[Senate Hearing 113-892]
[From the U.S. Government Publishing Office]
S. Hrg. 113-892
VAWA NEXT STEPS: PROTECTING
WOMEN FROM GUN VIOLENCE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
JULY 30, 2014
__________
Serial No. J-113-71
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
28-447 WASHINGTON : 2018
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Kristine Lucius, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
JULY 30, 2014, 10:04 A.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Blumenthal, Hon. Richard, a U.S. Senator from the State of
Connecticut.................................................... 8
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 9
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California,
prepared statement........................................... 62
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa...... 3
Klobuchar, Hon. Amy, a U.S. Senator from the State of Minnesota.. 6
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement........................................... 60
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island......................................................... 1
prepared statement........................................... 64
WITNESSES
Witness List..................................................... 39
Campbell, Jacquelyn, Ph.D., Professor and Anna D. Wolf Chair,
Department of Community-Public Health, Johns Hopkins University
School of Nursing, Baltimore, Maryland......................... 11
prepared statement........................................... 40
Daniel, Elvin, McHenry, Illinois................................. 19
prepared statement........................................... 53
Malcolm, Joyce Lee, Ph.D., Patrick Henry Professor of
Constitutional Law and the Second Amendment, George Mason
University School of Law, Arlington, Virginia.................. 13
prepared statement........................................... 43
McCaffery, Hon. Seamus P., Justice, Supreme Court of
Pennsylvania, Harrisburg, Pennsylvania......................... 17
prepared statement........................................... 50
Schmaling, Christopher, Sheriff, Racine County, Racine, Wisconsin 15
prepared statement........................................... 47
QUESTIONS
Questions submitted to Jacquelyn Campbell, Ph.D., by Senator
Blumenthal..................................................... 66
Questions submitted to Joyce Lee Malcolm, Ph.D., by Senator Flake 69
Questions submitted to Joyce Lee Malcolm, Ph.D., by Senator
Grassley....................................................... 71
Questions submitted to Hon. Seamus P. McCaffery by Senator
Grassley....................................................... 72
Questions submitted to Sheriff Christopher Schmaling by Senator
Blumenthal..................................................... 67
Questions submitted to Sheriff Christopher Schmaling by Senator
Grassley....................................................... 73
ANSWERS
[Note: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received responses from Jacquelyn Campbell, Ph.D.]
Responses of Joyce Lee Malcolm, Ph.D., to questions submitted by
Senator Flake.................................................. 75
Responses of Joyce Lee Malcolm, Ph.D., to questions submitted by
Senator Grassley............................................... 74
Responses of Hon. Seamus P. McCaffery to questions submitted by
Senator Grassley............................................... 79
[Note: At the time of printing, after several attempts to obtain
responses to the written questions, the Committee had not
received responses from Sheriff Christopher Schmaling.]
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Academy of Nursing, Washington, DC, July 31, 2014,
letter......................................................... 103
Campbell, Bonnie, Former Director, Office on Violence Against
Women, U.S. Department of Justice, statement................... 85
Center for American Progress (CAP), Washington, DC, August 5,
2014, letter................................................... 88
Coalition to Stop Gun Violence (CSGV), Washington, DC, statement. 81
Everytown for Gun Safety, New York, New York, statement.......... 97
Martin, Christy Salters, Former American World Champion Boxer,
statement...................................................... 93
National Center for Victims of Crime, Washington, DC, statement.. 95
National Network to End Domestic Violence (NNEDV), Washington,
DC, statement.................................................. 101
National Physicians Alliance, Washington, DC, July 30, 2014,
letter......................................................... 105
Ponce, Laura, Mother of a Domestic Violence Victim, Berryville,
Arkansas, statement............................................ 107
States United to Prevent Gun Violence, New York, New York,
statement...................................................... 106
VAWA NEXT STEPS: PROTECTING
WOMEN FROM GUN VIOLENCE
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WEDNESDAY, JULY 30, 2014
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:04 a.m., in
Room SD-106, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, presiding.
Present: Senators Whitehouse, Durbin, Klobuchar, Franken,
Blumenthal, Hirono, and Grassley.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Chairman Whitehouse. Good morning, everyone. The hearing
will come to order. I am delighted to see you all here, and I
welcome the witnesses and thank them for coming. I welcome my
Ranking Member, the distinguished Senator from Iowa. I welcome
Senators Klobuchar and Blumenthal from Minnesota and
Connecticut. And I have one procedural announcement, which is
that we evidently have a vote scheduled at 10:45, and so toward
the end of that vote, I plan to--and, Senator Hirono, from
Hawaii, nice to see you. I plan to adjourn the hearing or
recess the hearing briefly to allow us to go over and catch the
end of one vote, the beginning of the next, and then reconvene.
That will probably take about 15 minutes total, just so you all
know.
On June 18, 1999, Carmen Cruz was watching television with
her 8-year-old son, Travis, when her ex-boyfriend, Frederick
Escobar, broke into her apartment and calmly walked toward her,
carrying a pillow. When he was just a few feet away from Ms.
Cruz, Mr. Escobar pulled a gun from the pillow, pointed it at
her, and pulled the trigger. Travis watched as his mother
collapsed, felled by a bullet shot by his own father.
Ms. Cruz spent hours in surgery while doctors removed the
bullet from her abdomen. She was hospitalized for 3 weeks and
wore a colostomy bag for almost 2 years following the shooting.
Today Ms. Cruz is a passionate advocate in Rhode Island's
domestic violence community, but her scars serve as a constant
reminder that, as a survivor, she is one of the lucky ones.
American women are 11 times more likely to be killed with
guns than women in any other industrialized country. As this
chart shows, the red line, which you may not be able to see,
stands far beyond any other industrialized country.
Put another way, women in the United States account for 84
percent of all female firearm victims in the developed world.
Let me repeat that: Women in the United States account for
84 percent of all female firearm victims in the developed
world.
Of all the women murdered in this country, more than half
are killed by family members or intimate partners.
In fact, when a gun is present in a domestic violence
situation, it increases the risk of homicide for women by 500
percent.
Protecting women from gun violence by domestic abusers
should not be, and has not been, a partisan issue. In the late
1990s, Congress passed important laws prohibiting the
possession or purchase of firearms by individuals convicted of
misdemeanor domestic violence or subject to domestic violence
protective orders. These laws, which were part of the Violence
Against Women Act and an amendment authored by the late Senator
Frank Lautenberg, complemented the prohibitions on convicted
felons and passed Congress with broad bipartisan support.
These laws have saved lives. In States with rigorous
background check laws, 38 percent fewer women are shot to death
by intimate partners. But they are not enough.
Current law prohibits domestic abusers from possessing guns
only if they are--or were--married to the victim, if they have
lived with the victim, or if they have a child in common with
the victim. Dating partners who have been convicted of domestic
violence offenses are not covered, even though the most recent
data shows that more domestic abuse is committed by dating
partners than spouses. Closing the dating partner loophole
would save lives, plain and simple. There are other steps we
can take as well. These include requiring universal background
checks and helping States collect and share the data necessary
to ensure that those who we already agree should be prohibited
under existing law are, in actual practice and fact, prohibited
when they try to purchase firearms. Along these lines, I am
willing to work with anyone who wants to strengthen the
National Instant Criminal Background Check System, or NICS, to
ensure that it operates as Congress intended it to.
Nobody on this Committee has been working harder than
Senators Blumenthal and Klobuchar to shine a light on the role
of guns in domestic violence and to address the loopholes that
allow abusers to use guns to kill, injure, and threaten their
victims. I know we will hear more about their initiatives, and
I want to thank them both at the outset for their commitment
and their efforts.
I also would like to thank Chairman Leahy for his
leadership in reauthorizing the Violence Against Women Act last
year and for his longstanding recognition of the role of guns
in domestic violence.
Finally, it bears mentioning that this is not a hearing
about the Second Amendment or the right of law-abiding
Americans to own firearms. Nobody on this Committee wants to
deprive individuals--women or men--from legally owning guns,
and none of the solutions we are here to discuss involve doing
that. What we are here to consider is how guns in domestic
violence situations threaten American women and how best to
ensure that those who should not possess guns do not possess
guns. I understand that there are a number of domestic violence
survivors and advocates here with us today. I would be honored
to recognize them right now if they would not mind standing up.
[Applause.]
Chairman Whitehouse. Thank you.
I would also like to submit the statements of our Chairman,
Senator Patrick Leahy; of Christy Salters Martin, Bonnie
Campbell, Laura Ponce, Katie Ray Jones, and Everytown for Gun
Safety, and the National Center for Victims of Crime into the
record. Without objection, they will be added to the record.
Thank you all for your support of this effort and for your
courage.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
[The information referred to appears as submissions for the
record.]
Chairman Whitehouse. I would like to welcome all our
witnesses and thank them for participating in the hearing and
turn the microphone to my distinguished Ranking Member, Senator
Grassley.
OPENING STATEMENT OF HON. CHUCK GRASSLEY,
A U.S. SENATOR FROM THE STATE OF IOWA
Senator Grassley. Bonnie Campbell, whom you just mentioned,
is a former Attorney General of the State of Iowa.
Mr. Chairman, we are here to discuss a very important
subject. Thanks to our experts who have agreed to be panelists
for us. All of us want to see the Federal Government take
appropriate action to assist in fighting domestic violence, and
especially domestic homicides.
I have met with many victims of domestic violence over the
years. I feel compassion for the physical, mental, and
emotional injuries they have suffered, and you particularly
feel that when you talk to people that have experienced that.
They have told me of the fear that they confront. And I want to
take effective action against perpetrators of violence against
women.
So today I am one of the lead Republicans in a group of
bipartisan Senators who have come together on a bill to address
sexual assault on our Nation's college campuses.
But to me, all domestic homicides are tragedies. It does
not matter how the victim died. Forty-five percent of domestic
homicides now do not involve guns, a figure considerably higher
than in the 1980s.
In 1996, I had the pleasure of voting for the Lautenberg
amendment. Those convicted of domestic violence misdemeanors
were prohibited from owning firearms. So were those against
whom permanent restraining orders were entered because of
domestic violence.
For these prohibitions to be effective, obviously records
of the convictions and restraining orders must be entered into
the National Instant Background Check System. And the Chairman
just spoke about his interest in that, for that to be an
effective system.
So it distresses me that even now, all these years later,
according to the Center for American Progress, ``only 36 States
have submitted any domestic violence misdemeanor convictions to
the NICS Index, and of these, 21 States have submitted 20 or
fewer of these records. An even smaller number of States have
submitted records regarding restraining orders: 19 States have
submitted domestic violence restraining order records to the
NICS Index, and of these, 9 States have submitted 10 or
fewer.''
I note that Rhode Island has submitted exactly zero
misdemeanor domestic violence records to NICS and exactly zero
domestic violence restraining order records. The corresponding
numbers for Delaware are zero and zero; Hawaii, three and zero;
Illinois, one and zero; Minnesota, 16 and two; New York, zero
and ten; Vermont, two and zero.
These States are failing to do their jobs.
Iowa ranks near the top among the States in this regard,
but I can confess to you we still have to do a better job in my
State.
Seventy-nine percent of the records submitted come from
three small States. As the report says, ``If all States
submitted records of misdemeanor domestic violence convictions
at the average rate of these three States, we can project there
would be 2.9 million records in the NICS Index in this
category, more than 40 times the number currently submitted.''
This means that large numbers of prohibited persons under
the law today can purchase a firearm through legal channels
because the instant background check system fails to identify
them as such. Our NICS system is full of holes with respect to
the current gun prohibitions, greatly reducing the
effectiveness of background checks.
Last year, Senator Cruz and I offered an amendment to
legislation before the Senate that would have helped fix the
NICS system. Our amendment would have improved State compliance
with NICS reporting for mental health records for prohibited
persons.
It received the most bipartisan support of any similar
legislation, but it did not move because it did not receive the
60 required votes. We should do the same with respect to
persons who have been convicted of domestic violence crimes and
subject to permanent restraining orders. We should be able to
gain a bipartisan effort to enact legislation of this type.
But that is not the majority's approach.
There are two bills before the Committee on domestic gun
violence.
