Like many women who suffer domestic abuse, Zina Daniel had endured years of escalating attacks by her husband and finally sought a restraining order. Under federal law, this prohibited her husband from buying or possessing firearms, and for good reason. “His threats terrorize my every waking moment,” she wrote in her petition. “He said he would kill me if I left him or even contacted the police.”Haughton v. Haughton, Petition for Temporary Restraining Order and/or Injunction, at http://bit.ly/1pBP3mY
Zina’s fear was justified: two days later her husband exploited a loophole in our nation’s laws and bought a gun from an unlicensed seller on the website Armslist.com, evading a background check. Three days later Zina was dead.
America’s weak gun laws failed Zina, just as they fail countless other American women each year. In theory, these laws are designed to protect women in Zina’s circumstances, by keeping guns out of the hands of domestic abusers. But in practice, the laws are poorly defined and poorly enforced, and the results are as predictable as they are devastating. Women in the United States are eleven times more likely to be murdered with guns than women in other high-income countries.D. Hemenway and E.G. Richardson, Homicide, Suicide, and Unintentional Firearm Fatality: Comparing the United States with Other High-Income Countries, 2003, 70 Journal of Trauma 238-42 (2011). When it comes to gun violence, the most dangerous place for a woman in the developed world is America.
More than half of women murdered with guns in the U.S. in 2011 — at least 53 percent — were killed by intimate partners or family members.
Domestic violence in America is to a significant degree a problem of gun violence. Over the past 25 years, more intimate partner homicides in the U.S. have been committed with guns than with all other weapons combined.Professor April M. Zeoli, Letter to the Hon. Patrick J. Leahy & Charles Grassley, January 28, 2013. And people with a history of committing domestic violence are five times more likely to subsequently murder an intimate partner when a firearm is in the house.J.C. Campbell, S.W. Webster, J.Koziol-McLain, et al., Risk factors for femicide within physically abuse intimate relationships: results from a multi-state case control study, 93 Amer. J. of Public Health 1089-97 (2003).
At the same time, an astonishing share of gun violence in America is driven by domestic violence. More than half of women murdered with guns in the U.S. in 2011 — at least 53 percent — were killed by intimate partners or family members.U.S. Department of Justice, Federal Bureau of Investigation, Supplementary Homicide Report, 2011. According to FBI data there were 1,221 gun murders in which a woman was the lead victim. Of these, 649 were killed by an intimate partner or immediate family member — 53% of the total. This data likely undercounts the phenomenon because in many other cases law enforcement could not confirm whether a shooter and victim were intimately involved. And research by Everytown for Gun Safety establishes that this is also true for mass shootings: in 57 percent of the mass shootings between January 2009 and June 2014, the perpetrator killed an intimate partner or family member.Everytown for Gun Safety, Analysis of Recent Mass Shootings.
Because of the risk that firearms pose when they intersect with domestic violence, a series of federal and state laws aim to keep guns out of the hands of the most dangerous domestic violence offenders. The strongest laws prohibit domestic abusers and stalkers from buying or possessing guns, require background checks for all gun sales, and create processes to ensure that abusers and stalkers surrender the guns already in their possession.
When these laws are on the books and enforced properly, they save lives. In the past sixteen years, the background check system has kept hundreds of thousands of guns out of abusers’ hands and prevented countless crimes.Through April 30, 2014, the criminal background check system has prevented gun sales to prohibited domestic abusers approximately 300,000 times. See below at note 42. And in states that require background checks for all handgun sales, there are 38 percent fewer women shot to death by intimate partners.U.S. Department of Justice, Federal Bureau of Investigation, Supplementary Homicide Reports, 2011, available at http://bit.ly/V1GvFe (excludes New York due to incomplete data); Florida Department of Law Enforcement, Supplementary Homicide Report, 2010.
But because of loopholes in these laws and failures to enforce them, they do too little to curb the uniquely lethal American problem of guns and violence against women. Four gaps in the law are particularly harmful:
- First, federal law does nothing to keep guns out of the hands of abusive dating partners or convicted stalkers. The federal laws prohibiting domestic abusers from buying or owning guns do not apply to dangerous people convicted of misdemeanor stalking offenses or to dating partners—even though more women in the U.S. are killed by their dating partners than by their spouses.Alexia Cooper and Erica L. Smith, U.S. Department of Justice, Homicide Trends in the United States, 1980-2008, Nov. 2011, at http://1.usa.gov/1fpGIbN In Everytown’s analysis of mass shootings, 25 percent of perpetrators that targeted an intimate partner had never married them nor had a child together, and thus would not likely qualify as intimate partners under current law.
