SPEAKERS CONTENTS INSERTS Tables
Page 1 TOP OF DOCAMEND SECTION 658 OF THE FISCAL YEAR 1997 OMNIBUS APPROPRIATIONS ACT: GUN BAN FOR INDIVIDUALS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE
WEDNESDAY, MARCH 5, 1997
House of Representatives,
Subcommittee on Crime,
Committee on the Judiciary,
The subcommittee met, pursuant to notice, at 9:45 a.m., in room 2141, Rayburn House Office Building, Hon. Bill McCollum (chairman of the subcommittee) presiding.
Present: Representatives Bill McCollum, Steve Chabot, Bob Barr, Asa Hutchinson, George W. Gekas, Howard Coble, Charles E. Schumer, John Conyers, Jr., Sheila Jackson Lee, Martin T. Meehan, and Steven R. Rothman.
Also present: Representatives Bart Stupak and Carolyn Maloney.
Staff present: Paul McNulty, chief counsel; Nicole Nason, counsel; Audrey Clement, staff assistant, and Melanie Sloan, minority counsel.
OPENING STATEMENT OF CHAIRMAN MCCOLLUM
Mr. MCCOLLUM [Presiding]. This hearing of the Subcommittee on Crime will come to order.
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For most Americans, home is a retreat, a place to escape from the pressures of life. It's our sanctuary at the end of a tough day or a long week. Home is a place where bonds between husband and wife and parents and children are established and strengthened, where families are built. Yet, the horrible truth is that for some home is not a shelter from the storms of life. Instead, it's a place of terror and turmoil far too often. Rather than being a place where relationships are nurtured, many homes harbor violent people bent on victimizing vulnerable family members. Domestic violence is a national tragedy, the enemy of all that is good about marriage and the family. Policymakers, at all levels of government, in my judgment, must work to end the silent suffering of abused wives and children. This important responsibility brings us to the consideration of what we're here about today, and that is the gun ban for those convicted of domestic violence misdemeanors.
In Section 658 of the omnibus appropriations bill of 1997, there was an amendment that was offered on the floor of the Senate by Senator Frank Lautenberg. This particular amendment had a modified version in September that was included in the consolidated appropriations bill by the conferees. We never heard this amendment or discussed it in this subcommittee or in the Judiciary Committee as a whole.
The modified version narrowed the definition of a misdemeanor crime of domestic violence. It included some procedural safeguards and applied the band to government employees, including police officers. A misdemeanor crime of violence is defined under the law as an offense that is, one, either a Federal or State charge; and, two, has as an element the use or attempted use of physical force or the threatened us of a deadly weapon, and, three, is committed by a current or former spouse, parent or guardian, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, guardian, or by a person similarly situated as a spouse, parent, or guardian.
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In order for the gun ban to apply, the law requires that a convicted person had been represented by counsel or knowingly and intelligently waived the right to counsel. Also, if the person was entitled to a jury trial, the law requires that the case was tried by a jury or the right to a jury was knowingly and intelligently waived. And, furthermore, no persons shall be considered to have been convicted of a misdemeanor crime of domestic violence for purposes of gun ownership if the conviction has been expunged or set aside or is an offense for which the person has been pardoned or has had civil rights restored. This ban does apply to law enforcement officers, including Federal agents, and it does apply retroactively.
Let me say, first of all, that those who have been convicted of violent crimeany violent crimeshould not be permitted to possess a firearm, period. The rate of violent crime in our country is four times higher than it was at the beginning of the 1960's. Our best hope for reducing this rate in the short term is to stop known violent criminals from repeating their crimes. That means locking them up and taking away their guns.
The question we face today, however, relates not to whether this should be done, but rather how we go about doing it. Section 658 that I just read, known as the Lautenberg amendment, is really a tough question for all of us. The law is in effect already. We have a duty to consider several significant issues, though, that have arisen as a result of this law. The simplest question of all, the one that would seem simple on the surface, is: what are the unique problems associated with applying this gun ban for crimes of domestic violence to misdemeanor convictions? Is it the case that applying the ban retroactively could be unfair? Are there those who pled guilty to misdemeanor charges in the past to avoid the ordeal of a trial and because the penalties for misdemeanors were relatively light, and that's why they did it? If this is the case, does this create an unreasonable hardship on some, particularly police officers who make a living using firearms? And what about our ability to quickly defend and identify such persons? The question is, Can we identify the convictions with our current criminal history records?
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As the original author of the instant check amendment for arms purchases, I am particularly concerned that the retroactive nature of this gun ban will create enormous problems for States, such as my home State of Florida, that have established point-of-sale background check systems for retail gun sales. So, there are a lot of questions I, for one, am undecided on precisely what to do about this now that we have it in law, and that's why we're here today, to listen to our witness panel andin fact, two panelsand see if we can't come to some resolution of what we should do about the problem that appears to be here, and that the police particularly have brought to our attention.
And, with that, I yield to my ranking minority member, Mr. Schumer of New York.
Mr. SCHUMER. Thank you, Mr. Chairman. I thank you for holding today's hearing.
First, I want to apologize to the witnesses. Yesterday, the President called us to the White House today at 10:15 a.m. to talk about the Empire State Building shooting, so I'll have to excuse myself after the opening statement. But, I do want to thank the witnesses and assure them that, not only have I read their testimonies, but I'm thinking very hard on this issue.
Now, let me say, Mr. Chairman, first, I want to thank you for holding the hearing. Second, I want to say that this is a difficult issue before us. We have two competing interests, both of which are important. The first interest, obviously, is in stopping domestic violence. As a sponsor of the Violence Against Women Act and the author of the new domestic violent crimes in that statute, I'm firmly committed to the most aggressive law enforcement possible against spouse abusers, as well as changing hundreds of years of thinking on an issue where, until recently, it was regarded, at best, as only a domestic dispute and, at worst, it's perfectly okay for a spouse to beat his wife.
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People who beat up their spouses are the last people in the world who should have guns. That's the simple reason why the legislation we're discussing today should be so important. And yet at the same time, we must make sure that the law is implemented fairly. Throughout my career, I have said that we have toand believe stronglyhave to stand up for the men and women who are our law enforcement folks; they're under very difficult pressures and they do a wonderful job. My city, my community, and my State are safer today than they were several years ago because of the work together that the law enforcement community and this committee have done.
Now, the law enforcement community has raised some genuine questions about the application of this law to police officers, who, unlike other citizens, obviously have their jobs at stake here. Through my work on this subcommittee and as the sponsor of the 100,000 cops on the beat bill, I have seen the successes our law enforcement agencies have achieved in recent years, and we're all enormously proud and grateful for the work police officers across the country have done in bringing down crime rates and restoring a sense of security to all Americans.
And, so, I believe that we must make sure that the law is implemented in a way that avoids undue hardship and is not disruptive of the work that our law enforcement officers must do. I haven't taken a position yet on either of the bills, but I think we have to start from the basic thrust that the law enacted last year is sound. We know for a fact that people who are convicted of domestic violence are very likely to do it again. We know for a fact that in all too many households the pattern of violence escalates to the point where the victim is seriously injured or even killed. Putting a gun into the home where there is domestic violence is an invitation to tragedy; it's that simple.
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So, while I believe that there may be unfairnesses or impracticalities that may be addressed, our goal should be to make sure that the basic purpose of the statute is not frustrated. And that is simply because, as I mentioned earlier, for too long we've ignored the problem of domestic violence and failed to do everything possible to stop it.
This bill was a large step forward and we must not go back. And most importantand I say this to the many in good will on both sides of this tablewe must not allow ourselves to be divided. The law enforcement community, together with the organizations and people in the women's rights community who are focused on domestic violence, have worked together in recent years to make real progress on this issue, and I've been a strong supporter of both parts of that effort.
I'm afraid that this controversy is being fomented by those who would like to see this coalition broken up, and also by those, like the National Rifle Association, who want to see law enforcement put at odds with both the gun control movement and the women's rights movement. I think this is the real agenda behind some of those who want to change the current lawnot all. And we must bring that agenda out into the open so it can be rejected, because you don't want people who did one thing in the last Congress coming out and saying, I can save you in this Congress, but not save you in a way that really works things out.
So, I have to say that an agenda of divisiveness must be rejected; otherwise, as Abraham Lincoln said, ''A house divided against itself cannot stand.''
So, Mr. Chairman, I again commend you for holding these hearings, and again, I want to apologize to you, and particularly to the witnesses, for not being able to hear the testimony.
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Mr. MCCOLLUM. Thank you very much, Mr. Schumer, and does anybody else on the subcommittee wish an opening statement. Mr. Barr.
Mr. BARR. Thank you, Mr. Chairman. I want to join my colleague on the other side of aisle to commend you for holding these hearings.
I would also like to state for the record that these hearings should have been held several months ago. What happened in the final days, and indeed the waning hours of the 104th Congress in having this bill rammed through both houses, is part of a piece of legislation that had nothing to do with the subject matter of this very important piece of legislation, was a travesty. It was the process itself, I'm talking about, was an illustration of how Congress should not operate in behalf of the people of this country.
This is a very important matter involving, not only law enforcement officials, but private security officials, military, and citizens all across this country from all walks of life. It involves victims' groups, police groups, citizens' groups, local governments, Federal Government. Yet the people of this country were denied even having the most basic of information presented to them by virtue of the way this bill was rammed through by the Senate and pushed through by the administration without any input from the people that we ought to be hearing from, and should have heard from on this legislation, so that we could craft meaningful legislation that is both constitutional and fair. But, certainly, better late than never.
A number of us attempted in the waning hours of the last Congress to make at least some adjustments to this legislation so that it would have some semblance of constitutionality to it. The original legislation that came over from the Senate in my view was not even remotely constitutional. We were able tosince most of us, including myself, were not a part of the process; we were excludedwe were able to ensure that some provisions that were requested by the people of this country were included in the final legislation. Others were not, and it is certainly better that we are here today than that we are not here today, although, as I say, this legislation should have been very fully considered and aired and had input from parties so that we could pass the mostthe best piece of legislation possible.
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But we are here today to discuss the most glaring problem with the way this legislation is being enforced, and that is, efforts by the Federal Government which seem to pass no opportunity by to use its heavy hand to dictate to people all across this country whatever it wasthat it isthat it wants to dictate. No sooner had the ink dried on this legislation than the Federal Government was out there trying to enforce retroactively, despite what I believe is a very clear constitutional prohibition.
Now the learned lawyers of the ACLU and other organizations may like to parse that provision in our Constitution and decide that this is not indeed a penalty; it is simply a civil right that we are talking about here. The fact of the matter is that we are penalizing people by virtue of acts for which they have been found to have been guilty in a criminal context, and the Constitution prohibits ex post facto enforcement of laws and punishment. Yet, despite that, the Federal Government is, indeed, attempting, and is enforcing it retroactively despite the fact that this was not the intent of this Congresscertainly this Member and many other Members. There is no legislative history whatsoever to support the position that Congress intended this law to be applied retroactively, and the legislation that I have introduced, H.R. 26, would at least rectify that very serious and immediate problem with this legislation. And I am happy to say that I am joined in this effort by many colleagues and also by some very distinguished law enforcement groups, some of which are here today to testifythe Fraternal Order of Police.
Also, Mr. Chairman, I have a letter here today from the Southern States Benevolent Association, from Mr. Bill Thompson, in support of this legislation that I would ask unanimous consent to have that letter included in the record.
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Mr. MCCOLLUM. Without objection.
[The information referred to follows:]
Hon. BOB BARR,
|Southern States Police Benevolent Association, Inc.,|
|Morrow, GA, February 27, 1997.|
United States House of Representatives,
DEAR REPRESENTATIVE BARR: the Southern States Police Benevolent Association wishes to lend its strong support to H.R. 26, the bill that eliminates the retroactive portion of the ban on firearm possession for those convicted of domestic violence misdemeanors. Composed of federal, state and local law enforcement officers from all across the southern United States, the Southern States PBA has a long traditional of supporting laws that protect the victims of domestic violence as well as the rights of law abiding citizens to possess firearms.
We believe that applying the firearms ban retroactively violates the constitutional provision prohibiting ex post facto application of criminal laws. It also creates an unworkable and unfair record keeping problem for law enforcement throughout the nation.
Accordingly, we are in full support of H.R. 26 to insure that this ban on gun ownership is only applied prospectively. This would correct the problems with the application of the original law.
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Congressman Barr, the Southern States Police Benevolent Association commends you for introducing this important piece of legislation and urges the Committee to move quickly on this bill in an effort to bring it to the House floor for a vote.
|H.G. (Bill) Thompson,|
|Director of Governmental Affairs.|
Mr. BARR. And, I know that there are a number of very distinguished witnesses we will have here today to begin the process that should have begun and ended before this legislation was passed, but at least we have the opportunity now to correct the most serious problem with this legislation, and that is the effort by the Federal GovernmentI believe contrary to the Constitution, and certainly contrary to basic tenants of fairness in our countryto enforce this law against those who may have been convicted of a misdemeanor crime of domestic violence five, ten, fifteen or twenty years ago. That should offend everybody who is a member of this panel as it offends police officers, citizens, and military all across this country, and we should today begin the process of rectifying that problem.
And I thank you for this opportunity, Mr. Chairman.
Mr. MCCOLLUM. Thank you, Mr. Barr.
Without objection, I will enter into the record the statement of Mr. Conyers.
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[The prepared statement of Mr. Conyers follows:]
PREPARED STATEMENT OF JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN
It concerns me that no sooner do we pass an important protection for victims of domestic violence, than we begin to search for ways to weaken that protection. Domestic violence is a serious problema deadly problemand the Lautenberg provision is an important step in protecting potential victims from gun violence at the hands of family members.
For many years, it has been a Federal offense for anyone convicted of a felony to possess a firearm. Yet many people who engage in spousal or child abuse are not ultimately charged with or convicted of a felony. No matter how serious the abuse, spouse and child abusers are very seldom convicted of anything more than a misdemeanormeaning that prior to the enactment of the Lautenberg provisionthey still had the ability to possess a firearm.
This was a very dangerous situation. On a daily basis we hear stories about people with long histories of family violence using a gun to kill a family member. If anyone should not have access to a gun, it is a person who has abused his or her spouse.
In the past year there have been several such killings:
Last June, Baltimore resident Luis Romero shot and killed his wife, Rhonda Romero when she was only one block from the courthouse on her way to seek a protective order. A temporary restraining order had already been issued at the time of the shooting.
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Also in June, Michael Comfort drove to Andrews Air Force Base and shot and killed his estranged wife, a Navy Petty Of ricer. A protective order had been issued against Comfort at the time of the killing.
Last May, a Denver man shot his wife to death, after having been charged with domestic violence offenses on several occasions.
Also in May, a Lancaster, Pennsylvania man recently released from jail for spousal battery fatally shot his wife in front of the couple's three small children.
And last April, a Los Angeles man shot and killed his pregnant wife after being set free early from his sentence for domestic violence.
This is just a small sampling of recent cases. The newspapers are filled with similar cases. If we are serious about protecting people from violence, we need to limit the access to guns of those with domestic violence records. The evidence is in and it shows that these people are among the most likely to turn a gun on a family member.
Quite simply, there is no reason not to leave the Lautenberg provision as it was passed into law. Those who are violent enough to have deliberately injured family membersincluding police officerssimply should not have access to guns.
The amendment proposed today by Congressman Barr is an NRA initiative. It would apply the ban only to those people who are convicted of domestic violence offenses after enactment of the ban and allow anyone who has previously been convicted of domestic violence to keep his gun. The NRA has long opposed the retroactivity of gun laws in general and is using that issue in hopes of getting rid of the ban. In fact, the NRA's own fax alert specifically states that the Barr amendment ''will hopefully result in the repeal'' of the gun ban.
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But as the examples I have provided show, if the Lautenberg law had been in effect years ago, many women might not have lost their lives. In all the cases I mentioned, people with previous domestic violence convictions killed their wives. Shouldn't we be doing everything possible to prevent such murders in the future? If the Barr measure becomes law, we can rest assured that some man with a record of domestic violence will lawfully purchase a gun and blow his wife away. How can we knowingly allow such a thing to happen?
Similarly, I oppose the Stupak amendment providing a blanket exemption for police officers. Why should police officers be treated differently than anyone else? Police officers who beat their wives are no less likely to kill them than other abusers. In addition, I am more than a little hesitant about leaving firepower in the hands of any police officer who has a violent temper. If an officer is willing to beat his spouse, how will he respond to domestic violence calls and will he be overly quick to use force against others while on the job?
Considering the severity of the problem the Lautenberg law is designed to remedythe murder of one family member by anotherI must oppose these efforts to weaken the law.
Mr. Meehan, you're recognized for an opening statement, if you wish.
Mr. MEEHAN. Thank you very much, Mr. Chairman.
And as my friend and colleague, Mr. Schumer from New York, indicated, he is no longer able to be at this meeting. He has to be at the White House. And I can only say he picked quite a hearing to have me be the ranking memberI thank the gentlemen herewith the controversy around this issue.
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I don't know why this was put into the bill last time. There are some who feel that it was put into the bill as a poison pill to potentially kill the bill. In any event, my perspective on this is, I have worked before I was elected to Congress on domestic violence as a prosecutor in Massachusetts. We put together one of thein the Middlesex County District Attorney's officeput together one of the best domestic violence units in the country utilizing victim witness advocates. We had programs with the police department, and those programs resulted in the police department playing an integral part in making arrests in cases where traditionally those arrests were never made and swept under the rug.
I have worked with the Massachusetts legislature in making sure that the laws regarding domestic violence were among the toughest in the country, and now we have ourselves in a position where there's an issue before us today that really is of great concern to those who are committed to stamping out domestic violence, as well as those who believe that law enforcement officials deserve our support in light of their difficult and dangerous tasks that they are to take on a daily basis.
I don't believe that these groups should be mutually exclusive. In fact, women's organizations and law enforcement officials have worked hand-in-hand over the past 4 years to combat not only domestic violence, but violence wreaked by deadly weapons. So I would hope that we could that we could come to a positive conclusion to this most difficult issue, and I look forward to bringing my perspective as someone who has worked in the front lines of the fight against domestic violence, not only with women's groups, but also with police departments from 54 communities in Massachusetts.
Page 15 PREV PAGE TOP OF DOC In addition, Mr. Chairman, I would ask that a letter that's been submitted to me by the International Brotherhood of Police Officers Local 382 in Lowell, Massachusetts be submitted with unanimous consent.
Mr. MCCOLLUM. Without objection, so ordered. Thank you, Mr. Meehan.
[The information referred to follows:]
Hon. MARTIN MEEHAN,
|International Brotherhood of Police Officers,|
|Alexandria, VA, March 3, 1997.|
United States Congress,
DEAR CONGRESSMAN MEEHAN: On behalf of IBPO Local #382, I wish to state our support for H.R. 445, a bill that will reinstate the ''official use'' exception for law enforcement to the recently passed, domestic violence bill.
Local #382, believes that the Lautenberg provision which prohibits persons convicted of domestic violence misdemeanors from possessing firearms penalized law enforcement officers who are the only workers in America who will loss their jobs if they can no longer posses a firearm.
H.R. 445 which was introduced by Congressman Stupak of Michigan would allow sworn law enforcement officers to use their service weapons for official on-duty use, as originally defined in the 1968 Gun Control Act. For almost thirty years, gun control legislation has made an exemption for law enforcement and the military.
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We look forward to working with you on legislation that works to end domestic violence, a crime we see every day. Unfortunately, this bill will not solve the problems of domestic violence. It will however, deny police officers the right to continue their line of work.
|Gerald J. Flynn, Jr.,|
|President IBPO Local #382.|
Mr. MCCOLLUM. Mr. Chabot, do you have any opening remarks you wish to make? Mr. Hutchinson. Mr. Gekas.
Mr. GEKAS. Yes, thank you, Mr. Chairman.
I wish the gentleman from New York had remained in his seat for a moment so that he could hear my puzzlement over his assertion that there are conspiracies abroad between persons unknown to wreck what he calls the coalition between the women's domestic violence groupings and the law enforcement community, that somehow there's a conspiracy to break them up. That is absurd, and I wish he were here so I could say that to him to his face.
Mr. MEEHAN. Maybe I could answer for him.
Mr. GEKAS. I'll yield to him, so that you can yield to him, that he can yield to me, and I'll yield back to you.
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Mr. MEEHAN. Either that, or I could just give you the answer.
Mr. GEKAS. And also his assertion that somehow the NRA is set here to take sides and to join in that conspiracy to break up that coalitionfirst of all, I did not perceive such a coalition as being in the forefront of creating, for instance, this legislation. If there was a coalition, so strong, so communicative, so bound together, between the domestic violence support group and the law enforcement group, this legislation would not have occurred in the form that it is, in my judgment.
Secondly, I don't know how many people here have heard from the NRA on this issue. The NRA, in my judgment, over the past has been tremendously supportive of the law enforcement community, and so, it would naturally come to the side of the law enforcement community in such a situationif it did. I'm not sure it did, because I never heard from it.
So, I just wanted to enter into the record a contra-tune to the song that was sung by the gentleman from New York on the conspirational theories abroad, but I do want to reaffirm the opening statements of our colleagues, both on that side and on our side, that this is a very narrow issue. I do not believe that the Congress will countenance a reversal of the domestic violence gun legislation. That is the theme of it: to bring out sanctions for anyone who uses guns or violence in a domestic situation.
What we have to focus on is whether or not it should be treated retroactively. That's the main issue. If we accomplish that through these hearings and the process that is soon to follow, then we will have done a great deal. We will both have endorsed the idea that we will not as a people ever tolerate domestic violence to the degree that we have seen in recent years, and at the same time, we will honor what we believe is law enforcement's right to continue on its path of enforcing the laws of our country without having to worry about retroactivity on this or any other kind of law that might hamper their duties on behalf of our citizens.
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So with that, I yield back the balance of my time.
Mr. MCCOLLUM. Ms. Jackson Lee, you're recognized.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman.
There comes a time when one has to make a decision on the fork in the road and there is great apprehension. I don't think, however, that we can be apprehensive about 2 to 4 million women who are battered every year. Certainly, there is a lifetime risk. Some 20 to 30 percent of women are being battered. Fifteen hundred women are murdered each year by their intimate partners. In 1994 alone, 1,326 women were slain by their husbands or boyfriends, and seven out of ten of those murders involved guns.
We do realize that this coalition has come around this very important issue to represent those who are out in this hearing room today. I want to applaud the coalition that has raised its head above the normal tensions and come togetherlaw enforcement, women, church groups, community citizens who are just plain sick and tired of the intimidation of children, parents, the elderly, and, of course, women.
So, we come today and we're not sure whether some of what has occurred has been political, why, as this legislation was being promoted and drafted, these issues were not raised at that time. It is important, of course, for us to remain open-minded in order to seek the right kind of solution.
Page 19 PREV PAGE TOP OF DOC I certainly have the greatest respect for my colleague, Mr. Stupak, and I recognize that there are issues that we might be able to come together on. However, I stand forthrightly and squarely against the continuation of the battering of women and any diminishing of rules and regulations and laws that might cause that to be encouraged, promoted, or continued.
Let's try and work it out, but let me come down on the side of life and limb and liberty. Let me also recognize that there is some concern that one would have that you're less of a batterer if you battered on August 1, 1996 versus September 19 or 26, 1996. Again, it's a fork in the road that most of us would like not to have to choose.
So, I stand here or sit here, as a member of the house Judiciary Committee to listen, to converse, to deliberate, and to see whether the normal allies against domestic abuse can come together for the greater good of life and liberty.
I yield back.
I would also like to add to my full statement in the record.
[The prepared statement of Ms. Jackson Lee follows:]
PREPARED STATEMENT OF SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
Mr. Chairman, I would like to thank the distinguished panelists who are here to provide us information on this difficult and controversial issue. We have before us two groups, law enforcement and women's advocacy groups, with whom I have worked closely in the past and for whom I have the utmost respect.
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In fact, these groups have worked together in the past. They have forged a partnership through their joint commitment to end domestic violence. It now saddens me and troubles me see them on opposite sides here. I hope you all will be careful to separate the current debate from the larger battle against domestic violence.
I can not say often enough or passionately enough how concerned I am about the problem of domestic violence.And I know the law enforcement community has been a friend on this issue.
Each year two to four million women are battered. There is 2030% risk that a women will be battered in her lifetime. More than 1500 women are murdered each year by their intimate partners, not by strangers, but by their husbands and boyfriends, their ex-husbands and ax-boyfriends. These numbers are horrifying.
In my home state of Texas, there were 163,223 incidents of domestic violence in 1994 alone. In that same year, 151 Texan women were murdered by their intimate partners. According to the Texas Department of Public Safety, 38% of all women killed in my state in 1993 were murdered by their intimate partners.
The National Coalition Against Domestic Violence estimates that across the United States each year there are 150,000 acts of domestic violence involving a gun. Studies have shown that in homes with a history of domestic violence, the presence of a gun dramatically increases the likelihood that nonfatal abuse will become murder. Domestic assaults involving a gun are twelve times more likely to result in death than domestic assaults involving knives or any other means.
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These figures support the proposition that persons who have been convicted of domestic violence should not be permitted to own or possess firearms. I have heard it said that ''adding firearms to a battering situation is like pouring gasoline on a fire'' and the numbers reinforce that statement.
Domestic violence is a horror and tragedy that should have no place in our society, but instead it is an all too common reality. When engaging in debate over the Domestic Violence Offenders Gun Ban and the two bills before us today, we must not forget that. We must not abandon the women, children and elderly who suffer this abuse. And we must not make excuses for law enforcement officers who strike out and abuse those closest to them.
It is obvious that no one seriously committed to ending domestic violence could support eliminating the retroactivity of this law. To do so would exempt nearly all batterers, even those convicted as recently as a few months ago. This would put the lives of their partners, already victims of domestic violence, in increased danger.
It is odd that the Republicans who are so concerned about this question now did not address it last fall when the Domestic Violence Offenders Gun Ban first arose.
My commitment to the battle against domestic violence, leads me to feel comfortable with the Domestic Violence Offenders Gun Ban as it stands. I believe, however, that there is room to sit down at the table with law enforcement and to engage one another in a discussion in the hopes of reaching an outcome which is acceptable to both sides.
Page 22 PREV PAGE TOP OF DOC I believe that it is critical for law enforcement and domestic violence advocacy groups to work together; to maintain their partnership for us all to be successful in the battle against domestic violence.
Thank you, Mr. Chairman.
Mr. MCCOLLUM. Without objection, so ordered.
Mr. Coble, you're recognized.
Mr. COBLE. Mr. Chairman, I will not take the complete 5 minutes. I think most of what has been said is probably what I had in my mind. We are beneficiaries oftentimes of accusations that we move too slowly in this body, and I think sometimes those accusations are well-founded, but there comes a time I think when deliberation and thoroughness should be the order of the day. And not unlike the gentleman from Georgia said, I think perhaps this legislation may well have been rammed home too quickly. We're going to have to chart a very delicate course, it seems to me, Mr. Chairman, to recognize on the one hand, the importance of not ramming through legislation too hurriedly, while on the other hand, being careful to turn a receptive ear to the significance of crimes of domestic violence.
The gentleman from Pennsylvania touched on this. I think oftentimes when at a hearing such as this, if you take the side of one, then you are accused of being insensitive to victims of domestic violence, and I think that's hogwash. I also think it's hogwash to suggest that there is a conspiracy afoot. I think, Mr. Chairman, today we may well have the luxury of applying 20/20 hindsight. We know what went wrong in the past; hopefully we'll be able to correct it subsequently.
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And, I thank you, Mr. Chairman, for having scheduled the hearing for today.
Mr. MCCOLLUM. Thank you very much, Mr. Coble.
Mr. Conyers, I understand now that you have arrived. I put your statement in, but you are certainly welcome to make a remark.
Mr. CONYERS. Good morning, Chairman McCollum, and friends assembled here today. I see a lot of law enforcement people, and my statement's already in the record, so I just wanted to put a little underline behind it. And my good friend, Bart Stupak from Michigan, is here.
Now, you're listening to the ranking member of this committee who has a 100 percent police record. You don't have to write that down. But, what's wrong with checking out spousal abuse as a condition to getting a gun? Is that a bad thing? Come on, guys, listen up. And, by the way, what's wrong with a cop knocking his wife around the room because he had a bad day? Maybe some affirmative action stuff or the NAACP accused somebody of police brutality. What's wrong with creating an exception for the one citizen in our society that is licensed to carry a gun and say, well, it's okay to stop other peoplethe people he protects from battering womenbut you're not going to stop cops from knocking their girlfriend or wife around, if not both.
So, what's the problem here? Talk to me, law enforcement officers. You better have a darn good reason for trying to except cops from spousal abuses. Just between me and you, we've got the statistics on it, and it's not a pretty picture. So, please feel free to visit me in 2426 Rayburn, where I will be ensconced later on this afternoon.
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Thank you very much, Mr. Chairman.
Mr. MCCOLLUM. Mr. Conyers, you're welcome.
Mr. Rothman, do you have any opening remarks.
Mr. ROTHMAN. Thank you, Mr. Chairman.
I believe that the primary consideration in this legislation is to protect our citizens from domestic violence. A secondary consideration should be whether the penalty that some are suggesting in this legislation unfairly imposes upon certain categories of citizens. For example, if one were to say to most lawyers who don't carry guns, if you beat you're wife, you'll lose the privilege to carry a gun, that wouldn't necessarily end their legal career. But, if you say that to a cop, he or she loses his or her right to carry a weapon. That will end their career. It's a career-ending penalty. And the same with a military member. So, the punishment is even more severe.
But, as Mr. Conyers suggested, I believe that it makes no sense, it's unjust, it's not right to exempt police officers, and military. It's an easy call for me to say that from here on in cops and military people should know that they will lose their weapons and, I guess, end their career if they are convicted of this. That's an easy call for me. The most difficult question is the retroactive application of this. Maybe there's a middle ground, maybe not. I know in my State of New Jersey, if a police officer is convicted of a misdemeanor, he or she must undergo counseling and have his or her matter reviewed very, very closely to see if this doesn't portend some future problem that could be of a threat to the citizenry or of embarrassment to the force.
