STOPPING DOMESTIC GUN OWNER ABUSE
Firearms were used in 54 percent of the state’s domestic violence-related homicides since 1997. The Tacoma News Tribune states that abusers used firearms in 232 of 430 deaths that resulted from domestic violence between Jan. 1, 1997, and June 30, 2008. These statistics must cause all of us to be concerned.
See State Report Takes On Domestic Violence, By Stacey Mulick.
Statewide in the last two years, 68 women, men and children were killed in domestic violence incidents; 33 victims were shot. Should we look at how the criminal justice system can take further steps to get the weapons out of the hands of convicted abusers?
Under the 1996 Lautenberg Amendment and Washington state law, people convicted of domestic violence, including law enforcement officers and members of the military, are not allowed to possess firearms- no exceptions for police and military. These laws make it difficult to attract and retain personnel! Even authorizing a soldier to handle a weapon while stateside puts his command at risk of criminal prosecution.
Domestic violence laws like the federal Lautenberg Amendment make recruiting and retention of police and military personnel difficult. At one time there were exceptions for police and members of the military:
“For more than thirty years, the Gun Control Act of 1968 has provided the basic framework for gun control in the United States.” The law prohibited convicted felons from possessing firearms, but it provided an exception for members of the government, such as police and military members. This new Amendment, however, does NOT include such a provision. If, however, an officer is convicted of a felony version of domestic violence, the exception applies and the officer may continue to possess a weapon for the performance of his duties.
Since the Lautenberg Amendment became effective, officers who are convicted of a misdemeanor version of domestic violence are prohibited from possessing firearms, even on duty. This inconsistency in the statute has left police and military administrators in a difficult situation regarding the assignment of officers who are affected, although the number of officers affected has been relatively low. This statute also reaches back to prior convictions and applies them to prohibit officers from possessing firearms today, even when they have lawfully been armed officers for years.”
Thus, there are still exceptions that apply for military and police where DV protection orders have been entered and, ironically, where the DV conviction is a felony and not a misdemeanor!
§ 925. Exceptions: Relief from disabilities
(a)(1) The provisions of this chapter, except for sections 922 (d)(9) and 922 (g)(9) and provisions relating to firearms subject to the prohibitions of section 922 (p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.
The impact on recruitment and retention becomes evident once you realize how little it takes to get arrested for domestic violence when a mandatory arrest staute is in place. Mandatory arrest laws enacted in Washington and many other states make officers liable for any mistakes that result from exercise of discretion in making arrests for domestic violence. Thus, almost any hearsay accusation or circumstantial evidence (such as a case in which an officer responds to a 911 caller that was just driving by) can result in an arrest, no-contact orders and a chain of legal events that becomes so complicated and bewildering that defendants often feel that pleading guilty is their only choice.
The “victim” often pleads with the prosecutors to drop the case and a great deal of pressure, including threats of prosecution against the victim, are often employed in order to gain the testimony of the “complainant witness ” that may have never initiated the complaint at all. The State has sole control over whether to proceed with the charges in Washington State and in King County and Seattle rarely dismisses cases even when the “victim” is vehemently denying that any assault ever occurred.
Even when a woman denies that an assault has occurred her husband or boyfriend is prone to be arrested, jailed and charged despite the responding officers’ common sense determinations. This is because of the technical fact that probable cause exists and failure to arrest makes officers liable for any mistaken judgment that results in death or injury to the “victim“.
Every officer, prosecutor and criminal defense lawyer is familiar with the problem of how unfair the system is to men. Nevertheless, no politician, prosecutor or judge is going to position himself or herself to look soft on domestic abusers! The coalition of DV activists in Western Washington is ferocious to any official that crosses their agenda:
A police officer having probable cause to believe that a person has committed or is committing a felony shall have the authority to arrest the person without a warrant. A police officer may arrest a person without a warrant for committing a misdemeanor or gross misdemeanor only when the offense is committed in the presence of the officer, except as provided in subsections (1) through (10) of this section….
(c) The person is sixteen years or older and within the preceding four hours has assaulted a family or household member as defined in RCW 10.99.020 and the officer believes: (i) A felonious assault has occurred; (ii) an assault has occurred which has resulted in bodily injury to the victim, whether the injury is observable by the responding officer or not; or (iii) that any physical action has occurred which was intended to cause another person reasonably to fear imminent serious bodily injury or death. Bodily injury means physical pain, illness, or an impairment of physical condition. When the officer has probable cause to believe that family or household members have assaulted each other, the officer is not required to arrest both persons. The officer shall arrest the person whom the officer believes to be the primary physical aggressor. In making this determination, the officer shall make every reasonable effort to consider:
(i) The intent to protect victims of domestic violence under RCW 10.99.010;
(ii) the comparative extent of injuries inflicted or serious threats creating fear of physical injury;and
(iii) the history of domestic violence between the persons involved.
“This degree of statutory control leaves the officers with little discretion, imposing a duty upon the officers to make arrests in most cases. The result is that officers make arrests in marginal situations, essentially because they are “afraid not to. Officers tend to err on the side of the statute’s demand for an arrest, even when they believe an arrest is unnecessary.”
See Impact of Domestic Violence On Law Enforcement.
The Law Office of Mark Knapp PLLC 