Appendices: Domestic Violence and Firearm Surrender in Rhode Island

November 4, 2019

Appendix A: Legal Analysis
The Protect Rhode Island Families Act

For more than 20 years, federal law has generally prohibited firearm possession by people who are subject to a final court-ordered domestic violence Order of Protection.18 U.S.C. 922(g)(8), (9). Federal law does not require these abusers to relinquish their firearms when they become prohibited from having them. But until the passage of the Protect Rhode Island Families Act, Rhode Island state law did not. Rhode Island judges were permitted to exercise discretion when deciding whether a domestic abuser subject to an Order of Protection should be prohibited from possessing firearms and required to relinquish any firearms in their possession. Judges rarely exercised this discretion: Domestic abusers who were subject to a final Order of Protection were ordered not to possess firearms in only 5 percent of cases, including only 13 percent of cases where there was written evidence of a firearm threat.Everytown for Gun Safety, Domestic Abuse Protective Orders and Firearm Access in Rhode Island, June 2015. https://everytown.org/documents/2015/06/rhode-island-dv-whitepaper.pdf/

The Protect Rhode Island Families Act was intended to ensure that every final Order of Protection issued in Rhode Island would prohibit the defendant from possessing firearms and require the defendant to surrender any firearms in their possession for the duration of the order. Changes to the code and statements of legislative intent clearly indicate that the firearm conditions were meant to be made mandatory for all final Orders of Protection issued pursuant to chapter 15 of title 15 or chapter 8.1 of title 8. While there are arguably ambiguities in the law regarding temporary, ex parte orders, the changes made to the Rhode Island code leave no doubt that these firearms conditions are mandatory for all final Orders of Protection.

When the bill was signed into law, the General Assembly published a press release celebrating the fact that the law would “prohibit gun possession by domestic abusers… subject to court-issued final protective orders, and ensure that all those subject to the prohibition actually turn in their guns when they become prohibited from possessing them.”State of Rhode Island General Assembly, “Domestic Violence Gun Safety Legislation Signed by Governor” (press release, October 30, 2017), http://www.rilin.state.ri.us/pressrelease/_layouts/RIL.PressRelease.ListStructure/Forms/DisplayForm.aspx?List=c8baae31-3c10-431c-8dcd-9dbbe21ce3e9&ID=13261. Upon signing the legislation, Governor Gina Raimondo published a press release reiterating this important impact of the law, informing Rhode Islanders that the law “will require individuals with a final protective order issued against them or those convicted of a misdemeanor domestic violence offense to physically surrender their firearms within 24 hours.”Office of the Governor [Rhode Island], “Raimondo Ceremonially Signs Legislation Prohibiting Domestic Abusers from Possessing Firearms” (press release, October 30, 2017), https://www.ri.gov/press/view/31856.

As summarized above in this report, research conducted by Everytown and the Moms Demand Action demonstrates that judges and administrators in the Rhode Island Family Court have not interpreted the law as requiring firearm surrender in every case. Judges continue to exercise discretion regarding whether they require the defendant to surrender all firearms in their possession. Judges fail to require the defendant to surrender their firearms in the majority of cases, despite unambiguous written notices on all Orders of Protection stating that all defendants to a final Order of Protection will be ordered to surrender their firearms.

Mandatory firearm prohibition pursuant to criminal law

The Protect Rhode Island Families Act amended R.I. Gen. L. § 11-47-5(b), inserting a new criminal prohibition against domestic abusers possessing firearms. The provision states: “No person shall purchase, carry, transport, or have in his or her possession any firearm if that person is subject to [an Order of Protection], which order was issued after the person restrained has received notice of the proceedings and had an opportunity to be heard.” The penalty for violating this law is imprisonment for no less than two years and no more than 10 years.R.I. Gen. L. § 11-47-5(d).

This criminal provision makes it abundantly clear that any abuser subject to an Order of Protection that was issued after they had notice and an opportunity to be heard is prohibited from possessing a firearm and will face criminal prosecution and imprisonment if they are found in possession of a gun. This provision applies to all domestic abusers subject to such an Order of Protection, regardless of what forms of relief were requested by the petitioner or whether the judge checks the firearm prohibition and surrender box on the Family Court Order of Protection form. The checkboxes on the petition and Order forms are relics of the state’s previous discretionary approach to firearm prohibition and surrender and should be updated to accurately reflect the recent changes to Rhode Island law. This means that if a defendant to a final Order of Protection fails to surrender their firearms, they will be subject to serious criminal penalties.