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Perhaps we can have the retroactive application of this law applied by case-by-case consideration by the States, by the local police departments, to see whether the incidents that occurred justifies the removal of the weapon, and the ending of that officer's career. I feel that there would be some justification, some confidence there that the police department doesn't want to embarrass itself by having a dangerous cop who just beat his wife continue to have a weaponor who beat his wife 6 months agojust before the retroactive period. They might be chastened by that. Maybe, that makes the retroactive application a little bit easier, if you have it reviewed on a case-by-case basis.
My mind is open. I am a strong supporter of the police, I have been for a long time, and they have been strong supporters of me.
As I said, the proactive application is an easy call for me. Maybe we can work on a compromise that will recognize my No. 1 concern, which is to protect our citizenry from domestic violence and threats of domestic violence from those who have already been convicted, and yet, recognize that this means ending the career of our law enforcement officers who committed these offenses before this law was passed. Thank you.
Mr. MCCOLLUM. Thank you, Mr. Rothman.
We have a guest today from another committee, Mr. Stupak, who's always had an interest in police matters, and particularly, in this issue, and while he has to be yielded to to ask questions today, the courtesy of the committees has always extended the opportunity to guests from other committees and Members of Congress to make an opening statement, if they wish, and I believe he does. So, Mr. Stupak, you're recognized for an opening statement.
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Mr. STUPAK. Thank you, Mr. Chairman. Thank you for the opportunity to make a statement.
My good friend, Marty Meehan, ranking member, and to members of the subcommittee, thank you for yielding me time to make a statement before this subcommittee. I appreciate your leadership on this issue, and I thank you for holding hearings on the domestic violence gun ban.
I'm speaking today because I'm concerned about the problem of domestic violence. Every year more than 1 million acts of domestic violence are committed against women by husbands, ex-husbands, current and former boyfriends. Nearly 28 percent of all women murdered in the United States each year are killed by current or former husbands or boyfriends.
As a former police officer, I have witnessed firsthand these horrible crimes, and believe that those who commit these crimes should be punished to the fullest extent of the law. I do not support or advocate the employment of police officers who have been convicted of domestic abuse. This law was never intendednever intendedto end the careers of law enforcement officers, which is exactly what this law is doing.
That's why I introduced H.R. 445, an amendment to provide for official use exemption for anyone from the gun ban for law enforcement officers. Anyone, including police officers and military personnel, who violate the law, must be subject to the same law and punishment and standards as everyone else.
Page 27 PREV PAGE TOP OF DOC Unlike other citizens, police officers carry firearms when they go to work. My bill allows police officers to carry their departmental-issued firearm while on dutynot at home, not to go hunting, or any other placejust while on duty. It's not the intent of my legislation to allow police officers who have been convicted of domestic violence to avoid punishment. Instead, my bill would allow the employing agency to determine if an incident warrants the removal of the officer's firearm.
If an incident occurs involving domestic violence with police officers, in addition to the criminal charges, the department may bring a charge of conduct unbecoming a police officer. I believe such charges should be pursued and the officer should be subject to administrative disciplinary action, or even dismissal.
While I may not agree with an officer remaining on the job given a past or present conviction, that decision should be left up to the employing agency and not Washington, D.C., in the 11th hour of a budget bill, we slide an amendment in that no one had time to look at.
I, and other members, have been floating around several different proposals to try to come to some understanding that we've dealt with. There are proposals being considered and debated, discussion drafts, if you will, including the one that Mr. Barr has proposed, H.R. 26. This law provides some relief from the law for everybody before the conviction. I believe that there may be some merit to that proposal, but I would suggest that we consider only exempting those individuals who have been convicted no more than once. If you're a repeated offender, I'm not too sure H.R. 26 should be applicable to you.
If we're going to exempt everyone retroactively, then we certainly cannot exempt the repeat offenders. I also believe that we have to find a way in each one of these circumstances beforehand that's never been defined, but define what does ''official duty'' mean, to better control the possession and use of departmental issued firearms.
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There also may be some question as to whether the implementation of the Brady Instant Check System can handle all the domestic abuse misdemeanor cases. What they do in New Jersey is much different than the way we record it in Michigan, and I think that has to be determined and discussed, and I hope we might be able to have an opportunity to address that today.
Additionally, Mr. Conyers has a proposal that would guarantee full faith and credit is given to personal protective orders by reducing the Burn grants the State receives that refuses to comply with Federal law. I believe this would be another effective way to assure personal protection orders work as intended, and I think it's a good step to help address the problem of domestic violence.
Mr. Chairman, thank you again for the opportunity to yield and to speak today. I think domestic violence is a very serious matter, and I'm glad we're taking time to examine this law. I'm willing to work with this subcommittee and any member or any advocacy groups on this issue, and I hope we will continue in our efforts to reduce the incidence of domestic violence. Thank you, Mr. Chairman.
Mr. MCCOLLUM. Mr. Stupak, you're welcome and we're glad to have you here today as our special guest.
I have several organizations that have submitted statements for the record. Because we have such a short period of time and so many people who want to be heard, we were not able to bring forth everybody and every organization with a witness. So, without objections, I would like to admit to the record the statements of Representative Helen Crenoweth the International Union of Police Associations, International Brotherhood of Police Officers, the National Troopers Coalition, the California Coalition of Law Enforcement Associations, Federal Investigators Associations, Security Companies Organized for Legislative Action, Association for Los Angeles Deputy Sheriffs, American Federation State, County, Municipal Employees, California Correctional Police Officers Association, the Riverside Sheriff's Association, American Federation of Government Employees, National Coalition Against Domestic Violence, S.T.O.P. Domestic Violence, Office of the District Attorney of Ventura County, California, and the National Rifle Association. Without objection, those statements will be entered into the record.
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[The statements of the organizations referenced above follow:]
INSERT OFFSET RING FOLIOS 1 TO 119 HERE
Mr. MCCOLLUM. We are now ready for our first panel of witnesses this morning, and as I call your names, I would appreciate your coming up and taking your seats. They represent organizations which have a strong interest in the domestic violence gun ban.
Our first witness is Mr. Bernard Teodorski, vice president of the National Fraternal Order of Police. Mr. Teodorski began his career in law enforcement with the Pennsylvania State Police in 1968, where he served until his retirement in 1993. He previously served in the Air Force and is currently the mayor of Lake City, Pennsylvania.
Welcome, Mr. Teodorski.
Next, we have Mr. Bill Johnson, who is the general counsel for the National Association of Police Organizations. Mr. Johnson is a former police officer from Old Orchard Beach, Maine. He also served as an assistant state attorney general in Miami, Florida.
And we welcome you today as well, Mr. Johnson.
Also, with us is Ms. Donna Edwards, the executive director for the National Network to End Domestic Violence. The National Network is a national membership organization of State domestic violence coalitions. Ms. Edwards has served as president of the D.C. Coalition Against Domestic Violence and was an advisor to the National Domestic Violence Hotline and National Resource Center on Domestic Violence, and was program director of the National Woman's Abuse Prevention Center. Currently, Ms. Edwards is also a commissioner on the Mayor's Commission on Violence Against Women in the District of Columbia.
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And welcome to you, Ms. Edwards.
And, finally, we have with us this morning, Mr. Ronald Hampton, the executive director of the National Black Police Association. After 22 years of service, Mr. Hampton is a recent retiree of the D.C. Metropolitan Police Department, where he held the title of community relations officer. Mr. Hampton has also served as a consultant in the area of community relations and crime prevention for the department's justice community relations service.
Welcome, Mr. Hampton.
I want to welcome all of our witnesses this morning, and I would start with you, Mr. Teodorski. You may summarize your statement. Give us some portion of it. All of the statements of these witnesses, without objection, will bethe full text of themadmitted for the record.
STATEMENT OF BERNARD H. TEODORSKI, NATIONAL VICE PRESIDENT GRAND LODGE, FRATERNAL ORDER OF POLICE
Mr. TEODORSKI. Thank you, Mr. Chairman.
Good morning, Mr. Chairman, and distinguished members of the House Subcommittee on Crime. I am Bernard Teodorski, national vice president of the Fraternal Order of Police, the largest organization of police professionals in the United States.
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I am here this morning to testify about the pressing need to amend the domestic violence gun ban, a law passed on the last day of the 104th Congress.
The Fraternal Order of Police strongly supports H.R. 26 introduced by Congressman Bob Barr, a member of this subcommittee. This bill, Mr. Chairman, will make the prohibitions on the possession of firearms and ammunition apply prospectively to all persons. The current interpretation of the law imposes a firearm disability on any person, including the law enforcement officer and military personnel, who at any time were convicted of a misdemeanor crime of domestic violence, including convictions from over 20 years ago. The Fraternal Order of Police feels, as Mr. Barr does, that the current interpretation of this law does not reflect the intent of Congress and the law needs to be amended to make it enforceable, effective, and equitable.
In addition, Senator Paul Wellstone of Minnesota has also offered a bill, S. 262, substantially identical to Mr. Barr's proposal. There is a recognition in both houses of Congress and on both sides of the aisle that the statute as currently written is not effective and not as it was intended.
We applaud Senator Wellstone for standing up for the rights of law enforcement officers whose jobs are unfairly jeopardized by the new statute and we welcome his leadership on this issue. I would also add that Senator Wellstone has been one of the foremost proponents in a fight to effect tough domestic violence laws in this country, and we are committed to working with him in this effort.
I would further add the California Coalition of Law Enforcement Associations, CCLEA, which represents virtually every law enforcement officer in the State of California, and has over 75,000 members, has recently joined the FOP by offering Congressman Barr's bill its strong and unified support. The coalition believes, as the FOP does, that the Federal statute is a flawed one, and that H.R. 26 corrects the most serious problem it poses to law enforcement. The bottom line is that the majority of all sworn law enforcement officers in the United States support Mr. Barr's bill.
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Let me now state for the record that I, the Fraternal Order of Police, and every police officer I know personally, condemn domestic violence. It is an ugly, cowardly crime which destroys families. Police officers do not look forward to answering a call to handle a domestic. As police officers, we see firsthand the violence and the heartache caused by these crimes. It should also be noted that statistics show that domestic violence incidents are among the most dangerous calls officers respond to, and the most likely to result in severe injury or even death to responding officers.
Domestic violence, Mr. Chairman, is not something we in the law enforcement community take lightly. I would respectfully submit here today that Senator Lautenberg's domestic violence offender gun ban will not prevent or end the problems of domestic violence in this country. The current law is inequitable and unfair, particularly to police officers, who are being specifically targeted under the enforcement guidelines of this law.
Mr. Chairman, no one else in the United States is being asked to sign a form stating that they do not have in their background a misdemeanor conviction for domestic violence that might prohibit them from possessing a firearm. Police officers are. To my knowledge, there is no other class of American citizen that is facing the loss of his or her livelihood because of the new law. Police officers are.
Police officers around this country are being investigated by the police administrators to determine if they are disabled and thus unable to perform their sworn duties as law enforcement officers. This is not an indication that chiefs and police administrators support this new law; indeed, most do not. Nor is there any evidence that suggests domestic violence or abuse is prevalent or common among police officers as opposed to any other group in society. Why then is enforcement of this new statute focused solely on a group of these individuals? The answer, Mr. Chairman, is simply potential liability.
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State or local governments cannot afford to have one of their police officers carrying a firearm on duty if there is a possibility that the officer may be prohibited by Federal law from carrying that weapon. Imagine the repercussions that might occur if a veteran officer with a disabling misdemeanor was involved in an incident which required use of a firearm. In discharging that weapon and stopping the suspect, he or she may be subjecting themselves to individual lawsuitssuits filed against the State or local government in addition to the Federal felony charges for possessing a firearm.
This law, whose very constitutionality is questionable, is being enforced solely among law enforcement officers because of liability concerns. Police officers should be hired only after thorough and complete background checks. Many police departments will refuse to consider the application of an individual who had a misdemeanor conviction on their record, domestic violence or otherwise.
Other departments would not retain any officer who obtains a conviction for a misdemeanor or similar offense. Departments do not, and should not, hire or retain any officer who has a history of domestic abuse. No one wants a bad copy on their force. The domestic violence offender gun ban does not make it easier to prevent incidents of domestic abuse, nor does it make it more likely that bad cops will be discovered, decertified, or dismissed from their jobs. What the new law does is unfairly penalizes good officers who made a single mistake, paid the cost of that mistake, and went on with their lives.
Mr. Chairman, I know that Congressman Barr will agree with me when I say that I doubt Congress intended to penalize those officers with the loss of their livelihood after the fact or that the battle against domestic violence is somewhat served by their termination. Let me give you some examples, Mr. Chairman, of the kind of officers who are facing the loss of their jobs because of this new law.
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Lieutenant Dale Barsness of the Minneapolis, Minnesota Police Department pled guilty in 1991 to a fifth degree domestic assault against his wife. Lieutenant Barsness, head of the department's homicide unit, was forced to give up his firearm in December, as were three other officers in that department, two of them who had over 20 years of experience on the force with a single blemish on their record. In Minnesota without a gun you can't be a law enforcement officer. Fortunately, a judge in Hennepin County used a little-known rule to set aside his guilty plea by demonstrating that the conviction created a manifest injustice. Lieutenant Barsness is now back on the job where he belongs, as are four other officers who were disarmed in similar circumstances. However, all of these officers are left in legal limbo because the county prosecutor has 60 days to appeal that expungement. Though the motion to appeal has not been yet filed, the county prosecutor has stated publicly that he will appeal any expungement granted by the county court.
There is an officer in Alparetta, Georgiaa 10-year veteran of his departmentwho pled guilty in the mid-1980's to a misdemeanor during his divorce, which may, under new Federal statute, disable him. He has been placed on desk duty for 90 days with the hope that Congress or the courts can clarify the law's application. If the current interpretation stands, the officer loses his job.
An officer with the Allen County's Sheriff's Department in Indiana successfully had his plea of guilty to a misdemeanor offense thrown out allowing him to continue to possess a firearm and return to work. This veteran patrol officer, while returning his children to his estranged wife, had inadvertently violated a court restraining order by entering her home with the children. His wife pressed charges, and to avoid additional problems, the officer pled guilty to a misdemeanor and paid a small fine. With the passage of the domestic violence gun ban, that small fine became a job-threatening disability. Fortunately, his attorney was able to convince a judge that his client was not properly advised that the constitutional right to bear arms would later be infringing upon his right of this plea. Nor, I would add, could it have been because this law was not enactedor even pending in Congressat the time of the offense.
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These, Chairman, are a few examples of what the domestic violence gun ban is affectingnot domestic abusers, but hundreds of good veteran law enforcement officers who made a mistakea terrible but forgivable mistakeearly in their lives. The full text of my written testimony contains many additional examples. In contrast, one persona non-law enforcement officerin this entire Nation has been indicted under this new law. It is for this reason the Fraternal Order of Police strongly supports H.R. 26, Mr. Barr's bill, making the provision of this law, the firearms disability, apply to individuals who were convicted on or after the date of the law's enactment; thus, making the law effective, enforceable, and equitable.
Every individual, including law enforcement officers, will be placed on notice that as a society we have a zero tolerance for domestic violence. If amended, the statute would stand for the proposition that a conviction for domestic violence, even for a misdemeanor crime, carries with it a severe penaltythe loss of a constitutional right.
Congressman Barr's bills accomplish this goal. The law will be effective. Courts, prosecutors, and law enforcement agencies will know when a conviction is handed down that the individual has lost the concurrent right to possess a firearm. The law will be enforceable, law enforcement officers and Federal agents will be able to identify and prosecute violators without the costly and resource-draining needs to search out court records in every State where the individual lived and review the facts of the case to see if they fit the criteria of this disabling Federal statute. The law will be made equitable and no further punish solid citizens and good veteran officers for offenses which they had already paid a debt to society.
The Fraternal Order of Police has also reviewed Congressman Stupak's bill, H.R. 445, which would restore the official use exemption. While we appreciate Congressman Stupak's effortshe's a very good friend of law enforcementwe are apprehensive this bill will be viewed as creating a privileged class of domestic abusers, something that we do not support. Our objection to the law introduced by Senator Lautenberg and passed by the 104th Congress existed before the official use exemption was deleted from the provision.
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I would like the record to clearly show that the Fraternal Order of Police was alone in the law enforcement community in opposing the bill when it was initially introduced. The deletion of the official use exemption for law enforcement officers, which apparently motivated many other law enforcement organizations to take a position on this law, is not our sole objection, though clearly it is a perfect example of the law's unfairness to police officers.
Congressman Barr's bill goes to the heart of many of the objections the Fraternal Order of Police had with respect to the original bill, and those in its final form. By making the disabling provision prospective, there is a huge category of prohibited persons created instantaneously. Prospective application of the disability will make the law effective, enforceable, and equitable.
I urge the members of the subcommittee to swiftly pass H.R. 26 and put an end to the uncertainty faced by hundredsperhaps thousandsof officers around the country. This subcommittee should also be aware that, on the 21st of January 1997, the Fraternal Order of Police, acting in the interest of the membership, filed in the Federal District Court in Washington, D.C., for an injunction to block the application of the law. We believe the law is unconstitutional, and the officers around this country are being unfairly deprived of their civil rights with the current interpretation and enforcement of this legislation.
Ultimately, we feel that it is the responsibility of Congress to enact laws which we are sworn to enforce to the best of our ability. We share the view of Congressman Barr that the legislation as currently interpreted does not reflect the intent of Congress.
Page 37 PREV PAGE TOP OF DOC As the national vice president of the largest law enforcement labor organization in this Nation, I urge you to pass H.R. 26 for the relief of all officers who put so much on the line for their community every day. At this time, this law is not preventing domestic violence or contributing in any meaningful way toward combating it. Instead, it is threatening the livelihoods of police officers and their families making them victims, not offenders.
In closing, I would like to thank the chairman, Congressman McCollum, and other distinguished members of this subcommittee for inviting me to testify and for giving the Fraternal Order of Police the opportunity to voice its view on the record.
Thank you, and I would be pleased to answer any questions, Mr. Chairman.
[The prepared statement of Mr. Teodorski follows:]
PREPARED STATEMENT OF BERNARD H. TEODORSKI, NATIONAL VICE PRESIDENT GRAND LODGE, FRATERNAL ORDER OF POLICE
Good morning, Mr. Chairman and distinguished members of the House Subcommittee on Crime. I would like to thank you for giving me this opportunity to address you this morning. I am Bernard H. Teodorski, National Vice President of the Fraternal Order of Policethe largest organization of police professionals in the United States. I am here this morning to testify about the pressing need to amend the ''Domestic Violence Offender Gun Ban,'' a law passed on the last day of the 104th Congress.
The Fraternal Order of Police strongly supports H.R. 26, introduced by Congressman Bob Barr, a member of this Subcommittee. This bill, Mr. Chairman, will make the prohibitions on the possession of firearms and ammunition apply prospectively to all persons. The current interpretation of the law imposes a firearms disability on any person, including law enforcement officers and military personnel, who, at any time, were convicted of a misdemeanor crime of domestic violenceincluding convictions earned over twenty years ago! The Fraternal Order of Police feels, as Mr. Barr does, that the current interpretation of this law does not reflect the intent of Congress, and that the statute needs to be amended to make it enforceable, effective, and equitable.
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Let me now state for the record that I, the Fraternal Order of Police, and every police officer I know personally, condemns domestic violence. It is an ugly, cowardly crime which destroys families. Police officers do not look forward to answering a call to handle a ''domestic.'' As police officers we see first-hand the violence and heartache caused by these crimes. It should also be noted that statistics show that domestic violence incidents are among the most dangerous calls officers respond to, and the one most likely to result in severe injury, or even death, to the responding officer.
Domestic violence, Mr. Chairman, is not something we in the law enforcement community take lightly.
The Fraternal Order of Police does not condone domestic violence, regardless of whether a State classifies it as a misdemeanor or felony. Domestic violence is always a serious crime and we support the vigorous prosecution of domestic violence offenderswhom we as police officers arrestto the fullest extent of the law. It is my understanding that Senator Frank Lautenberg of New Jersey advocated for the adoption of this law because he thought it would ''catch'' offenders who manage to ''cop a plea'' and escape more serious punishment for their actions. I share Senator Lautenberg's frustration, as do most police officers, when the offender whom they arrest for a serious crime is able to plead to a lesser offense, and is back on the streets in short order without having paid his debt to society. Whether or not these ''deals'' are cut to lighten a caseload or expedite a prosecution is irrelevant because, quite simply, many times justice is not served. No one is more aware, or more frustrated, than the victims of these crimes and the officers who struggle to keep the offenders behind bars.
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I would respectfully submit here today that Senator Lautenberg's ''Domestic Violence Offender Gun Ban'' does not address, in any meaningful way, the real problems of domestic violence. It will not prevent or end the problems of domestic violence in this country. The current law is unfair, particularly to police officers who are being specifically targeted under the enforcement guidelines of this law.
Mr. Chairman, let me make this inequity more clear to you and the distinguished Members of the Subcommittee. The Bureau of Alcohol, Tobacco, and Firearms has not been given special or additional funding to enforce the law. The agency has only issued some guidelines to local and State law enforcement agencies, including how the law applies to law enforcement officers. The end result is that no one is looking for prohibited persons in their neighborhood beats. Police officers are not visiting persons who have been convicted of domestic violence misdemeanors or combing court records to find out what cases dealing with domestic violence meet all the requirements to prohibit firearm possession. Federal agents are not checking the backgrounds of federally licensed firearms dealers to determine if they might be affected, and thus unable to conduct business. There is no evidence that military commanders are undertaking a comprehensive review of the troops under their command. As a matter of fact, Mr. Chairman, though we have been unable to substantiate it, there is every indication that the United States Armed Forces are not, nor have any intent to be, in compliance with this law.
Mr. Chairman, no one else in these United States is being asked to sign a form stating that they do not have in their background a misdemeanor conviction for domestic violence that might prohibit them from possessing a firearm. Police officers are. To my knowledge, there is no other class of American citizen that is facing the loss of his or her livelihood because of this new law. Police officers are.
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Police officers around the country are being investigated by their chiefs or police administrators to determine if they are disabled, and thus, unable to perform their sworn duties as law enforcement officers. This is not an indication that chiefs and police administrators support this new law. Indeed, most do not. Nor is there any evidence that suggests domestic violence or abuse is prevalent or common among police officers as opposed to any other group in society. Why then is enforcement of this new statute focused solely on one group of individuals? The answer, Mr. Chairman, is simple: potential liability.
State or local governments cannot afford to have one of their police officers carrying a firearm on duty if there is a possibility that the officer may be prohibited by Federal law from carrying that weapon. Imagine the repercussions that might occur if a veteran officer with a disabling misdemeanor was involved in an incident which required use of a firearm. In discharging the weapon and stopping the suspect, he or she has subjected themselves to individual lawsuitssuits filed against the State or local government in addition to Federal felony charges for possessing a firearm!
The questionable constitutionality of the statute aside, it is this disproportionate enforcement focus that is most objectionable. In creating this huge new category of prohibited persons, ATF was not given any enforcement priority or resources to enforce the new law. For the first time in the history of gun control, the Lautenberg Amendment to the Gun Control Act of 1968 applies to law enforcement officers and other ''government entities.'' Because of liability concerns, State and local police management are running background checks and enforcing this law on police officers who may have had a disagreement with their spouse twenty years ago. These are exemplary police officers and are not among the targeted repeat domestic violence offenders in the community at-large.
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The net effect of the new law, Mr. Chairman, is not what was intended by Congress. The statute has created a large new category of prohibited persons lacking adequate definitionenforcement turns on the highly fact-specific findings in each individual case. From any standpoint, the statute is an enforcement nightmare. Officers who, as young men or women, may have made an error in judgement and have since gone on to serve their communities, departments and agencies with honor and distinction should not lose their job because of this law. It weakens the law enforcement community and society's effort against domestic violence.
Police officers should be hired only after a thorough and complete background check. Many police departments will refuse to consider the application of an individual who has had any misdemeanor conviction on their record, domestic violence or otherwise. Other departments would not retain any officer who has been convicted for any misdemeanor offense. Departments do not hire or retain an officer who has a history of domestic abuse. No one wants a bad cop on their force. Unfortunately, the ''Domestic Violence Offender Gun Ban'' does not make it easier to prevent incidents of domestic abuse nor make it more likely that bad cops will be discovered, decertified, and dismissed from their jobs. What the new law does is unfairly penalize good officers who made a single mistake, paid the cost of that mistake and went on with their lives. Mr. Chairman, I know that Congressman Barr will agree with me when I say that I doubt Congress intended to penalize these officers with the loss of their livelihoods after the fact, or that the battle against domestic violence is somehow served by their termination.
Let me give you some examples, Mr. Chairman, of the kind of officers who are being disarmed and are facing the loss of their jobs because of this new law:
Page 42 PREV PAGE TOP OF DOC Lieutenant Dale Barsness of the Minneapolis, Minnesota Police Department pled guilty in 1991 to a fifth degree domestic assault against his wife. Lt. Barsness, head of his department's homicide unit, was forced to give up his firearm in December 1996, as were three other officers in his department, two of whom had over twenty years of experience on the force with only this single blemish on their record. In Minnesota, if you cannot possess a firearm, you cannot be a law enforcement officer. Fortunately, a judge in Hennepin County used a little-known rule to set aside his guilty plea by demonstrating that the conviction created a ''manifest injustice.'' Fortunately Lt. Barsness is now back on the jobwhere he belongsas are three other officers disarmed in similar circumstances. However, all of these officers remain in legal limbo because the County Prosecutor has sixty (60) days to appeal the expungement. Though the motion to appeal has not yet been filed, the County Prosecutor has stated publicly that he will appeal any expungement granted by the Hennepin County Court.
There is an officer in Alparetta, Georgiaa ten-year veteran of his departmentwho pled guilty in the mid-1980's to a misdemeanor during his divorce, may find himself disabled under the new Federal statute. He has been placed on desk duty for ninety days with the hope that Congress or the courts can clarify the law's application. If the current interpretation stands, this officer could lose his job.
The Attorney General in Georgia, Mike Bowers, has ruled that persons with a conviction for a misdemeanor crime of domestic violence will be disqualified from becoming police officers. The Attorney General but leaves the decision of how to handle currently certified and employed officers who may have such a conviction up to the individual departments and agencies. The ruling adds to the legal uncertainty for all similarly-situated law enforcement officers.
Page 43 PREV PAGE TOP OF DOC This decision has already caused the termination of four veteran deputies in Fulton County, Georgia, with ten more facing possible termination if the law remains subject to its current interpretation.
An officer with the Allen County Sheriff's Department in Indiana successfully had his plea of guilty to a misdemeanor offense ''thrown out,'' allowing him to continue to possess a firearm and return to work. This veteran patrol officer, while returning his children to his estranged wife, had inadvertently violated a court restraining order by entering her home with the children. His wife pressed charges, and, to avoid additional problems, the officer pled guilty to a misdemeanor and paid a small fine. With the passage of the ''Domestic Violence Gun Ban,'' that small fine became a job- threatening disability. Fortunately, his attorney was able to convince a judge that his client was not properly advised that his constitutional right to bear arms would later be infringed upon as a result of this plea. Nor, I would add, could it have been because the law was not enactedor even pending in Congressat the time of the offense.
William Stafford, a twelve-year veteran with the Mobile, Alabama Police Department, has a wife and three adopted children. Because of a conviction under the State's Family Violence Act, the new Federal law prevents him from carrying a firearm, meaning that he may lose his job with the force and be unable to support his family.
In Denver, Colorado, three officers were forced to turn in their guns and have been placed on administrative leave until further notice. Without a reversal or a clarification, they will lose their jobsthree veteran officers with a combined total of fifty-four years of experience on the Denver Police Department.
Page 44 PREV PAGE TOP OF DOC Fidel Ortega, a police academy instructor and eighteen-year veteran officer with the Commerce City Municipal Police Department in Colorado, has been disarmed for a domestic violence conviction he pled to twenty-one years ago.
The Maryland Port Police have suspended one officer who pled guilty to a misdemeanor eight years ago. The State FOP Attorney in Indiana has informed me that, at this time, at least six veteran officers are facing termination because of this new law. The State Lodge attorney in New Jersey tells me that between seventy-five and one hundred officers may fall into the new class of prohibited persons, placing their jobs at risk. Reports from our Arizona State Lodge show that three officers in the Mesa Police Department are affected by the new law and that their jobs are at risk. At least one officer in Jacksonville, Florida, faces termination because of this law. Another four officers have been disarmed in Arizona. Ten to fifteen sworn officers in Wyoming may be affected. A veteran officer with a department in Louisville, Kentucky, pled to a misdemeanor in Florida, thinking that it would ''go away'' in six months. His department is considering termination. An officer in Charlotte, North Carolina was forced into early retirement at reduced benefits because of a case that is two years old. In Durham, North Carolina, ten officers' jobs are in jeopardy because of potential disabling convictionshalf of which are from ten or more years ago.
These, Mr. Chairman, are just a few examples of whom the ''Domestic Violence Gun Ban'' is affectingnot domestic abusers, but hundreds of good veteran law enforcement officers who made a mistakea terrible, but forgivable mistake, early in their lives.
In contrast, only one persona non-law enforcement officerin the entire nation has been indicted under this new law.
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The Fraternal Order of Police strongly supports H.R. 26. Mr. Barr's bill makes the provisions of the law, the firearms disability, apply only to individuals who were convicted on or after the date of the law's enactment, thus making the law effective, enforceable, and equitable. Every individual, including law enforcement officers, will be placed on notice that, as a society, we have a zero tolerance for domestic violence. If amended, the statute would stand for the proposition that a conviction for domestic violence even for a misdemeanor crime, carries with it a severe penaltythe loss of a constitutional right. Congressman Barr's bill accomplishes this goal.
The law will be effective: courts, prosecutors and law enforcement agencies will know when a conviction is handed down that the individual has lost the concurrent right to possess a firearm. The law will be enforceablelaw enforcement officers and Federal agents will be able to identify and prosecute violators without the costly and resource-draining need to search out court records in every State where the individual lived and review the facts of that case to see if they fit the confusing criteria of the disabling Federal statute. The law will be made equitableand not further punish solid citizens and good, veteran officers for offenses which they have already paid a debt to society.
