Domestic violence and firearms: a deadly combination: the juxtaposition of federal and Florida laws.

• Author: Karan, Amy

"Rose Mary Hollifield is able to walk, talk, and function despite the bullet buried deep within her brain." (1) Rose Mary is both a victim and a survivor of domestic violence. In 1997, she was trying to escape her violent marriage, when her husband, Donald Vick, pulled in front of her car and shot a bullet through the window into her left temple.

Unfortunately, this tragedy was predictable. It was predictable because there were "red flags" indicating that Vick was capable of shooting Rose Mary. At a domestic violence protection order hearing, Rose Mary told a judge that Vick, "threatened to kill her every time she tried to leave him." The judge entered the restraining order, and ordered Vick to counseling.

Notwithstanding, on Christmas Day of 1996, Vick violated the restraining order and police officers seized a gun believed to be thrown from his car during a high-speed chase. Despite stating "I'm going to blow you all away," Vick was released on bond two days later. Two weeks later, in January of 1997, he kept his promise and gunned Rose Mary down.

Today Rose Mary suffers from headaches, dizziness, double vision, and memory loss. Intangible wounds and scars have penetrated her soul and will linger forever. However, in comparison to other unfortunate domestic violence cases, Rose Mary's story has a happy ending; she lived.

National studies confirm the fact that firearms and domestic violence is a deadly combination. Family and intimate assaults involving firearms are 12 times more likely to end in fatality than those not associated with firearms. (2) Households with guns are almost eight times more likely to involve a firearm homicide by a family member or intimate acquaintance than homes without guns. (3) Two-thirds of intimate partner homicides in the U.S. are committed using guns. (4) One-fourth of intimate offenders killed themselves after killing the victim with a gun. (5)

Most domestic homicide firearms are kept in the home where the homicide occurred, and one out of every four battered women who attempt suicide use the gun located in their homes. (6) Abusers who use guns to kill their intimate partners may also injure or kill innocent third parties, including children, interveners, and innocent bystanders. (7) In light of such alarming statistics, federal and state lawmakers have responded by passing laws prohibiting abusers and stalkers from possessing firearms and ammunition.

Civil Orders of Protection and the Prohibition of Firearms Possession

In 1994, the Violence Against Women Act's amendment to the Gun Control Act of 1968 made it a federal crime for a person who is subject to a qualifying order of protection to possess, ship, or receive a firearm or ammunition which has been shipped or transported in interstate or foreign commerce. (8) A "qualifying" order means that the court order must be issued after a hearing where the restrained person received actual notice, and where the person had an opportunity to participate. (9) Basically, a qualifying order conforms to basic concepts of due process. Further, the court order must restrain the person from harassing, stalking, or threatening an intimate partner or child of such person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. (10) Additionally, the court order must include a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibit the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury. (11)

Federal law defines "intimate partner" as the spouse of the person, former spouse of the person, a parent of a child of the person, and/ or a person who cohabitates or has cohabited with the person. (12) It should be noted that dating relationships, where the partners have never resided together, are not included. (13)

Mere "knowing" possession of a firearm or ammunition while subject to a qualifying order will support a criminal prosecution. The order of protection does not need to include any "magic language," and the respondent does not have to commit any other chargeable violation to violate the law. Therefore, crossing out the firearm prohibition language on a preprinted form or failing to check or initial the box reciting the prohibition will not exempt an otherwise qualifying order from qualifying status.

Official Use Exemption

Federal law provides an "official use exemption" for law enforcement officers and/or officers employed by any department, agency, or political subdivision of the U.S., as well as active military personnel, who are subject to a qualifying order of protection. (14) This exemption permits the restrained individual to retain their official firearm while on official duty.

The Bureau of Alcohol, Tobacco and Firearms (ATF) has specified that the federal firearm prohibition may not be enforced against police officers or active military personnel if their official duties require the possession of the firearm at all times and that the exemption applies only to...