|January 25, 2013|
Previously published on December 2009
Domestic violence is physical abuse between non-strangers. Typically, there is a family type relationship between the victim and abuser, such as spouses, non-married lovers, or parent to-child.i Almost every trooper in the Maryland State Trooper will have to respond - at least once in a career, to a domestic violence call. Domestic Violence situations have great potential for danger and unpredictability because of the intense level of human emotion. When firearms are present in a domestic dispute, the results can be deadly. State and federal legislatures, recognizing this danger, enacted laws designed to disarm perpetrators and protect victims of domestic violence. Because an order to the perpetrator to “stay away” from the domestic violence victim may not be adequate protection, criminal and civil laws now include provisions to confiscate firearms in the possession of the alleged perpetrator.
Domestic violence perpetrators and victims come from all facets of society. Normally,
law enforcement officers are on the front line of domestic violence prevention and enforcement. What if the law enforcement officer is accused of domestic violence? If so, the officer may be at risk of criminal, civil, and administrative consequences, and the officer should call an attorney immediately. In addition, a trend in domestic violence legislation is to restrict gun possession of the alleged abuser, which causes problems for those required to possess a firearm for employment. This article explains (1) the history of firearms provisions as they relate to domestic violence and law enforcement officers, and (2) recent changes in the law and what those changes mean to law enforcement officers.
HISTORY OF DOMESTIC VIOLENCE & FEDERAL & STATE GUN CONTROL LEGISLATION
In 1968, Congress enacted the Gun Control Act of 1968 (GCA) in an effort to create allinclusive regulation of the manufacture, sale, transfer, and possession of firearms and
ammunition. The GCA restricts persons convicted in state or federal court of any crime
punishable by imprisonment exceeding one year from possessing a firearm. The GCA provided an exception for military and law enforcement officials of “the United States or any department 2 or agency thereof or any State or any department, agency or political subdivision thereof.” 18 U.S.C. § 925(a)(1).
Subsequent to the enactment of the GCA in 1968, domestic violence awareness increased. In 1994, Congress enacted the Violence Against Women Act of 1994 (VAWA). The VAWA expanded the GCA by prohibiting firearms possession by persons who were subject to domestic violence orders. 18 U.S.C. § 922(d)(8). Despite this expansion, neither the GCA, nor the VAWA, required persons charged with misdemeanor domestic violence, punishable by less than one year incarceration, to relinquish personal firearms. In addition, the VAWA permitted military personnel and law enforcement officers to possess service weapons in the “public interest.” Thus, some argued that perpetrators of domestic violence were still able to buy and own firearms.ii
Maryland, like most states and the federal Government, enacted parallel gun control and
domestic violence laws. In Maryland, the gun control law prohibits a person who is subject to a civil final protective order (FPO) from possessing a regulated firearm, including a handgun. Md. Pub. Safely Code Ann. § 5-133.iii The FPO law, as a domestic violence law, permits a judge to prohibit possession of all firearms, regulated or not. Md. Fam. Law Code Ann. § 4-506. The use of the term “firearms” in Md. Fam. Law Code Ann. and “regulated firearms” in Md. Pub. Safety Code Ann. permits possession of rifles, if the judge does not order removal of firearms. In addition, Maryland’s gun control statute includes a “public interest” exception, just as the federal GCA does, but the domestic violence statute does not. Thus, there is inconsistent application of the firearms prohibition as to law enforcement personnel who are subject to FPO’s.
The laws of other states similarly vary in scope, strictness, and enforcement, and many
have exceptions that permit perpetrators of domestic violence to obtain firearms. In 1996, Congress attempted to make uniform the divergent state laws by enacting a second expansion of the 1968 GCA, known as the Lautenberg Amendment of 1996.iv
SIGNIFICANCE OF THE LAUTENBERG AMENDMENT
Congress incorporated the 1996 Lautenberg Amendment into the GCA. The purpose of
the Amendment was to prevent the use of firearms in domestic violence offenses. The
Amendment extends the original GCA by criminalizing firearm possession not only for
perpetrators of felonies, but also for perpetrators of domestic violence misdemeanors. The Amendment prohibits purchase or possession of firearms by persons convicted of domestic 3 violence misdemeanors. In addition, the Amendment removed the “public safety” exception.
