March 29, 2019
Firearms Eligibility: Stalking- and Domestic Violence-Related
Provisions in H.R. 1585
On March 27, 2019, the House Committee on the Judiciary
Under 18 U.S.C. §2266(a)(10), the term “dating partner”
reported, as amended, the Violence Against Women
refers to a person who is or has been in a social relationship
Reauthorization Act of 2019 (H.R. 1585). This bill includes
of a romantic or intimate nature with the abuser; and the
several provisions that seek to reduce firearms-related
existence of such a relationship is based on a consideration
intimate partner violence (homicides and injury) by
of: (1) the length of the relationship; (2) the type of
amending federal law to prohibit persons convicted of
relationship; and (3) the frequency of interaction between
misdemeanor stalking crimes from receiving or possessing
the persons involved in the relationship.
a firearm or ammunition, as well as revising related
provisions governing domestic violence protection orders
“Misdemeanor Crime of Stalking”
and a definition of “intimate partner” under current law.
H.R. 1585 would make any person convicted of a
This bill also includes other provisions related to leveraging
“misdemeanor crime of stalking” a tenth category of
state, local, tribal, and territorial resources to increase
prohibited persons. The bill would define such a crime as
federal investigations and prosecutions of firearms-related
any misdemeanor stalking offense under federal, state,
eligibility offenses related to domestic violence and
tribal, or municipal law; and one that in a course of
stalking.
harassment, intimidation, or surveillance of another person
that places that person in reasonable fear of material harm
Prohibited Persons and Domestic
to the health or safety of her or himself, an immediate
Violence
family member of that person, a household member of that
Under current law, 18 U.S.C. §922(g) prohibits nine
person, or a spouse or intimate partner of that person; or
categories of persons from receiving or possessing firearms
that causes, attempts to cause, or would reasonably be
or ammunition; and 18 U.S.C. §922(d) prohibits any person
expected to cause emotional distress to any of those
from transferring or otherwise disposing of a firearm or
persons.
ammunition to any person if the transferor has reasonable
cause to believe the transferee would be prohibited under
The proposed definition is subject to certain mitigating
one of those nine categories. Two of those categories speak
factors. A person would not be considered to have been
directly to domestic violence:
convicted of a misdemeanor crime of stalking, unless (1)
the person was represented by counsel in the case, or (2)
persons under court-order restraints related to
they knowingly and intelligently waived the right to counsel
harassing, stalking, or threatening an intimate
in the case. In the case of a prosecution for a misdemeanor
partner or child of such intimate partner (18 U.S.C.
crime of stalking for which a person was entitled to a jury
§§922(d)(8) and (g)(8)); and
trial, a person would not be considered convicted in the
jurisdiction in which the case was tried, unless (1) the case
persons convicted of a misdemeanor crime of
was tried by a jury; or (2) the person knowingly and
domestic violence (18 U.S.C. §§922(d)(9) and
intelligently waived the right to have the case tried by a
(g)(9)).
jury, by guilty plea, or otherwise.
“Intimate Partner” Definition
“Protection Orders” or “Court-Order Restraints”
Under current law, the term “intimate partner” means, with
H.R. 1585 would also expand the scope of “protection
respect to a person, the spouse of the person, a former
orders” or “court-order restraints” under 18 U.S.C.
spouse of the person, an individual who is a parent of a
§§922(d)(8) and (g)(8). Under current law these provisions
child of the person, and an individual who cohabitates or
prohibit any person from firearms receipt, possession, or
has cohabitated with the person (18 U.S.C. §921(a)(32)).
transfer, who is subject to a court order that:
H.R. 1585 would expand the “intimate partner” definition
to include
(A) was issued after a hearing of which such person
received actual notice, and at which such person had
a dating partner or former dating partner (as defined
an opportunity to participate;
in section 2266 [of Title 18, United States Code]);
and
(B) restrains such person from harassing, stalking,
or threatening an intimate partner of such person or
any other person similarly situated to a spouse who
child of such intimate partner or person, or
is protected by the domestic or family violence laws
engaging in other conduct that would place an
of the State or tribal jurisdiction in which the injury
intimate partner in reasonable fear of bodily injury
occurred or where the victim resides.
to the partner or child; and
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Firearms Eligibility: Stalking- and Domestic Violence-Related Provisions in H.R. 1585
(C) includes a finding that such person represents a
10 years’ imprisonment. The completed and signed Form
credible threat to the physical safety of such
4473 serves as the FFL’s authorization to initiate the
intimate partner or child; or by its terms explicitly
National Criminal History Background Check System
prohibits the use, attempted use, or threatened use
(NICS) pursuant to 18 U.S.C. §922(t). Administered by the
of physical force against such intimate partner or
Federal Bureau of Investigation (FBI), NICS queries
child that would reasonably be expected to cause
several data systems for records disqualifying an individual
bodily injury.
