By Alaina Bergerstock, Albany Government Law Review
Research shows that a victim of domestic violence is more likely to end up dead if the batterer has a gun in his possession. The Department of Justice reports that of all domestic abuse cases that ended in death, two-thirds of the victims were killed by guns. On August 1, 2011 Governor Andrew Cuomo signed domestic violence firearm protection legislation. The purpose of the law is to ensure that individuals convicted of domestic violence related misdemeanors in New York State are prevented from purchasing firearms.
If an individual is convicted of a domestic violence misdemeanor or if an individual has a protection order against them, they cannot possess a firearm. Despite federal legislation in effect, there was a need in New York for new domestic violence firearm protection legislation, however. The recently signed legislation was needed because “differences between New York state and federal domestic violence statutes has created a gap in the law where the information from those found guilty of domestic violence crimes in New York courts is not transmitted to the National Instant Criminal Background Check System ( “NICS”).” NICS is used for background checks when an individual legally attempts to purchase a firearm. Cuomo’s newly signed legislation corrects this problem. Under the new legislation once an individual is convicted of a domestic violence crime in New York the court then determines if the conviction falls within the federal domestic violence statute. If it does then the defendant’s information is sent to the Division of Criminal Justice Services, who then sends it on to NICS. The law appears to be an attempt by New York to make the federal statute more effective.
The new legislation is a step in the right direction for New York. It signifies that New York legislatures are aware of the issue and will not stand by and do nothing about it. However, the new legislation only prevents those convicted of domestic violence related crimes from purchasing firearms in the future. What about those who are already in possession of firearms?
There are many holes in the federal and state domestic violence firearm protection laws. One of the problems is that while a defendant may be prevented from legally purchasing firearms after a conviction for a domestic violence related crime, that individual may already have been in possession of a firearm. Additionally, the law only prevents those convicted of domestic violence crimes from legally purchasing firearms. Unfortunately, not everyone who is in possession of a firearm legally owns it or has a license for it. Other weapons may also be used to attack or kill victims. When you take away guns, abusers can and will use other weapons, such as knives. A recent case in Auburn, of a twenty-nine-year-old female who was stabbed to death, allegedly by the father of her 3-year-old son, while the young child was asleep upstairs, is demonstrative of the fact that abusers will use other methods but gun violence remains the greatest threat to domestic abuse victims.
The legal system will never be able to fully solve all of the domestic violence related issues, but can more be done to protect the victims and keep them safe? Under New York State law, the judge, at an order of protection hearing, can suspend or revoke the defendant’s “license to carry, possess, repair or dispose of a firearm.” The judge should do this in certain situations, such as when the defendant has a previous conviction for a violent felony, the defendant has a previous conviction for stalking, the defendant has previously violated an order of protection that resulted in serious physical injury to the victim or the use or threatened use of a dangerous weapon, or if the judge determines that there is a substantial risk that the defendant may use or threaten to use a firearm against the person for whom the order of protection is for. Once the judge rules that the defendant is to surrender any firearm(s) in the defendant’s possession:
the temporary order of protection or order of protection shall specify the place where such firearms shall be surrendered, shall specify a date and time by which the surrender shall be completed and, to the extent possible, shall describe such firearms to be surrendered and shall direct the authority receiving such surrendered firearms to immediately notify the court of such surrender.
This form of legislation is an attempt to disarm batterers and ultimately protect victims of domestic violence and their children.
There have been constitutional attacks on firearm ban laws, but the laws have been upheld. Despite the validity of these laws, “they have not proven to be a successful means of addressing gun violence against women.” Batterers are still able to possess firearms in some cases due to the under-enforcement of gun ban laws. One reason for the under enforcement of these laws is that the states do not have an organized structure in place to enforce the laws.
Even if states can legally disarm a batterer, many states lack the bureaucratic and physical infrastructure to actually remove the guns. Many states do not have gun repositories where the guns can be stored. Nor do they have the extra law enforcement officers necessary to confiscate the weapons, catalogue them, store them in the repository, and return them once an order for protection terminates or a misdemeanant’s record is expunged. Some states have no system in place to inform victims, abusers, employers, and police officers of the gun bans. Other states do not have a common database wherein they may flag the abuser as a ‘prohibited person.’ Thus, gun dealers and police may not know whether an individual can or cannot possess or purchase a gun.
A combination of law enforcement’s inadequate response to domestic violence cases and the lack of a proper system in place to deal with disarming batterers has led to the general ineffectiveness of gun ban laws. Due to the under-enforcement of these laws, many batterers remain in possession of their guns and as a result these laws are not actually beneficial in protecting many women who suffer abuse at the hands of their husband or partner. A batterer who remains in possession of a weapon is much more likely to use it to seriously injure or kill his victim.
The new legislation signed by Governor Cuomo helps address the issue of gun dealers and police who may not know whether an individual can or cannot purchase a gun, but it does not address the issues involved with the suspension or revocation of firearms with an order of protection. When these laws are enforced they are extremely beneficial to victims as batterers no longer have that deadly weapon available to threaten the victim with, and the gun cannot be used to injure or kill the victim if the batterer no longer has the gun in his possession. These laws have the potential to save domestic violence victim’s lives. New York has taken a step in the right direction by correcting one of the holes in its domestic violence firearm legislation, but more can still be done.
 See Jennifer L. Vainik, Kiss, Kiss, Bang, Bang: How Current Approaches to Guns and Domestic Violence Fail to Save Women’s Lives, 91 Minn. L. Rev. 1113, 1117 (2007).
 Press Release, Governor’s Press Office, Governor Cuomo Signs Domestic Violence Firearm Protection Legislation (Aug. 1, 2011), available at http://www.governor.ny.gov/press/080111domesticviolencefirearmprotectionlegislation.
 Lisa D. May, The Backfiring of the Domestic Violence Firearms Bans, 14 Colum. J. Gender & L. 1, 5 (2005) (“Domestic violence misdemeanors are certain crimes, defined differently from state to state, committed against an intimate partner, family member, or household member. Most states include amongst them, for example, the crimes of assault, battery, harassment, coercion, sexual assault, unlawful imprisonment, and stalking”).
 18 U.S.C. § 922(g)(8) (2006); see 18 U.S.C. § 922(g)(9) (2006).
 Governor’s Press Release, supra note 3.
 See id.
 Scott Rapp, Mother, Friend say Auburn Murder Victim Feared former Boyfriend Charged in Fatal Stabbing, Syracuse Post Standard, Nov. 25, 2011, http://www.syracuse.com/news/index.ssf/2011/11/mother_friend_say_auburn_murde.html.
 See N.Y. Fam. Ct. Act § 842-A (McKinney 2011).
 Id. § 842-A(5).
 See Vainik, supra note 1, at 1126.
 Id. at 1129-30 (internal citations omitted).