One of them, from Senator Klobuchar, expands the definition
of prohibited persons to include dating violence, beyond the
cohabitating relationships in current law, as well as to add
convicted stalkers to the list of prohibited persons.
Another, by Senator Blumenthal, also expands the
relationships and would make those subject to temporary
restraining orders, entered without notice to the alleged
abuser, prohibited persons.
A significant problem exists with the completeness of
background checks under the law. It is hard to believe that
expanding the universe of prohibited persons whose records will
not show up when a background check is performed will reduce
gun homicides.
I fear that false hopes are again being raised. In many
states, few persons are convicted of misdemeanor stalking. In
Maryland, for instance, zero were convicted of that crime last
year, one in Arkansas, and five in New Mexico. Making these
offenders prohibited persons will not accomplish very much,
even if their records made it into NICS, which is a
questionable assumption.
These bills would expand retroactively the definition of
``prohibited person.'' But they will also make actual
individuals who were allowed to own guns criminals
retroactively, not by virtue of their crime, but by the passing
of the legislation.
Who is going to spend the time and the personnel to go over
every domestic violence conviction record and examine the
relationships between the parties to determine whether they fit
the definition of these bills? Who is going to actually input
those records into NICS?
Suppose someone determines erroneously that a prior
conviction was for conduct against a dating partner. What
recourse will the individual have to demonstrate that he is not
a prohibited person? How will guns actually be taken from that
prohibited person? How soon would an officer be diverted from
another law enforcement activity to remove those guns?
The restraining order provisions could pose some problems.
In a large percentage of cases, temporary restraining orders
issued without notice to the defendant do not lead to permanent
orders. Yet the constitutional rights of the accused could be
taken without due process. That person will not know that he or
she is a prohibited person if, during the brief period the
order is in effect, law enforcement should show up to take away
a gun.
We should also be very skeptical that a temporary order
will be entered into NICS in time to stop someone from passing
a background check. Making existing NICS records more complete
is far more likely to make the difference in domestic violence
homicides, especially gun homicides, than the bills the
Committee is considering.
I understand that domestic violence advocates asked the
majority to hold a hearing on domestic violence homicides many
months ago but were repeatedly put off. For instance, the
Klobuchar bill was introduced more than a year ago. But only as
we are about to head out of town, with very few legislative
days remaining, has this hearing taken place responding to the
request of advocates. Only as the number of days until the
election grew short did the Committee schedule the hearing.
The Committee has not held a markup for bills for 2 weeks
now. Had the majority been serious about reducing domestic, we
had the time to work together to come up with a bipartisan
solution. There was a real opportunity in this Congress for a
bipartisan effort to combat intimate homicides of all kinds.
That opportunity I believe has been squandered.
The bills before the Committee today deal with the problem
of keeping currently prohibited persons from owning firearms. I
hope that going forward, we will work together to find
bipartisan, well-thought-out, practical ways to protect women
and men from violence of all kinds.
Thank you, Mr. Chairman.
Chairman Whitehouse. I am sure we will, Senator Grassley,
and I think this hearing will help advance that cause. And
because Senator Klobuchar and Senator Blumenthal have both
shown such leadership in this area and have bills in this area,
they have requested making an opening statement, so I will
recognize the two of them for opening statements, first Senator
Klobuchar, and then we will proceed with the witnesses.
OPENING STATEMENT OF HON. AMY KLOBUCHAR,
A U.S. SENATOR FROM THE STATE OF MINNESOTA
Senator Klobuchar. Thank you very much, Chairman
Whitehouse, thank you, Senator Grassley, and thank you also to
Chairman Leahy for holding this hearing, and thank you to
Senator Blumenthal for his work in this area.
Tragically, we have had a number of major shootings that
have killed multiple people over the last few years in our
country. From Newtown to Nevada, we have seen that there is
still more to be done in terms of closing loopholes in our
background check system and looking at mental health issues.
I would point out that some of the issues raised by Senator
Grassley, which are good ones, about the recordkeeping, some of
that would have been helped by the Manchin-Toomey bill, which
contained penalties for States and also grants to make it
easier for them to enter in this data. In States that do
require a background check for private handgun sales, 38
percent fewer women are shot to death by their intimate
partners.
As a former prosecutor, I have seen firsthand how domestic
violence and sexual assault can destroy lives and tear apart
families. For 8 years, I ran an office of over 400 people. I
was charged with protecting domestic violence victims and
enforcing the gun laws we had on the books. Enforcing the laws
involving felons in possession of a gun was one of my major
priorities for those 8 years.
But one of the things I learned as a prosecutor is that
there is still more work to be done. I was reminded of this
over the Christmas holidays in 2011 when I went to one of the
saddest funerals I have ever attended for Officer Shawn
Schneider. He was a young Lake City police officer with three
children. His department had received a domestic violence call
from a 17-year-old victim. It was someone that she had dated.
Officer Schneider, just doing his job, showed up at the door
that day. He was wearing a bulletproof vest, but no vest could
have protected him when the perpetrator shot him in the head
and killed him.
At the funeral in that church were his three children. Only
a week ago, the officer had been there with the family at the
church nativity play. That day he was in the front in a coffin,
and his three little children walked down the aisle of the
church. And the one thing I will never forget was the little
girl in a blue dress covered with stars. That is what this is
about.
Last year, the women of the Senate stood together to
reauthorize the Violence Against Women Act. The bill that was
signed into law included the provision that I worked on with
former Republican Senator Kay Bailey Hutchison that strengthens
and updates Federal anti-stalking laws to better address a new
technology that predators are using to harass their victims.
Passing that bill was a critical step in protecting women, but
there is more to be done.
A recent report found that 57 percent of recent mass
shootings involved domestic violence. That is why last July I
introduced, along with Senator Hirono, the Domestic Violence
and Stalking Victims Protection Act. Our bill really does two
things.
Our common-sense bill would help protect stalking victims
and keep guns out of the hands of dangerous people that stalk.
It makes sure that stalkers cannot get guns. Many States are
already starting to do this on a bipartisan basis with
Democratic and Republican support, including my own State.
One in six women have been stalked during their lifetime.
Stalking is often the first step in an escalating pattern of
criminal behavior that culminates in physical violence. The
Department of Justice reports that 76 percent of women who are
murdered by intimate partners were first stalked by their
partner.
Second, our bill would make an important change to expand
the definition of victims who are covered. Right now, people
who are not married and have not either lived together or had a
child together are not covered under the current definition of
``intimate partner.'' They are vulnerable because their
stalkers and their abusers are legally able to obtain firearms
despite having committed a domestic violence crime or being
subject to a permanent restraining order. Our bill fixes this
problem by expanding the definition of ``intimate partners'' to
include dating partners. Many States have already done it. We
are simply bringing the Federal law in line with what many
States have already done.
I have been proud to stand up for this bill with former
Representative Gabby Giffords and her husband, astronaut
Captain Mark Kelly, in support of this bill. Like Gabby and
Mark, in my home State of Minnesota, we value hunting and the
outdoors. If it is not duck season or pheasant season in
Minnesota, it is deer season. And when I looked at doing this
bill, I always thought of my Uncle Dick in his deer stand and
would this do anything to hurt him in that deer stand. The
answer is clearly no.
This bill is about preventing a person with a documented
history of domestic violence or stalking or mental illness from
having a firearm. That is it.
I know that Senator Blumenthal has been working on these
issues as well, especially for dating partners and temporary
restraining orders, and I want to thank him for his leadership.
One of the things that Justice McCaffery said in his
testimony was that our bills ``look to strengthen current
Federal domestic violence laws to bring them more in line with
the current laws that many States have dealing with crimes of
violence toward women [and] same-sex partners . . . ''
These bills are simple. These bills are designed to focus
on an area where we know we have seen rampant violence.
I want to thank all our witnesses for being here, and I
hope that our colleagues will join us in supporting these
bills. And one of the reasons, Senator Grassley, that we waited
to do this hearing was that I have been trying to get a
Republican cosponsor on this bill. I have been very close
several times. I know I am going to get it done. But that is
the reason that we waited to have this hearing.
Thank you, Senator Grassley, Senator Whitehouse.
Chairman Whitehouse. Senator Blumenthal.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. Thank you very, very much, Senator
Whitehouse, for convening this hearing and for yourself
spearheading and advocating measures to stop domestic violence,
and I want to join you in thanking our Chairman, Senator Leahy,
for permitting this hearing to go forward.
I also want to particularly salute and thank my colleague
Senator Klobuchar, who has been so steadfast and strong in
advancing this cause, and I am proud to be working with her and
to be supporting her bill as a cosponsor. And I think our
measures are very much complementary.
I want to thank also the other Members of this Committee,
including Senator Durbin and Senator Hirono, Senator Feinstein,
and the late Senator Lautenberg for their leadership, really
incomparable leadership in this cause. And, of course, the many
advocates around the country who are championing common-sense,
sensible measures to stop gun violence and domestic violence.
The two together are a toxic, deadly combination. Women are
five times as likely, more likely to die from domestic violence
when there are guns in their household.
I especially want to thank the survivors, the loved ones of
victims who are here today. I know how much courage and
strength it takes for you to be with us. But your presence is
so powerful and meaningful, far more eloquent than anything I
could say here or anywhere else. And I want to say a particular
thanks to a Connecticut family who are here, Mary and Doug
Jackson. Their daughter, Lori, was a victim of domestic
violence. But she chose not to accept it. She displayed the
courage that her parents taught her, and she decided to break
with it. As many of you know, that decision takes such enormous
bravery and resoluteness. She broke with her husband. She went
to live with her parents. She took with her her 18-month-old
twins. She left her abusive husband, and she decided to begin a
new life.
Lori's act of courage should have liberated her, should
have freed her. But instead she became a victim again, and this
time fatally. Her estranged husband tracked her down in her
mother's house, and he used the gun that he was still legally
allowed to possess to gun her down and to seriously injure her
mother, firing bullets at her that almost killed Mary Jackson.
Mary and Doug Jackson are with us today, and I am so deeply
grateful to you for joining us.
Lori Jackson sought, successfully, a temporary restraining
order, which should have protected her. The law failed Lori
Jackson. The judge granted that restraining order after
determining that her husband posed a clear threat to her safety
and the safety of her children. But even after that
determination, Lori's husband was still able to keep the gun
that killed her.
Even if he had not possessed that gun, he could have
legally purchased a new one, even at the moment of heightened
rage when he learned that she had left and was seeking that
restraining order. In most States, somebody subject to a
temporary restraining order can lose access to his house, to
his children, to his car, but under Federal law he can still
keep his guns.
Somebody might be considered too dangerous to see their son
but not too dangerous to buy a handgun. And because of that
loophole in our law, abuse victims are the least protected by
the laws of our Nation at the moment they are in the most
danger. At the moment when they are most likely to be
physically harmed because of the rage and wrath of their
estranged spouse or intimate partner, they are less protected
than any other time.
I have offered legislation to close this loophole and
require a period after the domestic abuser becomes subject to a
temporary restraining order. During that period when a judge
has found that someone poses a threat and issues a temporary
restraining order, the subject of that order should be barred
from purchasing or possessing a gun, and the justice system
should be helping the potential victim.
Unfortunately, and tragically, and unacceptably, most
victims are still at the mercy of their abuser's rage, despite
the kind of courage that Lori Jackson demonstrated in breaking
with an abusive spouse.
I have also introduced a measure, the Gun Homicide
Prevention Act, to make sure that there are incentives and
resources and grants available to States so that they will
enforce these laws. These States are provided with grants under
this legislation that encourages them to get illegal guns out
of the hands of dangerous people and away from dangerous
situations, and it gives them the resources to do so
effectively.
Enforcement, as I know from my own background as Attorney
General of the State of Connecticut for a couple of decades and
as a Federal law enforcement officer as United States Attorney,
is the key to making the law real in people's lives. Right now
Federal law is a shadow of what it should be in protecting
against gun violence and domestic abuse.
I want to recognize again the thousands of men and women
who have become victims as a result of this gaping,
unforgivable loophole in Federal law. Their strength and
courage will inspire me and I hope inspire this body, just as
Lori Jackson's parents being here today should give us the
resoluteness and the strength to make this law real. I want to
thank again them, the advocates who are before us today on this
panel, and, Mr. Chairman, thank you very much.
