Texas Domestic Violence Charges: the New 2022 Federal Gun Ban

The tragic shooting at Robb Elementary School in Uvalde, Texas, on May 24, 2022, claimed the lives of nineteen children and two adults.  For details, read the coverage series provided online by the Texas Tribune.

Understandably this had a tremendous and shattering impact not only for the local community who suffered personal losses, but for the entire State of Texas and the country as a whole.  Numerous personal injury and wrongful death lawsuits have been and may continue to be filed on behalf of those seeking justice in the wake of this heartbreak. For more, read our discussion in Barratry In Texas: “Ambulance Chasing” Attorneys And Illegal Solicitation Of Clients.

Uvalde Aftermath:  Landmark Federal Gun Control Laws

One of the core issues in the tragedy’s aftermath was the realization that an 18-year-old active shooter named Salvador Ramos had been able to obtain rifles along with ammunition in order to carry out his horrific plot that day.  Read, “Gunman bought two rifles, hundreds of rounds in days before massacre,” written by Robert Klemko, Silvia Foster-Frau, and Shawn Boburg and published by the Washington Post on May 25, 2022.

Gun control debates are far from new.  However, in response to the Uvalde school shooting historic new federal gun legislation was swiftly passed by Congress and enacted into law with the signature of President Joe Biden on June 25, 2022.  Read, “Biden Signs Gun Bill Into Law, Ending Years of Stalemate,” written by Emily Cochrane and Zolan Kanno-Youngs and published by the New York Times on June 25, 2022.

The 2022 Bipartisan Safer Communities Act and Texas Gun Ownership

Passed exactly one month after the Uvalde tragedy, the Bipartisan Safer Communities Act (“Act”) does several things, all limiting the freedom of people in the United States to own, possess, or use guns pursuant to federal law.  Among its provisions, the Act:

• boosts the requirements for young people (those under the age of 21) to buy guns;
• provides financial assistance to local law enforcement to take weapons from those deemed to be dangerous; and
• denies the right to own or purchase firearms for an expanded category or definition of “domestic abusers.”

Specifically, the Act expands all background checks mandated by federal law for the purchase of a firearm to include a review of local juvenile records for those applicants who are 20 years old or younger.

The Act also provides federal funding to the states in support of red flag laws.  A “red flag law,” also known as an “extreme risk protective order,” are statutes that allow law enforcement as well as family members to seek a court order allowing firearms to be taken (confiscated) from an individual if the court finds a justifiable basis to believe the person is an imminent danger to themselves or to others.

Currently, Texas does not have a state red flag law.  However, there have been recent attempts to have one, including Governor Greg Abbott’s unsuccessful push for red flag legislation in 2019.  Read, “Texas is unlikely to adopt key provision of bipartisan federal gun bill,” written by Patrick Svitek of the Texas Tribune and published by Houston Public Media on June 23, 2022.

This new funding will help law enforcement to take guns for a limited amount of time from anyone they consider to be dangerous or to have demonstrated threatening behavior.  Other funding is also included in the Act that gives money to state violence prevention programs; mental health programs; and safety initiatives.

Gun trafficking penalties are increased.  The Act also includes a focus on those who sell weapons, as well as those who buy them.  Under the new statute, more gun sellers will be required to become a federally licensed gun dealers and more background checks will be mandatory.

Finally, under the Act, anyone who is convicted of domestic abuse in Texas or any other state (1) who is either in a romantic relationship with the victim at the time of conviction or (2) who had been in a romantic relationship with the victim in the past is forbidden from buying a firearm under federal law.

Federal Domestic Violence Gun Control and the “Boyfriend Loophole”

For criminal defense attorneys representing those accused of family violence or domestic assault crimes in Texas, the Act’s expansion of the federal gun ban is particularly important.  As a federal law, it takes precedent and priority over state statutes.

