Another client described how her boyfriend opened the shower door on her, cornering her and threatening her with a gun as she bathed. Her fear was palpable as she recounted how she thought her life was over. During my career representing abuse survivors and directing domestic violence law clinics, I have represented many clients who have similarly feared for and survived attacks on their lives. As I co-chair my county’s Domestic Violence Death Review Team, almost all of the fatalities we examine are firearm fatalities.
When I hear news of a gun massacre, I am overcome by it. I weep, and I want to hold my children. I also feel myself waiting. As someone who has spent my life working on gender-based violence issues, I wait for the likely news that there was a history of domestic violence. We see this again and again: the Seal Beach salon massacre, and the mass shootings at San Bernardino Elementary School; Pulse nightclub; congressional members’ baseball practice; the Sutherland Springs, Texas, church; Parkland, Florida; and Dayton, Ohio.
Abused individuals experience alarming rates of firearm threats and fatalities in the United States, and part of what makes firearm violence and these tragedies so heartbreaking is that they are preventable. Community members, family law attorneys, judges, mediators, therapists, and others should play key roles in prevention, but they too often fail to broach the subject of gun safety and miss opportunities for intervention.
Recognizing lethality risks, state and federal laws now restrict access to firearms by domestic violence offenders, although implementation and enforcement gaps persist. At the federal level, the Violence Against Women Act of 1994 bans individuals subject to a protection order from possessing a firearm,3 and the 1968 Gun Control Act and the 1996 enactment of the Lautenberg Amendment impose lifetime firearm possession bans on those convicted of certain domestic violence crimes.4 Legislators have the power and ability to enact additional reasonable gun laws to prevent many domestic violence fatalities and mass shootings. Universal background checks, for example, are desired by over ninety percent of Americans5 and have been proven to reduce domestic violence gun murders by forty-seven percent.6 Importantly, states that restrict domestic abusers’ access to firearms have significantly reduced rates of intimate partner homicide.7 While a majority of Americans desire legislative reform and the enactment of gun-safety measures, firearm legislation is highly politicized, with the National Rifle Association (NRA) funding campaigns and lobbying without regard for research findings on public health and safety.8
This Article examines the problem of family violence firearm fatalities in the context of the highly gendered nature of victimization within intimate relationships, intimate partner homicides, and firearm ownership. It surfaces some of the hard realities for practitioners and courts, including the gendered knowledge gap as to whether there are guns in the home, the easy access to firearms in the United States, and the implementation gaps that must be closed for laws to be effective. In proposing reforms, the article posits solutions that should receive broad support from the legal profession and bipartisan political support, especially if politicians resolve to stop playing politics with the deadly combination of firearms and family violence.
I. Firearms and Domestic Violence: A Dangerous Combination
A. Intimate Partner Violence and Fatalities
Rather than a gun in the home increasing the household’s safety, which is the most common reason given for gun possession,9 firearm ownership dramatically increases rates of firearm fatalities and suicide for members of the household,10 even with safe gun storage practices.11 Furthermore, a domestically abusive individual is likely to use the firearm to perpetrate abuse against an intimate partner and children. One prominent study found that in nearly three-quarters of battered women’s households that contained a gun, the abusive partner had used the gun against the abuse victim by threatening to shoot and kill her or by actually shooting at her.12 Of women alive today, 4.5 million report that an intimate partner threatened them with a gun, and one million women report being shot at.13 The majority of intimate partner homicides are committed with firearms,14 and the risk of femicide by an intimate partner increases by 500 percent when the abusive partner has access to a firearm.15
Intimate partner violence and intimate partner homicides are highly gendered.16 While both women and men experience domestic violence, women account for eighty to eighty-five percent of individuals abused by intimate partners17 and typically endure more severe injuries than men.18
Regarding the causes of domestic violence, empirical research explains that abusive partners engage in violence and coercively controlling behaviors to gain and maintain power and control over an intimate partner.19 Research also reveals that gender inequality, patriarchy or male control in domestic or intimate settings, and intergenerational patterns perpetuate abuse.20
Although societal fears focus on stranger violence, “intimate partners with guns present the greatest fatal risk to women.”21 While intimate partners account for four percent of perpetrators of homicides of men, women are more likely to be murdered by an intimate partner or ex-partner than by a stranger.22 The most consistent risk factor for femicide is prior intimate partner violence,23 and these homicides are typically committed after a long history of domestic violence.24 Guns are used in fatal domestic violence more than any other weapon.25
Access to a firearm is the primary predictor of intimate homicide, and prior threats with a weapon significantly correlate with femicide.26 Separation violence and jealousy are also associated with firearm fatalities, with research showing that when the most violent incident of abuse is triggered by the victimized individual leaving the abusive partner for another relationship or the abusive partner otherwise showing extreme jealousy, this produces a nearly fivefold increase in femicide risk.27 Having a child in the home who is not the abusive partner’s biological child more than doubles the femicide risk.28
Intimate partner homicides may extend to even broader tragedy, with the murder of children and bystanders. Homicide-suicides are also common in these contexts.29 Surviving family members and friends are forever affected, as they lose the murdered parent and the perpetrator to prison or suicide and suffer social consequences.30
Intervening in firearm-related domestic violence can prevent widespread tragedy. Of the nearly 170,000 domestic violence–related calls to law enforcement in California in 2018, for example, over forty-five percent of calls reported the use of a weapon in the incident.31 Because the majority of mass shooters have known histories of domestic violence,32 early intervention enhances individual, household, and community safety. The gunman who opened fire in a church in Sutherland Springs, Texas, in November 2017, for example, had served a year in military jail for beating and choking his wife, threatening her with a firearm, and fracturing her child’s skull, and he was not legally permitted to have a gun.33 As was the case with the Dayton, Ohio, massacre in a college bar and club area,34 the San Bernardino Elementary School shooting in California,35 the open fire on congressional members playing baseball,36 and the majority of other recent mass shootings, the gunman had a known history of domestic violence.
B. Gender-Based Violence and the Gendered Nature of Firearm Possession
Like the often-gendered nature of intimate partner violence, firearm ownership is highly gendered. Men are considerably more likely to purchase firearms than women and to store these firearms, and the majority of gun owners are white men.37 Research of heterosexual married couples shows that husbands are four to five times more likely to personally own a gun than their wives.38 In most families, “a gun is viewed by all concerned as the private property of a particular family member,” and that person is typically a man.39 Furthermore, in homes with firearms, approximately eighty-five percent of men and women reported that storing the guns was solely the man’s responsibility.40
The gun lobby has used social images of masculinity, including “frontier masculinity,” to promote gun use and has mythologized rare stories of private citizens defending vulnerable individuals with guns. Handguns “function as props for doing masculinity” by allowing men to feel that they both adopt the role of protector and can overtake threats posed by other men, regardless of age and physical ability.41 White men who feel marginalized by gains made by women and people of color during recent decades are particularly drawn to the “frontier masculinity” portrayal,42 and researchers have determined that “racial prejudice interacts with aggressive attitudes to produce higher levels of ownership.”43
Research further reveals that firearm ownership is more likely in households in which intimate partner violence occurs. In homes with “chronic” or “severe” violence, firearm ownership is twenty percent higher than in the general population.44
Domestic violence is about power and control, and masculinity that emphasizes dominance and control often valorizes violence as a way to prove self-worth and positions of women and LGBTQ individuals as inferior. The man who killed forty-nine people and wounded fifty-three others in a mass shooting at Pulse, a gay nightclub in Orlando, Florida, in June 2016, had a history of perpetrating intimate partner violence and frequently expressed homophobia.45 This is one tragic example of dominance masculinity, domestic violence, and firearms. New research indicates that domestic violence homicides have increased by thirty-three percent in the United States over the past several years, and scholars attribute this to a divided nation and the normalizing of misogyny.46
The gun industry has attempted to increase female ownership by targeting women’s fears and encouraging their firearm ownership for protective purposes. They exaggerate the likelihood of guns to provide protection and the danger of strangers,47 even though sexual and physical acts of violence perpetrated by strangers are statistically far less likely to occur to women than intimate partner violence.48 The 1990s campaign “Refuse to Be a Victim”49 equated gun ownership with empowerment and characterized female gun possession as the “last frontier of feminism.”50 Despite these efforts, ownership of firearms among women has not increased and the market for guns is still mostly male.