Chairman Whitehouse. Senator Durbin, do I understand you
wish to make a statement as well?
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Durbin. Mr. Chairman, I know we want to hear from
the panel. I want to especially recognize the attendance of Mr.
Elvin Daniel, who is a resident of Illinois and is going to
tell us the sad story of his sister. Mr. Daniel makes a
declaration early in his statement that he is a conservative,
constitutionalist, member of the NRA, and he comes to us today
still asking for protection for women like his sister and
others who might have a chance if we pass the Manchin-Toomey
background check to keep guns out of the hands of convicted
felons and people who are mentally unstable as well as the
Klobuchar and Blumenthal legislation to protect women who are
victims of domestic violence and stalking. Thank you, Mr.
Daniel, for being here.
Chairman Whitehouse. Thank you, Senator.
Will the witnesses please stand to be sworn? Do you affirm
that the testimony you will give here today will be the truth,
the whole truth, and nothing but the truth, so help you God?
Ms. Campbell. I do.
Ms. Malcolm. I do.
Sheriff Schmaling. I do.
Justice McCaffery. I do.
Mr. Daniel. I do.
Chairman Whitehouse. Thank you.
I will introduce the whole panel, and then we will go
through their testimony.
I will first introduce Jacqueline Campbell, who is the Anna
D. Wolf Chair of the Johns Hopkins University School of Nursing
and the national program director of the Robert Wood Johnson
Foundation Nurse Faculty Scholars Program. In 2012, she was
recognized by the Centers for Disease Control and Prevention as
one of 20 national leaders in injury and violence prevention
for her work related to domestic violence. Dr. Campbell is on
the board of directors of Futures Without Violence, has served
on the board of five domestic violence shelters, and was a
member of the congressionally appointed Department of Defense
Task Force on Domestic Violence. She has published more than
225 articles and 7 books and has extensive policy-related
service nationally and internationally related to women and
violence, and she has cut a vacation short to be with us, so we
are particularly honored that she is here.
Joyce Lee Malcolm will testify after Dr. Campbell. She is
the Patrick Henry Professor of Constitutional Law and the
Second Amendment at George Mason University School of Law. She
holds a Ph.D. in history and specializes in constitutional law,
legal history, and law and war. Malcolm is the author of seven
books and numerous articles for legal and historical journals
and the popular press. Her book, ``To Keep and Bear Arms: The
Origins of an Anglo-American Right,'' was cited by the Supreme
Court in the recent Second Amendment case of District of
Columbia v. Heller.
After her, we will hear from Sheriff Christopher Schmaling.
Sheriff Schmaling was elected sheriff of Racine County,
Wisconsin, in 2010. In that role, he established the first ever
domestic violence specialist position in the State. Sheriff
Schmaling has served as a law enforcement officer for two
decades and resides with his family in the village of Mount
Pleasant. And I understand that it is his son's 16th birthday
today, so we are particularly grateful for his participation in
this hearing. It is a pleasure to have you with us, Sheriff. I
know your son must be very proud.
Next we will hear from Justice McCaffery, who was born in
Belfast, Northern Ireland, but has called Philadelphia his home
since the age of 5. He has made a career of public service,
serving his country as a United States Marine, his city as a
police officer for 20 years, and his State as first a trial and
now an appellate judge. Justice McCaffery is the liaison
justice for problem-solving courts across Pennsylvania as well
as the liaison justice to the special court judges of
Pennsylvania. He has been at the forefront in creating veterans
courts across Pennsylvania.
And, finally, already introduced by his Senator, Senator
Durbin, Elvin Daniel joins us from Illinois, where he is a
salesman for Blackhawk Industrial. He is here to share the
story of his sister, Zina, who was killed by her estranged
husband just days after she obtained a restraining order
against him. Unfortunately, Zina's story highlights only too
well the urgent need for universal background checks. We are
very grateful that Mr. Daniel is here and thank him for coming
and for his courage.
Let me begin now with Dr. Campbell. We have a terrific
panel. Lead us off. Thank you.
STATEMENT OF JACQUELYN CAMPBELL, Ph.D., PROFESSOR AND ANNA D.
WOLF CHAIR, DEPARTMENT OF COMMUNITY-PUBLIC HEALTH, JOHNS
HOPKINS UNIVERSITY SCHOOL OF NURSING, BALTIMORE, MARYLAND
Ms. Campbell. Senators, I am grateful for the opportunity
to testify in these very important hearings today. I will
present data from my own research on domestic violence homicide
of women, as well as from other important research and national
data bases on this topic. I testify today as a citizen, as a
nurse, and with the endorsement of the American Academy of
Nursing.
The United States, as has been said, has a higher homicide
rate of women than all other westernized countries and amongst
the highest rate in the world. This disparity is particularly
pronounced for homicides of women committed with guns, in which
the country, as was said, the rate exceeds by 11 times the
average rate in other industrialized countries.
Much of this fatal violence against women is committed by
intimate partners. Although neither entirely complete and nor
without coding errors, the FBI's Supplemental Homicide Reports
are the most complete national data base of homicide with
information on the relationship of the perpetrator to the
victim. In the most recent data available, from 2011, at least
45 percent of the murders of women were committed by a current
husband or boyfriend or ex-husband. If we only examine the
homicides where the perpetrator relationship to the victim was
identified, more than half--54 percent--of the homicides of
women are committed by a husband, boyfriend, or former husband.
There were 10 times as many women killed by a current husband
or boyfriend or ex-husband as by a male stranger in that data
base.
The majority of this violence is perpetrated with firearms.
In the Violence Policy Center analysis of the 2011 murders of
women, there were 1,707 females murdered by males in single-
victim/single-offender incidents. Of those incidents of
homicides in which the weapon could be determined, more of
these homicides were committed with firearms--51 percent--than
with any other weapon.
Women are also killed by partner or ex-partners when they
are pregnant. In an important study of maternal mortality in
the State of Maryland from 1993 to 2008, Dr. Diana Cheng and
Dr. Isabelle Horon examined medical records of women who died
during the pregnancy and the first postpartum year. Homicides
were the leading cause of death to those pregnant women and
immediately postpartum. Firearms were the most common method of
death, 61.8 percent. A current or former intimate partner was
the perpetrator in more than half of those murders, and nearly
two-thirds of intimate partner homicide victims in this study
were killed with guns. In a national study of pregnancy-
associated homicide, firearms again accounted for the majority
of homicides. And a majority of those perpetrators were not
married to their victims.
Research my peers and I have conducted provides further
insights into how firearm access and domestic abuse elevate the
risk of homicide for American women and explain why existing
Federal laws restrict certain convicted domestic abusers from
buying or possessing guns.
Survey research of battered women indicates that when a
firearm is present, a majority of abusers will use the gun to
threaten or injure a victim. In a study Susan Sorenson and
Douglas Weibe conducted with over 400 women in domestic
violence shelters in California, two-thirds of those abused
women who reported a firearm in their home said their intimate
partner used a gun against them, with 71.4 percent threatening
to shoot or kill her and 5.1 percent actually shooting at her.
Among the most rigorous research available on factors that
influence a woman's likelihood of homicide is the national, 12-
city case-control study of intimate partner homicide by a
husband, boyfriend, ex-husband, or ex-boyfriend conducted by
myself and my colleagues. In the study we compared a group of
abused women who were murdered by their partner or ex-partner
to another group of abused women who were not. Controlling for
other factors, we found that gun access or ownership increased
the risk of homicide over and above prior domestic violence by
5.4 times. Gun access was the strongest risk factor for an
abused woman to be killed by her partner or ex-partner. When
the perpetrator committed suicide after killing his partner,
the gun ownership increased the chances of this homicide-
suicide by an adjusted odds ratio of 13.
Neither of those studies found evidence that women
frequently use firearms to defend themselves against abuse or
that access to a firearm reduces the risk of homicide for the
woman victim.
In leaving out abusive dating partners, current Federal
firearm prohibitions ignore the perpetrators of a large and
growing share of intimate partner homicides. The U.S.
Department of Justice data shows that the share of domestic
violence homicides committed by dating partners has been rising
for three decades, and boyfriends now commit more homicides
than do spouses. The Supplemental Homicide Reports does not
accurately code for ex-boyfriends, and this is a category that
is also growing. Estimating from our study, we find that
approximately 300 to 500 female intimate partner homicides each
year should be added to the approximately 1,000 already counted
in those Supplemental Homicide Reports.
Bill 1290, the Protecting Domestic Violence and Stalking
Victims Act, would expand our national domestic violence laws
to include both former and current dating partners who together
represented 48 percent of those male domestic violence
perpetrators in our study and, therefore, is an extremely
important way to keep women safe and to save lives.
There is also evidence that State laws to strengthen
firearm prohibitions against domestic abusers reduce intimate
partner homicide. Two separate important studies--one of 46 of
the largest cities in the United States, and one of State-level
data--found that State statutes restricting those under
domestic violence restraining orders from accessing or
possessing firearms are associated with reductions in intimate
partner homicides, driven by a reduction in those committed by
firearms. Vigdor and Mercy's study also found that State laws
that prohibit firearm possession by people under domestic
violence restraining orders, along with entering state domestic
violence restraining orders into that Federal data base,
reduced intimate partner homicide of women by firearms by 12 to
13 percent and decreased overall intimate partner homicide by
10 percent.
In conclusion, women who suffer abuse are among the most
important for society to protect. Congress has an opportunity
to do so by strengthening the laws to keep domestic abusers
from getting guns. Ample scientific evidence also shows that in
doing so you will save lives.
And I want to end with a quote from a woman that I
interviewed who was the mother of one of the women who was
killed in our study, and she said, ``Please let her story be
told. Do not let her death be for nothing.''
Thank you.
[The prepared statement of Ms. Campbell appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Dr. Campbell.
Dr. Malcolm.
STATEMENT OF JOYCE LEE MALCOLM, Ph.D., PATRICK HENRY PROFESSOR
OF CONSTITUTIONAL LAW AND THE SECOND AMENDMENT, GEORGE MASON
UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA
Ms. Malcolm. Yes, first I would like to thank the Committee
for inviting me. It is a real honor to be present at this
important hearing.
I think that we can all agree that we have the same goals
here: that we want to protect victims of domestic violence, and
more generally we are interested in public safety.
The current laws on the books are not perfect, but they
have the great virtue of according with longstanding traditions
of American law by protecting the rights of everyone concerned,
rights that the Supreme Court defines as ``deeply rooted in the
Nation's history and tradition,'' ``fundamental to our scheme
of ordered liberty.'' And with due respect to Chairman
Whitehouse, these bills that are behind this hearing do
violence to the right of the Second Amendment, Fourth Amendment
rights against unreasonable search and seizure, and most
importantly, I think, to due process, providing due process in
the normal way.
I would like to first start with some statistics to put
this whole debate in context. A fact that is very seldom
advertised is that homicides in this country have been down
sharply for the last 20 years, as well as other violent crime.
The last time that the crime rate for serious crime--murder,
rape, robbery, and assault--was this low, gasoline was 29 cents
a gallon. And the average American working person was earning
$5,807. It is hard for us to remember gas at 29 cents a gallon.
The rate of family violence, which is much more the focus
of this hearing, has also fallen between 1993 and 2002, and it
continues to fall. Only one in ten violent victimizations
involve family violence, and most family violence is simple
assault. Less than one-half of 1 percent of the victims are
killed.
The proportion of female homicides during this time period
of women who are killed by guns is also down while women who
have been killed by other means has gone up.
The Blumenthal and Klobuchar bills present various problems
for the right of individuals to keep and bear arms, for the
protection against unreasonable search and seizure, and due
process. There is this new focus on stalking expanding to non-
cohabiting individuals and involving not only serious incidents
of actual violence, but bullying and a wide range of other acts
under a definition of ``harassment,'' which can be verbal and
very vague and seems to often tend to grow depending on what
you regard as harassment. Large numbers of people who are
likely to be convicted or might be convicted of simply verbally
harassing somebody might lose the right to have a firearm.
