Domestic Violence and Federal Firearms Laws

• Publication year: 2004
• Pages: 61
• Citation: Vol. 33 No. 9 Pg. 61

33 Colo.Law. 61 Colorado Lawyer 2004.

2004, September, Pg. 61. Domestic Violence and Federal Firearms Laws

Vol. 33, No. 9, Pg. 61

The Colorado Lawyer
September 2004
Vol. 33, No. 9 [Page 61]

Departments
CBA Family Violence Program
Domestic Violence and Federal Firearms Laws
by Timothy Johnson

This department is published quarterly to provide information about domestic violence and CBA Family Violence Program activities

Timothy Johnson, Boulder, Colorado, is Deputy District Attorney for the Boulder County District Attorney's Office - (303) 441-1619; tjohnson@co.boulder.co.us. Johnson is assigned to the Sex Crimes and Domestic Violence Unit and is Senior Domestic Violence Prosecutor for Boulder County prosecuting felony sex crimes and domestic violence cases. He also is responsible for law enforcement trainings for Boulder County, is an EVAW (Ending Violence Against Women) statewide trainer, and a member of the High Risk and Lethality Group within CDAC (Colorado District Attorney's Council)

On June 22, 1999, Simon Gonzales was able to purchase a 9mm handgun and thirty rounds of ammunition, despite the fact that his wife had taken out a restraining order against him.1 During the morning of June 23, 1999, Simon Gonzales drove to the Castle Rock Police Department and opened fire. A short time later, he died after being shot by police. Officers found his three children inside Gonzales's vehicle, whom he had already shot and killed. Under federal law, Gonzales should not have been able to purchase the firearm.2

In March 1999, Colorado disbanded the state-level group responsible for running background checks on individuals purchasing firearms in Colorado. Without that agency, individual firearm dealers in Colorado were responsible for calling into the National Instant Check System ("NICS") for background checks. The NICS is a national database containing information relating to orders of protection and other data used by firearm dealers doing background checks pursuant to the Gun Control Act of 1968 ("GCA").3 For whatever reason, the Gonzales restraining order was listed only in the Colorado Crime Information Center ("CCIC") and not in the NICS database. If officials performing the instant check had reviewed CCIC, Gonzales would have been unable to purchase the firearm.

Following the tragedy in Castle Rock, Governor Bill Owens reinstated the Colorado InstaCheck Unit. This Unit checks both the local Colorado databases and the federal NICS database before approving the sale of a firearm. In the following year, 638 gun purchases (nearly two each day) were denied based on the existence of a restraining order.4 In May 2004, fourteen gun sales were stopped in Colorado because there was an active protection order in place.5 However, blocking the purchase of firearms by people who are prohibited under the GCA to purchase them is only a partial solution to ending violent crime in this state.6 Despite efforts by prosecutors and judges at the state level, gun violence against intimate partners continues to plague Colorado.

This article discusses the GCA's two major amendments addressing domestic violence and firearms. Taking simple steps to prohibit the possession of firearms by prohibited parties is necessary to help ensure victim safety and stop domestic violence involving firearms. An understanding of the federal law and how it can be enforced locally may assist local authorities, including the judiciary, to impose orders empowering effective state enforcement of gun control.

Federal Gun Control

On January 27, 2000, Rick Walters went to his ex-wife's residence in a drunken state, armed with a .30 caliber, short-barreled, semi-automatic rifle.7 He owned several other weapons, including rifles and shotguns. When he arrived, he began shooting his estranged family. Eight-year-old Jennifer, pretending to be dead and shot multiple times, hid under the bedcovers until officers arrived. When they arrived, they found Jennifer's little brother, mother, and infant sibling dead. They also found Rick Walters dead of a self-inflicted gunshot wound.

The domestic relations courts had granted a permanent restraining order against Rick Walters on August 6, 1998,8 but law enforcement was not involved because there had been no reported instances of domestic violence. Even though there were no official reports, those involved in the domestic relations case noted several "red flags" indicating a significant risk of future domestic violence.9 However, the restraining order contained no provisions regarding Walters's possession of firearms and no provisions requiring him to relinquish them.10

This is but one example. Between 1976 and 1996, 65 percent of victims of intimate partner homicides in the United States were killed with a firearm.11 In response to the increased number of domestic violence homicides, especially those caused by firearms, Congress recently enacted two domestic violence provisions, amending the GCA.12 The first provision, enacted in 1994, is called the Protective Order Gun Ban.13 The second, enacted in 1996, is entitled the Domestic Violence Misdemeanor Gun Ban.14

Although the GCA has been around for quite some time, there is a general misunderstanding about its interplay with Colorado law. Colorado law contains several separate firearms provisions within the criminal and protection order statutes which often stand alone from the federal provisions. Unfortunately, Colorado law and the GCA do not mesh seamlessly to keep firearms away from domestic violence offenders; the two laws leave...