increases the threat of injury or death in circumstances where a court order has

been granted prohibiting the "use, attempted use, or threatened use of physical

force against (an] intimate partner." 18 U.S.C. § 922(g)(8). Due process is not

offended when such a restraint is imposed as a result of a court order after a fair

hearing. For these reasons, the statute is plainly constitutional and the opinion of

the District Court should be REVERSED.

I. DOMESTIC VIOLENCE IS A SERIOUS CRIME WITH TRAGIC CONSEQUENCES FOR MILLIONS OF WOMEN AND CHILDREN NATIONWIDE

Violence against women is an enormous problem throughout the United

States. 2 A recent study reports that 5.9 million assaults are perpetrated against

women annually. 3 The United States Department of Justice estimates that three

out of every four women will be the victims of a violent crime at some point

during their lives. 4 Police departments nationwide report that domestic violence

arrests are continuing to rise. 5 Estimates of the number of women severely

injured each year by their partners range from at least two million to four million

and higher. 6

Accurate identification of the prevalence of domestic abuse is difficult

because many women are reluctant to report abuse or seek help because doing so

may expose them to further harm. Frequently women who are abused fail to seek

help because they fear that their attackers will abuse them again or more severely

in retaliation. Still, results of a 1998 survey show that 76 percent of women who

are raped and/or physically assaulted are attacked by a current or former spouse,

cohabitating partner, or date. 7 Other reports in the early 1990s found that ongoing

domestic abuse accounted for 22 to 3 7 percent of emergency room visits for

violence-related injuries by women in the United States. 8

attention of the criminal justice system until after the victim is severely beaten.

Domestic violence is characterized by a pattern of abusive behavior, 9 verbal and

physical, which escalates in frequency and severity over time. l0 Recidivism rates

for domestic violence are high. l1 One study shows that 47 percent of admitted

batterers report three or more assaults per year. l2 The results of a 1998 survey

show that women face far more serious threats of violence from intimate partners

than do men; women are 7 to 14 times as likely to report incidents of serious

violence, including choking, attempted drowning, threats of gun violence, and

actual gun violence. l3 By the time an incident of domestic violence is reported to

the police, numerous other incidents will likely have occurred without intervention

from the justice system.

As disturbing as the high rate of abuse is, the alarmingly high correlation

between domestic violence and the murder of women brings into sharp relief the

need Congress saw to limit access to deadly weapons. A 1996 study based upon

the Federal Bureau of Investigation's Supplemental Homicide Report found that

female murder victims were rnore than 12 times as likely to have been killed by a

man they knew as by a male stranger. l4 In over half of these cases, the victims

were wives or intimate acquaintances of their killers. l5 In l 992, the federal

government reported, nearly 30 percent of all female homicide victims were killed

by husbands, former husbands, or boyfriends. 16 A recent analysis of female

homicides in New Mexico between 1990 and 1993 found that nearly half were

committed by a current or former male intimate partner. 17 Another recently

published study of murder-homicides in North Carolina between 1988 and 1992

reported that in 86 percent of the cases the woman was murdered by her current or

former partner. 18 Of those women who experienced a history of domestic

violence, nearly half had previously sought legal protection from the murderer

through an arrest warrant or restraining order. l9 Moreover, in nearly half those

cases, the injuries extended to the woman's children, or those of the murderer. 20

Because of the manner in which abusive behavior is manifested, and the need to

act before such behavior takes a deadly turn, Congress rationally envisioned the

need to target specific circumstances that heighten a woman's risk of injury as part

of its effort to address this problem.

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II. FIREARMS THREATEN TO EXACERBATE AN ALREADY DEADLY CRISIS

Statistics show that perpetrators of domestic violence use guns in their

attacks with alarming frequency. In 1993, over half of domestic violence attacks

involved firearms. 21 Not only are firearms the ultimate tool of intimidation, 22

they are also the ultimate deadly weapon. More women are killed with handguns

than with all other weapons combined. 23

Experts have stated that the likelihood of death in an attack is related to the

weapon chosen, and the use of firearms is far more likely than other weapons to

end in death. 24 A 1994 study shows that 68 percent of domestic violence

homicides are from firearms. 25 The Journal of the American Medical Association

reported that domestic violence assaults involving guns are 12 times more likely

to result in death than are those without guns. 26 Domestic violence homicides are

7.8 times more likely to occur in homes with guns than homes without. 27 The

occurrence is even higher in homes with histories of domestic violence, as guns in

the home are a key factor in the escalation of nonfatal spousal abuse to

homicide. 28 The statistics reveal a stark reality— guns exacerbate the already

pervasive problem of domestic violence. The use of firearms intensifies the

severity of the violence and increases the likelihood that spouses and children will

be killed by their abuser.