- Second, in 35 states, state law does not prohibit all people convicted of misdemeanor domestic violence crimes and all people subject to restraining orders from buying or using guns.Only 15 states prohibit all domestic violence misdemeanants and subjects of restraining orders from buying or owning guns: California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Minnesota, New Jersey, New York, Tennessee, Texas, Washington, and West Virginia. So while domestic abusers in those states cannot possess guns under federal law, local law enforcement and prosecutors do not have the tools they need to enforce those restrictions.
- Third, federal law (and the law in most states) allows domestic abusers and stalkers to easily evade gun prohibitions by purchasing guns from unlicensed, private sellers. Federal law only requires background checks for gun sales at licensed dealers. Sixteen states require checks on all handgun sales, but in the remaining states, prohibited abusers seeking to avoid a background check have little trouble purchasing a gun from an unlicensed seller they meet online or at a gun show. Prohibited domestic abusers are well aware of this loophole—and have taken advantage of it to deadly effect. In a first-of-its-kind investigation of illegal online gun sales, Mayors Against Illegal Guns found that 1 of 4 prohibited purchasers seeking guns online had a domestic violence arrest.
- Finally, forty-one states do not require all prohibited domestic abusers to relinquish guns they already own. Without a clear law on the books that provides an enforceable process by which offenders relinquish their firearms, it is too easy for dangerous abusers to keep their guns even after they commit offenses that prohibit them from having them. The strongest state laws establish a clear process that courts and law enforcement can use to make sure prohibited batterers turn in their guns, but far too many states lack these laws or do not enforce them adequately.
This report examines the prevalence and lethality of domestic violence incidents involving guns in America, and documents how the patchwork of federal and state laws aimed at keeping guns out of the hands of domestic abusers often fails. It offers policy recommendations that state and federal lawmakers should enact to protect women’s lives and spare our communities from the devastating toll of domestic abuse.
Domestic violence and gun violence are intimately connected and directly related to our porous gun laws. Closing gaps in federal and state domestic violence laws will save women’s lives.
Domestic Abusers and Guns: A Deadly Combination
Domestic violence is a major threat to American women. More than one in three American women will experience some domestic abuse in her lifetime,Michele C. Black et al., The National Intimate Partner and Sexual Violence Survey: 2010 Summary Report, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, Nov. 2011. Other research suggests more than one in four American women will suffer domestic violence in their lifetimes. See, e.g., Patricia Tjaden and Nancy Thoennes, Extent, Nature and Consequences of Intimate Partner Violence: Findings from the National Violence Against Women Survey, National Institute of Justice and the Centers for Disease Control and Prevention (2000). and more than a million American women are physically assaulted by an intimate partner every year.Costs of Intimate Partner Violence Against Women in the United States, Centers for Disease Control and Prevention, National Centers for Injury Prevention and Control (2003).
Guns make it more likely that domestic abuse will turn into murder: When a gun is present in a domestic violence situation, it increases the risk of homicide for women by 500 percent.
Guns are a prevalent and particularly dangerous component of domestic violence in America. A survey of women living in California domestic violence shelters found that more than one in three (36.7 percent) had been threatened or harmed with a gun wielded by their abuser. About two-thirds of the women who lived in households with guns reported that their partner had used the gun against them, most often by threatening to shoot or kill the woman.Susan B. Sorenson and Douglas J. Wiebe, Weapons in the Lives of Battered Women, 94 Am. J. Pub. Health 1412, 1413 (2004). And guns make it more likely that domestic abuse will turn into murder: When a gun is present in a domestic violence situation, it increases the risk of homicide for women by 500 percent.J.C. Campbell, S.W. Webster, J.Koziol-McLain, et al., Risk factors for femicide within physically abuse intimate relationships: results from a multi-state case control study, 93 Amer. J. of Public Health 1089-97 (2003).
Over the past 25 years in the U.S., more intimate partner homicides have been committed with guns than with all other weapons combined.Professor April M. Zeoli, Letter to the Hon. Patrick J. Leahy and Charles Grassley, Jan. 28, 2013. And in 2011, more than half (53 percent) of all American women who were murdered with guns were killed by intimate partners or family members.U.S. Department of Justice, Federal Bureau of Investigation, Supplementary Homicide Report, 2011.
