Judges often reluctant to confiscate guns in domestic violence cases

• The District of Columbia and 25 states prohibit people subject to domestic violence restraining orders from possessing firearms. Georgia is not one of them.

• Ten states require those convicted of misdemeanor domestic violence to turn in their guns. Georgia does not, though federal law still would prohibit those people from possessing a firearm.

Source: Georgia Coalition Against Domestic Violence

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Four hours after a DeKalb County man was served with a court order to stay away from his wife, he tracked her down in a CVS parking lot and shot her three times. She is in intensive care; he is in jail.

The day after a Putnam County man pleaded guilty to a domestic violence charge, he shot and killed his ex-wife and then killed himself.

Neither man should have had a gun. The fact that both did highlights a profound difference between federal law and Georgia law: federal law prohibits anyone convicted of a domestic violence offense, as well as anyone who is the target of a protective order issued by a court, from possessing a firearm. State law contains no such provision, leaving it up to individual judges to confiscate firearms from husbands, ex-husbands or boyfriends who pose a danger (offenders in such cases are overwhelmingly male).

Domestic violence killed 139 people in Georgia last year, according to the 2015 Georgia Domestic Violence Report. And if the trend since 2004 held true for 2015, 20 of them died despite protective orders.

“If they’re going to kill their spouse, they’re going to kill their spouse and this piece of paper is only a minor hindrance,” said Floyd County Superior Court Judge Tami Colston. “If there is a reason to take the guns, I take the guns.”

But standards and thresholds differ from judge to judge. Listen to Chief Judge William Prior Jr. of the Ocmulgee Judicial Circuit, which lies east of Atlanta and includes Putnam County:

“My practice and everybody else’s (in the circuit) is if there’s a gun involved, in other words if the claimant, who is usually the woman, says she was threatened with a gun, yes,” Prior said. “But if she’s just threatened with physical violence, no.”

No standards in place in half of courts

In the case of Eddie Allison, the temporary protective order signed by DeKalb Magistrate Judge Sabrina Scott on Feb. 4 instructed sheriff's deputies to confiscate Allison's guns. But DeKalb Sheriff's Office spokeswoman Cynthia Williams said there was nothing in the files to indicate that deputies did that when they served Allison with notice of the order.

In the Putnam County case, federal law may have prohibited Richard Smith from having a gun because he had been convicted of misdemeanor family violence. But there was no process in place for federal authorities to take the gun that Smith used to kill Barbara Ann Lawrence, to whom he had been married for 20 years, at their home last fall.

The Georgia Coalition Against Domestic Violence — in polling of local advocacy groups, judges and law enforcement — found that more than half of the state’s 49 judicial circuits have no protocols for removing weapons when there have been threats to use them. And in some circuits that have protocols, they aren’t followed, the survey found.

“Best practices dictate or direct that a judge order the respondent to relinquish any firearms if it is a safety matter,” said Western Judicial Circuit Chief Judge David Sweat, who serves on the State Commission on Family Violence.

“When we have someone applying for a family violence protective order we will inquire as to whether there are firearms, pistols or whatever in the home and will then direct the sheriff to take possession of guns pending resolution. Just to make sure everybody stays safe,” said Sweat, who presides in Clarke and Oconee Counties.

But in Douglas County, sheriff’s deputies are not asked to pick up guns when they serve accused batterers.

“Our judges do not, as a rule, put that in,” said Sheriff’s Office Col. Bobby Holmes, who also is chairman of the Douglas County domestic violence task force.

Judges in Douglas County did not return phone calls.

‘Taking them would be unconstitutional’

Debate of guns and domestic violence can be tricky, especially in Georgia.

Any suggestion that guns could be confiscated brings a quick reaction.

“Taking them would be unconstitutional,” said John Monroe, the attorney for the gun rights group GeorgiaCarry.org. “You have an obligation to divest yourself of them (guns) but it’s how ever you choose. They are your property and you would be deprived of the right to sell them.”

In January 2013 Rhonda Ott asked Colston, the Floyd County judge, for a temporary protective order because her husband had been threatening her for months. The frightened woman asked for the order when Allen Ott told her the “first bullet’s for you, second bullet’s for me, because this is all your fault.”

Colston’s order, however, did not include a requirement that deputies seize Allen Ott’s guns. At the time Ott was in the Floyd County jail on charges of making terroristic threats against his wife.

But as the order was being issued, Ott was bonding out of jail.

Hours later he was dead, shot by Gordon County deputies answering a report of an armed man threatening to kill his wife, who was in Rome then.

“I didn’t expect that to happen,” Colston said.

‘A lot of it boils down to politics’

The Georgia Bureau of Investigation’s crime database contains 9,958 active protective orders. Under federal law, anyone covered by those orders who possessed a firearm should have been compelled to give it up. But that wasn’t always the case.

Gwinnett County Chief Magistrate Kristina Blum said judges in her court do not often order deputies to confiscate guns when they serve temporary orders, because the orders are based on the word of only one person.

“There has to be a little more due process,” Blum said.

So far this year, nine firearms have been surrendered to the Gwinnett County Sheriff’s Office, which is storing them.

“A lot of them (judges) say, ‘Well, there isn’t a law on the books that authorizes me to remove firearms,’” said Allison Smith-Burk, director of public policy for the Georgia Coalition Against Domestic Violence. “But there are ways you can do this. In the sentencing order you can make it a condition of their probation … to turn over firearms.

“A lot of it boils down to politics around firearms. Judges in this state are elected and that’s a tough stance to take knowing you’ve got people who feel passionately about the right to firearms,” Smith-Burk said.

DeKalb County Solicitor Sherry Boston, who prosecutes misdemeanors, says it is standard procedure to require those convicted of domestic violence to surrender their guns; they cannot sell them or give them away. The guns are stored in the DeKalb’s State Court probation office until the sentence has been served and then the guns are destroyed. There are 20 in storage now and another 24 being stored at the DeKalb sheriff’s office in cases related to protective orders.

“This is a Second Amendment state and nobody wants to take anybody’s guns away,” said Holly Tuchman, chairwoman of the Georgia Commission on Family Violence. “But when you see a pattern like this, then you have to look at it. You can’t continue to ignore it.”