By Jacob R. Clark
The Federal law passed last fall that prohibits anyone with misdemeanor domestic violence convictions from possessing a firearm is rocking law enforcement, sparking lawsuits challenging its constitutionality, forcing police agencies to conduct time-consuming background checks of officers to ensure compliance with the law, and in some cases, costing officers their jobs.
The furor over the Domestic Violence Offender Gun Ban, which was sponsored by Senator Frank Lautenberg (D.-N.J.) and passed by Congress on Sept. 28 as part of an omnibus spending bill, also has prompted police groups to lobby for changes that would make the law more palatable to police.
A lawsuit filed by the National Fraternal Order of Police on Jan. 21 seeks to block enforcement of the gun ban pending a review of its constitutionality. Arguments in the effort to get an injunction against the law were expected to begin in U.S. District Court in mid-February, said FOP executive director James O. Pasco Jr.
While many police officials say they favor the intent of the law, which is aimed at reducing the number of domestic homicides by prohibiting those with prior convictions from having access to firearms, some believe it is having an unfair, and unforeseen, impact on law enforcement.
“This issue is causing more chaos than almost anything I’ve ever seen in law enforcement,” said Beth Weaver, a spokeswoman for the National Association of Police Organizations, which has been alerting police agencies about the law while lobbying legislators to support one of two proposed changes to the law.
Pasco said the amendment directly threatens law enforcement careers by penalizing people convicted of the spousal abuse without taking into account that they may have successfully dealt with their domestic problems.
“Pre-employment screening and the scrutiny law enforcement officers face on the job is such today that it’s unlikely that anyone who habitually abuses his or her spouse or family member is a police officer,” Pasco told Law Enforcement News. “That doesn’t mean there’s not a problem. But to the extent that there are officers with previous convictions, in all probability they’re good people who made a mistake at one time or another.”
The FOP is also lobbying Congress to amend the law and make the firearms disability provision apply “prospectively to offenders those who were convicted after enactment, not persons who 15 or 20 years ago got into an argument with their spouse,” said Gilbert G. Gallegos, the National FOP’s president.
Rita Smith, the executive director of the National Coalition Against Domestic Violence, doesn’t buy Gallegos’s argument. “There’s absolutely no way that there would have been minor convictions 20 years ago,” she told LEN. “We did not get domestic violence convictions 20 years ago. It would have to have been a felony-level assault. And those people need to be considered dangerous.”
At least two lawsuits were filed this month, in Atlanta and Los Angeles, by police unions with members who have been reassigned or face losing their jobs outright due to the gun law.
The Association for Los Angeles County Deputy Sheriffs last month filed a Federal lawsuit seeking an injunction against the ban after Sheriff Sherman Block relieved three deputies of their peace officer status in December and reassigned them to administrative duties. Richard Shinee, an attorney who represents the union, said the lawsuit also seeks restoration of the deputies’ peace officer status.
A similar lawsuit also was filed by the Southeast regional office of the International Brotherhood of Police Officers in U.S. District Court in Atlanta on Dec. 31. The suit was filed after Fulton County, Ga., Sheriff Jacqueline Barrett terminated three deputies and reassigned “several others” to comply with the ban, according to Chip Warren, national vice president of the IBPO, which represents 6,000 municipal police officers in the Southeast.
Both the Los Angeles and Atlanta lawsuits are challenging the law on its procedural and substantive due process, equal protection and retroactive provisions. The IBPO lawsuit, which seeks both temporary and declaratory relief against the law, also alleges that Congress exceeded its authority to regulate interstate commerce when it passed the law by prohibiting officers “from transporting or carrying guns anywhere, including outside their own jurisdictions,” added Warren, who is a retired Atlanta police officer.
Deputy U.S. Attorney General Jamie Gorelick, who recently announced her resignation [see Page 4], has asked Federal agencies whose employees are authorized to use firearms to report to her on its impact. Federal law enforcement officers are being asked “to inform us in writing” about any prior domestic violence misdemeanor convictions, Justice Department spokesman Gregory King told LEN.
“Those with convictions are being asked to turn in their firearms,” he said. “We expect to know how much of an impact it’s had in the next few weeks.”
Meanwhile, two proposals have been introduced in Congress to alter provisions of the gun ban and make it more favorable to law enforcement.
A proposal by Representative Bart Stupak (D.-Mich.) would partially reinstate the exemption provided for law enforcement under the 1968 gun control act by providing an “official use” exception that would apply to on-duty police officers and the military.
Some critics, however, say that the exemption might be perceived as a special right. “We’re not looking for special protections,” said Buffalo, N.Y., Police Commissioner Gil Kerlikowske, the current president of the Police Executive Research Forum.
“I’m not sure I see a case for exempting law enforcement officers,” added Lawrence Sherman, the chairman of the School of Criminal Justice at the University of Maryland who has conducted landmark research on police response to domestic violence. “Police, like anyone else, are at greater risk of committing homicide if they have a domestic violence conviction. If somebody has been convicted, even a long time ago, I think there’s a serious question about whether we want a gun to be in that home.”
