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The Gottlieb-Tartaro Report
Issue 025
January, 1997
New Domestic Violence Gun Ban Hits Cops Hard
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Dear Subscriber,Last year, Sen. FRANK LAUTENBERG (D-NJ) introduced the “Domestic Violence Offender Gun Ban” in the Senate. The language of Sen. LAUTENBERG’s proposal was included in the omnibus appropriation bill through the efforts of Rep. BOB BARR (R-GA) and went into effect September 30, 1996. The law bans gun ownership for anyone convicted of a misdemeanor crime of domestic violence. The new ban has hit hard in law enforcement agencies and the military. Personnel with misdemeanor convictions are losing their jobs because they can no longer carry guns. Some police organizations are asking for exemptions. Gun rights advocates think a selective ban is a bad idea. We haven’t seen a flap this unusual for some time. In this issue we bring you a series of special re ports on the developing controversy over the domestic violence gun ban.
BATF SENDS OPEN LETTER TO ALL COPS The new federal law was such a shock to law enforcement agencies, they were dismayed and didn’t know what to do. The attitude among some police departments was, “Okay, let the Feds enforce it.” A month after the law went into effect, John W. Magaw, Dire ctor of the Federal Bureau of Alcohol Tobacco and Firearms, sent an “Open Letter to All State and Local Law Enforcement Officials” explaining in detail what it meant and essentially ordering them to enforce it themselves.
Magaw began by saying that the new law “amended the Gun Control Act of 1968 (GCA) to make it unlawful for any person convicted of a ‘misdemeanor crime of domestic violence’ to ship, transport, possess, or receive firearms or ammunition. It also makes it unlawful for any person to sell or otherwise dispose of a firearm or ammunition to any person knowing or having reasonable cause to believe that the recipient has been convicted of such a misdemeanor. This new prohibition does apply to all law enforcemen t officers.”
The new firearms disability affected huge numbers of law enforcement officers, which came as a surprise to the public. We don’t usually think of the police as being disproportionately guilty of domestic violence. The new law gave domestic violence a bro ad definition. Magaw’s letter explained:
The new law defined “misdemeanor” as any offense so classified under either federal or state law. In addition, the crime must have “as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a curren t or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
That means the definition included all misdemeanors involving the use or attempted use of physical force, for example, simple assault, or assault and battery. It didn’t matter if the state statute or local ordinance specifically called the offense “domes tic violence.” Any misdemeanor assault conviction against a spouse was a firearms disability. What’s more, the time of the conviction didn’t matter. If you have a misdemeanor domestic violence conviction on your record at any time, even prior to the ne w law’s effective date, you can’t have a gun. However, the law does not apply if such a conviction has been expunged, set aside, pardoned, or the person had his or her civil rights restored (if the law of the jurisdiction provided for the loss of civil r ights under such an offense).
Director Magaw recommended that law enforcement departments should quickly determine who on their force is subject to this disability. “Employees subject to this disability must immediately dispose of all firearms and ammunition in their possession.” It doesn’t matter whether it is personally owned or government issued. Continued possession is a violation of law.
The new law also affects the so-called “Brady States” under the Brady Act waiting period. Now, Chief Law Enforcement Officers (CLEOs) must also determine whether prospective gun buyers have domestic violence misdemeanor convictions. The five-business-da y “reasonable effort” standard to determine whether the buyer can lawfully receive a gun is not altered by the addition of this new disqualifying category. ATF forms are being revised to reflect the new category of prohibited persons.
FRATERNAL ORDER OF POLICE BEMOANS LOSS OF SPECIAL EXEMPTION The Grand Lodge of the Fraternal Order of Police recently sent its entire membership a legislative alert warning of the impact of the Domestic Violence Offender Gun Ban.
“Approximately 200 Deputy Sheriffs from Los Angeles County will be losing their jobs as a result of the new law,” said the notice.
