NYSCADV MEMORANDUM OF SUPPORT 

 A. 5257 Paulin

 REQUIRES THE IMMEDIATE SURRENDER OF FIREARMS FOR INDIVIDUALS CONVICTED OF MISDEMEANOR CRIMES OF DOMESTIC VIOLENCE

(click on memo title above for pdf version)

BACKGROUND 

Domestic violence offenders with access to firearms pose a grave risk to their victims: 

  • Access to firearms increases the risk of intimate partner homicide by more than five times compared to cases where the perpetrators do not have weapons. In addition, abusers who possess guns tend to inflict the most severe abuse on their partners (1). 
  • Keeping guns out of the hands of people convicted of a misdemeanor crime of domestic violence increases the safety of victims of domestic violence. 

FEDERAL LAW 

The 1968 Federal Gun Control Act prohibits anyone convicted of a felony from possessing a firearm. This act was amended in 1996 to include anyone convicted of a misdemeanor crime of domestic violence, defined by Title 18, United States Code (USC), Section 922(g)(9)2 as an offense that: 

  • is a misdemeanor under federal, state, or tribal law; 
  • has as an element of the use or attempted use of physical force or the threatened use of a deadly weapon; and 
  • at the time the offense was committed, the defendant was: 
    • a current or former spouse, parent or guardian of the victim; 
    • a person with whom the victim shares a child in common; 
    • a person who is cohabiting with or has cohabitated with the victim as a spouse, parent, or guardian; or 
    • a person who was or is similarly situated to a spouse, parent, or guardian of the victim. 

NEW YORK STATE LAW 

New York State reiterates this prohibition by clearly stating on all Orders of Protection issued by criminal and family courts that it is a “federal crime to buy, possess or transfer a handgun, rifle, shotgun or other firearm or ammunition after a conviction of a domestic violence-related crime involving the use or attempted use of physical force or a deadly weapon against an intimate partner or family member, even after this Order has expired. (18 USC 922(g)(8), 922(g)(9), 2261, 2261A, 2262).” 

A law passed in 2011 closed a significant gap related to holding offenders convicted of misdemeanor crimes of domestic violence accountable in New York State. Chapter 258 of 2011 changed the way the New York State Division of Criminal Justice Services (DCJS) provides information to the National Instant Criminal Background Check System (NICS), which is the NYSCADV Supports A.5257 Paulin database that is used to determine eligibility for purchasing a firearm. Before the passage of this law, persons convicted in New York State of a misdemeanor crime of domestic violence were not identified in NICS because New York did not convey two critical elements needed for a misdemeanor crime of domestic violence to be identified: 

  1. The relationship between the victim and the defendant; and 
  2. Clarity that the offense involved the use of, or attempted use of physical force or the threatened use of a deadly weapon. 

Thankfully, this loophole was closed and persons convicted of a misdemeanor crime of domestic violence in New York State will now be identified if they try to acquire a firearm from a Federal Firearms Licensee (FFL). However, a significant loophole still remains – the process for surrendering currently owned firearms required by federal law is unclear and inconsistently applied on the state level. This bill resolves this potentially fatal gap by clearly dictating what should happen upon entry of a judgment of conviction of a misdemeanor crime of domestic violence and a court determination that the defendant is barred from possessing firearms. 

CLOSING THE LOOPHOLE 

This bill closes the loophole by describing the process for those convicted of a misdemeanor crime of domestic violence to surrender their firearms. A.5257 directs the court to require defendants convicted of a misdemeanor crime of domestic violence to inform the court of all firearms, rifles, and shotguns (antique or otherwise) owned or possessed by the defendant, after which the court shall order their immediate surrender. The court will then be required to notify the appropriate law enforcement agencies and direct them to receive the surrendered firearms. The storage and disposition of those firearms, rifles and shotguns will be conducted as per existing New York State Law. (3) 

Holding offenders accountable for their crimes is key to reducing domestic violence. Removing firearms from domestic violence offenders convicted of misdemeanor crimes of domestic violence will save lives.

REFERENCES

(1) J.C. Campbell, D; Webster, J; Koziol-McLain, C. R; et al. 2003. Risk Factors For Femicide in Abusive Relationships: Results From A Multi-Site Case Control Study. American Journal of Public Health. 93(7). 

(2) United States Department of Justice. Information Needed to Enforce the Firearm Prohibition. Misdemeanor Crimes of Domestic Violence Brochure. November 2007. Accessed on 3/1/2011 at http://www.fbi.gov/about-us/cjis/nics/general-information/mcdvbrochure.pdf 

(3) Penal Law §400.05(6) dictates this process