Domestic violence also drives the majority of mass shootings in America.The FBI defines “mass shootings” as incidents in which at least four people are murdered with a gun. Everytown for Gun Safety has determined that in 57 percent of mass shootings (61 of 107 incidents), the shooter killed a current or former spouse or intimate partner or other family member.Everytown for Gun Safety, Analysis of Recent Mass Shootings, forthcoming. In 18 percent of the mass shootings, the perpetrator had been previously charged with domestic violence. Whereas women make up only 13 percent of victims of gun homicide nationwide, they made up 51 percent of victims of mass shootings between 2009 and 2014.Id.
Keeping domestic violence offenders from obtaining firearms is an evidence-based way to protect women. Over the past 20 years, the federal government and many states have enacted laws and policies to reflect this reality, but gaps in the current laws still make it too easy for domestic abuser to access guns. Women pay the cost with their lives.
The Laws of Domestic Violence and Guns
A patchwork of federal and state laws is in place to keep guns out of the hands of the most dangerous domestic violence offenders. The strongest laws prohibit domestic abusers and stalkers from buying or possessing guns, require background checks on all gun sales to enforce those prohibitions, and create processes to ensure that prohibited abusers and stalkers turn in the guns they already own. Over the last two decades, these laws have kept hundreds of thousands of guns out of abusers’ hands and prevented countless crimes.
But gaps in the laws and difficulties with enforcement pose lethal threats to the victims of domestic and family violence who are most at risk. Loopholes in laws prohibiting gun possession by domestic violence offenders allow abusers and stalkers to legally buy and possess guns. Gaps in our background check laws let prohibited domestic violence offenders easily evade background checks and buy guns from unlicensed sellers in most states. And many states lack adequate mechanisms to ensure domestic abusers who own guns turn them in when they become prohibited.
Prohibitions on Gun Possession by Domestic Abusers and Stalkers
Various federal and state laws currently seek to prohibit domestic violence offenders from buying or possessing guns. Federal law prohibits domestic abusers from buying or possessing guns if they have been convicted of a felony;Under federal law, a person is prohibited from purchasing or possessing guns if he or she is convicted of a crime punishable by imprisonment of more than one year. Crimes classified as misdemeanors are only prohibiting if they are punishable by imprisonment of over two years. 18 U.S.C. 922(g)(1); 18 U.S.C. 921(20). if they have been convicted of a “misdemeanor crime of domestic violence;”18 U.S.C. §§ 922(d)(9), (g)(9). or if they are subject to certain domestic violence restraining orders.18 U.S.C. §§ 922(d)(8), (g)(8). Nineteen states and the District of Columbia also have state laws prohibiting non-felony domestic violence offenders from having guns,These states are California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Indiana, Iowa, Louisiana, Minnesota,Nebraska, New Jersey, New York, Pennsylvania, South Dakota, Tennessee, Texas, Washington, and West Virginia. See Appendix for further details. and 22 states and the District of Columbia prohibit subjects of domestic violence restraining orders from buying or owning guns.These states are California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire, New Jersey, New York, North Carolina, Tennessee, Texas, Washington, West Virginia, and Wisconsin. See Appendix for further details. (Another nine states expressly authorize—but do not require—courts to include firearm prohibitions in restraining orders.These states are Alaska, Arizona, Indiana, Nebraska, Nevada, Pennsylvania, Rhode Island, and Utah. See Appendix for further details.) A complete survey of state domestic violence gun laws is included in the Appendix.
Misdemeanor Crimes of Domestic Violence
Since the federal Gun Control Act was passed in 1968 following a series of high-profile political assassinations, it has been illegal for individuals convicted of a felony to buy or own firearms. But many dangerous abusers do not have felony convictions, and as of 1968 the law did not prohibit them from possessing guns. Indeed, abusers arrested for domestic violence felonies that pled guilty to lesser charges were able to continue legally buying and owning guns. By pleading their felony charges down to misdemeanors, these batterers could legally keep their guns despite their criminal convictions—and despite the risk they posed to their intimate partners.
In 1996, Senator Frank Lautenberg (D-NJ) introduced an amendment to the federal appropriations bill to extend the prohibition against gun ownership to those convicted of a domestic abuse misdemeanor. Lautenberg explained the need for the amendment by telling his colleagues that, in far too many cases, “the difference between a murdered wife and a battered wife is often the presence of a gun.”142 Cong. Rec. 1, 25002 (daily ed. Sept. 26, 1996) (statement of Sen. Lautenberg).