C. Teen Dating Violence and Firearm Possession
When seeking to prevent teen firearm fatalities and massacres, it is critical to recognize that teen dating violence is “highly associated with firearm possession.”51 Recent studies show that youth with firearms are more likely to commit dating violence, to have been in recent serious physical fights, and to endorse aggressive attitudes that increase risk for retaliatory violence.52 Youth firearm possession additionally correlates with male gender, and factors such as young age, possessiveness, impulsivity, lack of dispute resolution skills, and use of force increase the likelihood that young people with guns will die or kill with them.53
Many girls as young as eleven years old experience dating violence,54 and during teenage years, one in three girls in the United States experiences dating violence.55 Consequences include elevated rates of suicidal thoughts and actions, substance abuse, sexually transmitted infections, teen pregnancy, future experiences of domestic violence, and fatality.56
In addition to power and control dynamics and intergenerational patterns of abuse, youth peer relationships contribute to and predict violence in their adult relationships. For example, a study of familial and peer influences found that male youth who have friends with “aggressive attitudes toward women” are at increased risk of becoming perpetrators of domestic violence.57 Studies have also found links between firearm possession and male gender, dating or intimate partner violence, retaliatory attitudes, and substance abuse.58
Although individuals under age eighteen are generally prohibited from possessing a handgun,59 surprisingly high percentages of male youth possess or have access to firearms. More than one-fifth of high school students in the United States report having carried a firearm in the past thirty days.60 The gender gap between women and men owning guns and being aware of whether there are guns in the home61 includes adolescents. While there is little “age gap” in reporting that there are firearms in the home, there is a significant gender discrepancy between boys and girls in marital and nonmarital homes regarding knowledge of firearms in the house.62 There is also a gender gap in personal experience with guns, with male youth being three times more likely to report handling firearms than female youth.63
Although many youth have access to guns at home, most firearms possessed by youth are obtained outside of legal channels through illegal, unregistered sales to minors, making minimizing illegal firearm access key to fatality prevention efforts.64 In a study of nearly 700 assault-injured youth (age fourteen to twenty-four) appearing at emergency departments, twenty-three percent reported firearm possession in the past six months, and this study excluded any firearm used for hunting, target shooting, or a sporting activity.65 Only seventeen percent of the firearms were obtained through plausibly legal channels (e.g., accessed from family members who legally obtained the weapons), with the remaining eighty-three percent of firearms acquired illegally.66 In this study, twenty-two percent of youth reporting firearm possession owned highly lethal, rapid-fire, large-clip automatic or semiautomatic weapons.67
The relationship between firearms and masculinity is socially construed from a young age, necessitating educational intervention and societal change. The gun lobby has been adept at creating a culture around firearms that promotes male desire for dominance and control, tapping into fear and using rhetoric about protection, while being a politically powerful actor.
Despite the dangerous combination of domestic violence and firearm access, justice system actors routinely neglect to seek information and to utilize options that would prevent intimate partner homicide. Many firearm fatalities in intimate contexts are preventable through commitment to intimate partner violence prevention at early ages and stages, safety planning and resources for family-court-involved individuals, and withholding of guns from people with a history of domestic violence,68 as explored in Part II.
II. Opportunities for Preventing Intimate Partner Firearm Fatalities
Massacres from recent decades reveal that individuals with histories of domestic violence commit the majority of mass shootings in America. This connection between firearm fatalities and relationship violence demands action, as does the ease of access to firearms, including illegally obtained highly lethal weapons. Many firearm fatalities are preventable, especially if attorneys are asking the right questions, judges are communicating and entering protective court orders, and legislators have the courage to enact the data-driven solutions that abound.
A. Ask About Abuse
Too many family law practitioners say they “don’t do domestic violence cases” or “don’t practice domestic violence law.” Clients of my Domestic Violence Clinic often report that their previous attorneys said their cases were divorce or custody cases, not domestic violence cases. Those attorneys did not ask questions to reveal information about a history of abuse or the lethality risks, and too often attorneys dismissed clients’ reports of threats and abuse as being in the past and not relevant to the court in the era of no-fault divorce. However, across the United States, courts are statutorily required to consider domestic violence when awarding custody and visitation,69 and histories of abuse are often relevant to property disposition and spousal support orders,70 among other areas.
Given the high rates of intimate partner violence in the general population,71 its particular relevance to family court proceedings, and the safety issues at stake, attorneys should ask questions that would prompt safety planning, appropriate court orders, and awareness of lethality factors.
B. Address the Gendered Knowledge Gap
The court forms to request temporary and permanent domestic violence civil protection orders typically ask petitioners whether they know or believe the respondent possesses firearms.72 If the petitioner does not indicate firearm possession by the respondent, judges often do not inquire of the respondent. Despite civil and criminal laws prohibiting firearm possession by domestic violence offenders, an implementation gap persists; researchers conducting court observations report that judicial practices differ dramatically, with many judges entirely failing to inquire about firearm possession and others only asking the petitioner about the respondent’s ownership of firearms.73 Statistically, not only is firearm ownership gendered, knowledge of firearms in the home is highly gendered, including within married couples.
Many men fail to disclose to their partners that there are guns in the home.74 Multiple national surveys have established that women are often unaware of the existence of guns in the home and, if they are aware that a gun is in the home, studies of married heterosexual couples consistently find that husbands report more guns in the home than wives do.75 Research also shows a gender gap in knowledge among couples with young children in the home regarding the type and number of guns in the home and how firearms are stored.76
When courts rely on a petitioner’s knowledge of the respondent’s firearm possession to order the confiscation or surrender of firearms, the efficacy of the exercise depends on household members having knowledge about whether there are guns in the home and how they are stored. Judges should actually presume that many litigants coming before them possess firearms, given increased gun ownership by individuals who use violence in relationships and the overall high rates of firearm ownership in America. Recent telephone polls reveal that forty-two percent of American households report owning guns,77 while in-person polls determine that thirty-two percent of households report gun ownership.78 Data collection is a political choice, and courts often do not inquire or track firearm possession and surrender.
Studies of multiple jurisdictions reveal that “judges either haphazardly mention or completely ignore disarming amendments” that prohibit firearm ownership by domestic violence offenders,79 even though they are required to order domestic violence respondents to surrender firearms after making findings of domestic violence.80 The gender knowledge gap concerning household gun ownership, along with the dangers of separation violence, elevated rates of homicide, homicide-suicides, and firearm-related accidental fatalities when guns are in the home, should inform system responses. Advocates should engage in careful safety planning with petitioners in domestic violence cases; judicial officers should directly ask respondents about firearm possession and access, ensure surrender or confiscation of firearms, and instruct all respondents about firearm prohibitions for respondents found to have committed domestic violence; and domestic violence–related court orders must be entered in background check systems.
C. Use Family Court as a Site for Public Health Messaging
Gun violence is a public health issue and should be treated as such. Although gun violence is a leading cause of death in America, the issue receives less funding than nearly every other leading cause of fatality,81 and research conducted by the Centers for Disease Control and Prevention, National Institute of Health, and National Institute of Justice is legislatively restricted.82 Even with state and private funding for gun violence research on the rise,83 “these resources do not come close to meeting the needs of this public health crisis.”84
The American Medical Association, American College of Physicians, and other medical groups encourage their members to ask patients or the parents of patients about firearms in the home as a routine part of childproofing the home and educating patients about the dangers of unsecured firearms;85 however, a majority of medical professionals still do not ask about firearms due to their discomfort with the conversation.86 Studies show that physician counseling is effective; for example, one study found that sixty percent of families in a predominantly Latino pediatric clinic who received gun safety counseling either removed all guns from the home or improved gun-storage safety practices.87 Although the medical profession largely agrees that firearm violence is a serious public health threat and that doctors should counsel patients about responsible gun ownership, the NRA opposed such communications and lobbied for the Firearms Owners’ Privacy Act, which barred medical professionals from asking patients whether they owned guns based on the idea that Second Amendment freedoms prohibit doctors from discussing firearm ownership with their patients.88 After lengthy legal battles, the Eleventh Circuit Court of Appeals recently struck down key portions of the law, colloquially called “Docs vs. Glocks,” on the ground that it violates medical professionals’ First Amendment free speech rights.89
As the co-chair of the Domestic Violence Death Review Team for the sixth-most-populous county in the United States, I review many cases of homicide or homicide-suicide with histories of family distress and dissolution in which couples were family-court involved. Many family-court-involved individuals report feeling as if they are “losing everything,” and as a Domestic Violence Clinic director, the cases in which the opposing party is denied any visitation with the parties’ children cause me pause and concern for my clients’ safety. With dissolving marriages, custody battles, or domestic violence charges and litigation, litigants’ worlds shift from the life they had established. This can be an especially important time for someone else to hold their guns.
A public health approach can bring about cultural change around firearms the same way that the campaigns against smoking and against driving drunk did in recent decades. The “friends don’t let friends drive drunk” campaign launched in 1983 utilized social networks and the concept of belonging to one another to significantly reduce drunk-driving accidents and deaths. Since the campaign began, over two-thirds of Americans report that they have sought to prevent a friend from driving after drinking alcohol.90 Courts hearing family law and domestic violence matters should make petitioners aware that especially high-risk times for intimate partner homicide are at the time of attempting to separate from an abusive partner, immediately after a civil protection order is issued, and the period after a protective order expires.91 In Family Court, even if there is not a judicial finding that mandates gun surrender under federal or state laws, courts can message that when going through major relationship and life changes, litigants should voluntarily not be in possession of guns. Research on the power of judicial inquiry, instruction, and admonishment in shaping future behavior provides further support for this intervention.92 Such a public health message can be deployed more broadly, as well, as public health professionals including Dr. David Hemenway have spearheaded in several jurisdictions.93
Attorneys, law enforcement officers, medical professionals, courthouse personnel, judges, mental health professionals, and other “first responders” and “community helpers” have opportunities to intervene in intimate partner violence and prevent future homicide because they often engage with victims prior to their murder.94 A significant number of domestic violence fatality victims were family-court involved, had sought civil protection orders, and had had multiple protective orders issued over time.95 In the year prior to a lethal or near-lethal attack, approximately half of all female victims of intimate partner homicide and near-lethal domestic violence obtained a domestic violence restraining order or reported their abusive partner’s threatening or violent behavior to the police.96 Research also shows that abusive partners are less likely to recidivate after police make a report, regardless of whether the police make an arrest.97 This is significant because some survivors wish to have the police interrupt the violence and put the abusive partner on notice that the partner’s behavior is criminal, without desiring arrest and the collateral consequences of arrest and conviction.98
Judges in family law and domestic violence cases should take seriously lethality risks and realize that they can be the opportunity for intervention. Of course, many victimized individuals will never seek court protection, including severely abused individuals who experience such control that they are unable to access court remedies, along with abuse survivors who fear that court involvement will increase violence and lethality.99 Judicial officers should realize that court intervention for domestic violence is typically a last resort that survivors turn to after social services and law enforcement responses have failed to remedy the abuse,100 and judges should be particularly concerned about safety.