Mandatory firearm prohibition and surrender for final orders pursuant to civil law

Read together, the new notice provisions in § 15-15-3 and the above criminal prohibition (§ 11-47-5(b)) provide the clearest evidence that firearm prohibition and surrender are now mandatory features of all final Orders of Protection issued in Rhode Island Family Court.

Prior to the passage of the Protect Rhode Island Families Act, § 15-15-3(c) required the Family Court to include a notice on all forms requesting an Order of Protection informing the petitioner that “at the hearing for a protective order, the defendant may be ordered to surrender physical possession or control of any firearms and not to purchase or receive or attempt to purchase or receive any firearms for a period not to exceed the duration of the restraining order” (emphasis added).

The Protect Rhode Island Families Act amended this section to require the Family Court to notify petitioners that firearm surrender was now mandatory in all such cases, expressly directing that the Family Court “provide a notice on all forms requesting a protective order that a person restrained under this section shall be ordered pursuant to § 11-47-5 to surrender possession of any firearms while the protective order is in effect” (emphasis added). 15-15-3(a)(4), (c). Emphasis added.

    NOTICE PURSUANT TO G.L. 1956 § 15-15-3(c) A person restrained under G.L. 1956 § 15-15-3(c) shall be ordered pursuant to G.L. 1956 § 11-47-5 to surrender possession of any firearms while the protective order is in effect; and shall be entitled to a hearing within fifteen (15) days of surrendering any firearms.

This notice clearly announces to survivors of domestic violence who petition for Orders of Protection that every person restrained by an Order of Protection pursuant to § 11-47-5 will be ordered to surrender possession of their firearms while the order is in effect. As stated in the notice, surrender will be ordered in all cases pursuant to Rhode Island law and is not contingent upon any additional request or showing by petitioner. The General Assembly made this change because it recognized the danger of the previous standard, which required petitioners to affirmatively request that firearm prohibition and surrender be included as conditions of an Order of Protection, forcing survivors to choose between the safety of firearm surrender and the potential risk of retribution for requesting additional relief.

In sum, there is no reason to think that the intended or actual effect of the Protect Rhode Island Families Act is to prohibit domestic abusers from possessing guns, impose steep penalties for those who do continue to possess guns, and notify all parties that abusers will be ordered to surrender their guns, while simultaneously permitting Family Court judges to regularly issue final Orders of Protection that trigger that prohibition but do not require the abuser to surrender their firearms. This practice serves only to place prohibited defendants in legal jeopardy and survivors of domestic abuse at risk of harm from an abuser armed with a gun.

Firearm prohibition and surrender for ex parte temporary and final Orders of Protection pursuant to civil law

While there are indications that the new law may have been intended to also require judges to order all defendants subject to a temporary Order of Protection to surrender their firearms, the text of the law is unclear as to whether this requirement applies in all temporary orders. Nonetheless, judges are clearly permitted to order defendants subject to a temporary Order of Protection to surrender their firearms. When a plaintiff files a petition for an Order of Protection, a Family Court judge may enter “any” temporary order that is “necessary” to protect the plaintiff, without notice to the defendant, provided that the judge has made a finding that “immediate and irreparable injury, loss, or damage will result to the plaintiff” before the defendant can be served. R.I. Gen. L. § 15-15-4(2). It is clear that “any” order necessary to protect the plaintiff will often include a firearm surrender order.

The Protect Rhode Island Families Act made extensive changes to R.I. Gen. L. § 15-15-3, which governs the issuing of Orders of Protection by the Family Court. Associated changes were also made to R.I. Gen. L. § 8-8.1-3. Pursuant to § 15-15-3(a) of Rhode Island law, a survivor requesting an Order of Protection is entitled to seek an order that will “protect and support her or him from abuse.” Under the amended law, the listed conditions of such an order may include requiring “the defendant to surrender physical possession of all firearms in his or her possession, care, custody, or control and shall further order a person restrained not to purchase or receive, or attempt to purchase or receive, any firearms while the protective order is in effect.” R.I. Gen. L 15-15-3(a)(4). Prior to the passage of the act, this section stated that a judge “may” order firearm surrender (i.e., may exercise discretion) when issuing an Order of Protection. The word “may” was removed, and in the next clause the word “shall” was added before the mandate to “order a person restrained not to purchase or receive… any firearms while the protective order is in effect,” suggesting that the General Assembly’s intention may have been to replace the court’s prior discretion with a new mandate.

