Gun rights vs. victim rights in Wa. domestic violence debate
In Washington, as in many other states, courts do not require that guns be relinquished when orders of protection are issued, angering advocates for victims of domestic violence.
The New York Times
Early last year, after a series of frightening encounters with her former husband, Stephanie Holten went to court in Spokane to obtain a temporary order for protection.
Her former husband, Corey Holten, threatened to put a gun in her mouth and pull the trigger, she wrote in her petition. He also said he would “put a cap” in her if her new boyfriend “gets near my kids.” In neat block letters she wrote, “He owns guns, I am scared.”
The judge’s order prohibited Holten from going within two blocks of his former wife’s home and imposed a number of other restrictions. What it did not require him to do was surrender his guns.
About 12 hours after he was served with the order, Holten was lying in wait when his former wife returned home from a date with their two children in tow. Armed with a small semiautomatic rifle bought several months before, he stepped out of his car and thrust the muzzle into her chest. He directed her inside the house, yelling that he was going to kill her.
“I remember thinking, ‘Cops, I need the cops,’ ” she later wrote in a statement to the police. “He’s going to kill me in my own house. I’m going to die!”
She managed to dial 911 on her cellphone and slip it under a blanket on the couch. The dispatcher heard her begging for her life and quickly directed officers to the scene. As they mounted the stairs with their guns drawn, Holten surrendered. They found Stephanie Holten cowering, hysterical, on the floor.
The episode might well have been prevented. Had Corey Holten lived in one of a handful of states, the protection order would have forced him to relinquish his firearms. But that is not the case in Washington and most of the country, in large part because of the influence of the National Rifle Association (NRA) and its allies.
Advocates for domestic-violence victims have long called for stricter laws governing firearms and protective orders. Their argument is rooted in a grim statistic: when women die at the hand of an intimate partner, that hand is more often than not holding a gun. In these most volatile of human dramas, they contend, the right to bear arms must give ground to the need to protect a woman’s life.
In statehouses across the country, though, the NRA and other gun-rights groups have beaten back legislation mandating the surrender of firearms in domestic-violence situations. They argue that gun ownership, as a fundamental constitutional right, should not be stripped away for anything less serious than a felony conviction — and certainly not, as a NRA lobbyist in Washington state put it to legislators, for the “mere issuance of court orders.”
That resistance is being tested anew in the wake of the massacre in Newtown, Conn., as proposals on the mandatory surrender of firearms are included in gun-control legislation being debated in several states.
Among them is Washington, where the law gives judges issuing civil-protection orders the discretion to require the surrender of firearms if, for example, they find a “serious and imminent threat” to public health. But records and interviews show they rarely do, making Washington a useful laboratory for examining the consequences and the politics of this standoff over the limits of Second Amendment rights.
By analyzing a number of Washington databases, The New York Times identified scores of gun-related crimes committed by people subject to recently issued civil-protection orders, including murder, attempted murder and kidnapping. In at least five instances over the last decade, women were shot to death less than a month after obtaining protection orders. In at least a half-dozen other killings, the victim was not the person being protected but someone else. There were dozens of gun-related assaults like the one Stephanie Holten endured.
The analysis — which cross-checked protective orders against arrest and conviction data, along with fatality lists compiled by the Washington State Coalition Against Domestic Violence — represents at best a partial accounting of such situations because of limitations in the data. The databases were missing some orders that have expired or been terminated.
Washington’s criminal statutes, however, contain a number of gun-specific charges, like unlawful possession of a firearm and aiming or discharging one, offering another window into the problem. Last year, The Times found, more than 50 people facing protection orders issued since 2011 were arrested on one of these gun charges.
In some instances, of course, laws mandating the surrender of firearms might have done nothing to prevent an attack. Sometimes the gun used was not the one cited in the petition. In other cases, no mention of guns was made. But in many cases, stricter laws governing protective orders and firearms might very well have made a difference.
Intimate-partner homicides account for nearly half the women killed every year, according to federal statistics. More than half of these women are killed with a firearm. And a significant percentage were likely to have obtained protection orders against their eventual killers. (A 2001 study, published in Criminal Justice Review, of women slain by intimate partners in 10 cities put that number at one in five.)
It was in recognition of these converging realities that Congress included a provision in the 1994 crime bill that barred most people subject to full protective orders filed by intimate partners from purchasing or possessing firearms. In a nod to the concerns of the gun lobby, the statute excluded most people under temporary orders, on the ground that they had not yet had the opportunity to contest the accusations in court.