The Fraternal Order of Police has also reviewed Congressman Stupak's bill, H.R. 445, which would restore the ''official use'' exemption. We are not here to argue that police officers should be necessarily exempt from the laws that the rest of the populace must follow. Nor are we suggesting the creation of an elite class of domestic abusers. Our objections to the bill introduced by Senator Lautenberg, and passed by the 104th Congress, existed before the ''official use'' exemption was deleted from the provision. I would like the record to clearly show that the Fraternal Order of Police was alone in the law enforcement community in opposing the Lautenberg bill when it was initially introduced. The deletion of the ''official use'' exemption for law enforcement officers, which apparently motivated many of the other law enforcement organizations to take a position on this measure, is not our sole objection, though, clearly, it is a perfect example of the statute's patent unfairness to police officers.
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Let me review, briefly and for the record, the legislative history of the ''Domestic Violence Offender Gun Ban'' and the genesis of the Fraternal Order of Police's position on this issue.
The original bill offered by Senator Lautenberg in March of last year would have permanently revoked the constitutional right to bear arms for any person who was indicted for a ''misdemeanor crime of domestic violence.'' Our objections to this legislation were very straightforwardnowhere in the United States Code or any State statute, that we are aware of, is there any provision restricting or prohibiting the exercise of a constitutional right for a person not adjudicated guilty of any crime. For that matter, nowhere in the United States Code or any State statute, that we are aware of, is there a provision in which a misdemeanor conviction would prohibit the exercise of a constitutional right. Clearly, the bill had some serious questions as to its constitutionality. Senator Lautenberg deployed this bill to delay the passage of another bill strongly supported by the Fraternal Order of Policeironically, a bill aimed at a vicious breed of domestic abuserthe stalker.
The ''Interstate Stalking Punishment and Prevention Act'' passed the House of Representatives early last year through the efforts of Congressman Ed Royce of California, but was blocked from a Senate vote by Senator Lautenberg, who objected to considering the bill unless his ''Domestic Violence Offender Gun Ban'' was incorporated into the legislation. The ''anti-stalking'' bill's Senate sponsor, Senator Kay Bailey Hutchison of Texas wisely refused, fearing that the controversial nature of the gun ban would prevent the passage of her good legislation. Senator Hutchison's bill expanded the definition of ''victim'' to afford greater protections to persons who found themselves targeted by stalkers. The bill also recognized the need to give protection to the victim's immediate family who might also be harassed or threatened by stalkers. Most important, the bill untied the hands of law enforcement by making court-issued restraining orders effective across State lines. Under the legislation, court orders issued in one State could be enforced in another State, which, in effect, disarms any person other than an on-duty law enforcement officer.
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The Brady Law, which the F.O.P. strongly supports, provides that persons under a court-issued restraining order cannot possess firearms or ammunition. Passage of the ''anti-stalking'' bill would have effectively disarmed potential stalkers utilizing court restraining orderswhich would be enforceable across State lines. Restraining orders are more easily obtained than indictments or convictions, and the FOP felt that passage of the ''Interstate Stalking Punishment and Prevention Act'' would have given law enforcement a powerful tool in preventing stalking and other domestic violence crimes. Crimes of domestic violence are difficult crimes to investigate and prosecute, and law enforcement needs every tool in its arsenal to punish offenders. The FOP believed that this was such a bill.
The sad fact was that Senator Hutchison's bill was delayed for three months, preventing it from reaching the Senate floor for a vote. I wrote to Senator Lautenberg in early July asking him to withdraw his objections to the ''anti- stalking'' bill and let the measure pass without his amendment. I did not receive a reply. Women's and victim's rights groups joined Senator Hutchison at a press conference to urge Senator Lautenberg to allow the measure to go forward for a vote. He declined, and Senator Hutchison's bill remained stalled.
Senator Lautenberg was ultimately successful in his drive to include his language into an otherwise solid piece of legislation. The new language made some accommodations to constitutionalitythe law would have required a conviction instead of an indictment, and would require that the individual have been represented by counsel in order for the conviction to be a disabling one. The disability would take effect regardless of the date of conviction, so there remained some question as to the constitutionality of the bill. This version passed the Senate as an amendment to the Commerce, State, Justice and the Judiciary appropriations measure, which, ultimately, did not pass the Senate and was pulled from consideration by Majority Leader Trent Lott.
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I want to reiterate at this time that the Lautenberg bill retained the 925(a) exemption for ''government entities'' that has been a consistent component of the Gun Control Act since 1968meaning that police officers and military personnel would be unable to possess privately, any firearms if they were disabled, but they would be exempt from that disability while on-duty or deployed. The Fraternal Order of Police still opposed the measure, even with this exemption in place. To my knowledge, we were the only police organization to register opposition to the Lautenberg amendment.
Our opposition was based on the fact that we did not believe the law would make any real progress in the prevention of domestic violence crimes or the punishment of domestic violence offenders. Dressing up gun control measures as domestic violence laws does not make for good legislation, and the Fraternal Order of Police is not in the habit of supporting ill-advised legislation.
The final version of the Lautenberg Amendment was enacted into law as a small provision of H.R. 4278, the huge Omnibus Consolidated Appropriations Act of 1996, now Public Law 104208, Div. A, Sec. 101(f), 58 Title VI, Section 658 as the ''Domestic Violence Offender Gun Ban.''
The legislation now provides that any person who at any time earned a conviction for a misdemeanor crime involving the use, attempted use of physical force by a current or former spouse, parent, guardian of the victim is precluded from owning or possessing a firearm. Also included are persons with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. A conviction for this offense revokes the constitutional right to bear arms if the person so convicted was represented by counsel and tried before a jury, or knowing and intelligently waived those rights. An even more striking change was the deletion of the 925(a) exemption for ''government entities'' that I have previously mentioned. This exemption, a consistent element in every gun control measure since the enactment of the Gun Control Act in 1968, was removed for these misdemeanor offenses.
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Ironically, current Federal law makes it a felony for a law enforcement officer who has a misdemeanor conviction to possess firearms, which could be seized as assets, and thus rendering him or her unable to be a police officer. The same Federal law permits a police department to hire or retain an officer with a felony conviction, as that officer would still be exempt under 925(a). It goes without saying that no one with a felony conviction should be a police officer, but I think that this demonstrates a lack of clarity and consistency with respect to current Federal legislation. It furthers my belief that Congress did not and does not intend the law to be enforced as is being done today.
The bill introduced by Congressman Barr, H.R. 26, goes to the heart of many of the objections the Fraternal Order of Police had with respect to the original bill, as well as in its final form. By making the disabling provisions prospective, there is no large category of prohibited persons created instantaneously. Prospective application of the disability will make the law effective, enforceable, and equitable. I urge members of this Subcommittee to swiftly pass H.R. 26 and put an end to the uncertainty faced by hundreds, perhaps thousands, of officers around the country.
This Subcommittee should also be aware that on 21 January, 1997, the Fraternal Order of Police, acting in the interest of its membership, filed in Federal court for an injunction to block the application of the law. We believe the law is unconstitutional, and that officers around the country are being unfairly deprived of their civil rights through the current interpretation and enforcement of the statute in question.
Ultimately, though, we feel it is the responsibility of Congress to enact the laws which we are sworn to enforce to the best of our ability. We share the view of Congressman Barr that the legislation, as it is currently interpreted, does not reflect the intent of Congress. As an elected representative of the largest law enforcement labor organization in this nation, I urge you to pass H.R. 26 for the relief of officers who put so much on the line for their communities every day. At this time, this law is not preventing domestic violence or contributing in any meaningful way toward combating it. Instead, it is threatening the livelihoods of police officers and their familiesmaking them victims, not offenders.
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In closing, I would like to thank the Chairman, Congressman Bill McCollum, and the other distinguished members of this Subcommittee, for inviting me to testify and for giving the Fraternal Order of Police the opportunity to voice its views on record.
Thank you. I would now be pleased to answer any questions you might have.
Mr. MCCOLLUM. Thank you, Mr. Teodorski.
Mr. Johnson, you are recognized. Your statement will be put in the record, and you may summarize for us. Thank you.
STATEMENT OF WILLIAM J. JOHNSON, GENERAL COUNSEL, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS
Mr. JOHNSON. Thank you, Mr. Chairman, Mr. Ranking Member, distinguished members of this subcommittee.
Mr. MCCOLLUM. Your microphone isn't on. There you go.
Mr. JOHNSON. Thank you, Mr. Chairman. I wish to thank you, Mr. Chairman, Mr. Ranking Member, distinguished members of this subcommittee, and colleagues who are speaking with me here today, and distinguished guests in the audience.
I wish to try to appeal today to the sense of unity and to the sense of cohesion, and to the sense of community and accomplishment, which I believe still does exist between and amongst law enforcement groups, prosecutors, lawmakers, victim's advocates, women's advocates, and children's advocates. It is, and was, and has been, and needs to be, an extremely powerful coalition, and yet a wise coalition, a coalition that has proved itself to use its influence wisely and truly for the betterment of persons who are victimized because of their weakness.
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In my own career as a police officer and later as a prosecutor in Miami, I was very well aware of domestic violence, not in any sense of statistics or cases, but in the sense of getting bled on by people who had been beat up; of pleaing to women, ''Please tell me what happened so that I can arrest your husband,'' only to have women have so little faith, either in me or in the systemand sometimes justifiably sothat they'd rather go back to the house than trust the criminal justice system.
We have made tremendous strides from days like that. There still is much work to be done. Neither NAPO nor any police group can condone any sort of violence, no matter where it happens, in the house or out of the house.
What I am concerned about in listening to the different statements and reading the written statements and listening to my colleague, Mr. Teodorski, and some of the specific cases that he's mentioned, I, frankly, don't know if some of those individual police officers ought to be cops any more. I, frankly, don't know if they deserve to be police officers any more, if that's what they've done, but I respectfully submit to the subcommittee and to Congress that Congress doesn't know whether they should be police officers any more either.
I would respectfully submit that in a nation which employs roughly 600,000 sworn police officers across this country, that there may bejust possibly, possiblyone or two or ten officers out there who, despite having committed this crime, possibly are still of great value to their community as police officerscertainly, not a guarantee of that, but I think that if we start passing legislation which relies on assumptions either way, we get into trouble, and it's equally true if we assume that all people who fit this class are disqualified forever from this career, as if we said all people who fit this class must be hired as police.
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I believe that the law to be effectiveany law to be effective and to be respectedmust have some provision for some degree of discretion in its application. It may beand I'm sure I would agree probably with 90 or 99 percent of what victim's advocates would have to say about this, or women's advocates have to say about this, I know I certainly agreed when I was a cop and when I was a prosecutorI believe that perhaps one remaining difference that we would have is that I would argue that there is some small room, and a proper room and role, for discretion in the application of this prohibition.
I certainly agree if there is ongoing domestic violence in the home, get the guns out of that home, whether it's a plumber's home, a lawyer's home, a police officer's home, a pharmacist's home. Get the guns out of that house. I would respectfully suggest, though, that in some cases it is just possible that it is worth saving an officer's career if, in fact, there has truly been a reconciliation, if, in fact, there has been rehabilitation, if, in fact, the spouse or children are counting upon the continued employment of that officer for child support, for alimony, for maintenance of health benefits.
In closing my brief oral remarks, I would like to recognizeor I guess rememberthat NAPO, the group I represent here today, is the same police group that stood up in 1994, when almost no one else would, to support the 1994 crime bill, which included the Violence Against Women Act, the Safe Homes for Women Act, the Civil Rights Remedies for Gender Motivated Violence Act, the Equal Justice for Women in the Courts Act, the Crimes Against Children and Sexually Violent Offender Registration Act, the Assaults Against Children Subtitle, the Task Force on Missing and Exploited Children Act, and the Prohibition Against Disposal of Firearms to, or Receipt of Firearms by, Persons Who Have Committed Domestic Abuse.
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We certainly are proud of that record and would put it up against other victims' or police groups, advocacy groups in this country. All we are saying today is leave some discretion for the rare casevery rare casewhere it might be worth saving a man or woman's career.
And one other item we have with us today, which I did not have with me to submit with the written testimony which is available, NAPO conducted a nationwide survey in January of this year asking whether or notasking registered voters whether or not the governmental use exemption should be reinstated. And an absolute majority, 61 percent supports reinstatement. That significantly cuts across lines of race, across lines of gender, across lines of income.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Johnson follows:]
PREPARED STATEMENT OF WILLIAM J. JOHNSON, GENERAL COUNSEL, NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS
Mr. Chairman, honored members of this Subcommittee, fellow colleagues, on behalf of the more than 185,000 sworn, professional law enforcement officers throughout this country who are proud to call themselves members of the National Association of Police Organizations (NAPO), I thank you for today's opportunity to add our voices to those calling for fundamental fairness and due process of law for our nation's police. My name is Bill Johnson, I am a former police officer, in Maine; and prosecutor, in Miami. I now am proud to serve as General Counsel to NAPO.
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Let me begin by saying, in the clearest possible terms, that NAPO, and the officers NAPO represents, abhor violence of any sort. The men and women who serve our communities as law enforcement officers probably do more, every day of their working lives, to ameliorate and prevent the effects of violence and armed aggression than any other group of people in this country. No one sees first hand the results of violence like our police do. No one makes a greater effort, to the point of sometimes risking the forfeiture of their own lives, to stop it.
It is also crucial to emphasize at the outset of today's hearing that America's police are not asking for preferential treatment, although I believe that these men and women are certainly special, and among the best this nation has to offer. What America's police ask is simply recognition by the Congress of the same basic, fundamental rights enjoyed by all free citizens of this republic: The right of freedom from arbitrary governmental action against them. The right to be heard when their government seeks to impose punishment upon them. The right to continue to earn one's own paycheck and to use the tools of one's profession free of interference unless and until an accuser submits evidence of wrong-doing on the job. These freedoms form the very bedrock of our American experiment in the rule of law. They predate the Constitution itself. Indeed, it was for these freedoms that men and women laid down their lives in our Revolution; sacrificing all they had in order even to have the chance to frame a constitution such as ours.
It is particularly appropriate to argue for the honoring of basic human rights here, today. This Congress sits as the direct heir to the Continental Congress and the Constitutional Convention of our forefathers. It was these patriots who perceived the fundamental truth that the lawful possession of firearms by those who are disciplined in their legitimate use and who are sworn to serve the populace is one of the fundamental safeguards of liberty. Today's professional police forces are the worthy descendants of the first citizen militias organized to preserve and defend the peace from lawbreakers. It is altogether fitting, therefore, to take this time to contemplate how America treats her guardians of liberty and the rule of law: her police.
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It is crucial to understand that NAPO is today arguing for the right and duty of police departments throughout this nation to properly equip their officers, in the course, and only in the course, of the officers' duties. NAPO has no quarrel with the goal of removing firearms from the households where domestic violence is ongoing. Indeed, such a goal would certainly make our officers' jobs safer. NAPO does assert, however, that the federal firearms regulatory framework as it now exists goes too far. It would take firearms out of households regardless of whether violence is still ongoing, indeed regardless of whether any violence had ever occurred in that dwelling or in that family. It also serves to deprive the one group of men and women who depend on the lawful protection of a firearm most, of the ability to protect themselves and others (protect, not harm). This group of citizens is, of course, our professionally trained police force. Because of the public's just anger with intolerably high levels of crime, and their revulsion at society's ever-increasing level of violence, public officials throughout this country are constantly bombarded with demands for new, tougher laws, more prison space, more judges, more prosecutors, more aggressive law enforcement, and, always, more police. The police officer on patrol is correctly regarded not just as the symbol of public safety and order, but as the real, tangible servant of the law. He or she is a living, breathing example of hope in the forlorn city; of rescue on the desolate highway; of service to others and of obedience to a higher law in the face of temptation and evil. The public demands more police because they are angry and frightened, and legitimately so. But the public not only demands more police officers, they also demand more from the police that are hired. They want police who are smart, well-trained, tough when they need to be, compassionate to the less-fortunate. They want, above all, police who will reduce and eradicate crime where they live and work.
These political and societal pressures are perhaps nowhere more apparent than in the expressions of public concern over domestic violence. The multiple trials of O.J. Simpson and the Menendez brothers have served to fuel the already-heightened sensitivities to domestic violence. (It is interesting to note that the Lautenberg/Barr amendment would have saved none of the victims in those cases.) Representatives of the victims of violence are justifiably angry and understandably seek some measure of preventative deprivation of firearms in the home. However, such a ''cure'' proves ill-thought out and superficial when examined in the context of police work.
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Police work has long been recognized as an extremely stressful occupation. The risks of alcoholism, depression and even suicide are higher for police than for the public at large. It is no surprise, therefore, that police officers also suffer from a high risk of separation or divorce, yet there is no evidence of which NAPO is aware that shows a higher propensity for armed violence by police officers going through a separation or divorce as compared to the public at large. Indeed, it would appear that officers are less likely, not more, to commit violence for several reasons. One is that they have been forced to learn, by months or years of training and experience, to keep their cool in the face of provocation. Another is that they daily live a life of restraint in the use of weapons. They know every day that any use of force by them will have to be justified to superiors, investigators, prosecutors and licensing commissions. But perhaps the biggest and most effective element of restraint is the fact that an officer knows that he or she risks suspension or termination for any violation of the law, a fact of the officer's working life that distinguishes him or her from those in any other walk of life.
Our citizens may properly exercise their rights to criticize or express concern about police activities that are ongoing in the community. This criticism and comment is a facet of the American tradition of a healthy skepticism of authority. It is understood and honored by America's police as one of the parameters of policing a democratic society. Healthy and constructive criticism is to be well-received by police. Reckless bad-mouthing of the police, without regard for the facts, however, tears down police morale, destroys the public's confidence in their police, and inflames, sometimes to the point of violence, the passions surrounding controversial cases. Such defamation of the individual men and women who serve our communities as police officers serves no other purpose than to further some political agendas, or to satiate the personal desire for celebrity on the part of certain demagogues. There is, however, clearly no rational basis upon which to discriminate against police when we consider the actual likelihood of armed abuse.
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And yet, continuing to focus on the law's effect on police, we must note that police are the only group of people who, as a class, are being fired or suspended under this new law, which makes no allowance for date, circumstance, or age of conviction. Indeed the law makes no allowance for rehabilitation or reconciliation, no matter how complete. If indeed we are concerned about domestic violence, common sense would tell us that taking away the major bread-winner's job at the very moment his or her family is teetering on the brink of collapse is probably the worst thing we could do for all involved. The sudden loss of employment will inevitably lead to increased stresses within the family, and, thus, to an increased risk of domestic violence. The ability to reconcile and preserve our society's families is thus severely gutted. If, indeed the couple divorces, the ability of the bread winner to pay child support, alimony, or to maintain health insurance benefits has just been lost. Again, the practical effect of this law, when we speak of police officers, is to increase the risk of domestic discord, not alleviate it, no matter how noble the intentions of the legislators when they wrote this law.
As this subcommittee knows better than perhaps any other deliberative body in the world, public officials are bound by their duty to their constituents to seek to do whatever is possible to ameliorate the effects of crime in their communities. It is no different at the state, county or local level. Elected and appointed officials must be responsive to the concerns of the public on crime issues, or face the certainty of loss of office. Councils pressure the mayor, the mayor pressures the chief of police, and the chief orders his or her officers to be smart, be tough, be aggressive, be involved in the community, because that's what's going to reduce crime. Police agencies are compelled to be responsive to the communities which they serve. Local sheriffs and chiefs know that they must respond effectively to community concerns, or risk losing their own jobs. This fact does not fail to hold true when we talk about which officers should be hired or retained on a police force. If the intent of Congress was to distrust local chiefs and sheriffs in the process of locally hiring men and women to locally enforce state and local laws, such concern is misplaced. There is simply no need for Congress to issue a blanket ban on the local hiring or retention of local governmental employees to enforce local laws when local entities are already both sensitive and responsive to local community concerns. This one-size-fits-all approach makes no allowance for local discretion, for circumstance, for local need, nor for rehabilitation; no matter what. By directly and without exception dictating exactly who local agencies may hire or retain to enforce local laws, NAPO would respectfully assert that Congress has overstepped its bounds and trampled on the legitimate rights of State and local governments.
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This action by Congress is seen to be even less defensible when we consider that the existing federal statutory scheme for the regulation of firearms in this country has, since its inception, always recognized the constitutional requirement that state and local governments still be free to operate and enforce their own state and local laws as they, not Congress, sees fit. The so-called ''official use'' exception needs to be seen for what it is. It is not a license for individual officers to do as they please regardless of federal law; rather it is a recognition by Congress that the Constitution permits Congress to go only so far in regulating the affairs of the Republic. Much of the right, and the ability, to govern is deliberately left to States and localities, and wisely so. It is those localities which best know the local needs and wants of citizens. Please understand why the official use exception is there, it is not intended as a sop to individual officers, although an individual officer would certainly see it as a benefit to be able to keep his or her job, even if he or she could no longer possess a firearm off duty; the exception is a necessary and constitutionally mandated recognition of the fact that state and local governments may not be dictated to by Congress in matters of state and local enforcement of state and local law.
It is also important to note that the exception, which has been with us for nearly thirty years, does indeed work well. It is constitutional, it makes common sense, it is easily applied and understood, and it comports well with our nation's history of AngloAmerican jurisprudence. Since before the founding of our Republic, the right of a person to lawfully keep a firearm was understood to be an important mark of freedom and citizenship. It shared this distinction with the right to vote, to serve as a juror, and to hold property. In keeping with its importance, this right could be stripped for only the most serious of offenses, felonies. The commission of a felony brought with it the forfeiture of these rights of citizenship. Federal law has thus traditionally followed the lead of both English law and State law in denying to felons the personal right of firearm ownership. This new Barr/Lautenberg law shatters this time-honored and effective restriction of the private right to bear arms. For the first time, misdemeanants are stripped of a fundamental civil right, and retroactively at that! Now, NAPO knows very well that the right to bear arms is not our most popular right at times, yet popular or not, it survives in our Constitution to this day, just like the right to vote, to sit on a jury, or to hold property. Although taking away one's right to own (or even to temporarily possess in the course of duty) a firearm because of a domestic violence misdemeanor may be politically satisfying, it is no more constitutional than stripping a citizen of the right to a jury trial because of serious speeding violation (a misdemeanor in most states) which occured forty years ago when the citizen was sixteen. We wouldn't dream of doing that. Yet if we are honest with ourselves, we are forced to admit that the only difference between the two cases is that one is politically popular, and one would not be. Constitutionally there is no difference.
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As a practical matter, it as also important to note that the existing governmental use exceptions have not led to any increased risk of armed violence committed by police. Such happenings are extraordinarily rare. When they do happen, they make the news precisely because of their rarity. While every violent act that does occur must be prevented when possible and punished where prevention fails, it is important to point out that every violent act cited as an example by the opponents of reform was already against the law when carried out. Congress making it doubly against the law will not prevent it from happening again, if in fact someone is so consumed with rage, so blind with fury, so evil and so malevolent, that he or she would do violence to his or her own family. Such persons have, sad to say, determined to do it whatever the cost; and the fact that Congress has said ''You're not supposed to have a gun in the house anymore'' will be ignored with the same vicious contempt with which these criminals already abuse the law and loved ones alike.
How are we, then, to fix this mess which has been brought upon us? H.R. 445 provides the framework for doing so. By simply restoring the governmental use exemption, both the legitimate and weighty concerns of victims' advocates as well as those of law enforcement are served. The law would be restored to the form in which it passed the Senate, and would still allow the removal of firearms from any home (including a policeman's) where domestic violence is occurring. It would still make criminal the violation of its provisions. It would still provide a deterrent against abuse. And, while accomplishing all these things, H.R. 445 would additionally allow local officials to decide whether or not any one individual officer should lose his or her job or should be rehabilitated, counseled, disciplined, evaluated, suspended, reconciled, demoted, restricted, censured, reprimanded, treated or reassigned instead. Note please that H.R. 445 does not require any agency anywhere to hire or retain any domestic offender. It does, however, allow for the possibility that maybe, just maybe, out of the more than 600,000 law enforcement officers in this nation, there are one or two or ten who can be and still are good cops of great value to their communities, despite a one-time offense for which they have already repented and paid whatever price was to be had.
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In closing, let me emphasize that NAPO is the same police group which stood up in 1994 when almost no one else would, to support the 1994 Crime Bill, which included the Violence Against Women Act; the Safe Homes for Women Act; the Civil Rights Remedies for Gender-Motivated Violence Act; the Equal Justice for Women in the Courts Act; the Crimes Against Children and Sexually Violent Offender Registration Act; the Assaults Against Children Subtitle; the Task Force on Missing and Exploited Children Act; and the Prohibition Against Disposal of Firearms to, or Receipt of Firearms by, Persons Who Have Committed Domestic Abuse. We are the same group which took the heat to defend the Assault Weapons Ban and The Brady Bill when it was unpopular to do so. We would willingly put our record against violence and for the protection of children and women against any other group's in the country. Congress respected our advice then: Please listen to us now. Reinstate the governmental use exception. Help get firearms out of the homes where violence is in fact ongoing, regardless of the occupations of the parties involved. But help the good cops who are out there retain their careers when (and only when) that is the right thing to do.
On behalf of the more than 185,000 sworn, rank-and-file law enforcement officers represented here today by NAPO, I thank you for your time and your attention to these critically important matters.
(In accordance with House Rule XI, clause 2(g)(4), Mr. Johnson's curriculum vitae is attached. Neither Mr. Johnson nor NAPO has received, in this or either of the two preceding fiscal years, any federal grant, contract or subcontract. NAPO does have a sister 501(c)(3) organization, the Police Research and Education Project, Inc. (PREP), which has received federal Office of Justice Programs grants in this and the immediately preceding fiscal year: One in the amount of $103,022.84 and one in the amount of $145,626.97, awarded to PREP to conduct an ongoing study of the causes, effects, and reduction of police officer stress in the family.)
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GEORGETOWN UNIVERSITY LAW CENTER
Georgetown Criminal Justice Clinic
Providence, Rhode Island
A.B., Organizational Behavior and Management, 1985.
MAINE CRIMINAL JUSTICE ACADEMY
Reserve Police Officer Certificate, 1985.
NATIONAL ASSOCIATION OF POLICE ORGANIZATIONS, INC.
General Counsel, January, 1995 to Present.
NATIONAL LAW ENFORCEMENT OFFICERS' RIGHTS CENTER
General Counsel, January, 1995 to Present.
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PALM BEACH COUNTY POLICE BENEVOLENT ASSOCIATION
West Palm Beach, Florida
General Counsel, 1993 to 1995.
STATE ATTORNEY'S OFFICE
Assistant State Attorney, 1988 to 1993.
Felony Trial Attorney, 1990 to 1993.
Chief, Misdemeanor Division, 1989 to 1990.
Designated Attorney for cases involving mentally ill defendants and for prosecuting involuntary civil commitments, 1988 to 1989.
Misdemeanor Trial Prosecutor, 1988.
UNITED STATES ATTORNEY'S OFFICE,
EASTERN DISTRICT OF VIRGINIA
Certified Legal Intern-Prosecutor, 1988.
PUBLIC DEFENDER SERVICE, DISTRICT OF COLUMBIA
Certified Legal Intern-Defense Counsel, 1987.
HONORABLE LUKE C. MOORE
Judge, Superior Court of the District of Columbia
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Law Clerk, 1987.
SKADDEN, ARPS, SLATE, MEAGHER AND FLOM
Paralegal-Proofreader, 1986 to 1987.
POLICE DEPARTMENT, TOWN OF OLD ORCHARD BEACH, MAINE
Patrolman, 1985 and 1986.
LECTURES AND PRESENTATIONS
PRESENTATION: ''THE DEVELOPING CASELAW REGARDING THE INTERSECTION OF THE AMERICANS WITH DISABILITIES ACT WITH PUBLIC SECTOR PENSION AND DEFERRED COMPENSATION PLANS.'' Legal Education Presentation to Attorneys and Benefit Plan Trustees; West Palm Beach, Florida; 1996.
LECTURER: ''THE ROLE OF POLICE IN A DEMOCRATIC REPUBLIC.'' Guest Lecturer at American University's ''Semester in Washington'' Program for College Juniors; Washington, D.C.; 1996, 1997.
WITNESS: HEARINGS BEFORE THE SUBCOMMITTEE ON CRIME OF THE UNITED STATES HOUSE OF REPRESENTATIVES COMMITTEE ON THE JUDICIARY. Testified on pending federal legislation regarding procedural due process, background checks, and health care for police, and the carrying of firearms by off-duty police; Washington, D.C.; 1996.
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PRESENTATION: ''COPS HAVE RIGHTS, TOO!: IN DEFENSE OF AMERICA'S POLICE.'' Featured Speaker Before the Minnesota Peace and Police Officers Association's Annual Legislative Conference; Minneapolis, Minnesota; 1996.
SPEAKER: ''THE AVAILABILITY AND REQUIREMENT OF SPECIFIC REMEDIES UNDER THE AMERICANS WITH DISABILITIES ACT.'' Presentation to Union Representatives and Attorneys; Palm Beach County P.B.A.; West Palm Beach, Florida; 1996.
LECTURER: ''CURRENT LEGAL ISSUES OF INTEREST TO LAW ENFORCEMENT OFFICERS AND ASSOCIATIONS.'' Presentation Before the Mid-States Police Conference's Annual Meeting; Bettendorf, Iowa; 1995.
LECTURER: ''DOWNSIZING: PROBLEM OR SOLUTION IN AMERICAN LAW ENFORCEMENT?'' Presentation Before the Canadian Police Association's Annual General Meeting; Victoria, British Columbia, 1995.
SPEAKER: ''LEGISLATIVE PRIORITIES OF THE 104TH CONGRESS OF INTEREST TO LAW ENFORCEMENT.'' Presentation to Attendees at the National Association of Police Organizations's Annual Legislative Conference; Washington, D.C.; 1995, 1996.
INSTRUCTOR: ''UPDATE ON THE AMERICANS WITH DISABILITIES ACT: THE YEAR IN REVIEW.'' Educational Presentation to Public Safety Pension Plan Administrators, Trustees and Participants at the Annual Pension and Benefits Seminar of the National Association of Police Organizations; Naples, Florida, 1995.
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LECTURER: ''IMPACT OF THE AMERICANS WITH DISABILITIES ACT UPON PUBLIC EMPLOYEE PENSION PLANS.'' Presentation Before the Policemen's Benevolent and Protective Association of Illinois; Springfield, Illinois, 1994.