III. THE STATUTE PLAINLY SURVIVES CONSTITUTIONAL SCRUTINY

As set forth above, Congress had compelling and wholly sound reasons for

restricting the use and availability of firearms under circumstances such as those

presented herein. For these reasons, the respondent's constitutional challenges to

the statute must fai1.

a court order against him, after a hearing and upon a record adducing evidence of

threatened violence. 29 The District Court's line of reasoning on both the Second

Amendment and Fifth Amendment challenges to the statute are deficient and

incompatible with precedent. Congress has the power to prevent firearm use by

individuals who pose a risk to public safety, and the means it chose to do so are

entirely within the boundaries of due process. For these reasons, the District Court wrongly concluded that 18 U.S.C. § 922(g)(8) is unconstitutional.

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A. RESPONDENT'S SECOND AMENDMENT RIGHTS WERE NOT VIOLATED

Congress has determined that persons who are subject to court-ordered

restraining orders that prohibit the use, or threatened use, of physical force against

an intimate partner, a child of the intimate partner, or a child of the person pose

substantial potential harm to the public safety and order, and, in response,

Congress has limited their ability to possess firearms. 30 Such legislative

restrictions do not "trench upon any constitutionally protected liberties." 31

Congress had ample authority to determine that the class of persons subject to

court orders restricting individual liberties and guarding against deadly force

should not be allowed access to firearms. 32 As the District Court for the Western

District of Texas recently held in a case finding Section 922(g)(8) constitutional,

"the Second Amendment does not prohibit the federal government from imposing

some restrictions on private gun ownership . . . ." 33 Thus, Section 922(g)(8) is

valid as a matter of law.

Amendment is an "individual" right, Section 922(g)(8) is deficient for failing to

require "particularized findings" of the likelihood of violence.34/ Regardless of

whether the Second Amendment is or is not such a right, Congress had ample

reason and authority to restrict the possession of firearms under the circumstances

and facts raised herein. The reason for this fact is straightforward: the language

the District Court found constitutionally objectionable goes directly to the nexus .

between domestic violence and firearm use. Congress did not make it unlawful

for a person to possess firearms whenever he or she is the subject of a court order.

Instead, Congress deliberately chose to impose the restriction only when a court

order restrains a person from "harassing, stalking, or threatening an intimate

partner" or "child of [an] intimate partner or person" or engaging in other behavior

that would place an intimate partner or child "in reasonable fear of bodily injury."

18 U.S.C. § 922(g)(8). As set forth above, there is ample basis for such a

narrowly-tailored and prudential rule.

kill, in the context of domestic violence. It was therefore wholly justifiable for

Congress to restrict firearm use and possession so as to minimize death or injury

under circumstances when domestic violence may be threatened, including

circumstances like those in this case. 35 Thus, when a court has made a

determination— based on the record evidence before it— to restrict an individual's

liberty and the "use, attempted use, or threatened use of physical force against [an]

intimate partner or child," there is no constitutionally required need for

particularlized findings to support a limitation on the possession or use of a

firearm. 36 Congress made the determination that access to firearms substantially

increased the likelihood of fatal violence and rationally chose to restrict access to

firearms when individuals are subject to court orders prohibiting them from using

force on their intimate partners or children.

B. RESPONDENT' S FIFTH AMENDMENT RIGHTS WERE NOT VIOLATED

The District Court held that it would be wrong to "convict a person of a

crime if he had no reason to believe that the act for which he was convicted was a

crime." 37 But this reasoning is wholly inapposite here. As the court explained in

United States v. Meade, "the statute satisfies the standards embedded in

precedent" for due process. 38 The statute "clearly specifies that individuals

subject to certain types of protective orders" may not possess firearms. 39 The

class of individuals affected is "explicitly defined, as is the conduct sought to be

regulated, and the statute is not unconstitutionally vague." 40 Recognizing this, the

United States District Court for the Western District of Texas recently rejected a

similar Fifth Amendment challenge to Section 922(g)(8). 41

fundamentally restrained his liberties, he "removed himself from the class of

ordinary citizens" 42 who could be heard to complain about adequate notice.

Emerson could not "reasonably expect to be free from regulation," 43 including

regulation affecting his ability to possess a firearm. Like the petitioner in Bostic,

Emerson was aware of all the circumstances surrounding his indictment under

Section 922(g)(8). He was aware that he possessed a firearm, and he was aware

that he was subject to a protective order that prohibited him from abusing or

threatening his former wife. 44 Due process did not require that he receive specific

notice that his conduct was illegal. 45

motions to dismiss under the Second and Fifth Amendments and the opinion of

the District Court should be REVERSED.