The most concerning thing, I think, is the change in the
temporary restraining order. The temporary restraining order
would mean that the person who is alleging that they are
endangered, after they file for this, after the mere
allegation, can send the police to the person that they are
citing's home searching for guns or any other weapon that they
find, without any kind of a hearing. In other words, as the Red
Queen in ``Alice in Wonderland'' said, it is, ``Sentence first
and verdict afterwards.'' And that is a true violation of the
right of everyone to be heard. And, in fact, in temporary
restraining order hearings in the past, half of those who have
been cited as being potentially dangerous have been found not
guilty. But all of these people would in the future have their
weapons taken away from them first, and then sometime later
there would be a hearing at which they would be allowed to
produce some kind of evidence to the contrary.
The other aspect that is troubling is making this
retroactive so that anyone who is ever convicted of harassment
or had a temporary restraining order against them would lose
their right to be armed indefinitely. Many people who have
accepted plea bargains on the assumption that they knew what
that entailed would find that they now no longer have a right
to be armed for the rest of their lives.
I think that the intention is there to do good and to
protect women, but I think that both of these bills have the
wrong approach. It is wrong to deprive people of their basic
rights. It is wrong to deprive people of the right of due
process and the opportunity to present evidence before they are
actually treated as if they were guilty and afterwards things
are sorted out.
I would like to just conclude with the majority opinion
written by Justice Scalia in Heller, where he ends by saying,
``the enshrinement of constitutional rights necessarily takes
certain policy choices off the table.'' I think there are other
and better ways that women can be protected without having to
violate the rights of anyone in the process.
Thank you.
[The prepared statement of Ms. Malcolm appears as a
submission for the record.]
Chairman Whitehouse. We now turn to Sheriff Schmaling.
Thank you very much for being here.
STATEMENT OF CHRISTOPHER SCHMALING, SHERIFF,
RACINE COUNTY, RACINE, WISCONSIN
Sheriff Schmaling. Thank you. Thank you, Mr. Chairman.
Chairman Whitehouse, Senator Grassley, and other Members of the
Committee, thank you for hosting this hearing today. It is
quite an honor to be here before you today. My name is
Christopher Schmaling. I am the sheriff of Racine County,
Wisconsin. I have been a law enforcement officer for nearly 20
years. I am a conservative Republican, and I am here today to
ask you to pass two very common-sense laws that will protect
our sisters, our daughters, and our mothers by keeping guns out
of the hands of domestic abusers.
As the top law enforcement officer in Racine County, and
with over two decades of law enforcement experience, I have
seen firsthand the tragic events firsthand. I want to tell you
about one such domestic violence incident, a tragedy that
changed my career.
Back in 2004, Teri Jendusa-Nicolai was violently abused and
left for dead by her ex-husband. After 3 years of a violently
abusive marriage, Teri had the courage to divorce her husband.
She had taken out multiple restraining orders during this
timeframe. On that horrible day, a very cold January day in
2004, he beat her in the head with a baseball bat, and as she
tried to fight back, he then threatened her with a .38 caliber
handgun. He bound and gagged her, filled a garbage can full of
snow, pushed her into the garbage can, and placed her in an
unheated storage locker for 26 hours.
My partner and I were the lead investigators on this
particular case, and through some great breaks and some great
luck and a blessing from above, we were able to rescue Teri
before she died. As a result of this ordeal, Teri had a
miscarriage, and she lost all ten of her toes on both feet due
to frostbite.
Teri is one of the most wonderful people I have ever known
and has been a tremendous advocate for victims of abuse over a
decade since she was nearly killed at gunpoint. We have become
very close since then, and my eyes have been wide open to the
reality of domestic violence and gun violence, as they seem to
go hand in hand. I have also been close with Elvin Daniel, who
is sitting here today, and I have been moved by his sister
Zina's story.
I am proud to say that in Racine County we were the first
in the State to have a full-time domestic violence specialist.
We work closely with domestic violence victims to see how we
can best protect them. Any cop will tell you that domestic
violence calls are the most dangerous calls that law
enforcement officers will respond to. The last thing that the
victim needs and the last thing that my deputies need is a
dangerous abuser armed with illegal weapons.
Abusers routinely threaten to shoot my deputies prior to
our arrival at domestic violence calls. And, in fact, according
to the FBI statistics, 150 law enforcement officers have been
killed in action while responding to domestic disturbances.
I am proud to have worked on a great domestic violence bill
in Wisconsin earlier this year. It was called ``The Safe Act''
that ensures guns are kept out of the hands of domestic
abusers. This bill was passed by a bipartisan majority and
signed by our Republican Governor Scott Walker.
The first bill I am asking you to pass today is the
Protecting Domestic Violence and Stalking Victims Act, S. 1290,
introduced by Senator Klobuchar. This bill would close a
loophole that allows abusive boyfriends to buy and have guns,
simply because they are not married to their victims. And it
would also block people with stalking convictions from having
guns. Dangerous boyfriends can be just as scary as dangerous
husbands; they hit just as hard and they fire their weapons
with the same deadly force. In fact, according to FBI data,
more women are killed in America by their abusive boyfriends
than by their abusive spouses.
This past March, just a couple hours from Racine County,
Cheryl Gilberg was killed by her ex-boyfriend in a domestic
dispute. The killer, a convicted felon, apparently shot Cheryl
with her own gun. According to news reports, she had been
seeking a restraining order at the time of the killing. But in
cases like Cheryl's, a restraining order is not good enough. If
you have never been married to your abuser, Federal law likely
will not stop him from buying or purchasing a gun.
The second bill I am asking you to pass today would require
criminal background checks for gun buyers who shop with
unlicensed sellers. Current Federal law prohibits many abusers
from buying guns, but only requires them to pass a background
check if they shop with a dealer. This gaping hole in the law
simply means that a convicted wife-beater can slip through the
cracks and get a gun by finding a seller who does not own a gun
store.
This is exactly what happened in our State, Dane County,
Wisconsin. Tyrone Adair was a domestic abuser who had been
convicted of battery not once but twice. He was legally
prohibited from possessing a gun because of a restraining
order. So instead of shopping at a gun dealer, he found an ad
for a 9mm Glock in a local newspaper. He reached out to the
seller. They agreed to meet at a hardware store. There was no
background check, though the seller did ask this question, and
I quote: ``You are not going to go out and kill someone, are
you?'' Tyrone Adair used that gun on a horrific murdering
spree. He killed both of his children--they were ages 1 and 2
at the time--and both of their mothers.
We see the terror that abusers create when they are armed.
We see the impact on their wives, their girlfriends, and their
children. We are major proponents of community policing in
Racine County. We have a community of about 200,000 people. And
if I and my officers are on the street, working closely with
these very citizens that we are sworn to protect, I want to
know that our laws are doing everything we can to keep guns out
of abusive hands.
So I am here today to speak for victims of abuse and to
speak for my deputies. I have made it a priority to talk to
victims. I have seen the escalation over the years--yelling,
battery, and, unfortunately, homicide. When an abuser has a
gun, the victims will tell me, ``Sheriff, it is not a question
of if he will use that weapon against me; it is a matter of
when.''
I am asking you today to stand up against abuse by fixing
our out-of-date laws and passing some clear, common-sense
legislation. Thank you for your time.
[The prepared statement of Sheriff Schmaling appears as a
submission for the record.]
Chairman Whitehouse. Thank you very much, Sheriff
Schmaling, and happy birthday to your son.
We will go ahead and hear from Judge McCaffery, and then we
will see how the vote is going, and we may break after that to
go get the two votes in. I want to wait until the very end of
the vote because we have to catch the end of one vote and the
beginning of another. So, Judge McCaffery.
Your microphone, please?
STATEMENT OF HON. SEAMUS P. McCAFFERY, JUSTICE,
SUPREME COURT OF PENNSYLVANIA, HARRISBURG, PENNSYLVANIA
Justice McCaffery. Good morning, and thank you for the
opportunity to address the Members of the Committee about the
pending legislation dealing with the growing epidemic of
domestic violence and, in particular, the Klobuchar and
Blumenthal bills.
It appears to me that the above bills look to strengthen
current Federal domestic violence laws to bring them more in
line with the current laws that many States have dealing with
crimes of violence toward women and same-sex partners, a
clearly laudable goal. Effectively strengthening such laws
would seem to be an even more laudable goal.
I have spent most of my adult life in law enforcement.
Those years include 20 years as a Philadelphia police officer
and a detective, 10 years as a trial judge, 4 years in the
appellate courts, and now I am a Justice of the Supreme Court
of Pennsylvania.
I have dealt with domestic violence at literally every
level of our system. Sadly, I can say with the certainty born
of experience that our law enforcement community finds itself
in a reactive not a proactive posture and operates as a
reactive defense force. By that I mean that more often than
not, Senators, our law enforcement community shows up after the
fact.
I was one of those. I would show up after the fact. I saw
the blood. I went to court. And so much of the time I saw crime
in the streets and people getting victimized in the streets of
our cities, getting victimized in our courtrooms. And that was
one of the--that was the impetus for me to go to law school and
become a jurist, because I really felt that people needed
somebody there who had experienced what goes on in our streets.
Senator, I absolutely agree that we should have dating
partners included within the scope of the protection of the
proposed Klobuchar bill--we have such inclusion in
Pennsylvania. Okay? It is important. As the sheriff said,
dating partners can shoot, they can beat up people just like
anybody else.
But, you know, as Dr. Malcolm points out, I went from being
a cop where I cared about the victims, to being a jurist where
I care about the accused. We have to keep focused on the fact
that we have two parties here: We have the accused and we have
the accuser, the victim. And my goal has always been to have a
level playing field.
You know, one of the things that I always thought was so
needed, so necessary, so wanting was law enforcement's ability
to be there before the abuser got to the victim. When I was a
cop in my day, we did not have that opportunity. It was not
there. But let me tell you something, we can enact all the laws
we want. The bad guys on the streets--and I was out there where
the rubber meets the road, both as a cop, as I said, and as the
judge who created the first ever domestic violence court
program in Pennsylvania because I felt it was so important.
The frustration was as follows: Victims are terrified.
Senators, when they get to court, oftentimes they have memory
loss. They are scared, they are intimidated. They do not have
the support network. In Philadelphia, we are lucky we do.
Philadelphia is one of the more progressive cities around. But
just as an example, only 35 percent of our preliminary PFAs
become permanent--35 percent. Why? People are not showing up.
They are afraid.
Of the PFAs, of the temporary ones, 25 percent include an
order barring possession of a firearm. Only 25 percent. What is
going on here?
Well, again the frustration comes in that we have to
protect our victims. How do we do that? Once upon a time,
unless you had a crystal ball, you could not. But today,
Senators, we have the technology to give law enforcement the
capabilities. And by that, what do I mean? Right now, probation
and parole officers across this country have GPS that is
available to them so they can track people under their
supervision.
Let us just say for discussion purposes right now--and keep
in mind domestic violence is not just about firearms. The
overall majority of domestic violence cases that I saw both on
the street and in the courts involved fists, knives, and blunt
objects. It is a real, major epidemic in this country. We have
legislation out there that curtails more and more people's
ability to have a gun, but yet domestic violence is still out
there.
People who want to get a gun or want to stab you, they are
going to do it. They are going to make it happen, despite
whatever laws you put on the books. To me, what I think is
important is being proactive. And by that I mean right now,
through technology, we can give law enforcement officers GPS-
assisted support. So the actual patrol officer in the
neighborhood, moments away from the victim, can know if a
stalker, who is now wearing a GPS device on his ankle, on his
wrist, is now approaching within a certain proximity of the
victim. It comes up on the victim's smartphone that somebody
has now crossed the threshold, whether it is a mile or a block.
The same officer in the neighborhood is notified. The officer
then responds. The officer gets there, and then the violence
can be prevented.
It is about prevention to me, because if we do not have
prevention, once again, what are we going to do? Show up after
the fact? Pick up the pieces? Transport the body to the morgue?
That is not what we want.
Personally, I cannot believe that we do not have bipartisan
legislation. Who on Earth can stand up and say that they are
really not opposed to domestic violence? Every one of us has a
mother, some have wives, some have daughters, some have
granddaughters. None of us want to see anything like this
happening out there. Anything. But we need to step up to the
plate.
