The Fraternal Order of Police argued successfully to have the so-called
Lautenberg Amendment nulified. The case was:

No. 97-5304
Fraternal Order of Police, Appellant
v.
United States of America, Appellee
Appeal from the United States District Court for the District of
Columbia

(No. 97cv00145)

The Following article concerns the above-mentioned amendment:

Subject: Domestic Violence Gun Ban

The following appears in the March 1997 issue of the PEACE

NEWSLETTER (PNL), published monthly by the Syracuse Peace Council,

Syracuse, New York. The PNL encourages reproduction of articles as long as

you credit the source, do not alter the text, and provide a copy of the

publication in which a reprint appears.

ARE COPS WHO BATTER ABOVE THE LAW?

THE LAUTENBERG GUN BAN

by Nancy Rhodes

There hasn't been much fanfare. But, since last September 30,

it's been against the law in the US for anyone with a domestic violence

misdemeanor conviction to have a gun or ammunition. And if you know about

it, it's illegal for you to sell or give them either one. Right now the

ban applies to all such convictions no matter how old. And it applies to

some 900,000 police and 1.2 million military.

As a practical matter, a police officer in the US deprived of a

firearm is a police officer unable to work. As a symbolic matter, the

prospect of losing one's gun is highly charged, and often cited as a major

reason officers may not willingly seek assistance for the high incidence

of stress-related difficulties police face. Weapons are used in 30% of all

domestic violence incidents and, according to the FBI, policing has the

highest proportion of batterers of all US occupations. In 1995, 40% of

police asked told the FBI they'd used physical force with a partner in

the past year.

As we go to press, Congressional hearings on the ban begin either

March 5 or 6 in the House Judiciary Committee's subcommittee on crime.

When the 105th Congress reconvened on January 7, the first proposals to

amend the ban were ready. Spearheaded by police lobbies, these would

either overturn its retroactivity (thus preserving some police careers) or

exempt police and military altogether. On January 21 the national

Fraternal Order of Police (FOP) also filed a federal lawsuit in

Washington challenging the ban's constitutionality. Some local police

unions have filed injunctions to halt its enforcement pending judicial

review.

Overall, current and former male partners commit over a million

violent crimes against women yearly, including assault, rape and murder.

Some statistics especially suggest a complex and problematic relationship

of police to battering. Domestic violence is one of the largest categories

of calls to police. In some places, police spend a third of their time

on these incidents. But police are more likely to make formal reports when

the victim doesn't know the offender. Nationally, police response time to

stranger assaults is under five minutes, but averages an hour for domestic

disputes. Research suggests that injuries in all domestic assaults are at

least as severe as those suffered in 90% of violent felonies. Yet the

great majority of domestic violence injuries are rated misdemeanors in

most states. As in other crimes that are vastly under-reported -- rape and

police misconduct are among the most -- domestic violence victims may be

stigmatized and fear retaliation for "telling." Only about 10% of abused

spouses ever call police.

These figures focus on violence to women partners and don't

really scratch the surface of other domestic abuse, say, that between

parents and children. And they don't address violence against women who

are not partners, such as sexual harassment of colleagues on the job.

Out of the blue: a budget rider

Last September 30, President Clinton signed the Omnibus

Consolidated Appropriations Act of 1997 (PL 104-208), preventing

government "shut-down." In its final House version, this carried a "rider"

known as the Lautenberg Gun Ban. Frank Lautenberg (D-NJ) first introduced

this measure separately to amend the 1968 Gun Control Act regarding who

can legally possess a firearm. His original bill passed in the Senate with

a blanket exception 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 showdown. There, Rep. Bob Barr, Jr.

(R-Ga.) picked up the gun ban and deleted the section exempting police and

military. Mark Clark of the Combined Law Enforcement Associations of

Texas (CLEAT) has called this a "critical mistake" made in Barr's "rush to

gut Senator Lautenberg's domestic violence language." But attaching the

revised gun ban to the massive federal budget bill (Section 658) assured

its passage.

The ATF Memo: It's Official

Just before Thanksgiving, on November 26, the Treasury Dept.'s

Bureau of Alcohol, Tobacco and Firearms (ATF) issued an "Open Letter to

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. It 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 Department of Justice and the Treasury.

So ATF's guidelines 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."

The ATF also declared the ban effective "immediately," and said

affected government employees "should relinquish" their weapons at once.

Police Lobbies Swing Into Action

Police groups reacted swiftly, led by the National Association of

Police Organizations (NAPO), the National Law Enforcement Officers Rights

Center (NLEORC), and the Fraternal Order of Police. They planned both

court challenges and imediate legislative amendment. Meanwhile, 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."

By mid-December the FOP had met with Attorney General Janet Reno.

Their endorsement of Bill Clinton was the first time the 277,000-member

FOP had supported a Democrat for president. They and others were

especially angry that his administration asserted the gun ban applied

retroactively. They argued this threatened police careers with convictions

that could be decades old and therefore meaningless in terms of real

danger. National FOP president Gil Gallegos wrote in the "Wall Street

Journal" (1/9/97), "Now, police offices may be penalized to a far greater

degree than the general populace."

But the 1994 Crime Bill imposed a similar prohibition against gun

possession on individuals under orders of protection. Police departments

can still exempt their officers in this case under an "official use

exemption" to federal gun laws (Sec. 19, Title 18 USC). Thus, the very

persons who are actively angry -- dangerous right now -- might still be

re-armed. Three weeks after ATF's open letter, an attorney for the

Combined Law Enforcement Associations of Texas posted an advisory warning,

"...do not allow any of our CLEAT members to be needlessly stripped of

their service weapons" when this option can be used.