III. Legislative Remedies
Risk factors for intimate partner fatalities are known, and research shows that certain policies are particularly effective in addressing gun violence, but gaps in the law exist where ineffectual policies or no policies are in place. Rather than enacting data-driven solutions, efforts to pass gun safety measures have been highly politicized, with the NRA maintaining that “a heavily-armed populace is the best way to keep America safe,”101 while most Americans, including gun owners and NRA members, are in favor of gun-safety legislation.
Despite public outcry following school shootings and other massacres, and notwithstanding greater societal attention to suicide, familial firearm homicides, and accidental shootings, gun control at the federal level has remained “essentially unchanged” for the past two decades.102 In fact, the primary trend in state law over the past thirty years has favored gun owners’ access to and ability to carry firearms, including legislation to make guns easier to obtain and to permit the concealed carrying of firearms.103 Republican-controlled legislatures at the federal and state levels have rolled back gun control and passed laws protecting gun owners’ rights,104 leaving dangerous gaps in the law that proliferate gun ownership, including by those known to be violent.
Unsurprisingly, mass shootings lead to a significant increase in the number of firearm bills proposed in state legislatures, and massacres that result in more fatalities have larger effects on gun legislation, with each additional death leading to a 2.5% increase in the number of gun-related bills introduced.105 Following mass shootings, Republican-controlled legislatures pass laws that loosen gun control, and Democrat-controlled legislatures generally fail to pass gun laws of any kind.106 Thus, mass shootings have paradoxically served as an impetus for Republican legislators to make guns more available and have created dangerous gaps in the law. Firearm and ammunition purchases also spike immediately following mass shootings,107 and the gun industry uses political moments and the timing of elections to promote sales through provoking fear that gun restrictions will be enacted. For example, during President Barack Obama’s administration, the gun industry more than doubled gun production due to fear of future restrictions on gun sales if another Democrat were elected president.108 Most recently, the NRA is using the global coronavirus pandemic to promote gun sales for personal protection.109
As an indication of the politicization of firearms, conservative legislators have occasionally attempted to increase abuse survivors’ access to firearms, contrary to research findings that such measures would increase lethality to the abused individual, the survivor’s children, and the broader community. An Indiana bill, for example, was to allow domestic violence protection order recipients to obtain a firearm without a license, background check, or training.110 Indiana legislators initially tried to give a free gun to everyone who obtained a protective order at taxpayer expense through this bill. The Indiana Coalition Against Domestic Violence forcefully opposed each iteration of the bill, recognizing the inherent danger of such legislation.111
Given the homicide risks and tragedies that are all too common in America, politicians across the ideological spectrum should agree that people who assault or endanger family members should be subject to practical and measured restrictions regarding their access to firearms. Universal background checks would decrease femicides by nearly fifty percent112 and are now supported by well over ninety percent of Americans,113 and a majority of Americans want to prohibit high-capacity magazines, prevent gun sales to suspected terrorists, maintain a national registry, and prohibit or limit the sale of automatic weapons, among other gun violence prevention measures.114
Research shows both the fatal risk of the combination of domestic violence and firearm ownership and that gun safety measures effectively reduce intimate partner homicides.115 Because firearm possession correlates with high rates of perpetrating domestic violence and intimate fatalities, restricting abuse perpetrators’ access to firearms is important.116 Firearm possession bans for individuals subject to domestic violence protection orders result in significantly lower rates of total intimate partner homicides, as do laws that prohibit felons and domestic violence misdemeanants from purchasing firearms,117 making all the more urgent the need to close gaps in the law and in enforcement.
A. Implement Background Checks
Congress enacted a provision of the Gun Control Act of 1968 as part of the Violence Against Women Act of 1994, which places restrictions on firearm possession by domestic violence perpetrators.118 For limits on domestic abusers’ access to firearms to be effective, universal background checks are needed that require background checks on all firearm sales in the country.119 The current background check systems that exist lack veracity in multiple ways, including relying on inadequate record keeping and existing alongside state laws with too brief of waiting periods for background checks to be completed.
The all-too-common failure to enter domestic violence records in the background check system has allowed thousands of domestic violence perpetrators, who are legally prohibited from purchasing firearms, to purchase them anyway.120 The National Instant Criminal Background Check System (NICS) depends on thousands of hospitals and law enforcement agencies to voluntarily produce accurate and timely information,121 so NICS checks are currently limited in their ability to identify all prohibited persons because many states and tribes submit incomplete records. For example, less than one-third of domestic violence assault convictions between 2002 and 2003 were properly filed with the FBI’s NICS system.122 Furthermore, as of 2014, state databases contained over 2.1 million domestic violence protection orders, but federal systems only registered 1.4 million protection orders.123
Given discrepancies between systems, significant numbers of background checks are delayed for additional review.124 The Brady Act, however, imposes a three-day limit for a NICS check and allows a firearm purchase or transfer to proceed if a disqualifying record is not found within three days.125 This loophole allowed approximately 6,700 firearms to be transferred to individuals with “prohibiting domestic violence records” between fiscal years 2006 and 2015.126
Failure to input information by states and other agencies has resulted in tragedies, as those who are legally prohibited from obtaining firearms are not actually prohibited from doing so. The problem has been termed the “Charleston loophole” because the white supremacist shooter in the June 2015 massacre at Emanuel AME Church in Charleston, South Carolina, obtained the firearm he used, despite being prohibited from possessing one, because the default period lapsed and he was able to purchase the gun before the background check was complete.127 One recent example concerns the U.S. Air Force failing to report its domestic violence convictions. Although Devin Kelley had past domestic violence convictions, he was able to “pass” a background check and purchase a firearm, turning “a small-town Texas church into a bloody killing ground” when he killed twenty-six worshippers.128
All domestic violence orders should be entered into federal and state background check systems, as mandated by law, and authorities should be given the time needed to complete background checks. Some states have laws and regulations that allow their agencies to deny or delay a firearm transfer if an incomplete record is being researched when the time limit expires;129 this should become the law across the nation.130
B. Close Loopholes Because Gun Safety Laws Work
The variety of state laws and the corresponding safety outcomes powerfully illustrate the effect of gun violence prevention laws. A recent study sought to assess associations between state firearm legislation and female intimate partner homicide and did so by analyzing homicide data from sixteen states concerning nearly 1,700 female intimate partner homicides from 2010 to 2014.131 Researchers concluded that more restrictive state-level legislation correlates with lower rates of female intimate partner homicide.132 Regarding variation across states, the number of firearm provisions ranged from four in Alaska to ninety-five in Massachusetts, and researchers found that states that had at least forty state-level gun safety provisions had fifty-six percent lower rates of female intimate partner homicides than states with fewer than forty provisions.133 These findings provide impetus to further improve state and federal laws, along with multiple other studies that show reduced rates of intimate partner homicide when firearm access is restricted for domestic violence perpetrators.134
The Violence Against Women Act (VAWA) imposed some restrictions on domestic violence perpetrators, but the act suffers from gaps in the law and lack of enforcement. Although VAWA prohibits the possession of firearms by individuals who (1) are subject to restraining orders issued after hearings and with notice or (2) have been convicted of misdemeanor crimes of domestic violence, immense gaps in domestic violence–related gun control remain.135 Furthermore, there remains a troubling lack of enforcement of domestic violence–related gun laws.
1. VAWA Prohibits Possession, Not Purchase
VAWA and many states do not include the most effective gun policies: prohibitions on purchase of firearms by individuals subject to all forms of protective orders, including ex parte orders. Only a handful of states prohibit subjects of domestic violence protective orders from purchasing or possessing ammunition.136 VAWA instead prohibits possession, even though both purchase and possession could be banned, and enforcement of firearm restrictions tends to be easier to enforce at the point of purchase, rather than ascertaining ownership and possession.137 Multiple studies of state laws imposing firearm restrictions during restraining orders find that states with purchase restrictions have the most significant reduction in intimate partner homicides, as compared to states that merely restrict possession.138 Additionally, keeping a registry of all firearm owners is necessary to increase the effectiveness of the current laws prohibiting possession.
