CLARKSBURG -- When individuals are convicted of a misdemeanor crime of domestic violence or have a protective order issued against them, they lose their firearms rights for life or for the period of the protective order.
However, there is no system of checks in place to ensure that those ordered to dispose of their weapons have done so.
"The guns are not being confiscated," said Karla Schartiger, direct services coordinator for Women's Aid in Crisis, an organization that works with domestic violence victims. "If the guns are in plain sight, the police might take them, but nobody is going in and enforcing taking the guns."
Several law enforcement personnel agree with that assessment.
"We don't have resources to go out and see who's prohibited and check everyone to see if they have guns," said Thomas Johnston, U.S. attorney for the Northern District of West Virginia.
"And there is no directive out there that tells law enforcement what to do with guns if someone is under a protective order," Johnston said. "Ultimately, it's the responsibility of the person prohibited to get rid of the gun, because they'll ultimately pay the price."
That price is prison time up to 10 years and a hefty fine of $250,000, according to the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.
Policing the gun ban
To comply with the law, some banned gun owners pass the weapons on to family members who are not in the household. Others turn the guns in to the police and the ATF. And some do nothing.
Without a written order to seize the weapons, police usually aren't taking guns, unless the prohibiter turns them over. Sometimes, they don't even know guns are present in the household, said Harrison County Magistrate Tammy Marple.
"We don't search the house for weapons when we deliver a protective order," said Clarksburg Police Chief John Walker. "It is up to the individual to get rid of the weapons. But there have been times when we've taken the guns, when we see a threatening situation."
The domestic violence gun laws are similar to other laws, in that they aren't being enforced unless the perpetrator is caught, usually for another crime, say some law enforcement personnel.
Finding a way to enforce the law could be tricky.
"You really can't go knock on doors and see if they have a weapon, unless you have probable cause or a warrant," said Harrison County Prosecuting Attorney Joe Shaffer. "You just can't act on an anonymous tip, and without corroborative evidence, there's not much you can do."
Police can search for guns with a warrant, or if the individual gives permission, he said. But no one is periodically checking on prohibiters to see if they possess guns or are stockpiling an arsenal.
"It's difficult to enforce the law. There's a lot of constitutional issues," Walker said. "It's not a situation where police can go into residences to take weapons. In most cases, we don't have the authority to search."
State probation officer for Harrison County courts Mike Fawcett said his office has no set procedure to do weapons checks, either. But, his office can check for guns, if there is reason to believe the individual has a weapon.
How to enforce or change the law?
Expecting someone convicted of domestic violence to dispose of weapons on their own is an unrealistic expectation, say some domestic violence counselors.
"It is a problem, but that's the way the law is set up," Walker said. "It would take some creative thinking to change the law."
Establishing a set procedure probably wouldn't work, because every situation is different, said Harrison County Chief Deputy Albert Marano. And seizing weapons without cause can be seen as violating an individual's rights, he said.
Still, when anonymous tips are called in to police departments that a convicted abuser has a gun, some victims wonder why police can't act.
"You just can't go busting down doors on tips. We can't go just on hearsay," Marano said.
Changing the wording of the law or changing the way it is enforced are both options that could solve the problem, victims' advocates say. Either would be an improvement over the current system, they say.
"We would like to move to a consistent practice across the state where firearms are seized in these cases," said Sue Julian, team coordinator for the West Virginia Coalition Against Domestic Violence.
Eluding the gun ban
If someone is intent on getting a gun, it's possible they'll find a way around the gun ban.
While all licensed gun dealers are required to perform background checks before selling weapons, unlicensed individuals do sell firearms without initiating background checks, said Laura Volk, special agent with the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives.
"There is no requirement governing sales between individuals," Volk said. "So someone could set up at a flea market or a gun show and make firearm sales, and there would be no background check."
It is against federal law for persons to be engaged in unlicensed firearms sales, but it is still a big problem in West Virginia and across the country, Volk said.
The gun ban may help deter some domestic abusers, but it won't stop them entirely, no matter how well it's enforced, some say.
"Most of the domestic violence we see doesn't happen with guns," Marple said. "So taking their guns isn't going to scare them. They'll still find a way if they intend to harm the person. We've seen stabbings, chokings and other forms of domestic violence besides guns."
Staff writer Jennifer Biller can be reached at 626-1449 or by e-mail at firstname.lastname@example.org