LECTURER: ''IMPACT OF THE AMERICANS WITH DISABILITIES ACT UPON LAW ENFORCEMENT.'' Presentation Before the National Association of Police Organizations's Annual National Convention; Minneapolis, Minnesota, 1994.
INSTRUCTOR: ''OVERVIEW OF THE LAW ENFORCEMENT LABOR REPRESENTATIVE FUNCTION.'' Legal Training for Jobsite Representatives; Palm Beach County P.B.A.; West Palm Beach, Florida, 1994.
LECTURER: ''USE OF DEADLY FORCE BY LAW ENFORCEMENT OFFICERS.'' Palm Beach County Sheriff's Office; West Palm Beach, Florida, 1993.
MODERATOR: ''COMMON ETHICAL DILEMMAS: RECOGNIZING THEM AND COPING WITH THE STRESS.'' Florida Bar Continuing Legal Education Presentation; Tampa, Florida, 1991.
LECTURER: ''BRIDGE THE GAP.'' Florida Bar Basic Skills Course for New Attorneys; Topic: Stress Management; Miami, Florida, 1989, 1990, 1991.
LECTURER: ''POLICE DEPARTMENT RESPONSIBILITIES UNDER THE BAKER ACT.'' Dade County Police-Prosecutor Coordination Committee; Miami Beach, Florida, 1989.
INSTRUCTOR: ''POLICE RESPONSIBILITIES IN THE CIVIL COMMITMENT OF MENTALLY ILL PERSONS.'' Legal Training for Police Recruits for Metro-Dade Police Department; Southeast Florida Institute of Criminal Justice (Police Academy), Miami-Dade Community College; Miami, Florida; 1989.
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INSTRUCTOR: ''DEALING WITH MENTALLY ILL AND DRUG- AND ALCOHOL-IMPAIRED OFFENDERS.'' Legal Training for Police Recruits; Miami Police Department; Miami, Florida, 1989.
LECTURER: ''OVERVIEW OF FLORIDA'S CIVIL COMMITMENT STATUTES AND PROCEDURES.'' Physician In-House Training Program; Department of Psychiatry, Jackson Memorial Hospital; Miami, Florida, 1989.
LECTURER: ''NEW ATTORNEY TRAINING PROGRAM.'' Topics: Search and Seizure, Speedy Trial, Parole and Probation, Mentally Ill Defendants, Misdemeanor Prosecution, Stress Management. State Attorney's Office; Miami, Florida, 1989, 1990, 1991, 1992.
INSTRUCTOR: ''STREET LAW.'' High School-Level Law Course for Inmates at Lorton Reformatory; Lorton, Virginia, 1987.
States and the District of Columbia:
Supreme Court of Florida
Supreme Judicial Court of Maine
Court of Appeals of the District of Columbia
Supreme Court of the United States
United States Court of Appeals for the Eleventh Circuit
Page 67 PREV PAGE TOP OF DOC United States Court of Appeals for the District of Columbia Circuit
United States Tax Court
United States Court of Appeals for the Armed Forces
United States District Court for the Southern District of Florida (Both General and Trial Bars)
APPOINTMENTS AND ASSOCIATIONS
NATIONAL LAW ENFORCEMENT LIAISON TO THE AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION, TASK FORCE ON TECHNOLOGY AND LAW ENFORCEMENT, 1996 to present.
AMERICAN DELEGATE TO FOUNDING SESSIONS OF THE INTERNATIONAL LAW ENFORCEMENT COUNCIL, Windsor, Ontario, Canada 1996.
PUBLIC SAFETY LABOR ATTORNEYS' GUILD OF FLORIDA, 1994 to present. (Co-founder and Past President)
FLORIDA PROSECUTING ATTORNEYS ASSOCIATION, 1988 to 1993.
CAPITAL CASES COMMITTEE OF THE FLORIDA BAR, 1990 to 1992.
PROFESSIONAL STRESS COMMITTEE OF THE FLORIDA BAR, 1989 to 1991.
NATIONAL LAW STUDENT DELEGATE TO AMERICAN BAR ASSOCIATION, CRIMINAL JUSTICE SECTION, COMMITTEE ON CRIMINAL JUSTICE STANDARDS, 1987 to 1988.
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Born Chicago, Illinois, 1963. Married, three children. Interests include sailing, traveling, camping and early American history. Community interests include playing semi-professional football for charity as part of the National Police Football League.
Mr. MCCOLLUM. Thank you, Mr. Johnson.
Ms. Edwards, you're recognized. Your statement will be admitted in the record, and you may summarize.
STATEMENT OF DONNA F. EDWARDS, EXECUTIVE DIRECTOR, NATIONAL NETWORK TO END DOMESTIC VIOLENCE
Ms. EDWARDS. Thank you, Mr. Chairman and members of the Subcommittee. I appreciate being able to testify today here on behalf of the National Network to End Domestic Violence and the many domestic violence organizations, women's organizations, church groups, and others who stand in strong support of the domestic violence gun offender law that passed in 1996.
I would note that among the organizations supporting the domestic violence gun offender ban are State domestic violence coalitions whose member programs every day deal with victims of domestic violence, from Florida, New York, Indiana, Massachusetts, Georgia, Tennessee, and my home State of North Carolina.
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The weakening proposalsand I do view them as weakening proposalsthat have been introduced thus far in this Congress, I believe are misguided and really do not take into consideration the repetitive and escalating nature of domestic violence. I would urge this subcommittee and the Congress to resist these attempts to gut this law.
It was then, and it remains, the right thing to do. Convicted batterers should not have gunsno exemptions, no exceptions. The gun prohibition is a critical tool to protecting victims of domestic violence from gun violence. In 1994, 28 percent of the 4,739 women who were murdered, were slain by a husband or boyfriend.
The Federal Bureau of Investigation reports that guns were used in seven out of ten murders in the United States during that same year. What we know about domestic violence must inform what we do with regard to this law, and here is what we know.
We know that domestic violence is a crime which is often characterized by a pattern of abusive behavior, verbal and physical, which escalates in frequency and severity over time. Recidivism rates for domestic violence are extraordinarily high. Studies of domestic violence crimes indicate that battered women may be assaulted numerous times over the course of a year.
In one study, 47 percent of admitted batterers report three or more assaults per year. By the time of a 911 call on arrest, numerous incidences of domestic violence will likely have occurred prior to or apart from justice system intervention.
Page 70 PREV PAGE TOP OF DOC It is appropriate that the Congress look at these crimes of domestic violence in terms of past behavior to determine criteria for possessing or purchasing a firearm. It's common sense and it's sound public policy to get the guns out of the hands of persons convicted of misdemeanor domestic violence crimes before they become domestic violence homicides.
The presence of a firearm in the home poses a significant risk to battered women and their children. Overall, family and intimate assaults involving firearms are 12 times more likely to result in death than all non-firearm family and intimate assaults. In the face of this kind of evidence, it is unquestionable that the Congress has acted rationally and appropriately to prohibit the future purchase or possession of a firearm by any domestic violence misdemeanant.
I am surprised, in fact, that police officer associations would ask to be exempted from this law, to be held to a different lower standard than ordinary citizens. And, Mr. Chairman, I would note that during the 104th Congress, when this law passed, we witnessed the house leadership remove rules that exempted Members of Congress from the application of the laws that the rest of us have to live by. Surely, the same kind of standard ought to be applied to all government officials, to police officers, and to military personnel.
In the words of Colonel Margaret Patten of the Baltimore Police Department, a badge is a very small but important part of a police officer's uniform. The badge signifies many attributes, among them integrity, bravery, and sensitivityit's a symbol of honor. It's not a shelf behind which criminals should feel comfortable hiding. Those who are responsible for enforcing the law should be expected to obey the lawno exemptions, no exceptions. Convicted batterers should not have guns.
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And, let me just say in closing, and then I'd be happy to take questions, that it is true that a unique relationship has been forged between law enforcement, women's organizations, domestic violence victim advocate organizations, prosecutors across the country who are using the resources provided by this Congress to do the right thing in treating domestic violence seriously.
But this law is not about cops. It's about crime. It's about the crime of domestic violence that impacts families across this country every day, and the presence of a gun in the home puts women in danger, puts children in danger, and when we have to balance women's laws versus the right of convicted batterers, we must come on the side of women's laws, of children's laws, and end the scourge of domestic violence.
[The prepared statement of Ms. Edwards follows:]
PREPARED STATEMENT OF DONNA F. EDWARDS, EXECUTIVE DIRECTOR, NATIONAL NETWORK TO END DOMESTIC VIOLENCE
Mr. Chairman and members of the Subcommittee, thank you for inviting me to testify today. My name is Donna Edwards. I am an attorney and executive director of the National Network to End Domestic Violence. The National Network is a membership organization of state domestic violence coalitions, which collectively represent nearly 2,000 shelters and domestic violence programs throughout the United States.
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I am here today in strong support of the Domestic Violence Offender Gun Ban passed during the 104th Congress. Several bills have been introduced in the 105th Congress to substantially weaken the domestic violence offender gun ban by radically limiting its application. These bills include H.R. 26, introduced by Rep. Barr (DGA), H.R. 445, introduced by Rep. Stupak, and in the Senate, S.262, introduced by Sen. Wellstone (DMN). These weakening proposals are misguided and fail to take into account the repetitive and escalating nature of domestic violence. I urge this Subcommittee and the Congress to resist these attempts to gut this law. It was then and remains the right thing to do. Convicted batterers should not have gunsno exceptions.
Mr. Chairman, when Congress passed the Domestic Violence Offender Gun Ban in 1996, those who work with domestic violence victims applauded the law as another example that Congress and the President are firmly committed to ensuring the safety of battered women and their children. For the last several years, Congress has taken positive steps to deal with domestic violence: passing the Violence Against Women Act, fully funding shelters and services, fully funding programs to improve criminal justice system response to violent crimes against women, and passing the domestic violence offender gun ban.
And now, just as we are moving forward in implementing a nationwide zero-tolerance approach to domestic violence, some members of this body are initiating a giant step backward with proposals to gut or weaken the very law that protects domestic violence victims from gun violence. These proposals are wrong. They are dangerous. And passage of any such weakening legislation would represent a retreat from the Congress' commitment to ensure the safety of battered women and their children.
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The gun prohibition is a critical tool for protecting victims of domestic violence from gun violence. In 1994, 28 percent of the 4,739 women who were murdered were slain by a husband or boyfriend. The Federal Bureau of Investigation reported that guns were used in 7 out of 10 murders in the United States during that same year.1\ And, while critics allege that the domestic violence offender gun ban is unfair because it applies retroactively to convictions that occurred before the effective date of the law, the evidence supports the law. The Domestic Violence Offender Gun Ban takes into consideration that domestic violence is a crime which is often characterized by a pattern of abusive behavior,2\ verbal and physical, which escalates in frequency and severity over time.3\ Recidivism rates for domestic violence are high.4\ Studies of domestic violence crimes indicate that battered women may be assaulted numerous times over the course of a year. In one study, 47 percent of admitted batterers report three or more assaults per year.5\ By the time of a 991 call or an arrest, numerous incidences of domestic violence will likely have occurred prior to or apart from justice system intervention. Moreover, to the extent criminal charges result in a domestic violence incident, it is likely to be charged and prosecuted as a misdemeanor crime.6\ As these statistics suggest, a conviction for a misdemeanor domestic violence crime may belie the frequency and severity of many of these crimes. It is appropriate in these crimes to look to past behavior to establish criteria for possessing or purchasing a firearm in the future. It is common sense and sound public policy to get the guns out of the hands of persons convicted of misdemeanor domestic violence crimes.
The presence of a firearm in the home poses a significant risk to battered women and their children. In a 1992 study of family and intimate assaults reported in the Journal of the American Medical Association, researchers found that ''firearms were three times more likely to result in deaths than assaults involving knives or other cutting instruments and 23.4 times more likely to result in death than family and intimate assaults involving other weapons or bodily force. Overall, family and intimate assaults involving firearms are 12 times more likely to result in death than all non-firearm family and intimate assaults.'' 7 In the face of this evidence, it is unquestionable that the Congress has acted rationally and appropriately to prohibit the future purchase or possession of a firearm by any domestic violence misdemeanant.
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Surprisingly, some do not believe the ban should apply to government officials, including police officers. That is, government officials, including police officers, should be held to a different, lower standard than ordinary citizens. This position is untenable, and an exemption for police officers and other government officials from this law is unacceptable. In the words of Colonel Margaret Patten of the Baltimore Police Department, ''a badge is a very small but important part of a police officer's uniform. The badge signifies many attributes, among them integrity, bravery and sensitivity. It is a symbol of honor. It is not a shield behind which criminals should feel comfortable hiding.8\ At least since the mid1970's, law enforcement agencies and officers have been on notice that the public is not tolerant of domestic violence. Laws passed in state legislatures during the last two decades to encourage arrest of batterers; and policies have changed within police departments to handle domestic violence crimes seriously.9\ Those who are responsible for enforcing the law should be expected to obey the lawno exemptions, no exceptions. Convicted batterers should not have guns.
Moreover, studies which have examined incidences of domestic violence in police officer families indicate an extraordinarily high rate of domestic violence. In testimony before the Select Committee on Children, Youth and Families during the 102nd Congress, Dr. Leanor B. Johnson (Family Studies, Arizona State University) stated that 40 percent of police officers reported that in the last six months prior to the survey they had behaved violently towards their spouse or children. In another survey, approximately 41 percent of police officers reported marital conflicts involving physical aggression during a conflict during the previous year. These overall rates of violence are considerably higher than those reported for a random sample of civilians and somewhat higher than military samples.10 In a survey conducted by researcher Peter Neidig in 1991 at the 50th Biennial Conference of the Fraternal Order of Police, officers ranking sergeants and above (and averaging 19 years in law enforcement) reported rates of domestic violence of 24 percent. In a survey of post-shooting trauma and domestic violence, researchers found that 13.85 percent of police officers involved in a shooting incident in which they discharged their firearm or were fired upon reported incidences of marital violence ranging from slapping the officer's partner to threatening the partner with a service revolver.11 According to researchers Neidig and Seng, the findings of high incidences of domestic violence by police officers are troubling as are ''the implications that law enforcement personnel may be violating the increasing number of domestic violence statutes they are called on to enforce at a higher rate than that of the general population.''12
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Spouses and partners of police officers face tremendous obstacles in reporting and seeking help when they are battered. The code of silence among officers makes victims reluctant to come forward.13 Too often these victims have no one to whom they can turn to report the crime and little confidence that their spouse or partner's colleagues will move disciplinary actions or criminal charges forward.14 These fears by victims are not unfounded. In a 1995 survey of 123 police agencies, 28.4 percent reported increases in domestic violence in cases involving on- or off-duty officers in the past 24 months. And, yet this survey also found that 45.3 percent of departments have no specific policy of dealing with domestic violence among police officers. Moreover, while some 78.4 percent of departments surveyed acknowledge changing attitudes of intolerance towards domestic violence, even for second sustained complaints termination was pursued as normal procedure by only 19 percent of departments. Just over 48 percent of departments would initiate suspensions for a second sustained complaint.15 Clearly these internal disciplinary practices are inadequate to protect officers' spouses and partners.
These data about domestic violence by police officers suggest that any attempt to exempt police officers from the Domestic Violence Gun Offender Ban is a step in the wrong direction. Indeed, the alarming data on domestic violence by police officers point to an urgent need for change in police departments: zero-tolerance of domestic violence by police officers, training to address officers' handling of domestic violence cases and domestic violence within the ranks, reevaluation of and strengthened internal disciplinary practices when domestic violence is present, and supportive services for spouses and partners of police officers who batter.
Page 76 PREV PAGE TOP OF DOC The new law is a common sense approach to remove guns from persons convicted of misdemeanor domestic violence crimes. And, while some have complained about the difficulty of tracking domestic violence misdemeanor offenders and the potential loss of police officer jobs, other police departments have welcomed the law. Austin, Texas, Police Chief Elizabeth Watson said in a recent interview, ''I think it's a good law . . . I'm very supportive of sanctions regarding domestic violence. We need to take advantage of every opportunity to deliver a message, not only as police officers, but as a community that we need to be intolerant of this activity.'' 16 None of the Austin police department's 1,000 officers is affected by the new law. And while estimates by police organizations are that as many as 60,000 officers might be affected, independent sources indicate otherwise. A ''USA TODAY survey of 25 law enforcement agencies, including those in the nation's 15 largest cities, found that of the more than 100,000 officers there, 152 could lose their firearms or jobs. Most are in New York City, which has the nation's largest police force.'' 17 Clearly with such disparities in these estimates, ranging from less than one-tenth of one percent to 10 percent, Congress should ask the Department of Justice to study this issue before making any radical changes in our present public policy of protecting battered women and their children from gun violence.
Mr. Chairman, at a time when the Congress has committed $145 million for fiscal year 1997 to improve criminal justice system response to domestic violence, $33 million for grants to states to encourage arrest policies for domestic violence, $72 million for shelters and services to support victims, as well as other funding to states to implement community policing domestic violence programs, now is not the time for retreat. Throughout the states and local jurisdictions, police departments are working in collaboration with prosecutors and victim services providers to improve criminal justice system response to domestic violence. We are just beginning to see an opportunity for change. It would be tragic for this Congress to send the message that we are not concerned about domestic violence homicides or the potential for severe injury or death when there is a gun present in the home of a person convicted of a domestic violence misdemeanor. For the sake of battered women and children, I urge you to remain steadfast in your commitment to end domestic violence.
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1\ Federal Bureau of Investigation. Crime in the United States 1994: Uniform Crime Reports. U.S. Department of Justice, p.17.
2\ Klein, C.F. and Orloff, L.E., Providing Legal Protection for Battered Women An Analysis of State Statutes and Case Law. 21 Hofstra Law Review 801, at 900, n. 599 (1994).
3\ American Medical Association. Violence Against Women: Relevance for Medical Practitioners. 267 JAMA 3184 (1992). See also, National Committee for Injury Prevention and Control. Domestic Violence, 5 Am J Prev Med 223, Supp. (1989); Stark, E. and Flitcraft, A. (Rosenberg, M., Fenley, M., eds.), Violence in America: A Public Health Approach, Oxford University Press, NW (1991), p. 12357.
4\ Langan, P.A., and Innes, C.A. Preventing Domestic Violence Against Women. Bureau of Justice Statistics Special Report NCJ102937. U.S. Department of Justice, Washington, D.C. (1986).
5\ Supra note 1 at n. 601,603.
6\ Gwinn, C.G. and O'Dell, A. Stopping the Violence. 1501 Western State University Law Review 1993, at 1511 (1993). ''Sophisticated abusers can inflict incredible violence without leaving any physical marks and yet the vast majority of domestic violence cases end up being categorized as misdemeanors. It is a tragic mistake to assume these cases are therefore insignificant.''
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7\ Saltzman, L.E., Mercy, J.A., O'Carroll, P.W., Rosenberg, M.L., Rhodes, P.H., Weapon Involvement and Injury Outcomes in Family and Intimate Assaults. 267 JAMA 22 (1992). See also, Kellermann, A., et al., Gun Ownership As A Risk Factor For Homicide In the Home. 329 The New England Journal of Medicine 1084 (1993). In a study of three counties in Tennessee, Washington, and Ohio, researchers found that the risk of homicide is markedly increased in homes where a person has previously been hit or hurt in a family fight. In 31.8 percent of the cases there were reports that someone in the household had previously been hit or hurt.
8\ Patten, M., Domestic Violence Behind the Badge, Subject to Debate, A Newsletter of the Police Executive Research Forum, September 1996.
9\ Jones, A. Next Time She'll Be Dead. Beacon Press (1994), p. 14149.
10 Neidig, P., et al., Interspousal Aggression in Law Enforcement Families, A preliminary Investigation, 15 Police Studies, International Review of Development (Spring 1992).
11 Reese, J.T. and Scrivner, E., Law Enforcement Families: Issues and Answers (1994). Swann &D'Agostino, Post-Shooting Trauma and Domestic Violence: Clinical Observtions and Preliminary Data, 1991.
12 Neidig, P., et al., FOP Marital Aggression Survey, National FOP Journal, Fall/Winter 1992, p. 26.
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13 Lott, L.D., Deadly Secrets, Violence in the Police Family, 12 FBI Law Enforcement Bulletin Nov. 1995.
14 Law Enforcement News, Policing's dirty little secret?, Volume XVII, No. 334, April 15, 1991. See also, Shines, G., Chicago's Holistic Approach to a Serious Problem, Subject to Debate, A Newsletter of the Police Executive Research Forum, September 1996.
15 Domestic Assault Among Police: A Survey of Internal Affairs Policies, Southwestern Law Enforcement Institute (1995).
16 Law Enforcement News, Police careers may take a beating from Fed domestic-violence law, February 14, 1997.
17 USA TODAY, GUN LAW COULD DISARM COPS, CHIEFS SAY, Wednesday, February 26, 1997.
INSERT OFFSET RING FOLIOS 120 TO 122 HERE
Mr. MCCOLLUM. Thank you, Ms. Edwards.
Mr. Hampton, you're recognized. Again, your statement is fully entered into the record. You may summarize.
Page 80 PREV PAGE TOP OF DOCSTATEMENT OF RONALD E. HAMPTON, EXECUTIVE DIRECTOR, NATIONAL BLACK POLICE ASSOCIATION
Mr. HAMPTON. Yes, sir. Good morning, Mr. Chairman, and members of the committee. I would like to thank you for permitting the National Black Police Association the opportunity to provide testimony on this important issue.
The National Black Police Association is an advocacy organization that represents over 130 local African-American police chapters across the United States with approximately 35,000 members. The NBPA is here today to testify opposing the present attempt to exempt government entities from the domestic violence gun ban and to back the retroactive enforcement of the Lautenberg domestic violence law. The NBPA supports the domestic violence offender gun ban and the Federal law that imposes firearm disabilities on any person at any time of any misdemeanor crime involving domestic violence.
We feel very strongly that we should hold law enforcement persons to a high standardnot a different standard. At a time when the relationship between the community and the police is constantly deteriorating, we believe this effort by police unions and other associations is misguided and will result in the continued widening gulf between the police and the community.
Mr. Chairman, I didn't want to read the whole statement, but I wanted to share a story with you. I just recently retired from the police department, and I think there has been a great deal of improvement in the relationships between law enforcement grassroot organizations and those associations that have been talking about this issue for years. Law enforcement has been very slow to respond to this. I remember years ago sitting in roll call in the 3rd District Metropolitan Police Department. Officers on a regular basis would show up in roll call and talk about having to respond to Mrs. Jones' house on Euclid Street on Friday because they knew on Thursday Mr. Jones got paid, and they would have to be going back to constantly respond to calls of service for domestic violence. Because there was no laws in place, they said we had to mandatorily arrest the person, take the person out of the home, take him to the police precinct, and the prosecutorwe would go in and tell him to take a walk around the blockknowing full well that when they walked around the block, they were going to come back to their home. So, eventually, we would go back and take Mrs. Jones out in a body bag.
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It's a direct result of laws now that were put in place that brought law enforcement to the point that they reacted to that, not that individuals in law enforcement knew that they needed to do something, because they knew they needed to do something. They recognized that there was a crime that had occurred, but refused to respond to it, also, because I think of the culture of law enforcement, but also because there were no laws in place. Now that we have laws in placeand I want to recall that a law, some behavior on the part of the police in relationship to domestic violence and responding to it, happened in the State of Minnesota that caused the law to be put in place where we have to now take the person out of the home or make an arresta mandatory arrestwhen we see evidence of domestic violence.
But to suggest that there's a love fest, I haven't seen that, and like I say, I just retired in 1994. The whole notion of holding people to a standard, people who serve in uniform ought to be the standard. Their behavior ought to be above and beyond that of what it is that we want to set for our society. To somehow or another exempt these individuals is a bad notion.
And, in closing, I would just say, I think that there are exemptions that already exist. My learned colleague at the other end of the table just cited a story where a lieutenant's case had gone before a judge and he was givenhis conviction was set aside so he could keep his job. That's been the problem all along. They always come up with exceptions for the law enforcement community in the name of keeping our community safe. And somehow I know that sounds contradictory to me, that those whose job it is to protect our society can be given exemptions if they happen to have committed crimes. It seems like to me that what we ought to do is somehow not have anybody protecting our community or us who have been convicted of a crime.
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I'd be glad to answer any questions. Thank you.
[The prepared statement of Mr. Hampton follows:]
PREPARED STATEMENT OF RONALD E. HAMPTON, EXECUTIVE DIRECTOR, NATIONAL BLACK POLICE ASSOCIATION
Good morning, Mr. Chairman and members of the committee. I would like to thank you for permitting the National Black Police Association (NBPA) an opportunity to provide testimony on this important issue. The National Black Police Association is an advocacy organization that represents 130 local African American chapters, across the United States, with approximately 35,000 members.
The NBPA is here today to testify opposing the present attempt to exempt Government entities from the Domestic Violence Gun Ban and to block the retroactive enforcement of the Lautenberg Domestic Violence Law. The NBPA supports the Domestic Violence Offender Gun Ban and the Federal law that impose a firearm disability on any person convicted, at any time, of a misdemeanor crime involving domestic violence.
We feel very strongly that we should hold law enforcement persons to a higher standard, not a different standard. It seems this is the very thing we do not need. At a time when the relationship between the community and the police is constantly deteriorating, we believe this effort by police unions and other associations is misguided and will result in the continued widening gulf between the community and the police.
Page 83 PREV PAGE TOP OF DOC Legislators and supporters of law and order should not forget for whom they work. We believe it is very important that the message, as well as the standard of behavior of individuals in policing, should be a model for the rest of society. Individuals in law enforcement should not be permitted exemption simply because of their job in our community.
As a symbolic matter, the prospect of losing one's weapon is highly charged, and often cited as a major reason officers may not willingly seek assistance for the high incidence of stress-related difficulties facing police. Weapons are used in 30% of all domestic violence incidents and according to the FBI, policing has the highest proportion of batteries of all U.S. occupations. In 1995, 40% of police questioned acknowledged using physical force with a partner in the past year. Mr. Chairman, these facts, coupled with the inherent violent culture of policing and their unrelenting ability and desire to maintain the code of silence, means we will never know the truth.
In closing, I would like to remind you that the police in our society are the individuals we call on to help when in need of assistance. I believe these same police must be worthy of the abiding trust and confidence of the citizens they protect. If that is case, then the individual must be the very best and not be above or beyond the laws of this country and the communities they serve.
As you know, we expect police officers to respond and assist victims of Domestic Violence. What happens if the responding officer is a violator of the law?
Thank you for your attention to the concerns of the National Black Police Association.
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Mr. MCCOLLUM. Thank you. It was a very articulate statement, Mr. Hampton.
Mr. Teodorski, do you have any idea how many Fraternal Order of Police members have been affected by this law? In other words, how many police officers out there whoI presume most of them are your membershave previous misdemeanor convictions for domestic abuse, and therefore would not be able to carry a gun any more, and probably wouldn't be able to be a police officer?
Mr. TEODORSKI. Mr. Chairman, we're gathering that data and I can tell you in some States it's higher than in other States, but we will gather those exact numbers. I would not want to inflate or deflate those numbers, but we will make sure that the committee receives the results of our survey, but I know in some States, as New Jersey, there is literally hundreds of police officers that would be disabled by this law.
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INSERT OFFSET RING FOLIOS 123 TO 136 HERE
Mr. MCCOLLUM. You think it's percentage-wise, if you had to guess today, it's a pretty high percentage of police officers?
Mr. TEODORSKI. I wouldn't call it a high percentage. I know within my own State of Pennsylvania we did a survey at the Pennsylvania State Police, which has 4,000 members, and there is no one within that organization that would be affected by that law. I really do not have a feel and I would not want to inflate or deflate those numbers, but I think there is a substantial amount of law enforcement professionals that would be affected by this law.
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Mr. MCCOLLUM. Anybody else on the panel have any feel for the number, the percentage of already existing police officers who have convictions in domestic violence? Anybody hazard anything on that? No? Mr. Johnson.
Mr. JOHNSON. Yes, Mr. Chairman, in terms of those officers who we know about, I would say it's approximately between 40 and 50 officers. In the majority of those cases we have worked with the law as it does exist to seek expungements or to see if the underlying offense qualifies. I expect as time goes on and people become more aware of it, it will creep up into somewhere in the hundreds.
Mr. MCCOLLUM. I believe that I'm correct that Mr. Barr's proposed legislation would state that nobody would have to be found to be unable to serve as a police officer or be disabled, if you will, if the conviction was prior to September of last year. If that is the case, I'm wondering if that isn't going a step further than is necessary to protect the existing police officers.
Could we not have a provision, Mr. Johnson, that would simply state that if there is any police officer who was employed on September 28, 1996 or before, and had a conviction for domestic violence prior to that date, the law would not be applicable to that person?
Mr. JOHNSON. I believeI agree with you as far as you go because I think what I understand you to be saying is that we would, in effect, be reinstating the governmental use exemption.
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Mr. MCCOLLUM. Well, we would be, but we wouldn't be saying that new hires would be affected. In other words, what I'm getting at is, Why should somebody who is coming in applying to be a police officer tomorrow morning be able to be hired if they have a domestic violence conviction? I can understand why we don't want to kick anybody off the job who's already on the job, maybe who has a 20-year-old conviction. Maybe the law's a little too harsh in that regard, but why do we want to go into the future in hiring somebody and knowing they have a domestic violence conviction, and hire them to be a police officer?
Mr. JOHNSON. Mr. Chairman, I think neither I nor any other advocate for police or any group could give you a reason why we would want to hire someone with a domestic violence conviction because they have a domestic violence conviction. However, in fairnessand I guess trying to honor my duty to represent the officers who are out there todaythe fact that a man or woman has picked up such a conviction at some time in the past, it certainly would appear when you look at it at first blush that that ought to disqualify them from any sort of position of trust or law enforcement. I still believe that we owe itCongress owes itto those men and women who do enjoy the full, equal protection of citizenry in this country, to allow some degree of discretion to the local employing agency to say, ''Yes, perhaps in this agency, this person, all such people, should or should not be excluded.''
Mr. MCCOLLUM. Okay.