2. Ex Parte Orders
VAWA does not apply to ex parte domestic violence restraining orders, which courts may order upon a finding of imminent bodily harm and past abuse.139 Gun rights proponents object to firearms restrictions on people subject to temporary restraining orders, arguing that temporary restraining orders are granted too quickly and often do not allow the respondent to present evidence.140 However, the orders are temporary and, given the heightened lethality at separation and when pursuing legal action, appropriately weigh the balance of harms. States such as California serve as a model for prohibiting firearm possession or purchase by those subject to a domestic violence ex parte order or temporary protection order.141
3. The Dating Loophole
Currently, the Lautenberg Amendment’s restrictions on firearm possession by domestic violence perpetrators only apply to defendants who are or were married to, have children with, or lived with or used to live with their victims. The absence of restrictions for individuals who were merely dating without children—the “boyfriend loophole”—should be remedied. F.B.I. data show that a boyfriend is nearly as likely as a husband to be a perpetrator of firearm homicide of an intimate.142 As one sheriff testified before Congress, “Dangerous boyfriends . . . hit just as hard [as dangerous husbands] and they fire their guns with the same deadly force.”143 Twenty-seven states have closed this loophole by expanding the federal protections provided by the Lautenberg Amendment to dating partners, but nearly half of U.S. states have yet to do so.144
4. Additional Areas for Reform
State laws concerning firearm possession vary dramatically. For example, laws differ as to whether weapon seizure is mandatory or discretionary, the authorized method for weapon seizure and return, the definition of “intimate relationship,” whether weapons must be used in the domestic violence incident to allow seizure, the amount of time for a state to petition for forfeiture of a firearm, and the burden placed on law enforcement and the respondent or defendant regarding firearm return.145
Federal law also does not currently prohibit people convicted of misdemeanor stalking crimes from having guns,146 yet stalking behavior signifies increased lethality risk.147 Regarding additional areas for reform, limits on magazine capacity are needed, as assault rifles can fire thirty-round clips as fast as a person can pull the trigger, instantly causing mass homicides. Additionally, under federal law, gun stores are required to report multiple handgun purchases to the Bureau of Alcohol, Tobacco, Firearms, and Explosives, but not multiple rifle purchases,148 and this loophole allowed Stephen Paddock to buy thirty-three guns in a year and go on a shooting rampage killing fifty-eight people and leaving more than 500 injured in Las Vegas.149
C. Surrender or Removal of Firearms
Upon making a finding of domestic violence and entering an order for protection, family court judges are supposed to read aloud a statement that the respondent is not legally permitted to possess firearms or ammunition while the domestic violence protection order is in effect. They, however, rarely explicitly address firearm surrender or make orders confiscating weapons, and instead rely on the “honor system.” While approximately 40,000 people violate legal orders prohibiting them from possessing firearms each year, only a small fraction are ever prosecuted.150 Washington State found that in fifty-four percent of domestic violence homicides in Washington between 2006 and 2015, the perpetrator had previously been ordered to surrender firearms.151 Like Washington, most jurisdictions do not have systems and protocols for the surrender or removal of guns by those who commit domestic violence, rendering ineffective the legal disqualification from gun possession after a domestic violence misdemeanor conviction, the issuance of a protection order or restraining order, or, in some jurisdictions, the issuance of a temporary protection order.
Procedures for confiscating guns if they are not immediately voluntarily relinquished significantly reduce overall firearm homicide rates,152 yet most domestic violence firearm surrender orders are never enforced. Courts and law enforcement agencies generally lack policies to proactively enforce firearm surrender requirements or to confiscate firearms that are not voluntarily surrendered, as required by law.153 According to the California Department of Justice, Bureau of Firearms, as of January 2019, over 23,000 armed prohibited persons have not relinquished their firearms, and nearly twenty percent of these individuals are prohibited from firearm possession due to a domestic violence finding against them.154
A 2017 study of Kitsap County (near Seattle, Washington) found that judges fail to enforce eighty percent of domestic violence firearm surrender orders.155 Tragic cases include firearm fatalities of petitioners and shootings of police officers responding to domestic violence calls, when respondents were legally prohibited from firearm possession.156 For example, when Heather Kelso sought a protection order against her abusive ex-boyfriend, she stated that he possessed a gun when filling out her application so the court would order the confiscation of the weapon. Nearly one month after her protective order was issued, which included a firearm surrender order, her ex-boyfriend used that gun to kill her, orphaning her three-year-old daughter. He also shot and killed her roommate’s two-year-old son.157 In the same county, a domestic violence respondent recently opened fire on two local police officers with a firearm that should have been turned in the month before as result of a protective order issued against him. When his abused wife turned in the respondent’s rifle to police, she told police that her husband still possessed a .357 handgun and a .45. The officers were shot investigating reports that the abuser was “lurking” around his estranged wife’s house.
States should adopt model domestic violence firearm surrender protocols, such as the protocols drafted by the Center for Court Innovation158 and the National Center on Protection Orders and Full Faith & Credit,159 to provide direction to law enforcement, judges, mediators, prosecutors, other attorneys, advocates, and courts handling domestic violence matters. Rather than relying on the honor system, judges could order respondents to return to court with proof of compliance, as was implemented in Dade County and deemed a model program by the Office on Violence Against Women in 2006. The presiding Domestic Violence Court judge orders return dates and issues arrest warrants for individuals who fail to appear, with the goal being to follow through on weapon confiscation orders. California court rules similarly require respondents to provide proof of relinquishment of known weapons and encourage judges to set review hearings to ensure compliance.160
King County and the City of Seattle recently dedicated funds and created positions to address firearms, establishing a multijurisdictional team for the region to manage data entry, service, tracking, enforcement of orders, and the receipt, storage, and return of surrendered firearms.161 In 2018, King County and the City of Seattle invested over one million dollars to create the King County Regional Firearms Enforcement Unit, uniting police, prosecutors, and advocates to locate and investigate respondents and defendants in domestic violence cases to ensure their compliance with weapon surrender orders. The Unit is designed to take quick action, recognizing the threat of separation violence and the risk abuse survivors face when the abusive partner learns that the survivor or government is taking legal action against the abusive partner. During its first year, the Unit quadrupled the number of firearms removed from abusers. Other jurisdictions could follow King County’s model and devote resources to enforcement.
Additionally, only eighteen states currently have laws that address the seizure of firearms at domestic violence scenes.162 More states should enact laws that require or, at the very least, allow police to remove firearms at their discretion from domestic violence perpetrators.
Even if courts order firearm surrender or take measures to confiscate firearms, guns are readily available in the United States, including many unlicensed, unregistered, and unregulated firearms. In total, there are nearly 400 million civilian-owned firearms in the United States, a figure that exceeds the number of people in America.163 While the United States contains four percent of the world’s population, it owns forty-six percent of the global stock of 857 million civilian firearms.164 Given the ease of accessing firearms in the United States, early intervention and prevention efforts are necessary and lifesaving.
Along with civil domestic violence orders, gun violence restraining orders or extreme risk protection orders allow family members, law enforcement, and others defined by state statute to petition to remove firearm access from persons who pose a danger to themselves or others.165 In the context of domestic violence, conflict, threats of suicide, or other risk factors, such legal tools provide processes and procedures for intervening and can save lives.
D. Framing Issues to Overcome Political Opposition
Framing domestic violence–related gun safety policies as saving the lives of law enforcement, and therefore building a narrative that these policies are pro–law enforcement, could generate support from law enforcement organizations and voters who otherwise generally oppose gun control policies. In states with high rates of gun ownership, a significant portion of law enforcement fatalities occur when police respond to domestic violence complaints. Law enforcement officers are three times as likely to be killed in the line of duty in states with high rates of gun ownership, as compared to states with low rates of gun ownership.166 Research has shown that higher rates of gun ownership—and not higher rates of crime—lead to higher rates of homicide of law enforcement officers.167 Evidence of law enforcement homicides could persuade legislators.168
Focusing on specific policies, in contrast to using rhetoric around “gun rights” and “gun control,” results in greater bipartisan support for the passage of gun violence prevention measures, particularly if legislators place their constituents’ concerns above allegiance to the NRA. Framing matters. When voters are asked about specific measures, such as universal background checks, federal databases to track all gun sales, and bans on high-capacity ammunition clips and assault weapons, the majority of voters support these policies.169 However, the question of whether individuals would prioritize “gun ownership” or “gun control” reveals deep political divides.170 While divided opinion on gun control persists,171 the framing of solutions reveals real potential for change.172
Such high firearm fatality rates are a uniquely American epidemic, but they should not be accepted as inevitable, especially because these deaths are preventable. Lawmakers, justice system actors, and others can make significant change by having courageous conversations, adopting public health approaches in our communities and courts, taking seriously the fatal combination of domestic violence and access to firearms, recognizing the association between teen dating violence and firearm possession, and implementing, enforcing, and working to improve gun violence prevention laws.
1. Client names, locations, and identifying details are omitted to protect confidentiality.
2. All fifty states and the District of Columbia have statutes for some form of civil protection order. See, e.g., Cal. Fam. Code §§ 6203, 6320 (West 2020) (defining “abuse” to include intentionally or recklessly causing or attempting to cause bodily injury, committing sexual assault, stalking, threatening, harassing, destroying property, or other behavior that disturbs the peace of the other party).
3. 18 U.S.C. § 922(g)(8)–(9) (2015).
4. Id. §§ 921(a)(33), 922(g)(9).
5. U.S. Support for Gun Control Tops 2-1, Highest Ever, Quinnipiac University National Poll Finds; Let Dreamers Stay, 80 Percent of Voters Say, Quinnipiac U. Poll (Feb. 20, 2018), https://poll.qu.edu/national/release-detail?ReleaseID=2521.