Passed as part of the Omnibus Consolidated Appropriations Act of 1997, the Lautenberg Amendment made it a federal crime for anyone convicted of a “misdemeanor crime of domestic violence” to “ship, transport, possess or receive” guns or ammunition.18 U.S.C. § 922(g)(9). A parallel provision of the law criminalized knowingly selling a gun or ammunition to anyone whom the seller knows or has reason to believe has been convicted of a misdemeanor crime of domestic violence—or “MCDV”.18 U.S.C. § 922(d)(9).
MCDVs are misdemeanors that have, as an element, “the use or attempted use of physical force, or the threatened use of a deadly weapon” and that are committed by a current or former spouse, parent or guardian, someone who lives with the victim, or someone who is “similarly situated” to a spouse, parent, or guardian.18 U.S.C. § 921(a)(33)(A). For a conviction to qualify as an MCDV, the offender must have been either represented by counsel or knowingly and intelligently waived the right to counsel.18 U.S.C. § 921(a)(33)(B). Not all domestic violence misdemeanants are federally prohibited under this definition. There is no constitutional right to counsel in misdemeanor cases, and, according to a 2001 Congressional Research Service report, “it has been surmised that many domestic violence misdemeanants appeared without representation and likely did not make a knowing and intelligent waiver of that right, thereby significantly limit[ing] the universe of individuals against whom the possession ban may be enforced.” CRS, “Firearms Prohibitions and Domestic Violence Convictions: The Lautenberg Amendment,” Report RL31143, Oct. 1, 2001, at 4. See also United States v. Akins, 243 F.3d 1199 (9th Cir. 2001) (holding that the evidence was insufficient to establish that the defendant had validly waived his right to counsel prior to pleading guilty to an underlying misdemeanor domestic violence charge). The U.S. Supreme Court has recognized that so long as the victim is one of the family members listed in the federal statute, a general assault conviction counts as a MCDV even if the underlying assault and battery law does not specify that it is limited to domestic abuse situations.United States v. Hayes, 555 U.S. ___, 129 S.Ct. 1079 (2009). And in 2014, the Court recognized that a misdemeanor conviction for domestic abuse that involves physical force against the victim qualifies as an MCDV even if the crime in question did not involve especially “strong” or “violent” force.United States v. Castleman, 134 S.Ct. 1405 (2014).
Nineteen states and the District of Columbia also have state laws prohibiting gun possession by domestic violence misdemeanants. The remaining states do not prohibit gun ownership by all abusers who are barred under federal law, which can create serious enforcement challenges. Even if a domestic abuser is barred by federal law from owning a gun, if state law does not include a similar prohibition, state or local prosecutors cannot bring state gun charges against the abuser.
Fortunately, legislative momentum for stronger state domestic violence laws is growing—among policy makers from both major parties. In just the first half of 2014, for example, bipartisan coalitions of legislators passed bills in Louisiana, Minnesota, New Hampshire, and Washington State that prohibit domestic abusers from purchasing guns.See Louisiana H.B. 753 (2014); Minnesota H.F. 3238/S.2639; New Hampshire S.B. 318; Washington H.1840. Governors of both parties signed these bills into law.
Domestic Violence Restraining Orders
Because the most dangerous time for a victim of domestic violence is the period immediately after she leaves her abuser—and because many women take out protective orders against their batterers when they leave an abusive relationship—federal law protects women by prohibiting abusers subject to restraining orders from buying or owning guns. Congress added this provision when it first passed the Violence Against Women Act (“VAWA”) in 1994.Violent Crime Control and Law Enforcement Act of 1994, 108 Stat. 1796, Pub. L. 103-322, Sec. 110401. (Sept. 13, 1994).
Federal law now prohibits a person from buying or owning a gun or ammunition if the person is subject to a qualifying domestic violence restraining order.18 U.S.C. § 922(g)(8) For a restraining order to prohibit gun possession, it must: (a) have been issued after a hearing that the restrained abuser had notice of and an opportunity to participate in;18 U.S.C. § 922(g)(8)(A). (b) restrain the abuser from harassing, stalking, threatening, or placing in fear of bodily injury an intimate partner or the child of the abuser or the abuser’s intimate partner;18 U.S.C. § 922(g)(8)(B). The law defines “intimate partner” to cover spouses and former spouses, someone who lives with or has lived with the abuser, or someone who is the parent of a child of the abuser. 18 U.S.C. § 921(a)(32) and (c) either include a finding that the abuser represents a credible threat to the physical safety of the intimate partner or child, or explicitly prohibit the use, attempted use, or threatened use of force that would reasonably be expected to cause bodily injury to the intimate partner or child.18 U.S.C. § 922(g)(8)(C).