From Section 12005 of the Act:

This section extends federal firearms-related restrictions to individuals who are convicted of a misdemeanor crime of domestic violence against an individual in a current or recent former dating relationship. Currently, the restrictions generally only apply to individuals who are convicted of a domestic violence misdemeanor against a co-parent of a child, a current or former spouse, a current or former cohabitant as a spouse, or a person similarly situated to a spouse.

The term dating relationship means a continuing relationship of a serious or intimate nature, as determined based on the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the individuals involved in the relationship.

This section specifies that for individuals who are convicted of a misdemeanor crime of domestic violence against a dating partner, the federal firearms-related restrictions apply only to convictions on or after the date of enactment and expire five years after the conviction date if certain conditions are met. 

The Act extends the statutory net for “domestic abuser” in a significant way insofar as federal gun laws are concerned.  It closes what has been called “the boyfriend loophole” by including not only spouses, cohabitating couples, or co-parents, but also anyone who is or has been in a romantic relationship with the victim.  The romantic relationship does not have to be sexual in order for the Act to apply.

United States Attorney’s Office for the Northern District of Texas: Domestic Violence Initiative

Here in North Texas, the federal pursuit of charges based upon domestic violence is an active and dedicated focus of the local AUSAs even thought traditionally, domestic assault and family violence matters are handled by local district attorneys prosecuting under state criminal laws.

From the Northern District of Texas’ Domestic Violence Initiative:

Most domestic violence crimes are initially brought by local prosecutors, including District and State Attorneys. But as more and more domestic disputes escalated from bruises to bullets and bloodshed – and statistics confirmed that almost half of murdered women were slain by their domestic partner – the Justice Department decided to take action….

The law doesn’t prevent abusers from merely buying guns. It also prohibits abusers from having guns – owning them, borrowing them, storing them, carrying them, or shooting them.

According to federal law, none of that permissible for anyone convicted of a felony or misdemeanor crime of domestic violence or subject to a final protective order.

Why are domestic violence offenders included in America’s slate of prohibited persons?  It’s plain and simple homicide prevention. Abusers with a gun in the home are five times more likely to kill their partners than those who don’t have access to a firearm.

Under federal law, anyone caught in violation of the federal domestic violence gun ban faces a felony conviction that can be as long as ten (10) years behind bars.

The Act extends the power of the AUSA to seek felony convictions based upon ownership or possession of a firearm by anyone who meets the new federal definition of “domestic abuser” even if they only briefly dated the victim as long as the relationship was long enough to be considered “continuous” and was either “serious” or “intimate.”

What About the Second Amendment of the U.S. Constitution and Gun Control?

Critics of the Act opposed its passage as being against the basic freedoms provided by the Founding Fathers in our Constitution’s Second Amendment.  Among them, the National Rifle Association.

However, the ability to have federal laws that hinder or limit a person’s right to bear arms has longstanding precedent.  In 1996, Congress passed legislation limiting those with domestic violence misdemeanor convictions from owning guns. See, the Domestic Violence Offender Gun Ban amendment to the Gun Control Act of 1968, also known as the “Lautenberg Amendment” 18 USC §922(g)(9).

As explained by the Justice Department:

The 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. The intended effect of this new legislation is to extend the firearms ban to anyone convicted of a “misdemeanor crime of domestic violence.” 

This bill passed with almost unanimous support and represents Congress’s recognition that “anyone who attempts or threatens violence against a loved one has demonstrated that he or she poses an unacceptable risk, and should be prohibited from possessing firearms.” Congressional Record, p. S11878, September 30, 1996.

This new provision affects law enforcement in three interrelated ways. First, it will assist in preventing those individuals who have demonstrated a propensity for domestic violence from obtaining a firearm. Second, it will assist law enforcement by providing a tool for the removal of firearms from certain explosive domestic situations thus decreasing the possibility of deadly violence. Finally, it will serve as a federal prosecution tool in certain situations where alternatives have failed.