Washington has seen several efforts to enact firearm surrender laws. In 2004, Rep. Ruth Kagi, D-Shoreline, introduced a bill mandating the surrender of firearms with temporary protective orders. But after strong opposition from the NRA, the bill failed to make it out of committee. The NRA’s lobbyist in the state, Brian Judy, testified that the measure granted “extraordinarily broad authority to strip firearms rights.”
Gun-rights groups stress that the subjects of temporary orders have not even had the chance to be heard in court, and that many temporary orders do not become full injunctions. Advocates for domestic-violence victims counter that the most dangerous moment is when such orders are first issued, and that the surrender of weapons at this stage may be only temporary.
Nevertheless, in 2010, they decided to lower their ambitions and backed a proposal in the Washington Legislature requiring surrender only after a full protective order was issued, restraining threatening conduct against family members or children of family members. The measure also would have made it a felony to possess a firearm while subject to such an order.
Once again, the NRA and its allies strenuously objected. The group sent out a legislative alert to its members, who besieged legislators. A veteran gun-rights lobbyist flew in from Florida to meet with Rep. Roger Goodman, D-Kirkland, who had introduced the measure.
Judy, the state NRA lobbyist, wrote in an email to Goodman that his organization considered the current Washington law “already bad on this subject.” He added, “It is the N.R.A.’s position that any crime that is serious enough to cause an individual to lose a fundamental constitutional right should be classified as a felony.”
Ultimately, lawmakers stripped the gun measure out of a broader package of domestic-violence legislation.
In Washington state, The New York Times’ analysis highlighted danger at play when there is no broad mandatory firearm-surrender law.
Under the present law, judges issuing protective orders are required to order the surrender of firearms only in very specific situations, like a determination by “clear and convincing evidence” that the person has used the weapon in a felony or has committed another offense that, by law, would disqualify him from having a firearm. Otherwise, judges have the discretion to issue a surrender order under a variety of circumstances, including a finding that there is a threat of “irreparable injury.”
(There is also a court form specifically requesting the surrender of firearms, but advocates say it is rarely used because few victims of domestic violence know about it.)
All five of the Washington cases identified by The Times in which the woman who obtained the protective order was later killed were murder-suicides. In three cases, the woman wrote in her petition that her husband or ex-boyfriend possessed firearms. In none of the cases did the judges issue surrender orders.
In fairness, it was not always clear such an order would have prevented the deaths. Even so, those cases can show the existing system’s weakness in the face of obvious peril.
Melissa Batten, of Redmond, 38, a software developer for Xbox, secured a temporary protective order in July 2008, describing a series of episodes in which her estranged husband harassed her and broke into her workplace. She said he also pointed a loaded gun at her in an argument and put it to his head, threatening to kill himself.
It fell to a mutual friend, however, not the courts or law enforcement, to deal with the gun. He persuaded the husband, Robert Batten, to sell his .22-caliber handgun back to the dealer, according to a police report. But Batten later bought two more guns, a .357 Smith & Wesson revolver and a 9-millimeter Taurus semiautomatic, according to the police. It is not clear when he bought them, but the police found evidence that he went to a gun show a few days after being served with the protective order. (In some states, the existence of the order would have barred him from buying guns.)
Batten shot his wife eight times in the parking lot outside her Redmond apartment before shooting himself, killing them both.
More than a year after her ordeal in Spokane, Stephanie Holten, 39, still cannot understand why the judge did nothing about her former husband’s guns.
“I do believe in the Second Amendment,” she said, “but at the same time, public safety has to be paramount.”
Still seeing a counselor about the episode, she said her mind relentlessly replays the scene of her on her knees, looking down the barrel of a loaded gun. In the recording of her 911 call, she can be heard sobbing and begging her former husband to leave. He can be heard responding, between expletives, that she is going to die.
Corey Holten — who later pleaded guilty to attempted first-degree assault and was sentenced to more than six years in prison — ordered her upstairs to her bedroom, forcing her to show him that she still had their wedding photos and other mementos.
He then offered her a deal: He would put the gun down if she promised to drop the protection order, give him custody of their son and not call the police. When she tearfully assented, Holten placed his 9-millimeter carbine — the same weapon she believes she saw at his home a month earlier and cited in her court petition — in a hallway closet. That was when they both heard a male voice say “Police Department.”
Her legs buckled, and she crumpled to the ground.
“I wish in my case he had to surrender everything,” she said. “If the cops had been able to take the firearms out of that household when they served him, I think it would have averted the entire thing.”