NC, federal law out of sync on gun ban for abusers

Posted February 6, 2016

— Despite new laws in several states designed to protect victims of domestic abuse from gun violence, advocates say the North Carolina legislature is unlikely to take similar action anytime soon.

South Carolina lawmakers passed a measure last summer aimed at combating violence that contributed to the murder of hundreds of women by current and former husbands and boyfriends over the past decade. Among the provisions in the bill were increased penalties for violators, including lifetime or temporary gun bans.

Such bans are critical for protection from domestic violence, advocates say, because of the danger posed soon after victims report abuse.

Durham County Courthouse For some domestic violence victims, justice takes time

North Carolina courts can require the surrender of firearms in some domestic violence cases under state laws already on the books. But victims' advocates say state legislators can do far more to protect the abused from gun violence.

FBI data analyzed by the Associated Press show that at least 250 people in North Carolina have been killed by guns in domestic homicides between 2006 and 2014, an average of about 27 a year. That includes cases where the shooting is committed by the victims' current, common-law or ex-spouse as well as by boyfriends and girlfriends.

The figure is likely an undercount, because law enforcement agencies report the data voluntarily and inconsistently to the federal government.

Matching the national trend, four out of five domestic homicide victims in North Carolina are women, according to the AP's analysis.

State law permits judges to require those served with domestic violence protection orders to surrender their firearms and concealed carry permits given several high-risk lethality factors, like threats of serious injury or suicide. Defendants in these cases can get their weapons back when the order expires depending on other legal factors, such as the outcome of their criminal cases.

Amily McCool, legal and policy director for the North Carolina Coalition Against Domestic Violence, has seen these cases firsthand.

Prior to last summer, McCool said, judges had wider latitude to order the surrender of firearms, even when the circumstances of the case didn't meet the criteria defined in the state statute. But a state Court of Appeals decision in June 2015 vacated one such gun ban after finding the judge in the case failed to literally check the boxes on the protection order indicating which threat factors applied.

McCool said this move by the appeals court in Stancill v. Stancill "tied the hands of our judges," who now have fewer options at a dangerous period for victims.

"We know during this time when a victim has left the abuser and is going through transition, that is the highest lethality time," McCool said. "It's when we are most concerned about abusers killing their partners."

By making the surrender of firearms available only in certain cases, she said, the state's measure conflicts with federal law, which makes possessing guns a crime for anyone subject to a protective order. But with the resources of prosecutors' offices tied up elsewhere, McCool said they're unlikely to provide much protection for victims.

"You're still violating federal law, but the problem is: who is going to enforce it?" she said.

Although there have been recent measures in North Carolina addressing domestic violence and guns, McCool said several had the potential to roll back existing protections rather than strengthen them. A 2015 bill to overhaul firearms regulations, for example, originally sought to reduce a lifetime ban on concealed carry permits for those convicted of domestic violence-related crimes to just three years.

The day before it passed the state House, however, Rep. Rena Turner, R-Iredell, forwarded an amendment to keep that lifetime ban in place. As a former clerk of Superior Court, Turner said she was well acquainted with the recurring patterns of domestic abusers.

"We know from statistics and experience that most people in abusive relationships, even if they leave someone, the next person is going to have to deal with it," Turner said.

The amendment passed overwhelmingly with bipartisan support, which is not surprising to lobbyists like Alex Miller, who pushed for the amendment on behalf of the coalition.

"Protecting victims of domestic violence is not a partisan issue. It's a universal issue," Miller said.

That's true of the volunteer gun rights advocacy group Grass Roots North Carolina, according to President Paul Valone.

His organization backed a bipartisan measure passed by in 2005 that allowed victims under the protection of a domestic violence order to obtain emergency concealed carry permits.

In general, he said Grass Roots NC doesn't have a problem with court orders compelling abusers to surrender their guns, provided they have an opportunity to defend themselves in court.

"Offenders should be addressed," Valone said. "But like anybody else, they need due process."

He said he takes issue with "ex-parte" protection orders – temporary measures issued without the defendant present when the court rules the case an emergency. He said his group would also oppose attempts to bring state law in line with federal restrictions that automatically require the surrender of guns under a permanent domestic violence order – without regard to risk factors.

"Anything which deprives an individual of civil rights without due process is something we would oppose vociferously," he said.

McCool contends that ex-parte cases still require a judge to review the evidence before issuing a protective order as an emergency measure. It's also temporary, requiring both parties to return to court within 10 days before a judge grants a more permanent order.

"There's due process in a sense that there are legal standards that have to be met before a judge can give this order," McCool said.

The federal gun ban applies only to permanent orders.

Turner said the discrepancy between state and federal law may require some clarification, possibly as part of a larger overhaul of the state's patchwork of domestic violence statutes.

Whether to bring North Carolina's gun ban up to the federal standard "would certainly be part of the conversation," Turner said, but she would need more input to see what makes sense.

"We don't want to make our gun laws so we infringe on people's rights," Turner said. "But we have to figure out where to draw the line."

She said the state does have work to do in consolidating and expanding the services offered to domestic violence victims, but those tweaks are unlikely to come until 2017.

Giving judges more discretion to implement gun bans in domestic violence cases – effectively reversing the effects of the Stancill case – would be a good start, McCool said.

Lawmakers are generally constrained in the upcoming short legislative session by a legislative rule that requires bills to have already passed one chamber of the General Assembly.

But McCool said there are ways around that rule, as lawmakers have demonstrated in the past.

"Whether legislators will see that the safety of victims is an emergency need that can't wait until 2017, I don't know," McCool said. "There may be a legislator that decides this is so important it can't wait."

1 Comment

Please with your WRAL.com account to comment on this story. You also will need a Facebook account to comment.

Oldest First
View all
  • Robert Fotch Jr Feb 9, 2016
    user avatar

    I call BS on this entire article. First off, what part of shall not be infringed do these people not understand? Rights are not the governments to take, they're rights, period! And second, if someone wishes to do harm to someone, they certainly don't need a gun to do it. This is nothing more than an illegal gun grabbing tactic by our corrupt politicians.