Twenty-two states and the District of Columbia also have laws prohibiting people subject to domestic violence restraining orders from buying or possessing guns, as shown in the Appendix. Another nine states expressly authorize—but do not require—courts to include firearm prohibitions in restraining orders.These states are Alaska, Arizona, Indiana, Nebraska, Nevada, Pennsylvania, Rhode Island, Utah, and Wisconsin. Vermont law does not expressly authorize courts issuing restraining orders to prohibit firearm possession, but Vermont courts have the authority to prohibit firearm possession under a statute that allows restraining orders to include any provisions “necessary to protect” an abuse victim. See Appendix for further details.
Enforcing Prohibitors: Background Checks
Since its inception in 1998, NICS has stopped over 2.2 million gun sales to prohibited purchasers, including hundreds of thousands of domestic abusers.
The domestic violence prohibitors on gun sales are enforced through the National Instant Criminal Background Check System (“NICS”). Before completing a gun sale, a federally licensed gun dealer must ask the gun buyer to show a photo ID and complete a simple form with basic identifying information; then the dealer must run a background check through NICS. If NICS reports that the potential purchaser is prohibited, the sale is denied; if no prohibition is reported, the sale is completed. Most NICS checks are resolved within 90 seconds.See U.S. Department of Justice, Federal Bureau of Investigation, National Instant Criminal Background Check System, Fact Sheet, at http://1.usa.gov/1lt3nfP; see also PolitiFact, “Passing a federal firearms ‘background check through the NICS database . . . typically takes 90 seconds,’” Dec. 3, 2013, at http://bit.ly/1bQaUAp.
Since its inception in 1998, NICS has stopped over 2.2 million gun sales to prohibited purchasers, including hundreds of thousands of domestic abusers. Convictions for domestic violence misdemeanors are the third leading basis for dealers to deny gun sales after running a NICS check—trailing only felony convictions and arrest warrantsSee U.S. Department of Justice, Federal Bureau of Investigation, NICS Denials: Reasons Why the NICS Section Denies, November 1, 1998 - April 30, 2014, at http://1.usa.gov/1k9zURj. —and overall, it is estimated that approximately 300,000 gun sales have been blocked because the would-be purchaser had an MCDV conviction or was subject to a prohibiting domestic violence restraining order.Between the inception of the NICS system in 1998 and April 30, 2014, 108,462 gun sales were federally denied due to a misdemeanor crime of domestic violence conviction, and 46,122 gun sales were federally denied due to restraining or protection orders for domestic violence, making a total of 154,584 federal denials related to domestic violence. U.S. Department of Justice, FBI, NICS Denials: Reasons Why the NICS Section Denies, Nov. 1, 1998 – Apr. 30, 2014, at http://1.usa.gov/1k9zURj. Between 1998 and 2010, state and local agencies issued a total of 945,915 denials, and it is estimated they have issued 225,000 denials in the three years since data was last released. U.S. Department of Justice, Bureau of Justice Statistics, Feb. 2013, Background Checks for Firearms Transfers, 2010–Statistical Tables, Feb. 2013, at http://1.usa.gov/Z8vYsa. For agencies that reported reasons for these denials, 13.2 percent were denials for domestic violence reasons — which would represent another 155,000 domestic violence denials. Thus, the background check system has likely issued close to 300,000 denials due to domestic violence-related criteria since its inception. In all, nearly 16 percent of the total firearm transfer denials made by the FBI are based on domestic violence.
Loopholes in Domestic Violence Prohibitors Put Women and Families at Risk
Despite their proven record of keeping guns out of domestic abusers’ hands, our laws designed to keep guns out of the hands of domestic violence offenders have several dangerous gaps. The categories of prohibited abusers under federal law are too narrowly drawn and do not reach stalkers or dating partners, even though dating partners are responsible for more domestic violence gun murders than spouses. While some state prohibitors go beyond federal law to reach dating partners, other states lack any domestic violence gun prohibitions. And guns offered by unlicensed sellers are exempt from the federal background check requirement, leaving a gaping loophole through which domestic abusers can easily buy guns in most states.
