In this newsletter: 

1. Firearms and Domestic Violence

a. Primer on Federal Firearms Legislation

b. Justice System Strategies

c. What is the Frequency of Domestic Violence As a
    Reason for Rejection of Firearm Transfer Applications?

d. How Can Courts Assist in the Background Check
    Process?

2. Resource Corner: Firearms and Domestic Violence Resource Guide
    Now Online

3. A Look at Protection Order Registries: Louisiana and Pennsylvania

a. Louisiana’s Protective Order Registry (LPOR)

b. Pennsylvania’s Protection from Abuse Database (PFAD)

4. Scholarships Offered for the 2003 International Domestic Violence,
    Sexual Assault, and Stalking Conference in San Diego

5. National Effort to Craft Guidelines to Protect Personal Privacy and
    Public Access to Court Records

6. In the News: California Enacts Civil Remedy for Victims of Violence
   Against Women

TOP

1. Firearms and Domestic Violence

By Hillery Efkeman and Lynn Levey

With the arrest of the Washington, DC area sniper this fall, national media attention focused on the federal laws surrounding firearms possession and domestic violence.  The alleged sniper, John Muhammad, was initially arrested by federal officials for illegally possessing a firearm while subject to an order of protection issued in Washington State.  The attention on this issue provides an excellent opportunity to review the issues around firearms and domestic violence, in particular the federal laws prohibiting the possession of firearms while subject to a protection order or once convicted of a misdemeanor crime of domestic violence.

Guns continue to pose serious threats to the safety of battered women and their children.  Despite laws designed to reduce batterers’ possession of guns—either those with misdemeanor convictions for domestic violence offenses or subject to a valid order of protection—they are not self-enforcing.  Enforcement of the law depends on the action of local justice agencies and the state courts.

The National Center for State Courts as well as numerous other judicial, legal and advocacy organizations have been examining the implementation of these laws for several years.  This issue of the Family Violence Forum provides an overview of the laws, considers implications for the courts and provides resources for finding further information. 

TOP

1. a. Primer on Federal Firearms Legislation

In 1996, the Gun Control Act was amended to address the problem of domestic violence. This article highlights key aspects of Gun Control Act 18 U.S.C. Sect. 922 (g) (8) and (g) (9).  Several state statutes include similar language that restricts firearm possession in some instances.  According to the Survey of State Procedures Related to Firearm Sales (Midyear 2001, Bureau of Justice Statistics, April 2002), eighteen states have enacted laws that prohibit persons subject to a protection order from possessing a firearm.  The report also identifies several state statutes the prohibit sales to those convicted of a qualifying misdemeanor crime of domestic violence.

According to the 1996 Gun Control Act 18 U.S.C. Sect. 922 (g) (8) and (g) (9):

• Possession of a firearm, while subject to a qualifying protection order is prohibited. 
• Those convicted of misdemeanor crimes of domestic violence (MCDV) are prohibited from possessing a firearm or ammunition.   
• Transferring or returning firearms to anyone currently subjected to an order of protection is prohibited.
• Transferring or returning firearms to anyone convicted of a misdemeanor crime of domestic violence is prohibited. 

(For further information about the details of these provisions, see the Resource Corner for references).

TOP

1. b. Justice System Strategies

Local culture, combined with the lack of awareness of federal firearms regulations, can have deadly consequences for the lives of battered women and their children.  Identifying how your community responds to firearms in domestic violence cases can provide the basis for improvements.  Some key considerations: 

• Ongoing training should be provided on federal firearms laws and their implication on local practices (this applies mostly to judges, law enforcement and order of protection registry personnel)
• Data entry protocols should be designed and implemented to incorporate both federal and local/state requirements and ensure timeliness of entry
• Coordination of local efforts with federal agencies can close perceived gaps
• Know your local ATF agents (field office contacts are included in the Resource Corner)
• Know the designated Violence Against Women Point of Contact in your US Attorney’s office (every office has one).  
• Establish an ongoing relationship with the US Attorney in your community as they can offer assistance in determining if it is appropriate to prosecute the case in federal court.

Additionally, consider the following questions to better assess your jurisdiction’s compliance with federal firearms statutes (particularly related to protection orders): 

•  Does your jurisdiction provide notice of these federal laws on your protection order forms?  Are judges advising both parties of federal laws as they apply to firearms and orders of protection?   
• Does the protection order in your jurisdiction clearly articulate the necessary elements to trigger the firearms prohibitions (See Resource Corner for further insights)?
• Does your court have a follow-up procedure for relinquishment to ensure that firearms have been transferred to the appropriate authority following the issuance of a qualifying protection order?
• Do your local judges and law enforcement know to refuse to return seized weapons to respondents because of these prohibitions?    
• Does your jurisdiction coordinate with community advocates to respond to the potential escalation in violence with issuance of a protection order or the attempt to remove a firearm, such as safety planning with the victim?  In addition, if an abuser is entitled to have his firearms returned following the expiration of a protection order, does someone in the jurisdiction notify his partner in advance so that s/he can alter their safety plan accordingly?
• Have you coordinated with local law enforcement about storage space for seized firearms and procedures for their eventual return?  Some departments charge the owner a monthly fee for storing seized firearms.  In Danvers MA, a private bonded company picks up and stores the firearms at a separate facility.  Receipts are issued and index records are kept on each firearm.  Owners are charged a storage fee for the service.  If they are never entitled to have their firearms returned, the company sells the firearms to licensed dealers. 

