February 26, 2009 / Uncategorized

Supreme Court Rejects Challenge to Federal Domestic Violence Law

by

man holding gun

We had some great news earlier this week from the Supreme Court:  in a 7 – 2 ruling, the Court rejected a challenge that would have made it easier for individuals convicted of domestic violence to own firearms.

In United States v. Hayes, the Court considered the scope of the Lautenberg Amendment, which prohibits any person convicted of “misdemeanor crimes of domestic violence” from owning a firearm.   This amendment, authored by Senator Frank Lautenberg of New Jersey and passed by Congress in 1996, closed a loophole in the Gun Control Act of 1968, which prohibits convicted felons from owning guns.  Since many states classify “domestic violence” crimes as misdemeanors rather than felonies, the original federal law did not prevent violent partners from acquiring guns.

The ruling this week stems from a decision in April 2007 in which the United States Court of Appeals for the Fourth Circuit ruled in favor of Randy Hayes, a man who had been convicted under West Virginia law for misdemeanor assault and battery against a woman to whom he was married.  

Years after this conviction, police were called to Hayes’ home to investigate another violent domestic altercation.  At that time police learned that Hayes owned three guns.  Hayes was arrested and subsequently convicted of illegal firearms possession under the federal law created by the Lautenberg Amendment.  

Lawyers for Hayes argued that the federal law was meant to apply only to individuals convicted of crimes specifically described as “domestic violence.”  Because the West Virginia state law under which Hayes was first convicted barred assault and battery in general, and does not use the term “domestic violence” specifically, Hayes’ position was that the federal law should not apply. 

Justice Ruth Bader Ginsburg wrote the majority opinion, which holds that the federal law applies to anyone convicted of  using physical force or the threatened use of a deadly weapon against a person with whom the perpetrator has a “domestic relationship.”  Justice Ginsburg was joined by six of her colleagues.  Only Chief Justice John Roberts and Justice Antonin Scalia dissented; they argued that the federal law should be read narrowly and literally as applying only to those people convicted specifically of “domestic violence,” rather than assault and battery against a domestic partner.

In a brief filed with the Court, the Brady Center to Prevent Gun Violence pointed to

“the great danger that armed abusers pose to family members of these abusers as well as law enforcement officers summoned to address such violence.  On average, more than three people are killed by intimate partners every day in this country.   Intimate partner homicides account for up to one-half of all homicides of females.   Every year between 1,000 and 1,600 women die at the hands of their male partners, and 14 percent of all police officer deaths occurred during a response to domestic violence calls.”

The groups that joined the Brady Center’s brief are the International Association of Chiefs of Police, Major Cities Chiefs, National Sheriffs’ Association, National Organization of Black Law Enforcement Executives, Hispanic American Police Command Officers Association, Police Executive Research Forum, National Black Police Association, National Latino Peace Officers Association, Legal Community Against Violence, and the School Safety Advocacy Council.

 On the opposing side, the Eagle Forum filed a brief that presented, among other ideas, a states’ rights argument:

“The statute seeks to regulate criminal behavior within the context of domestic relationships.  As this Court [previously] observed… both are matters that were traditionally reserved to the States… the government’s expansive interpretation would impose a federal prohibition on gun ownership for all individuals convicted of misdemeanors that happen to involve a domestic relationship, rather than allowing the states to determine whether such a prohibition should apply by defining specific crimes having as an element a domestic relationship between the perpetrator and the victim.”

The Eagle Forum brief also wrote that the “policy concerns” raised by the Brady Center are “incomplete and irrelevant,” because

“the court of appeals’ interpretation would only impact the minority of domestic abusers who have actually been convicted of a predicate offense.  Even the proponents of [the federal law] recognized that the statute—no matter how it is interpreted—would not have a significant effect on the underlying problem due to the limited prosecution of domestic violence. 

Thus, for example, Senator Murray, one of the co-sponsors of the original bill stated: ‘Unfortunately, this amendment will not make life better for many women who are abused, even when guns are present in the home. We know that most domestic violence is not even reported, and of the cases that are reported, many do not lead to a conviction…’

As Senator Murray observed, the vast majority of domestic violence incidents are never reported.  Of those that are reported, the vast majority do not lead to conviction.  Accordingly, the threshold requirements for [the federal law] are seldom satisfied.”

