Bill To Remove Firearms From Domestic Violence Incidents Advances To Vt. House

Mar 16, 2017

The House Judiciary Committee has advanced legislation that would allow Vermont police to temporarily seize firearms from the scene of an alleged domestic assault.

It’s the lone piece of gun-control legislation in Montpelier with any traction this session. And it’s drawn opposition from Second Amendment advocates who worry about constitutional infringements on the right to bear arms.

A 2016 report by the Domestic Violence Fatality Review Commission found that, of the 131 domestic violence homicides committed in Vermont since 1994, nearly 60 percent were perpetrated with a firearm. It’s a statistic that’s prompted lawmakers to look for new ways to remove firearms from volatile conflicts in the home.

“We must remember that the statistics are real. When a gun is present in a domestic violence situation, it increases the risk of homicide for women by 500 percent,” says Auburn Watersong, associate policy director at the Vermont Network Against Domestic and Sexual Violence, citing a 2003 study.

The network is leading the charge for legislation, called H.422, that would allow police to remove firearms from the scene of domestic violence incident without a court order, even if the gun is legal and wasn’t used in the alleged crime.

“H.422 provides added protection for victims of domestic assault, and allows them more time to plan for their safety without having to fear for their lives,” Watersong says.

"We sincerely wish there was some way to stop [domestic violence]. But this bill is not the answer, and we cannot support it." — Chris Bradley, gun rights advocate

Existing law allows police to confiscate guns if they’re used, or threatened to be used, in the alleged domestic assault, or if they’re considered evidence of a crime. Otherwise, it takes a court order to seize the property.

The legislation would give law-enforcement the discretion to remove that firearm without a court order, for a period of five days, if they think it poses a danger to the victim of an alleged domestic assault.

Chris Bradley, president of the Vermont Federation of Sportsmen’s Clubs, says his organization “condemns domestic violence in all its various forms.”

“We sincerely wish there was some way to stop this,” Bradley says. “But this bill is not the answer, and we cannot support it.”

Chris Bradley, president of the Vermont Federation of Sportmen's Clubs, says the bill would infringe on residents' constitutional right against undue search or seizure.
Credit Peter Hirschfeld / VPR

The Fourth Amendment of the U.S. constitution protects citizens against unreasonable searches and seizures. The Fifth Amendment protects against deprivation of property without due process of law.

“Not only is the arresting officer given the ability to abridge the alleged perpetrator’s Fourth, Fifth and Fourteenth Amendment rights, the officer is also required to violate the alleged victims Second Amendment, Article 16th, right to self-defense,” Bradley says.

Thomas Anderson, commissioner of the Department of Public Safety in the administration of Republican Gov. Phil Scott, says the goals of the bill are “laudatory.”

“But I think there may be some constitutional concerns with the bill, particularly with respect to the five-day holding period,” Anderson says.

John Treadwell, chief of the criminal division at the Office of the Attorney General, takes a different view.

“We believe that this is constitutionally permissible under the Vermont Constitution,” Treadwell told lawmakers this week.

Treadwell says it’s true that seizure of property generally requires a warrant, or a finding of probable cause. But he says courts have long granted something called a “special-needs exception” to those legal restraints. He says those exceptions occur when there’s a significant public interest for doing so, and when circumstances make the warrant and probable-cause requirement impractical.

"We believe that this is constitutionally permissible under the Vermont Constitution." — Assistant Attorney General John Treadwell

Under the proposed bill, temporary seizure of firearms could only occur when someone is cited or arrested for domestic assault. If a law-enforcement officer arrived at the scene of an alleged assault and did not find probable cause for an arrest, requirements for the temporary seizure provision would not be satisfied.

“There is clear evidence to suggest that time of particularly great danger to victims of domestic violence is the period immediately after law enforcement becomes involved,” Treadwell says.

Bradley says the public safety threat the legislation presumes to solve isn’t nearly as severe as advocates suggest. In 2015, there were six domestic violence homicides committed with a gun. Only one involved a man shooting a woman.

“For the past three years … FBI uniform crime statistics show that Vermont is the safest state in nation by having the lowest rate of violent crime per 100,000 people in the United States,” Bradley says.

Ed Cutler, president of Gun Owners of Vermont, says Vermont already has plenty of existing legal mechanisms at its disposal to mitigate the threats posed by abusers.

“Somehow or another, we have to take these, for lack of a better word, animals, and put them away,” cutler says. “We’re not doing that.”

Newbury Rep. Chip Conquest, the Democratic vice-chairman of the House Judiciary Committee, says that if the legislation saves even one life, the bill is worth it.

Conquest says he considers himself a staunch defender of the Second Amendment.

“I believe it gives all Americans an individual right to possess guns for whatever purpose they want to use them for,” Conquest says.

But he says the legislation does not abridge that right.

“It’s intent is not to produce any more gun control,” Conquest says. “It’s to protect victims of domestic assault in that very brief period after there’s been intervention by law enforcement, which we know is a particularly dangerous time.”

The majority of the Judiciary Committee agrees. The bill passed out of that committee by a 7-4 vote on Thursday morning, and supporters hope to have it on the House floor soon.

This post was edited at 9:25 a.m. on 3/17/2017