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

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

Updated April 11, 2022
Firearms Eligibility: Stalking- and Domestic Violence-Related
Provisions in H.R. 1620
In March 2022, the 117th Congress passed the Violence
has cohabitated with the person (18 U.S.C. §921(a)(32)).
Against Women Act [VAWA] Reauthorization Act of
H.R. 1620 would have expanded this definition to include
2022, by folding a Senate-introduced bill, S. 3623, into the
Consolidated Appropriations Act, 2022 (P.L. 117-103). The
a dating partner or former dating partner (as defined
VAWA reauthorization includes the NICS Denial
in section 2266 [of Title 18, United States Code]);
Notification Act of 2022, provisions of which require the
and
Attorney General to notify federal, state, tribal, territorial,
and local authorities about NICS denials within 24 hours,
any other person similarly situated to a spouse who
and to cross-deputize those authorities to increase federal
is protected by the domestic or family violence laws
investigation and prosecution of firearms-related eligibility
of the State or tribal jurisdiction in which the injury
offenses tied to domestic violence.
occurred or where the victim resides.
Under 18 U.S.C. §2266(a)(10), the term “dating partner”
In March 2021, the House passed a VAWA reauthorization
refers to a person who is or has been in a social relationship
bill (H.R. 1620) that included similar NICS denial
of a romantic or intimate nature with the abuser; and the
notification provisions in a House-passed VAWA
existence of such a relationship is based on a consideration
reauthorization bill, H.R. 1620. However, the House-passed
of (1) the length of the relationship; (2) the type of
bill included other provisions that were not enacted under
relationship; and (3) the frequency of interaction between
P.L. 117-103. Those House-passed provisions in H.R. 1620
the persons involved in the relationship.
would have amended federal law to (1) prohibit persons
convicted of misdemeanor stalking crimes from receiving
“Misdemeanor Crime of Stalking”
or possessing a firearm or ammunition; (2) revise related
H.R. 1620 would have made any person convicted of a
provisions governing domestic violence protection orders;
“misdemeanor crime of stalking” a tenth category of
and (3) redefine the term “intimate partner” to capture
prohibited persons. It would have defined such a crime as
“former dating partners,” as a means to close off the
“boyfriend loophole.”
any misdemeanor stalking offense under federal, state,
The House previously passed a bill
tribal, or municipal law; and one that (1) is a course of
with provisions similar to those in H.R. 1620 in the 116th
harassment, intimidation, or surveillance of another person
Congress (H.R. 1585).
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
person, or a spouse or intimate partner of that person; or (2)
Current law (18 U.S.C. §922(g)) prohibits nine categories
causes, attempts to cause, or would reasonably be expected
of persons from receiving or possessing firearms or
to cause, emotional distress to any of those persons.
ammunition; and (18 U.S.C. §922(d)) prohibits any person
from transferring or otherwise disposing of a firearm or
The proposed definition would have been subject to certain
ammunition to any person if the transferor has reasonable
mitigating factors. A person would not have been
cause to believe the transferee would be prohibited under
considered to have been convicted of a misdemeanor crime
one of those nine categories. Two of those categories speak
of stalking, unless (1) the person was represented by
directly to domestic violence:
counsel in the case, or (2) they knowingly and intelligently
waived the right to counsel in the case. In the case of a
persons under court-order restraints related to
prosecution for a misdemeanor crime of stalking for which
harassing, stalking, or threatening an intimate
a person was entitled to a jury trial, a person would not
partner or child of such intimate partner (18 U.S.C.
have been considered convicted in the jurisdiction in which
§§922(d)(8) and (g)(8)); and
the case was tried, unless (1) the case was tried by a jury; or
persons convicted of a misdemeanor crime of
(2) the person knowingly and intelligently waived the right
domestic violence (18 U.S.C. §§922(d)(9) and
to have the case tried by a jury, by guilty plea, or otherwise.
(g)(9)).
“Protection Orders” or “Court-Order Restraints”
“Intimate Partner” Definition
H.R. 1620 would have also expanded the scope of
“protection orders” or “court-order restraints” under 18
Under current law, the term “intimate partner” means, with
U.S.C. §§922(d)(8) and (g)(8). Under current law these
respect to a person, the spouse of the person, a former
provisions prohibit any person from firearms receipt,
spouse of the person, an individual who is a parent of a
possession, or transfer, who is subject to a court order that:
child of the person, and an individual who cohabitates or
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Firearms Eligibility: Stalking- and Domestic Violence-Related Provisions in H.R. 1620
(A) was issued after a hearing of which such person
prospective purchaser attests that they (1) are not a
received actual notice, and at which such person had
prohibited person, (2) are who they say they are, and (3) are
an opportunity to participate;
the actual buyer. Straw purchases are a federal crime: it is
illegal to pose as the actual buyer, when in fact you are
(B) restrains such person from harassing, stalking,
buying the firearm for another person. Making any
or threatening an intimate partner of such person or
materially false statement to an FFL is punishable by up to
child of such intimate partner or person, or
10 years’ imprisonment.
engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury
The completed and signed Form 4473 serves as the FFL’s
to the partner or child; and
authorization to initiate the National Criminal History
Background Check System (NICS) pursuant to 18 U.S.C.