You know, legislation is great, and this is a beautiful
place here. It really is. First time here. But at the end of
the day, tonight, somewhere in North Philly in a row home, some
woman is going to be battered, okay? And that same woman has
probably been battered for years. And she looks at her three,
four, five children, and she cannot escape. She cannot escape.
And if we take it down to court, what do we get? Now they hug
and kiss. The emotions are down. Somebody talks to the victim
and the case disappears. We have a frustrated prosecutor and an
even more frustrated court.
So my point is we need to do things that are really going
to make things happen. You want to send a message out there?
You put that bracelet on that abuser. You come within a mile of
that victim, and not only will you be locked up, but it will be
strict, it will be swift, and it will be really, really bad for
you. You want to talk about deterrence? It can happen.
So, you know, again, my point to you all is there are ways
that we can address domestic violence well beyond violence
dealing with guns. Some of our States with some of the
strictest gun laws still have a growing epidemic in domestic
violence.
With that being said, my position is, quite honestly, I
think that--I really strongly support the concept of bringing
in the dating partners. You know, it is important for law
enforcement. Again, our State has it. I cannot speak for
others, obviously, and that being said, I will just forgo my
last 2 minutes.
[The prepared statement of Justice McCaffery appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Judge McCaffery.
I think we should probably take a run for the vote, and so
if, Mr. Daniel, you would be patient with us, we will be
recessed for probably 10 to 15 minutes to get over to the floor
and back. As soon as I am back, we will come back into session.
[Whereupon, at 11:07 a.m., the Committee was recessed.]
[Whereupon, at 11:29 a.m., the Committee reconvened.]
Chairman Whitehouse. No rush. We can take a moment to get
quietly back into our places. Thank you for your patience, and
let me now turn to Mr. Daniel, with our appreciation and our
apologies for the interruption. Please proceed with your
testimony.
STATEMENT OF ELVIN DANIEL, McHENRY, ILLINOIS
Mr. Daniel. Thank you, sir. Good morning.
Chairman Whitehouse. Good morning.
Mr. Daniel. Thank you, Chairman Whitehouse, Chairman Leahy,
Senator Grassley----
Chairman Whitehouse. Is your microphone on, Mr. Daniel?
Mr. Daniel. And I was reminded to turn it on before I
started. Thank you, Chairman Whitehouse, Chairman Leahy,
Senator Grassley, and the Members of the Judiciary Committee,
for holding this important hearing.
My name is Elvin Daniel. I am a Republican. I am an avid
hunter, a gun owner, and I enjoy using my guns for target
practice with my family and friends. I am a strong supporter of
the Second Amendment and an NRA member. I also believe in
common-sense, sensible gun laws.
I am here today to speak for my sister, Zina. I speak for
Zina and my entire family because Zina is not here to speak for
herself.
Zina loved life. All she wanted to do was to be a good
mother to her two daughters. She loved Disney World, Rick
Springfield, and helping other people. As a matter of fact, her
last moments, she was begging her estranged husband, ``Please,
leave these people alone.''
She was a beautiful person, full of goodness, and some good
will come out of her death.
On October 21, 2012, I received a phone call that no one
should ever have to receive. I was told that my sister had been
shot and killed by her estranged husband. We later learned that
Radcliffe had bought the gun through Armslist.com, an
irresponsible Internet site that does not require background
checks. It has been nearly 2 years since Zina was murdered, and
it is heartbreaking to know that our weak gun laws continue to
allow dangerous abusers to buy guns without a background check.
Zina was married for 13 years and eventually left her
husband because he abused her, physically and mentally. He
continued to terrorize Zina, slashing her tires while she was
at work, and threatening her physically. Zina went to court and
obtained a protective order. She told the judge, ``Your Honor,
I do not want to die. I just do not want to die.''
Under Federal law, this protective order prohibited
Radcliffe from buying a gun. If he had tried to buy a gun from
a licensed dealer, he would have been denied. He knew that. So
he chose to go through an unlicensed dealer to buy his gun.
He went on Armslist.com and posted an ad saying, ``Serious
buyer looking to buy a gun ASAP.'' Within hours, he found an
unlicensed seller, and they met at a McDonald's parking lot and
exchanged $500 cash for the gun that he used the next morning.
This was all after the protective order was issued against
him and entered in the NICS system. The next day Radcliffe
stormed into the Azana Spa where Zina worked, shot seven
people, murdered my sister, Zina, and two of her co-workers,
injuring four others before he took his own life. I am
convinced that he deliberately bought the gun from an
unlicensed dealer because he knew he could not pass a
background check. Had there been a background check done,
chances are my sister Zina would still be here with us.
Now, I am helping to care for my two nieces who lost their
mother and who will have to grow up without her. I look at my
parents, and especially my father, who lost his baby daughter.
I am here today for Zina and for the stories like Zina's
that happen every day because of the serious gaps in our gun
laws that continue to put women's lives in danger.
I believe that there are two steps that Congress could and
should take to save women's lives: require background checks
for all gun sales, and keep guns out of the hands of abusive
dating partners and stalkers.
I am grateful for the opportunity to share my sister's
story with you today. She was a loving mom, a terrific sister.
For nearly 2 years now, my family has lived a nightmare. Every
happy family milestone is now covered with sadness. Mother's
Day is now a day to survive rather than celebrate, because we
know that Zina is not here to watch over her girls. She will
not be here to take pictures of her youngest daughter dressed
up for prom or to congratulate her daughters on their wedding
day and dance with them. Those moments will be happy and sad at
the same time.
I am committed to honoring Zina's memory by working to
reduce the number of women who are killed by preventable and
senseless guns.
You have the power to pass the laws that we need to keep
our sisters and mothers and daughters safe, and so I am here
today to ask you to remember Zina when you think about taking
on this issue.
Thank you for your time and the opportunity to let me speak
today. I would be happy to answer any questions. Thank you.
[The prepared statement of Mr. Daniel appears as a
submission for the record.]
Chairman Whitehouse. Thank you, Mr. Daniel. You have very
well and very powerfully represented your sister today in this
hearing room.
As the Chairman, I am going to be here until the end, so I
will reserve my questions and allow my colleagues to proceed
ahead of me, and I will recognize first my friend, the
distinguished Senator from Minnesota, Amy Klobuchar.
Senator Klobuchar. Well, thank you very much, Mr. Chairman.
And thank you to all the witnesses, and particularly Mr.
Daniel, thank you so much. And I wear your sister's bracelet
that you gave me today with pride, and she will not be
forgotten.
Mr. Daniel. Thank you.
Senator Klobuchar. And I think one of the things that is
most powerful about your testimony is the fact that you are a
hunter, a gun owner, a member of the NRA. And could you talk a
little bit about how you reconcile that, which I think has been
a real issue for some of our colleagues in trying to understand
how we can reconcile, those of us that support hunting, with
the fact that we are simply looking at some common-sense rules
here, for instance, making sure that we include dating partners
when we look at the domestic violence rules, making sure we
have good background checks in place, and looking at making
sure that people who are convicted of stalking are also
included in these prohibitions? Do you want to talk about how
you reconcile that in your mind?
Mr. Daniel. You know, it is totally different. I mean,
doing a background check has nothing to do with infringing on
my Second Amendment. Me--as a gun owner, I want to make sure
that I keep the guns out of the hands of the wrong people. I do
not want criminals or abusers to get their hands on guns. And I
think every gun owner should feel the same way as I do.
I go through background checks every time I buy a gun, and
actually I feel that everybody should go through a background
check without a doubt. It takes 5 minutes, fill out a form, and
in my case in Illinois, wait 3 days. And usually I get the gun,
and I do not get to shoot it for 2 or 3 weeks until I gather my
family or whoever, the friends that are shooting.
So to me, common sense says that we should have background
checks on all gun sales.
Senator Klobuchar. Thank you very much.
Sheriff, thank you for your testimony from my neighboring
State of Wisconsin. My mom was born in Wisconsin. And I think
you also are from a State that understands how important
hunting is, and you identified yourself as a conservative
Republican as well. And do you want to talk about how you have
been able to reconcile that hunting--incredibly important
hunting culture in your State with your support for my bill and
the stalking and extending the domestic prohibitions to dating
partners?
Sheriff Schmaling. Absolutely. Thank you, Senator. It is
true, I am a conservative Republican, and I have said this
rather openly in my community. I have nothing to fear and we
should have nothing to fear of law-abiding citizens who choose
to arm themselves. As a sheriff, a constitutional officer, I
have sworn to protect the Wisconsin Constitution as well as the
United States Constitution. So coming from a family of hunters,
myself being one of them, and a gun owner, I understand the
importance of preserving our Second Amendment.
But the key words here are ``law-abiding citizens,'' and a
law enforcement officer, that alert is even especially
heightened because we are the ones on the front line, the boots
on the ground, if you will, responding to these very dangerous
calls. And if you look at the statistics provided by the FBI,
150 law enforcement officers have lost their lives responding
to these types of calls.
Senator Klobuchar. Exactly. Do you want to talk a little
bit about what you have seen just as law enforcement and the
cases that you used as an example of the woman being found and
put into a freezing garage in the snow and who clearly would
have died without your intervention and your good detective
work? Could you talk a little bit about how this sort of dating
arrangements and the stalking and those kinds of things have
evolved in your time as law enforcement? I am particularly
looking at how stalking works. I think some people think, oh,
if you are just sending a bunch of emails, that is not scary to
people. And also how over time it is not just married people,
there are people that date that can also be victims.
Sheriff Schmaling. Thank you. I certainly can answer that.
What I have seen, at least in our community of Racine County,
and speaking with my fellow sheriffs of the State, we have seen
an uprise naturally in individuals who cohabitate together,
boyfriends and girlfriends, as opposed to being married, and
the domestic violence, as I mentioned in my testimony, is just
as vicious and just as dangerous, whether they are married or
not.
When we look at with respect to stalking and looking at
some statistics, from 2005 to 2013 the State of Wisconsin
suffered 29 domestic violence homicides; of those 29, all of
them precipitated by history of stalking behavior.
Senator Klobuchar. Very good. And for your law enforcement
officers, I think when most people think about law enforcement
officers out there doing their jobs, I do not actually think--
if you asked them, well, what do you think some of the most
dangerous calls they get, they would probably say robbery, they
would probably maybe think about drunk driving, all those kinds
of things. I am not sure they would say a domestic violence
call would endanger an officer's life. Do you want to elaborate
on that and why that is a fact?
Sheriff Schmaling. Absolutely. As we mentioned about the
FBI statistics of 150 law enforcement officers losing their
lives, that is a well-known fact, and all the police academies,
the way we treat and train our law enforcement officials today,
undoubtedly domestic violence, domestic disturbance calls are
the most dangerous. We are entering the homes of individuals.
We are intervening in their conversations. We are hearing
intimate details. Tensions, emotions run high during those
situations, and oftentimes when a gun is involved, it turns to
be deadly consequences or violence is naturally always present.
Senator Klobuchar. It is like my story of Office Schneider
and just showing up, as your officers do every day when they
get--when the department gets called, they cannot question it.
They just show up at the door.
Sheriff Schmaling. It is unfortunate, and there are
naturally many, many stories, but I have literally been on
calls where the offender, the abuser, has told the dispatcher
that he will shoot law enforcement as they arrive at these
calls. We just had one 2 weeks ago where the offender indicated
he planned to shoot every law enforcement officer that arrived
at his home. So they are very, very dangerous calls.
Senator Klobuchar. Very good.
Justice McCaffery, thank you for being here today, and
thank you for your thoughtful words, and I do appreciate that
need to enforce the laws we have on the books in my old job and
do everything you can to do that, which we valiantly did. But I
also appreciate you understanding that the laws have to be as
up-to-date as the people that are breaking them.
Justice McCaffery. Absolutely.
Senator Klobuchar. And I think what the sheriff was
pointing out, which you understand, is that there are a lot of
these dating partners now that get involved in these--basically
in violence or domestic abuse in the same way that people that
were married did. And so I appreciate your willingness to look
at that piece of our bill.
Justice McCaffery. Absolutely.
Senator Klobuchar. Thank you very much.
Dr. Campbell, I just wanted to talk a little bit about the
link--you have done a lot of research here--the link between
the stalking and the violence against women. Could you talk
about that and what your research has shown?