The Grand Lodge advised, “If you have a misdemeanor conviction for a crime involving domestic violence and were represented by counsel before a jury, or knowingly and intelligently waived both the right to counsel and trial by jury, then you have incurred a firearms disability. We urge officers to refuse to answer any and all questions regarding previous misdemeanor convictions until first consulting an attorney.”
Tim Richardson, legislative analyst of the FOP in Washington, issued a long memo with a legislative history of the gun ban. It all began when an unrelated Senate anti-stalking bill, co-sponsored by Sen. KAY BAILEY HUTCHINSON (R-TX), was being supported b y the FOP. No one expected the anti-stalking bill to have any trouble in the Senate until Sen. FRANK LAUTENBERG (D-NJ) suddenly asked to amend it by adding his domestic violence gun ban bill.
Sen. LAUTENBERG’s proposed gun ban had many problems. It would have permanently disabled anyone who was indicted for a domestic violence misdemeanor (as defined by the States). No one so disabled could ever have his or her Second Amendment rights resto red by pardon, expungement or set-aside. The FOP’s RICHARDSON felt that the proposed amendment was unconstitutional and recommended the FOP oppose it regardless what legislation it might be attached to.
Sen. HUTCHINSON refused to permit Sen. LAUTENBERG’s amendment, which provoked him to object to the anti-stalking bill. FOP National President Gil Gallegos wrote a letter to Sen. LAUTENBERG asking the Senator to withdraw his objection, which the Senator i gnored.
Sen. HUTCHINSON then brokered a deal in order to get her bill to the floor:
She figured the House would never pass the LAUTENBERG amendment, so she permitted it in the Senate bill with corrections—no disability for indictments (convictions only), and a conviction could cause a disability only if the individual had been represente d by counsel. Sen. LAUTENBERG in return agreed that if the House did not act on the amended bill, he would support the anti-stalking bill without his amendment. The House, of course, refused to debate the measure, and Sen. HUTCHINSON then asked Sen. LAU TENBERG to honor his commitment. Sen. LAUTENBERG refused, according to RICHARDSON’s memo.
Thwarted by House inaction, Sen. LAUTENBERG then moved to amend a Senate appropriations bill with his gun ban, and it passed the Senate 97 to 2 with no Senator speaking in opposition. In the final week of Congress the House included the gun ban in its ma mmoth appropriations bill, but removed the exemption for law enforcement and military. Both moves were the work of Rep. BOB BARR (R-GA), which the FOP memo claimed was done to “pay back” the Fraternal Order of Police for endorsing CLINTON for re-election and for backing gun bans before the House Subcommittee on Crime.
The RICHARDSON memo contains a bizarre paragraph complaining about the effect of the new gun ban. The memo cries, “Congress is legislatively stripping away a constitutional right because of a misdemeanor conviction.” Coming from one of the few police gr oups that routinely supports one gun ban after another, this sudden worry about the constitutional right to bear arms is ludicrous. It was their ox being gored this time, and they suddenly saw the value of the Second Amendment. If the exemption for poli ce and military had stayed in, would FOP be worried at all?
RICHARDSON’s memo ended with the notice that “fixing” this gun ban was the FOP’s “highest priority for the 105th Congress.”
GUN RIGHTS GROUP OFFERS GUN BAN RECOMMENDATIONS In a recent letter to Rep. BOB BARR, the Citizens Committee for the Right to Keep and Bear Arms came out in support of equal application of the new domestic violence gun ban. In the event legislation is introduced to change the gun ban, said the Citizens Committee, great care should be exercised to apply the changes to everyone.
Citing unfortunate links between the domestic violence issue and charges of police abuse, the Citizens Committee said, “It seems clear that the public would not happily accept a total exemption in any revised domestic abuse law for law enforcement and mil itary personnel who have been convicted or pleaded guilty to domestic abuse crimes.”
