The Lautenberg Act and Domestic Violence

Robert D. Cubby
March 12, 2014

We think that when we pen legislation that we are addressing problems or solving problems. We hope that our actions bring about needed change and reform, righting the wrongs of society and balancing inequities among the people we represent.

Such was the intent of the so called Lautenberg Act. Sen Lautenberg hoped to close a loop hole in domestic violence cases where the defendant could plea bargain his case down from a felony to a misdemeanor. In doing so, under the old law as written, the weapons he had taken away from the defendant could be returned to him/her after the plea bargain. The concern was that, in doing so, it would re-arm a violent perpetrator who could now wound or kill his spouse and loved ones. Of course, we didn’t want a violent person to be armed with a weapon to wreak havoc on the population, but by dropping the threshold to misdemeanor, a loud argument or a torn pocket, could result in the so-called perpetrator losing his/her weapons. Couple that with all weapons being seized that could reasonably present a threat to members of the household and you have a net that snared more than they had intended.

Before Lautenberg, it was only someone who rose to the level of a felony criminal who would be effected by the law. After Lautenberg, the average spousal argument could result in the loss of any weapon. For some citizens this seemed reasonable as they used them for recreation purposes and could afford to wait until the case was adjudicated to get their weapons back.

But what if the “perpetrator” was law enforcement or military? They would not be allowed to possess a firearm if convicted of misdemeanor domestic violence. A soldier cannot be a soldier, and law enforcement cannot be law enforcement without their firearm. Too bad the law says. No exceptions! The stress level is already high enough because of the domestic strife and the toll it is taking on the family. Now it will impact the job of this person. Who will pay the bills? Who will satisfy the loan obligations on the house or the car? Where is the now terminated officer to find work? Where will the military person find work? They have lost everything because of a complaint signed by their spouse or co habitant. They can either plea with the complainant to re consider, or they can stop the complainant from appearing in court, by any means necessary.

Thankfully the complainant reconsiders and withdraws the complaint most of the time. But in many cases they don’t. They have reached irreconcilable differences and nothing can dissuade the complainant. They are determined to end the fighting and abuse and punish the perpetrator under the Lautenberg Act.

Where does this leave the perpetrator? Desperation sets in. He is being called into his command after he had a fight with his wife. He sees an array of supervisors all looking in his direction. He approaches the front desk and asks what he was being called into the command for. Under the Lautenberg Act his weapon must be seized and he placed under arrest upon complaint of his wife. All at once he sees his life and future all fading before his eyes. He knows one thing, that his wife is costing him his future and his job. So instead of surrendering his weapon he flees the district building and spots his wife exiting a patrol car accompanied by two officers. Overcome with rage and fear he races toward her, draws his weapon and kills her with one shot. Overcome with what he did and knowing he has nothing, he turns the weapon on himself and kills himself.

This was not fiction. This happened as a result of misguided policies and over reaching laws. Thankfully policies had changed somewhat. Instead of suspension because of the domestic violence, officers were afforded continued employment on modified duty until the case was adjudicated. If the restraining order was vacated, then the officer could have his weapon returned. If the restraining order became final, the officer is terminated. There is never any guarantee on either disposition and the possibility is always there of termination. In fact the very process of being charged with domestic violence could be the spark that set the tinder box in flames.

In “Do race and gender matter in police stress? A preliminary assessment of the interactive effects” in the Journal of Criminal Justice the discussion of sources of police stress were discussed and the coping skills various officers displayed. There can be little argument that stress damages health and that stress can lead to poor family and work performance. The study showed that the highest predictors of stress were destructive coping and family work conflict (spillover). Destructive coping would involve excessive drinking, excessive eating, illegal or prescription drug abuse for example. Family work conflict would be where the problems of the familial unit effect the job performance of the worker. All groups surveyed indicated that they were equally effected by spillover. However, male officers had the poorest constructive coping while female officers had the highest constructive coping. So we have the possibility of a male police officer who is stressed already about his family strife effecting his job, now coping destructively because he lacks the skills to constructively cope with the domestic situation.

Throw into the situation that he will lose his weapon as soon as his wife makes a claim and that the weapon, in the State of NJ will not be returned for 45 days and you have a recipe for disaster the likes of which we already saw in the previously discussed scenario. We have a male officer ill equipped to deal with a law that is out of his hands and must be adhered to. We can try to amend the law . But arguments are being made, for example, that gun control laws are a feminist issue. In Generation Progress in the article “ gun control laws are a feminist issue” they cited the need to strip weapons from the hands of every male accused of domestic violence and that feminist groups should be present at every legislative hearing to make their voices heard. With this kind of pressure, there’s little likelihood that the law will be amended by the legislators. It will be up to the courts to decide the issue.

To make matters worse many spouses file false accusations against their spouses which are impossible for police to disprove. False swearing is a criminal offense hard to prove under domestic violence procedures. More times than not, when the spouse/accuser finds that she is being scrutinized and the veracity of her accusations questioned, she will withdraw the complaint. Unfortunately that’s where it ends. And with complaint withdrawal being for a variety of reasons, the courts are just as happy to end the proceedings with no questions asked. After all, they are overwhelmed with these cases as it is and one less lightens their caseload. She gets to punish her spouse, put him through the wringer, and walk away with no penalty incurred. If they end up in court repeatedly, he’s the one labeled a chronic abuser instead of her being labelled a chronic accuser.

We can’t change the situation or climate surrounding domestic violence accusations. We can change the officer through training. In the International Associations of Chiefs of Police in the paper entitled “Discussion Paper IACP’s Police On Domestic Violence by Police Officer” the association recommended as one of the steps of addressing police domestic violence, that training and confidential counseling services and /or referrals should be utilized. As studies have shown, male officers, for example, have shown poor constructive coping skills ( Journal of Criminal Justice). These are skills that can be strengthened, upon being discovered by supervisors trained to detect these problems, through training and counseling. Of course we shouldn’t assume a male officer or any other officer has poor coping skills until observed and documented by a supervisor. The IACP hoped that through this training and prevention, an officer’s career could be salvaged before it became necessary to arrest him/her and to prevent the tragedies we have discussed. Doling out punishment to teach officers adherence to the law may be needed in some cases, but reliance on that as the only means to make change is short sighted. Consideration of the IACP Policy should be given equal consideration and should balance out the punishment of the Lautenberg Act.