6. Background Checks Save Lives, Everytown for Gun Safety (Jan. 2, 2019), https://everytownresearch.org/background-checks-save-lives/.
7. F. Stephen Bridges et al., Domestic Violence Statutes and Rates of Intimate Partner and Family Homicide, 19 Crim. Just. Pol’y Rev. 117, 127 (2008); Elizabeth R. Vigdor & James A. Mercy, Do Laws Restricting Access to Firearms by Domestic Violence Offenders Prevent Intimate Partner Homicide?, 30 Evaluation Rev. 313, 332 (2006); April M. Zeoli et al., Analysis of the Strength of Legal Firearms Restrictions for Perpetrators of Domestic Violence and Their Association with Intimate Partner Homicide, 11 Am. J. Epidemiology 187, 187 (2018).
8. Gary Reich & Jay Barth, Planting in Fertile Soil: The National Rifle Association and State Firearms Legislation, 98 Soc. Sci. Q. 485, 486 (2017) (discussing how legislators who receive NRA contributions are significantly more likely to vote for gun rights and oppose gun safety measures); Aaron Kessler, Why the NRA Is So Powerful on Capitol Hill, by the Numbers, CNN (Feb. 23, 2018), https://www.cnn.com/2018/02/23/politics/nra-political-money-clout/index.html.
9. Perspectives of Gun Owners, Non-Owners, Why Own a Gun? Protection Is Now Top Reason, Pew Res. Ctr. (Mar. 12, 2013), https://www.pewresearch.org/wp-content/uploads/sites/4/legacy-pdf/03-12-13-Gun-Ownership-Release.pdf (safety and concern about gun-related accidents is also the top reason that non–gun owners do not want a gun).
10. Aaron J. Kivisto et al., Firearm Ownership and Domestic versus Nondomestic Homicide in the U.S., 57 Am. J. Preventive Med. 311, 311 (2019) (finding that states with the highest firearm ownership had a sixty-five percent higher incidence rate of domestic firearm homicide compared to states with lower ownership rates); Douglas J. Wiebe, Homicide and Suicide Risks Associated with Firearms in the Home: A National Case-Control Study, 41 Annals of Emergency Med. 771, 771 (2003) (finding that people who keep a gun in their home are almost twice as likely to die in a gun-related homicide and sixteen times more likely to use a gun to commit suicide than people without a gun in their home); Douglas J. Wiebe, Firearms in U.S. Homes as a Risk Factor for Unintentional Gunshot Fatality, 35 Accident Analysis & Prevention 711, 713–14 (2003) (identifying that the risk of dying from an unintentional gunshot injury is 3.7 times higher for adults living in homes with guns); Garen J. Wintemute, Guns, Fear, the Constitution, and the Public’s Health, 358 New Eng. J. Med. 1421, 1421–24 (2008) (concluding that living in a home where there are guns increased risk of homicide by 40 to 170% and the risk of suicide by 90 to 460%).
11. Linda L. Dahlberg et al., Guns in the Home and Risk of a Violent Death in the Home: Findings from a National Study, 160 Am. J. Epidemiology 929, 929, 935 (2004).
12. Susan Sorenson, Firearm Use in Intimate Partner Violence: A Brief Overview, 30 Evaluation Rev. 229, 235 (2006).
13. Susan B. Sorenson & Rebecca A. Schut, Nonfatal Gun Use in Intimate Partner Violence: A Systematic Review of the Literature, 19 Trauma, Violence & Abuse 431, 431 (2018).
14. James A. Fox & Marianne W. Zawitz, Homicide Trends in the United States: Intimate Homicide, Bureau of Just. Stat. (2008), http://www.ojp.usdoj.gov/bjs/homicide/intimates.htm.
15. Jacquelyn C. Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multistate Case Control Study, 93 Am. J. Pub. Health 1089, 1090 (2003).
16. Amy Reckdenwald & Karen F. Parker, Understanding Gender-Specific Intimate Partner Homicide: A Theoretical and Domestic Service-Oriented Approach, 38 J. Crim. Just. 951, 951 (2010) (“In no other type of victim-offender relationship is the role of gender so prominent and the gender disparities so clear than those involving intimate partner homicide.”).
17. Jennifer L. Truman & Rachel E. Morgan, U.S. Dep’t of Just., Nonfatal Domestic Violence, 2003–2012, at 5 (2014); Callie M. Rennison, U.S. Dep’t of Just., Intimate Partner Violence, 1993–2001, at 1 (2003).
18. Jacquelyn C. Campbell et al., Intimate Partner Violence and Physical Health Consequences, 162 Archives of Internal Med. 1157 (2002).
19. Walter S. DeKeseredy, Feminist Contributions to Understanding Woman Abuse: Myths, Controversies, and Realities, 16 Aggression & Violent Behavior 297, 297–302 (2011); Louise Dixon & Nicola Graham-Kevan, Understand the Nature and Etiology of Intimate Partner Violence and Implications for Practice and Policy, 31 Clinical Psychol. Rev. 1145, 1145 (2001).
20. See Alicia F. Lieberman, Ghosts and Angels: Intergenerational Patterns in the Transmission and Treatment of the Traumatic Sequelae of Domestic Violence, 28 Infant Mental Health J. 422 (2007); Laura A. McCloskey & Erika L. Lichter, The Contribution of Marital Violence to Adolescent Aggression Across Different Relationships, 18 J. Interpersonal Violence 390, 406 (2003); Philip Toepfer et al., A Role of Oxytocin Receptor Gene Brain Tissue Expression Quantitative Trait Locus rs237895 in the Intergenerational Transmission of the Effects of Maternal Chidlhood Maltreatment, 58 J. Am. Acad. Child & Adolescent Psychiatry 1207 (2019).
21. Sorenson, supra note 12, at 232.
22. April M. Zeoli & Daniel W. Webster, Effects of Domestic Violence Policies, Alcohol Taxes and Police Staffing Levels on Intimate Partner Homicide in Large U.S. Cities, 16 Injury Prevention 90, 90 (2010).
23. Jacquelyn C. Campbell et al., Intimate Partner Homicide: Review and Implications of Research and Policy, 7 Trauma Violence Abuse 246, 246 (2007).
24. Kathryn E. Moracco et al., Female Intimate Partner Homicide: A Population-Based Study, 58 J. Am. Med. Women’s Assoc. 20, 20 (2003); Heidi Stöckl et al., The Global Prevalence of Intimate Partner Homicide: A Systematic Review, 382 Lancet 859, 859 (2013) (noting that femicide often “represents the culmination of a long history of abuse”).
25. Alexia Cooper & Erica L. Smith, U.S. Dep’t of Just., Homicide Trends in the United States, 1980–2008, at 10 (2011).
26. Campbell et al., supra note 15, at 1090–91.
28. Id. at 1090.
29. Russell P. Dobash & R. Emerson Dobash, Who Died? The Murder of Collaterals Related to Intimate Partner Conflict, 18 Violence Against Women 662, 662–71 (2012).
30. Stöckl et al., supra note 24, at 864.
31. Cal. Dep’t Just., Domestic Violence-Related Calls for Assistance, https://openjustice.doj.ca.gov/exploration/crime-statistics/crime-statistics/domestic-violence-related-calls-assistance (last visited Mar. 20, 2020).
32. Mary D. Fan, Disarming the Dangerous: Preventing Ordinary and Extraordinary Violence, 90 Ind. L.J. 151 (2015).
33. Jane Stoever, Texas Shooting Shows Risk of Ignoring Relationship Violence, CNN (Nov. 10, 2017), https://www.cnn.com/2017/11/10/opinions/texas-shooting-relationship-violence-stoever-opinion/index.html.
34. Campbell Robertson et al., Gunman in Dayton Had History of Threatening Women, Former Friends Say, N.Y. Times (Aug. 5, 2019), https://www.nytimes.com/2019/08/05/us/dayton-shooter-connor-betts.html?module=inline.
35. Matt Hamilton et al., San Bernardino Gunman Had a History of Domestic Abuse Allegations, L.A. Times (Apr. 11, 2017), https://www.latimes.com/local/lanow/la-me-ln-san-bernardino-classroom-killings-20170411-story.html.
36. Casey Quinlan, The Virginia Mass Shooter Has a History of Violence Against Women Allegations, Think Progress (June 14, 2017), https://thinkprogress.org/mass-shooting-domestic-violence-fafb6de46b00/.
37. Susan B. Sorenson & Philip J. Cook, “We’ve Got a Gun?”: Comparing Reports of Adolescents and Their Parents About Household Firearms, 36 J. Cmty. Psychol. 1, 3 (2008) [hereinafter Sorenson & Cook, “We’ve Got a Gun?”] (regarding the interplay of income and firearms, homes of white affluent individuals are more likely to contain firearms, as compared with other demographics, although ownership decreases at the highest economic levels); Brian R. Wyant & Ralph B. Taylor, Size of Household Firearm Collections: Implications for Subcultures and Gender, 45 Criminology 519, 522 (2007).