Respectfully submitted,
The Amici Curiae,
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC
Washington, DC
Their Attorneys
September 2, 1999

Notes

[note 1 absent in original]

2. This section focuses on violence against women because the victims of domestic violence and sexual assault are nearly always women. The United States Department of Justice estimates that 95% of reported assaults on spouses or ex-spouses are committed by men against women. See H. Douglas, Assessing Violent Couples, 72(9) Families in Society 525-53 5 ( 1991 ). Children also suffer significant injuries at the hands of abusers, however. See, e.g., D. Brookoff, et. al., Characteristics of participants in domestic violence: assessment at the scene of domestic assault, 277 J. Am. Med. Assoc. 1369 (1997) (describing the prevalence of domestic violence assaults on children). text@note2

3. P1atricia Tjaden and Nancy Thoermes, Prevalence, Incidence, and Consequences of Violence Against Women, National Institute of Justice, at 5 ( 1998). text@note3

4. Staff of Senate Comm. on the Judiciary, 102d Cong., Violence Against Women 3 ( 1992). text@note4

5. Cheryl Hanna, The Paradox of Hope: The Crime and Punishment of Dornestic Violence, 39 Wm. & Mary L. Rev. 1505, 1517 ( 1998) (citation omitted). text@note5

6. Statistical evidence documenting the number and frequency of women who are abused annually varies. In 1995 Congress found that four million women are battered by their partners each year. See H.R. Rep. No. 103- 71 l, 103rd Cong., at 4, reprinted in 1995 U.S.C.C.A.N. 1839, 1851-52. But see Mary C. Carty, Comment, Doe v. Doe and the Violence Against Women Act: A Post-Lopez Commerce Clause Analysis, 71 St. John's L. Rev. 465 ( 1997) (indicating that 15% of murders with known relationship involved "intimates" and that 50% of American couples have had violent incident, with female victim in 90% of incidents) (citation omitted). text@note6

7. Tjaden and Thoennes, supra note 3, at 8. text@note7

8. See T. Randall, Domestic Violence Intervention Calls for More Than Treating Injuries, 264 J. Amer. Med. Assoc. 93 9 ( 1990). text@note8

9. C.F. Klein and L.E. Orloff, Providing, Legal Protection for Battered women an Analysis of State Statutes and Case Law, 21 Hofstra L. Rev. 801, 900, n. 599 ( 1993 ). text@note9

10. Violence Against women: Relevance for Medical Practitioners, 267 J. Amer. Med. Assoc. 3184 (1992). text@note10

11. P.A. Langan and C.A. Innes, Preventing Domestic Violence Against Women, Bureau of Justice Statistics Special Report NCJ-10293 7 ( 1986). text@note11

12. U.S. Dep't of Justice, Uniform Crime Reports, Crime in the United States, at n. 601, 603 ( 1994). text@note12

13. Tjaden and Thoennes, supra note 3. text@note13

14. When Men Murder Women: An Analysis of 1996 Homicide Data, Violence Policy Center at 3 ( 1998) ("1996 Homicide Study"). text@note14

15. Id. text@note15

16. See National Domestic Violence Awareness Month, Proclamation No. 6829, 60 Fed. Reg. 51,879 (1995) (citing Department of Justice statistics). text@note16

17. J. Arbuckle, et. al., Safe at home? Dornestic violence and other homicides among women in New Mexico, 27 Ann. Emerg. Med., 210-5 (Abstract) ( 1996). text@note17

18. E. Morton, et al., Partner Homicide-Suicide Involving Female Homicide Victims: a Population-based Study in North Carolina, 1988-1992, 13 Violence Vict. (2): 91-106 (Abstract) (Summer 1998). text@note18

19. Id. text@note19

20. Id. text@note20

2l. Id. text@note21

22. Melanie L. Mecka, Note, Seizing the Ammunition from Domestic Violence: Prohibiting the Ownership of Firearms by Abusers, 29 Rutgers L. J. 607, 608. ( 1998) ("A gun is a great intimidator - the ultimate power tool in the arsenal of a batterer."). text@note22

23. 1996 Homicide Study, supra n.14, at 4. text@note23

24. Carolyn Rebecca Block and Antigone Christakos, Intimate Partner Homicide in Chicago Over 29 Years, 41 Crime & Delinquency 496, 504-505 ( 1995) (citations omitted). text@note24

25. Judith Bonderman, Firearms and Domestic Violence in The Impact of Domestic Violence on Your Legal Practice, Presentation to the American Bar Association Commission on Domestic Violence, at 9-12 ( 1996) (data for 1994). text@note25

26. L.E. Saltzman, et al., Weapon Involvement and Injury Outcomes in Family and . . Intimate Assaults, 267 J. Amer. Med. Assoc. 22 ( 1992). This report also found that "firearms were three times more likely to result in deaths than assaults involving knives or other cutting instruments and 23.4 times more likely to result in death than family and intimate assaults involving other weapons or bodily force." text@note26