The provision continues, “[t]he defendant shall surrender said firearms within twenty-four (24) hours of notice of the protective order to the Rhode Island state police or local police department or to a federally licensed firearm dealer.” R.I. Gen. L 15-15-3(a)(4). Emphasis added. This requirement of surrender within 24 hours does not appear to be limited to defendants who have notice of a more limited class of discretionary surrender orders, but rather appears to apply to all defendants who receive notice that they are subject to an Order of Protection. While this section is not a model of precise legal drafting, this provision, too, may have been intended to require judges to include firearm surrender order in every order—temporary or final.

Further evidence supports this reading that the legislature may have intended the court to require firearm surrender at the earliest possible stage to protect survivors of domestic violence. For example, during debate on the Senate floor, Senator Stephen R. Archambault explained that under the proposed law, “if someone comes in with a restraining order, and they allege that there’s a threat, immediately there is going to be an ex parte order… [and] you have to turn the firearms in within 24 hours.”Capitol TV, The Senate Committee on Judiciary, aired June 30, 2017, see: Senator Stephen R. Archambault remarks, at time stamp 10:26, http://ritv.devosvideo.com/show?video=503be2ecd803&apg=234d9d19.

At a minimum, the new law clearly anticipated that many, if not all, temporary Orders of Protection would include the firearm surrender requirement. The Protect Rhode Island Families Act introduced a new provision permitting defendants to request a hearing within 15 days of surrendering their firearms. R.I. Gen. L. § 15-15-3(b). This hearing would be redundant if the defendant had already appeared at a hearing regarding whether to issue an Order of Protection, which, as discussed above, must include a firearm surrender requirement. Its sole purpose appears to be to provide defendants who are required to surrender their firearms pursuant to a temporary, ex parte Order of Protection with an opportunity for a hearing before the final Order of Protection hearing takes place (which may occur up to 21 days after the temporary order is issued).

In sum, while the provisions of the Protect Rhode Island Families Act are unclear in their application to ex parte, temporary Orders of Protection, there are indications that suggest that firearm prohibition and surrender requirements may also have been intended to apply to every temporary Order of Protection issued by the Family Court.

Appendix B: Firearm surrender in temporary Orders of Protection

Family Court judges required firearm surrender in 41 percent of temporary Orders of Protection.Analysis includes 155 records of cases where a temporary Order of Protection was made. Judges appeared to apply a strong presumption in favor of ordering firearm surrender only in cases where this was requested by the plaintiff or where there was evidence of a firearm threat.

SourceAnalysis includes 155 records of cases where a temporary Order of Protection was made. Between-group differences are statistically significant (p < .001).

SourceAnalysis includes 149 records of cases where an Order of Protection was made, analysis excludes cases where researchers could not determine whether the petition included evidence of firearm possession. Between-group differences are statistically significant (p < .001).

As explained above, requiring survivors of domestic violence to specifically request firearm surrender is bad policy. In addition, research demonstrates that requiring firearm surrender at the temporary Order of Protection stage saves lives. Survivors often seek domestic violence Orders of Protection during an extremely dangerous time in their lives—when leaving an abusive relationship. Research shows that when firearm prohibitions are applied at the temporary Order of Protection stage, and not solely at the final Order of Protection stage, the rate of domestic violence homicide decreases by 12 percent.April M. Zeoli et al., “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, no. 11 (November 2018): 2365-2371.

As the North Carolina Court of Appeals has explained, the ex parte stage of proceedings is the point at which the survivor of domestic violence “first confronts her abuser through legal means.” State v. Poole, 228 N.C. App. 248, 263; 745 S.E.2d 26, 2013 N.C. App. LEXIS 716, 2013 WL 3305328. The court explained that “given the extraordinary potential for violence in the period between entry of an ex parte order and a full hearing, especially when firearms are present,” waiting until the full hearing to issue a firearm surrender order “would prevent the State from protecting victims of domestic violence at a time when those protections are most required.” Id.

There is also research suggesting that going to court to obtain an Order of Protection is a very risky time for survivors of domestic violence. In one study in California, about 20 percent of female victims of intimate partner homicides who had a domestic violence Order of Protection were killed within two days of the order being granted—demonstrating that judges who ensure that domestic abusers are disarmed at all stages of the proceedings can be critical in saving women’s lives.Katherine A. Vittes and Susan B. Sorenson, “Restraining Orders among Victims of Intimate Partner Homicide,” Injury Prevention 14, no. 3 (June 2008): 191-195.