The letter was particularly strong on one point: “Common sense should tell anyone that a law enforcement officer who can physically abuse his loved ones should not be expected to exercise greater restraint with strangers, especially those suspected of a c rime. Because of this fact we don’t believe anyone has to apologize for applying the new law to law enforcement and military personnel as well as civilian security people.”
If the issue is to be revisited by Congress, what is the right approach? The Citizens Committee stated, “we believe any correction should relate to the severity of the domestic abuse crimes involved in each instance. Thus if there is evidence of actual physical violence involved in a domestic abuse investigation and the defendant is convicted or pleads guilty after proper advice of the consequences, the present prohibition on forearms ownership should be retained.”
Failing that, said the Citizens Committee, Congress should reinstate and fund a federal system for relief from disability such as previously existed with felony records. “If a crime is felonious, we should treat it as such no matter who is involved. If not, the matter should be left to the discretion of the states or the federal agencies involved.” The letter was signed for the Citizens Committee by Chairman Alan M. Gottlieb.
SECOND AMENDMENT FOUNDATION RESEARCHING POLICE DOMESTIC VIOLENCE The new domestic violence offender gun ban has prompted the Second Amendment Foundation to launch research into the incidence of domestic violence among law enforcement officers.
No data on the subject is readily available because law enforcement agencies do not generally report the causes of officer suspensions and terminations by category. Finding the information is often a matter of comparing available officer rosters with cou rt records, a tedious and time-consuming detective job.
However, SAF’s preliminary research shows that law enforcement officers are involved in domestic violence cases two-and-a-half times more often than the general population. If this figure bears up under the scrutiny of criminologists, it will be a shocki ng indication that something is seriously wrong in American law enforcement. SAF’s preliminary research did not include the military or private security guards.
NEWS REPORTS HIGHLIGHT COPS WITH DOMESTIC VIOLENCE GUN BAN WOES A flood of news stories came in the wake of the new domestic violence offender gun ban. Denver’s Rocky Mountain News reported that three Denver police officers with misdemeanor domestic violence convictions were ordered to turn in their guns and take des k jobs.
The president of a union representing Denver’s 1,426 police officers said his group and other national police organizations will challenge the new law in court.
“We’re totally against it. We’re angry and we’re shocked,” said Alex Woods Sr., president of the Police Protective Association. Woods’ son, Alex Jr., is one of the three Denver officers affected. He was convicted in 1995 of assaulting his girlfriend by choking and hitting her during a Christmas party. He was sentenced to one year’s probation and 36 weeks of domestic violence counseling. The offense remaining on his record required the Department to take his gun away and put him on a desk job. Two ot her officers were similarly transferred for offense records.
If there is no reversal of the law or their records, they will lose their jobs.
The Associated Press reported that law enforcement agencies in Phoenix, Arizona, America’s seventh largest city, were caught unprepared for the new gun ban. Scottsdale police Sgt. Brian Freeman said the BATF memo made it clear there would be serious rami fications for everybody, both internally and for the external work load.
Mesa police spokesman Earle Lloyd said, “It snuck up on everybody.” Lloyd learned of the gun ban on television.
Hundreds of law enforcers nationwide face dismissal for past misdemeanor records, as many as 200 in California alone, said a report.
The leaders of national law enforcement organizations met in Washington recently and discussed withholding support for new gun control legislation, such as a ban on cheap handguns, unless Congress revises the domestic violence gun ban for law enforcement officers. Insiders tell us that some of the leaders may be satisfied if the law is changed to apply only to future offenses, not past records. Others, however, want cops excluded altogether.
DEPUTIES FILE LAWSUIT AGAINST DOMESTIC VIOLENCE GUN BAN Three Los Angeles Sheriff’s deputies have just filed a federal lawsuit to block enforcement of the new domestic violence gun ban. The officers were identified only as Does 1, 2 and 3. They were joined in the suit by ALADS, their union.
All three have been placed on temporary suspension because of domestic violence convictions. L.A. County Sheriff Block took their weapons and gave them 90 days to either accept a demotion to civilian status or tender their resignations from the force. S heriff’s personnel is reviewing all sworn officers’ records to locate those with DV violations.