The Second Amendment Foundation (SAF) filed a separate brief that argued in favor of Hayes’ position on the basis of the Second Amendment to the Constitution.  SAF argued that the Second Amendment not only defends the right to bear arms as part of a well regulated militia, but also for the purpose of self-preservation and self-defense. They identified self-preservation and self-defense as not-literally-stated rights that are rooted in the umbrella right to “personal autonomy.” 

Among the precedents that demonstrate the Court’s deference to the right to personal autonomy, SAF cited cases including Cruzan v Director of Missouri Department of Health (a right-to-die case), Eisenstadt v Baird (right of unmarried people to use contraception), Lawrence v Texas (consensual sexual activity), and Planned Parenthood v Casey (right to decide to terminate a pregnancy).

Join Our Email List

Be the first to know the latest initiatives from The New Agenda to improve the lives of women and girls.

Thank you for joining our list! Check your inbox to confirm your subscription.

  • yttik

    Great article, thank you.

    There are some unintended consequence to our domestic violence laws. For example when we decided on mandatory arrest in DV cases, we didn’t realize how many times cops were going to arrest the female, deciding she was the primary aggressor. She took his keys away or she somehow provoked it all. Likewise, when we worked to keep handguns away from perpetrators, we didn’t realize that victims were going to get caught up in it. I know some women that were arrested for domestic violence and now can’t own a gun.

    So I celebrate some of these legal victories, but in the back of my mind I realize that we can’t use the law to fix it all. We’ve got to change attitudes.

  • Thanks for this great post, Nina.

    I love the way the Eagle Forum describes their brief on their own site: “The Second Amendment is again at stake in this important case that also includes an example of abusive overuse of domestic violence laws. ”

    Abusive overuse — abusive! — of those evil domestic violence laws.

  • Beautiful presentation of a thorny issue, Nina.

    If Hayes’ right to gun ownership is rooted in the umbrella right of personal autonomy, does this infer all persons are located under the umbrella of personal autonomy? [‘The Second Amendment Foundation (SAF) identified self-preservation and self-defense as not-literally-stated rights that are rooted in the umbrella right to “personal autonomy.” ‘]

    How does this square with women’s right to “personal autonomy”? Does personal autonomy include the right to not be physically abused by a domestic partner? If so, is the SAF indirectly encouraging gun ownership by women threatened by a domestic partner as the means to preserve their personal autonomy?

  • Karen

    I believe people who have a pattern of misdemeanor violence should not be allowed to own guns. For someone with this pattern, it is all too easy to press the trigger in a fit of anger.

    “Justice Ruth Bader Ginsburg wrote the majority opinion, which holds that the federal law applies to anyone convicted of using physical force or the threatened use of a deadly weapon against a person”

    That sentence has me confused… did she support restricting guns or not?

  • Karen

    We can always take this case to the states. Not all women would be protected as they would be if it were a federal law, but at least more women would have the protection.

  • yttik said, “For example when we decided on mandatory arrest in DV cases, we didn’t realize how many times cops were going to arrest the female, deciding she was the primary aggressor.”

    Yes, I knew a case like that. It sounds like the DV laws all over the country need to be tweaked. What about getting some lawyers together and working on a ‘patch’ to recommend to ALL states and communities.

    This could be the subject of at least two press releases: one announcing the project and asking for lawyers and input (perhaps a website of its own?), and one announcing the final product when it is ready.

    Perhaps it should include factors like who is the biggest and strongest and most experienced in violence, and who had the more serious injuries, etc. These are objective factors less subject to “he said / she said.”

    Btw, personally I think that mandatory reporting and arrest/jail discourage women from getting treatment for their damage. They conceal their damage because they don’t want the man to go to jail because it would make him more angry or they need his daily work to support the family. Mandatory counseling would be more to the point.

