Under federal law, individuals convicted of a misdemeanor crime of domestic violence are forbidden from purchasing firearms. Known as the Domestic Violence Offender Gun Ban, or the “Lautenberg Amendment,” persons convicted of domestic abuse or who are subject to a restraining order are prohibited from transporting or owning guns or ammunition anywhere in the United States. The law also applies to gun dealers who attempt to sell guns to such persons.
While no specific permits apply to rifles and shotguns, the state of New York is notoriously strict about handgun possession. Only those holding a valid pistol license may purchase a handgun, and the weapon must be registered with the state. Also, the gun must be transported in accord with state law.
However, the differences between how New York state and federal domestic violence statutes are applied has created a gap in the law where the information from those found guilty of domestic violence crimes in New York courts is not always transmitted to the National Instant Criminal Background Check System (NICS), which is commonly used for background checks of those purchasing firearms.
Under the new statute, when a defendant is convicted of a domestic violence offense in New York, the court will determine whether the crime is applicable to the federal domestic violence statute and if so, transmit the defendant’s information to the Division of Criminal Justice Services that passes it on to the NICS.
The impact of the new law on police officers could be significant. If an officer charged with domestic assault is also subject to a restraining order, he or she would not be allowed to carry a firearm in the course of his or her work. Such would be the case Roger Roth, a Town of Newburgh police officer who was arrested and charged with assault last June. Police responded to domestic dispute at Roth’s home in Montgomery, and he was accused of hitting a woman in the face with a drinking glass.
Also important is the prevalence of domestic violence in police officers’ own homes. According to the National Center for Women and Policing (NCWP), more than 40 percent of police officer families experience domestic violence, compared to 10 percent of families in the general population. The new statute is particularly critical in situations where an accused abuser has a gun, knows where the victim lives as well as the locations of battered women’s shelters, and knows enough about the legal system to manipulate statements and accusations to avoid prosecution. The added protection of knowing that abusers cannot legally access their service weapons could change the way victims report abuse.
NCWP also reports that victims often fear calling the police, because they know the case will be handled by other officers who, more often than not, know their abuser personally. They also fear that responding officers will automatically side with their abuser and fail to properly investigate or document the crime.
For those officers who are investigated, the penalties are often benign. Many are assigned to attend anger management or some type of domestic violence counseling. These concessions are usually made in light of the exemption in the federal gun ban specifically created for police officers. Essentially, officers may carry their service weapon while on duty under the “official use exemption” unless a protective order specifically indicates that the officer may not carry a firearm at any time, or departmental policy prohibits him from carrying a weapon while subject to an order.
Further, most police department policies require an officer to report that an order of protection was issued, so that an internal determination can be made about placing the officer on administrative duty (where no weapon may be carried). However, supervisors may see the order of protection as a marital dispute or a “he said, she said” situation that does not warrant any reassignment or disciplinary action.
Also, some officers may plea to charges other than domestic violence to avoid any implications on their ability to carry a weapon. Under the new law, courts will specifically review motions for protective orders to determine if the official use exemption will apply.
Illegal possession of a loaded firearm in New York is a class C violent felony, punishable by a minimum mandatory term of 3 1/2 years and a maximum of 15 years. As such, domestic abuse convictions and domestic violence protective orders carry considerable consequences for police officers.
Accusations of abuse can have a severe impact on a person’s life, especially if that person is a law enforcement officer. If you have been accused of domestic violence, speak with an experienced criminal defense attorney.