Thus, the firearms prohibition applies to any person convicted of a domestic violence
misdemeanor, including federal, state, and local law enforcement officers. The firearms prohibition applies to every federal or state domestic violence misdemeanor if the conviction has, as an element, the (1) use or attempted use of physical force, or (2)
threatened use of a deadly weapon, when committed by a (a) spouse or former spouse, (b) parent or guardian, (c) person with a shared child, (d) co-habitant or former co-habitant as spouse, parent, or guardian, or (e) person similarly situated to a spouse, parent, or guardian.
Because the Lautenberg Amendment applied retroactively, it applied to prior convictions of domestic violence misdemeanors, and such persons were retroactively prohibited from
possessing a firearm. The Amendment provides two statutory exceptions. (1) The prohibition does not apply if the domestic violence conviction occurred without the benefit of counsel, unless there was a knowing and intelligent waiver of the right to counsel. (2) The prohibition does not apply if the domestic violence conviction occurred without the benefit of a jury trial (assuming jury trial eligibility), unless there was a knowing and intelligent waiver of the right to a jury trial.
The Lautenberg Amendment has been criticized for elimination of the exception for
possession of firearms by law enforcement officers and military personnel who are convicted of domestic violence misdemeanors, while leaving the exception in place for felony convictions. Law enforcement officers and military personnel argue that the Amendment is unconstitutional and should exempt law enforcement officers and military personnel with misdemeanor convictions in the same manner that the Amendment exempts them as to felony convictions.v
The “felony-misdemeanor anomaly” means that law enforcement officers and military personnel with felony convictions may possess service weapons under federal law, but law enforcement officers and military personnel with misdemeanor domestic violence convictions may be forced to resign or be restricted to administrative duties for which firearms are not necessary.vi
NEW AMENDMENTS TO MARYLAND LAW
Maryland, like many other states, has civil and criminal protective order statutes that
allow issuing courts to prohibit ownership or possession of firearms while the protective order is in effect. Following strong media coverage of domestic violence incidents and fatalities, Governor O’Malley signed legislation, on May 19, 2009, that broadens the forearms control 4 aspect of both temporary protective orders (TPO) and final protective orders (FPO). This legislation reflects the trend of prohibiting possession of firearms by those who are subject of domestic violence protective orders.
As a result of the new legislation, since October 1, 2009, a judge, when issuing a TPO,
has the discretion to order the surrender of all firearms and the prohibition from possessing any firearm while the TPO is in effect. Such an order requires the judge to find reasonable grounds of (1) actual or threatened use of a firearm against the victim, or (2) actual or threatened serious bodily harm inflicted on the victim. Md. Fam. Law Code Ann. § 4-505(a)(2)(VIII).
The new statute extends the maximum duration of a TPO from seven days to six months.
Id. § 4-505(c)(2). The prior statute permitted a judge to extend a TPO for 30 days for good cause shown or to effectuate service. Thus, law enforcement officers who are ordered to relinquish service weapons, based on an ex parte TPO, may be prohibited from possessing firearms for up to six months awaiting an FPO hearing. During the interim, they will not be able to perform all of the requisite functions of a sworn officer and may face suspension pending the outcome of an FPO hearing.
The most far reaching component of the new statute mandates that all FPO’s require
firearms surrender and prohibit firearms possession. Id. § 4-506(e). The possession prohibition has continues for one year in most cases. Under the prior law, the surrender of firearms was within the judge’s discretion. Thus, in some cases, a law enforcement officer could to continue to work even with an FPO. The new law also closes the “regulated firearms” (handguns) versus. “firearms” loophole between the GCA and the domestic violence statute that permitted rifles if a judge did not order firearms surrender as part of an FPO.