38. Tamera Coyne-Beasley et al., Do Partners with Children Know About Firearms in Their Home? Evidence of a Gender Gap and Implications for Practitioners, 115 Pediatrics 662, 662–67 (2005) (surveying gun-owning couples with young children in the home and finding that eighty-two percent of men and seventeen percent of women claimed to own the firearms in the home); Jens Ludwig et al., The Gender Gap in Reporting Household Gun Ownership, 88 Am. J. Pub. Health 1715, 1717 (1998).
39. Ludwig et al., supra note 38, at 1716–17 (a Gallup survey telephone interview of over 1,000 adults found that approximately five percent of respondents who reported guns in their home indicated that there was joint ownership for one or more of them).
40. Coyne-Beasley et al., supra note 38, at 662–63.
41. Angela Stroud, Good Guys with Guns: Hegemonic Masculinity and Concealed Handguns, 26 Gender & Soc’y 216, 227 (2012).
42. Scott Melzer, Gun Crusaders: The NRA’s Culture War 222 (N.Y.U. Press 2009).
43. William B. Bankston et al., The Influence of Fear of Crime, Gender, and Southern Culture on Carrying Firearms for Protection, 31 Soc. Q. 287, 298 (1990).
44. Susan B. Sorenson & Douglas J. Wiebe, Weapons in the Lives of Battered Women, 92 Am. J. Pub. Health 1412, 1414 (2004).
45. Kevin Sullivan & William Wan, Troubled. Quiet. Macho. Angry. The Volatile Life of the Orlando Shooter, Wash. Post (June 17, 2016), https://www.washingtonpost.com/national/troubled-quiet-macho-angry-the-volatile-life-of-omar-mateen/2016/06/17/15229250-34a6-11e6-8758-d58e76e11b12_story.html.
46. See Laura M. Holson, Murders by Intimate Partners Are on the Rise, Study Finds, N.Y. Times (Apr. 12, 2019), https://www.nytimes.com/2019/04/12/us/domestic-violence-victims.html; Rhitu Chatterjee, Teen Dating Violence Can Lead to Homicide—And Girls Are the Most Common Victims, NPR (Apr. 15, 2019) https://www.npr.org/sections/health-shots/2019/04/15/713469721/teen-dating-violence-can-lead-to-homicide-girls-are-the-most-common-victims.
47. Tom W. Smith & Robert J. Smith, Changes in Firearms Ownership Among Women, 1980–1994, 86 J. Crim. L. & Criminology 133, 133, 136 (1995).
48. Michele C. Black et al., National Intimate Partner & Sexual Violence Survey: 2010 Summary Report 90 (2011); Carissa Hessick, Violence Between Lovers, Strangers, and Friends, 85 Wash. U. L. Rev. 343, 344–45 (2007).
49. Smith & Smith, supra note 47, at 137.
50. Erik Larson, Armed Force: Paxton Quigley Shows Her Women Students How to Shoot a Man, Wall St. J., at A1 (Feb. 4, 1993).
51. Patrick M. Carter et al., Firearm Possession Among Adolescents Presenting to an Urban Emergency Department for Assault, 132 Pediatrics 213, 218 (2013).
53. Sorenson & Cook, “We’ve Got a Gun?”, supra note 37, at 2; Richard Spano, First Time Gun Carrying and the Primary Prevention of Youth Gun Violence for African American Youth Living in Extreme Poverty, 17 Aggression & Violent Behav. 83, 84 (2012).
54. Nat’l Ctr. for Inj. Prevention & Control, National Intimate Partner & Sexual Violence Survey: 2010 Summary Report 49 (2011).
55. Antoinette Davis, Interpersonal and Physical Dating Violence Among Teens, Nat’l Council on Crime & Delinquency 7 (2008), http://nccdglobal.org/sites/default/files/publication_pdf/focus-dating-violence.pdf.
56. Ctrs. for Disease Control & Prevention, Physical Dating Violence Among High School Students—United States, 2003, 55 Morbidity & Mortality Wkly. Rep. 532, 534 (2006), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm5519a3.htm.
57. James P. Olsen, Gilbert R. Parra & Shira A. Bennett, Predicting Violence in Romantic Relationships During Adolescence and Emerging Adulthood: A Critical Review of the Mechanism by Which Familial and Peer Influences Operate, 30 Clinical Psychol. Rev. 411, 412 (2010).
58. Carter et al., supra note 51, at 216.
59. 18 U.S.C.A. § 922(x)(5) (West 2015).
60. Jo Anne Grunbaum et al., Youth Risk Behavior Surveillance—United States, 2003, 53 Morbidity & Mortality Wky. Rep. 536 (2004) (approximately one in sixteen high school students in the United States report having carried a firearm in the past thirty days)
61. See infra Part II.B.
62. Philip J. Cook & Susan B. Sorenson, The Gender Gap Among Teen Survey Respondents: Why Are Boys More Likely to Report a Gun in the Home Than Girls?, 22 J. Quantitative Criminology 61, 61 (2006) [hereinafter Cook & Sorenson, The Gender Gap]; Sorenson & Cook, “We’ve Got a Gun?”, supra note 37, at 2 (confirming applicability to nonmarital households).
63. Cook & Sorenson, The Gender Gap, supra note 62, at 61; Sorenson & Cook, “We’ve Got a Gun?”, supra note 37, at 2.
64. Carter et al., supra note 51, at 213.
68. Stöckl et al., supra note 24, at 859.
69. See, e.g., Cal. Fam. Code §§ 3011, 3044 (West 2020).
70. See, e.g., id. § 4325.
71. Sharon G. Smith et al., Nat’l Ctr. for Inj. Prevention & Control, The Nat’l Intimate Partner and Sexual Violence Survey: 2010–2012 State Report 2 (2017).
72. See, e.g., DV-100 Request for Domestic Violence Restraining Order, https://www.courts.ca.gov/documents/dv100.pdf (providing the petition for a civil domestic violence order approved by the Judicial Council of California).
73. Ruth E. Fleury-Steiner et al., Calling the Shots: How Family Courts Address the Firearms Ban in Protection Orders, 23 Violence Against Women 1140, 1142 (2017); Daniel W. Webster et al., Women with Protective Orders Report Failure to Remove Firearms from Their Abusive Partners: Results from an Exploratory Study, 19 J. Women’s Health 93, 94 (2010).
74. Ludwig et al., supra note 38, at 1716–17.
75. Id. at 1717.
76. Coyne-Beasley et al., supra note 38, at 662–63.
77. Christopher Ingraham, There Are More Guns than People in the United States, According to a New Study of Global Firearm Ownership, Wash. Post (June 19, 2018), https://www.washingtonpost.com/news/wonk/wp/2018/06/19/there-are-more-guns-than-people-in-the-united-states-according-to-a-new-study-of-global-firearm-ownership/?noredirect=on&utm_term=.b328d77ab926 (reporting on Pew Research Center and Gallup polls conducted in 2017); see also Lydia Saad, Self-Reported Gun Ownership in U.S. Is Highest Since 1993, Gallup (Oct. 26, 2011), https://news.gallup.com/poll/150353/self-reported-gun-ownership-highest-1993.aspx (concluding that forty-seven percent of Americans disclose having a firearm on their property).
78. Harry Enten, There’s a Gun for Every American. But Less Than a Third Own Guns, CNN (Feb. 15, 2018), https://www.cnn.com/2018/02/15/politics/guns-dont-know-how-many-america/index.html (reporting on an in-person poll conducted by the General Social Survey in 2016, and recognizing that respondents may not have wanted to admit gun ownership in an in-person survey).
79. Fleury-Steiner et al., supra note 73, at 1143.
80. Webster et al., supra note 73, at 94 (discussing state laws).
81. Hilary Brueck & Sharanne Gal, The US Spends Less on Gun Violence Research Than Nearly Every Other Leading Cause of Death in America—and That’s on Purpose, Bus. Insider (Oct. 29, 2018, 12:45 PM), https://www.businessinsider.com/gun-control-in-america-how-many-dollars-the-us-spends-on-gun-violence-research-2018-3.
82. The Centers for Disease Control and Prevention’s (CDC) ability to research gun violence and its effect was limited by the Dickey Amendment’s passage in 1996. However, even prior to the passage of the Dickey Amendment, the CDC only spent $2.6 million annually on gun-violence-related research. See Margot Sanger-Katz, Gun Research Is Suddenly Hot, N.Y. Times (Apr. 17, 2019), https://www.nytimes.com/2019/04/17/upshot/gun-research-is-suddenly-hot.html. See also Renee Butkus et al., Reducing Firearm Injuries and Deaths in the United States: A Position Paper from the American College of Physicians, 169 Annals of Internal Med. 704, 704–07 (Nov. 20, 2018), https://annals.org/aim/fullarticle/2709820/reducing-firearm-injuries-deaths-united-states-position-paper-from-american (“More research is needed on firearm violence and on intervention and prevention strategies to reduce injuries caused by firearms . . . . Access to data should not be restricted.”); Am. Psychol. Ass’n, Resolution on Firearm Violence Research and Prevention (2014), http://www.apa.org/about/policy/fireams.pdf (“If federal and state restrictions on such data are removed, research by psychologists and others can be used to devise, implement, and evaluate research-based public health approaches to firearms-related death and injury.”).
83. Sanger-Katz, supra note 82 (Kaiser Permanente has dedicated $2 million to developing its own research; California has invested $5 million in the formation of the Violence Prevention Research Program at the University of California, Davis; and a foundation established by John and Laura Arnold, Arnold Ventures, has announced they will spend $20 million to fund research grants in the field.).