  • OK

    “On average, more than three people are killed by intimate partners every day in this country. Intimate partner homicides account for up to one-half of all homicides of females. Every year between 1,000 and 1,600 women die at the hands of their male partners,…”

    Hmm, if 1,000 to 1,600 women die every year at the hands of their partners, that’s between 2.73 and 4.38 women being killed every day by their partners. So, every once in a while it’s a man who gets killed (and it’s highly likely that he was killed because the woman was defending herself against violence). So, although it’s maybe not as technically accurate, it’s more like “more than three WOMEN are killed by intimate partners every day in this country,” isn’t it? Or maybe “80-90% of murders committed by intimate partners are committed against women.” It’s strange how we as a society try so hard to sweep under the carpet the fact that men are more violent than women.

  • Karen

    “it’s highly likely that he was killed because the woman was defending herself against violence”

    Actually… women can kill just as callously as men can… when my dad owned rental properties, he rented to this couple… the woman was psychotic and tried to attack me and dad. Her boyfriend was a drunk who sat around crying. When my parents and I went away for a week on vacation, she smashed him with a baseball bat and he had to be hospitalized.

    And one of my uncles who married into the family… his ex-wife was arrested for planning to kill her boyfriend.

    Looking at the statistics, though, I would say men are about three times more likely to callously murder their itimate partner than women are. So… while women can be as vile in behavior than men – and apparently some really are vile – men make up 3x the wickedness.

  • Karen

    “Mandatory counseling would be more to the point.”

    I think that is an awesome idea, Flora! We should probably ask some professional counselors for the best way to go about counseling, though. If the victim is just dropped off in front of a psychologist, she might feel like the system is butting into her personal business and might be resentful. Then, nothing would be accomplished. A counselor should drive over to the scene and speak with her in a familiar environment.

  • OK

    I did not say that NO women commit violent crimes, and I used the term “highly likely”, not “in all cases”. Also, anecdotal evidence doesn’t really disprove anything.

    http://www.ojp.usdoj.gov/bjs/h.....sextab.htm

    http://www.ojjdp.ncjrs.org/pubs/jvr/1.html

    “Gender. Violent offenses are overwhelmingly committed by males. In the DC study of juvenile violence, of the 2,686 juveniles charged with the 4 most serious person offenses (homicide, rape, robbery, and aggravated assault), 82% were males. The SC homicide study found that 88% of the juveniles who committed homicide between 1992 and 1994 were male. Not surprisingly, males were also more likely to display early signs of aggressive behavior, specifically in the form of bullying. The SC bullying study reveals that males were significantly more likely than females to report bullying their peers and twice as likely as females to engage in physical actions to bully others.”

    I don’t have time right now to do an exhaustive internet search to further prove the point I made, that men commit most of the violent crime in our society (and no one ever talks about it; isn’t it funny how we’re PC about that but the president can’t say “The best person for the job”). Maybe I’ll do it later.

  • Karen

    You said regarding deaths of intimate partners:
    Hmm, if 1,000 to 1,600 women die every year at the hands of their partners, that’s between 2.73 and 4.38 women being killed every day by their partners. So, every once in a while it’s a man who gets killed (and it’s highly likely that he was killed because the woman was defending herself against violence).

    … your part in parenthesis indicates that you believe women are never the instigators of violence and that you believe they are often the innocent victims. The idea that women as pure, innocent victims who can never do any of the wicked crimes men commit is another stereotype of women.
    I agree with you that men are more prone to violence and that men overwhelmingly commit horrific crimes. However, I disagree with the stereotype of women being innocent, victims who typically kill only in self-defense. Women can be just as horrific as the men.

  • OK

    I’m not allowed to post here anymore?

