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Cogesoa Reeac ServiceU
March 29, 2019
Firearms Eligibility: Stalking- and Domestic Violence-Related
Provisions in H.R. 1585
On March 27, 2019, the House Committee on the Judiciary
reported, as amended, the Violence Against Women
Reauthorization Act of 2019 (H.R. 1585). This bill includes
several provisions that seek to reduce firearms-related
intimate partner violence (homicides and injury) by
amending federal law to prohibit persons convicted of
misdemeanor stalking crimes from receiving or possessing
a firearm or ammunition, as well as revising related
provisions governing domestic violence protection orders
and a definition of intimate partner under current law.
This bill also includes other provisions related to leveraging
state, local, tribal, and territorial resources to increase
federal investigations and prosecutions of firearms-related
eligibility offenses related to domestic violence and
stalking.
Prohibited Persons and Domestic
Violence
Under current law, 18 U.S.C. §922(g) prohibits nine
categories of persons from receiving or possessing firearms
or ammunition; and 18 U.S.C. §922(d) prohibits any person
from transferring or otherwise disposing of a firearm or
ammunition to any person if the transferor has reasonable
cause to believe the transferee would be prohibited under
one of those nine categories. Two of those categories speak
directly to domestic violence:
persons under court-order restraints related to
harassing, stalking, or threatening an intimate
partner or child of such intimate partner (18 U.S.C.
§§922(d)(8) and (g)(8)); and
persons convicted of a misdemeanor crime of
domestic violence (18 U.S.C. §§922(d)(9) and
(g)(9)).
Intimate Partner Definition
Under current law, the term intimate partner means, with
respect to a person, the spouse of the person, a former
spouse of the person, an individual who is a parent of a
child of the person, and an individual who cohabitates or
has cohabitated with the person (18 U.S.C. §921(a)(32)).
H.R. 1585 would expand the intimate partner definition
to include
a dating partner or former dating partner (as defined
in section 2266 [of Title 18, United States Code]);
and
any other person similarly situated to a spouse who
is protected by the domestic or family violence laws
of the State or tribal jurisdiction in which the injury
occurred or where the victim resides.
Under 18 U.S.C. §2266(a)(10), the term dating partner
refers to a person who is or has been in a social relationship
of a romantic or intimate nature with the abuser; and the
existence of such a relationship is based on a consideration
of: (1) the length of the relationship; (2) the type of
relationship; and (3) the frequency of interaction between
the persons involved in the relationship.
Misdemeanor Crime of Stalking
H.R. 1585 would make any person convicted of a
misdemeanor crime of stalking a tenth category of
prohibited persons. The bill would define such a crime as
any misdemeanor stalking offense under federal, state,
tribal, or municipal law; and one that in a course of
harassment, intimidation, or surveillance of another person
that places that person in reasonable fear of material harm
to the health or safety of her or himself, an immediate
family member of that person, a household member of that
person, or a spouse or intimate partner of that person; or
that causes, attempts to cause, or would reasonably be
expected to cause emotional distress to any of those
persons.
The proposed definition is subject to certain mitigating
factors. A person would not be considered to have been
convicted of a misdemeanor crime of stalking, unless (1)
the person was represented by counsel in the case, or (2)
they knowingly and intelligently waived the right to counsel
in the case. In the case of a prosecution for a misdemeanor
crime of stalking for which a person was entitled to a jury
trial, a person would not be considered convicted in the
jurisdiction in which the case was tried, unless (1) the case
was tried by a jury; or (2) the person knowingly and
intelligently waived the right to have the case tried by a
jury, by guilty plea, or otherwise.
Protection Orders or Court-Order Restraints
H.R. 1585 would also expand the scope of protection
orders or court-order restraints under 18 U.S.C.
§§922(d)(8) and (g)(8). Under current law these provisions
prohibit any person from firearms receipt, possession, or
transfer, who is subject to a court order that:
(A) was issued after a hearing of which such person
received actual notice, and at which such person had
an opportunity to participate;
(B) restrains such person from harassing, stalking,
or threatening an intimate partner of such person or
child of such intimate partner or person, or
engaging in other conduct that would place an
intimate partner in reasonable fear of bodily injury
to the partner or child; and
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