GUNS FOR ABUSERS
The 5th Circuit Court (Texas, Louisiana, Mississippi) ruled it was unconstitutional for individuals with a PFA (protection from abuse) order against them to have their 2nd Amendment rights removed. This Circuit Court ruling does not directly impact Delaware, but lays the groundwork for legal challenges in courts that do hold jurisdiction over our state.
We understand this is a bit of a long read, but hang in there! It’s important you understand the history of PFAs, why we have them, and why they fail before we explain our support for the ruling.
WHY WE HAVE THEM
Domestic violence across the country was historically termed “Wife Beating”. It was permitted, encouraged, and regulated to ensure it wasn’t taken to far. It wasn’t criminalized in Delaware until 1974.
“ “...a husband, as master of his household, could subject his wife to corporal punishment or “chastisement” so long as he did not inflict permanent injury upon her.”
Spousal rape was a whole different issue. Unless the rape was accompanied by extreme physical violence it wasn’t considered a crime at all. By 1993 spousal rape was finally criminalized in all states.
Despite the prohibition of spousal abuse and rape, many courts ignored the federal outlawing of these crimes and state lawmakers were reluctant to address it legislatively. This led to numerous acquittals, and hundreds of domestic abusers were granted immunity in efforts to “protect the privacy of family and promote domestic harmony.”
“ “[T]he very being or legal existence of the woman is suspended during the marriage, or at
least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything .. .””
One New Jersey case in 1975, State v Smith, dives deep into the breakdown of common law and how it presented issues for women who sought justice against their husbands or ex-husbands. The case was also a win for the victim.
Unfortunately, after being outlawed, domestic abuse incidents/complaints were almost immediately transferred from the criminal court system to the family court system. This made it near impossible to charge and prosecute an abuser.
Women were still being abused, stalked, assaulted, raped, and/or murdered at great numbers by their spouses/former spouses. Strong women’s rights movements in the 70’s urged for more to be done.
RE-ENTER the Protection From Abuse Order from the 18th Century.
“ (A, the wife of B, supplicated us that, since she is under grave and manifest threat of her life and the mutilation of her limbs because of the aforesaid B), and so on. Under terms of the writ, the husband is to be summoned and required to guarantee that he will not do, or cause to be done, any harm or evil to her body, other than licitly and reasonably pertains to a husband for ruling and chastising his wife.”
PFA’s are written “orders” issued by a family court judge that are intended to deter an abuser from making contact with their victim(s) in efforts to prevent further violence. Written into modern day orders, as implemented by VAWA, is a requirement that the abuser “voluntarily relinquish” their 2nd amendment rights and turn over any firearms.
It is hard to believe the Legislative body didn’t knowingly implement bogus and unenforceable PFAs as a benefit to themselves when, for example
They knew enough about the Constitution not to use concrete legal terms such as “confiscation” or “removal”, instead using “voluntary relinquishment”.
There is no historical documentation of the removal of rights through civil court procedures, only criminal adjudication.
To this day, domestic abuse has yet to be addressed legislatively on a state level and Federal laws are mere minimal.
Domestic/intimate partner abuse and rape convictions require a higher burden of proof than those same acts if committed upon a stranger in a criminal court of law.
WHY THEY FAIL
There are zero provisions that allow states to circumvent the legal process and remove rights without following the appropriate legal avenue. While protecting the rights of the victim and the accused, the Constitution provides a legal avenue for the violent to be removed from society, be held accountable, and forfeit their right to deadly weapons.
In order to remove any civil right from an individual, a criminal adjudication MUST take place through a criminal court proceeding. PFA orders are a civil action through Family Court proceedings where one judge makes a ruling.
In Ex Parte (emergency) hearings the accused aren’t usually even present when deemed guilty. Additionally, the burden of proof required is much lower in a civil proceeding than what is legally required to remove a fundamental right.
As states began criminalizing violence within marriages at the behest of strong women’s rights movements, it would be hard to imagine abusers immediately being willing to abandon their patriarchal rule to craft laws that would lead to actual legal consequences. The fact that they simply copied and pasted old 18th Century “security bonds” and renamed them “protection from abuse orders” shows a lack of desire for true change.
In order for a law, regulation, or policy to be ruled unconstitutional an individual or group of individuals must be subjected to a violation of their rights. At which point, a lawsuit can be filed by the aggrieved individual or group of individuals disenfranchised by the violation.
PFA orders that require the voluntary relinquishment of 2nd Amendment rights violate multiple Amendments to the Constitution.