Ms. Campbell. Yes. In our national case control study that
compared women who have been killed with other abused women in
those same cities, we found that the vast majority of the women
who were killed had been stalked beforehand. Even when there
was no prior physical violence, the majority had been stalked.
So we found that of the ones that were abused and then there
was a murder afterwards, it was 87 percent of them were
stalked. And the ones that were not abused, it was 58 percent.
So, clearly, stalking was part of those pictures, as was
the gun ownership. And that combination of domestic violence,
stalking, and guns is extremely dangerous. And as you say,
people think that stalking means, you know, harassing kinds of
texting and that only. And when stalking laws are violated, it
is when someone has been texted 40 times a day, and with
threatening texts and clearly unwanted texts. And most often
the stalking, though, especially with the homicidal cases, was
actually following her, was doing things like slashing tires
that was mentioned in one of the cases, destroying property,
was not just the verbal harassment, not just the emails and the
texts.
Senator Klobuchar. Because one of the criticisms was that,
you know, in modern days now, people do not always call. They
oftentimes text things or send emails. One of the criticisms
was, well, that is not that scary if they do that by text. But
you do see a lot of that in stalking behavior in the modern
age.
Ms. Campbell. Absolutely, and it is threatening texts, it
is threatening emails, not----
Senator Klobuchar. To make that qualification of what is
stalking.
Ms. Campbell. Absolutely, for stalking, threatening and
unwanted texts and emails, and continual.
Senator Klobuchar. Okay. Well, I think my time is up. I may
come back in a second round, but thank you very much.
Chairman Whitehouse. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. Thank you
again for holding this hearing. And thank you to all of our
expert panel.
I want to mention that I am very pleased to be working with
my partner from Connecticut, Senator Chris Murphy, who has been
a real leader in this area, and I know he joins me in thanking
the Jackson family for being here today.
Let me ask, Dr. Campbell, based on your research, do women
take the decision lightly to seek a temporary restraining
order?
Ms. Campbell. Absolutely not, and neither do judges in
granting them. I talk with many judges, and women very
carefully consider their options, and many women go for
temporary protective orders and do not get them. Judges are
very careful in listening to what evidence is available around
the temporary restraining orders, so they are neither sought
nor granted lightly.
Senator Blumenthal. And I believe Judge McCaffery testified
that temporary restraining orders often are not made permanent
because women are afraid to appear for the hearing. Is that
confirmed by your research?
Ms. Campbell. Absolutely. That is what we find. And
oftentimes they are afraid because they have been threatened
with a weapon or threatened with a gun. That is the most scary
thing for women in terms of, you know, reinforcing that fear
and making it that they are less able to actually seek that
long-term protective order.
We also find that women are afraid that the hearing that
goes with the long-term protective order, that is the time that
he will know where she is, and that can be an increased danger
unless we take some protective actions around that. And if she
knew that he was not allowed to have a gun, then she could be
less afraid of that access to her at the hearing.
Senator Blumenthal. As you may know, in Lori Jackson's
case, there was a temporary restraining order, which was going
to be made permanent literally the day after she was gunned
down by her estranged husband. If that restraining order had
resulted in those guns being taken from her estranged husband,
I believe that she might well be alive today.
Ms. Campbell. I agree with you, and we just had a case in
Maryland with a similar kind of an incident. And, fortunately
now in Maryland, we just passed a bill where we can deny
possession of guns to persons who have had a temporary
restraining order against them. But it is not true in all
States, and so it is an issue for many women.
Senator Blumenthal. In Lori Jackson's case, her estranged
husband actually traveled to another State where guns might
have been obtained. Wouldn't it make sense to have a uniform
national rule that takes guns away from men or women who are
under temporary as well as permanent restraining orders?
Ms. Campbell. I believe so.
Senator Blumenthal. And, Sheriff, let me ask you, based on
your expertise, whether you agree that a uniform national
standard would make sense. I know you are a local law
enforcement official, but wouldn't your job be made more
effective if there were such a standard?
Sheriff Schmaling. Absolutely. I think we need to look at
why victims seek these protection orders. They do so because
they have a reasonable fear for their safety. They are not
taken lightly. I think I have heard that term. Again, I can
only speak for my community, but the victims that I have spoken
to seek these very important pieces of paper, these documents,
these protective orders because they fear for their safety.
Irrespective if they live in Racine County or Danbury,
Connecticut, that fear is real.
Senator Blumenthal. Can you tell me again, Dr. Campbell, or
any of the other folks who are on the panel, whether the danger
to a potential victim increases after she or he indicates she
is leaving, she wants a divorce, the relationship is over? Does
the danger increase? Is it higher then?
Ms. Campbell. Yes, it definitely is, according to our study
and other research. It definitely increases the risk of a
homicide, especially in the immediate 3 months and full first
year after she leaves an abusive relationship. So it does
heighten the danger, which says to us that that is a time
period when we need to be particularly vigilant as communities,
that we need to--in order to prevent those homicides. And the
onus of responsibility should not be on her. We need to bring
the full bear of the law and implement those laws around the
country.
Senator Blumenthal. This panel has been extraordinarily
valuable in reinforcing and evidencing, providing objective
facts and research in support of what we know from our
experience and from the tragic stories that are before us in
this audience, Lori Jackson's family among them, and I want to
thank all of you for being here today. It has given us impetus
and momentum in this effort to solve this problem, which we
will do. Thank you very much.
Thank you, Mr. Chairman.
Chairman Whitehouse. I turn now to our distinguished
Ranking Member, Senator Grassley.
Senator Grassley. Mr. Chairman, before the clock starts, I
would like to apologize particularly to Mr. Daniel for missing
his testimony and say that we are sorry for the loss that you
talked about.
Also to apologize to everybody here because this is an
apology I have done for the third time in the last half-hour,
first of all, to a news conference with Senator Gillibrand and
then to a group of people that I worked with very closely on
foster care. It is kind of a rude way to treat all you folks
that come here when we have to have two votes and then two
intervening things, but I appreciate hopefully your
understanding that.
My first question is going to be to Professor Malcolm. A
Kentucky law took effect this month that allows people who
receive an emergency protective order and pass a background
check to obtain a provisional concealed carry permit in 1 day.
I view this as a law that enables victims to protect themselves
even when the police are not around and when their abuser's
information would not show up in a background check.
So my question: Professor Malcolm, do you support the
ability of people who obtain emergency protective orders to
quickly obtain a provisional concealed carry permit?
Ms. Malcolm. Yes, I do. I think that is the perfect way to
really help women who feel endangered. We have heard a lot of
stories today about people who had temporary restraining orders
or permanent restraining orders and, nonetheless, were harmed
by the person who was to be restrained.
You mentioned a list of States that have not submitted
their records for this background check that so many people are
depending on, so it makes it much easier for someone who should
not get a gun to get it.
I think the ultimate protection has to be the individual,
and no police department can protect everyone all the time. To
allow women to have a firearm just as a deterrent or ultimately
to absolutely protect themselves I think is essential. I think
it is a great idea.
Senator Grassley. Justice McCaffery, you have been a police
officer and trial judge who issued many temporary restraining
orders. Sometimes you ordered that the person subject to the
order to surrender his gun. Sometimes you did not so order.
Based on your experiences, what practical problems do you think
would arise if the bills before the Committee addressing
domestic violence and guns were to be enacted into law.
Justice McCaffery. Well, Senator, first off, let me say
that we have these types of laws on the books in our State. So
much of it comes down to enforcement, and let me just give you
an idea.
Dr. Campbell pointed out how sometimes it can be somewhat
tough for a victim to get a PFA. Understand something, and this
is something that I hope our former prosecutor, Senator,
understands. The jurist is there to make sure that there is a
level playing field. The jurist must make sure that whatever
the allegations are, they are factual, they are for real, they
are not made up, and they are not gaming the system.
We have Federal orders that constrain the number of
prisoners we can put in our county jails. We have State laws
now coming down with, again, additional prohibitions. Where are
we going to put these people? What we keep hearing is we have
to downplay--or downgrade, I should say, some of the laws so
that we do not put people in State custody, because why? Our
second largest budget item in Pennsylvania is our prisons.
My point is the more laws we have, the more people we are
going to convict, the more people are going to be sent to jail.
Where are we going to put them? We keep getting told that we do
not have the space.
One of the reasons why I started so many diversion programs
in Pennsylvania was to intervene early on, divert them out of
the system, keep them out of the jails, and give them the type
of treatment they need so as to cut down on that need to put
people in jail.
Understand something, Senator. One of the things we have to
worry about on the bench are people that game the system. And
what do I mean by that? Right now in Philadelphia County, you
have approximately 10,000 to 12,000 custody cases waiting to be
adjudicated. That means if you file today, your custody case
may not be up until April 2015. Think about that.
Now, some of the people who know how to game the system
will pick up the phone and call 911, and they basically say,
``I am being abused,'' ``I am being beaten,'' or, ``I am being
threatened by a firearm.'' What happens? Those cases are
immediately jumped right to the beginning of the list. It is
the job of the judge to make sure that these people are not
gaming that system, because, otherwise, we have an accused who
really is not doing what they are being accused of. And that is
the role of the jurist.
Senator Grassley. This will have to be my last question. I
appreciate, Sheriff Schmaling, your testimony today ``to
require criminal background checks and checks by unlicensed
dealers'' as well as block dating violence abusers and stalkers
who own guns. I note, however, that only last year in an
interview with the Journal Times, you said, ``I am opposed to
any regulation that would require a farmer in Waterford, for
example, to somehow conduct and/or pay for a background check
on a neighboring farmer to whom he wanted to sell a firearm.''
Continuing the quote, ``Rather than trying to strip away our
constitutional rights, I believe law makers need to define
private sales and retail sales. More regulation will increase
straw purchases. If a criminal is bent on doing evil, he or she
will simply find a weapon on the streets or solicit a third
party to make the weapon purchase.''
In the same interview, you opposed as ineffective limiting
magazines in capacities of ten bullets or more, and in an
accompanying--and I completely agree with you, Sheriff, when
you said in that interview, ``We must not allow the actions of
a few cowards who are bent on evil to promote any laws that
infringe upon constitutional liberties of responsible and law-
abiding citizens.''
So my question is: Why do you now say that you are in favor
of the universal background checks and believe that they would
stop criminals from obtaining guns?
Sheriff Schmaling. Well, very simply put, and you said it
best, as I have, ``law-abiding citizens.'' ``Law-abiding
citizens.'' I have always said--and I have said this before
this Committee--that I have nothing to fear of law-abiding
citizens who wish to arm themselves. I preserve the
Constitution, especially the Second Amendment. When we have
individuals who are bent on evil, bent on breaking the laws,
bent on abusing women, they should be prevented from purchasing
firearms.
Senator Grassley. Okay. Thank you very much. Thanks to all
of you.
Chairman Whitehouse. Thank you very much.
Let me ask Dr. Campbell first, as Senator Grassley just
indicated, if somebody is bent on murder, there are all sorts
of weapons that can be used to kill another human being. Why is
it that guns in particular create the added risk of violence
that you have chronicled in your work?
Ms. Campbell. Well, for one thing, the destruction of a
gunshot to the human body is far greater than any of those
other weapons. Yes, you can kill with other weapons, but it
takes far more stab wounds, more carefully placed, et cetera.
Chairman Whitehouse. So they are much more lethal.
Ms. Campbell. Much more lethal. And, second, I have
examined thousands of homicide records in the police
department. In many of those cases, it is clear that there may
have been a domestic violence incident, maybe someone would
have gotten hurt, but no one would have died if there was not a
gun accessible, way too handy, already there, oftentimes not a
gun that anybody went out and bought the day before--although
that does happen, too--but a gun that has been in that home
that the perpetrator of domestic violence has owned for years.
And it was easy to get at, it was all too available in a moment
of extreme anger, and, therefore, someone died where they would
not have otherwise.
So those are the two things that I see.
Chairman Whitehouse. Sheriff Schmaling, you talked about
the environment of tension and high emotion in a domestic
violence scene. If it is dangerous even to a trained, armed law
enforcement officer, what does that say about that environment
for the victim?
