District attorney not preparing to take guns away, says domestic abusers must comply with new law themselves
Douglas County District Attorney Charles Branson says he has no plans to start sifting through old domestic violence convictions in order to file new charges against anyone who is now illegally possessing a firearm.
Instead, he says, those people are themselves responsible for complying with a new state law that prohibits them from possessing a gun. And if they fail to do so, they could face new felony charges.
“They’re going to be under an obligation to depossess themselves of them,” Branson said in an interview. “They’re going to have to get rid of them somehow.”
The new law, however, does not specify how people who are subject to the new law are supposed to get rid of their guns.
“There is no prescription in the law for how they get rid of them, other than that they cannot possess them anymore,” he said.
The new requirement is the result of a law passed by the Kansas Legislature and signed by Gov. Jeff Colyer on April 20. It officially went into effect May 3, when it was published in the Kansas Register, the state’s own legal publication that carries public notices of new laws, regulations and other state actions.
“So as of May 3, if you’ve been convicted of domestic violence, as defined by the statute, and you possess a firearm, you are committing a crime in the state of Kansas,” Branson said.
Violation of the law is classified as a low-level, nonperson felony, which means it would most likely result in a sentence of probation, depending on the person’s previous criminal history. But because it would be a felony conviction, it could result in stiffer sentences for any subsequent crimes that person may commit.
Michelle McCormick, program director of the YWCA Center for Safety and Empowerment, a Topeka organization that works with victims of domestic violence, said she was not surprised that there won’t be immediate efforts to remove guns from people who already fall under the new law.
“Of course what that means is that my staff has to be really diligent in safety planning with those we are working with because there will be people then who don’t get their firearms removed,” she said in a phone interview. “We’ll have to be as diligent with our safety planning and the information we provide to victims about their risk factors and their lethality factors as we would before the law existed.”
“When there is a gun in a domestic violence situation, it increases the risk of homicide 500 percent,” she said, citing numerous studies on domestic violence.
Under the law, domestic violence is not limited to violence between spouses. It is defined as “the use or attempted use of physical force, or the threatened use of a deadly weapon,” against any family member or household member, which could include roommates, as well as any person with whom the offender has been involved in a dating relationship.
Branson also said his office filed roughly 250 charges for domestic violence-related cases each year. That number includes cases in which one person may face multiple charges.
“The studies indicate very clearly that domestic abusers often use violence, and they will often use whatever instrument is available to them, and the deadly results of gun violence are obvious,” he said.
The language of the new law was contained in House Bill 2145, the only major piece of gun legislation that passed during the 2018 session.
It changes the definition of “criminal use of a weapon” by adding four new categories of people who are now prohibited under state law from possessing a firearm.
Those include people convicted in the previous five years of a misdemeanor domestic violence offense; people subject to a protection from stalking or abuse order, as long as they had an opportunity to appear at a hearing before that order was issued; fugitives from justice; and any foreign national who is not legally present in the United States.
It has long been illegal under federal law for those people to possess firearms, but Kansas law enforcement agencies pushed for the new state law, arguing that it would make it easier to enforce that prohibition at the local level because federal prosecutors rarely prosecute those crimes unless they are tied to other, larger cases, such as major drug busts.
“And I think that’s fairly accurate. We do not see many of our cases picked up for federal prosecution when it’s an issue of a gun being possessed by someone who’s been convicted of misdemeanor domestic battery,” Branson said.
Branson said his office is still working on policies and procedures he intends to use to enforce the law going forward. But he said there are no plans to look back into old cases to find people who may be violating the new law.
“It’ll probably be a prospective process,” he said. “If we become aware that somebody is in possession of a firearm that’s been convicted in the last five years, then law enforcement would be able to take a report of that and forward it to our office for review for consideration of charging,” he said.
Local prosecutors in Kansas will primarily be concerned about enforcing the law in domestic violence cases, Branson said. The protection from stalking and abuse orders, he said, are civil matters that result from victims and their attorneys filing petitions with a court.
He also noted that victims in either criminal or civil cases may now notify law enforcement if they believe the person who abused them is now possessing a gun illegally.
“Investigation has to be done by a law enforcement agency,” he said. “If they believe a crime is occurring, they should call their nearest law enforcement agency and make a report of that crime.”
McCormick, however, said that in many cases, that’s not likely to happen because making such a report could expose victims to even more risk.
“When they contact law enforcement or reach out and make a new report, of course that information then becomes, through one way or another, accessible to their abuser,” she said.
“When and if they try to engage the system to help them get out of that abusive situation, there is this inherent risk because we can’t protect them 24 hours a day,” she said. “If you call and make a police report, the police don’t come stand guard by you 24 hours a day.”