Right to keep and bear arms- 2nd Amendment
Protection against illegal search and seizure of personal property -4th Amendment
Due process- 5th Amendment
Right to a trial- 6th Amendment
The right to a jury trial and an attorney- 7th Amendment
The confiscation of firearms- 8th Amendment
The right of private property- 9th Amendment
This is exactly what happened in Texas. A man, who was subject to a PFA, was found to possess a handgun and a rifle in his place of residence when he was served a warrant for separate crimes.
When a Federal Grand Jury filed charges against him for possessing those firearms the grounds for a lawsuit were created. The result of that lawsuit demanded his conviction to be overturned for that one charge and solidified the fact that the removal of fundamental rights cannot be accomplished through a civil proceeding.
“As the Government acknowledges, historical surety laws did not prohibit public carry, much less possession of weapons, so long as the offender posted surety. See also id. at 2149 (noting that there is “little evidence that authorities ever enforced surety laws”). ”
“10 Accord David B. Kopel & Joseph G. S. Greenlee, The Federal Circuits’ Second Amendment Doctrines, 61 St. Louis L.J. 193, 244 (2017) (“[T]here is simply no tradition—from 1791 or 1866—of prohibiting gun possession (or voting, jury service, or government service) for people convicted of misdemeanors or subject to civil protective orders.”); ”
The above quotes are taken directly out of the ruling from the 5th circuit court. It seems it was already known that the right to possess firearms wasn’t debatable outside of a criminal court of law.
When a PFA is served, the accused has 2 options
Voluntarily admit they have firearms and willingly turn them over to police, an FFL, or family member for storage until the PFA is no longer valid or a criminal adjudication takes place.
Check a box that says they do not/no longer own/possess firearms
Once this happens, the law enforcement officer emails the court that issued the PFA, notifying the court that they served the order. No further action is required to be taken. No search and seizure. No confiscation. No demand for alleged violent abusers to show proof they do not own or possess deadly weapons. Further action by state/local law enforcement would put them at risk of being sued on a grand scale for deprivation of rights.
WHY WE SUPPORT THE RULING
The answer is simple. Victims deserve more than bogus pieces of paper left over from the patriarchal rule for the purpose of protecting the abuser’s “privacy” and “estate”. Considering our depth of knowledge about history and the Constitution, it’s hard not to be frustrated over the huge gamble lawmakers took and are continuing to take with the lives of so many by
A ) Gaslighting victims into believing their abuse isn’t deserving of prosecution and
B ) Manipulating victims into a false sense of security that can lead to serious injury or death
The landmark Supreme Court ruling in Gonzales v Town of Castle Rock is the perfect example of the multitude of failures when utilizing protection orders.
Mrs. Gonzales followed the law to a T and was granted a permanent restraining order against her husband for herself and children. Mr. Gonzales violated the order of protection and abducted the children. Despite multiple calls to law enforcement for help, help never arrived.
Ultimately, Mr. Gonzales killed all 3 of his children before committing “suicide by cop”.
Mrs. Gonzales sued the Town of Castle Rock for failing to uphold the order of protection they issued her. She lost and the court ruled, “an officer of the law has no duty to protect.”
We are of the firm belief, if states took violence against women seriously at all, states would not continue to offer mere pieces of paper that have failed for centuries.
Delaware has averaged over 20 THOUSAND applications for orders of protection and/or modifications to existing orders each year for the past 4 years. While the majority of abusers do refrain from seriously violating protection orders, a great number of victims report continuous phone calls to their home, cell phones, and work along with verbal threats, harassment and stalking. All of which are crimes that continue to go without prosecution and leave women looking over their shoulders in fear while abusers pay a mere fine to the state.
As we witnessed in April 2021, five people were shot to death by subjects of protection orders just days apart in two completely separate cases, one in Smyrna and one in Clayton.
Despite the astounding amount of domestic violence incidents in Delaware, we aren’t any better off today than years ago when it comes an adequate solution. While the implementation of PFAs was viewed as a win in its time, it seems to have been nothing more than an intentional appeasement.
Considering 68.2% or two-thirds of mass shootings are related to domestic/intimate partner violence, we would think our state would want to address this complex and extremely dangerous root cause. Rather, they continue to craft restrictive gun-control laws that only deny victims an adequate tool of protection while failing to prevent violence across the board.
This is why our mission statement exists. Our goal is to educate women so that they can live with less fear and more freedom. By providing necessary and accurate information to members of the community they are far better prepared to advocate for positive changes that actually enhance women’s and public safety.
The bottom line…. STOP ACCEPTING LESS THAN YOU DESERVE. The crimes committed in domestic violence situations are heinous violations of your human rights, no matter your gender, and impact generation after generation.
If you are a victim of domestic violence, you deserve justice. You deserve more than an appeasement. You deserve to be taken seriously. Just as strong women have fought throughout history for change, we must continue that fight now.
Join us in creating change here in Delaware for all victims of domestic and intimate partner violence!