27. Arthur L. Kellerman, et. al., Gun Ownership as a Risk Factor for Homicide in the Home, 329 New Eng. J. Med. 1084, 1087 (1993). A 1997 study that examined the risk factors of violent death for women in the home found that when there were one or more guns in the house the risk of homicide increased more than three times. See 1996 Homicide Study at 12 (citing James E. Bailey, "Risk Factors for Violent Death of Women in the Home," 157 Arch. Internal Med. 777-782 (1997)). text@note27

28. 1996 Homicide Study, supra n.13, at 12. text@note28

29. United States v. Emerson, 1999 U.S. Dist. Ct. LEXIS 4700, * 1-2 (N.D.Tex.1999). text@note29

30. See supra. text@note30

31. Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (citations omitted). text@note31

32. In United States v. Miller, 307 U. S. 174 (1939), the Court noted that Congress could prohibit gun ownership in a way that does not impair the state's ability to have a militia. 307 U.S. at 178. Accord Lewis, 445 U.S. at 65 n.8. The statute at issue here does not impair that ability. text@note32

33. United States v. Spruill, 1999 WL 635697, *4 (W.D. Texas, Aug. 13, 1999). text@note33

34. Emerson at *40. text@note34

35. As the District Court for Western District of Texas held in Spruill, Section 922(g)(8) "is aimed at preventing the family violence that seems epidemic in this country." Spruill, 1999 WL 635697, *4. text@note35

36. Whether such a requirement would be prudential is not at issue in this appeal, nor sufficient basis to strike down the statute. See Spruill, 1999 WL 635697 at *4 ("Although critics may argue that these are probably more effective ways to deal with family violence than the statute at hand, it is not for this Court to reverse the will of Congress simply because a better statute could possibly be crafted."). text@note37

37. Emerson at * 42 (citation omitted). text@note37

38. U.S. v. Meade, 1999 U.S. App. LEXIS 9032, *26 ( 1 st Cir. 1999). text@note38

39. United States v. Wilson, 159 F.3d 280, 288 (7th Cir. 1998). text@note39

40. Id. text@note40

41. United States v. Spruill, 1999 WL 635697 at *2. text@note41

42. United States v. Bostic, 168 F.3d 718, 722 (4th Cir.). text@note42

43. Id. text@note43

44. Cf. Bostic at 722. text@note44

45. To the extent Emerson argues that he was unaware of the law and therefore his indictment had to be dismissed, "[t]he traditional rule in American jurisprudence is that ignorance of the law is no defense to a criminal prosecution." Wilson, 159 F.3d at 288 (citing Cheek v. United States, 498 U.S. 192, 199 ( 1991 )). The District Court's efforts to distinguish the facts here from controlling case law is unavailing. The unique facts of Lambert v. California, 355 U.S. 225 (1957), for example, caution against overly broad application of its holding. Indeed, possession of firearms "by persons laboring under the yoke of anti- stalking restraining orders is a horse of a different hue." Meade, 1999 U.S. App. LEXIS at *29. Furthermore, it is wholly implausible that Congress intended Section 922(g)(8) to carry a mens rea requirement of actual knowledge of the law. See id. at *28 n.5. text@note45

1. National Network to End Domestic Violence.
2. National Network to End Domestic Violence Fund.
3. Texas Council on Family Violence.
4. Arizona Coalition Against Domestic Violence.
5. Colorado Coalition Against Domestic Violence.
6. YWCA of the U.S.A.
7. My Sister's Place.
8. National Coalition Against Domestic Violence.
9. One Voice/The American Coalition for Abuse Awareness.
10. Florida Coalition Against Domestic Violence.
11. Hawaii State Coalition Against Domestic Violence.
12. Indiana Coalition Against Domestic Violence.
13. Iowa Coalition Against Domestic Violence.
14. Kentucky Domestic Violence Association.
15. Maine Coalition to End Domestic Violence.
16. Michigan Coalition Against Domestic & Sexual Violence.
17. Missouri Coalition Against Domestic Violence.
18. New Hampshire Coalition Against Domestic & Sexual Violence.
19. New York State Coalition Against Domestic Violence.
20. Oklahoma Coalition Against Domestic Violence and Sexual Assault.
21. North Carolina Coalition Against Domestic Violence.
22. Rhode Island Coalition Against Domestic Violence.
23. South Carolina Coalition Against Domestic Violence and Sexual Assault.
24. South Dakota Coalition Against Domestic Violence and Sexual Assault.
25. Vermont Network Against Domestic Violence and Sexual Assault.
26. Wyoming Coalition Against Domestic Violence and Sexual Assault.
27. Mintz Levin Cohn Ferris Glovsky and Popeo, P.C., Fernando R. Laguarda and Valerie E. Hurt.

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