Mr. JOHNSON. Or perhaps this person oughtor perhaps this one person still can be
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Mr. MCCOLLUM. I want to ask the same type of question of Ms. Edwards and Mr. Hampton from the other perspective, because I know you have a different perspective on this: what would be wrong with having it apply, not to police officers who are already on the job as of the date of September 28, 1996, but anyone you are going to hire in the future, if they have any domestic violence conviction, no matter when it was? In other words, what if we allowed a very, very narrow exemption for those who were on duty and in the uniform at the time this law was passed, as opposed to Mr. Barr's provision, which appears to allow police organizations to hire somebody disregarding their conviction in the future?
Ms. EDWARDS. If I could just speak to that, I think that the flaw in that suggestion is that it overlooks what domestic violence is, that it is a repetitive crime. There are numerous instances of a person having had a conviction, for example, 20 years ago, but having had ongoing instances of domestic violence that don't necessarily result in conviction.
Let me just say for the record that 20 years ago in this country it was extraordinarily difficult to get a conviction for domestic violence. We've just moved into a stage very recently where we're getting police officers to arrest, let alone a conviction, but that doesn't sort of get over the hurdle for many battered women who experience repeated domestic violence. So that someone who had a conviction prior to the enactment date, prior to September 28, could still be an abuser and still be in the system and still have possession of his weapons. I think that this, in fact, endangers women's lives. So we must look at the nature of domestic violence.
Page 88 PREV PAGE TOP OF DOC In the area of civil protection orders, for example, a court will always look to past behavior to determine the scope of a protective order, and I think it's appropriate to do that with regard to regulations on firearms.
Mr. MCCOLLUM. What if they had to show proof of undergoing counseling or had to agree to undergo it and pay for it themselves? Would that make you feel any differently about that existing police officer who we might not want to force to lose his job when he might really be the exception that Mr. Teodorski described, where he's not been a chronic abuser, and it was 20 years ago?
Ms. EDWARDS. Well, I think what's been described is that in those circumstances there already exists a provision under the law in which there can be judicial review of those kinds of instances. I think that those are very narrow instances.
But let me say on the idea of counseling, for example, numerous studies have shown that, in fact, counseling, particularly because there aren't a lot of good counseling programs for batterers around the country, really are not terribly effective in preventing future domestic violence. I think, for example, you could point to a program, a handful of programs, one in Massachusetts, in Minnesota, in Pennsylvania, where, in fact, there are programs that have shown, have demonstrated over time lower recidivism rates. That's not the case broadly. I think that to design a public policy that has to be implemented nationwide, on the hope that counseling might work, when we know that those programs don't exist, I think would be sort of a very dangerous road down which to go.
Mr. MCCOLLUM. Mr. Hampton, would you comment on the existing police officer question; that is, somebody in uniform as of September 1966 as opposed to a new hire?
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Mr. HAMPTON. Mr. Chairman, I think that, depending on the size of the police department, that there are a number of positions in the police department where, if you have an individual who fell prey to the retroactive portion of the law, could be put in those positions. They put them in there now. They're desk jobs in police departments. Because I would submit that if that individual would probably have found himself in that situation, there are probably other things, other reasons why you would want to bring that individual on the inside anyway, away from being exposed to the public, as a matter of what they do every day. So we could put them in desk jobs inside the police department, away from the public, and take their gun away from them.
As a matter of practice, those individuals who work on inside jobs in police departments don't generally carry guns. They leave their gun in the locker. So not having a gun wouldn't offend that in any kind of way.
This body, as well as State and local bodies, have enacted laws in the past, and probably will enact laws in the future that will impact people retroactively. You can't be a police officer if you have used drugs. So I think that that's possible in relation to this thought. I wouldn't want an individual policing in my community responding to domestic violence calls and other calls for service if he had been convicted of some misdemeanor involving domestic violence, because coupled with the fact that this person is an abuser is other things that I think individuals and police ought to have: the ability to talk, work out problems, be a de-escalator rather than an escalator, being able to solve problems rather than to create problems.
Mr. MCCOLLUM. Thank you.
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Mr. HAMPTON. In my view, that would just be someone we wouldn't want.
Mr. MCCOLLUM. Thank you, Mr. Hampton.
Mr. Meehan, you're recognized for 5 minutes.
Mr. MEEHAN. Thank you, Mr. Chairman.
Mr. Johnson, I'm disappointed to hear you say that you wouldn't support at least, at the very minimum, the notion of never hiring a new police officer who had been convicted of domestic violence. I can't imagine that we can't all agree that new officers, that we should never hire a new officer who has a misdemeanor conviction on domestic violence. I mean, I think that's a starting point, and I can't imagine anyone on this committeeor I can't imagine this committee reporting out a bill that would give an exemption to future police officers.
All right, we all have to agree that this is a major problem. There have been studies done, I think, that show that domestic violence within police departments has been higher than with the general public. A lot of that stems from stress of the job and a lot of that stems from historicalthere were historical reasons why that is so.
I guess my first question would be: we can all agree that there has been over history a higher incidence of domestic violence within, say, police departments than within the general public. I mean, do we all agree on that?
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Mr. JOHNSON. I think in trying to address your concern, I would have to defer toI think Mr. Schumer referred to Abraham Lincoln, but I would defer to someone of even greater wisdom, and that's my grandma, who said, ''Never say 'never.''' I would think that, although we would all agree certainly that an officer probably ought not be hired if heassuming it's a hehas just recently committed a battery on anyonecertainly that includes his spousethat, nonetheless, Congress ought not be in the position of saying never, ever, ever, no matter what, no matter how long ago, no matter how rehabilitated, no matter how reconciled, no matter how good a parent or spouse that person has been since, he must never be employed as a police officer. That's what I meant to convey.
Mr. MEEHAN. Okay. I guess we disagree on that becausebut let me further, to the second part of the question. Isn't it true that studies have been conducted that show a higher incidence of domestic violence within high-stress positions like police officers, and that there specifically have been studies done that show a higher rate of domestic violence within police departments, and that, in fact, many progressive police officers acrossdepartments across the countryhave instituted programs within the police department to deal not only with domestic violence as a law enforcement issue, but also domestic violence internally in dealing with the stress of the job? Isn't that true?
Mr. JOHNSON. I believe it's true that officers are at risk of domestic problems, perhaps including domestic violence, certainly of separation
Mr. MEEHAN. So an officer's spouses and wives and girlfriends are at risk?
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Mr. JOHNSON. And boyfriends.
Mr. MEEHAN. Let me take it a step further. You mention the rare cases where an officer perhaps should be saved, and there may, in fact, be rare cases where an officermaybe a violation of a restraining order, maybe there were instances where there wasn't physical battering that may be implied by this law, but the challenge we face is: how do we protect the thousands of women who have been victims of domestic violence and the biases that are created in a society regarding domestic violence? How do we protect that interest with the interest of the very rare case, using your words, where an officer should be saved? And when we come up with that type ofwhen we attempt to do that, the weight of the evidence has to be in favor of protecting the victims. So that's kind of what we're dealing with here that makes this so difficult.
I would like to ask whether or not any members of the panel can shed light on the prevalence or effectiveness of counseling and screening procedures for police officers with convictions of domestic violence misdemeanors. In other words, I know in Massachusetts there have been programs that have been effective. I wonder if any of the members of the panel can address that issue.
The other issue I would hope we could all agree on is that anyone that was convicted of a domestic violence more than once should never, ever, ever get an exemption. The reality is, I think all of us can agree, that for a police officer 15, 20 years ago to get convicted of a domestic violence case, my experience in dealing with 54 cities and towns and police departments as a prosecutor must be that that must have been quite a domestic violence case. That's my experience.
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But I'm wondering if you could comment on, Have there been programs in police departments that have been effectivelyand particularly, Ms. Edwards and Mr. Hampton, whether you have had experience with those types of programs with police departments? And wouldn't you say that there are some cases where perhaps we should save a police officer who might be caught on this particular legislation?
Ms. EDWARDS. Mr. Meehan, if I could just comment on that. First, I think we should at least acknowledge the most recent surveys that have been done studying domestic violence within police families. In fact, in one of those surveys, that was a survey in which officers self-reported instances of physical violence at a 1991 50th biennial conference of the Fraternal Order of Police, in which the self-reporting indicated a 41 percent rate of domestic violence within police families. And I think that's important for the record because we can't ignore what's happening to spouses of police officers, spouses and partners of police officers, especially given the difficulty for these spouses that are hurdles beyond which even other battered women don't have to jump. When you call 911, it's your spouse or partner's friends who are answering that call, making women very reluctant to come forward. Very often, these cases are handled in internal disciplinary procedures, which, quite frankly, there are studies that show that those kind of procedures don't yield good results for battered women. That is, it's kept within the family. And the cases that even rise to high levels of violence never even make it into the criminal court system because they're handled internally.
And on the question of your point about counseling programs, there are some programs that have recently been put in place in some police departments. I would note the Baltimore Police Department, for example, San Diego, and there are others. There haven't been any sort of long-term studies about recidivism rates, ongoing domestic violence within police officersI mean, this is a sort of very narrow area of research anyway. But there are some programs that are in place and police officers doing training.
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I think, frankly, what this debate has illustrated for me is that, with those high rates of domestic violence within police families, also within military families that are significantly higher than for the general population, it indicates that there is a tremendous need for training, for redeveloping internal practices, recruiting policies, and that kind of thing. I think that that is absolutely an appropriate area for congressional legislation and for funding to make sure that police officers have the resources to do the job with which they're charged.
Mr. MCCOLLUM. Thank you, Mr. Meehan and Ms. Edwards. Mr. Barr, you're recognized for 5 minutes.
Mr. BARR. Thank you, Mr. Chairman. Mr. Chairman, there's been a great deal of hyperbole and exaggeration and, frankly, some misinformation bandied about over the last few months concerning this legislation, and I'd like to for the record make a few things clear.
First of all, the so-called law enforcement exemption that is currently enshrined in title 18, section 925, is reallyand some folks may not even be aware of this; they keep citing itit is a very, very broad exception. Now maybe it's good to have it in there; maybe it isn't, but it applies to far more than simply police officers or sworn officers. It applies to any government agency or department, or subdivision thereof, not only of the United States, but of the several States. In other words, any government entity, people who are connected with that, the disabilities that apply to the rest of this country under chapter 44 of title 18 relating to firearms do not apply. So it is a very broad exemption. And it may be time to take a look and see whether that language needs to be refined to some extent. But it is far broader than just some narrowly-crafted and specifically-targeted exemption.
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I would also point out that, with regard to the language of the Lautenberg amendment, or now law, there are provisions in itnow they may not be sufficient to meet the practical needs of law enforcement, but, Mr. Johnson, I would draw your attention to the fact that there are provisions in it that do apply for relief from disability, and so forth. Certainly, I would presume that you all approached Senator Lautenberg when he pushed this thing through, and during the conference. I was not a part of the conference. Maybe you all had some input, but that would have been the time to determine whether or not the language that's included in there to provide relief from disability is sufficient or whether it should have been made broader. He could have done that.
I would also point out that there are an awful lot of people out therefor example, I think I mentioned briefly in my opening statementsuch as private security officers, who provide very legitimate services in the protection of the public and the protection of transportation of money and valuablesin other words, armored guard, armored car officersand by focusing just on a narrow, so-called law enforcement exemption, we really don't address a number of other problems that may need to be looked at.
My point here is simply that there are a lot of ramifications of this law that go beyond just some of the specific terms that we're talking about here, and point out the problem with having had this thing pushed through under circumstances that allowed for no input, either from the public, from victims' groups, from groups such as Ms. Edwards' who are very concerned about domestic violence. ATF didn't even have an opportunity to provide testimony and evidence which would have been helpful for a good discussion of these, so that we could have crafted a bill that really met the needs of our citizens, yet didn't trample on civil liberties.
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Also, I would like to state for the record that, contrary, Ms. Edwards, to your description of my bill as a gutting amendment, it really is nothing of the sort. I think that any group that stands up for a particular idea or a portion of a group of citizens, as yours does very eloquently and very properly, needs to also recognize that our Constitution does say certain things, and it does provide certain limits on what we might want the government to do or want to be done in our society. That is that Article I, Section 9, paragraph 3, says that Congress, in regarding the powers of Congress, that no ex post facto law shall be passed.
The amendment that I have proposed to the Lautenberg law does not gut the Lautenberg law. It simply says that basic tenets of fairness that ought to apply to all of our citizens, not just law enforcement, but all of our citizens, ought not to be ignored in passing a law that provides proper protection for those people in our society who are endangered by domestic violence persons. We're not gutting anything. We're simply saying that the administration is attempting to do something here that the Constitution doesn't allow, and that basic principles of fairness should not allow, to have happen.
I appreciate the testimony that all of you have presented, but I am particularly swayed by the testimony of the police officer organizations, including some that aren't herethe Southern States PBA and a number of officers that I've talked with that represent officers out there on the line that are saying, what we really are simply here for is asking for basic fairness to be applied to our officers, the way our laws and the basic fairness are applied generally across the country. It does not gut the Lautenberg law.
Thank you, Mr. Chairman.
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Mr. MCCOLLUM. Thank you, Mr. Barr. Ms. Jackson Lee, you're recognized for 5 minutes.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
Mr. Johnson, I, too, wanted to, though I think you offered your grandmother's advice on the issue of ''never,'' with respect to whether or not someone who was an abuser or had been charged or convicted of such could be considered in terms of being an applicant and then hired, you make a valid point that many of these decisions as it relates to local police departments is local. But I will say to you that in my long years of work with police departments and police persons, most recently as a member of the city council, not as a district attorney, but certainly I have acted in a special counsel role here in the House as a staff person on one of our select committees investigating issues, that the question of whether someone is a liar has been taken into consideration in terms of hiringobviously, by their record showing that they have lied.
So I would just, in a statement to you, suggest that you would consider that it would be almost incredulous for us not to be concerned about the issue of a batterer not being prohibitive of being a law enforcement officer.
Let me just raise this issue with you, Mr. Johnson and Mr. Hampton, on, in particular, the legislation dealing with the exemption. Would there be any room to talk aboutand I think, Mr. Hampton, you're very eloquent, and I do appreciate the courage of your statementany room that, rather than totally relieving the officer of the responsibility of his or her actionsand I might add I'm going to be egalitarian on this issue; there are police persons. So would it not be an option or a possibility to look at the legislation in terms of a suspension on the desk for a year with intense counseling, so that that individual, because of the uniqueness of their position, might be able to come back to, in essence, full employment? I raise this for your discussion. Mr. Hampton.
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Mr. HAMPTON. Yes, Ma'am, Ms. Lee. Those kinds of possibilities already exist in the present system. When an individualsay, for example, an individual today who's affected by the tenets of the law or the new law, because of some past situation, can declare himself or herself, if she's the batterer, that they're having a problem and can go into counseling. We have had those types of situations in policing for some time now, as a result of it being a high-stress job, as a result of police officers being involved with drugs and other things in our society. Then departments have set up those type of components. Whether they are in the department or outside the department, there's a possibility for them to say, ''I'm having a problem. Can I avail myself of those services?''
What has happened also is thatand I know that some of my colleagues from unions and police associations will attest to whether or not there's a trust level. There is a trust level that exists. Because of some of the programs that exist within the confounds of the police department, they tend to not trust going to the police department with those types of issues. They tend to be more ready to use them when they're on the outside and independent of the department because sometimes those things are used against them.
So I think that, for exampleand they do suspend. If a person says, ''I have a problem,'' the first thing they do is take their gun, their arrest power, and suspend them, and then put them behind the desk, and then they can go to work doing that type of job, assisting in some type
Ms. JACKSON LEE. Have you seen that work?
Page 99 PREV PAGE TOP OF DOC Mr. HAMPTON. Oh, yes, I've seen it work in terms of taking the person out of active duty and putting them behind the desk, and then the person has to go to counseling, and then stick with it, and then perform and demonstrate some ability to be able to negotiate through their problem and do what they need to do.
Ms. JACKSON LEE. But you would suggest, I would imagine, thatI'm putting words in your mouththat the agency, whichever agency, would have to be very diligent in ensuring that there was constructive counseling, that the person was actually being, in essence, rehabilitated and not some sort of make-wait-type process?
Mr. HAMPTON. Oh, absolutelywith input from the family and maybe even independent organizations that have a history and demonstrate a proficiency in dealing with the problem of domestic violence. That's what I would put forth.
Ms. JACKSON LEE. I appreciate it.
Mr. JOHNSON. Yes, Ma'am. Thank you.
Just, I guess, to clarify a point of agreement with you, I agree with you that someone who is an abuser or a batterer ought not be employed as police officer, period. I guess I differ in arguing that a person who once was charged with that, who in fact has been rehabilitated, I think that Congress ought to allow for the possibility that maybe they still could be a good officer.
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Addressing more specifically your second question, I think the answer is yes. An example would be the city of Detroit Police Department which NAPO represents. Officers in that department who are charged or convicted of a domestic crime are routinely fired. The city fires them and says: We are putting your firing, your termination, on hold for a period of 1 year or 2 years. You will be on probation from the court. You will attend anger control classes. You will be successful in them. You will attend Alcoholics Anonymous or Narcotics Anonymous, depending on what the problems be. You will get financial counseling, services of that nature, psychological counseling.
If you are successful with all those things and ifonly ifyou demonstrate that you can still be a trustworthy officer, you can have your job back. You can continue with your job.
I would suggest that with that type of route, the same groups that we've worked together with in the past, we can work together and devote our powerful resources together to rehabilitation, to resurrecting those officers' careers that should benot everyone, not everyone by any means, but the rare case that deserves it should not be foreclosed.
Ms. JACKSON LEE. Mr. Chairman, let me just conclude with a statement simply saying, I appreciate the answers of these two gentlemen.
Ms. Edwards, I had a question for you, but I know your position; I appreciate it.
Page 101 PREV PAGE TOP OF DOC Let me emphasize that 1 to 2 million women battered is a crisis and is an issue, but I would beI think that it would be extremely helpful to us, and I think it had been asked of Mr. Teodorski, that we get some real hard numbers on the impact of law enforcement officers.
And might I ask that theyI'm notthis is the police officers. Mr. Chairman, I'm not sure, do we have access to the other agencies, Federal officers, any data on that in terms of the impact that it might have?
Mr. MCCOLLUM. We're going to have the FBI on next. I don't know whether they'll give us that information.
Ms. JACKSON LEE. Heavy numbersif not, I hope that we will gather those.
I thank you all very much for your testimony.
Mr. MCCOLLUM. Mr. Gekas, you're recognized for 5 minutes.
Mr. GEKAS. Thank you, Mr. Chairman.
I wanted to ask Ms. EdwardsI was called to the back as she began, but I have the written statement, and I read your written statement, and I understand your position that you're espousing fully. What I wanted to know, as a matter of historical perspective, before the final action was taken on the omnibus bill that included this amendment back in September 1996, did your groups meet with anyone to be apprised of the fact that, indeed, this was going to be offered at that time? Did you know that?
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Ms. EDWARDS. Yes, we did, and, in fact, we joined with a number of other organizations in a letter to Senator Lautenberg in support of it.
Mr. GEKAS. Did you at that timeand this is the key; I gathered that that was the casedid you at that time contact the law enforcement agencies with whom you had been working on other issues to work with them on this issue?
Ms. EDWARDS. I don't recall that we did.
Mr. GEKAS. Yes, I suspect you did not. I'll tell you why. In my judgment, you were so elated, or your group was so elated, that this was going to happen, that you did not consider the possibility that the coalition that has been described here so often between law enforcement and your groups, that this would constitute an automatic conflict which may have been able to have been worked out, if that coalition, of which you are so proud, and others are, would have honed-in on this issue. I take it you didn't have time or something occurred that that did not occur.
Ms. EDWARDS. Well, it didn't occur, but let me just say, Mr. Gekas, that, indeed, while there is a coalition of law enforcement, partnership, collaboration, at the State level and local level, and nationally, on these issues of protecting battered women and children, clearly, our interest is in protecting the lives and safety of as many battered women and children as possible, and that we cannot sort of hold the weight of the coalition at the expense of battered women and children's lives.
Page 103 PREV PAGE TOP OF DOC So I think we intend to continue to work with law enforcement over time, but I think this is a critical issue. It's a critical issue in police families. It's a critical issue for battered women who are the subject of threats and intimidation with weapons and in domestic violence. That, to me, is the overriding concern, rather than simply the maintenance of a coalition without protecting women's lives.
Mr. GEKAS. Yes, that's obvious, and that's my point. That's what I was describing in my opening statement when we heard comments to the effect that there was a conspiracy to break up the coalition; it never met on this subject in advance of the Lautenberg amendment is what I'm getting at.
But, surely, you do not believe that any member of this subcommittee is againstor is for spousal abuse or domestic violence. Aren't we all, don't you agree, headed toward the same goal: to try to eliminate that from the face of the Nation? And if you agree that that's the case, can you not also understand that some of us want to correct what is a situation that has caused an upheaval in the law enforcement community, and in the ability of all of us to work together to meet the goals that you have set for yourselves? I'm very concerned about that.
So I think that your message should be, when you leave here, we all want to end domestic violence. We're all against spousal abuse. We want guns out of the hands of police officers who would use them for in-house violence or for any violence outside their duties. But, at the same time, don't we have the obligation, you should be asking yourself the question, as lawmakers, to try to right a situation that has gone askew in the eyes of many, and in the eyes of lawmakers particularly? That's whatit's notit's just a request I'm making to you on behalf ofthat you can on, behalf of your organizations, try to make clear, rather than, as some groups will, and some individuals will, be condemning lawmakers for daringfor daringto try to protect law enforcement officers in a measure that would still call for sanctions against domestic violence, but only prospectively. I think that, in working together, you have to make that clear.
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I thank the Chair, and I yield back the balance of my time.
Mr. BARR [presiding]. I thank the gentleman from Pennsylvania.
I'd like to recognize that we do have another guest with us, the distinguished Congresswoman from New York, Ms. Carolyn Maloney. We appreciate having you with us today to hear this very important testimony. We know it's of concern to you and your constituents.
We'd like to thank this very distinguished panel very much both for their testimony
Mr. STUPAK. Mr. Chairman, could you yield me a minute or two to ask a question or two? I know it's unusual, being the guest of this committee, but if you would, I'd like to ask a few quick questions of this panel before they leave.
Mr. BARR. It's my understanding that you would have to be yielded time, but if there's no objection
Ms. JACKSON LEE. I have no objection, Mr. Chairman. I left here as ranking.
Mr. BARR [continuing]. We'll yield 2 minutes to the gentleman.
Mr. STUPAK. Thank you. Since you're going to yield me just 2 minutes, let me try to get some quick answers.
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Chairman McCollum and Ms. Jackson Lee brought up the point about how many people would be affected by this. One of the major cities I've dealt with on this issue, a 4,000-person department, it's interesting, the union chiefs tell me it's 6 to 7 people; the mayor's office tells me it's 38 to 46 peoplethe point being, and I think the second panel we're going to hear from, especially SEARCH, will probably add a little bit more light to this, that it is hard to interpret this law and how you apply it. I think, hopefully, you can see the problems just on this panel here, the subcommittee, all the differences of opinion we have on it and its application.
So it goes to this question, and maybe, Ms. Edwards, maybe you can answer it. If you know, does each State in this Nation have a specific domestic violence lawwe know they all have assault and battery laws, but I'm talking about specific domestic violence laws. Do you or anyone on the panel know that? I know Michigan has one. I know Pennsylvania has one. Many of the States do.
Ms. EDWARDS. Yes, there are a number of States that have specific domestic violence laws.
Mr. STUPAK. How many?
Ms. EDWARDS. I don't know the exact number. It's in theI think it might even be twenties. I could get you the exact number.
Mr. STUPAK. If you could, and the specific dates of enactment
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Ms. EDWARDS. I will.
[The information referred to follows:]
INSERT OFFSET RING FOLIOS 137 TO 198 HERE
Ms. EDWARDS. And let me just say, also, that because of the definition in the law, that even those States that don't have a specific domestic violence statute, the criteria as defined
Mr. STUPAK. I understand.
Ms. EDWARDS [continuing]. In the law would cover those
Mr. STUPAK. I understand, but we're already
Ms. EDWARDS [continuing]. Instances of States that have assault-and-battery statutes.
Mr. STUPAK [continuing]. Trying to talk about some compromises on it.
One more, if I may: if Mr. Johnson or anybody else on the panelcould you describe what typically happens when police officers have been convicted of a misdemeanor from speeding to drunk driving to domestic violence, whatever it might be? Could you tell us what happens and enlighten the panel a little bit?
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Mr. JOHNSON. I think it's fair to say that typically, if an officer is convicted of a misdemeanor, say anything other than speeding, that officer will be fired, period. Petty theft, battery, lying, some sort of unsworn falsificationthe officer has forfeited his or her right to be an officer.
Mr. STUPAK. And in these domestic violence cases you've looked at, are you finding officers with repeated offenses of domestic violence?
Mr. JOHNSON. Not as officers. Individual men or women may repeatedly do that, and, indeed, the problem is cyclical. However, more likely than not, if it happens once or certainly twice, that person's no longer an officer, period.
Departments do take it very seriously. It has been part of the continuing education of police and prosecutors and judges of the entire problem of domestic violence within the department, as well as within the community at large.
Mr. STUPAK. Thank you, and thank you to all members of this panel, and thank you, Mr. Chairman, for yielding.
Mr. MCCOLLUM. [president] Thank you, Mr. Stupak.
We're now ready to proceed with our second panel today. I want to thank all the witnesses who are here today for being here.
Page 108 PREV PAGE TOP OF DOC Mr. Teodorski, as you leave, though, I understand there has been a lawsuit filed by the Fraternal Order of Police, and if you could get us copies of the briefs and all, we'd appreciate it.
Mr. TEODORSKI. I certainly will, Mr. Chairman.
Mr. MCCOLLUM. Thank you very much.
Mr. MCCOLLUM. I'd like to welcome our second panel of witnesses today to discuss this issue. Our first witness is Mr. David Loesch from the Federal Bureau of Investigation. Since 1996, Mr. Loesch has been Deputy Assistant Director for the Policy, Administrative, and Liaison Branch of the Criminal Justice Information Services Division. Mr. Loesch entered the FBI as a special agent in 1972 and has supervised organized crime, white collar crime, and undercover operations.
We also have with us Mr. Gerald Wethington from SEARCH, the National Consortium for Justice Information and Statistics. SEARCH is State criminal justice support organization which formulates recommendations on criminal justice policy. Mr. Wethington is chairman of SEARCH's systems and technology program advisory committee and has been with the Missouri State Highway Patrol for 20 years.
Next we have with us U.S. Captain Lewis Vass, the records management officer for the Virginia Department of State Police. Captain Vass is responsible for overseeing the Virginia Instant Check System for firearms purchases. He is a member of the Virginia Association of Chiefs of Police and a representative of the National Crime Information Center's Southern Region Working Group. Captain Vass also currently serves as a member of the Brady Act Task Group.
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And, finally, on behalf of the Bureau of Alcohol, Tobacco, and Firearms, we have with us Mr. Pete Gagliardi. I've got to get the right Italian pronunciationI know you, you know; we've know each other a long time, Pete; I'm sorry about thatthe Deputy Associate Director of Criminal Enforcement Programs. Mr. Gagliardi is responsible for the development, implementation, and evaluation of the ATF's law enforcement program. He also oversees the ATF's Firearms, Explosives, Intelligence, and Special Operations Division. Mr. Gagliardi began his career with the ATF in 1976.
I want to welcome all four of the panelists here today, and I'd start with you, Mr. Loesch. I would suggest that all of your statements, without objection, will be admitted into the record in their full text, and you may feel free to summarize. We hope that each of you could keep that summary within about 5 minutes. Thank you very much.
Mr. Loesch, you're recognized.
STATEMENT OF DAVID R. LOESCH, DEPUTY ASSISTANT DIRECTOR, FEDERAL BUREAU OF INVESTIGATION
Mr. LOESCH. Good morning, Mr. Chairman. Thank you for inviting me to appear before the committee to present information about the FBI's work to implement the Brady Handgun Violence Prevention Act. I have with me today Mr. Demory Bishop, Section Chief, and Mr. Emmett Rathbun, Unit Chief of the Program's Development Section. They're seated behind me.
I would first like to begin with our strategy to develop the National Instant Criminal Background Check System, which I will refer to as the Instant Check System. This will be followed by information on our program to flag criminal records, to identify convicted felons, a gun ban for individuals convicted of a misdemeanor crime of domestic violence, and, finally, the status and timeline for implementing the Instant Check System.
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Strategy to develop the Instant Check System: our strategy for developing the system has been to make use of existing systems which include the National Crime Information Center, the FBI criminal history files, and State criminal justice information systems. Immediately after the Brady Act went into effect, we established a task group consisting of experienced local, State, and Federal law enforcement officials to guide us in the planning and design of the Instant Check System. Additionally, the work resulting from the task group effort was coordinated with the criminal justice community through periodic meetings which resulted in the approval by that community of a concept of operations for the system.
The Bureau of Alcohol, Tobacco, and Firearms is assisting us by establishing regulations that define specifically which persons are prohibited from purchasing firearms. With this assistance, the FBI, working with various Federal agencies, will secure the appropriate information from existing Federal records. For example, we're seeking Department of Defense records on persons who have been dishonorably discharged; Immigration and Naturalization Service records on aliens, and Department of State records on individuals who have renounced their U.S. citizenship.
Flagging of criminal records to identify convicted felons: the Anti-Drug Abuse Act of 1988 mandated that the Attorney General develop a system for immediate identification of felons who attempt to purchase firearms. To comply with this mandate, the FBI and its user community developed a system for flagging criminal history records. With this flagging system, the only records which had to be scrutinized for detail were those indicating a pending or unknown disposition. Records with felony flags were used to automatically deny someone the purchase of a firearm, while misdemeanor or no conviction records could be ignored since they were nondisqualifying records.
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Effect of the gun ban for individuals convicted of a misdemeanor crime of domestic violence: with the enactment of the Omnibus Consolidated Appropriation Act, a portion of your record-flagging system has now lost its value. Since certain misdemeanor convictions now prohibit persons from possessing a firearm, the users can no longer ignore the records flagged as having either no conviction or only a misdemeanor conviction. We have meetings scheduled during March and April of this year with our user community to discuss how the record-flagging system can be revised, so that the disqualifying records can more readily be identified.