from receiving and possessing a firearm under federal or
state law. NICS will respond with one of three instructions:
H.R. 1585 would substantively amend the domestic
proceed, denied, or delayed. In the latter case, a firearms
violence protection order prohibition (18 U.S.C. §922(g)(8),
transaction is delayed for up to three business days, at
and §922(d)(8), by reference) to include specifically
which point, the FFL may proceed with the transaction at
restraining orders under state, tribal, or territorial law that
his or her own discretion, if he or she has not received a
are issued after an “ex parte” hearing, and to expand it to
final NICS determination, either proceed or denied.
include restraining orders related to “witness
Nevertheless, the FBI nearly always processes a
intimidation.” The legal term “ex parte” (“for one party”)
background check until a final NICS eligibility
refers generally to court motions, hearings or orders granted
determination is made.
on the request of and for the benefit of one party only
without the respondent/defendant being present. H.R. 1585
Following these background checks, the FBI routinely
would add the following at the end of 18 U.S.C.
makes referrals to the ATF on persons who have been
§922(g)(A):
denied a firearms transfer (standard denial); and those who
were found to be ineligible, but were transferred a firearm
in the case of an ex parte order, relative to which
after the delayed sale period before a final determination of
notice and opportunity to be heard are provided—
ineligibility (deferred denial). ATF agents often refer to
(I) within the time required by State, tribal, or
such cases colloquially as “lying and trying” and “lying and
territorial law; and (II) in any event within a
buying,” respectively. In the case of a deferred denial,
reasonable time after the order is issued, sufficient
based on an FBI-referral and when justified, ATF and/or the
to protect the due process rights of the person.
chief law enforcement officer (CLEO) in the relevant
jurisdiction will initiate a firearms retrieval action.
Notwithstanding the reference to “due process” in the
amending language, this language could potentially
With regard to NICS denials in general, denied persons
generate considerable debate about the balance between due
could potentially be prosecuted for making false statements
process and public safety. In addition, at the end of clause
to an FFL. However, the Government Accountability Office
18 U.S.C. §922(g)(B), it would add, “intimidating or
reported in September 2018 that few individuals are
dissuading a witness from testifying in court,” which may
federally prosecuted for such offenses. For FY2016-
appear less controversial, but critics might observe that
FY2017, six individuals were prosecuted for standard
such language has little to do with domestic violence.
denials and 19 for deferred denials, even though the ATF
Firearms Background Checks and
referred 23,777 such cases to its field divisions for
Investigations and Prosecutions of
investigation. (See GAO-18-440, Few Individuals Denied
Denied Persons
Firearms Are Prosecuted and ATF Should Assess Use of
Warning Notices in Lieu of Prosecutions.)
The Gun Control Act of 1968 (GCA, 18 U.S.C. §921 et al.)
sets out certain recordkeeping and background check
H.R. 1585 includes several provisions designed to increase
requirements for persons licensed federally to deal in
NICS denial investigations and prosecutions, particularly in
firearms, otherwise known as federal firearms licensees
those cases related to domestic violence and stalking. For
(FFLs). The Bureau of Alcohol, Tobacco, Firearms and
example, provisions of the bill would require NICS to
Explosives (ATF) Form 4473 is the linchpin to the GCA
notify certain federal, state, local, and tribal law
recordkeeping process, in addition to the maintenance of a
enforcement agencies about any NICS denial related to
bound log of firearms acquisitions and dispositions. As part
domestic violence or stalking, including deferred denials
of any firearms transaction between an FFL and an
upon discovery by the FBI. It would also authorize the
unlicensed, private person, both the FFL and prospective
Attorney General to cross-deputize state, local, tribal, and
unlicensed purchaser must truthfully and completely fill
territorial attorneys and law enforcement officers for the
out, and sign, an ATF Form 4473.
purposes of investigating and prosecuting NICS denial
cases. In addition, the bill would require the Attorney
For his or her part, the FFL must verify the prospective
General to identify no less than 75 jurisdictions with high
purchaser’s name, date of birth, state residency, and other
rates of firearms-related violence among intimate partners,
information by examining government-issued
where local authorities lack the resources to address such
identification, which most often probably includes in part a
violence, as a criterion for prioritizing the cross-
state-issued driver’s license. The prospective purchaser
deputization of state, local, tribal, and territorial
attests to three things, that he or she: (1) is not a prohibited
government attorneys and law enforcement officers to assist
person, (2) is who he or she says he or she is, and (3) is the
in criminal cases related to NICS denials.
actual buyer. Straw purchases are a federal crime: It is
illegal to pose as the actual buyer, when in fact you are
William J. Krouse, Specialist in Domestic Security and
buying the firearm for another person. Making any
materially false statement to an FFL is punishable by up to
Crime Policy
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Firearms Eligibility: Stalking- and Domestic Violence-Related Provisions in H.R. 1585

IF11157


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