March 10, 2021
Firearms Eligibility: Stalking- and Domestic Violence-Related
Provisions in H.R. 1620
The 117th Congress is considering the Violence Against
Under 18 U.S.C. §2266(a)(10), the term “dating partner”
Women Reauthorization Act of 2021 (H.R. 1620). This bill
refers to a person who is or has been in a social relationship
includes several provisions that seek to reduce firearms-
of a romantic or intimate nature with the abuser; and the
related intimate partner violence (homicides and injury) by
existence of such a relationship is based on a consideration
amending federal law to prohibit persons convicted of
of (1) the length of the relationship; (2) the type of
misdemeanor stalking crimes from receiving or possessing
relationship; and (3) the frequency of interaction between
a firearm or ammunition, as well as revising related
the persons involved in the relationship.
provisions governing domestic violence protection orders
and amending a definition of “intimate partner” under
“Misdemeanor Crime of Stalking”
current law. This bill also includes other provisions related
H.R. 1620 would make any person convicted of a
to leveraging state, local, tribal, and territorial resources to
“misdemeanor crime of stalking” a tenth category of
increase federal investigation and prosecution of firearms-
prohibited persons. The bill would define such a crime as
related eligibility offenses related to domestic violence and
any misdemeanor stalking offense under federal, state,
stalking. The House passed a bill with identical provisions
tribal, or municipal law; and one that (1) is a course of
in the 116th Congress (H.R. 1585).
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
Current law (18 U.S.C. §922(g)) prohibits nine categories
person, or a spouse or intimate partner of that person; or (2)
of persons from receiving or possessing firearms or
causes, attempts to cause, or would reasonably be expected
ammunition; and (18 U.S.C. §922(d)) prohibits any person
to cause, emotional distress to any of those persons.
from transferring or otherwise disposing of a firearm or
ammunition to any person if the transferor has reasonable
The proposed definition is subject to certain mitigating
cause to believe the transferee would be prohibited under
factors. A person would not be considered to have been
one of those nine categories. Two of those categories speak
convicted of a misdemeanor crime of stalking, unless (1)
directly to domestic violence:
the person was represented by counsel in the case, or (2)
they knowingly and intelligently waived the right to counsel
persons under court-order restraints related to
in the case. In the case of a prosecution for a misdemeanor
harassing, stalking, or threatening an intimate
crime of stalking for which a person was entitled to a jury
partner or child of such intimate partner (18 U.S.C.
trial, a person would not be considered convicted in the
§§922(d)(8) and (g)(8)); and
jurisdiction in which the case was tried, unless (1) the case
was tried by a jury; or (2) the person knowingly and
persons convicted of a misdemeanor crime of
intelligently waived the right to have the case tried by a
domestic violence (18 U.S.C. §§922(d)(9) and
jury, by guilty plea, or otherwise.
(g)(9)).
“Protection Orders” or “Court-Order Restraints”
“Intimate Partner” Definition
H.R. 1620 would also expand the scope of “protection
Under current law, the term “intimate partner” means, with
orders” or “court-order restraints” under 18 U.S.C.
respect to a person, the spouse of the person, a former
§§922(d)(8) and (g)(8). Under current law these provisions
spouse of the person, an individual who is a parent of a
prohibit any person from firearms receipt, possession, or
child of the person, and an individual who cohabitates or
transfer, who is subject to a court order that:
has cohabitated with the person (18 U.S.C. §921(a)(32)).
H.R. 1620 would expand this 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. 1620
(C) includes a finding that such person represents a
materially false statement to an FFL is punishable by up to
credible threat to the physical safety of such
10 years’ imprisonment.
intimate partner or child; or by its terms explicitly
prohibits the use, attempted use, or threatened use
The completed and signed Form 4473 serves as the FFL’s
of physical force against such intimate partner or
authorization to initiate the National Criminal History
child that would reasonably be expected to cause
Background Check System (NICS) pursuant to 18 U.S.C.
bodily injury.
§922(t). Administered by the Federal Bureau of
Investigation (FBI), NICS queries several data systems for
H.R. 1620 would substantively amend the domestic
records disqualifying an individual from receiving and
violence protection order prohibition (18 U.S.C. §922(g)(8),
possessing a firearm under federal or state law. NICS will
and §922(d)(8), by reference) to include specifically
respond with one of three instructions: proceed, denied, or
