Yesterday, the House Judiciary Committee passed HB 2346, a severely misguided proposal that expands West Virginia’s state law regarding when a person becomes prohibited from possessing firearms on the basis of a domestic violence protective order. The House Judiciary Committee passed this bill without prior notice to WVCDL.
WVCDL urgently needs your help to stop HB 2346.
Please click here to find your delegate(s) and call and e-mail him/her/them TODAY and tell him/her/them to oppose and vote against HB 2346. When you enter your ZIP code, you will see your senators and delegate(s). Right now, you do not need to contact your senators; please contact only your delegate(s) about HB 2346.
When you e-mail your delegate(s), please include your name, home address, and phone number, and the fact that you live in the delegate’s district. You should include the same information when you call. Please note that most delegates do not have separate staff; in many cases, your call will go to your delegate’s voice mail. Therefore, it is important that you both call and e-mail your delegate(s).
While you are welcome to use some of the points I raised above, please make sure to express your opposition to HB 2346 in your own words.
Also, if you have ever been subjected to a domestic violence protective order–especially if you have been subjected to an “emergency” order that was not extended at a family court hearing required by law within 10 days after the emergency order was issued–I need to hear from you immediately.
HB 2346 will be on first reading this morning.
Below is a message I have already sent to pro-gun delegates who have participated in WVCDL’s past legislative candidate surveys:
Yesterday, the House Judiciary Committee passed HB 2346, a severely misguided proposal that expands West Virginia’s state law regarding when a person becomes prohibited from possessing firearms on the basis of a domestic violence protective order. HB 2346 will be on first reading this morning.
Last year, WVCDL opposed and defeated in committee a similar bill, HB 4422. HB 2346 is the same bill and should be rejected for the same reasons.
WVCDL strongly opposes HB 2346 because it (1) allows a person to be deprived of his or her right to possess firearms on the basis of an emergency protective order issued without the opportunity for the person to participate in the hearing and present evidence and arguments in opposition to the order being issued and (2) would include in the statute many protective orders obtained by categories of petitioners not covered by current state or federal gun laws.
No Right to Be Heard
First, you should know that WV Code §61-7-7(a)(7) is functionally identical to federal law, 18 U.S.C. § 922(g)(8). Both federal law and the current state law are limited to protective orders “issued after a hearing of which [the respondent] received actual notice and at which such person had an opportunity to participate[.]” HB 2346 eliminates this critical safeguard that prevents innocent victims of false allegations from being deprived of their right to keep and bear arms.
WVCDL believes that automatically prohibiting a person from possessing firearms upon the basis of mere allegations of which the person had no notice and no opportunity to contest in court violates an individual’s constitutional right to due process of law. Both the current state law and its federal counterpart, while imperfect, do at least limit their application to cases where allegations of abuse have been substantiated in an adversarial hearing in court where the accused had at least some right to plead his or her case before losing his or her rights.
Without a hearing, a person has no opportunity to present his or her side of the case and refute potentially false and malicious charges. The current law is already abused enough by vindictive, manipulative individuals who abuse the system to threaten another person’s gun rights to gain leverage in divorces, child custody disputes, and lesser personal conflicts. In many cases, accusers either drop their request for a protective order or fail to prove abuse at the hearing required before a family court can issue a “final” 90-day or 180-day protective order. Another bill that is pending on the floor, HB 2347, would extend the maximum term of protective orders from 180 days to 1 year. WVCDL does not oppose HB 2347, nor many other domestic violence-related bills that actually attempt to provide more meaningful protection to victims of domestic violence in a way that do not violate the rights of an accused person.
As it relates to the issue of a hearing, HB 2346 affects individuals during the 10-day period between the issuance of an emergency order and the date by which a hearing is held on whether to issue a 90-day or 180-day protective order. WV Code § 48-27-403(d) requires a “final hearing” before a family court within 10 days of the issuance of an emergency domestic violence protective order. A “final order,” which is valid for either 90 days or 180 days, as designated by the family court, meets the requirement of current law that the order be “issued after a hearing of which [the respondent] received actual notice and at which such person had an opportunity to participate[.]”
If HB 2346 is enacted, WVCDL and I, as a private practicing attorney, will seek appropriate individuals as they become affected by this new prohibition and sue to challenge the constitutionality of the deprivation of their fundamental, individual right to keep and bear arms based upon an ex parte emergency protective order issued without the respondent’s prior knowledge and without any opportunity for the respondent to be heard before the order was issued. However, we hope it does not come to that point. We urge you to reject HB 2346 and protect an individual’s right to due process.