TOP

1. d. How Can Courts Assist in the Background Check Process?

The National Instant Criminal Background Check System (NICS) is a national electronic system that checks available records to determine if a potential purchaser is disqualified from receiving firearms.  The NICS is designed to respond within 30 seconds to most criminal background inquiries.  However, the FBI may ascertain that more information is required to make a determination—the sale will proceed if the FBI does not receive a final disposition within three business days.

The NICS cannot disqualify an individual from receiving firearms on arrest information alone.  If disposition data is incomplete, the FBI/NICS employee makes contact with the state point of contact seeking final disposition information on a criminal charge, clarification of the charge or information the FBI has, or to obtain information to determine if the charge involves domestic violence.  The FBI may also need to verify indictments, obtain filed information, or validate outstanding warrants.

It is extremely important that courts document the relationship between the parties as well as final dispositions.  Thorough documentation and timely entry of data into the NICS is critical for the implementation of these federal laws in domestic violence cases. 

The National Criminal History Improvement Program provides matching dollars to update final dispositions to criminal record databases.  They may be contacted at the U.S. Department of Justice, Bureau of Justice Statistics web site.

TOP

2.  Resource Corner: Firearms and Domestic Violence Resource Guide Now Online

By Madelynn Herman

The Washington DC-area sniper had a long history of domestic violence and still managed to obtain firearms. How did this happen? What are the laws regarding firearms and domestic violence? What is the Lautenberg Amendment? The Brady Law? Public Law 104-208? The Firearms Safety Act? How many victims of domestic violence are killed every year by firearms? What do current statistics say? Are there any resources for the courts to learn more about this issue and how to best address it?

NCSC has developed a new resource guide that provides numerous links to online resources relating to domestic violence and firearms such as: 

• Firearms statutes, laws and legislations
• Facts and figures on the extent of the problem

• Resources available for the courts

• Links to articles, research reports, and literature

The “Firearms and Domestic Violence Resource Guide,” is available in the NCSC Court Information Database, Family Violence Publications Section. 

NCSC responds to requests from the court community, policy makers, and others. To request information or technical assistance on firearms and domestic violence, or other related topics, see our online request form or call 800-616-6164.

TOP

3. a. Louisiana’s Protective Order Registry (LPOR)

In 1997, Louisiana’s legislature created the Louisiana Protective Order Registry (LPOR) and named the Judicial Administrator’s Office of the Louisiana Supreme Court as the entity responsible for the development and maintenance of this computerized database.  The registry serves as a statewide repository for court orders issued for the purpose of preventing harassing, threatening, or violent acts against a spouse, intimate cohabitant, dating partner, family or household member. 

As part of the registry process, the Judicial Administrator’s Office created Uniform Abuse Prevention Order Forms, to be used by all courts.  By law, the court of clerk must transmit the filed order to the registry no later than the close of business the day after the order is filed.  When the order is received by the Judicial Administrator’s Office, an image of the order is scanned and saved.  The information contained in the order is then manually entered into the registry. 

Once data has been entered in the registry, it is available to authorized users (e.g., courts, prosecution agencies, probation and parole agencies, law enforcement agencies, and the  Department of Social Services.)  When an order expires, it is automatically removed from the searchable database and archived.  It is then accessible only by courts and prosecutors.  From January through October 2002, there were 17,827 civil and criminal orders entered in the registry.  The majority of the orders (56 percent) were temporary restraining orders.

Statewide training seminars play an integral role in the maintenance of the registry.  Seminars typically explain how the registry works, highlight relevant state and federal laws, and disseminate the standardized forms and interactive software.  Thus far, over 3,000 people have attended one of these training programs, including judges, commissioners, clerks of court, law enforcement officers, victim assistance providers, and attorneys.

For more information, visit the LPOR web site.  Louisiana contacts include Patsy Taylor, LPOR director (504-568-5208 or ptaylor@lajao.org) and Frank DiFulco, assistant director of the CMIS Department (504-599-1909 or fdf@lajao.org).

TOP

3. b. Pennsylvania’s Protection from Abuse Database (PFAD)

In 1994, Governor Robert Casey signed into law Act 85, a bill providing extensive amendments to Pennsylvania’s Protection From Abuse Act, which included the legislative mandate for a Pennsylvania State Police-operated statewide protection order registry.  Three years later, the Pennsylvania Coalition Against Domestic Violence (PCADV), with support from the Pennsylvania Commission on Crime and Delinquency (PCCD) and in cooperation with the Administrative Office of the Pennsylvania Courts, began work on the development of the Protection From Abuse Database (PFAD).  The PFAD was designed to capture all Protection From Abuse (PFA) proceedings in the Commonwealth, with a computer archival system designed to complement the Pennsylvania State Police’s (PSP) Protection Order Registry. 

