Why Give Violent Domestic Abusers a Gun?

How the Supreme Court’s definition of violence today will affect the number of gun injuries tomorrow.

domestic abuse.
Domestic violence perpetrators use guns against their partners with alarming frequency.

Photo by Lofilolo/iStock/Thinkstock

The Supreme Court is poised to decide whether those people frequently responsible for killing police, committing mass murders, and shooting their partners should have greater access to firearms. Today, the court heard arguments in U.S. v. Castleman, a challenge to a provision of the federal  law that bans anyone who’s been convicted of a domestic violence misdemeanor involving force from possessing a firearm. If the court agrees to narrow the definition of what “force” means, more people will be shot by their partners, more law enforcement personnel will be hurt, and we may be less likely to stop future mass killings.

The data show that domestic violence perpetrators use guns to threaten, kill, assault, and intimidate their partners. Guns are the most common weapon used in intimate partner homicides. What most of us don’t know is that these armed offenders are also responsible for 14 percent of the line-of-duty deaths of police officers and that domestic violence has been found to be linked to more than half of the mass shootings committed in the U.S. between 2009 and 2013. In a case-by-case study of incidents of shootings of four or more people that took place during that time, more than half the time the perpetrator killed their former or current intimate partner, as well as others present, both in homes and in public.

In 2009, federal agents prosecuted James Alvin Castleman for dealing arms on the black market. They also charged him with two counts of possessing a firearm in violation of the federal law that bars gun possession by a person convicted of a qualifying domestic violence misdemeanor. Back in 2001, Castleman pleaded guilty to having caused bodily injury to the mother of his child, a misdemeanor crime of domestic violence in Tennessee. So far so good: Federal law says a conviction for a domestic violence misdemeanor means no guns. Castleman was convicted of a domestic violence misdemeanor so no guns.

Castleman disagrees. The question before the Roberts court is whether a misdemeanor conviction of domestic violence like Castleman’s bars him from obtaining a weapon under the federal law. The legal dispute boils down to which state domestic violence misdemeanors meet the federal requirement of a “domestic violence misdemeanor,” which involves the “use or attempted us of physical force.” The law was intended to track the state assault and battery laws, which usually punish either intentional forcible acts, or intentionally causing harm, or both. But Castleman contends that force alone is not enough; a statute would have to require “violent” force to qualify. The 6th Circuit agreed with him, concluding that bodily injury could only be caused by force, they meant “real” force—you know, the violent kind.

On appeal, both sides circle around Johnson v. U.S—a 2010 case that probed the meaning of “violent felony” under the Armed Career Criminal Act. Even though the court explicitly stated that its logic in Johnson should not be used to interpret the domestic violence misdemeanor language, Castleman feels it should apply to his case, which would add a “violence” requirement to the federal gun prohibition. Either way, federal courts have been divided on this question of whether the gun restriction applies to all domestic abusers convicted of a misdemeanor involving physical force—or merely those where the physical force is “strong” or violent.”

All this dancing on the head of the Johnson pin masks two under-recognized connections among armed domestic violence perpetrators: police officer deaths and mass shootings. If the Tennessee decision is allowed to stand, it will significantly reduce prosecutors’ ability to keep us all out of harms’ way.

Domestic violence perpetrators use guns against their partners with alarming frequency. Being shot by an intimate partner is the most common cause of intentional death of women in this country. In intimate heterosexual relationships, two-thirds of the women killed by their partner die by gunshot. (Most gun-involved crimes involve men killing other men they know; among gay and lesbian couples, gay men are more likely to be victims of intimate partner gun-related homicide than are gay women.) Studies have shown that the presence of a gun in a home plagued by partner violence increases the risk of homicide by a factor of six and that people threatened or hurt with a gun in an intimate relationship were 20 times more likely to be killed. (The use of a gun greatly increases the odds that any violence will result in a fatality.)

Homicides are the most dramatic conclusions of cases of partner violence, but guns are frequent and integral parts of other forms of partner violence, such as nonlethal physical harm, threats, and coercion. Access to guns exacerbates the harm to victims even if the trigger is never pulled—a recent study showed that 65 percent of women in emergency domestic violence shelters who lived in a home with a gun had been threatened or intimidated by it. Mock execution, which may consist of holding an unloaded gun to a person’s head and pulling the trigger, is considered a form of psychological torture.

We hear very little about the fact that police officers consider domestic incidents some of their most dangerous calls. Between 1996 and 2009, 14 percent of officers killed in the line of duty were responding to a domestic incident, and 97 percent of them were killed with a gun. Domestic violence makes up the largest category of calls to which police respond and represents 17 percent of the violent crimes in this country. When the perpetrator is armed, not only is the victim at much greater risk of serious harm or death, but so is the responding officer. These statistics probably explain why three national and out-of-state police organizations filed friend-of-the-court briefs in this case. The experts responsible for our safety, the folks who carry guns for a living, want this federal provision to stand unchanged.

But perhaps the most surprising implication of narrowing the federal protection is its connection to mass shootings. While the nation agonizes over how to reduce the number of mass killings like those in Newtown, Conn., and Aurora, Colo., we shouldn’t ignore the fact that this federal law can serve as an effective tool to prevent some of them. An analysis of 93 mass shootings committed between 2009 and 2013 found that more than half—57%—started as the murder of a current or former intimate partner, bringing down others along the way.

Notably, the Washington, D.C., sniper, John Allen Muhammad, was originally detained for violating a federal law that prohibits anyone subject to a domestic violence order of protection from possessing a firearm. That initial arrest permitted law enforcement to build the case needed to prosecute him successfully for his shooting spree. All of his target locations were places his former wife, Mildred Muhammad, frequented. Much of the mass shooting debate has focused on access to guns by individuals who are mentally ill, but a recent report by the American Psychological Association included a recommendation to restrict access to guns for convicted domestic violence offenders as well. 

The stated goal of the federal law at play in Castleman is to keep “firearms out of the hands of domestic abusers.” The 6th Circuit interpretation would eviscerate that goal. Under the appeals court’s definition of violent force, almost no domestic violence misdemeanors would qualify. According to the government’s brief, domestic violence convictions in nearly two-thirds of the states at the time the federal ban passed would be exempt, since those state laws have no requirement of actual physical force (similar to the Tennessee law). If this new definition prevails, states wishing to avoid this provision would have to begin carefully crafting misdemeanors that fall short of the new inflated standard, and a carefully tailored, evidence-based approach to managing access to firearms would be removed from our toolkit.

The Tennessee decisions fly in the face of everything we know about the lethal combination of partner violence and guns. When the most common cause of intentional homicide of women is intimate partner violence, when police officers are more likely to be killed responding to a domestic incident than to a burglary, when there is popular support for removing guns from domestic violence offenders, and when there is a known correlation between perpetrators of domestic violence and mass murderers, why would we possibly eviscerate a provision that can and does help us to curb these tides?

(Disclosure: Barasch assisted in preparing an amicus brief in the case, and her husband is a named attorney on the brief.)