Loopholes in the Prohibitors
The federal MCDV and restraining order prohibitors apply to abusers who are currently or formerly married to their victims, who live with or formerly lived with their victims, or who are parents of children with their victims. But federal law does not prohibit either dating partners or misdemeanant stalkers from buying or possessing guns.The federal definition of a misdemeanor crime of domestic violence applies to a current and former spouse, parent or guardian, cohabitator, or someone “similarly situated” to a spouse, parent, or guardian.
This gap in federal law means that it is still legal for a sizable number of domestic violence offenders likely to perpetrate violence against women to buy and possess guns—and that a law designed to prevent lethal violence against women no longer reflects the realities of American life.
Federal law does not prohibit either dating partners or misdemeanant stalkers from buying or possessing guns.
The proportion of intimate partner homicides committed by dating partners has risen steadily for decades, and dating partners now kill more women each year than husbands do.Alexia Cooper and Erica L. Smith, U.S. Department of Justice, Homicide Trends in the United States, 1980-2008, Nov. 2011, at http://1.usa.gov/1fpGIbN. Dating partners are also responsible for a sizable number of mass shootings. In one of four mass shootings between 2009 and 2014 in which the shooter killed a current or former intimate partner, the shooter and victim had never been married or had a child—a group that likely involved many dating partners who never lived together, and therefore would not be prohibited by the federal gun laws.Everytown for Gun Safety, Analysis of Recent Mass Shootings, forthcoming.
Armed stalkers also pose a significant threat to women; one study of incidents in ten major U.S. cities found that nearly 9 in 10 attempted murders of women involved at least one incident of stalking in the year before the attempted murder.Judith MacFarlane, Jacquelyn Campbell et al., Stalking and Intimate Partner Femicide, Homicide Studies No. 4, 300-16 (Nov. 1999)
As a result, even if a boyfriend is convicted of a misdemeanor for assaulting his girlfriend, as long as the two dating partners did not live together and were not “similarly situated” to spouses, the abuser’s conviction will not count as a prohibiting MCDV; the boyfriend will be able to pass a background check and legally buy a gun. Similarly, even if a woman takes out a restraining order against her boyfriend, as long as she never lived with him, the order will not count as a prohibiting DVRO—even if the order specifically identifies the man as a threat to his girlfriend’s safety and restrains him from harassing, threatening, or stalking her. Because federal law does not apply to dating partners, the restrained boyfriend would still be able to pass a background check and buy a gun from a licensed dealer.
Equally troubling, a stalker convicted of a misdemeanor can walk out of the courtroom and proceed directly to a licensed gun dealer—where he can pass a federal background check and legally buy a gun.
The patchwork of state domestic abuse prohibitors covers some of the gaps in federal law but also includes other dangerous loopholes. Some states do have laws extending the prohibitions to dating partners or to stalkers, but many do not. Other states prohibit some domestic abusers from buying or owning handguns, but do not have similar prohibitions for rifles or shotguns. Minnesota was one of these states until 2014, when it strengthened its law to prevent convicted domestic abusers from possessing all guns, not just handguns.Minnesota H.F. 3238 It is imperative that states lacking adequate domestic violence prohibitions adopt them.
Unlicensed Sales Without Background Checks
Most dangerously, federal law only requires background checks for gun sales at licensed dealers, so domestic abusers can purchase guns in most states from unlicensed sellers—including strangers met online or at gun shows—without background checks. As long as an unlicensed seller does not know or have reason to believe that a buyer is prohibited from gun ownership, it is perfectly legal for the seller to sell a gun to a complete stranger without conducting any background check. Millions of guns exchange hands each year without background checks or a paper trail of any kind.
Prohibited domestic abusers—as well as felons and other dangerous people—are well aware of this loophole in federal law, and they exploit it to tragic effect:
- A mother of two girls and an employee at a Brookfield, Wisconsin spa, Zina Haughton had taken out a restraining order against her estranged husband, which prohibited him from buying a gun under federal law. He then posted a “want to buy” ad on a website that facilitates gun sales, Armslist.com, and easily found a seller who sold him a .40 caliber FNH in the parking lot of a McDonalds, no background check required. One day after posting his ad on Armslist, Haughton’s estranged husband walked into the spa where his wife worked and opened fire, killing her and two co-workers and wounding four more people before killing himself.See Mayors Against Illegal Guns, Felon Seeks Firearm, No Strings Attached 9 (2013).
