Jonathan P. Baird

The two big news stories of the last six months, the Boston Marathon bombings and the Newtown school shootings, have highlighted the behavior of two terrorists and a psychopath. However, I would argue that day in and day out the greater threat of assault and murder is more likely to come from a disgruntled spouse or ex-boyfriend.

On average, three women are murdered daily in the United States by a current or former intimate partner. Guns have generally been the weapon of choice for intimate partner homicide and just the presence of guns has increased the lethality of domestic violence incidents. Murders are often preceded by a lengthy history of domestic violence and stalking that can include the use of guns to intimidate. I believe this pattern has been long-standing.

About 15 years ago, I represented a client who was a domestic violence victim. She was a single working woman who lived in a rural part of New Hampshire. She wanted to separate completely from her former boyfriend. The two of them argued frequently and on one occasion, he grabbed her around the throat with both hands and he attempted to strangle her. She got away but he warned her that he could kill her if he wanted to. He had made several threats to shoot her.

My client was very scared. The ex-boyfriend was a gunowner and my client felt his behavior had become increasingly unpredictable. She obtained a temporary restraining order. She also purchased a cell phone for protection in the event of an emergency.

At the final hearing on the domestic violence, the ex-boyfriend admitted to the abuse but he asked the court to allow him to keep his guns. He explained that hunting season was coming up and hunting was his favorite activity. My client asked the court not to allow her ex-boyfriend access to his guns. He hunted in the woods near her house. She was afraid of being stalked and murdered.

The court initially ruled he could check his guns in and out of the police station when he wanted to hunt. The court found my client’s request to confiscate guns was unreasonable and inconsistent with New Hampshire’s venerable hunting tradition. On reconsideration, the court did change its mind and confiscated the guns because of federal domestic violence law.

New Hampshire has come a long way since those days. The state now has one of the strongest domestic violence laws in the country. Courts can order abusers to relinquish firearms after issuing a temporary retraining order. The law also allows courts to issue a warrant to search for guns if necessary. If there is a finding of abuse, the perpetrator loses the right to hold firearms for a year.

It is not an automatic that the guns come back after a year. The perpetrator must petition the Court and a hearing will be held to determine if he still represents a credible threat to the victim of the abuse. Law enforcement will not release firearms without a court order granting such release.

A March article in the New York Times by Michael Luo showed the wide range of state responses to the matter of guns and domestic violence. Twenty states require surrender of firearms and ammunition when a protective order is issued. In many states, gun rights organizations have stymied and stopped the type of reforms passed in New Hampshire. As a result, many states have less protective law for domestic violence victims than New Hampshire.

In Virginia, the gun lobby has repeatedly stopped efforts to make it illegal for people subject to court injunction to possess firearms. In Washington state, judges will only order the surrender of weapons in very specific situations like a determination by clear and convincing evidence that the person had used the weapon in a felony or had committed another offense that by law would disqualify him from having a firearm.

The variety of domestic violence laws in the states gives more appreciation for the wisdom of New Hampshire’s current law in this area. Only New Hampshire allows law enforcement the broad authority to remove all firearms and ammunition in the abuser’s control, ownership, or possession at the time of a domestic violence incident.

Other states allow the removal of only certain firearms or allow removal only if certain conditions are met. For example, some states only allow removal of weapons used in the domestic violence incident. A different group of states only allow for removal of weapons observed at the scene or in plain view. There are also states that will only allow removal of weapons pursuant to a consensual search.

The duration of the firearm removal is yet another issue. Many states hold weapons for much less time than a one year restraining order.There are states where law enforcement will only hold the firearms until proceedings against the abuser are concluded or until the weapons are no longer needed as evidence. Then the weapons are returned to the abuser.

As we contemplate new gun control reforms like universal background checks, our state’s experience has shown that sensible reforms can work and very likely save lives. I think universal background checks would add an additional tool to keep guns out of abusers’ hands as well as others who should not have them.

At present, domestic violence offenders who are federally prohibited from purchasing guns can avoid a background check by buying guns from unlicensed private sellers, either through online transactions or at gun shows. In 2012, an estimated 6.6 million guns were exchanged in private transfers without any criminal background check.

Private party sales are central to illegal commerce in firearms. It has been estimated that 40% of all firearm transactions occur directly between private parties. A universal background check that applied in all states would be a significant block to illegal commerce in firearms. Universal background checks would be an eminently reasonable crime-fighting reform.

Reducing gun violence in America is a public health issue. Gun policy needs to be based on evidence and clear thinking analysis. In the area of guns and domestic violence, New Hampshire has provided a positive example.