84. Dakota Jablon, Congress Must Vote to Fund Gun Violence Research, The Hill (June 12, 2019, 8:00 AM), https://thehill.com/opinion/criminal-justice/448000-congress-must-vote-to-fund-gun-violence-research.
85. Butkus et al., supra note 82, at 805.
86. Renee Butkus & Arlene Weissman, Internists’ Attitudes Toward Prevention of Firearm Injury, 160 Annals of Internal Med. 821, 821–27 (June 17, 2014), https://annals.org/aim/fullarticle/1860324/internists-attitudes-toward-prevention-firearm-injury.
87. Paul S. Carbone et al., Effectiveness of Gun-Safety Counseling and a Gun Lock Giveaway in a Hispanic Community, 159 Archives Pediatric & Adolescent Med. 1049, 1049–54 (2005).
89. Wollschlaeger v. Governor of Fla., 848 F.3d 1293 (11th Cir. 2017).
90. Drunk Driving Prevention, AdCouncil (2019), https://www.adcouncil.org/Our-Campaigns/The-Classics/Drunk-Driving-Prevention.
91. Katherine A. Vittes & Susan B. Sorenson, Restraining Orders Among Victims of Intimate Partner Homicide, 14 Injury Prevention 191, 194 (2008).
92. See, e.g., Angela R. Gover et al., A Specialized Domestic Violence Court in South Carolina: An Example of Procedural Justice for Victims and Defendants, 13 Violence Against Women 603, 605–06 (2007).
93. Dariush Mozaffarian et al., Curbing Gun Violence: Lessons from Public Health Successes, 309 JAMA 551, 551–52 (2013).
94. Zeoli & Webster, supra note 22, at 90.
95. Vittes & Sorenson, supra note 91, at 191 (a California study showed that eleven percent of femicide victims had been issued a civil protection order, and nearly half of those with such an order had been issued multiple civil protection orders); see also Moracco et al., supra note 24, at 20 (finding that 9.2% of female victims of intimate partner homicide in one state had obtained a restraining order).
96. Judith McFarlane et al., The Use of the Justice System Prior to Intimate Partner Femicide, 26 Crim. Just. Rev. 193, 193–208 (2001).
97. See Richard B. Felson et al., Police Intervention and the Repeat of Domestic Assault, 43 Criminology 563 (2005).
98. Jane K. Stoever, Mirandizing Family Justice, 39 Harv. J.L. & Gender 189, 218–19 (2016).
99. Severely abused individuals may not be able to access court remedies, and some abuse survivors may fear that court involvement will increase violence and lethality. Further, the data reviewed whether restraining orders were issued, not whether they were sought, and some abuse survivors may have had their petitions denied. Vittes & Sorenson, supra note 91, at 194. Finally, domestic violence protection orders are a valuable legal remedy for intervening in and even ending abuse for many domestic violence survivors, and they may prevent some intimate homicides. See Victoria L. Holt et al., Civil Protection Orders and Risk of Subsequent Police-Reported Violence, 288 JAMA 589 (2002).
100. Vittes & Sorenson, supra note 91, at 191.
101. Editorial Bd., The N.R.A.’s Complicity in Terrorism, N.Y. Times (June 16, 2016), https://www.nytimes.com/2016/06/16/opinion/the-nras-complicity-in-terrorism.html.
102. William J. Vizzard, The Current and Future State of Gun Policy in the United States, 104 J. Crim. L. & Criminology 879, 879 (2015).
103. Firmin DeBrabander, New Gun Laws Pass Often in the United States. But They Usually Make Guns Easier to Get, Wash. Post (Oct. 6, 2015), https://www.washingtonpost.com/posteverything/wp/2015/10/06/obama-said-the-nation-has-been-inactive-on-gun-legislation-heres-why-hes-wrong/; Karen Yourish et al., State Gun Laws Enacted in the Year After Newton, N.Y. Times (Dec. 10, 2013), https://www.nytimes.com/interactive/2015/10/03/us/how-mass-shooters-got-their-guns.html (in 2013, for example, of the 109 state laws passed regarding firearms, 70 loosened gun restrictions while 39 added safety measures); Jay Newton-Small, Gun Control Activists Seek to Reboot After Newtown Shooting Momentum Fades, Time 1 (Dec. 13, 2013) http://swampland.time.com/2013/12/13/gun-control-activists-seek-to-reboot-after-newtown-shooting-momentum-fades/.
104. Noah Feldman, Two Wins for Gun Control Buck the U.S. Legal Trend, Bloomberg (June 12, 2016), https://www.bloomberg.com/opinion/articles/2016-06-12/two-wins-for-gun-control-buck-the-u-s-legal-trend.
105. Michael Luca et al., The Impact of Mass Shootings on Gun Policy 10 (Harv. Bus. Sch. NOM Unit, Working Paper No. 16-126, 2016), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2776657.
107. Rachel Callcut et al., Effect of Mass Shooting on Gun Sales—A 20-Year Perspective, 87 J. Trauma & Acute Care Surgery 531, 531 (2019) (reviewing California Department of Justice data from 1996 to 2015 and finding that gun sales are more frequent since 2012, with an additional increase following both mass shootings and legislative changes enacted in response to these shootings); Polly Mosendz & Kyle Stock, Las Vegas Horror Drives All-Too-Predictable Gun Stock Rally, Bloomberg (Oct. 2, 2017), https://www.bloomberg.com/news/articles/2017-10-02/gun-stocks-rise-again-this-time-after-las-vegas-shooting.
108. Morgan Chalfant, Gun Manufacturing Skyrockets 140% on Obama’s Watch, Wash. Times (July 24, 2015) (citing Bureau of Alcohol, Tobacco, Firearms & Explosives, U.S. Dep’t of Just., Firearms Commerce in the United States: Annual Statistical Update (2015)), https://www.washingtontimes.com/news/2015/jul/24/gun-manufacturing-140-under-obama/.
109. Samantha Lock, Lockdown and Loaded: NRA Uses Coronavirus Pandemic to Tell “Vulnerable” Americans to Buy Guns to Defend Themselves, The Sun (Mar. 21, 2020), https://www.the-sun.com/news/571893/nra-coronavirus-pandemic-vulnerable-americans-buy-guns-defend-themselves/.
110. H.B. 1071, 120th Gen. Assemb., Reg. Sess. (Ind. 2017).
111. Devan Filchak, Local Advocate Opposes Domestic Violence Gun Bill, Herald Bull. (Mar. 16, 2017), https://www.heraldbulletin.com/news/local_news/local-advocate-opposes-domestic-violence-gun-bill/article_15139428-09e7-11e7-99bc-bb4134bb1318.html; Brenna Donnelly, Indiana Domestic Violence Survivor Gun Law Goes into Effect, WishTV.com (July 7, 2017), https://www.wishtv.com/news/crime-watch-8/research-connects-domestic-violence-animal-abuse/.
112. See Background Checks Save Lives, supra note 6.
113. Quinnipiac U. Poll, supra note 5.
114. Pew Res. Ctr., Opinions on Gun Policy and the 2016 Campaign, Pew Res. Ctr. 1–2 (Aug. 26, 2016).
115. Vigdor & Mercy, supra note 7, at 332.
116. Puneet Narang et al., Do Guns Provide Safety? At What Cost?, 103 S. Med. J. 151, 153 (2010).
117. Vigdor & Mercy, supra note 7, at 332.
118. 18 U.S.C.A. § 922(g)(8) (West 2015) (in order for the firearm prohibition of 18 U.S.C.A. § 922(g)(8) to apply, the respondent must have notice and an opportunity to participate before the protection order is valid).
119. See, e.g., Elizabeth Landers, House Sends Guns Background Check Bill to the Senate with Bipartisan Support, CNN (Feb. 27, 2019), https://www.cnn.com/2019/02/27/politics/house-vote-gun-background-check/index.html (describing H.R. 8).
120. Julie Bancroft et al., Guns and Violence Against Women: America’s Uniquely Lethal Domestic Violence Problem, Every Town for Gun Safety Support Fund (Apr. 1, 2019), https://everytownresearch.org/reports/guns-violence-women-americas-uniquely-lethal-domestic-violence-problem/#foot_note_anchor_84.
121. Shalia Dewan & Richard A. Oppel Jr., For the Military, a Long History of Failure to Report Crimes, N.Y. Times (Nov. 7, 2017), https://www.nytimes.com/2017/11/07/us/texas-shooting-background-checks.html?smprod=nytcore-iphone&smid=nytcore-iphone-share.
122. Andrew R. Klein, Off. of Violence Against Women, Nat’l Ctr. Full Faith and Credit, Enforcing Domestic Violence Firearm Prohibitions: A Report on Promising Practices 15 (2006) (“It is vital that state misdemeanor offenses are placed in both state and federal systems for access in background data.”).
123. Becki Goggins et al., SEARCH & Nat’l Ctr. for State Cts., State Progress in Record Reporting for Firearm-Related Background Checks: Protection Order Submissions 1 (Apr. 2016), https://www.ncjrs.gov/pdffiles1/bjs/grants/249864.pdf?ed2f26df2d9c416fbddddd2330a778c6=vtfgvkvmcv-vmvbcvzv.