restraining orders under state, tribal, or territorial law that
delayed. In the latter case, a firearms transaction is delayed
are issued after an “ex parte” hearing, and to expand it to
for up to three business days, at which point, the FFL may
include restraining orders related to “witness
proceed with the transaction at his or her own discretion, if
intimidation.” The legal term “ex parte” (“for one party”)
(s)he has not received a final NICS determination.
refers generally to court motions, hearings or orders granted
on the request of and for the benefit of one party only
Following these background checks, the FBI routinely
without the respondent/defendant being present. H.R. 1620
makes referrals to the ATF on persons who have been
would add the following at the end of 18 U.S.C.
denied a firearms transfer (standard denial); and those who
§922(g)(A):
were found to be ineligible, but were transferred a firearm
after the delayed sale period and before a final
in the case of an ex parte order, relative to which
determination of ineligibility (deferred denial). ATF agents
notice and opportunity to be heard are provided—
often refer to such cases colloquially as “lying and trying”
(I) within the time required by State, tribal, or
and “lying and buying,” respectively. In the case of a
territorial law; and (II) in any event within a
deferred denial, based on an FBI-referral and when
reasonable time after the order is issued, sufficient
justified, ATF and/or the chief law enforcement officer
to protect the due process rights of the person.
(CLEO) in the relevant jurisdiction will initiate a firearms
retrieval action. In some cases, denied persons could
Notwithstanding the reference to “due process” in the
potentially be prosecuted for making false statements to an
amending language, this language could potentially
FFL.
generate considerable debate about the balance between due
process and public safety. In addition, at the end of clause
H.R. 1620 includes several provisions designed to increase
18 U.S.C. §922(g)(B), it would add, “intimidating or
NICS denial investigations and prosecutions, particularly in
dissuading a witness from testifying in court,” which may
those cases related to domestic violence and stalking. For
appear less controversial, but critics might observe that
example, provisions of the bill would require NICS to
such language has little to do with domestic violence.
notify certain federal, state, local, and tribal law
Firearms Background Checks and
enforcement agencies about any NICS denial related to
Investigations and Prosecutions of
domestic violence or stalking, including deferred denials
Denied Persons
upon discovery by the FBI. It would also authorize the
Attorney General to cross-deputize state, local, tribal, and
The Gun Control Act of 1968 (GCA; 18 U.S.C. §§922-931)
territorial attorneys and law enforcement officers for the
sets out certain recordkeeping and background check
purposes of investigating and prosecuting NICS denial
requirements for persons licensed federally to deal in
cases.
firearms, otherwise known as federal firearms licensees
(FFLs). The Bureau of Alcohol, Tobacco, Firearms and
In addition, H.R. 1620 would require the Attorney General
Explosives (ATF) Form 4473 is the linchpin of the GCA
to identify no less than 75 jurisdictions with high rates of
recordkeeping process, in addition to the maintenance of a
firearms-related violence among intimate partners, where
bound log of firearms acquisitions and dispositions. As part
local authorities lack the resources to address such violence,
of any firearms transaction between an FFL and an
and prioritize the cross-deputization of state, local, tribal,
unlicensed, private person, both the FFL and prospective
and territorial government attorneys and law enforcement
unlicensed purchaser must truthfully and completely fill
officers to assist these jurisdictions in initiating criminal
out, and sign, an ATF Form 4473.
cases related to NICS denials.
In turn, the FFL must verify the prospective purchaser’s
For further information, see CRS Report R45970, Gun
name, date of birth, state residency, and other information
Control: National Instant Criminal Background Check
by examining government-issued identification, which
System (NICS) Operations and Related Legislation.
typically includes a state-issued driver’s license. The
prospective purchaser attests that they (1) are not a
prohibited person, (2) are who they say they are, and (3) are
William J. Krouse, Specialist in Domestic Security and
the actual buyer. Straw purchases are a federal crime: it is
Crime Policy
illegal to pose as the actual buyer, when in fact you are
IF11784
buying the firearm for another person. Making any


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Firearms Eligibility: Stalking- and Domestic Violence-Related Provisions in H.R. 1620


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https://crsreports.congress.gov | IF11784 · VERSION 1 · NEW

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