F. Firearm Safety and Addressing Known Lethality Factors
Child welfare professionals and judges should identify whether firearms are present in the home and/or available to the perpetrator. Even if a person legally possesses a firearm, if they have used their access to a firearm or the actual firearm to threaten any person in the family or at the home, there is a real risk to safety of all persons, including children, that should be taken seriously by child welfare stakeholders.
In 2022, TCFV's Honoring Texas Victims report documented the second highest number of intimate partner homicides in the last decade; 216 Texans were victims of intimate partner homicide. This number includes 179 women and 37 men. Out of the total number of homicides, 153 victims were killed with a firearm.[270] Firearms amplify the inherent power and control dynamics characteristic of abusive intimate relationships. When perpetrators have access to a firearm, the risk of intimate partner murder increases dramatically.[271] In 2022, firearms accounted for the means of death in over 70% of intimate partner homicides in Texas.[272]
Child welfare professionals may not be aware of an existing dynamic of domestic violence between the parents by the time the case comes to court, unless a mandatory report was made by police who went out on a domestic violence call. In addition, it is unlikely that a child welfare investigator will be immediately aware of whether or not the domestic violence perpetrator owns a firearm.
Questions for Judges to Ask About Firearm Safety:
• Does the perpetrator own or have access to a gun?
• Is the perpetrator prohibited from possessing a firearm under the law?
• Does the perpetrator have any prior history of domestic violence or a history of using weapons (including plea deals and charges that were deferred)?
• Has the perpetrator ever threatened to kill the survivor parent, the children, or themselves?
• Has the perpetrator ever threatened the survivor parent with a gun or weapon prior to the hearing?
• Ask the survivor parent and the perpetrator if there are any guns or weapons in the home. To minimize risks to the survivor parent and children, do not ask the survivor parent questions directly related to their own safety in open court. Instead, involve a domestic violence advocate from your local domestic violence program who could ensure that the survivor has access to information, safety planning and support if they choose.
• If guns are present and there is concern about how to move forward to decrease the lethality risk for the survivor parent and children, judges are encouraged to reach out to their local Domestic Violence Program or to contact the TCFV website.
Federal Laws Addressing Domestic Violence and Firearms
Federal law[273] prohibits possession of a firearm or ammunition by persons convicted of a misdemeanor crime of domestic violence, which is defined as:
• A misdemeanor under Federal, State, Tribal, or local law;
• Has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, and
• Committed by one of the following:
◦ a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common,
◦ a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian,
◦ a person similarly situated to a spouse, parent, or guardian of the victim, or
◦ a person who has a current or recent former dating relationship with the victim.
It is important to note that the prohibition is permanent for all of the above persons, except for current or former dating partners. In that instance, the prohibition is for five years. In addition, unlike Texas law, a conviction for a family violence class C offense of assault by offensive contact can qualify as a prohibiting conviction. See United States v. Castleman, 134 S. Ct. 1405 (2014).
Orders of Protection
Federal law prohibits possession of firearms or ammunition by a respondent in any order which restrains the person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child. The federal definition of intimate partner is limited to the spouse of the person, a former spouse of the person, an individual who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person. Also, the order must be one issued after a hearing in which the person received actual notice and had an opportunity to participate.
Texas Laws Addressing Family Violence and Firearms
Texas law prohibits family violence and dating violence Class A misdemeanants from possessing firearms for five years after release from confinement or community supervision.
• Tex. Penal Code § 46.04(b) (Unlawful Possession of a Firearm)
Respondents to ex parte and permanent protective orders are prohibited from possessing firearms for the duration of the order.
• Tex. Penal Code § 46.04(c) (Unlawful Possession of a Firearm);
• Tex. Penal Code § 25.07(a)(4) (Violation of Certain Court Orders or Conditions of Bond In a Family Violence, Child Abuse or Neglect, Sexual Assault or Abuse, Indecent Assault, Stalking, or Trafficking Case);
• Tex. Fam. Code § 85.026 (Warning on Protective Order); and
• If a magistrate includes a firearm prohibition in a magistrate's order of emergency protection issued after an arrest, possession of a firearm by the respondent during the duration of the order is a violation of state law. Tex. Code Crim. Proc. Art. 17.292 (Magistrate's Order for Emergency Protection)
• Tex. Penal Code § 46.04(c) (Unlawful Possession of a Firearm)