Guns and domestic violence

Jan. 01--In December 2015, a Chautauqua County man went to the Orchard Park home of his girlfriend, stole some of her property, destroyed other property and started a small fire in her garage.

The following January, David Lewczyk, 53, turned himself in and was charged felony criminal mischief and misdemeanor arson and petit larceny. A judge also issued a "refrain from" order, requiring that Lewczyk be cordial in any future contact with the victim, Ruby Stiglmeier, 51.

The order did not force Lewczyk to temporarily surrender his legally-registered pistol, and on March 29, he used it to shoot Stiglmeier to death in her Queens Place home, before turning the gun on himself.

Stiglmeier was one of 25 New Yorkers killed last year by a domestic partner using a firearm.

They're tragedies that Gov. Andrew Cuomo believes can be prevented with stronger state laws aimed at keeping firearms away from those convicted of or charged with domestic violence crimes.

And in his first proposal for 2018, Cuomo introduced sweeping legislation aimed at just that. His proposal calls for extending the state-level firearm ban to domestic violence misdemeanors, including long guns in the ban and requiring judges to order the removal of firearms when issuing orders of protection, including "refrain from" orders.

Cuomo framed the proposal as a crucial tool to protect women, who are overwhelmingly the victims of domestic violence, and to prevent mass shootings. In nine of the past 10 deadliest mass shootings, including the recent massacres in Las Vegas and Sutherland Springs, Texas, the shooter had a prior history of domestic violence.

"Building on the Women's Equality Agenda, we are continuing our mission for progressive values and women's rights with this legislation to target the unquestionable relationship between domestic violence and gun violence," Cuomo said in a statement.

Federal law

However, as some wary Second Amendment rights activists point out, federal law already bars convicted domestic abusers bars owning or buying guns.

The Domestic Violence Offender Gun Ban, passed in 1996 with broad bi-partisan support (97-2), makes it a crime to own a firearm if one has been convicted of a domestic violence misdemeanor or is under a restraining order for domestic abuse. The Gun Control Act of 1968 had previously banned convicted felons from owning or buying firearms.

"It's very, very redundant to what's already in place federally," Don Hey, chairman of the Shooters Committee on Political Education, said of Cuomo's proposal.

But domestic violence victim and gun control advocates say the federal law, often called the Lautenberg Amendment, is not consistently enforced and contains loopholes that can prove deadly.

For one, the law only applies to couples that are or were married, co-habitat and/or have a child in common, allowing what many call the "boyfriend loophole."

As marriage rates continue to trend downward, these type of relationships may be growing more prevalent, putting more domestic violence victims at risk.

"That boyfriend can certainly be someone who could be a domestic violence perpetrator, and they wouldn't fall under the current federal law," said Mary-Brennan Taylor, vice president of programs for the YWCA of the Niagara Frontier, which offers services for domestic violence victims. "I'm hoping it ... addresses some loopholes -- loopholes that can be deadly."

State proposal

According to a Cuomo spokesperson, the proposal would cover more misdemeanor charges, such as stalking, and more domestic situations, including the boyfriend loophole, than are currently covered under the Lautenberg Amendment. It would also empower state law enforcement, as opposed to the gun ban being a lower-level federal priority.

"This will hopefully clarify for all levels of law enforcement and courts how gun removal is to be handled in these types of situations," Taylor said. "There shouldn't be any ambiguity about the removal of firearms, and I think that's where federal law has been a bit weak."

Meanwhile, under current state and federal law, judges have discretion on whether to order removal of firearms when issuing an order of protection in a domestic violence case.

Cuomo's proposal would require judges to order removal of firearms whenever an order of protection is issued, which typically occurs after an individual is arrested but before conviction. Firearms are returned upon expiration of a temporary order of protection, assuming the individual is not first convicted of a domestic violence or other felony charge.

As Stiglmeier's case shows, this discretion can allow dangerous individuals to retain their guns.

"Some judges may see a perpetrator and see them as a serious threat and another judge may not. I'm hoping this legislation would remove that discretion," Taylor said.

But pro-gun rights activists say this discretion is crucial to ensuring non-abusers do not face a violation of their Constitutional rights.

Hey used an example of a person charged with harassment for repeatedly and disruptively contacting an elected official's office. Others worry about domestic violence charges brought against someone who was acting in self-defense.

"We do have judges for a reason, because every case is different," Hey said.

The proposal also would extend firearm removals to include long guns, such as rifle and shotguns. State law currently requires removal of handguns when orders of protection are issued or when an individual is convicted of a felony or other serious offense, but excludes long guns.

However, unlike handguns and assault weapons, which have licensure and registration requirements, there is no state or federal system that tracks long guns.

Federal efforts

Domestic violence victim advocates say more needs to be done at the federal level to keep weapons out of the hands of convicted abusers.

After the Sutherland Springs shooting, a bi-partisan group of senators introduced legislation to ensure federal and state agencies report relevant criminal histories to the National Instant Criminal Background Check System. The bill also would penalize agencies that fail to do so.

Shooter Devin Patrick Kelly should not have been able to legally purchase the AR-15-style rifle he used in the church massacre after a 2012 court-martial for assaulting his then-wife and stepson.

Meanwhile, a bi-partisan group of Congress members are pushing legislation to bolster state and local authorities' ability to prosecute convicted felons and domestic abusers who attempt to buy guns by lying on background check forms.

Currently, when a NICS denial occurs, the information is sent to the Bureau of Alcohol, Tobacco, and Firearms; however, the federal government rarely prosecutes these cases.

The House bill, NICS Denial Notification Act, would require that state and local authorities be notified whenever a NICS denial occurs.

Second Amendment lobby

Gun-control legislation aimed at domestic abusers often draws mixed reactions from pro-gun advocates, many of whom have adopted an increasingly absolutist position against any restriction of 2nd Amendment rights.

A New York State Rifle & Pistol Association spokesperson declined to comment on Cuomo's proposal until legislation is introduced. However, like Hey, he called the proposal redundant because of the Lautenberg Amendment.

Hey said he's wary of any gun control legislation proposed by Cuomo, who angered many gun-owners when he passed the Secure Ammunition and Firearms Enforcement Act in 2013.

"What Gov. Cuomo has shown in the past is a propensity that goes beyond the norm and try to remove guns from people that aren't a threat to society," Hey said.

Assembly member Michael Norris said he was "anxiously waiting" hearing the details of Cuomo's proposal.

"Any time we can have a dialogue about protecting New Yorkers from such senseless violence like domestic abuse, I am happy to take the first seat at the table," Norris said.

Norris added such efforts should include passage of Brittany's Law, which would create a public registry of felons convicted of domestic violence-related crimes.

New York State Sen. Robert Ortt, R-North Tonawanda, when asked about the proposal, simply replied in an emailed statement: "I remain a steadfast supporter of the Second Amendment."

When asked if he would oppose a bill similar to Cuomo's proposal, Ortt's office did not reply.

Taylor said she didn't believe Cuomo's proposals would affect law-abiding gun-owners.

"What this legislation addresses are these bad actors who are dangerous individuals and pose a threat to their intimate partners and children," Taylor said. "I don't believe that this is in any way a violation of Second Amendment rights. I think what it is is a protection for innocent individuals who face certain lethality from domestic violence perpetrators."

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