The NY Times has a comprehensive article on the confluence of the laws on domestic violence, restraining orders and gun restrictions. It is a worthy read.
In Colorado, there is a proposed bill that would prohibit a defendant from possessing or controlling a firearm when they are charged with a crime where the underlying factual basis contemplates domestic violence. “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. C.R.S. 18-6-800.3(1). DV also includes “any other crime against a person or against property, or any municipal ordinance violation against a person or against property when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.” Id. What’s this term “intimate relationship” mean? By legal definition it is “a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.” Id. DV is not an independent criminal offense; rather it is a sentence-enhancer. A defendant is most often charged with harassment, assault, trespass or criminal mischief with DV. As part of the sentence, a DV offender will be required to do numerous anger-management classes among other things.
The proposed bill would also apply to those subject to a civil protection order, even when there is no criminal charge. The new bill would require a defendant to either sell or transfer all firearms in their possession while the restraining order is in effect. These restrictions could last as long as several years if a DV offender is sentenced to probation as part of a plea or conviction. For a permanent civil restraining order, it would mean that a person would be unable to possess a gun indefinitely. This would have wide-ranging implications in Colorado because of the likelihood of enforcement by local law enforcement officers.
There has always been a question on the legality of possessing a gun during the pendency of a case where a restraining order is involved. In Colorado, a restraining order is automatically entered against a defendant in a criminal case where DV is involved. Alternatively, people can apply for a civil restraining order from the Court in accordance with C.R.S. 13-14-102. My advice has always been for a defendant charged with DV to have a friend or family member take possession of a firearm because of the Brady Handgun Violence Protection Act. While prosecutions for a violation of the Brady Act are rare, I’d rather not have one of my clients staring down the barrel of a separate case brought by the US Attorney’s office that could easily be prevented. The proposed Colorado bill would go one step further and require documentation of that transfer or sale.
Stay tuned while the politics play out.
UPDATE: This bill was signed by Gov. Hickenlooper yesterday, March 20.