Ms. Smith of the National Coalition Against Domestic Violence, which lobbied for the gun ban, said her organization opposes any effort to change the statute.
“It’s not surprising to me that there has been resistance by law enforcement to this issue,” she told LEN. “But we were clear when we supported the bill that it needed to affect everyone, that there wouldn’t be any special classes or exemptions to this issue.
“We believe in this law; we believe it will actually prevent murders,” Smith added.
Another proposal, introduced by Representative Bob Barr (R.-Ga.) and supported by the FOP, would have the ban apply only from its date of enactment. In effect, the change would address concerns that the law as it now written violates the Constitution’s ban on ex post facto laws.
“The vast majority of all laws passed by Congress apply only to offenses committed after the new law goes into effect,” Barr wrote recently in “Subject to Debate,” a PERF publication. “The Lautenberg law should be considered no differently, especially since specific due-process provisions were written into the law, including the right to an attorney and the right to a jury trial.”
Barr’s proposal has been criticized by NAPO executive director Robert Scully, who said the effort “to fix the situation retroactively is too little, too late.” Barr, Scully noted, “is responsible for deleting the ‘official use’ exception” from the Lautenberg bill before it was attached to the spending measure.
Hearings on the bills were to be convened by the House Subcommittee on Crime on Feb. 26.
Far from the halls of Congress, meanwhile, police agencies are left to grapple with application of the law, ever since the Bureau of Alcohol, Tobacco and Firearms sent out an advisory last fall informing them that they must comply with it. How the law will be enforced and which Federal agency would be charged with the task is still unclear, sources told LEN. “It’s an enforcement nightmare,” Pasco said.
Most police agencies are conducting massive, time-consuming reviews of personnel records to determine whether any officers are in violation of the law. But that may not be enough to identify all those officers who might be affected by the gun ban, said Sherman.
“As a matter of computerized record-keeping, I think it will be difficult to [search for past convictions] retroactively with any degree of accuracy,” Sherman noted, because conviction records currently do not include information about victim-offender relationships. “The implementation of the entire law rests on the ability to do these kinds of checks.”
No one knows how many law enforcement officers might be adversely affected by the law, but anecdotal reports suggest that the number could be substantial.
Norwich, Conn., Police Chief Richard Abele said he was forced to relieve one officer of his gun and put him on desk duty. “My main objection is that it’s not fair,” said Abele, whose agency has 92 officers. “There’s no longer any problem; he’s not even married to the other party anymore.”
Abele’s quandary is being experienced by police chiefs nationwide, observed Kerlikowske. “There are domestic-violence cases involving police officers where the job or the firearm never figured in what occurred, where the incident was very, very minor. But all of these cases are being painted with one broad brush by the law, and I think that makes it a lot more difficult for police executives…. It’s a no-win situation.”
The New York City Police Department is said to be investigating at least 125 officers who may be affected by the law. The department does not currently hire applicants with misdemeanor domestic-violence convictions but any officers found to be covered by the law’s retroactive provision would be fired. “Why would you want to keep somebody on the payroll who can’t function as a police officer for their career?” a high-ranking police official told The New York Daily News.
Some officers initially affected by the law later were reinstated after officials determined that they were not considered to have been convicted under the law. The statute does not apply to persons whose domestic-violence conviction was expunged or set aside, or who received a pardon or had their civil rights restored unless the pardon, expungement or restoration of rights “expressly provides that the person may not ship, transport, possess or receive firearms.”
Three of five Minneapolis officers who turned in their guns were reinstated after having pleas vacated or expunged, said Police Chief Robert Olson.
Officers affected by the law often are being transferred to administrative duties or other assignments that do not require them to carry firearms. A Denver police officer and a detective who fell under the law’s provisions were served with a written order barring them from carrying firearms or ammunition “in any capacity, on or off duty, until further notice,” said Lieut. John W. Lamb, who heads the Police Department’s civil liability bureau. The two now are assigned to non-line duties, Lamb said.
The department is taking a “wait-and-see” attitude with the hope that the situation is resolved within the next few months, Lamb added. But unless changes are made soon, he said, “we’ll have to take action” against the two officers.
“We’re not going to rush to separate these officers from the organization,” said Lamb. “But the department has no unarmed positions, so if this law is not changed, it will be career-ending for those affected by it. If you can’t carry a gun, you can’t do your job.”
The FOP is advising its members to consult its attorneys before they answer any questions directed by employers about domestic violence, said Pasco. “And we would urge chiefs to be as disciplined in their approach to this problem as they would in their approach to problems with criminal defendants, and show the same respect for law,” he added.
Not all police executives are troubled by the gun ban, and most favor the statute’s intent to reduce the number of domestic homicides.
“I think it’s a good law,” said Austin, Texas, Police Chief Elizabeth Watson, who said a recent records check indicated that none of that city’s 1,000 officers are yet affected by the statute. “I’m very supportive of sanctions regarding domestic violence. We need to take advantage of every opportunity to deliver a message, not only as police officers, but as a community, that we need to be intolerant of the activity.”