STUDY: CONCEALED CARRY REDUCES VIOLENT CRIME The recent study by a researcher that shows concealed handgun laws deter violent crime has created a storm of indignant opposition from gun control advocates and a few thoughtful news stories that actually consider the possibility.
Professor John Lott and a graduate student at the University of Chicago Law School found that when states adopt laws allowing the concealed carry of handguns, you get a large drop in violent crime levels. Lott’s study also found that laws allowing concea led carry did not increase accidental deaths.
That, of course, is a conclusion that gun control advocates simply can’t allow to exist. The Center to Prevent Handgun Violence, a key gun-grabber organization, recently sponsored a debate to bring in all the big academic guns they could find to shoot do wn Lott and his study.
Georgetown University professor Jens Ludwig, one of the star speakers against Lott, asserted that, “There is no credible evidence to support the idea that permissive concealed-carry laws reduce violent crime.”
Lott came back hard, citing the evidence he found that legally concealed weapons could have prevented 1,570 murders and 4,177 rapes in 1992 alone.
Ludwig couldn’t fight the study’s basic finding that violent crime rates have dropped in every state that has adopted concealed carry laws, so he waded into obscure arguments that confused most of his audience. He claimed that adults should have enjoyed greater protection under Lott’s theory because juveniles don’t qualify for concealed weapons permits, but Lott’s study showed no appreciable difference between the rate of adults and juveniles slain.
Another group of anti-gun researchers argued that Lott’s model was skewed because he failed to account for the special conditions in Florida. They said that the 1980 Cuban boatlift and the transformation of Miami into a center of cocaine trafficking caus ed a dramatic jump in the region’s crime.
Daniel Nagin, a public policy professor at Carnegie Mellon University, said that Lott’s results “are simply too fragile to make policy on.”
Lott stuck to his guns. He said he had shared data with a dozen researchers across the country who were working to verify it.
When the smoke cleared after the debate, Lott’s study stood up against the charges that it was flawed. Lawmakers in states considering concealed carry legislation were not swayed by gun control advocates.
One state expected to take up the question of concealed carry in its next legislative session is Kansas. The Olathe, Kansas, Daily News presented the issue in a series of stories for an entire week, offering both sides of the concealed gun question.
< BR> After the stories, an editorial came down on the side of concealed carry, in no small part because of Prof. Lott’s study. The editorial’s headline read: “Current information supports the belief that concealed gun laws reduce violent crime.” It must have made the leaders of the Center to Prevent Handgun Violence chew nails.
The editorial pointed out that in Kansas, it is legal to openly carry a gun or rifle. Why, then, are so many people concerned if the state allows people to carry handguns in their pockets rather than on their hips?
“Opponents,” said the editorial, “argue society needs less rather than more guns in public. In a perfect society, there would be no guns available for criminals to use against law abiding citizens.”
But society is not perfect, said the editorial. Far from it. “In the United States criminals are going to get and use guns on decent citizens whether it’s legal to carry guns openly or inside a purse of pocket. Thirty-one states across the country have already passed concealed gun laws. The only study done on the issue is one that came out of the University of Chicago. It indicates that violent crime decreases in states where concealed guns are allowed.”
Criminals, said the editorial, are turning to burglarizing homes and stealing cars instead of confronting people. “When states have concealed gun laws, the playing field between law abiding citizens and criminals becomes even. And criminals appear not t o like the odds of facing someone who might be armed.” A newspaper said that.
AT THE SUPREME COURT LISTENING TO THE BRADY CASE Citizens rarely get the chance to eavesdrop when the United States Supreme Court hears arguments on big cases. The Brady Law was recently argued before the Supreme Court in a joint appeal of two cases known as Mack and Printz v. U.S. Two sheriffs, Mack from Arizona and Printz from Montana, petitioned that the federal government could not compel the states to perform background checks on gun buyers during a five-day waiting period as required by the Brady Law.