Sheriff Schmaling. Naturally, I think we have talked about
the sheer violence in domestic violence calls and the numbers
are real. The law enforcement officers that are murdered each
year responding to these types of calls, they are inherently
dangerous. And you are correct, we are armed, and we are
trained to handle situations. But we are knowingly stepping
into situation where when a firearm is present, the increase in
likelihood of someone losing their life is that much greater.
Chairman Whitehouse. And how would you respond to Dr.
Malcolm suggesting that adding yet another firearm into the
equation by arming the victim would make this a safer situation
for either the victim or your officers?
Sheriff Schmaling. Suggesting that the victims should arm
themselves?
Chairman Whitehouse. Yes.
Sheriff Schmaling. Well, you know, I shared with you a
story just a couple hours from Racine County where a victim's
gun was removed from her by the abuser and she was murdered
with her own weapon. My experience--let me just give you a
little bit of history on Racine County. My jail houses about
876 prisoners. Each year we book in 10,000 citizens on average.
Ten thousand. Of those 10,000, about 10 to 12 percent of those
are domestic violence-related arrests. Every one of those
arrests leave behind victims, typically women, typically
children. Every one of those calls, we speak to those victims,
naturally. We get their statements. I was a detective for 10
years. I have interviewed countless victims of domestic
violence. Never once have I heard a victim tell me, ``Where is
the nearest gun shop? Let me arm myself because I need to do
this.'' They look toward the system, they look to law
enforcement to do our job and to keep them safe.
Chairman Whitehouse. Dr. Malcolm, you are a professor of
constitutional law, are you not?
Ms. Malcolm. Yes.
Chairman Whitehouse. Let me ask you two questions of
constitutional law. The first is: Does making sure that people
who are lawfully required to have background checks actually
get a background check offend any constitutional principle that
you can define?
Ms. Malcolm. No. But I think that the questions on
background checks can be very intrusive, and the Canadian----
Chairman Whitehouse. I am just asking, to the extent that
they are lawful, as they are, then having it be enforced
clearly that is no constitutional problem there.
Ms. Malcolm. Right.
Chairman Whitehouse. The second question is: Where existing
domestic violence laws otherwise restrict gun possession by a
stalker or an abuser, does the difference between a cohabiting
victim and a non-cohabiting victim raise any constitutional
issues?
Ms. Malcolm. No.
Chairman Whitehouse. Okay.
Ms. Malcolm. Can I add something?
Chairman Whitehouse. Well, my time is up, and so let me
turn to Senator Durbin.
[Laughter.]
Senator Durbin. Mr. Daniel, I am sorry that I was not here
to hear your testimony, but I have read it carefully, and I
thank you again for being here to tell the tragic story of your
sister.
And from what I have gleaned from your testimony, the key
element here was that her former husband had access to a gun
over the Internet, where he was not subject to any kind of
background check. Had he been subject to one, he might have
been caught and stopped from purchasing the weapon.
Mr. Daniel. Had he gone to a Federal licensed dealer, he
would have definitely been denied access because his record was
entered already as an abuser.
Senator Durbin. You probably said this for the record, but
it bears repeating if you have not. As a person who owns guns,
a member of the NRA, as you said, conservative by nature, are
you worried, offended, or do you have any concerns over a
requirement in the law that would close the gun show loophole
and would, in fact, require that we inquire of all purchasers,
whether they are, in fact, prohibited from purchase because of
a conviction of a felony or because of a state of mental
instability?
Mr. Daniel. None whatsoever, Senator. I believe most of gun
owners would agree with me that there should be a background
check done on all gun sales regardless.
Senator Durbin. Mr. Daniel, I am from downstate Illinois.
Owning guns is part of growing up and part of most families,
and they would agree with you.
Mr. Daniel. Most of my friends are hunters, NRA members,
and we often speak of this, and I have not had a person yet
say, ``No. Why do you want to do this?'' Just to me it is
common sense that as a gun owner I certainly do not want guns
to fall into the hands of criminals or abusers, because it
makes the rest of us look bad.
Senator Durbin. Professor Malcolm, do you believe that
victims of domestic abuse are safer if their abusers are
permitted to carry guns while they are the subject of temporary
restraining orders? You have to turn your microphone on.
Ms. Malcolm. Sorry. I think that to know that that person
actually is an abuser, he is entitled--and I am assuming it is
a he. He is entitled to have a hearing first before his gun or
any other weapon is taken away.
Senator Durbin. Doesn't the issuance of a temporary
restraining order suggest in most cases a hearing?
Ms. Malcolm. It does, but not in these bills. They are able
to accuse the person, their guns or weapons are taken away, and
then they have the hearing.
Senator Durbin. But in these bills, we are talking about
convicted stalkers, convicted domestic violence perpetrators,
and those who are subject in the Blumenthal bill to a temporary
restraining order. In each of those cases, aren't we talking
about a court hearing before the determination?
Ms. Malcolm. We have been in the past. I think that this
law would change it so that in order to protect the woman,
there is this opportunity to make the allegation that guns get
taken away and then they have the hearing.
Senator Durbin. There is no question that there can be ex
parte hearings because in some instances, the person who is the
subject of the order will not appear. That is a reality. I have
been through that many years ago when I practiced law. So are
we in a situation now where a woman terrorized by a boyfriend
or former spouse is at his mercy as long as he refuses to come
to court by your analysis?
Ms. Malcolm. No. I think once you agree to hold the
hearing, if he does not show up, then at least you have given
him the opportunity to be heard, so I think that that provides
a fair chance for evidence to come out on both sides. That is a
concern.
Senator Durbin. And once the temporary restraining order is
issued to protect the woman--we are using the case of a woman
here--to protect the woman from the stalker, the abuser, the
person who is perpetrating domestic violence, once that is
issued, do you still quarrel with the notion that we should at
that point take the gun away from that person?
Ms. Malcolm. No. I think that once there has been a fair
hearing and evidence has been presented, then if this person
does seem to be really posing a threat, I think that that is
fair.
Senator Durbin. I would like to ask, Dr. Campbell, what you
think about this argument, the course of hearings and such,
while we are dealing with perhaps a woman who has been
terrorized or has evidence of abuse to present to the court.
Ms. Campbell. In order to obtain a temporary order of
protection, or an emergency order they are sometimes called in
some States, there is a hearing. A judge has to issue that
temporary order. The permanent or long-term orders are--there
is a fuller hearing, and that is when perpetrators have the
opportunity to appear.
Senator Durbin. I have been through this. Anyone who has
had a domestic practice has gotten a phone call, you know, ``I
am scared of this guy.'' It does not happen often, thank
goodness. It was not in my practice. But it does happen. The
first instinct of a lawyer, the first instinct of most persons,
protect the person who is being threatened. Argue it out in
court later on, but first protect the person who is being
threatened, the children who are being threatened. I think that
is the premise of this whole discussion.
Ms. Campbell. Right, and a judge does have to issue that. A
judge, like we have heard here, who is concerned with a level
playing field in issuing that order, wants to hear evidence
before that temporary order is issued.
Senator Durbin. Mr. Chairman, I want to thank you for this
hearing and Senator Klobuchar for sponsoring this important
bill, which I certainly support in its entirety. It is sad to
comment in this day and age that this is one of the few
hearings on the subject and that it has been over a year since
we have seriously debated this matter on the floor of the
United States Senate. While gun violence perpetrated by
contractors, facilitated by straw purchasers, sadly the result
of a system which does not protect victims like mothers, women,
and children, continues.
Thank you for calling our attention to it today. I hope it
will inspire us to do something.
Chairman Whitehouse. You, Senator Durbin, have been a
leading advocate in the Senate in this area for a very long
time, and your home State of Illinois was extraordinarily ably
represented on the panel by Mr. Daniel. So Illinois shines
today in this hearing room.
I will turn now to Senator Klobuchar. We are going to have
a second round of questioning, and then we have to break up
before 1 o'clock.
Senator Klobuchar. Thank you very much, Mr. Chairman.
Dr. Malcolm, I know you wanted to follow up on something
that Senator Whitehouse was focusing on when his time ran out.
I wanted to get at this issue, and maybe this is what it is
about. I am supportive and a cosponsor of Senator Blumenthal's
bill. I think it is a good idea on the temporary restraining
orders and very important.
But let us just put that aside for right now and talk about
permanent restraining orders that are in the law, the Federal
law right now. If you get a permanent restraining order, then
you cannot get a gun. Do you support that?
Ms. Malcolm. Yes, I do.
Senator Klobuchar. Okay. Great. And then if you would
extend that to dating partners--see, this is what I want to get
at, this issue that Justice McCaffery and the sheriff have
identified here, which is what my bill does. A big part of my
bill was extending that definition of people who get the
restraining orders or get a conviction to be victims who are
dating partners. Do you support that piece of it?
Ms. Malcolm. I think after there is a full hearing so that
all the evidence----
Senator Klobuchar. But there would be, by its nature there
is a full hearing when you get a permanent restraining order.
Ms. Malcolm. I think that that is fair. I do not think it
should be retroactive to everybody who has ever been convicted
in the past or accepted a guilty plea. But I think that after a
full hearing, then that is reasonable.
Senator Klobuchar. The other thing I was thinking about,
and I think the numbers you gave on the reduction of crime
rates--and I wanted to get Dr. Campbell's view of that because
I know that some of the work we have done here with violence
against women and the work that Justice McCaffery has done when
he was in law enforcement and doing more--we have a domestic
violence court in Minnesota. Certainly the sheriff talked about
what they have been doing in Wisconsin under his leadership--
has made a difference, and we have seen some reduction in those
rates, and I wondered if, Dr. Campbell, you would comment on
that, and comment particularly on domestic violence and what we
are still seeing, however, in terms of the numbers.
Ms. Campbell. We are extremely pleased and I think we
should all be very proud that the domestic violence homicides
have gone down. But, clearly, from the data, they have gone
down in part, in great part because of the gun restrictions
that were put on known domestic violence offenders, and that
has been upheld by the Supreme Court.
That is clear that that is where those reductions have come
from, and yes, we need to do more to reduce the domestic
violence homicides by other means, to be proactive, to be
preventive. But we can continue to reduce the domestic violence
homicides with guns if we continue to expand the legislation
that allows us to restrict possession.
Senator Klobuchar. To me, this looks at just refining the
law as we see when things change and you have a lot of people
that date that still get involved in domestic violence. And,
also, when I hear these--because I know as a former prosecutor,
you would always want to get out there with, hey, we reduced
crime, great, we have done this and this. But, in fact, when
you are victim of crime, as Mr. Daniel knows, those states do
not mean anything to you, when it is your sister who is killed,
or when it is your child who is killed.
And so the way I look at this is it is a way to build on
some of the work that has been done in the domestic violence
field and to understand that we see a changing situation with
the population. And laws cannot be static. We have to be as
sophisticated as the people that are breaking them, and that is
what this is really about. And I just wondered if you could
maybe share a comment on that.
Sheriff Schmaling. Well, when you look at--first of all,
let me ask you, what is your question with respect----
Senator Klobuchar. The question is about how the situations
have changed with dating partners, the need to update, and then
I think, second, in part because of the Internet, which has
some great things but also has meant there is just more and
more stalking and there is more and more ways for people to
track people down, whereas maybe in the past they could just
kind of hide and get a new address or a new phone number, why
we would need to have a bill like this pass.
Sheriff Schmaling. Certainly. And I can tell you from what
I have seen--and I have testified about this earlier--we are
seeing more dating partner situations as opposed to spouses
involved in domestic violence cases. And we have heard the
stats, that more women are killed by their abusive boyfriends
than their abusive spouses--abusive husbands, rather.
That said--and we talk about stalking and how that relates,
and I have shared the stats that we have had here in Wisconsin,
from 2015 to 2013, 29 domestic violence homicides, and all of
those were precipitated by history of stalking behavior. That
stalking behavior, technology is great, I will be the first one
to admit it. I am glued to that smartphone these days.
Senator Klobuchar. I appreciate that you have not done it
while I was talking. Pretty good.
[Laughter.]
Sheriff Schmaling. So, yes, we are glued to these devices
today, and they can be used to facilitate criminal behavior as
well. We see more and more of that. I just do not know how we
would go about regulating that sort of behavior when it comes
to technology.