(C) includes a finding that such person represents a
§922(t). Administered by the Federal Bureau of
credible threat to the physical safety of such
Investigation (FBI), NICS queries several data systems for
intimate partner or child; or by its terms explicitly
records disqualifying an individual from receiving and
prohibits the use, attempted use, or threatened use
possessing a firearm under federal or state law. NICS will
of physical force against such intimate partner or
respond with one of three instructions: proceed, denied, or
child that would reasonably be expected to cause
delayed. In the latter case, a firearms transaction is delayed
bodily injury.
for up to three business days, at which point, the FFL may
H.R. 1620 would have substantively amended the domestic
proceed with the transaction at his or her own discretion, if
violence protection order prohibition (18 U.S.C. §922(g)(8),
(s)he has not received a final NICS determination.
and §922(d)(8), by reference) to include specifically
restraining orders under state, tribal, or territorial law that
Following these background checks, the FBI routinely
are issued after an “ex parte” hearing, and to expand it to
makes referrals to the ATF on persons who have been
include restraining orders related to “witness
denied a firearms transfer (standard denial); and those who
intimidation.” The legal term “ex parte” (“for one party”)
were found to be ineligible, but were transferred a firearm
refers generally to court motions, hearings or orders granted
after the delayed sale period and before a final
on the request of and for the benefit of one party only
determination of ineligibility (deferred denial). ATF agents
often refer to such cases colloquially as “lying and trying”
without the respondent/defendant being present. H.R. 1620
and “lying and buying,” respectively. In the case of a
would have added the following at the end of 18 U.S.C.
§922(g)(A):
deferred denial, based on an FBI-referral and when
justified, ATF and/or the chief law enforcement officer
in the case of an ex parte order, relative to which
(CLEO) in the relevant jurisdiction will initiate a firearms
retrieval action. In some cases, denied persons could be
notice and opportunity to be heard are provided—
prosecuted for making false statements to an FFL.
(I) within the time required by State, tribal, or
territorial law; and (II) in any event within a
H.R. 1620 and S. 3623 included several similar provisions
reasonable time after the order is issued, sufficient
designed to increase NICS denial investigations and
to protect the due process rights of the person.
prosecutions, particularly in those cases related to domestic
Notwithstanding the reference to “due process” in the
violence and stalking. The provisions in S. 3623 were
amending language, this language was potentially a source
enacted under the NICS Denial Notification Act of 2022
of debate about the balance between due process and public
(P.L. 117-103). This act amends the GCA to require the
safety.
Attorney General to notify certain federal, state, tribal, and
local law enforcement agencies about any NICS denial
Firearms Background Checks and
within 24 hours. It also requires the Attorney General to
Investigations and Prosecutions of
report to Congress annually on the number of NICS denials,
Denied Persons
denials overturned on appeal, and denials investigated. In
The Gun Control Act of 1968 (GCA; 18 U.S.C. §§921-931)
addition, the act authorizes the Attorney General to cross-
sets out certain recordkeeping and background check
deputize state, tribal, territorial, and local government
requirements for persons licensed federally to deal in
prosecutors and law enforcement officers for the purposes
firearms, otherwise known as federal firearms licensees
of investigating and prosecuting NICS denial cases. In
(FFLs). The Bureau of Alcohol, Tobacco, Firearms and
addition, the act requires the Attorney General to identify
Explosives (ATF) Form 4473 is the linchpin of the GCA
no less than 75 jurisdictions with high rates of firearms-
recordkeeping process, in addition to the maintenance of a
related violence among intimate partners, where local
bound log of firearms acquisitions and dispositions. As part
authorities lack the resources to address such violence, and
of any firearms transaction between an FFL and an
prioritize the cross-deputization of state, tribal, territorial,
unlicensed, private person, both the FFL and prospective
and local government prosecutors and law enforcement
unlicensed purchaser must truthfully and completely fill
officers to assist those 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
William J. Krouse, Specialist in Domestic Security and
name, date of birth, state residency, and other information
Crime Policy
by examining government-issued identification, which
typically includes a state-issued driver’s license. The
IF11784
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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 3 · UPDATED