- Dmitry Smirnov had a history of stalking Jitka Vesel, a woman he had dated briefly. Although Smirnov was legally prohibited from buying a gun because he was a foreigner, he found an advertisement on Armslist.com in which an unlicensed seller was offering a .40 caliber handgun for sale. He bought the gun—without a background check and at a premium—outside a casino in Washington State and tracked Vesel to Oak Brook, Illinois. As she was walking to her car in a parking lot, Smirnov appeared and shot Vesel at least 11 times, killing her.See id. at 8
- Tyrone Adair had been convicted on two separate occasions of battery and was prohibited from possessing firearms because of a restraining order. But in autumn 2009, he responded to an ad placed in the Wisconsin State Journal by an unlicensed seller offering a 9mm Glock handgun, and they arranged to meet at a Menard’s hardware store to complete the deal. When they met, the seller asked him if he was a felon and Adair said he was not. According to police reports, the seller even joked: “You’re not going to go out and kill someone, are you?” No background check or paperwork was required, and none was completed. On December 3, 2009, Adair shot to death his two daughters and both their mothers.See generally A.P., Tyrone Adair, man wanted in 4 Wisconsin slayings, found dead, N.Y. Daily News, Dec. 7, 2009. Everytown for Gun Safety obtained police reports detailing the facts of the Adair investigations, which are on file with the organization.
These are not isolated occurrences. An investigation of illegal online gun sales that Mayors Against Illegal Guns conducted in 2013 found that 1 in 30 prospective online gun buyers had a prohibiting criminal record, indicating that an estimated 25,000 guns are transferred to criminals each year on a single website, Armslist.com. And one in four of those prohibited gun buyers had been arrested for a crime of domestic violence.2. See Mayors Against Illegal Guns, Felon Seeks Firearm, No Strings Attached (2013).
A 27-year-old male in Fort Collins, Colorado posted an ad on March 30, 2013 seeking an M&P22 handgun. In 2005, the would-be buyer had attacked his ex-girlfriend and was found guilty of domestic violence; he later violated an order of protection. He was barred from purchasing or possessing firearms, and turned to Armslist to find an unlicensed seller who could sell him a gun without a background check that would reveal his prohibition.Id.
Similarly, on April 27, 2013, a man in New Carlisle, Ohio with a criminal history involving domestic violence posted an ad stating that he wanted to buy a .22-caliber handgun. In one incident, the man had gone to his ex-girlfriend’s residence, told her she had “three days to live,” hit her on the side of the face with a cell phone, and then refused to leave the house. He was charged with assault and theft—for stealing his ex-girlfriend’s keys—and convicted of a misdemeanor for the domestic violence episode. But by using Armslist to identify an unlicensed seller, he could exploit the unlicensed seller loophole in federal law and buy a gun without a background check.Id.
In all of these cases, background checks might have prevented the perpetrator from acquiring his weapon. Requiring comprehensive background checks is a common-sense policy that is proven to save lives. Sixteen states go beyond federal law and require background checks for all handgun sales. In those states, 38 percent fewer women are shot to death by intimate partners.Mayors Against Illegal Guns, Gun Background Checks Reduce Crime and Save Lives.
The Public Safety and Second Amendment Rights Protection Act, introduced in 2013 by Senators Pat Toomey (R-Pa.) and Joe Manchin (D-W.Va.), would have amended federal law to require background checks for all commercial gun sales, including those between buyers and sellers who meet online, at gun shows, and through classified ads. But, a minority of Senators blocked the bill in April 2013, and Congress has not yet voted on the measure again. Congress should revisit the issue and ensure that dangerous persons prohibited from buying guns cannot do so by turning to unlicensed sellers. And in the 34 states without comprehensive background checks, lawmakers should not sit idly by waiting for Congress to act: they should require background checks all guns sales, including the 40 percent that are sold by private, unlicensed sellers.