Senator Klobuchar. What I was meaning is this stalking, the
reason we have this stalking bill in there is that we have
seen--I think there was some recent estimate of 12,000
convicted stalkers in 20 States right now who could get a gun.
So we have seen some--because of this new technology, there are
just new ways to find people who wish that maybe they could not
find.
Sheriff Schmaling. It certainly has made it much easier.
Senator Klobuchar. Right. All right. Thank you very much.
Chairman Whitehouse. Senator Blumenthal.
Senator Blumenthal. Thank you. Thank you very much.
Let me ask, Justice McCaffery, you said earlier that judges
have to provide a level playing field when an abuse victim
requests a TRO, temporary restraining order. Do you believe
that judges do provide that level playing field? Or do they
hand out TROs casually and willy nilly?
Justice McCaffery. All jurists that I am aware of, Senator,
take this very seriously, especially when it comes to victims.
We in Philadelphia, and for that matter in Pennsylvania, have
been on the leading edge, the cutting edge of protecting women
that have gone through these types of traumatizing events. And,
again, as I said earlier, to us it is far, far more than just
handguns, long guns. To us it is all domestic violence. And,
yes, judges do take it seriously.
We have a police department now where we call it Directive
90 that makes sure that our police officers fill out a specific
form, not only fill out but follow up on all domestic abuse
allegations. And the bottom line is it is one of our most--
other than child abuse, special victims abuse, it is one of our
most important criminal investigations.
So, yes, the answer, the short answer is they take it very
seriously.
Senator Blumenthal. Dr. Malcolm, do you dispute that----
Ms. Malcolm. Whether they take it seriously or not? No, I
do not dispute----
Senator Blumenthal. Well, let me--they take it seriously
and they require a showing of facts indicating dangerousness
and threat.
Ms. Malcolm. I am sure that that is what they do now. It is
just that you need two people. You need the person who is being
accused to be able to present their facts and not just one
person who comes in and is frightened or pretending to be
frightened, or whatever, or just trying to get to the head of
the list, as we heard earlier.
Senator Blumenthal. Well, you have heard the testimony
about when you say ``pretending to be frightened,'' how much--
--
Ms. Malcolm. Well, using that----
Senator Blumenthal [continuing]. How much courage it takes,
how much strength and resoluteness it takes for a woman even to
seek a temporary restraining order, not to mention divulge----
Ms. Malcolm. I think that that is true but----
Senator Blumenthal [continuing]. Very private and sometimes
embarrassing facts to a complete stranger.
Ms. Malcolm. But we also heard from the judge that there
are people who game the system. I mean, I know it must take a
tremendous amount of courage, and that is why I think women
should be able to protect themselves. They cannot really, even
with restraining orders, depend on the police to protect them.
There was an important case in the District of Columbia in
1981 with three roommates, women roommates----
Senator Blumenthal. Why would a woman game the system to
protect herself from a dire and dangerous physical----
Ms. Malcolm. Well, we heard from the judge just this
morning that there were all of these long lists of custody
cases, and if she says that she is worried about an abuser, it
gets her to the top of the list. That is something I would not
have known had he not made that comment from his experience.
Senator Blumenthal. And aren't there proceedings without
the other side represented, ex parte proceedings, in many other
circumstances where equally important decisions are made, such
as searching houses, surveilling telephones, putting liens on
property, both civil and----
Ms. Malcolm. I think if that is the case, then we do not
need to add another one to it. I do not think that people's
homes should be searched for weapons on the mere allegation of
some other person who they have had no opportunity to refute,
and----
Senator Blumenthal. Well, we are not talking about----
Ms. Malcolm. It is dangerous----
Senator Blumenthal [continuing]. A search for weapons----
Ms. Malcolm. For the police to go in there without this
person even having notice that this has happened. I think that
it does not provide the opportunity for evidence from both
parties, and I think that is necessary. I realize it is very
difficult for women, frightening, to make allegations, and many
never do because they are so frightened, and there is a whole
support network to help these people. But I think that all that
being said, from the evidence that I have seen, half of the
accused persons after the hearing are found not to be guilty.
So I think that they need an opportunity to be heard.
Senator Blumenthal. And at some point there is an
opportunity to be heard, correct?
Ms. Malcolm. There is right now, yes.
Senator Blumenthal. And if there is a temporary restraining
order and if the proposal I have made became law, there would
be an opportunity to be here----
Ms. Malcolm. When?
Senator Blumenthal [continuing]. Within 2 weeks.
Ms. Malcolm. Within 2 weeks, so immediately the guns get
taken away or any other evidence----
Senator Blumenthal. But not a search----
Ms. Malcolm. And in 2 weeks or 3 weeks----
Senator Blumenthal [continuing]. Of the house, right?
Ms. Malcolm. Later, you know, you are guilty until you
prove yourself innocent in that position, that your property
gets taken away immediately, your home gets invaded, police are
sent, with all the danger that that implies, especially if this
person has no notion this is even happening, and later on he
gets a chance to say something. I do not find that due process.
Senator Blumenthal. So you are against--you are opposed to
any kind of temporary restraining order?
Ms. Malcolm. I am not if there is a hearing at the time for
the temporary restraining order, only if the hearing is 2
weeks, 3 weeks, some other time later.
Senator Blumenthal. What if the assailant, the abuser, is
unavailable?
Ms. Malcolm. Well, if you provide the opportunity for that
person to come to the hearing, you notify that person that
there is this hearing and they do not show up, then that is
their fault. But at least you are providing the opportunity for
the judge to----
Senator Blumenthal. And how much notice----
Ms. Malcolm. Hear both sides?
Senator Blumenthal. How much notice and time would you give
that person?
Ms. Malcolm. I do not know. I mean, that is----
Senator Blumenthal. These are practice realities of trying
to protect people, Dr. Malcolm, when----
Ms. Malcolm. I will tell you a practical reality, too. The
police----
Senator Blumenthal [continuing]. An abuser--when an
abuser----
Ms. Malcolm. Cannot be everywhere all the time.
Senator Blumenthal [continuing]. When an abuser represents
a threat and a judge has to protect a person, man or woman----
Ms. Malcolm. There are other ways----
Senator Blumenthal [continuing]. From an assailant who has
a gun and has indicated that he wants to harm her----
Ms. Malcolm. You are not----
Senator Blumenthal [continuing]. Then--I do not know
whether you have ever been in that responsibility or been in a
law enforcement responsibility, but these are more than
theoretical or abstract ideas. They are practical, threatening
realities.
Ms. Malcolm. They are, but you do not know for sure what
the story is unless both people, as our Constitution demands,
have an opportunity to be heard. That is called due process of
law, that a person has an opportunity before something is done
against him and not 2 weeks, 3 weeks, several months later.
Senator Blumenthal. I would just suggest----
Chairman Whitehouse. So just to be clear, you do not think
that the police should be allowed to execute a lawful search
warrant for a firearm?
Ms. Malcolm. I think that they can be allowed to, but they
need to have--for a temporary restraining order, there ought to
be a hearing before that happens.
Chairman Whitehouse. For a search warrant, there is not a
hearing. So if your rule applies to a temporary restraining
order, the same rule would apply to a search warrant, which
means, to quote, I think, what you said earlier, police should
not be allowed to go into someone's house looking for a
firearm, which is exactly what they do when they execute a
search warrant. You really----
Ms. Malcolm. But they have to have----
Chairman Whitehouse [continuing]. Do not think that should
be done?
Ms. Malcolm. But they have to have evidence----
Chairman Whitehouse. So they go to the TRO----
Ms. Malcolm. They cannot just willy nilly go into
somebody's house and the police, when they often go in, more
violence takes place.
Chairman Whitehouse. Do you think there is a higher
evidentiary standard for a search warrant than there is for a
temporary restraining order?
Ms. Malcolm. I think that for a temporary restraining order
under these conditions where you have one person coming in and
making allegations that you need to have the other person heard
before their property is taken away.
Chairman Whitehouse. Isn't that what happens in a search
warrant, too? A complainant comes in to the police, makes an
allegation, the police take that before a judge. If the
evidence is credible, they execute the search warrant. That
happens every day in law enforcement. Are you really suggesting
that police should not be authorized to do that?
Ms. Malcolm. I am not suggesting that the police should not
be authorized after getting a search warrant, but I think----
Chairman Whitehouse. But just not after getting a temporary
restraining order.
Ms. Malcolm. A temporary restraining order to protect
somebody where only that one person has been heard by the
judge----
Chairman Whitehouse. That is exactly the circumstance in a
search warrant. So if that is your logic, it also must apply to
search warrants, and that puts you in the position of saying
that search warrants should not be executed by the police. I
really do not think that makes a lot of sense.
Ms. Malcolm. I do not think it makes a lot of sense to
invade someone's house and take their property without their
having had a chance to be heard about it.
Chairman Whitehouse. Which is precisely what a search
warrant does. So obviously you do not think search warrants are
appropriate, and if that is your position, then that is your
position. Everybody is entitled to have a position.
Ms. Malcolm. I think that the way that the law now works--
you are changing the way that the law now works in these cases.
The way the law now works, there is an opportunity for people
to be heard, and you have asked me whether--what if they do not
show up? Well, then, that is their problem. But at least there
is an opportunity to be heard before they are put under a
temporary restraining order, and I think that is the issue
here.
I also--if I can just make one other comment, I also think
that with temporary restraining orders, with permanent
restraining orders, all these issue, the potential victim has
to depend on the police being able to be there in time, and I
think that that is a real concern. This case that I was going
to mention, Warren v. District of Columbia, where there were
women who were abused and called and the police never came, and
they sued the police, the judge said, ``It is a fundamental
principle of American law, government and its agents are under
no general duty to provide public services such as police
protection to any individual citizen.''
So I think in that case, since people cannot really depend
on the police and the police cannot be everywhere, they need to
be able to be armed to protect themselves.
Chairman Whitehouse. Mr. Schmaling, any last words with
respect to that?
Sheriff Schmaling. Yes, I agree. We cannot be everywhere as
law enforcement. I am sure the judge could comment on that in
his days of boots-on-the-ground policing. We certainly cannot
be everywhere. But we do count on our citizens to call us, and
we do encourage them to exercise good due diligence. And I
certainly do not--I certainly would never tell someone they
should not arm themselves if they are a law-abiding citizen and
exercise their Second Amendment. There is nothing wrong with
that.
The issue we have is those who should not have weapons,
those who are convicted domestic violence abusers, those who
are stalkers, those who represent a public safety threat to not
only the victims but to law enforcement. That is what this is
about. It is common-sense legislation.
Chairman Whitehouse. Perfect words to close on. I will
express my----
Senator Blumenthal. If I may just add one quick note.
Chairman Whitehouse. Sure.
Senator Blumenthal. And I will supplement it for the
record, but the notion that action by the Government in law
enforcement requires both sides to be heard before there can be
a wiretap or surveillance or a search warrant, search and
seizure, put aside domestic violence, would not only undercut
but cripple the protection of innocent citizens. As the
Chairman well knows from his experience in the intelligence
area, surveillance is done when one side, unrepresented perhaps
not only weeks, months, and for longer periods of time, when
there is sufficient threat. And our constitutional system
depends on a balance of the exigencies of threats to individual
safety or our national security as against those constitutional
rights that may be temporarily infringed upon to----
Chairman Whitehouse. As Attorney General, I actually had to
go in and get some of those warrants myself. That is one of the
restrictions the Rhode Island law puts on that exercise of
power, that the Attorney General shall appear in person before
the presiding Judge of the Superior Court. So we are well
familiar with that, we three prosecutors.
So the hearing will remain open for an additional week if
anybody wishes to add--I should say the record of the hearing
will remain open for an additional week.
[Laughter.]
Senator Blumenthal. Anybody wanted to remain----
Chairman Whitehouse. But I have to say how very, very
grateful I am to Senator Klobuchar and to Senator Blumenthal
for their leadership in this area, how extraordinarily grateful
I am to the witnesses for being here, particularly for those
who brought personal stories that have had such dramatic effect
in their lives. And to those of you who are in the audience,
thank you for your advocacy. And for those of you who have
suffered losses in this area, we are with you. We will not
forget. And we appreciate very much what you are doing.
The hearing is adjourned.
[Whereupon, at 12:33 p.m., the Committee was adjourned.]
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