124. Robin A. Stark-Nutter, Crim. Just. Info. Serv. Div., Fed. Bureau of Investigation, U.S. Dep’t of Just., National Instant Criminal Background Check System (NCIS) Operations (2017).
125. Michael Bowling et al., Background Checks for Firearm Transfers 2002, U.S. Dep’t of Just. (Sept. 2003), https://static.prisonpolicy.org/scans/bjs/bcft02.pdf; Background Check Procedures, Giffords L. Ctr., https://lawcenter.giffords.org/gun-laws/policy-areas/background-checks/background-check-procedures/.
126. U.S. Gov’t Accountability Office, Gun Control: Analyzing Available Data Could Help Improve Background Checks Involving Domestic Violence Records, GAO (July 2016), https://www.gao.gov/assets/680/678204.pdf.
127. Brakkton Booker, 20 Years On, The Background Check System Continues to Miss Dangerous Gun Buyers, NPR (Apr. 20, 2019, 6:01 AM), https://www.npr.org/2019/04/20/714921726/20-years-on-the-background-check-system-continues-to-miss-dangerous-gun-buyers; Jason Horowitz et al., Nine Killed in Shooting at Black Church in Charleston, N.Y. Times (June 17, 2015), https://www.nytimes.com/2015/06/18/us/church-attacked-in-charleston-south-carolina.html.
128. Shalia Dewan & Richard A. Oppel Jr., For the Military, a Long History of Failure to Report Crimes, N.Y. Times (Nov. 7, 2017), https://www.nytimes.com/2017/11/07/us/texas-shooting-background-checks.html?smprod=nytcore-iphone&smid=nytcore-iphone-share.
129. Bowling et al., supra note 125.
130. Congress members have sought to extend the time for the government to complete a background check on someone who is trying to buy a gun from a licensed dealer from three days to ten days before the sale proceeds, but the Senate has failed to vote on or pass such reform. Lindsey McPherson, The House Passed Two Gun Control Bills, But Democrats Aren’t in a Rush to Do More, Roll Call (Mar. 1, 2019, 11:15 AM), https://www.rollcall.com/news/house-passes-two-gun-control-bills-democrats-arent-rush.
131. Josie J. Sivaraman et al., Association of State Firearm Legislation with Female Intimate Partner Homicide, 56 Am. J. Preventive Med. 125, 125 (2019) (the researchers considered homicide-only intimate partner homicide, not homicide-suicide cases).
134. See supra notes 7 and 22.
135. 18 U.S.C.A. § 922(g)(8)–(9) (West 2015).
136. Background Check Procedures, supra note 125.
137. Vigdor & Mercy, supra note 7, at 333.
138. Id.; Bridges et al., supra note 7, at 127.
139. Vigdor & Mercy, supra note 7, at 333.
142. Editorial Bd., Boyfriends Can Kill, Too, N.Y. Times (Dec. 19, 2017), https://www.nytimes.com/interactive/2017/12/19/opinion/boyfriend-loophole-guns.html?auth=login-smartlock.
144. Kimberly Lawson, Domestic Violence Abusers Can Still Legally Purchase Guns, Vice (Mar. 23, 2019, 12:35 PM), https://www.vice.com/en_us/article/mbxvqv/domestic-violence-abusers-can-still-legally-purchase-guns.
145. Emily J. Sack, Confronting the Issue of Gun Seizure in Domestic Violence Cases, 6 J. Ctr. for Fams., Child. & Cts. 7 (2005).
146. Domestic Violence & Firearms, Giffords L. Ctr., https://lawcenter.giffords.org/gun-laws/policy-areas/who-can-have-a-gun/domestic-violence-firearms/; Judith M. McFarlane et al., Stalking and Intimate Partner Femicide, 300 Homicide Stud. 316 (1999), http://ncdsv.org/images/HomicideStudies_StalkingAndIntimatePartnerFemicide_11-1999.pdf.
147. Domestic Violence & Firearms, supra note 146; McFarlane et al., supra note 146.
148. Kevin Johnson & Rick Jervis, Las Vegas Shooter Bought 33 Guns in Last 12 Months, USA Today (Oct. 4, 2017, 8:52 AM), https://www.usatoday.com/story/news/nation/2017/10/04/las-vegas-shooter-bought-33-guns-last-12-months/730634001/.
150. Sack, supra note 145, at 10.
151. King County Executive Submits Proposal to Get Guns Away from Domestic Violence Abusers, Kent Reporter (Sept. 14, 2017), https://www.kentreporter.com/news/king-county-executive-submits-proposal-to-get-guns-away-from-domestic-violence-abusers/.
152. Michael Siegel & Claire Boine, What Are the Most Effective Policies in Reducing Gun Homicides?, SUNY Rockefeller Inst. of Gov’t (Mar. 29, 2019), http://www.evidenceforaction.org/sites/default/files/policy.brief.pdf.
153. Katherine A. Vittes et al., Removing Guns from Batterers: Findings from a Pilot Survey of Domestic Violence Restraining Order Recipients in California, 19 Violence Against Women 602, 604 (2013) (reporting on a study of ten California counties showing that none of the counties had policies); Webster et al., supra note 73, at 94.
154. Office of Att’y Gen., Cal. Dep’t Justice, AAPS 2018 Annual Report to the Legislature: Armed and Prohibited Persons System (2018), https://oag.ca.gov/sites/all/files/agweb/pdfs/publications/armed-prohib-person-system-2018.pdf.
155. Kitsap, Washington, Judges Fail to Enforce 80% of DV Firearm Surrender Orders, 24 Quinlan: Nat’l Bull. on Domestic Violence Prevention no. 7, 2018.
158. Elizabeth Ling & Katie Crank, Domestic Violence Benchmarks: A Guide to Court Intervention, Ctr. for Ct. Innovation 35–37 (Jan. 2015), https://www.courtinnovation.org/sites/default/files/documents/DV_BenchbookFinal.pdf.
159. Nat’l Ctr. on Prot. Orders & Full Faith & Credit, Firearm Checklist for Law Enforcement, https://www.bwjp.org/assets/documents/pdfs/ncpoffc-firearm-checklist-law-enforcement.pdf; Nat’l Ctr. on Prot. Orders & Full Faith & Credit, Firearm Checklist For Judges, https://www.bwjp.org/assets/documents/pdfs/ncpoffc-firearm-checklist-judges.pdf; Nat’l Ctr. on Prot. Orders & Full Faith & Credit, Firearm Checklist For Prosecutors, https://www.bwjp.org/assets/documents/pdfs/ncpoffc-firearm-checklist-prosecutors.pdf; Nat’l Ctr. on Prot. Orders & Full Faith & Credit, Firearm Checklist for Advocates, https://www.bwjp.org/assets/documents/pdfs/ncpoffc-firearm-checklist-advocates.pdf.
160. Cal. Rules of Ct. R. 5.495.
161. King County Executive Submits Proposal to Get Guns Away from Domestic Violence Abusers, supra note 151.
162. Battered Women’s Just. Project, Police Seizure of Firearms at Scenes of Domestic Violence, Nat’l Resource Ctr. on Domestic Violence & Firearms, https://www.preventdvgunviolence.org/assets/documents/legal-landscape/police-seizure-of-firearms-at-scenes-of-domestic-violence.pdf.
163. Christopher Ingraham, There Are More Guns Than People in the United States, According to a New Study of Global Firearm Ownership, Wash. Post (June 19, 2018), https://www.washingtonpost.com/news/wonk/wp/2018/06/19/there-are-more-guns-than-people-in-the-united-states-according-to-a-new-study-of-global-firearm-ownership/?noredirect=on&utm_term=.b328d77ab926.
165. See, e.g., Cal. Penal Code § 18170.
166. David I. Swedler, Firearm Prevalence and Homicides of Law Enforcement Officers in the United States, 105 Am. J. Pub. Health 2042, 2046 (2015).
169. Carroll Doherty & Jocelyn Kiley, Opinions on Gun Policy and the 2016 Campaign, Pew Res. Ctr. 1–2 (Aug. 26, 2016) (a Pew Research Center study of public opinion on guns during the 2016 campaign found the following about voters: eighty-three percent support “background checks for private and gun show sales,” eighty-one percent support preventing “people with mental illness from purchasing guns,” seventy-four percent support “barring gun purchases by people on the federal no-fly or watch lists,” sixty-six percent support “a federal database to track gun sales,” fifty-four percent support a ban on “high-capacity ammunition clips,” and fifty-four percent support a ban on “assault-style weapons”).
170. Id. (In 2016, when asked whether voters prioritize gun ownership or gun control, seventy-nine percent of registered Democrats said they prioritized gun control over ownership. In contrast, Republican voters dramatically shifted opinions, moving from forty-six percent of Republican voters in 2000 prioritizing gun control over gun ownership down to twenty-one percent in 2012, and then down to only nine percent in 2016.).
171. Lisa Marie Pane & Emily Swanson, Poll Shows Little Societal Change Over Gun Control After Las Vegas Shooting, Christian Sci. Monitor (Oct. 20, 2017), https://www.csmonitor.com/USA/2017/1020/Poll-shows-little-societal-change-over-gun-control-after-Las-Vegas-shooting.
172. Dohery & Kiley, supra note 169, at 1–3.