MISSOULA — Many studies show that more than half the women killed in the United States are murdered by a current or former partner and of those domestic violence homicides, half involve guns.
A victim or survivor is five times more likely to die from domestic violence if the abuser has access to a gun.
In America, every year more than 750 women are shot to death by their partner, according to the Giffords Law Center.
In an effort to curb this, those convicted of misdemeanor domestic violence are prohibited from having firearms under a 1994 federal law.
Prosecutors in Montana and other states have used this law to reduce danger in domestic violence situations, according to University of Montana law professor, and former domestic violence prosecutor, Andrew King-Ries.
“Survivors are much more likely to be killed by a domestic violence offender who has possession of a firearm. We used to try to eliminate that risk by removing their right to possess a firearm,” King-Ries said.
The U.S. Court of Appeals for the Ninth Circuit ruled last week that convictions under Montana’s partner or family member assault statute do not qualify for the federal ban.
“That tool, a very important tool to protect survivors of domestic violence, that tool is no longer available in Montana at the federal level,” King-Ries said.
The decision has to do with the way the laws are written. Montana law and federal law define bodily injury differently.
Because Montana's law considers emotional harm, the Court found it theoretically possible to be convicted of the state statute without necessarily using physical force, required to violate the federal law.
“The Ninth Circuit decided this on a completely hypothetical case, not the case before them,” King-Ries said.
The case before the Court was the firearms conviction of Micheal DeFrance, which the ruling overturned. DeFrance’s case stemmed from a 2013 PFMA conviction for assaulting his ex-girlfriend, Jermain Charlo.
Charlo has been missing since 2018, DeFrance has not been named a suspect in her disappearance.
Despite DeFrance admitting to physically assaulting Charlo in 2013, the Court said the state law did not meet the requirements for the federal firearms ban.
The judges said they were bound by Supreme Court precedent, and could only look at the definitions of the laws.
It all goes back to this theoretical chance of conviction without the use of physical force.
In practice, King-Ries said offenses without physical violence would be charged as a different crime.
“In fact, they couldn't find any cases, and none of the attorneys, when they asked them in oral argument, could find any cases in which a prosecution was solely based on sort of emotional harm,” he said. “That's why the Court couldn't find any cases because that's not how the prosecutors actually charge them.”
King-Ries said it remains unclear at the moment whether this will open the door to other Montana convictions being overturned or, even, other states’ laws ruled ineligible.
The Supreme Court, Congress, the Montana legislature and the Montana Supreme Court could all weigh in.
Both he and the judges worried over the potential implications of the law.
“They acknowledge it's an absurd result, and they're asking the Supreme Court to change the law so that we can avoid these absurd results. More than absurd, dangerous,” King-Ries said. “There are a number of solutions. None of those are gonna be quick. So in the meantime, as I said, I think survivors are more at risk than they were before.”