We obtained notes taken in longhand by a person present describing how it went. Here are a few choice sections that show how Stephen Halbrook, attorney for the petitioners and Walter Delinger, Acting Solicitor General, for the United States, handled the argument.
Halbrook had asserted the law wrongly forces police to carry out a federal program. The arguments before the high court centered around how far Congress may go in extending the reach of federal power over the states.
Halbrook made a mistake by arguing that the federal government could not constitutionally even require states to open their records for federal inspection, much less compel the states to do background checks on gun buyers. The error kept coming up, but s ince it did not go to the heart of the case, it was only embarrassing and not fatal.
At the end Dellinger ended up trapped by the facts when he wrongly cited a precedent about federal power that did not cover what he said it did.
What follows is not an official transcript by a court reporter. The complete official record will be available after the case is decided, probably this summer. This is an insider’s personal record from the packed courtroom and may contain errors, but it is very revealing. Names shown in ALL CAPITALS are Supreme Court Justices.
O’CONNOR: You represent both sheriffs?
Halbrook: Yes.
O’CONNOR: Where in the record is the extent of the burden [caused by the Brady Law] on these sheriffs?
Halbrook: In the affidavit and hearing....
O’CONNOR: Could you summarize how many checks they made and the time required?
Halbrook: For Printz, a dozen officers spend hours. For Mack, about 2 hours a day. He has only 1½ officers average on duty.
REHNQUIST: Hard to have 1½ officers on patrol (laughter).
Halbrook: That’s on average.
SCALIA: Do you think the degree of the burden is determinative?
Halbrook: Not at all.
O’CONNOR: Hasn’t Congress imposed a burden on states to report traffic fatalities?
Halbrook: That was done under the spending power [as a condition of receiving highway money].
O’CONNOR: Lots of Chief Law Enforcement Officers voluntarily comply.
Halbrook: Some are complying.
O’CONNOR: Forty states or so. [O’Connor also asked if the constitutional problems would disappear if Congress had offered money to the local governments to conduct the checks, or made them optional. “There was no money and no option,” Halbrook replied.]< BR> STEVENS: Suppose the law was amended so all investigations were done by the federal government, but states must make records available to them.
BREYER: I have the same question. The federal requirement to report missing kids, would that be okay if it just required states to make state information available?
Halbrook: No, it would be unconstitutional.
[This was a major mis-step, and the Court kept coming back to it. Justices Rehnquist and Souter gave Halbrook friendly hints to drop the argument, and Halbrook backed off. Then the Court grilled U.S. attorney Dellinger. The probing centered on whether the Brady Law forces sheriffs to make policy choices, which would be unconstitutional.]
SCALIA: Under Brady, Congress accepts no unpleasant policy choices—no raising of taxes, no diversion of officers—aren’t those all unpleasant policy choices?
Dellinger: Brady leaves flexibility, it only requires reasonable effort.
SOUTER: Isn’t that enough to create the accountability problem? Can state officials be held accountable for determining reasonable effort? Do you assume the check is voluntary? [Souter here begins pressing Delinger into a corner with the argument that t he flexibility he praises in fact causes State officials to be held accountable by the electorate for administering the federal program].
Dellinger: We don’t take the position that’s it voluntary.
SOUTER: Then the state must choose how intrusive the background check will be. That issue itself could be explosive. By your own standard, why isn’t this enough to be unconstitutional? [The government had conceded that a federal law requiring states to enact legislation would be unconstitutional. Dellinger had dug himself into a hole.]
It was a vigorous hour before the Supreme Court. It looks like the petitioners will prevail. However, President CLINTON said he believes the Brady Law passes constitutional muster and has saved many lives.
LAWMAKER BOOKED FOR BRIBERY In Connecticut, a state legislator who is also a police officer was caught on tape when he allegedly accepted a cash bribe for helping someone get a pistol permit, according to court records.
