chance as regulating them even minutely as there is of passing any law which white grievance now sees as harmful. Widespread access to firearms is simply something we as a nation have been forced to swallow as the price of continuing as a unified republic.
But that does not mean we simply do nothing. Whatever our divisions, the deep creases of antagonism feeding tributaries of mistrust which run across our land, can we at least, at absolute minimum, agree that those convicted of violent acts or stalking of current or former romantic partners should be stripped of their right to own lethal firearms? Can we at least look each other in the eyes and say that the bonds of citizenship and good decency have cast us as stewards of a great experiment in self-governance, and that certain things are simply beyond the pale? If anything is wrong, if we can say that anything must simply be affirmed by the common union of acceptance between left and right, of people of collective values, is it not that batterers of our mothers, daughters, and sisters cannot retain the tools to convert angry perceptions of lost proprietorship to outright execution?
Women have an important role to play here, but let us not mince words: men own 74% of the guns in this nation, and 85% of victims of domestic violence are women. The number of American women murdered between 2001 and 2012 by guns fired by intimate partners was nearly double the number of American troops killed in Iraq and Afghanistan combined. Ponder that for a moment: an American woman was statistically safer as a combat soldier during wartime than in her own living room. Most astoundingly, to our eternal shame, 3.5 percent of women in the United States reported experiencing nonfatal gun use in intimate partner violence. That’s equivalent to 4.5 million women having their partners threaten them with a gun. Another 1 million have been shot or shot at by an intimate partner. Picture a city the size of Los Angeles, in which every denizen is a female who has been threatened with a gun, and you will begin to see the outlines of the massive problem.
While mass shootings get the press, the drumbeat of gun violence against women has been shrugged off far too long. Our sisters in citizenship deserve our attention to the systematic degradation we have tacitly acknowledged as an unfortunate familial issue, a truth to be regarded with shame and squirming, but little direct confrontation. There are many aspects of America to which we have looked in the mirror lately and said, in some form, We are better than this. Are we? Now would be a wonderful time to begin to live up to our own creed.
Disarm domestic abusers, now. Not in law, or in form, but in substance. Put real resources into a noble effort, and perhaps, we can make a dent toward stopping both the systematic brutality American women live with daily, and the all-too common bursts of mass-casualty fire which baptize our political compact in the blood of the innocent.
