Guns and domestic violence are a deadly combination. If an abuser has access to a firearm, he or she is much more likely to kill his or her partner. Again and again, Congress and the U.S. Supreme Court have had to stand up to people convicted of domestic violence trying to arm themselves.
Abuse is rarely a one time occurrence. Instead, it is a learned pattern of behavior that raises its head again and again, with partner after partner. These behaviors often go unnoticed by law enforcement for years before finally resulting in a domestic violence conviction.
When you add weapons to the mix, an already volatile situation can turn deadly. Domestic violence assaults involving a firearm are 12 times as likely to be fatal than cases of unarmed assault or other weapons.
Even though domestic violence can rip apart a victim’s life and do permanent mental and emotional damage, most states charge the crime as a misdemeanor, not a felony. That means many of the restrictions that protect the public from violent offenders don’t apply to domestic violence offenders.
To combat this, twenty years ago Congress “close[d a] dangerous loophole” in gun control laws, extending the felony firearm ban to “misdemeanor crime[s] of domestic violence.” Federal law, 18 U. S. C. §922(g)(9), says:
“It shall be unlawful for any person. . . who has been convicted in any court of a misdemeanor crime of domestic violence,to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”
The law includes “ an offense that—
(i) is a misdemeanor under Federal, State, or Tribal law; and(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
Abusers have been trying to find ways around this firearm prohibition for years. In 2009, in United States v Hayes, abusers claimed the law didn’t apply if they weren’t charged under specific domestic violence statutes. The U.S. Supreme Court said it was the domestic circumstances, not the charging language that made the misdemeanor dangerous, so the firearm prohibition still applied.
In 2014, in United States v Castleman, they tried again, arguing that a conviction of “domestic assault” didn’t count as “domestic violence.” A unanimous Supreme Court said that assault was inherently a “use of physical force” that counts as violence so the prohibition still applies.
Now, in Voisine v United States, the U.S. Supreme Court has had to stand up for domestic violence victims yet again. This time, two defendants convicted under Maine’s misdemeanor domestic violence claimed that the the statute didn’t count for the firearm prohibition. They claimed that because Maine’s domestic violence statute includes reckless acts, the courts couldn’t say any conviction qualified as a “use of force”.
When it comes to criminal law, “reckless” means to “consciously disregard a substantial risk that the conduct will cause harm to another.” The court said:
“But the word “use” does not demand that the person applying force have the purpose or practical certainty that it
will cause harm, as compared with the understanding that
it is substantially likely to do so. Or, otherwise said, that
word is indifferent as to whether the actor has the mental
state of intention, knowledge, or recklessness with respect
to the harmful consequences of his volitional conduct.”
The court gave two examples of when reckless behavior was nonetheless domestic violence. In the first, a husband throws a plate at the wall, consciously disregarding the risk that shards of the plate could ricochet and hurt his wife who stands nearby. In the second, the husband slams the door in his wife’s face, consciously disregarding the risk that her had could be caught in the jam.
In both these cases, the act of throwing the plate or slamming the door constituted the “use of force.” and made the resulting injury enough to support domestic violence firearm prohibitions.
The court also noted that if it were to exclude domestic violence statutes that punished recklessness, the laws of 34 states and the District of Columbia would fall outside of the federal protection. Since many of those statutes existed before the domestic violence firearm ban, the Court said Congress must have intended that those statutes be included.
The federal law is intended to prevent abusers from making the leap from assault to fatal domestic violence. The United States Supreme Court has shown, three times in the last 10 years, that the lives of domestic violence victims are more important than abusers’ desire to own weapons.
Lisa J. Schmidt is a family law attorney at Schmidt Law Services, PLLC, in Ferndale, Michigan. She helps the victims of domestic violence escape dangerous family situations. If you need help with a divorce or custody situation, contact Schmidt Law Services today for a free consultation.