Significantly Expanded Categories of Protective Orders Covered
Current WV Code §61-7-7(a)(7) and 18 U.S.C. § 922(g)(8) are limited to protective orders protecting an intimate partner of the respondent or a child of the intimate partner or respondent. However, under WV Code §48-27-305, many other categories of person can obtain protective orders, including but not limited to any “family or household member” of the respondent or an alleged witness to an act of domestic violence, regardless of his or her relationship (or lack thereof) to the respondent. There are pending bills that would expand the categories of individuals eligible to obtain protective orders.
WV Code §48-27-204 defines “family or household member” as persons who:
(1) Are or were married to each other;
(2) Are or were living together as spouses;
(3) Are or were sexual or intimate partners;
(4) Are or were dating: Provided, That a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship;
(5) Are or were residing together in the same household;
(6) Have a child in common regardless of whether they have ever married or lived together;
(7) Have the following relationships to another person:
(C) Brother or sister;
(D) Half-brother or half-sister;
(E) Stepbrother or stepsister;
(F) Father-in-law or mother-in-law;
(G) Stepfather-in-law or stepmother-in-law;
(H) Child or stepchild;
(I) Daughter-in-law or son-in-law;
(J) Stepdaughter-in-law or stepson-in-law;
(L) Step grandparent;
(M) Aunt, aunt-in-law or step aunt;
(N) Uncle, uncle-in-law or step uncle;
(O) Niece or nephew;
(P) First or second cousin; or
(8) Have the relationships set forth in paragraphs (A) through (P), subdivision (7) of this section to a family or household member, as defined in subdivisions (1) through (6) of this section.
As you can see, this is a very long list of people who are covered under the domestic violence protective order statute. Do we really want someone to lose his right to possess a firearm over a fight with a second cousin over, say, a disputed inheritance? That’s an outcome that HB 2346 would permit.
No Evidence Current Law is Inadequate
At a public hearing held last year on HB 4422, proponents of the bill provided testimony in support of the bill that actually revealed that every single case they could site in support of the bill was already a case where the criminal was prohibited by law from possessing firearms. Many of these cases involved convicted felons, individuals with previous convictions for domestic violence for which they were already prohibited by federal and state law from possessing firearms, or cases where there was already a final protective order that is covered by the current law. All of these cases involved situations between “intimate partners,” where the vast majority of serious domestic violence-related crime occurs.
HB 2346 is a solution in search of a problem.
Last year, proponents of this bill claimed that WV Code §48-27-403(a) (“If the magistrate court determines to enter an emergency protective order, the order shall prohibit the respondent from possessing firearms.”) already prohibits the possession of firearms by a person under an emergency protective order. If so, why are they seeking this bill?
Proponents of this bill also claim WV Code §48-27-502(b) (“The protective order must inform the respondent that he or she is prohibited from possessing any firearm or ammunition, notwithstanding the fact that the respondent may have a valid license to possess a firearm, and that possession of a firearm or ammunition while subject to the court’s protective order is a criminal offense under federal law.”) similarly imposes a prohibition on possessing firearms as a condition of all protective orders. If so, why are they seeking this bill?
WVCDL believes WV Code §48-27-502(b) was designed to simply provide a notice of the provisions of WV Code §61-7-7(a)(7) and 18 U.S.C. § 922(g)(8) and not impose a standalone prohibition on possessing firearms. If the supporters of this bill really believe it imposes a standalone firearms prohibition, they are wasting their time seeking this bill.
While WVCDL strenuously objects to HB 2346, we do believe this bill (and its predecessor last year) have exposed a potential contradiction in the law that deserves to be resolved. However, HB 2346 does it in precisely the wrong way.
Delegate Eric Householder is preparing to introduce on WVCDL’s behalf our proposed West Virginia Gun Owner Protection Act of 2011 (a draft of the bill, which hopefully Bill drafting did not alter, is available on WVCDL’s web site). The bill drafting office finally returned the bill to him yesterday and he plans to introduce it within the next few days. If you have not already done so, I would encourage you to contact Delegate Householder and ask to be added as a cosponsor.
Among many other things, WVCDL’s proposed bill corrects the apparent conflict between Chapter 48 and §61-7-7 by amending the references to firearm prohibitions in Chapter 48 to conform to WV Code §61-7-7(a)(7) and 18 U.S.C. § 922(g)(8), which we believe should be left intact at the present time.
Already this session, the House of Delegates has voted unanimously to pass HB 2521 (which improves the process of serving domestic violence protective orders) and HB 2864 (creating the crime of unlawful restraint); WVCDL has no objections to either of these bills. However, HB 2346 misses the mark and should be rejected.
In closing, WVCDL strongly opposes HB 2346 because it would deprive individuals of their right to keep and bear arms without a hearing and without a right to be heard in opposition to a proposed protective order and greatly expand the classes of individuals who would be able to obtain a protective order that would prohibit the respondent from possessing firearms. Unfortunately, there is simply no way to amend HB 2346 to fix its problems. HB 2346 must be rejected.
From The WVCDL Newsletter: