In its final House version, Rep. Frank Lautenberg (D-NJ) attached the "rider" known as the Lautenberg Gun Ban, altering the 1968 Gun Control Act. The rider made it illegal for anyone with a domestic violence misdemeanor conviction to possess a gun or ammunition. The original bill passed in the Senate with a blanket exemption for government employees who use guns in their official duties.
Lautenberg's bill then arrived in the House during the feverish last days of the 104th Congress budget showdown. There, Rep. Bob Barr (R-Ga.) picked up the gun ban and deleted the section exempting police and military. Attaching the revised gun ban to the massive federal budget bill (Section 658) assured its passage. It was signed into law by president Clinton on September 30, 1996.
Just before Thanksgiving, on November 26, the Treasury Department's Bureau of Alcohol Tobacco and Firearms (ATF) issued an "Open Letter to all State and Local Law Enforcement Officials" on the Lautenberg gun ban. The ATF said the ban "does apply to all law enforcement officers" and applies retroactively, meaning that any law enforcement personnel who have ever had a misdemeanor domestic violence conviction are barred from possessing a firearm. As a practical matter, application of the ban to affected law enforcement personnel precludes them from working in their profession.
The ATF memo also clarified "domestic violence misdemeanor conviction" as meaning actual or attempted physical force or the threat of a deadly weapon. Because only 15 states and the District of Columbia have defined domestic violence misdemeanors, the remaining 36 states must follow guidelines developed by the Departments of Justice and the Treasury. So ATF's guideline included any misdemeanor that involves physical force, whether or not specifically defined as domestic violence, according to the relationship of the parties. A "defined party" can be a current or former spouse or co-habitant, parent, guardian, person sharing a child, or a "person similarly situated."
According to the FBI, policing has the highest proportion of domestic batterers of all U.S. occupations. In 1995, 40 percent of police surveyed by the FBI said they had used physical force against a domestic partner in the previous year.
The ATF memo declared the ban effective "immediately," and said affected government employees "should be encouraged to relinquish" their weapons at once.
The National Association of Police Organizations (NAPO), National Law Enforcement Officers Rights Center (NLEORC), and the Fraternal Order of Police (FOP) all reacted swiftly, announcing plans for both court challenges and immediate legislative amendment. An FOP advisory posted to the national police discussion list serve following the ATF memo said, "We urge officers to refuse to answer any and all questions regarding previous misdemeanor convictions until first consulting an attorney."
A number of amendments have been proposed for consideration by the 105th Congress. Rep. Bob Barr introduced HR 26 to amend the gun ban to apply only to domestic violence convictions from the date of enactment forward. Rep. Bart Stupak (D-Mich.), himself a former state trooper, offered an alternative amendment, HR 445, to fully restore the exemption. As we go to press, we are unaware of the status of these amendments.
Meanwhile, law enforcement agencies are pursuing a variety of courses to determine which of their personnel are affected by the gun ban. Many agencies ask their officers to "self-report" previous domestic violence misdemeanor convictions. The Wisconsin Department of Corrections offers one example of this type of "compliance," according to an article in the AFSCME Local 32 Newsletter (March 1997).
"The department of justice has now informed law enforcement agencies that they must now move to adhere to the new law," the AFSCME advises its newsletter readers. "As you might imagine, this has created some problems throughout the entire country, the department of corrections is now asking people to self report themselves (sic). While we as a Union do not support any type of violence, we believe the way that DOC is going about this is wrong. We have been told that unless you can possess a firearm, there is no place for you, and you will be terminated." PLN is unaware of whether, or how many, WI prison guards have self-reported.
The Ohio Department of Rehabilitation and Corrections, with more than 8,000 employees at 29 state prisons, also asked its employees to "self-report." The department announced in April that 100 guards were being reassigned to "less sensitive posts," and have had their weapons cards taken away. Under a new policy, according to department spokesperson Andrea Dean, anyone seeking. a job as an Ohio prison guard who has "domestic violence or related charges" will not be hired.
Nancy Rhodes writes in the 3/97 issue of Peace Newsletter that another "self-report" agency is the New York state police. She spoke with Glenn Valle, NYSP's Chief Counsel.
'We are requiring all of our 4,000 members to respond and inform us of any misdemeanor convictions," he told Rhodes. "We expect to complete this in the next couple of weeks. I would say it is extremely unlikely any of our members will be effected."
Other law enforcement agencies are "running checks" on their employees. Inspector Richard Boynton of the Syracuse (NY) police department told Rhodes that he ran a check and "couldn't come up with one domestic violence misdemeanor conviction for an active Syracuse police officer. Personnel couldn't cite a case either."
Litigation is the response of some law enforcement groups. The Police Benevolent Association (PBA) of Florida filed a lawsuit in federal court in Tallahassee asking that the Lautenberg amendment be declared unconstitutional. Florida has some 40,000 law enforcement officers and about 30,000 prison guards and probation and parole officers. PBA lawyer Hal Johnson said the Florida Department of Law Enforcement estimated about 1,000 officers could be affected, but the law agency said it didn't know where that figure originated.
The PBA sued on behalf of its 31,000 members. One of the plaintiffs was Lt. Amon C. Burt, who pleaded guilty in 1975 to a misdemeanor after being charged with assault and battery against his wife. Burt, who later divorced, paid a $35 fine. About nine years later he was hired as a prison guard by the Okaloosa Correctional Institution. Johnson says that because of the ban Burt can't carry a gun, and risks losing his job.
The reaction from law enforcement overall has been varied. Pete Brodie, president of the Association for Los Angeles Deputy Sheriffs commented: "You don't see them going after butchers and taking their knives away when they have some kind of domestic violence, or plumbers taking their wrenches away. It seems like they're targeting us."
On the other end of the reaction spectrum, Miami police Maj. Bill O'Brien said: "Domestic violence is obviously an incredible problem in our country. It's not the first time police officers are held to a higher standard, and I don't feel like [the ban] is totally inappropriate."
One thing is certain. It may be years before the dust settles on this one. In the meantime, ask your local law enforcement agency what they're doing to comply. We will update our readers of any significant developments in this area of law.
[Editor's Note: Major portions of this article were excerpted from "Are Cops Who Batter Above the Law?" by Nancy Rhodes, who writes often on police accountability and human rights issues for Peace Newsletter.]
Associated Press, AFSCME Local 32, Columbus Dispatch, NY Times
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