State Rep. Donnie D. Sellers (D-Norwalk) allegedly said, “I’m a politician. I ain’t turning nothing down” as an undercover agents slipped him a wad of cash. “Mr. Sellers later took the $200 from beneath his coffee mug and placed it into his pocket,” acc ording to the warrant affidavit.
It was the second state lawmaker-police officer caught in taking a bribe. However, Sellers was an accidental catch. He was not an original target in the investigation, said Executive State’s Attorney Timothy J. Sugrue.
The original target, state Rep. Edwin Garcia (D-Hartford), who is an officer in Hartford, was charged with bribery two weeks earlier when a food stamp investigation—that itself led to the arrest of 10 people—fingered him as someone who took favors for smo othing the way for a permit.
Not charged was state Rep. John Martinez (D-New Haven), who was to supply letters with phony information, according to the affidavits. No evidence was presented that Martinez had done anything wrong and Martinez never met witht he undercover agent.NEW YORK GUN BUY-BACK BACKFIRES Reports indicate that as many as 200 state environmental conservation officers may have violated depertmental rules during buy-backs of their weapons in 1990 and 1993.
Gov. George Pataki ordered the head of the state Department of Environmental Conservation’s enforcement division be suspended and that all state agencies turn over “excess” weapons to the state police for destruction instead of allowing officers to purcha se them.
New York state Inspector General Roslynn Mauskopf said there could be possible criminal prosecution of DEC enforcement chief George Firth. During firearms upgrades with better weapons, officers were given the option of buying their old state-issued guns.
Mauskopf said her investigators showed that many of the officers then resold the weapons, sometimes to people not licensed to carry them, at profits of up to $100 a gun. Others allowed fellow officers to purchsae their state-issued weapons in violation o f regulations and often those guns were resold.
PRINCE PHILIP RAISES STINK BY SUPPORTING GUNS Parting Shot...
Britain’s Prince Philip angered anti-gun campaigners recently by saying that firearms enthusiasts were no more dangerous than golf players.
The husband of Queen Elizabeth II told a BBC radio interviewer that he believed that a new British law banning most handguns would not prevent future gun crimes.
The law was introduced after a deranged weapons enthusiast armed with pistols shot and killed 16 schoolchildren and their teacher at a school in Dunblane, Scotland, last March.
Thomas Hamilton, the killer, belonged to a gun club and had licenses for the four weapons he used.
The public grief and outrage generated by the killings made a law against handguns practically inevitable. The law passed in October gave Britain some of the toughest gun laws in the world, but it did not go so far as to ban .22-caliber handguns used for target shooting. It will take out of circulation 160,000 higher caliber handguns.
Prince Philip said, “I can’t believe that the members of shooting clubs are any more dangerous than members of a squash club or a golf club or anything else. I don’t see this sort of legislation preventing handguns getting into the hands of criminals. I f a cricketer, for instance, suddenly decided to go into a school and batter a lot of people to death with a cricket bat, which he could do very easily, I mean are you going to ban cricket bats?”
He said that he sympathized “desperately” with the bereaved parents, but was “not altogether convinced that it’s the best system to somehow shift the blame onto a very large and peaceable part of the community.”
Prince Philip, like many members of the royal family, is a keen game hunter. He is also famed for often tactless remarks.
An anti-gun group formed after the Dunblane killings, Snowdrop, expressed deep offense at Prince Philip’s remarks. Ann Pearston, a leader of Snowdrop, said, “My reaction is absolute disbelief. I think it will cause deep pain when the parents of the vict ims are getting through a very difficult time, their first Christmas since the killings.”
Prince Philip’s comments also sparked off a storm in the House of Commons, with legislators denouncing him as “crass” and “insensitive” and calling for him to stop blundering into sensitive debates.
Late last year, animal rights groups were outraged when Prince Philip’s grandson, Prince William, was reported to have shot his first deer.
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