The status and timeline for the Instant Check System: using the concept of operations prepared with the user community, a development contractor started work in October 1996 to begin building the Instant Check System. We are currently negotiating a time table with this development contractor to continue the development.
From your letter, I know that one of the issues important to your subcommittee is: what impact the need for domestic violence convictions will have on the implementation of the Instant Check System? This will not impact our implementing the Instant Check System as scheduled. We intend to proceed with the existing data that is available from local, State, and Federal databases, as previously described.
We have designed a system to operate with local and State criminal justice agencies conducting the checks for the Federal firearms licensees within their State. They may in some cases have more detailed information than is available at the national level; for example, State mental commitment records and domestic violence convictions.
Page 112 PREV PAGE TOP OF DOC There's one aspect of the Instant Check System that I would like to mention at this time. Approximately half of the States have State statutes either requiring the issuance of a permit for the purchase of a firearm or some other background check in relation to the sale of a firearm. Remaining States are conducting background checks today under the interim provisions of the Brady Act, which requires chief law enforcement officers to conduct these checks.
When the Instant Check System becomes available in 1998, the Brady Act no longer requires the chief law enforcement officer to make the checks. The act states that the system shall be available for Federal firearms licensees to contact by telephone or by other electronic means, in addition to the telephone.
Our concept of operations for the Instant Check System calls for the local or State criminal justice officials to conduct a check voluntarily for Federal firearm licensees, if not required to do so by State law. In part, this approach is used because the disabling records at the State and local level might not be available at the national level.
Based upon the input and continuing cooperation of the State and local law enforcement user community, we're hopeful that it will not be necessary for the FBI to have to handle these checks for Federal firearm licensees in more than one or two States. But until we have our State technical conference in August, we really won't know that number.
That concludes my statement, Mr. Chairman, and once again, thank you very much.
Page 113 PREV PAGE TOP OF DOC [The prepared statement of Mr. Loesch follows:]
PREPARED STATEMENT OF DAVID R. LOESCH, DEPUTY ASSISTANT DIRECTOR, FEDERAL BUREAU OF INVESTIGATION
GOOD MORNING, MR. CHAIRMAN. THANK YOU FOR INVITING ME TO APPEAR BEFORE YOUR COMMITTEE TO PRESENT INFORMATION ABOUT THE FBI'S WORK TO IMPLEMENT THE BRADY HANDGUN VIOLENCE PREVENTION ACT. I HAVE WITH ME TODAY MR. DEMERY R. BISHOP, SECTION CHIEF, AND MR. EMMET A. RATHBUN, UNIT CHIEF, OF THE PROGRAMS DEVELOPMENT SECTION.
I WOULD FIRST LIKE TO BEGIN WITH OUR STRATEGY TO DEVELOP THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM, WHICH I WILL REFER TO AS THE INSTANT CHECK SYSTEM. THIS WILL BE FOLLOWED BY INFORMATION ON OUR PROGRAM TO FLAG CRIMINAL RECORDS TO IDENTIFY CONVICTED FELONS, THE GUN BAN FOR INDIVIDUALS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE, AND FINALLY THE STATUS AND TIME LINE FOR IMPLEMENTING THE INSTANT CHECK SYSTEM.
STRATEGY TO DEVELOP THE INSTANT CHECK SYSTEM
AS YOU KNOW, THE BRADY ACT REQUIRES THE ATTORNEY GENERAL TO ESTABLISH AN INSTANT CHECK SYSTEM TO SUPPLY INFORMATION ON WHETHER RECEIPT OF A FIREARM BY A PROSPECTIVE TRANSFEREE WOULD VIOLATE SECTION 922 OF TITLE 18, UNITED STATES CODE, OR STATE LAW. THE ATTORNEY GENERAL ASKED THE FBI TO SUPERVISE THE DEVELOPMENT AND OPERATION OF THE INSTANT CHECK SYSTEM.
OUR STRATEGY FOR DEVELOPING THIS SYSTEM HAS BEEN TO MAKE USE OF EXISTING SYSTEMS WHICH INCLUDE THE NATIONAL CRIME INFORMATION CENTER (NCIC), THE FBI CRIMINAL HISTORY FILES, AND STATE CRIMINAL JUSTICE INFORMATION SYSTEMS.
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IMMEDIATELY AFTER THE BRADY ACT WENT INTO EFFECT, WE ESTABLISHED A TASK GROUP CONSISTING OF EXPERIENCED LOCAL, STATE, AND FEDERAL LAW ENFORCEMENT OFFICIALS TO GUIDE US IN THE PLANNING AND DESIGN OF THE INSTANT CHECK SYSTEM. ADDITIONALLY, THE WORK RESULTING FROM THE TASK GROUP EFFORT WAS COORDINATED WITH THE CRIMINAL JUSTICE COMMUNITY THROUGH PERIODIC MEETINGS WHICH RESULTED IN THE APPROVAL BY THAT COMMUNITY OF A CONCEPT OF OPERATIONS FOR THIS SYSTEM.
PURSUANT TO SECTION 103(E)(1) OF THE BRADY ACT, THE ATTORNEY GENERAL HAS THE AUTHORITY TO SECURE INFORMATION DIRECTLY FROM GOVERNMENT AGENCIES FOR INCLUSION IN THE INSTANT CHECK SYSTEM, WHEN SUCH INFORMATION WOULD PROHIBIT A PROSPECTIVE TRANSFEREE FROM POSSESSING A FIREARM. THE BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS IS ASSISTING US BY ESTABLISHING REGULATIONS THAT DEFINE SPECIFICALLY WHICH PERSONS ARE PROHIBITED FROM PURCHASING FIREARMS. WITH THIS ASSISTANCE, THE FBI, WORKING WITH VARIOUS FEDERAL AGENCIES, WILL SECURE THE APPROPRIATE INFORMATION FROM EXISTING FEDERAL RECORDS. FOR EXAMPLE, WE ARE SEEKING DEPARTMENT OF DEFENSE RECORDS ON PERSONS WHO HAVE BEEN DISHONORABLY DISCHARGED, IMMIGRATION AND NATURALIZATION SERVICE RECORDS ON ALIENS, AND DEPARTMENT OF STATE RECORDS ON INDIVIDUALS WHO HAVE RENOUNCED THEIR UNITED STATES CITIZENSHIP.
FLAGGING OF CRIMINAL RECORDS TO IDENTIFY CONVICTED FELONS
THE ANTIDRUG ABUSE ACT OF 1988 MANDATED THE ATTORNEY GENERAL TO DEVELOP A SYSTEM FOR THE IMMEDIATE IDENTIFICATION OF FELONS WHO ATTEMPT TO PURCHASE FIREARMS. TO COMPLY WITH THIS MANDATE, THE FBI AND ITS USER COMMUNITY DEVELOPED A SYSTEM FOR FLAGGING CRIMINAL HISTORY RECORDS. IN DECEMBER 1992, A PILOT PROGRAM WAS IMPLEMENTED INCORPORATING THREE UNIQUE FLAGS TO INDICATE THE STATUS OF CRIMINAL RECORDS WHICH COULD DISQUALIFY AN INDIVIDUAL FROM PURCHASING A FIREARM.
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ONE FLAG, ''X'', INDICATES THAT THE RECORD HAS A PENDING COURT DISPOSITION OR THE CONVICTION STATUS IS UNKNOWN.
THE SECOND FLAG, ''F'', INDICATES THE RECORD CONTAINS ONE OR MORE FELONY CONVICTIONS.
THE THIRD FLAG, ''M'', INDICATES A MISDEMEANOR CONVICTION ONLY OR NO CONVICTIONS WHATSOEVER.
WITH THIS FLAGGING SYSTEM, THE ONLY RECORDS WHICH HAD TO BE SCRUTINIZED FOR DETAIL WERE THOSE INDICATING A PENDING OR UNKNOWN DISPOSITION. RECORDS WITH FELONY FLAGS WERE USED TO AUTOMATICALLY DENY SOMEONE THE PURCHASE OF A FIREARM; WHILE MISDEMEANOR OR NO CONVICTION RECORDS COULD BE IGNORED SINCE THEY WERE NONDISQUALIFYING RECORDS. PRESENTLY, FIFTEEN STATE AGENCIES ARE FLAGGING THEIR RECORDS IN THE NATIONAL FILE, AND THE BUREAU OF PRISONS IS FLAGGING THE RECORDS OF PERSONS CONVICTED OF A FEDERAL FELONY. IN OUR CRIMINAL HISTORY FILE, APPROXIMATELY 2.3 MILLION RECORDS ARE APPROPRIATELY FLAGGED WITH EITHER AN ''F'' OR ''M''.
EFFECT OF THE GUN BAN FOR INDIVIDUALS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE
WITH THE ENACTMENT OF THE OMNIBUS CONSOLIDATED APPROPRIATIONS ACT, A PORTION OF OUR RECORD FLAGGING SYSTEM LOST ITS VALUE. SINCE CERTAIN MISDEMEANOR CONVICTIONS NOW PROHIBIT PERSONS FROM POSSESSING A FIREARM, THE USERS CAN NO LONGER IGNORE THE RECORDS FLAGGED AS HAVING EITHER NO CONVICTION OR ONLY A MISDEMEANOR CONVICTION. THESE RECORDS TAKE ON THE SAME CONNOTATION AS THOSE WITH A PENDING OR UNKNOWN CONVICTION. WE HAVE MEETINGS SCHEDULED DURING MARCH AND APRIL WITH OUR USER COMMUNITY TO DISCUSS HOW THE RECORD FLAGGING SYSTEM CAN BE REVISED SO THAT DISQUALIFYING RECORDS CAN BE MORE READILY IDENTIFIED.
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STATUS AND TIME LINE FOR INSTANT CHECK SYSTEM
USING THE CONCEPT OF OPERATIONS PREPARED WITH THE USER COMMUNITY, A DEVELOPMENT CONTRACTOR STARTED WORK IN OCTOBER 1996 TO BEGIN BUILDING THE INSTANT CHECK SYSTEM. THE FBI IS NEGOTIATING A TIMETABLE WITH THIS DEVELOPMENT CONTRACTOR TO CONTINUE THE DEVELOPMENT. THE FOLLOWING IS THE PROPOSED TIME LINE:
JUNE 1997FEDERAL AGENCIES BEGIN PROVIDING DATA FOR TESTING (THE FBI IS GENERATING AND SUPPLYING FEDERAL TEST DATA TO THE DEVELOPMENT CONTRACTOR3/97).
JULY 1997STATE INTERFACE REQUIREMENTS ARE COMPLETED.
AUGUST 1997THE FBI WILL HOST A NATIONAL CONFERENCE OF STATE USERS TO BEGIN DEVELOPING INTERFACE PLANS FOR STATE SYSTEMS.
FEBRUARY 1998BEGIN TESTING STATE INTERFACE WITH PILOT STATE (S).
MAY 1998FEDERAL AGENCIES WILL BEGIN TESTING DATA TRANSFER PROCEDURES.
AUGUST 1998BEGIN LOADING FEDERAL AGENCY DATA FOR THE OPERATIONAL SYSTEM.
OCTOBER 1998CONDUCT FINAL TEST ON INSTANT CHECK SYSTEM.
NOVEMBER 1998THE INSTANT CHECK SYSTEM IS OPERATIONAL.
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FROM YOUR LETTER, I KNOW THAT ONE OF THE ISSUES IMPORTANT TO YOUR SUBCOMMITTEE TODAY IS WHAT IMPACT THE NEED FOR DOMESTIC VIOLENCE CONVICTIONS WILL HAVE ON THE IMPLEMENTATION OF THE INSTANT CHECK SYSTEM. THE FBI HAS MANY MISDEMEANOR ARRESTS AND CONVICTIONS IN ITS FILES; BUT IN MOST CASES, ONE CANNOT ASCERTAIN BY LOOKING AT THE RECORD WHICH ARRESTS ARE FOR DOMESTIC VIOLENCE CRIMES. FURTHER, THERE IS NO AUTOMATED WAY THE FBI CAN GO BACK INTO THE RECORDS AND IDENTIFY SUCH ARRESTS OR CONVICTIONS. THIS IS THE REASON WE ARE ASKING OUR USER COMMUNITY THIS MONTH AND NEXT TO LOOK INTO A NEW FLAGGING SYSTEM TO PROVIDE A REMEDY FOR THIS SITUATION. THIS WILL NOT IMPACT OUR IMPLEMENTING THE INSTANT CHECK SYSTEM AS SCHEDULED. WE INTEND TO PROCEED WITH THE EXISTING DATA THAT IS AVAILABLE FROM LOCAL, STATE, AND FEDERAL DATA BASES AS PREVIOUSLY DESCRIBED. WE HAVE DESIGNED THE SYSTEM TO OPERATE WITH LOCAL AND STATE CRIMINAL JUSTICE AGENCIES CONDUCTING THE CHECKS FOR THE FEDERAL FIREARMS LICENSEES WITHIN THEIR STATE. THEY MAY, IN SOME CASES, HAVE MORE DETAILED INFORMATION THAN IS AVAILABLE AT THE NATIONAL LEVEL, E.G., STATE MENTAL COMMITMENT RECORDS AND DOMESTIC VIOLENCE CONVICTIONS.
THERE IS ONE ASPECT OF THE INSTANT CHECK SYSTEM THAT I WOULD LIKE TO MENTION AT THIS TIME. APPROXIMATELY ONEHALF OF THE STATES HAVE STATE STATUTES EITHER REQUIRING THE ISSUANCE OF A PERMIT FOR THE PURCHASE OF A FIREARM OR SOME OTHER BACKGROUND CHECK IN RELATION TO THE SALE OF A FIREARM. THE REMAINING STATES ARE CONDUCTING BACKGROUND CHECKS TODAY UNDER THE INTERIM PROVISION OF THE BRADY ACT WHICH REQUIRES CHIEF LAW ENFORCEMENT OFFICERS TO CONDUCT THESE CHECKS. WHEN THE INSTANT CHECK SYSTEM BECOMES AVAILABLE IN 1998, THE BRADY ACT NO LONGER REQUIRES THE CHIEF LAW ENFORCEMENT OFFICER TO MAKE THE CHECKS. THE ACT STATES THAT THE SYSTEM SHALL BE AVAILABLE FOR THE FEDERAL FIREARMS LICENSEES TO CONTACT BY TELEPHONE OR BY OTHER ELECTRONIC MEANS IN ADDITION TO THE TELEPHONE. OUR CONCEPT OF OPERATIONS FOR THE INSTANT CHECK SYSTEM CALLS FOR LOCAL OR STATE CRIMINAL JUSTICE OFFICIALS TO CONDUCT THE CHECKS VOLUNTARILY FOR FEDERAL FIREARMS LICENSEES IF NOT REQUIRED TO DO SO BY STATE LAW. IN PART, THIS APPROACH IS USED BECAUSE DISABLING RECORDS AT THE STATE AND LOCAL LEVEL MIGHT NOT BE AVAILABLE AT THE NATIONAL LEVEL. BASED UPON THE INPUT AND CONTINUING COOPERATON OF THE STATE AND LOCAL LAW ENFORCEMENT USER COMMUNITY, WE ARE HOPEFUL THAT IT WILL NOT BE NECESSARY FOR THE FBI TO HANDLE THE CHECKS FOR FEDERAL FIREARMS LICENSEES IN MORE THAN ONE OR TWO STATES. UNTIL WE HAVE OUR STATE TECHNICAL CONFERENCE IN AUGUST, THE EXACT NUMBER OF STATES WHICH MAY FALL INTO THIS CATEGORY WILL REMAIN IN QUESTION.
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THAT CONCLUDES MY OPENING REMARKS MR. CHAIRMAN. AGAIN, THANK YOU FOR ALLOWING ME AND MY ASSOCIATES TO BE PRESENT TODAY. WE WOULD WELCOME ANY QUESTIONS YOU MAY HAVE OF US AT THIS TIME.
Mr. MCCOLLUM. Thank you very much, Mr. Loesch. We appreciate it.
Mr. Wethington, you may give us the summary of your statement.
STATEMENT OF GERRY WETHINGTON, SEARCH, THE NATIONAL CONSORTIUM FOR JUSTICE INFORMATION AND STATISTICS
Mr. WETHINGTON. Mr. Chairman, I'm pleased to have the opportunity to testify before this committee as a member of the Board of Directors and on behalf of SEARCH, The National Consortium for Justice Information and Statistics. I'm accompanied by Mr. Gary Cooper, the executive director of SEARCH, who sits at my right at the end of the table.
SEARCH is a criminal justice support organization that is comprised of governor appointees who have the responsibility within their States for administering the automated central repositories for arrest and conviction records. SEARCH's involvement in criminal history record information and other information aspects of the Brady Law and the National Instant Criminal Background Check System has been extensive since the passage of those laws.
Page 119 PREV PAGE TOP OF DOC SEARCH members provide, in support of their States, criminal history record information through the Interstate Identification Index, those records that make up what the FBI calls the ''State Segment'' of what will be the National Instant Criminal Background Check System. In addition, some SEARCH members also operate their State's own instant check system for firearms background checks.
The staff of the not-for-profit SEARCH corporation, which is headquartered in Sacramento, California, also provide, pursuant to a grant with the Bureau of Justice Statistics, technical assistance in the area of criminal history record information projects that are completed in support of the National Instant Criminal Background Check System.
I would like to commend the Chair and all the members of the subcommittee on their commitment to criminal record information and identification initiatives, and also SEARCH would like to recognize and commend your capable staff, all of whom have been able to provide input into this area, particularly Mr. Paul McNulty, Ms. Nicole Nanson and Mr. David Yassky.
In summarizing our testimony and highlighting the elements that have been submitted in writing, there are four points that we would like to make.
First, the State central repositories and the existing State Check Systems cannot at this particular point in timeand few, if any, we believe at the time that the National Instant Criminal Background Check System is implemented in November 1998will be able to identify, on an immediate or point-or-sale basis, those individuals who have been convicted of a misdemeanor offense with the elements of domestic violence. It is disturbing that this condition exists. It is disturbing for the law enforcement community and for those officers who make up the community.
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Second, this condition, however, is not one that was not previously known with respect to the National Instant Criminal Background Check System. SEARCH is familiar with, and has publicly stated in the past, the fact that there are at least two categories in the Brady Law, and perhaps more, of individuals who may not be readily identifiable on an instant or point-of-sale basis, based upon disqualifying characteristics of the Gun Control Act.
These two categories are individuals who have been adjudicated as mental defectives or who have been committed to mental institutions, and individuals who are unlawful users of, or are addicted to, controlled substances. In these particular instances, you may not be able to identify on a point-of-sale, or on an instant-check basis, information that is relevant to the disqualification under the Brady Law. It is our belief that the Lautenberg amendment merely creates a third category of individuals whom we may not be able to identify immediately in a point-of-sale or on an instant-check basis.
Third, we also would like to point out the fact that there is a lack of positive empirical data on exactly what it will take in order to implement all of the elements of the Lautenberg amendment. That empirical data is needed whether you apply the law from this point in time forward or whether you treat it as a retrospective change to the law. And that is due largely to the complexity that we find associated with the Lautenberg amendment and the elements of having to determine whether the individual was represented by counsel, whether the individual had opportunity for trial by jury, whether the judgment was set aside or a pardon, or what the elements of that set-aside decision happened to be. We think that lack of empirical data causes us difficulty in determining exactly what it is going to take in terms of dollars at both the Federal and at the State levels in order to build this capability.
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Fourth and finally, we think that the Lautenberg amendment may do for misdemeanor convictions what the Brady Law has done for felony convictions, and that is focus some attention on that particular area which will help with the improvement of criminal history records systems throughout the Nation. By focusing the proper resources at the Federal level and the State level, we think that we have the ability to improve criminal history records to the point that they can be useful for criminal justice purposes and also for legitimate non-criminal justice purposes.
Congress, and in its efforts to keep firearms out of the hands of individuals who have misdemeanor convictions for domestic violence, did not have the opportunity or did not inquire across a sufficiently-broad spectrum to make a determination as to whether the information technology community and the criminal justice community had the information resources available to them to meet the requirements of Lautenberg. And I can tell you that it is clear today, in looking and scanning the horizon of the criminal justice community, that we do not have the systems capability to provide the required information on an instant basis.
I would not want this to diminish or discount, however, the value of the State instant check systems or the National Instant Criminal Background Check System. The system that is proposed is a good system, but it is not a fool-proof system, and it will provide good checks, but not perfect checks, because we will not be able to make an exhaustive determination for each prohibitor on an instant basis.
I think it is important that we be forthright and that we recognize and understand that there are limitations associated with completing a comprehensive check on an instant basis. I think it is also important to remember that the effort to obtain information to support Lautenberg will, in all likelihood, strengthen the incentives that we have seen in the past for continued Federal financial assistance and leadership to improve the National Instant Criminal Background Check System and the State instant check systems, and, indeed, the entire criminal history record information systems.
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Mr. Chairman, I would like to thank you for the opportunity and the invitation to testify before this committee. SEARCH looks forward to working with you and other members of the subcommittee on the implementation of Lautenberg and other important criminal justice information issues that may come before us.
[The prepared statement of Mr. Wethington follows:]
PREPARED STATEMENT OF GERRY, WETHINGTON, SEARCH, THE NATIONAL CONSORTIUM FOR JUSTICE INFORMATION AND STATISTICS
Mr. Chairman, I am Gerry Wethington, Director, Information Systems, Missouri Highway Patrol. I appear here today as a member of the SEARCH Board of Directors and on behalf of SEARCH, the National Consortium for Justice Information and Statistics.(see footnote 1) SEARCH, is testifying today with respect to the criminal history record information implications of Section 658 of Public Law 104208 amending the Gun Control Act of 1968, Section 921(a) of Title 18 of the United States Code (Gun Control Act) prohibiting individuals convicted of a misdemeanor crime involving domestic violence or encompassing elements of domestic violence from receiving or possessing a firearm (frequently referred to as the ''Lautenberg Amendment'' in recognition of its Senate sponsor).
SEARCH has been closely involved in all of the criminal history record information and other information aspects of the Brady Act and the National Instant Criminal Background Check System (NICS). SEARCH members, in many states, operate the automated state central repository which provides criminal history record information through the Interstate Identification Index (III), and operate what the FBI calls the ''State Segment'' of what will be the NICS. In some states, SEARCH members also operate the state's own instant check system for firearms background checks. In addition, the staff of the not-for-profit SEARCH Corporation, headquartered in Sacramento also provides, pursuant to a grant from the Bureau of Justice Statistics, technical assistance to the states and to the Department of Justice for criminal history record improvement in support of the NICS.
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Mr. Chairman, SEARCH commends you and all of the members of your subcommittee for your support of criminal justice information and identification initiatives. We also want to recognize and commend the subcommittee's extraordinarily able staff, both majority and minority, led by Paul McNulty and David Yassky, respectively.
The SEARCH Membership Group has not taken a position regarding the law enforcement or public policy efficacy of making a misdemeanor conviction involving domestic violence a disqualification under federal law for receiving or possessing a firearm and, therefore, the testimony we are presenting will express no opinion on this point. However, with respect to the practical information implications of the Lautenberg Amendment, we would like to make the following four points.
1. The state central repositories and the state instant check systems do not have the capability at this point in time (and with few, if any, exceptions, they will not have the capability as of the operational date of the NICS in November of 1998) to identify most individuals with misdemeanor convictions involving domestic violence on a point-of-sale or ''instant'' basis.
2. This inability is unfortunate and, frankly, quite frustrating for the criminal justice information community and the officers who comprise this community. This inability, however, does not represent a new or different challenge to the configuration of, or the efficacy of, the NICS. SEARCH has previously stated publicly that individuals who fall into at least two, and possibly more than two, of the categories of individuals prohibited by the Gun Control Act from receiving or possessing firearms cannot, at this point in time, be accurately and instantly identified in order to make a point-of-sale determination that an individual is disqualified under the Gun Control Act from obtaining a firearm. At the state level, individuals who have been adjudicated as mental defectives or who have been committed to mental institutions, for example, and individuals who are unlawful users of, or addicted to, a controlled substance, as a further example, fall into these categories. Individuals with misdemeanor convictions involving domestic violence constitute yet another category of individuals who, in theory, are prohibited from obtaining firearms but who, in actual practice, cannot be identified on a reliable and instant basis.
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3. Neither SEARCH, nor any other organization or individual that we are aware of, has comprehensive and empirical information to indicate how long it would take or how much it would cost in federal and state monies for the states to develop the capability to identify individuals with misdemeanor convictions involving domestic violence on a reliable and instant basis. The complexity of the Lautenberg definition of a person convicted of a misdemeanor crime of domestic violence requiring, as it does, a determination as to whether the offender was represented by counsel and a determination of whether the individual had an opportunity to be tried by a jury, as well as requiring other determinations, further compounds the difficulty and suggests that several years and hundreds of millions of dollars will be required in order to build this capability.
Furthermore, neither SEARCH, nor any other organization or individual that we are aware of, has empirical information to indicate how long it would take or how much it would cost to develop the above-mentioned capability if the Lautenberg Amendment were to be legislatively changed so as to make the disqualification for a misdemeanor crime of domestic violence prospective only. SEARCH does believe, however, that substantially less time and money, but still a significant amount of both, would be required in order to permit the states to build the capability for the instant identification of these individuals on a prospective basis.
4. The Lautenberg Amendment, in its current form, or even if amended to be prospective only, is likely to have a positive, though perhaps unintended, information benefit. If federal law encourages the states to develop a capability for the immediate and accurate identification of individuals with misdemeanor convictions involving domestic violenceassuming adequate federal justice assistance funding and adequate state spendingthe consequence will be that the states will improve the accuracy and completeness of misdemeanor records (particularly those that may be candidates for containing a domestic violence characteristic). In other words, the Lautenberg Amendment may well do for misdemeanor conviction records what the Brady Act is doing for felony conviction recordsfocus resources on the improvement of these records, with significant collateral benefits for the use of these records, not just for firearms determinations, but a host of critical criminal justice and legitimate non-criminal justice uses.
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The remainder of our testimony expands on these points.
STATES WILL NOT BE IN A POSITION TO CONDUCT A LAUTENBERG CHECK AS OF NOVEMBER, 1998
The Lautenberg Amendment changes the Gun Control Act of 1968 to prohibit individuals who have been convicted of a ''misdemeanor crime of domestic violence'' from receiving or possessing a firearm. The Amendment defines a crime of domestic violence as one which has an ''element of the use or attempted use of physical force or the threatened use of a deadly weapon committed by a current or former spouse, parent or guardian of the victim, by a person with whom the person shares a child in common, by a person who is cohabiting with or has cohabitated with the victim as a spouse, parent or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.''
Under the Lautenberg Amendment, however, a misdemeanor crime that would otherwise qualify as a crime of domestic violence, and thereby disqualify the individual from acquiring a firearm, will not do so if the individual was not represented by counsel or did not knowingly and intelligently waive the right to counsel. Furthermore, the Lautenberg Amendment will not apply if the conviction did not arise from a jury trial or the offender did not knowingly and intelligently waive the right to a jury trial. Still further, a person who would otherwise be considered to have committed a misdemeanor crime of domestic violence and, thereby, be disqualified from acquiring a firearm, will not be disqualified if the conviction has subsequently been ''set aside'' or ''is an offense for which the person has been pardoned or has had civil rights restored''unless the pardon, expungement or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms.
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Obviously, the Lautenberg Amendment requires states to develop a capability to make numerous careful and technical judgments about a misdemeanor conviction. Specifically, states must develop the ability to make the following determinations: (1) Does the individual, in fact, have a misdemeanor conviction? (2) Is there an element of domestic violence, as defined in the Lautenberg Amendment, embedded in this misdemeanor conviction? (This requires a determination of the domestic relationship between the offender and the victim.) (3) Was the person represented by counsel in connection with the conviction or did the person ''knowingly and intelligently'' waive the right to counsel? (4) Was the person convicted in a jury trial or did the person (again, ''knowingly and intelligently) waive the right to a jury trial? (5) Was the conviction in question subsequently pardoned, set aside or subject to a restoration of civil rights? Finally, (6) in looking at this pardon or restoration of civil rights, was there a qualification that the person may not acquire a firearm? For NICS or state instant check purposes, of course, all of these determinations must be made on a very prompt basis so that the customer who is at the gun dealer seeking to acquire a firearm can get a point-of-sale, instantaneous determination as to whether the customer is, in fact, eligible under federal law to obtain a firearm. This is an extraordinary challenge.
More specifically, these challenges include the following.
Not all misdemeanors, by any means, are reported to state central repositories. To the contrary, only the most serious misdemeanors which are fingerprintable offenses are customarily reported to the state central repository. In some states, there may well be misdemeanor convictions involving domestic violence that are not, in fact, required to be reported to the state central repository.
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Disposition reportingalways a challenge, even with respect to felony casesis likely to be a greater challenge and problem with respect to misdemeanor cases. Furthermore, disposition reporting is particularly uncertain with respect to older misdemeanor entries and efforts to obtain those unreported dispositions would be very expensive.
Capturing misdemeanor information vastly increases the volume of information flowing to the repository and also mushrooms the number of courts that the repository must communicate with in order to capture misdemeanor information.
In most states, the penal code citation recorded on the criminal history record indicating a misdemeanor conviction, does not, on its face, indicate whether the conviction involves an element of domestic violence. Instead, in almost all states, the citation will simply indicate a conviction for a misdemeanor assault or an aggravated assault. Moreover, the citation will not indicate the identity or status of the victim or the relationship of the offender and the victim. Thus, there is no way that a review of the criminal history record, in and of itself, will indicate whether the misdemeanor conviction is relevant for Lautenberg purposes.
In virtually every state, a misdemeanor conviction for a violent offense will require research, relying on original records of entry maintained at law enforcement agencies or courts in order to determine if the victim-offender relationship makes the conviction relevant for a Lautenberg determination. For example, this research may require a review of original records of entry at the police station (such as incident reports or statements of charges prepared by arresting officers) and, more likely, at the courthouse.
Page 128 PREV PAGE TOP OF DOC Even in states where the criminal history record, on its face, will indicate that the misdemeanor conviction involves an element of domestic violence, research involving the original records of entry will still be necessary to determine if the offender was represented by counsel or waived counsel, had an opportunity for a jury trial or waived a jury trial. Because this type of information is not always recorded in original records of entry, it may simply never be possible in many states to obtain this information or to make this determination.