Permanent Ban or Returning Right to Buy Firearms Under the Act

Under the Act, there is a provision that allows for the individual to be able to have or own firearms even after a domestic abuse conviction.  First-time offenders who were not married to the victim, after a five (5) year time period, are allowed to have access to firearms under the Act.

Two caveats here:  there can be no further convictions of any other misdemeanor for a violent crime.  And, for married couples, as well as co-parents, the gun ban is permanent.  There is no path back to gun ownership.

What About Protective Orders in a Pending Matter?

The Act does not apply to individuals who have been made subject to final protective order signed by a judge but who have not been convicted of domestic violence charges.  In these pending matters, which may proceed for many months before they are resolved, there is no gun ban under the new federal law.

For many, this is a serious flaw in the Act as it was made into law.  Together with the ability of first-time offenders to return to gun ownership; both are considered to be two serious holes in the new federal gun control legislation.

Read, “Bipartisan gun violence bill tightens the ‘boyfriend loophole’ — but doesn’t close it completely,” written by Orion Rummler and published in The 19^th on June 23, 2022.

Domestic Violence Firearms: State Law Under Texas Penal Code

Under Texas state law, independent of any federal legislation, anyone convicted of a misdemeanor domestic violence offense has their right to possess a firearm revoked for five (5) years as part of their sentencing and punishment.  Tex. Penal Code §46.04(b). Under the Texas Penal Code, “family” violence includes married couples, those living together, former spouses, foster parents, and anyone who lives together or used to co-habitate.  Tex. Penal Code §§71.003,71.004.  There is a separate statutory definition for “dating violence.”  Tex. Penal Code §71.0021.

For more on Texas family violence arrests and domestic violence charges, read our earlier discussions in:

• Texas Continuous Violence Against the Family:  TPC §25.11
• When Dating Leads to Arrest in Texas:  Dating Violence Under Texas Family Code §71.0021
• Family Charges: 5 Reasons to Leave Before the Police Arrive
• More Women Arrested for Domestic Assault in Dallas with The First Battered Men’s Shelter in the Country?.

Domestic Violence Defense in Texas And the Federal Gun Ban

For any man or woman that has been arrested for Family Violence or Domestic assault involving a husband, wife, boyfriend, girlfriend, roommate, past roommate, or other past or present date as an alleged victim of family or domestic violence, it is extremely important to have an experienced criminal defense attorney involved in advocating on your behalf as soon as possible.

Federal prosecutions, as well as state matters, can be driven by prosecutors who are fierce in their pursuit of convictions in any case where accusations of domestic abuse are alleged.  Our local AUSAs are particularly dedicated to these matters with the North Texas Domestic Violence Initiative.

It is also vital for those facing investigation or arrest under federal charges to recognize that the repercussions of these charges extend past the charge itself to other rights, including that right to bear arms and own or possess a firearm.

With the new federal legislation, greater power has been given to federal prosecutions to punish those conviction of domestic assault or family violence matters alongside an expanded definition of those who can be considered a “domestic abuser” (i.e., closing the boyfriend loophole).

Accordingly, it is important for anyone facing these charges to recognize that this is a serious life event and there is a need to vigorously defend against them.

For more, read:

• Was Johnny Depp Falsely Accused of Domestic Violence? The Overlap Between Divorce Law and Criminal Defense
• Johnny Manziel, Domestic Violence Allegations: 5 Lessons
• Domestic Violence in Dallas: Arrests Are a Priority for Dallas Police
• Family Violence in Texas: Crimes Based Upon Domestic Violence – It’s More Than a Fight That Turns Physical
• Weapons Charges in Texas: Gun Laws and Gun Crimes under Texas Law.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth articles, “TOP 10 MISTAKES DEFENDING TEXAS FAMILY VIOLENCE CASES,” and “FAMILY VIOLENCE AND ASSAULT OFFENSES: LEGAL PROCEDURE GUIDE.”