Disarming Domestic Abusers Who Are Prohibited From Possessing Guns
Federal and state laws that prohibit abusers from having guns and background checks to enforce those restrictions do not by themselves ensure that gun owners who become prohibited actually relinquish the guns already in their possession. States must take additional steps to ensure that domestic abusers do not keep their guns once they become prohibited from owning them. Several states have done so: 10 states mandate that domestic violence misdemeanants relinquish their guns,These states are California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Minnesota, New York, Pennsylvania, and Tennessee. In addition, Washington State provides that a court convicting a domestic violence misdemeanant may—but is not required to—require the misdemeanant to surrender firearms. See Appendix for further details. and 15 states require subjects of domestic violence restraining orders to do so.These states are Arizona, California, Colorado, Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Minnesota, New Hampshire, New York, North Carolina, Tennessee, Washington, and Wisconsin. See Appendix for further details. (Another 13 states and Washington, D.C. require some, but not all, subjects of restraining orders to turn over guns they own by authorizing—but not requiring—courts issuing restraining orders to include gun surrender provisions in the orders.These states are Alaska, Arizona, Delaware, DC, Florida, Indiana, Maine, Nevada, New Jersey, North Dakota, Pennsylvania, Rhode Island, South Dakota and Vermont)
Without a clear law on the books that provides an enforceable process by which offenders relinquish their firearms, it is too easy for dangerous abusers to hold on to their guns.
The strongest state laws establish a clear process by which courts require domestic violence misdemeanants and people subject to domestic violence restraining orders to turn their guns over to law enforcement or a licensed gun dealer.
Many states’ laws and policies to disarm abusers could be improved. There is growing support for these laws—among both Republicans and Democrats—and significant momentum for their adoption. Four states— Minnesota, Vermont, Washington, and WisconsinMinnesota H.F. 3238/S.2639; Vermont H.735; Washington H.1840; Wisconsin A.B. 464. Vermont law, however, only requires surrender by restraining order subjects if the court orders it.— passed new laws in 2014 alone, all with bipartisan support and signed by governors of both parties. Even the National Rifle Association, which once tenaciously fought proposals to disarm domestic abusers, has “quietly scaled back its scorched-earth campaigns against stricter domestic violence laws,” and gave tacit approval to the new laws that passed in 2014.Laura Bassett and Christina Wilkie, The NRA Quietly Backs Down on Domestic Violence, Huffington Post, Apr. 22, 2014, at http://huff.to/1rkMXG2.
The patchwork of federal and state laws addresses many of the ways in which domestic abusers obtain and use guns to threaten women and families. But the persistence of lethal domestic violence in America demonstrates that our laws must be strengthened. Fortunately, there are straightforward steps that members of Congress and state lawmakers can take to save women’s lives.
- Congress should close the loopholes in the federal gun prohibitions to ensure that stalkers and dating partners are barred from gun ownership just like other dangerous abusers. Stalkers harass and terrorize millions of American women, and dating partners are responsible for more intimate partner homicides than spouses. Congress should bar convicted stalkers and dating partners convicted of domestic violence crimes or subject to restraining orders from purchasing or possessing guns. The Protecting Domestic Violence and Stalking Victims Act of 2013, introduced by Senator Amy Klobuchar (D-MN) would accomplish these goals. Congress should pass it into law.
- States should adopt or strengthen their domestic violence prohibitions. Every state in the nation should prohibit possession of firearms by anyone convicted of abusing an intimate partner or family member—including dating partners who do not marry or live together. And every state should prohibit gun possession by anyone subject to a protective order prohibiting them from harassing, threatening, or stalking an intimate partner or family member.
- Congress should require comprehensive background checks and ensure that prohibited domestic abusers cannot easily evade background checks by buying guns from unlicensed sellers. Congress should pass the Public Safety and Second Amendment Rights Protection Act, introduced in 2013 by Senators Pat Toomey (R-Pa.) and Joe Manchin (D-W.Va.), which would require background checks for all commercial sales, including online, at gun shows, and through classified ads.
- States should pass legislation requiring background checks on all gun sales. Thirty-eight percent fewer women are shot and killed by intimate partners in states that require background checks on all handgun sales. State lawmakers should require private, unlicensed sellers to conduct background checks on gun sales, just as licensed gun dealers do.
- States should create effective and enforceable laws and policies for prohibited domestic abusers to relinquish their guns. States should pass laws requiring that domestic abusers turn in their guns to law enforcement or licensed gun dealers when they become prohibited. The strongest legislation provides clear directives to courts, law enforcement, and prohibited domestic abusers to ensure that dangerous abusers relinquish their guns soon after becoming prohibited.
Appendix: State Domestic Violence Laws
Click here to download the appendix of state domestic violence laws used in this report.