The PFAD, which is operational in 45 of Pennsylvania’s 67 counties, has a number of uses, including:

• The creation of PFA petitions and other documents related to PFAs
• Preparation of proposed orders
• Completion and issuance of orders on-line

• Creation of data sheets for transmission to the PSP registry

•  Instant on-line access to filed orders for enforcement and for use in subsequent legal proceedings and other authorized purposes

The PFAD process is automated from the very beginning.  Standard PFA forms are automatically created using worksheets available on a web-based secure system.  Furthermore, the system has full text capabilities, in which information is entered and stored in fields and the entire order is available electronically.  The value of full text is that the specific terms and conditions of the protection order, including items related to no contact, eviction, custody, and child support, can be easily accessed by authorized users.  For instance, a law enforcement officer can review a copy of the full order to determine if the behavior reported is prohibited under terms of the order. 

As of September 2002, there were 3,598 authorized PFAD users, with a total of 72,465 filed protection orders entered into the system since its existence.  Records from PFAD, including the full text of PFAs, are available 24 hours a day, 365 days a year to authorized users.  For more information, visit the PFAD web site.  You may also contact PFAD at 717-671-4767 or 888-235-3425.

TOP

4. Scholarships Offered for the 2003 International Domestic Violence, Sexual Assault, and Stalking Conference in San Diego

The San Diego Sexual Assault Response Team (SART) Committee and the Donner Foundation are pleased to offer scholarships to the 2003 International Domestic Violence, Sexual Assault and Stalking Conference to be held in San Diego, April 23- 25, 2003.

These scholarships are offered to currently practicing prosecutors and judges who wish to attend the entire conference.  The deadline for applications is January 10, 2003. For more information, contact:

Sharon Pacyna
County EMS 6255 Mission Gorge Road
San Diego, California 92120-3599
Telephone:  619.285-6429
Fax:  619.285.6531
E-mail:  spacynhe@co.san-diego.ca.us

For more information about the conference, please visit the 2003 International Domestic Violence, Sexual Assault and Stalking Conference web site.

TOP

5. National Effort to Craft Guidelines to Protect Personal Privacy and Public Access to Court Records

By Martha Wade Steketee

Courts around the country have been asking for guidance in developing rules and policies governing access to the records they maintain, and guidance in designing and controlling web-based public access portals to their court information.  One source of guidance is the newly completed project final report “Public Access to Court Records: CCJ/COSCA Guidelines for Policy Development by State Courts.”  The State Justice Institute funded this project in 2001 and 2002, staffed by the National Center for State Courts and the Justice Management Institute, on behalf of the Conference of Chief Justices (CCJ) and Conference of State Court Administrators (COSCA).  Detailed information about the project process and the final project report and final CCJ/COSCA Guidelines, as well as the February draft of the Guidelines put out for public comment and all comments received are available on the project web site.

While the policies debated by the project Advisory Committee touched many areas of civil and criminal law, some of the areas that were the most complicated, and difficult to finalize for committee members involved the areas of child welfare, domestic relations, and domestic violence.  All these areas involve parties who are part of the court record involuntarily or whose contact information as part of the court record could pose safety and other risks.  It is important to underscore for the courts considering policies on individual record privacy and public access that what happens in family court, divorce, child custody, and domestic violence protection proceedings differs in substance, in spirit, and in effect from activity in other cases that come before the nation’s state courts and deserve special consideration in state review of existing rules, statutes, and procedures.  CCJ/COSCA Guidelines Section 4.50 outlines access to electronic records only at the courthouse or by subscription (attempting in this way to protect safety and privacy); Section 4.60 outlines the range of types of records that historically have been closed to public review to guide local discussions; and Section 4.70 outlines the process for “sealing” and “unsealing” records, for specific circumstances.

TOP

6. In the News: California Enacts Civil Remedy for Victims of Violence Against Women

The Violence Against Women Act (VAWA) of 1994 contained a Civil Rights Remedy that allowed victims of gender-based violence to sue their assailants in federal court.  In 2000, the U.S. Supreme Court ruled that the Civil Rights Remedy of VAWA was unconstitutional in the case of United States v. Morrison et al.  The Court’s ruling found that state government, not the federal government, had the power to enact such a provision.

In September 2002, California became the first state to adopt a law that allows victims to bring civil action against their abusers.  The law will allow victims of domestic violence, rape, sexual assault, and other forms of violence against women to hold their attackers financially responsible for their crimes and sue them for damages in court.  Governor Gray Davis signed the landmark legislation in late September at the Governor’s Conference for Women.

TOP

TOP