Rep. Bob Barr introduced HR 26 to amend the gun ban when Congress

reconvened. FOP officials joined his press conference, announcing the ban

sould apply from the date of enactment onward. Side-stepping his own

deletion of the original police exemption, Barr declared he never intended

the bill to be retroactive. In January's Police Executive Research Forum

(PERF) newsletter, he blamed the Clinton administration for "railroading"

the rider through Congress.

Rep. Bart Stupak (D-Mich.), himself a former state trooper,

offered an alternative amendment, HR 445, to fully restore the exemption

and apply regardless of date.

FOP legislative assistant Timothy Richardson noted Stupak's bill

in a January 22 memo to members, but said the FOP would support Barr's

bill. "Otherwise we may be characterized as arguing for a 'special' or

'elite' class of domestic abusers."

Not all police groups have agreed with the FOP. The "Minnesota

Police Journal" (2/1/97) speculated that Barr, recipient of thousands of

National Rifle Association campaign dollars, scuttled the gun ban

exemption in retaliation for national police groups' differences with the

NRA over repeal of the Brady Gun Control Law and the Waco-Ruby Ridge

hearings. MPJ concluded, "We really need our exemption restored."

Indeed, by mid-February, a dozen new bills in Congress would

exempt police from various consequences other citizens face. But as we go

to press, of confirmed witnesses for the March hearings who support

amending the ban, only the NAPO representative will speak for Stupak's

exemption bill.

"Effective Immediately..."

Scattered national coverage of the gun ban's effect on police

began in early December. Wire services have carried reports of some police

departments "scrambling" to complete record searches and taking some guns.

"The Los Angeles Times" (12/28/96) reported some 40 sheriff's deputies,

and as many LAPD officers, might be affected.

But in many communities there seems to be no rush to comply. This

is partly a matter of "wait and see" as various challenges grind into

motion. Partly it's a matter of massive work. Although these misdemeanors

are "finger-printable" offenses in New York State, there's many a possible

slip in actual practice between offense, charges, convictions,

notification and dismissal.

Locally, Sheriff Kevin Walsh told me, "We've had to do some

checking for deputies who are participating on federal task forces and

needed to be certified. For 575 deputies it's much more complex. We'd

respond to anything brought to our attention. It's not as easy as a

criminal history check. I have very mixed feelings about this."

Jeff Piedmonte, president of the Syracuse Police Benevolent

Association, says police should be exempt because "it's our profession. I

haven't been asked [if I have such a conviction], and I don't know of any

[officer] who has. That doesn't mean they aren't checking on us."

Inspector Richard Boynton, until January the long-time head of

SPD's Internal Affairs, says he ran that check. "I couldn't come up with

one domestic violence misdemeanor conviction for an active Syracuse police

officer. Personnel couldn't cite a case either."

SPD Deputy Chief Steven Thompson confirms that check and added, "I

don't think an exemption is right, but it might go that way."

Sgt. Josephine Townsend of the NYS Police, part of the local

Domestic Violence Coalition, observed that the ban's "scope is what people

are concerned about, whether there's an appeals process, whether someone

could be affected in a way the law never intended."

State Police Public Records Officer in Albany, Timothy Howard,

would not say how many state troopers might be affected. "We are sincerely

looking to comply with the law, but it's a matter of balancing

confidentiality. WE need to establish what we will say publicly about how

we are doing this. I can say that ordinarily we would be made aware of any

arrests of any officer. It does become problematic in larger communities,

when officers go on vacation, when they have worked in other states."

Glann Valle, NYSP's Chief Counsel, called shortly after I talked

to Howard. "We are requiring all of our 4,000 members to respond and

inform us of ANY misdemeanor convictions. We expect to complete this in

the next couple weeks. I would say it's extremely unlikely any of our

members will be affected."

Such not-in-our-ranks assurances were sometimes joined by a

favorite illustration of one argument against the gun ban: the 16

year-old arrested for fighting with an abusive parent, who decided to be a

cop at 32 after the Army, and now could lose retirement at 50. But if

police are not being convicted of these crimes, the question becomes, are

they being charged to begin with? The Arlington Law Enforcement Institute

reports that over 80% of police say they wouldn't favor firing a fellow

officer for domestic assault, even after a second sustained complaint.

Since February 2, the FOP Grand Lodge has been preparing for that

hearing in the House by particularly soliciting information on officers

affected in 12 states, including New York, whose rep. Charles Shumer is

the subcommittee's ranking Democrat.

....

Nancy writes often on police accountability and human rights issues. Past

editor of "Policing by Consent," she is on PNL's editorial committee.

[SIDEBAR]

POSTSCRIPT: THE PBA PHONES HOME...

In early February the Syracuse PBA began conducting its 1997 fund

drive. Mostly, contracted telemarketers handle this, and one called me on

February 4. Ironically, she told me I could assist Syracuse's battered

women's shelter, Vera House, by contributing to the PBA. This was the only

example of PBA community service she offered. Might such callers be

scripted to mention Vera House to prospective donors who are women? I

wasn't told whether my contribution might fund a challenge to the domestic

violence gun ban, for example, or go to represent officers avoiding the

Citizen Review Board.

Vera House's Randi Bregman confirmed the PBA did contribute to

Vera House's White Ribbon Campaign last year. But Vera House does not

solicit funds by phone, would prefer direct contributions and will be

communicating with Syracuse PBA about their fund drive. Contributions or

further questions to Toni Bennett, c/o Vera House, P.O. Box 365, Syracuse

13209, 425-0818.

*****