  • OK

    Ok, let me try again:

    Karen, I did not say that women are always innocent victims. It IS however, highly likely that when a woman kills her partner that there is a history of domestic violence on record and she was not protected by the police or the law and defended herself using the other options available to her. It’s a sad state of affairs, and I’m sure there are women who kill “in cold blood” just because they feel like it, but that is much more common for men because they are taught to view women as objects that they own.

    http://home.cybergrrl.com/dv/stat/statbwkill.html

    “A study conducted in Georgia of 226 (96%) of the 235 female inmates currently serving for homicide revealed the presence of domestic violence in more than half of the cases when the woman has killed her significant other, there is some record of a history of domestic abuse. In 60% of the cases where a woman killed her significant other, the woman claims the victim assaulted or abused her at the time of the crime. (Judith Haley, “A Study of Women Imprisoned for Homicide,” Georgia Department of Corrections, June 1992, p. 16)

    Of these murders, 102 were classified as domestic killings. Forty-six women (almost half) claim that their partners beat them regularly, and 38 of these 46 had repeatedly reported domestic violence to the police. (Kathleen O’Shea, “Women on Death Row,” Women Prisoners: A Forgotten Population, Beverly Fletcher, Lynda Dixon Shaver, and Dreama Moon, eds., (Westport, CT: Praeger, 1993) p. 85)

    Women commit 17% of all homicides and a high percentage are committed in big cities such as Houston and Philadelphia. The fear, rage, and entrapment associated with abuse can lead a woman to strike out against her assailant for sheer survival. Unfortunately, killing is often a woman’s safest alternative given the absence of police protection or its ineffectiveness due to state laws requiring injury in a “domestic” before an arrest is mandated. (Evan Stark, “Rethinking Homicide: violence, Race, and the Politics of Gender,” International Journal of Health and Services, vol. 20, No. 1, 1990, p. 18)”

    http://www.allacademic.com//me.....1379-2.php

    “For example, the U.S. Department of Justice (2000) reported that in 1998, 72% of homicide victims in intimate relationships were women. When looking at this rate between 1976 and 1997, the female intimate homicide rate remained stable. However, between 1997 and 1998, it rose by 8%. On the other hand, the male intimate homicide rate decreased by 60 % between 1976 and 1998. Some professionals attribute this decrease to the availability of battered women shelters and crisis centers (Browne 1987).”

    “Even though it appears that most battered women who kill do so in self-defense, the legal system is often extremely hard on them. Usually women who kill their intimate partners have no prior criminal record (Browne 1987; Walker 1989), yet, these women often receive long and severe sentences (Browne 1987). The claim that battered women are getting away with killing their significant others is unfounded (Osthoff 2001). Even with the recognition of battered woman syndrome in the courts, a large majority (70 to 80%) of abused women who were charged for killing their partners accepted plea bargains or were convicted and given long sentences in prison rather than having their cases go to trial or being acquitted (U.S. Bureau of Justice Statistics 1995).”

    “This tends to limit the successfulness of allowing BWS into the courts because many judges, juries, and lawyers still believe the many stereotypes of battered women (Terrance and Matheson 2003). The general public often believes several myths about battered women. First, if the abuse were really that bad for the woman then she would have left the relationship. Second, battered women are just as violent as their partners. Lastly, the public tends to believe that “to be a ‘real battered woman’ the woman must be a timid, literally beaten- down (white) woman who cowers in the corner; ideally she has tried to get outside help and done nothing wrong (i.e. never fought back, is very passive, never uses drugs, never drinks, never yells, is a fabulous mother to her kids, is nice)” (Osthoff 2001, p. 235). ”

    “Not only are battered women who kill punished more severely than men who kill their intimate partners, but they are also treated differently in the courtroom. Jenkins and Davidson (1990) analyzed court manuscripts of self-defense cases and found that prosecutors treated battered women self-defense cases differently than any other type of self-defense cases. In cases where the self-defense involved a battered woman, prosecutors portrayed the abused woman as “evil” (p. 164).”

  • Karen

    You can post… it looks like you were put on moderation… That happened to me after an Obama article was placed here. I did not realize my comments were so offense/battle-ready until then.

  • Sheryl Robinson, Editrix

    Sorry, OK. I’m not sure why that got caught in the spam filter. I’ve liberated it now.

  • karen,

    I meant mandatory counseling for the violent person, not the victim! I remember this was tried in some localities and worked well; perhaps it was required as an alternative to jail.

    Mandatory counseling for the victim might be a good idea too; at least if the man knew the woman was required to go to counseling/support group, she wouldn’t have to keep it secret.