The prohibition on firearms possession also removes a benefit of a negotiated consent
FPO under section 4-506(c)(ii). Under the prior law, the parties could include, in a consent FPO, that the law enforcement officer could possess firearms, provided there was no abuse or threatened abuse. As such, the parties could agree on a level of protection, while allowing the law enforcement officer to remain employed. The new law prohibits the parties from reaching such an agreement and requires firearm surrender and prohibits firearms possession. Thus, because there is no firearms exception, a law enforcement officer must defend in the FPO hearing and cannot negotiate a settlement.
MARYLAND STATE POLICE ADMINISTRATIVE REGULATIONS 5
Law enforcement agencies have been urged by domestic violence victims’ advocates to
develop domestic violence policies for their employees. The Maryland State Police (MSP) has a comprehensive Domestic Violence Policy for both enforcement of protective orders and for employees that are subject to protective orders. See MSP Patrol Manual ch. 34. One such policy is to notify the Internal Affairs Unit (IAU) of a domestic violence incident, which will usually result in an IAU investigation. The primary concern among domestic violence victims’ advocates is that an abuser in uniform may enjoy certain immunity from enforcement by virtue of police powers.
Many departments, including the MSP, impose emergency suspension of police powers if
deemed to be in the best interest of the public and the Department. The MSP Administrative Manual provides that an emergency suspension should be imposed against an employee who is the subject of a TPO, whether or not the TPO prohibits firearms possession. MSP Admin Man. ch. 5, § VII.B. When the MSP suspends police powers, the suspended employee’s commander retains the employee’s firearm, badge, ID card, MPTC certification card, and vehicle. Id. § VII.B(4).
The MSP may only suspend a sworn officer, without pay, if the employee has been charged with a felony. The MSP always has the discretion to suspend with pay. Md. Pub. Safety Code Ann. § 3-112(c). The suspension may be reviewed by a three-person review board within 72 hours, but officers may waive this right. The review board will recommend to the Superintendent that the officer return to duty or remain suspended. MSP Admin. Man. ch. 5, § VIII.C-H. If the reason for the suspension becomes moot, e.g., TPO is denied, IAU will review the facts and make a recommendation to the Superintendent whether to reinstate police powers. Id. § VIII.I.
Law enforcement officers face unique consequences from firearm regulations contained
in domestic violence and gun control laws. Their situation is unique because they are required to carry firearms by the nature of their employment. The public interest exception to gun control laws, allowing law enforcement officers to possess service weapons, has been modified by the Lautenberg Amendment to remove the exception for domestic violence misdemeanor convictions, but keep the exception for felony convictions.
Maryland law goes further than federal law and contains a mandatory prohibition against
firearms possession in all FPO’s. Maryland law does permit exceptions for other infractions in 6 the gun control statute. The administrative rules of the MSP are the strictest, by placing a sworn officer on emergency suspension whenever the officer is subject to a TPO, even when issued on an ex parte basis. This status usually remains until the outcome of the FPO hearing. Maryland’s recent extension of the duration of ex parte TPO from 30 days up to six months may result in a longer period of suspension prior to the FPO hearing. Therefore, if a sworn MSP member is subject to a TPO, an FPO, or a related criminal charge, the member should contact a competent attorney familiar with both the domestic violence laws in Maryland and the employment consequences of these laws.
i For a list of relationships that make people eligible for relief under the protective order statutes, see Md. Fam. Law Code Ann. § 4-501(l).
ii Alison J. Nathan, At the Intersection of Domestic Violence and Guns: The Public Interest
Exception and the Lautenberg Amendment, 85 Cornell L. Rev. 822, 826 (2000).
iii A list of regulated firearms is found in Md. Pub. Safety Code Ann. § 5-101(p).
v Fraternal Order of Police v. United States, 981 F. Supp. 1 (D.D.C. 1997); Hiley v. Barrett, 155 F.3d 1276 (11th Cir. 1998).
vi 85 Cornell L. Rev at 857.