All levels of local/state/Tribal/federal governments work jointly to make sure that federal firearm prohibitions are enforced to disarm and prosecute abusers, especially where state or Tribal laws are lacking.
Federal law prohibits certain individuals from possessing or purchasing firearms, including individuals who have been convicted of a qualifying misdemeanor crime of domestic violence (MCDV) and individuals who are subject to a qualifying domestic violence protection order.
Individuals who have been convicted of an MCDV are prohibited from possessing or purchasing firearms under 18 U.S.C. § 922(g)(9), which includes the following requirements:
- The misdemeanor is a crime under state, Tribal or federal law.
- The crime for which the offender was convicted contained one of the following elements: the use or attempted use of physical force or the threatened use of a deadly weapon.
- The defendant was represented by counsel or knowingly and intelligently waived the right to counsel.
- In jurisdictions where the defendant was entitled to a jury trial, the case was tried by a jury or the defendant knowingly and intelligently waived the right to a jury trial by guilty plea or otherwise.
- The misdemeanor must have been committed by a person who, at the time of commission of the crime, was a current or former spouse, parent, or guardian of the victim, or was a parent of a child of the victim, or had cohabited or formerly cohabited with the victim as a spouse, parent or guardian, or was similarly situated to a spouse, parent, or guardian of the victim.
- The prohibition is permanent unless the defendant has had the conviction set aside or expunged, was pardoned, or had civil rights restored (i.e., the right to sit on jury, the right to vote, and the right to hold public office).
Individuals who are subject to a qualifying domestic violence protection order are prohibited from possessing or purchasing firearms under 18 U.S.C. § 922(g)(8), which includes the following requirements:
- The person subject to the order must have notice and an opportunity to be heard; and
- The order must restrain the person from harassing, stalking, or threatening an intimate partner of the person or a child of the person or the intimate partner; or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- The order must include either a finding that the person subject to the order represents a credible threat to the physical safety of an intimate partner or child or a prohibition against the use, attempted use or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.
- The term “intimate partner” is defined as “a current or former spouse, a current or former cohabitant with the person subject to the protection order” or an individual who is a parent of a child of the person against whom the order was issued. 18 U.S.C. §921(a)(32)
These federal firearm statutes can be potent tools for protecting victims of domestic violence from further harm and holding dangerous offenders accountable. In addition to providing the basis for convictions that may result in the imprisonment of the offender, these statutes may also enable federal authorities to order relinquishment and seizure of firearms, even when state law does not authorize such action. In addition, in many instances convictions under these statutes can result in penalties far more severe than those available under state law. Effective enforcement of the federal firearm prohibitions, however, is no simple task. Successful prosecutions and seizure actions often require close collaboration among officials at the local, state, Tribal, and federal levels. In many instances, information and evidence indicating a violation of the federal prohibitions may be known only to local or Tribal officials, while their federal counterparts, who may have the exclusive authority to take action under the federal laws, remain unaware of the federal offense. By establishing a coordinated approach to addressing domestic violence related firearm offenses, including improving communication and information sharing among relevant agencies at all levels of government, communities can take full advantage of the federal firearms prohibitions to protect victims and hold offenders accountable.
Collaborative initiatives in this arena may take on many different forms. For instance, one approach followed in some jurisdictions is the convening of a task force or similar collaborative working group consisting of local, state, Tribal, and federal authorities for purposes of:
- developing protocols and/or memoranda of understanding for triaging cases for intervention by authorities at the appropriate level (local vs. state vs. Tribal vs. federal)
- ensuring that protection order and criminal proceedings in state/Tribal courts result in orders and/or convictions that satisfy requirements for federal firearm prohibitions
- providing training to professionals in all relevant disciplines on firearms and domestic violence, including the federal laws.
Another approach that has met with success is the cross-deputization of local, state, or Tribal prosecutors and/or law enforcement officers as federal prosecutors/officers. A single person assuming both roles is ideally positioned to identify cases for further investigation, to investigate the cases or to ask others to investigate them, and to decide (or make appropriate recommendations about) whether to pursue a prosecution at the state/Tribal level or in federal court.
Cross-deputization has been a key component of the U.S. Department of Justice’s (U.S. DOJ) Tribal Special Assistant U.S. Attorney (SAUSA) program. Under the program, Tribal prosecutors are cross-deputized as SAUSAs and therefore are able to prosecute crimes in both Tribal court and federal court, as appropriate. In 2012, the U.S. DOJ’s Office on Violence Against Women (OVW) established the Violence Against Women Tribal SAUSA Pilot Project to increase the use of Tribal SAUSAs in cases involving violence against Native women. OVW granted awards to four tribes in Nebraska, New Mexico, Montana, North Dakota, and South Dakota to fund cross-designated Tribal prosecutors. The goal of the Tribal SAUSA Pilot Project was “to increase the likelihood that every viable criminal offense is prosecuted in Tribal court, federal court or both. The program enabled Tribal prosecutors to bring violence against women cases in federal court and to serve as co-counsel with federal prosecutors on felony investigations and prosecutions of offenses arising out of their respective Tribal communities.” SAUSAs under the project have brought several successful federal prosecutions for firearms-related domestic violence crimes that occurred on Tribal lands.
Communities developing a coordinated approach seem to have the best success in combating these crimes. Creation of formal lines of communication and information-sharing among participants at all levels of government is critical. This may include either formal or informal agreements that delineate the various participants’ roles and responsibilities and establish mechanisms for making and responding to referrals for investigation by federal officials.
See the Community Strategies in Action
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