It also will be necessary to research original records of entry to determine whether there has been a set-aside or a pardon or civil rights have been restored. In some states, this type of information may be reported to the repositories and entered on the criminal history record, but the underlying pardon or restoration of civil rights or set-aside may still have to be researched in order to determine whether, by its terms, the instrument provided that the offender may not ''ship, transport, possess or receive'' a firearm.
Obviously, none of this extensive (and expensive) research can be done on anything like a real time basis while the customer waits at the gun dealer. Thus, state instant check systems (as well as the NICS, once it is operational) will have only three choices. The first and the best, but easily the most resource-intensive choice, will be to shoulder the formidable task of researching literally millions of misdemeanor convictions to make the several Lautenberg Amendment determinations and then to place a ''Lautenberg flag'' on those misdemeanor convictions which are a disqualifier for obtaining firearms. The second choice is to adopt a policy that when a search produces a misdemeanor hit, the system will deny (''red light'') the firearms sale and if the firearms customer appeals, conduct the necessary research to determine whether the misdemeanor conviction, in fact, meets the Lautenberg criteria. The third choice is to ignore the misdemeanor hit and ''green light'' the firearms transaction on the theory that in most cases, the conviction will not, in fact, meet the Lautenberg criteria.
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FAILURE TO OBTAIN LAUTENBERG INFORMATION DOES NOT CREATE A NEW OR UNIQUE SITUATION
The Gun Control Act identifies ten categories of individuals who are prohibited under federal law from receiving or possessing a firearm. One of these categories covers individuals who are under indictment for, or have been convicted of, a felony crime. Because of its importance and size, the felony crime category has occupied most of the states' attention and resources in the three plus years since enactment of the Brady Act. While state systems are, by no means, in a position to say that Brady checks for felony convictions will be foolproof (there remain, for example, significant problems of non-reporting of felony arrests, as well as non-reporting of felony dispositions and, of course, a name-only Brady check without fingerprints may often miss available criminal history information because the individual has used an alias), the state instant check systems which are currently operational enjoy a relatively strong capability to conduct a complete and reliable felony conviction check.
This is much less true when it comes to most of the other categories of individuals who are precluded by the Gun Control Act from acquiring a firearm. For example, individuals who are unlawful users of, or addicted to, any controlled substance are prohibited by the Gun Control Act from acquiring a firearm. Research conducted by SEARCH indicates that most states are not in a position today, and will not be in a position in November of 1998 or any time in the near future thereafter, to identify these types of individuals, particularly on a reliable or ''instantaneous'' basis. In many states, state laws make this type of information confidential. In every state, professional canons of ethics and norms discourage the release of this type of drug treatment information. In few, if any states, is this type of information captured in a statewide information system or is this information automated or retrievable on a name-only, automated basis or capable of being transmitted on a telecommunicated basis.
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As a further example, the Gun Control Act provides that individuals who have been adjudicated as mental defectives or have been committed to mental institutions are precluded from obtaining a firearm. As a practical matter, this information is somewhat more readily available at the state level than is drug use and addiction information because the mental health category effectively requires that there has been a commitment adjudication and thus, there is likely to be a legal record. Finding this record, however, amidst a decentralized, manual records system is, of course, another matter.
Because state drug use and mental health information is not effectively available, it does not mean, however, that the NICS cannot or should not be made operational in November of 1998. Nor does it mean that a NICS background check will not be useful in identifying individuals who attempt to purchase firearms and who are, in fact, precluded by law from doing so. This does mean, however, that a NICS check, as well as state instant checks, will not be perfect or complete checks. The requirements imposed by the Lautenberg Amendment simply make these checks that much less perfect and complete.
There is, however, one difference between the shortfall occurring as a result of drug and mental health information and the shortfall that will occur because of the Lautenberg requirements. When drug addiction or mental health information is missed by a NICS or a state instant check, it is customarily missed altogether, leaving not even a clue that the prospective firearms purchaser is, in fact, disqualified under federal law from obtaining a firearm. In the case of individuals disqualified by the Lautenberg Amendment, however, the state repository, the state instant check system or the NICS may often obtain a misdemeanor conviction hit. Once a misdemeanor conviction hit is obtained, criminal justice officials are likely to be confronted with two relatively unpleasant choices: ignore the hit and ''green light'' an individual who may, in fact, be disqualified under federal law from obtaining a firearm; or ''red light'' an individual, knowing that the individual may, in fact, be eligible to obtain a firearm but knowing further that there is no way to make this determination in a definitive way without days or perhaps, weeks, of research. Indeed, given the complexity of the Lautenberg criteria, appeals of a firearm purchase denial for a misdemeanor conviction, may turn out to be quite lengthy and expensive.
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EMPIRICAL INFORMATION IS NEEDED AS TO HOW LONG IT WOULD TAKE AND HOW MUCH IT WOULD COST TO IDENTIFY INDIVIDUALS WITH MISDEMEANOR CONVICTIONS INVOLVING DOMESTIC VIOLENCE
There is little doubt that complying with the Lautenberg Amendment will be time consuming and expensive. This will be less true, but only relatively less true, if the Lautenberg Amendment is changed so that its effect is prospective only. Unfortunately, neither SEARCH, nor any other party of which we are aware, has done the research necessary to develop a reliable estimate of how much it will cost and how long it will take. There are several reasons.
The Lautenberg Amendment is quite recent, having been enacted only at the end of the last Congress, and the criminal justice information community has not yet had the opportunity to fully assess its impact.
In conjunction with the Bureau of Justice Statistics, SEARCH conducts a biannual survey of state criminal history information systems. To date, that survey has focused on felony arrest and disposition reporting. It has not focused on misdemeanor arrest and conviction reporting, much less misdemeanor arrest and conviction reporting involving domestic violence.
The number of misdemeanor arrests that are not reported to the central state repositories (because of an absence of fingerprinting or poor reporting practices or other reasons) is not known.
The extent to which misdemeanor arrests reported to central repositories do not contain dispositions, particularly with respect to aged misdemeanor arrests, is not known.
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The percent of misdemeanor convictions maintained in state central repositories which, because of the nature of the charge, indicate, on their face, that the conviction involves an element of domestic violence (especially domestic violence as defined in the Lautenberg Amendment) is not known.
Of the misdemeanor convictions which do not, on their face, indicate an element of domestic violence, it is not known what percentage of these convictions are candidates for further research in order to determine whether they do, in fact, contain a domestic violence element.
The methodology for researching misdemeanor convictions which are candidates to contain a domestic violence element has not been developed and thus, it is not known whether the arresting agency must be contacted and its incident report reviewed or whether relying upon court generated documents will permit Lautenberg relevant information to be captured.
It is not known whether a percentage of misdemeanor convictions resist any type of Lautenberg determination because the records will not indicate whether the offender had an opportunity for counsel or a jury trial or an opportunity for a knowing and voluntary waiver.
The research methodology for looking at records relating to pardons, set-asides and restoration of civil rights and determining whether, imbedded in this information, is a prohibition on firearms possession, has not been developed.
If the Lautenberg Amendment were to be amended so that it is prospective only, we do not, as yet, have information as to what kind of changes in reporting protocols and procedures would have to be implemented and which agencies from among the state central repository, the arresting agency, the court, the statewide office of court administration or others would be impacted by these changes.
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To what extent state law will need to be changed in order to record misdemeanor convictions in a way that identifies a domestic violence element is not known.
This relatively brief listing of the methodology and research questions confronting the state criminal justice information community makes clear that, at this point in time, there is no way to provide a reliable or conscientious estimate of the amount of time or the amount of money that will be required in order to provide adequate information support for the Lautenberg Amendment.
EFFORTS TO ACHIEVE THE INFORMATION CAPABILITY NECESSARY TO SUPPORT A LAUTENBERG DETERMINATION SHOULD HAVE THE EFFECT OF IMPROVING THE ENTIRE CRIMINAL HISTORY RECORD SYSTEM
In order to create an effective and reliable National Instant Check System, the entire criminal history record information system must be, and has been, improved. Under Brady and related federal grant programs, over 200 million dollars in federal monies will be made available to the states. Together with the states' own monies, hundreds of millions of dollars will be spent in this decade to improve the nation's criminal history record information systems. Today, arrest reporting is better; disposition reporting is far better; the extent to which there is an automated access and telecommunications capability is substantially improved; and even the nation's criminal identification capability through automated fingerprint identification systems is much improved. This improvement is owed, at least in part, to the pressures created by the need to build the Brady National Criminal Background Check System and the resources made available through Brady.
Page 134 PREV PAGE TOP OF DOC Improvement in the quality and availability of criminal history record information is critical because today, criminal history record information is used for so much more than merely firearms eligibility determinations. On the criminal justice side, this information is used for investigative purposes, for pretrial release determinations, for charging and prosecution decisions, for eligibility determinations for diversionary programs and for sentencing and correctional treatment decisions. On the non-criminal justice side, criminal history record information is used for background checks for security clearances; for critical licensing determinations, such as for private security guards and airline pilots; and for sensitive employment background determinations, such as for school teachers, school bus drivers and child care workers.
Effective at the end of fiscal year 1998, Brady Criminal History Record Improvement Grant Program monies will run out. If, because of enactment of the Lautenberg Amendment, the federal commitment to federal justice assistance money to support continued improvement in criminal history records (with the focus, this time, not on felony information but on misdemeanor information) is enhanced, the Lautenberg Amendment, in the long run, will have a positive information impact.
NICS IS VIABLE FOR 1998
It is clear that the Congressin an effort to prevent individuals who have been convicted of a misdemeanor crime involving domestic violence from obtaining a firearmdid not inquire whether information is available to support this determination or whether the criminal justice community has the resources to support this determination. It is equally clear that, in fact, the criminal justice information community does not have either the information or the resources. This does not diminish or discount, however, the value of the state instant check systems or the NICS, any more than the inability to capture drug or mental health information diminishes the value of these systems. The NICS [and state instant check systems not already in operation] can still come up in November 1998 and can still provide a good check, but not a perfect check and not a foolproof check. It is important for the American public to understand both the capabilities and the limitations of these background checks.
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Finally, it is also important to understand that the effort to obtain information to support Lautenberg determinations could well strengthen the incentive for continued federal financial assistance and leadership to improve the NICS, state instant check systems and the entire criminal history information system.
Mr. Chairman, SEARCH thanks you for the invitation and the opportunity to provide this testimony. We look forward to working with you and the members of the Subcommittee and your staff on the Lautenberg Amendment and related criminal history record information issues.
Mr. MCCOLLUM. Thank you again, Mr. Wethington.
Captain Vass, you may give us your testimony, please.
STATEMENT OF CAPTAIN R. LEWIS VASS, RECORDS MANAGEMENT OFFICER, VIRGINIA DEPARTMENT OF STATE POLICE
Mr. VASS. Thank you, Mr. Chairman. I appear here today to testify with regard to the Virginia Firearms Transaction Program, the first firearms point-of-sale approval program in the Nation, and the effects that the Lautenberg amendment have on that program.
In November 1989, the provisions of Virginia Code Section 18.2308.2:2 went into effect, which was the first point-of-sale Instant Check System for the approval of gun sales in the Nation. In order to develop this program, Virginia State police spent a lot of time and energy developing it and doing time-and-motion studies, researching available materials, determining the anticipated volume of transactions by communicating with gun dealers, and researching necessary records for the procurement of the telecommunications network it would take to operate this program.
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The program became operational, and the procedures were designed to be the least intrusive on the buying public and the gun dealers, while complying with lawful mandates of State and Federal laws for the transfer of firearms. The State police established a toll-free number which is statutorily required to be operational between 8 a.m. and 10 p.m. 7 days a week, including holidays, and almost instantaneous approval or non-approval response is provided to the gun dealer by the 800 number while he waits on the line for this response. Based on criminal history record information, the approval is provided to the dealer in less than 2 minutes.
To start this program up, the Department of State Police invested approximately $457,000. Criminal history record information and other protected information access to make the determinations of purchase eligibility is never disclosed to the gun dealer, and since 1989, over 6,000 gun dealers in Virginia have registered with this program. Because of Federal enactment of legislation, currently there are approximately 3,500 licensees registered with the program, and the program today provides service to all those dealers.
Virginia was able to implement this program because the Central Criminal Records Exchange, which is Virginia's criminal history repository, is one of the most complete repositories in the Nation, with over 90 percent of our arrest information containing court dispositions.
The design of the Virginia Firearms Transaction Program eliminates the traditional waiting period associated with other programs of this type by simultaneously accessing six national and State databases. It accesses Virginia ''wanted'' and missing persons files; Virginia criminal history files; Virginia calendar files, which is a State file prohibiting the sale of more than one handgun to a person within a 30-day period; mental health records; national ''wanted'' files, and Interstate Identification Index, the III, which is maintained by the Federal Government.
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Disqualifiers for the State are both State and Federal, including felony convictions, the purchase of more than one handgun from any source within 30 days, or drug convictions within a 36-month period, outstanding protective or restraining order, adjudication of legal incompetence, under indictment for felony offenses, or outstanding felony warrants of arrests; also, unlawful use or addition to marijuana or depressants, stimulants, or other narcotic controlled substances, dishonorable discharge from the Army, aliens or persons who have been renouncedor who have renounced their United States citizenship.
Virginia also pursues criminal investigation and prosecution of persons who violate either the State or the Federal law. The purchaser's name and identifying information is entered into the Instant Check System. The computer accesses these databases, and we provide the gun dealer a response in approximately a minute and a half as to whether the gun sale is approved or not approved. The only thing that is related to the dealer is, yes, there's an approval or, no, there is not approval.
I want to emphasize the fact that in those instances where there is not an instant approval, research is begun immediately to determine whether or not the information contained in the record that we accessed actually prevents the person from obtaining a firearm of whether it is a false hit. If it is a false hit, and the proper research is done, we immediately notify the gun dealer, so that they may change the decision and transfer the firearm to that person.
Since 1989, we have constantly approved over 86 percent of all the transactions called in in less than 2 minutes. There's about 14 percent requiring some type of research. Out of that 14 percent, less than 1 percent of the persons are actually prohibited, based on any of the prohibitors I have mentioned, from actually obtaining a firearm.
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Since the Lautenberg amendment was enacted, our research time has quadrupled and the system has slowed considerably. On the first day of implementation, which was November the 8th, the day we became aware of the Lautenberg amendment, our researches, which average approximately 41, escalated to over 200. And when I say, ''research,'' that means contacting courts in other Statesactually, in other countries at times, because we do have denials based on felony convictions committed in other countries.
One thing that puts usthat bears on our mind when we try to enforce the provisions of the Lautenberg amendment is the liability that it may incur on us, and that is by having to apply or having to approve the sale of a gun to an individual who we cannot determine was either convicted or not convicted. The provisions of it require that they have counsel or intelligently waive counsel, and under Virginia's law misdemeanor records are expunged from the court files at the end of 10 years.
Many of the cases that we ran into immediately upon implementation of this were cases where persons had been convicted of misdemeanor violations more than 20 years ago. We had to call the court, which had no record of it. We researched the records that we maintain in the repository, which indicated in one instance that it comes to mind that the person was convicted of domestic violence. However, we could not determined, based on any records that were available to us, whether this person had counsel, waived counsel, or had a jury trial. Therefore, we had to decide in favor of the purchaser, based on the fact that we had no information, and approved the sale of the firearm. In cases of this nature, what liability do we incur as the agency operating the Instant Check System when we approve the sale or the transfer ofthe sale of a firearm based on the lack of records, and then later another offense occurs?
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In closing, I would like to say that, without significant and costly changes to our computerized criminal history database, the amendment thatthe law that we now run as the Virginia Instant Check System, the Lautenberg amendment takes the ''instant'' out of that. It slows the process down and prohibits us from approving the sale of firearms to those persons that are legally entitled to them in an efficient manner.
Thank you, Mr. Chairman.
[The prepared statement of Captain Vass follows:]
PREPARED STATEMENT OF CAPTAIN R. LEWIS VASS, RECORDS MANAGEMENT OFFICER, VIRGINIA DEPARTMENT OF STATE POLICE
On November 1, 1989, the provisions of Virginia Code Section 18.2308.2:2 became effective. This legislation, essentially, requires that a criminal history record information check be obtained prior to the sale or transfer of a firearm.
The Virginia Firearms Transaction Program (VFTP) was the first program of its kind in the nation. The Virginia State Police developed this program after conducting time and motion studies to determine necessary equipment and employee resources, determining an anticipated volume of transactions by communication with firearm dealers, design and implementation of a computer program to access the necessary files for the record checks, and procurement of telecommunication service and equipment. The program and operational procedures were designed to be the least intrusive on the buying public and gun dealers while complying with lawful mandates of state and federal laws for the transfer of firearms.
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The State Police established a toll-free telephone number which is statutorily required to be operational between the hours of 8:00 a.m. and 10:00 p.m., seven days a week, including holidays. Almost instantaneous approval/non-approval responses are provided the dealer contacting the office via the confidential ''800'' number. Based on criminal history record information, an approval/non-approval decision is provided the dealer in an average time of less than two minutes per call while the dealer remains on the telephone with the State Police operator.
A. 1989 start-up costs, total of 15 employees:
B. Criminal history information and other protective information accessed to make the determination of purchaser eligibility is never disclosed to the gun dealer.
C. Since 1989, over 6,000 gun dealers have registered with the VFTP. Currently, approximately 3,500 licensees remain registered with the VFTP. The volume of transactions has not been affected by the reduction of federal firearm licensees.
D. Virginia was able to implement this program because the Central Criminal Records Exchange (CCRE) maintained by the Virginia State Police is one of the most complete records repositories in the nation. Over 90 percent of these records contain court dispositions.
E. The design of this program eliminates the traditional waiting periods associated with other programs of this type by simultaneously accessing six national and/or state databases:
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1. Virginia's wanted and missing persons files, and protective orders.
2. Virginia's criminal history record files.
3. Virginia's calendar file of handgun purchases.
4. Mental health records required to monitor legal incompetence, incapacity, and involuntary commitments to mental institutions. (state)
5. National wanted person files. (federal)
6. Interstate Identification Index (III). (federal)
F. Disqualifiers, state and federal law:
1. Felony conviction. (state and federal)
2. Purchase of a handgun from any source within the last 30 days, handgun purchases only. (state)
3. Conviction, within a 36 consecutive month period, of 2 misdemeanor offenses for Possession of Controlled Substance or Possession of Marijuana, handgun purchases only. (state)
4. Outstanding protective or restraining order. (state)
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5. Adjudication of legal incompetence, mental incapacity, or involuntarily committed to a mental institution. (state and federal)
6. Under indictment for a felony offense or a felony charge pending for a crime punishable by imprisonment for a term exceeding 1 year. (federal)
7. Outstanding felony warrant of arrest. (state and federal)
8. Unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any controlled substance. (federal)
9. Dishonorable discharge from the Armed Forces. (federal)
10. Alien illegally in the United States. (federal)
11. A person who has renounced United States citizenship. (federal)
G. The Virginia State Police pursues criminal investigations and prosecution of violations and fraudulent attempts to purchase firearms.
H. The purchaser's name and other personal descriptive data, and the number of firearms by category intended to be sold, are immediately entered into a computer system while the dealer remains on the telephone.
Page 143 PREV PAGE TOP OF DOC I. The dealer is provided an approval/disapproval decision in approximately 2 minutes:
1. Identification is NOT made in one or more of these files:
(a) ''YES, THE SALE IS APPROVED,'' and a unique computer-generated approval number is provided to the firearms dealer.
2. Identification (HIT) is made in one or more of these files:
(a) ''NO, THE SALE IS NOT APPROVED AT THIS TIME'' is provided to the firearms dealer, and additional information is obtained:
additional personal descriptive data of the prospective purchaser,
the dealer's next business day and closing time.
J. Initiatives for Program Enhancement
1. Virginia has implemented a pilot program which allows access to the Firearms Transaction Program System from terminals located in selected gun dealers' place of business.
2. This program has been approved by the NCIC Advisory Policy Board.
3. The participating gun dealer data enters directly from the customer's purchase application to a pre-set format, and in a matter of seconds is provided with a computer generated approval number, or a response of ''NOT APPROVED AT THIS TIME, FORWARDED TO THE VIRGINIA STATE POLICE.''
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4. Criminal history record information is NOT revealed to the gun dealer.
5. Virginia's 20 highest volume gun dealers are participating in this program.
6. 20% of the overall firearm transactions have been processed via on-site terminals.
7. Direct terminal access by firearms dealers has improved customer service by placing less demand on the 800 phone line, and has served to reduce operating costs associated with the program.
8. This program includes firearms transactions conducted directly at selected major gun show events by State Police personnel with direct terminal access to the VFTP via a lap-top computer. At these events, resources are still required to obtain and evaluate criminal history records to determine customer eligibility.
K. Instant Check Summary
1. Virginia's approach to firearm records checks does not infringe on an eligible individual's ability to purchase or possess a firearm.
2. The VFTP minimizes inconvenience of unnecessary delays.
3. The firearms transaction system is programmed to cause a ''hit'' on any criminal record wherein a possible prohibitor exists; all other criminal records are treated as ''no record'' for the purposes of this program.
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4. Since the program's inception:
(a) 86% of the total volume of transactions received clearance in less than 2 minutes.
(b) 14% of the total volume of transactions received an initial non-approval response requiring research and determination of purchaser eligibility to purchase/possess a firearm.
(c) Less than 1% of the initially non-approved transactions were confirmed denials.
POST LAUTENBERG AMENDMENT
On September 30, 1996, the provisions of the Lautenberg Amendment to the Omnibus Consolidated Appropriations Act became effective. The Virginia State Police became aware of this amendment on November 8, 1996, and immediately took action to enforce the provisions of this amendment. Modifications of the automated VFTP system to incorporate these provisions are being developed.
Within a week of applying this new federal prohibitor to initially non-approved transactions under the current system, the volume of transactions requiring research to determine purchaser eligibility increased from 41 to over 200. To date, the VFTP has reviewed over 1200 criminal histories indicating possible domestic violence, and has denied 165 of the firearm purchase applications. Of the 165 applications denied, 90% were the result of extensive research and the remainder based on Virginia's domestic assault law in conjunction with the federal prohibitor.
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The scope of this prohibitor leaves the Virginia State Police with many questions as to the extent of liability imposed. For example, records maintained by the CCRE may indicate that a person was convicted of an offense involving domestic violence that occurred beyond Virginia's ten year retention of court records. Therefore, no court records exist for review in making a determination that a conviction occurred as required under the terms of the Lautenberg amendment; i.e., whether or not the person was represented by counsel or knowingly and intelligently waived the right to counsel, and/or whether or not the person was entitled to a jury trial, was tried by a jury, or waived the right to have the case tried by a jury. Absent such documentation, the sale approval/non-approval decision is made in favor of the purchaser. Our concern is the liability attached to such action, especially if the individual commits another domestic violence related act with the firearm.
The federal definition of domestic violence reaches far beyond those individuals convicted of assault, including many offenses such as sexual abuse or battery. The VFTP is currently programmed to cause a ''hit'' only in instances were a possible prohibitor exists. Modification of the VFTP to accommodate the domestic violence prohibitor, as written, will require query of over 1,000,000 misdemeanor records that otherwise are not flagged as possible prohibitors. Consequently, a ''hit'' will occur upon the mere existence of a record, and result in a tremendous increase in the number of records to examine and time required to research the criminal history information. Only those people who have never been charged with a criminal offense will continue to receive an instant clearance for a firearms purchase.
Without significant and costly changes to our computerized criminal history data base, this amendment has removed the INSTANT from Virginia's instant check system for a large percentage of transactions.
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1. Volume of Transactions
2. Transactions Denied
3. Reasons for Denial
4. Wanted Persons Identified, Apprehended and Arrests
5. Number of Firearms by Category
Mr. MCCOLLUM. Thank you very much, Captain Vass. Mr. Gagliardi.
STATEMENT OF PETER L. GAGLIARDI, DEPUTY ASSOCIATE DIRECTOR OF CRIMINAL ENFORCEMENT PROGRAMS, BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS
Mr. GAGLIARDI. Mr. Chairman, members of the subcommittee, I appreciate the opportunity to discuss with you the implementation of the Lautenberg amendment by the Bureau of Alcohol, Tobacco and Firearms.
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Immediately following the passage of this law, ATF took various steps to advise the firearms industry, law enforcement, and the public of these new provisions. Initially, letters were sent to virtually all State and local law enforcement agencies within the United States. All Federal firearms licensees were sent letters about the amendment. Furthermore, the Form 4473, Firearms Transaction Record, has been revised to include the new offense, and distribution has been made to all licensees. Moreover, a letter to the public was published on the Internet.
ATF has also circulated a series of questions and answers concerning the new law. We have also written to the International Association of Chiefs of Police about the new provision. We have met with several law enforcement organizations to discuss the impact of the law, including the IACP, the National Sheriffs Association, and the Fraternal Order of Police.
In addition, because of the law's impact on law enforcement, ATF has taken steps to review certain personnel records of ATF employees who possess firearms in the course of their official duties. Further, ATF has performed criminal records checks, and employees have responded to a questionnaire certifying whether they have a disabling conviction. While these background checks are still continuing, no special agent has been found to be under this disability.
ATF has been responding to many inquiries from the law enforcement community about the impact of this new provision. In enforcing this new law, ATF's primary mission is to protect the public, and our enforcement efforts are focused on just that goal.
Page 149 PREV PAGE TOP OF DOC Encouraging voluntary compliance is an important part of our strategy for implementing this new provision. Accordingly, ATF is advising persons subject to the disability that they should immediately, but lawfully, dispose of their firearms to a third party, such as their attorney, their local police agency, or a Federal firearms dealer.
At this time, I would be happy to answer any questions. Thank you.
[The prepared statement of Mr. Gagliardi follows:]
PREPARED STATEMENT OF PETER L. GAGLIARDI, DEPUTY ASSOCIATE DIRECTOR OF CRIMINAL ENFORCEMENT PROGRAMS, BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE, I APPRECIATE THE OPPORTUNITY TO DISCUSS WITH YOU THE IMPLEMENTATION OF THE LAUTENBERG AMENDMENT BY THE BUREAU OF ALCOHOL, TOBACCO AND FIREARMS.
IMMEDIATELY FOLLOWING PASSAGE OF THIS LAW, ATF TOOK VARIOUS STEPS TO ADVISE THE FIREARMS INDUSTRY, LAW ENFORCEMENT, AND THE PUBLIC OF THESE NEW PROVISIONS. INITIALLY, LETTERS WERE SENT TO VIRTUALLY ALL STATE AND LOCAL LAW ENFORCEMENT AGENCIES WITHIN THE UNITED STATES. (SEE EXHIBIT 1 ATTACHED). ALL FEDERAL FIREARMS LICENSEES WERE SENT LETTERS ABOUT THE AMENDMENT (EXHIBIT 2). FURTHERMORE, THE FORM 4473 (FIREARMS TRANSACTION RECORD) HAS BEEN REVISED TO INCLUDE THE NEW OFFENSE AND DISTRIBUTION HAS BEEN MADE TO ALL LICENSEES. (EXHIBIT 3). MOREOVER, A LETTER TO THE PUBLIC WAS PUBLISHED ON THE INTERNET. (EXHIBIT 4). ATF HAS ALSO CIRCULATED A SERIES OF QUESTIONS AND ANSWERS CONCERNING THE NEW LAW. (EXHIBIT 5). WE HAVE ALSO WRITTEN TO THE INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE (IACP) ABOUT THE NEW LAW. (EXHIBIT 6). WE HAVE MET WITH SEVERAL LAW ENFORCEMENT ORGANIZATIONS TO DISCUSS THE IMPACT OF THE LAW, INCLUDING THE IACP, THE NATIONAL SHERIFFS ASSOCIATION, AND THE FRATERNAL ORDER OF POLICE.
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IN ADDITION, BECAUSE OF THE LAW'S IMPACT ON LAW ENFORCEMENT, ATF HAS TAKEN STEPS TO REVIEW CERTAIN PERSONNEL RECORDS OF ATF EMPLOYEES WHO POSSESS FIREARMS IN THE COURSE OF THEIR OFFICIAL DUTIES. FURTHER, ATF HAS PERFORMED CRIMINAL RECORDS CHECKS OF THESE EMPLOYEES AND THEY HAVE RESPONDED TO A QUESTIONNAIRE CERTIFYING WHETHER THEY HAVE A DISABLING CONVICTION. WHILE THESE BACKGROUND CHECKS ARE CONTINUING, NO SPECIAL AGENT HAS BEEN FOUND TO BE UNDER THIS DISABILITY.
ATF HAS BEEN RESPONDING TO MANY INQUIRIES FROM THE LAW ENFORCEMENT COMMUNITY ABOUT THE IMPACT OF THIS NEW LAW. IN ENFORCING THIS NEW LAW, ATF'S PRIMARY MISSION IS TO PROTECT THE PUBLIC SAFETY, AND OUR ENFORCEMENT EFFORTS ARE FOCUSED ON THAT GOAL. ENCOURAGING VOLUNTARY COMPLIANCE IS AN IMPORTANT PART OF OUR STRATEGY FOR IMPLEMENTING THIS NEW PROVISION. ACCORDINGLY, ATF IS ADVISING PERSONS SUBJECT TO THE DISABILITY THAT THEY SHOULD IMMEDIATELY, BUT LAWFULLY DISPOSE OF THEIR FIREARMS TO A THIRD PARTY, SUCH AS THEIR ATTORNEY, THEIR LOCAL POLICE AGENCY, OR A FEDERAL FIREARMS DEALER.
I WOULD BE HAPPY TO RESPOND TO ANY QUESTIONS.
INSERT OFFSET RING FOLIOS 199 TO 222 HERE
Mr. MCCOLLUM. Thank you very much.
Because the time constraints are on him, I would like to yield to Mr. Barr for 5 minutes at this point. You are recognized for 5 minutes.
Page 151 PREV PAGE TOP OF DOC Mr. BARR. Thank you, Mr. Chairman. I appreciate your accommodating my schedule.
Mr. Gagliardi, before I ask you a couple of questions, I'd like to state for the record the tremendous job that ATF has been doing in Atlanta with the recent bombings that we've had down there. The responsiveness of ATF and the tremendous work that they are doing there really is a credit not only to your agency, but to all Federal law enforcement. And even though I know that you're not specifically down there working the cases, your duties take you all over the country. Those of us from Georgia, and particularly from the Atlanta metro area, we really do appreciate the work of ATF.
