Act 79: New Protections for Domestic Violence Victims

Eileen Horgan, supervising criminal advocacy attorney at the Women Against Abuse Legal Center.

Eileen Horgan, supervising criminal advocacy attorney at the Women Against Abuse Legal Center.

Turn on the nightly news and the lethal link between domestic violence and access to firearms is clear. Recently, at the end of March, a woman, whose protection order had expired the prior year, was shot and killed by her ex-husband inside a Delaware County Wawa when she appeared to exchange the parties’ child. Access to weapons in domestic violence situations has deadly consequences. According to the Pennsylvania Coalition Against Domestic Violence, 2017 saw the highest number of domestic violence-related firearm deaths in a decade, with 78 victims being shot and killed.

In an effort to provide additional safeguards for domestic violence victims and the community at large, the Pennsylvania Legislature introduced legislation in October 2017 to limit domestic abusers’ access to firearms. Signed into law by Gov. Tom Wolf on Oct. 12, 2018, Act 79 went into effect on April 10. Act 79 amends both the civil Protection From Abuse Act as well as the Pennsylvania Crimes Code marking the first time in 14 years the Pennsylvania Legislature addressed gun violence.

The Protection From Abuse Act (PFAA) provides civil relief for victims of domestic violence in the form of a Protection From Abuse (PFA) order. Recognizing that leaving an abusive relationship is the most dangerous time for a domestic violence victim and when most victims file PFAs, the legislative intent behind the PFAA is to keep victims safe by both stopping current abuse and preventing future abuse. Relief available through the PFA order includes preventing the defendant from contacting the victim, prohibiting the defendant from threatening, harassing, stalking and physically abusing the victim. Additionally, a Judge may order the defendant to relinquish any firearms and firearm licenses he or she may have for the duration of the order. Relinquishment of firearms and firearm licenses must occur within 24 hours of service of a temporary order or the entry of a final order unless good cause is shown.

Act 79 makes several significant changes to the existing PFAA firearm relinquishment provisions. First, firearms can no longer be relinquished to third-party friends and family for safekeeping. Instead, defendants must turn over their weapons to the appropriate law enforcement agency, which includes police and sheriffs. Alternatively, defendants may relinquish their weapons to federally licensed firearm dealers, a licensed commercial armory or the defendant’s own attorney. The second change concerns when the firearm relinquishment applies. Prior to Act 79, judges presiding over the PFA proceedings had the discretion to determine when to order a defendant’s weapons relinquished in both temporary and final PFA orders. Act 79 provides that any final order issued after a hearing must order that the defendant is subject to the firearm prohibitions and relinquishment provisions of the PFAA. In 2017, 6,383 final PFA orders were entered after a hearing before a judge across the state. Moving forward, pursuant to Act 79, it is in those type of cases where a defendant must be ordered to relinquish his weapons. However, Act 79 leaves it to the discretion of the court to determine whether or not to order weapon relinquishment in final PFA agreements. There were 7,168 PFA orders entered by agreement in Pennsylvania in 2017. Orders entered by agreement may order the defendant to relinquish their firearms but the court is not mandated to order relinquishment under Act 79.

The Pennsylvania Crimes Code was also amended by Act 79. If a defendant is convicted of a misdemeanor crime related to domestic violence, the defendant is ordered to relinquish any firearms within 24 hours of the conviction with an exception for good cause shown. Good cause is limited to facts related to the inability of a person to retrieve the firearm within the 24-hour period due to the firearm’s location. Previously, defendants had up to 60 days to relinquish their firearms. If a defendant fails to comply with the relinquishment requirements, additional criminal charges may be filed. Additionally, the new act requires that the law enforcement agency tasked with monitoring relinquishment orders provide immediate notice to the court, victim, prosecutor and sheriff if defendant fails to comply with the order. The prohibition for firearm possession terminates five years after the date of conviction.

To comply with the changes made by Act 79, law enforcement agencies across the state are coordinating to establish their procedures. Currently, all Pennsylvania PFA orders are entered in a statewide database, the Protection From Abuse Database (PFAD) system which is accessible to state and local police, sheriffs and other law enforcement agencies, local courts and prosecutors as well as domestic violence service providers. PFAD is the system that will be used to process and track firearm relinquishments across the state. In Philadelphia, once a firearm has been ordered relinquished, the Philadelphia Sheriff’s Office is notified via PFAD. Defendants must bring their firearms to the Sheriff’s office. The Sheriffs then provide a signed and dated receipt, generated through PFAD, with a detailed description of each firearm and the condition of the firearm. If the court order requiring relinquishment is not fulfilled, the Sheriff’s office receives a notice through PFAD alerting them of the outstanding order.  If Defendant asserts they do not have or own any firearms to relinquish, the Sheriff notes in PFAD that no firearms were relinquished and prints a receipt for the defendant to sign. Relinquished weapons cannot be released until the PFA order expires or is dismissed. The PFA plaintiff must be notified by law enforcement when the relinquished weapons are released to the defendant.

In some cases, where Act 79 does not require firearm relinquishment and the court has not ordered relinquishment, a defendant may still be prohibited from possessing firearms under federal law. Under the Federal Gun Control Act, 18 U.S.C. Section 922(g)(8), it is a crime for a person subject to a qualifying order to possess a firearm. A qualifying order is a final order where the parties subject to the order were married, cohabitants or have a child in common.  Two other criteria must be met for a final order to be a qualifying order: The defendant must have received actual notice and had the opportunity to participate in the proceeding; and the final order must prohibit the defendant from harassing, stalking or threatening the victim or using or threatening to use physical force that would reasonably be expected to cause bodily injury. Currently, this federal firearm prohibition does not apply to intimate partners who were in only a dating relationship. This gap is commonly referred to as the “boyfriend-girlfriend loophole.” The U.S. House of Representatives passed a reauthorization of the Violence Against Women Act (VAWA) that included a provision closing this loophole on April 4, 2019, which now goes to the U.S. Senate for consideration.

Firearms increase the likelihood of death in domestic violence situations with women being five times more likely to be killed if the abuser owns a firearm. Act 79, which stands to impact thousands of domestic violence victims across the state, represents what many advocates hope will be a significant step forward in preventing domestic violence firearm homicides.

Eileen Horgan is the supervising criminal advocacy attorney at the Women Against Abuse Legal Center. She has been representing victims of domestic violence in family law cases for eight years. Currently, she focuses on representing and advocating for domestic violence victims in cases that involve both civil and criminal proceedings.