Recommendations

To the extent that the Rhode Island Family Court continues to read the law to permit judicial discretion at the temporary order stage, at a minimum the Family Court should: (1) revise the check box on the petition form to clarify that by checking the box, the petitioner is requesting surrender for the duration of the temporary order (and if a final order is issued, surrender will become mandatory), (2) seek as much information about firearm risk as possible at the ex parte stage, (3) apply a strong presumption in favor of firearm surrender at the temporary order stage whenever there is evidence of firearm access or of risk of physical injury, and (4) follow the lead of courts in other states such as New Hampshire, which have devised a protocol and set of criteria to ensure consistency when the court is deciding whether to require firearm surrender at the temporary order stage.New Hampshire Judicial Branch, Circuit Court District Division, Domestic Violence Case Protocols (2013), “Chapter 14—Firearms and Other Deadly Weapons in Civil Protective Order Cases,” https://www.courts.state.nh.us/district/protocols/dv/.

Appendix C: Methodology

To understand whether Rhode Island’s domestic violence firearm surrender law was being implemented effectively, Everytown and Moms Demand Action established a court monitoring program in the Rhode Island Family Court. Prior to the commencement of the program, Everytown attorneys met with representatives of the Family Court to discuss implementation of the law and the court monitoring project. By invitation, Everytown attorneys attended a meeting of the Rhode Island Family Court judges to discuss the Protect Rhode Island Families Act and the court monitoring program.

Between October 15, 2018, and May 24, 2019, 22 volunteers attended the Rhode Island Family Court periodically and monitored domestic violence Order of Protection cases. Volunteers received training in Rhode Island’s domestic violence laws and court practice, delivered by attorneys with expertise in Rhode Island and general family court and domestic violence law. Training was delivered in a classroom environment and in courthouses, where volunteers were accompanied by an attorney to an introductory court-monitoring shift. Volunteers then signed up for shifts at any of the four Rhode Island Family Court courthouses, located in Providence, Kent, Newport, and Washington counties.

Volunteers attended court for approximately two hours per shift and took notes for each of the hearings they observed. Volunteers completed a survey for each case where the judge conducted a hearing (i.e., they did not complete a survey if the case was dismissed without a hearing, such as a dismissal for failure to appear, as the purpose of the research was to learn about what occurred during these hearings). At the conclusion of each shift in court, volunteers submitted their observations using an online survey tool. Every observation was reviewed and coded by an attorney.

Between October 15, 2018, and May 24, 2019, volunteers observed a total of 289 unique domestic violence Order of Protection case hearings. Additionally, with the generous and substantial assistance of the Family Court, Everytown attorneys obtained copies of the case files in 165 unique domestic violence Order of Protection cases that had at least one court hearing during the study period. Case files were reviewed and coded, and the data were analyzed. Of these 165 case files, 115 were matched with volunteer observation data for that case. This sample size was chosen to ensure that statistically significant data could be presented.

The majority of cases analyzed took place in the Providence and Kent registries of the Rhode Island Family Court. This sample of cases roughly represents the distribution of total domestic violence cases in the state. During our study period, official data show that the Providence registry accounted for 80 percent of all domestic violence Order of Protection cases in the state, followed by Kent (15%), Washington (3%) and Newport (2%).

Cases observed and files analyzed during the project, by county

Providence Kent Washington Newport Total
Cases observed 217 67 3 2 289
Court files reviewed 113 34 11 7 165
Matched observations
and court files
87 25 1 2 115

This study design has some limitations. The first is that there is no publicly accessible listing of domestic violence Order of Protection hearings in the Rhode Island Family Court available online. As a result, volunteers could not know how many cases would be scheduled on any given day before arriving at court and thus could not plan visits to maximize the number of cases that would be seen. While hearings occurred regularly at the Providence and Kent courthouses, volunteers who attempted to observe cases at the Newport and Washington courthouses often found that no cases were listed for the day they had chosen to observe, due to the very small numbers of hearings conducted at those courthouses. Second, on any given day, court staff print a physical list of cases that will be heard in the court that day; however, this physical list omits all cases that include a minor as a protected party in a case. Thus, even when volunteers did access a printed list of cases upon arriving at the courthouse, this list omitted an estimated 30-50 percent of the cases that were listed for a hearing that day. As a result, we were not able to match as many observations to court files.