Mr. GAGLIARDI. Thank you, Mr. Barr. We appreciate those words. Thank you very much.
Mr. BARR. Mr. Gagliardi, when the Lautenberg law was passed and signed into law, I think on September 30, it was literally just a few days later when our office started receiving some indications from law enforcement folks that the Federal Government was going to attempt to enforce its provisions retroactively. And I, in fact, wrote to our government on October 8, when we started hearing of that possibility, raising very serious concerns with what I consider to be an effort to apply a law unconstitutionally. And then subsequent to that, I know ATF sent out the letter that you mentioned to law enforcement agencies in November, I think it was.
Where did the direction to ATF come from to send those memos out and to enforce this law retroactively?
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Mr. GAGLIARDI. Mr. Barr, initially, my response is to respectfully differ with the term ''retroactively.'' We don't believe that we are enforcing the law retroactively in violation of the Constitution. If we did, believe that we would not enforce the law in that manner.
The law simply prohibits the possession of a firearm after the effective date of the law. The prohibition applies to all persons convicted of a qualifying crime of domestic violence, even if the conviction did occur prior to the effective date of the law. I think that is what is causing the confusion. But this position is consistent with the way the Gun Control Act of 1968 has been applied for the last 30 years in other areas of prohibited personsfor example, convicted felons. It doesn't make a difference when you were convicted as long as, on or after the date the law went into effect, you were in possession of a firearm and you have a felony conviction or, in this case, a conviction for a crime of domestic violence in your past.
This position was coordinated closely with Justice and Treasury. They ultimately decide on those matters, and that is the interpretation that we've been instructed to live by.
Mr. BARR. And that's what happened in this case. In other words, after the Lautenberg amendment was passed and signed by the President on September 30, a policy decision was made to enforce the law, to use a neutral term, in the manner that you are enforcing it, by the Treasury and the Department of Justice?
Page 153 PREV PAGE TOP OF DOC Mr. GAGLIARDI. Absolutely correct, sir.
Mr. BARR. Okay. I do disagree with you on that, but I wanted to get that for the record, where and how that decision was made.
If, in fact, H.R. 26, which is the amendment to the Lautenberg law that I have proposed, were to be enacted and signed by the Presidentand I don't know at this point whether he opposed it or supports it; do you know?
Mr. GAGLIARDI. I don't know, sir.
Mr. BARR. Does the administration have a position on H.R. 26?
Mr. GAGLIARDI. Not that I am aware of yet, sir.
Mr. BARR. Okay. If, in fact, then, it is passed by both Houses, and if the President does sign it, and it therefore specifically amends and directs the manner in which the Lautenberg law would be enforced, ATF, I presume, would have no problem abiding by that law and enforcing it according to those new terms?
Mr. GAGLIARDI. Beyond that, Mr. Barr, we would have no problem, we feel duty-bound to enforce the laws as they are written at the current time.
Mr. BARR. Okay. Actually, Mr. Chairman, I think that's all that I have. I just wanted to determine a little bit of the background and get on record that ATF certainly would have no objection to enforcing the law, however it's passed and signed by the President.
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Thank you, Mr. Gagliardi.
Mr. GAGLIARDI. Thank you, Mr. Barr.
Mr. BARR. Thank you to the rest of the panel.
Mr. MCCOLLUM. Mr. Gekas, you're recognized for 5 minutes.
Mr. GEKAS. I thank the chairman.
Back when the Instant Check amendment was offered, I offered that amendment to the Brady bill that was enacted in the nineties. I did so largelyand it's deja vu all over againI did so largely on the basis of information I had gotten on Virginia's Instant Check System. I wanted you to know that, that yours was at least the theoretical model on which I offered my amendment, and had been encouraged to offer that amendment by others who had observed the Virginia system at work.
What I'm worried about nowand Mr. Wethington and Mr. Loesch have added to my worries hereis whether or not even the prototype Virginia system on which I based my amendment, which is now in process for 1998, will have tremendous gaps, even if it's implemented on time.
The question I wantand any one of the three of you could answernotwithstanding the gaps which you may or may not see will be developing because of the domestic violence Lautenberg thing, are we still in favoror are you in favor of proceeding without delay the implementation of the Instant Check System in 1998, recognizing that even if we hadn't had the Lautenberg, there would still be some gaps, some imperfections in the system, even if it were implemented on time?
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Am I making myself clear? I don't wantin other words, you can tell I'm prejudiced. I don't want any delay in the 1998 goal of implementing the Instant Check amendment. Any one of you who wishes to answer?
Mr. LOESCH. Yes, Dave Loesch, FBI.
Mr. GEKAS. Yes.
Mr. LOESCH. No, we're committed, and even in speaking with SEARCH, I think we're all committed in doing anything that is going to better the entire criminal justice system, and we're prepared to go forward today with that time table.
Mr. GEKAS. Good.
Mr. LOESCH. We think it's worthwhile to go forward.
Mr. GEKAS. The same, Mr. Wethington?
Mr. WETHINGTON. Yes, SEARCH is committed to seeing through the implementation date in November 1998.
Mr. GEKAS. By the way, what happens to the Virginia system, oncethat's a questionwhen the National Instant Check goes in? Under the wording of law, that wouldn't affect you at all?
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Mr. VASS. We don't see it affecting the Virginia system at all.
Mr. GEKAS. No, because you're doing it.
Mr. VASS. We should operate basically the way we're operating today.
Mr. GEKAS. Well, wouldn't it add to your overall database to know that the National System would now cover more landscape than does the Virginia check system? Would you be incorporatingwouldn'tin other words, an applicant now in Virginia, would he have the same Instant Check capabilities at the disposal of the dealer as would be in 1999 or would it be expanded?
Mr. VASS. We look at, when the National Instant Check System goes into place, providing us with more records that we do not now have access to at the national level, such as mental health records at the national level. The only records we have in that category now for mental health are those mental health records maintained solely by the State of Virginia, and such other records for drug abuse. We look at this improving or broadening the amount of the records that we'll have access to
Mr. GEKAS. Exactly my point.
Mr. VASS [continuing]. And improving our system to get more.
Page 157 PREV PAGE TOP OF DOC Mr. GEKAS. Exactly my point, but you worry aboutand this is the last statement in your written record and your oral testimonythat the Lautenberg concept may remove the ''instant'' from your instant check because of these gaps that we're discussing.
Mr. VASS. Well, the reason that we look at it as delaying the decision to be made is because back, starting about 5 years ago, and with Federal grant funding, which we much appreciated, we were able to go in and flag all the records in our database containing felony convictions, and our computer was programmed so that it went in and searched the record; it only hit on those records that contained prohibitors.
Mr. GEKAS. I see.
Mr. VASS. We did not touch the misdemeanor files because they were lesser offenses, and there are probably 2.5 million records in our database that contain misdemeanor violations. Without flagging those records, when we go in and make a check, we have to search all those misdemeanors, and it will hit on any misdemeanor, whether it be domestic violence or just a simple trespass, or whatever. It will hit on it, which will give an initial nonapproval, tell the individual that he is not approved at this time. Then we have to go into this research mode and to determine whether this is a prohibitor or not, which takes time. Sometimes we have to call out-of-state courts or even other countries to determine this.
Mr. GEKAS. Is there reason to hope that between now and 1998, December 1998, that you will have evolved upon a process to return the ''instant'' to the instant check?
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Mr. VASS. Well, based on
Mr. GEKAS. Even with the new
Mr. VASS. We are working toward that.
Mr. GEKAS. Yes.
Mr. VASS. It's going to take a large amount of money, and it's going to take probably longer than a year and a half or 2 years to do, because it took us approximately 4 years to go in and flag our database with felony convictions, and we'll have to go back in and now look at all the misdemeanors.
Mr. GEKAS. And are you all agreedand anyone can answer thatif we limited the application of the Lautenberg to prospective incidents, that at least the work that is contemplated for bringing the instant check into full play would be less burdensome than if it took all the history, the entire history of the United States involved in the record base? We all agree? We are all nodding. For the record, they're nodding in approval. And I end my questions with that nod. Thank you.
Mr. MCCOLLUM. Thank you, Mr. Gekas.
I have not asked the panel any questions yet, so I'd yield to myself a little bit. I want to follow up on that.
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In particular, I'm interested in knowing, if we have this Instant Check System that goes into effect, Mr. Loesch, in 1998. Like Captain Vass has said, they can get a hit on misdemeanors, but they just don't know which ones. Does that mean that when we finally get this nationwide, that at that point in time we can say there's no need for a waiting period, except for those that we have hit on? Obviously, when we have a hit in the sense that we're using it and there's some flag coming up of some sort, that person's going to have to be delayed and wait until we resolve whether that's a disqualifying hit or not? Is that assessment pretty much what we're talking about?
Mr. LOESCH. Yes, sir. I think it's important to note that in approximately 82 to 83 percent of every check that's being done today in the interim system we're able to let that person say, yes, you can buy a gun; here you go. There's onlywe get hits on 17 percent of the records today; about 17.5 percent of those we're getting a hit, and a lot of those are felony-type convictions which would automatically throw that person out. So there's going to be a small number in there that are going to hit on this misdemeanor category where we're not going to know whether that's a disqualifying misdemeanor or not, and that's when we'll have to do a little more checking to move forward to find out.
Mr. MCCOLLUM. But that's why you're saying that we're going to fully go ahead and implement the Brady Act in terms of the Instant Check by November 1998? It's because you're going to be able to have the records sufficiently to get the hit.
Mr. LOESCH. Yes, sir.
Page 160 PREV PAGE TOP OF DOC Mr. MCCOLLUM. You just won't know whether it's disqualifying or not in every case; right?
Mr. LOESCH. Yes, sir.
Mr. MCCOLLUM. So we won't need a waiting period anymore at that point? That's the bottom line? We'll have the Instant Check that will give it to us or not?
Mr. LOESCH. Yes, sir, there will be an Instant Check.
Mr. MCCOLLUM. All right. Now when we are looking at this Instant Check System, when it's fully implemented, I noticed in your testimony you talked about getting together and deciding interface with the States. Are we talking about a national repository of data in a big computer or are we talking about simply being able to network from one State to another? How has that been worked out technically? Are we going to Virginia and Florida and California, and so on, and using like an NCIC; everybody cross-checks each other, or has the FBI decided in some of this marvelous new computer world to somehow pull all this together into some big central point, where you just go bing and it's there out of some files you've got?
Mr. LOESCH. Well, I'm not a technical expert on the building of that particular system, Mr. McCollum.
Mr. MCCOLLUM. Yes, go ahead. Maybe Mr. Wethington can tell us.
Mr. WETHINGTON. The National Instant Criminal Background Check System will use the existing Interstate Identification System, as well as some other Federal components, but there will be a need, once you run the check, to also check the State segment, and then route the transaction forward to NCIC so that they can check their additional sources and, in effect, check any of the other States that may have records on file as well.
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So because of what has been referred to as criterion offenses, largely only serious misdemeanors and felonies being maintained at the Federal level, and on non-criterion offenses, which could include misdemeanor convictions for domestic violence being maintained by the States, it becomes extremely important for the States to participate with a State segment of the National Instant Check System, in cooperation with the FBI's.
Mr. MCCOLLUM. All right. I just was curious as to the way ityou know, back several years ago, when we started this debate, the FBI, Mr. Loesch, as you know, was trying to catalog and put into the computer all of these records the State has provided, and they didn't have a lot of dispositions. We knew they had felony trials and people had been charged, but we didn't have dispositions, and it was a laborious hand process. Computer inputting was just starting. Then I got the impression that we were sort of putting a network together literally like we network in the computer world today, and that we wouldn't have to have this central repository anymore. And I guess except for Federal convictions, that's really what you and Mr. Wethington are saying. We're going have everybody online in some way.
Let me ask this question, Mr. Wethington: how many States do not report domestic violence misdemeanor convictions to a State central repository; do you know?
Mr. WETHINGTON. I don't know what that number would be.
Mr. MCCOLLUM. Can you describe the current state of misdemeanor records in the State? Do you have a way of doing that? Do you know?
Page 162 PREV PAGE TOP OF DOC Mr. WETHINGTON. I could speak to the State of Missouri, but I couldn't speak to
Mr. MCCOLLUM. Well, what's Missouri like?
Mr. WETHINGTON. In Missouri's database of criminal records, about 32 percent of our records are misdemeanor only, and of those roughly half are also on file with the FBI in the Interstate Identification Index. The rest of those would be misdemeanors that would not have qualified as a criterion offense. Therefore, we would not have submitted those to the FBI, and so we would be responsible for following up on those.
Within our database, we do not have the ability to go through and determine the elements of Lautenberg. We don't know whether the individual was represented by counsel or whether there was access to a jury trial, or a set-aside of the verdict and the elements of that set-aside. So we would have to then conduct research within the other segments of the criminal justice community to make the determination as to whether that misdemeanor conviction for domestic violence was a disqualifying event.
Mr. MCCOLLUM. Captain Vass, you've described quite a bit of Virginia's system. I understand you've counseled some other States, including my home State of Florida on their system. Do you see the same problems with the misdemeanor situation in, say, Florida and in the other States that you have knowledge of as you've described for Virginia?
Mr. VASS. I think basically all the States are going to experience the same thing. The emphasis has been put on felony convictions and the other prohibitors under State or Federal law, and most of them come from Federal legislation or Federal law, such as the illegal alien in the United States, those who have renounced citizenship, drug addicts, and so on and so forth, which were originally the eight prohibitors. There was not that much emphasis put on the upgrading or massaging the misdemeanor records to make them available in the same fashion as the felony records were.
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Mr. MCCOLLUM. So we're going to now have to go back, and quite a bit of money is going to be spent in all of this. Where does your money come from in Virginia to do this? Is it State legislatively appropriated, I presume, or do we have some Federal money still coming in from some grants, or what? Where does it come from?
Mr. VASS. The majority of the money for the program to get us in a position to come forward with the National Check System came from Federal grants. A small percentage of it came from State-appropriated funds.
Mr. MCCOLLUM. So when you go back and have to do more misdemeanor work, you're going to need more Federal grants; is that correct?
Mr. VASS. That is correct.
Mr. MCCOLLUM. You don't have any money to do it within Virginia, and I assume that's going to be true of Missouri and Florida and Texas, and so on.
Do you want to comment on that?
Mr. COOPER. I'm Gary Cooper, the executive director for SEARCH.
Just to expand on that a little bit, it's not only Florida and Virginia; that's the situation the other States are, too. Where Lou talked about maybe the State came up with a small amount of money to join with that grant money administered by the BJS, I would say that in most States, a good number of States at any rate, that the States have put in considerable money that the seed money from BJS has stimulated to invest in these criminal history systems, and the concentration has been on felonies and the concentration has been on the last 5 years of active felony criminal history records. And so the introduction with the misdemeanors, yes, there will bemore Federal money could have a great impact on the ability of the States to comply with that.
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Mr. MCCOLLUM. Thank you very much.
Mr. Gagliardi, I want to ask you a couple of questions about the current situation with regard to law enforcement. Were you personally required to certify whether you'd ever been convicted of a misdemeanor crime of domestic violence?
Mr. GAGLIARDI. Yes, Mr. Chairman.
Mr. MCCOLLUM. And have all Federal agents who carry firearms been required to certify that they are disabled under this new law?
Mr. GAGLIARDI. I can only answer that that all Treasury agents have been required. Beyond that, maybe one of my colleagues here could best answer that.
Mr. MCCOLLUM. Well, how about the FBI, Mr. Loesch?
Mr. LOESCH. The FBI, we have surveyed 80010,870, and we had no response, no records.
Mr. MCCOLLUM. No misdemeanor records?
Mr. LOESCH. No misdemeanor record for domestic violence of a polling ofand they certified 10,870 individuals within the FBI that would have been covered under this statute.
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Mr. MCCOLLUM. Did you have any hits, as they say in the ATF, domestic violence, when that certification went through?
Mr. GAGLIARDI. Mr. Chairman, we've had no hits as far as law enforcement officers are concerned. We have had one hit on a support employee who may possibly be disabled, and the process as it stands now is they are attempting to determine all the elements that we've heard todayabout jury trial, waivers, and the various elements that go along with it. So we're uncertain whether this person is actually disabled or not.
Mr. MCCOLLUM. Am I correct that a person who is disabled from possessing a firearm because of the domestic violence misdemeanor, there's no relief for that disability if you're actually disabled?
Mr. GAGLIARDI. Right now we're under appropriations restrictions to perform any relief from disability investigations.
Mr. MCCOLLUM. But if you weren't, you could? You're under an appropriations restraint in the law?
Mr. GAGLIARDI. That's correct.
Mr. MCCOLLUM. And do you know why? Was any rationale given to you?
Page 166 PREV PAGE TOP OF DOC Mr. GAGLIARDI. The Congress has chosen, Mr. Chairman, to take that position, and we abide by it, sir.
Mr. MCCOLLUM. Would you like to have the restriction removed?
Mr. GAGLIARDI. Mr. Chairman, I can only respond in this fashion: that we are here to serve the wishes of the Congress and the people of the United States
Mr. MCCOLLUM. Okay.
Mr. GAGLIARDI [continuing]. And we will do so as diligently as we can.
Mr. MCCOLLUM. Well, while I'm at this sort of thing, do you or Mr. Loesch, in particular, have any recommendations with respect to the change, or lack thereof, in the law that we need to be making right now, specifically with regard either to this misdemeanor question of Lautenberg or with regard to the underlying Brady Law? Are there any recommendations you have that you would like for us to do to change the law to make this work better? Do you want to answer first?
Mr. GAGLIARDI. Sure. Mr. Chairman, at this point we would be glad, if you instructed us, to look into that and provide them through the Department of Treasury and Justice. At this time, I have no personal recommendations.
Page 167 PREV PAGE TOP OF DOC Mr. MCCOLLUM. I'd be very glad for you to look at it for us. We'd like to know if you think there ought to be any changes in it. It would make it work better for us and for you, and, obviously, your comments on Lautenberg would be pertinent, period, because we're looking at that today.
Mr. LOESCH. Mr. Chairman, I havethe FBI has none to offer at this time.
Mr. MCCOLLUM. All right. When it comes, Mr. Gagliardi, to the ATF's recent letters that went out here in terms of what went on, there were a number of questions that were raised as I recall, and I was just looking to see where I had some notes that I had taken on that question.
One of those questions had to do with a form that's involved. My understanding is the law requires that a person, before the purchase of a gun, must be lawfully residing in the United States for at least 90 days, and my understanding is there is no residency certification on the forms that you send out. I'm curious as to why that is, and if maybe now, in light of this tragic Empire State Building situation a week or so ago, we ought to have some certification. Am I correct there is none right now on that issue? There's no residency certification on the forms you send out?
Mr. GAGLIARDI. Correct. The form only asks right now if the person is illegally in the United States. My understanding is that just this morning, as we are sitting here at the hearing, there is an announcement being made to suggest exactly that, to incorporate a warning or a question as to the length of time in order to establish residency.
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Mr. MCCOLLUM. Okay. Has the ATF been getting many questions from chief law enforcement officers regarding potential liability under the new law?
Mr. GAGLIARDI. As far as the potential liability, I'm not certain, but as far as questions in general, yes, we have been receiving many questions, up at one point averaging 800 calls per week to our various offices across the United States.
Mr. MCCOLLUM. Wow. You're probably going to be getting more from them now, too, I would guess.
Why didn't you mentioned in the open letter the requirement that a person must have had counsel or knowingly and intelligently waived the right to counsel?
Mr. GAGLIARDI. Which particular open letter, Mr. Chairman. There were three.
Mr. MCCOLLUM. Well, to my understanding, it was the one that was directed to be sent to all State and local law enforcement officers in February, if I'm not mistaken. Am I correct, counsel? There was a State and local law enforcement letter that originally went out. I'll take a look here and see which one we're talking about. One dated November 26, 1996I'm sorry, now I have the right one here. But there was no mention in that letter about knowingly or intelligently waiving the right to counsel. Has there been some subsequent one that has corrected that?
Page 169 PREV PAGE TOP OF DOC Mr. GAGLIARDI. Mr. Chairman, I am reading on page 2, the first paragraph.
Mr. MCCOLLUM. Right.
Mr. GAGLIARDI. It talks to, ''However, with respect to all persons a conviction would not be disabling if it been expunged, set aside, pardoned, or the person has had his or her civil rights restored.''
Mr. MCCOLLUM. Right, but that doesn't say anything
Mr. GAGLIARDI. I don't see the
Mr. MCCOLLUM [continuing]. About the counsel question. That's the issue I was raising. It's a rather complicated law, and that's one of the reasons I asked you this question about suggestions on how we might modify or change the law. I'm curious to know whether, with this misdemeanor stuff, can we really have a check about counsel, and so on? How practical is this? You go back in misdemeanor records; is there going to be any record of that to even check? Obviously, that's a problem, I would think. Therefore, I raised that question with you, my point being that your letter even doesn't mention it. Perhaps that's why it doesn't mention it.
Mr. GAGLIARDI. I spent 20-plus years as a special agent performing the kinds of investigations into prohibited persons, and, yes, the sufficiency of records is certainly a key issue in being able to determine certain elements of the offense.
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Mr. MCCOLLUM. And it's unlikely that many of the records that are older would have any kind of indicia relative to something like this; isn't that correct?
Mr. GAGLIARDI. Generally, we find that the older the records are, the less sufficient that they are.
Mr. MCCOLLUM. So, basically, all we're trying to do now with your letters is to get people to get up to speed and maybe get them to make records now that exist that would contain this information in the future. There's no expectation they're really going to have the ability to retrieve that sort of stuff from the past, is there?
Mr. GAGLIARDI. I think my colleagues could speak better to that, but I think that the first part of your statement would be correct, that at least these letters put everyone on notice that this is a critical issue that needs to be addressed.
Mr. MCCOLLUM. Okay. Mr. Wethington, would it make any difference if the retroactive effect of Lautenberg was limited to 5 years or to repeat offenders? Would it help you?
Mr. WETHINGTON. From the development of the systems that would have to be in place, it really makes relatively little difference in terms of how you build the system. Where the difference comes is in terms of the amount of research that has to go on. As the records become more dated, it requires more research. So the farther back you go, the more research it involves, which then requires additional resources.
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Mr. MCCOLLUM. But, again, we also have a problem, as I just said with Mr. Gagliardi, don't we, with the fact that in this misdemeanor area the further back you go in the records, the less likely you are to have the answers to these questions. I mean, we've got so many questions that would have to be answered before somebody's really disqualified. It's like Captain Vass said a while ago, I thinkmaybe I'm mistaken, but I have the impression that if you don't have the answers to these questions, how can you disqualify anybody? In other words, if you really don't know whether they had all these conditions precedent in existing, and there's no record to show that, then presumably when you get a misdemeanor hit, you look back at that record, and you actually go by hand and look at it; you aren't going to disqualify somebody if you can't determine whether
Mr. WETHINGTON. If you can't find the elements of the crime, consistent with Lautenberg, no, you would not disqualify that individual.
Mr. MCCOLLUM. Right. And so my question is not so much would it make any difference technically, but, as a practical matter, it would save a lot of money if we didn't go back beyond 5 years, and as a practical matter, the real question is: would it do us any good to go back 5 years, or are 90 percent of these records going to be so incomplete in regard to these specific misdemeanor disqualifying factors on domestic violence that we wouldn't disqualify anybody even if we did all that research?
Mr. WETHINGTON. Our position is that, regardless of whether the law is retroactive or prospective, it's going to take a lot of time and a lot of money and a lot of resources to do that.
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Mr. MCCOLLUM. No, I understand.
Mr. WETHINGTON. If it is prospective, it will require substantially less time and less resources to make those determinations.
Mr. MCCOLLUM. Sure, but if it's retroactive only back for, say, 5 years or for repeat offenders, that would also save some time and some money?
Mr. WETHINGTON. Any time you cut the window, it's going to save some time and some money.
Mr. MCCOLLUM. Okay, but then the last question, I still don't have an answer to this, and maybe you don't have it, either you or Mr. Loesch or anybody else, but I'm asking it sort of rhetorically because I'd love to have the answer submitted, if you can look at it and do a little bit of research on this one question. That is, What is the condition in most of the States of those misdemeanor records? Can there beif you go back 10 years, let's say, or 15 years or 20 years, are 90 percent of those records going to be such that you can determine whether somebody had counsel or had their rights given to them, or whatever? Or are they going to be in such a shape in 90 percent cases that you'd never know that by looking at them, when you actually sit there and look at all the paperwork that's available?
And it would help our subcommittee if we knew the answer to that. That's all I'm suggesting. I know that answer would be helpful. How difficult would it be for you to make an estimateand I realize that's all it isor perhaps do a survey that would show us that? Do you have any thoughts about it, either one of you?
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Mr. WETHINGTON. I think from SEARCH's perspective, we would be happy to poll our membership to make determinations as best we could. The thing we have to keep in mind is that there are also layers down to which we must go, so that if you poll the membership, you're dealing with a particular level, and if you get down into what may, in fact, be infractions, which in some States may not even constitute misdemeanors, then it becomes a question of how do those at the local level respond to that as well. We would be happy to
Mr. MCCOLLUM. Yes, how you frame the question is pretty important. Well, if it isn't too much expense and you can do thatI realize that it would not be terribly scientific because you're not going to be able to get the answers to that question specifically in every case without spending the same money you'd spend anyway to go back and resurrect all these records, but it's just the kind of a question that's pregnant out there, and we'd love to make itI want to make this law work. Let's put it that way. The Lautenberg amendment has merit, in my judgment. It may not be in its present form appropriate in every detail, but it has merit by far to the idea. But we want to be pragmatic and be sure that when somebody goes to check a record, that we're gettingwe're not wasting your time and we're not wasting money, either.
[The information referred to follows:]
INSERT OFFSET RING FOLIOS 223 TO 262 HERE
Mr. MCCOLLUM. I want to thank the panel for coming. It was very interesting, very good.
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And this hearing is then adjourned.
[Whereupon, at 12:35 p.m., the subcommittee adjourned.]
AMEND SECTION 658 OF THE FISCAL YEAR 1997 OMNIBUS APPROPRIATIONS ACT: GUN BAN FOR INDIVIDUALS CONVICTED OF A MISDEMEANOR CRIME OF DOMESTIC VIOLENCE
SUBCOMMITTEE ON CRIME
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
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H.R. 26 and H.R. 445
MARCH 5, 1997
Serial No. 113
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
Page 176 PREV PAGE TOP OF DOCSTEPHEN E. BUYER, Indiana
SONNY BONO, California
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTH, New Jersey
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THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Crime
BILL McCOLLUM, Florida, Chairman
STEVEN SCHIFF, New Mexico
STEPHEN E. BUYER, Indiana
STEVE CHABOT, Ohio
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
CHARLES E. SCHUMER, New York
SHEILA JACKSON LEE, Texas
MARTIN T. MEEHAN, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
PAUL J. MCNULTY, Chief Counsel
GLENN R. SCHMITT, Counsel
DANIEL J. BRYANT, Counsel
NICOLE R. NASON, Counsel
DAVID YASSKY, Minority Counsel
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C O N T E N T S
March 5, 1997
McCollum, Hon. Bill, a Representative in Congress from the State of Florida, and chairman, Subcommittee on Crime
Edwards, Donna F., Executive Director, National Network to End Domestic Violence
Gagliardi, Peter L., Deputy Associate Director of Criminal Enforcement Programs, Bureau of Alcohol, Tobacco, and Firearms
Hampton, Ronald E., Executive Director, National Black Police Association
Johnson, William J., General Counsel, National Association of Police Organizations
Loesch, David R., Deputy Assistant Director, Federal Bureau of Investigation
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Teodorski, Bernard H., National Vice President Grand Lodge, Fraternal Order of Police
Vass, Captain R. Lewis, Records Management Officer, Virginia Department of State Police
Wethington, Gerry, SEARCH, the National Consortium for Justice Information and Statistics
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Conyers, Jr., John, a Representative in Congress from the State of Michigan: Prepared statement
Edwards, Donna F., Executive Director, National Network to End Domestic Violence:
Gagliardi, Peter L., Deputy Associate Director of Criminal Enforcement Programs, Bureau of Alcohol, Tobacco, and Firearms: Prepared statement
Hampton, Ronald E., Executive Director, National Black Police Association: Prepared statement
Page 180 PREV PAGE TOP OF DOC Jackson Lee, Sheila, a Representative in Congress from the State of Texas: Prepared statement
Johnson, William J., General Counsel, National Association of Police Organizations: Prepared statement
Letter to Hon. Bob Barr from H.G. (Bill) Thompson, Director of Government Affairs, Southern States Police Benevolent Association, Inc.
Letter to Hon. Martin Meehan from Gerald J. Flynn, Jr., President IBPO Local #382
Loesch, David R., Deputy Assistant Director, Federal Bureau of Investigation: Prepared statement
Stupak, Bart, a Representative in Congress from the State of Michigan, submitted statements of Representative Helen Crenoweth the International Union of Police Associations, International Brotherhood of Police Officers, the National Troopers Coalition, the California Coalition of Law Enforcement Associations, Federal Investigators Associations, Security Companies Organized for Legislative Action, Association for Los Angeles Deputy Sheriffs, American Federation State, County, Municipal Employees, California Correctional Police Officers Association, the Riverside Sheriff's Association, American Federation of Government Employees, National Coalition Against Domestic Violence, S.T.O.P. Domestic Violence, Office of the District Attorney of Ventura County, California, and the National Rifle Association
Page 181 PREV PAGE TOP OF DOCTeodorski, Bernard H., National Vice President Grand Lodge, Fraternal Order of Police:
Vass, Captain R. Lewis, Records Management Officer, Virginia Department of State Police: Prepared statement
Wethington, Gerry, SEARCH, the National Consortium for Justice Information and Statistics:
(Footnote 1 return)
SEARCH is a state criminal justice support organization comprised of one governor's appointee from each state. Since 1969, SEARCH and its predecessor, Project SEARCH, have been dedicated to improving the use of information and identification technology for criminal justice. SEARCH is supported by state dues, state and federal contracts and grants, and special congressional appropriations support for SEARCH's highly acclaimed National Technical Assistance and Training Program.