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Duke Law > Duke Law Scholarship Repository > Journals > DJGLP > Vol. 22 > No. 2 (2015)

 

Tom Lininger

Abstract

Access to a gun increases the likelihood that a batterer will kill his victim. Studies indicate that the risk of fatality increases five‐fold when a firearm is available during an incident of domestic abuse. This risk led Congress to pass the Lautenberg Amendment,18 U.S.C. § 922(g)(9), which criminalizes the possession of a firearm by any person convicted of domestic violence.

When the Supreme Court recently accepted certiorari in a case involving the Lautenberg Amendment, many observers feared that a restrictive interpretation would jeopardize the efficacy of the gun ban for domestic abusers. The Court’s ruling on March 26, 2014, did not seem to weaken the Lautenberg Amendment. The reality, however, is that the Lautenberg Amendment was egregiously ineffective even before the Court’s ruling, and the “victory” in the recent case masks an enduring problem in the enforcement of the gun ban.

Specifically, the charging practices of local prosecutors have minimized the opportunities to apply the federal firearms disability for convicted abusers. When local prosecutors undercharge domestic violence – by sidestepping charges that would clearly signal the defendant’s disability, or by consenting to charges that would likely result in expunction – they thwart the intent of Congress to disarm convicted batterers. Each year federal prosecutors only charge approximately fifty among hundreds of thousands of convicted domestic abusers who possess guns.

This article proposes an ethical rule that would obligate all prosecutors to charge domestic violence offenses appropriately. In jurisdictions adopting the rule, the federal gun ban and other ancillary consequences intended by federal and state legislators would be more likely to attend a conviction for domestic violence. The article concludes by addressing foreseeable objections to the proposed rule.

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