Grants - J&S Research Bulletin
Eastern Kentucky
University
College of Law
Enforcement
"A Program of
Distinction"
KENTUCKY'S RESPONSE TO THE LAUTENBERG ACT: CURBING DOMESTIC VIOLENCE AMONG POLICE
Victor E.
Kappeler
Eastern Kentucky
University
RESEARCH TOPIC
This study empirically investigates the impact of the Lautenberg Act on policing in Kentucky to determine whether a significant proportion of law enforcement agencies have been affected by the law and to ascertain whether a significant percentage of Kentucky officers will be forced to find alternative employment.
RESEARCH ISSUES
The research explores whether Kentucky law enforcement agencies have or planned to have a domestic violence unit, whether they have a domestic violence policy, and whether they employ community policing. Information was also solicited about the number of officers convicted of domestic violence, agencies' formal responses to convictions, and individual officers’ actions to mitigate the effects of a conviction. Information was solicited about formal organizational measures to see what steps law enforcement agencies have taken to detect convictions and to determine what actions take place when officers with convictions are discovered. Additionally, information was collected that measured law enforcement officials’ understanding of the federal legislation and their concern about the Lautenberg Act.
RESEARCH FINDINGS
Kentucky law enforcement agencies have been largely unaffected by the Lautenberg Act. Relatively few officers and only a small percentage of departments have found police officers with domestic violence convictions. When these officers were discovered, most had their convictions expunged. Although Kentucky law enforcement agencies have not been very proactive in attempting to detect domestic violence among police, their efforts are not out of line with police efforts nationwide.
HISTORICAL CONTEXT OF THE LAUTENBERG ACT
LITERATURE REVIEW
METHODOLOGY
RESULTS
DISCUSSION AND IMPLICATIONS
NOTES
In the 1970s police officers rarely invoked the formal legal process in response to cases of family violence. Police officers were trained to avoid arresting perpetrators and defuse or mediate these situations.1 As a result police officers failed to treat women battering as a crime, especially when it involved misdemeanor assault. Instead, domestic violence was viewed as a private, family matter. This "classic" police response has been characterized as "virtual nonfeasance" with police evading "responsibility to protect victims of crimes within families."2 Because of the tendency to ignore the criminal nature of battering and unwillingness to arrest, particularly in misdemeanor cases, policing has received extensive scrutiny over its response to domestic violence.
Women’s rights advocates and feminist scholars have long contended that the police resist treating battering as a significant crime worthy of attention. Research seems to support this contention, finding that officers continue to treat battering cases differently than other types of assaults. Studies suggest officers are apt to arrest in domestic assaults only when they believe that victims want the batterer arrested and when victims are perceived to be willing to "follow through" with prosecutions.3 Thus despite contemporary improvements in legislation, training and departmental policies, empirical data suggest that police officers are less apt to arrest in domestic than non-domestic assault cases.4 Perhaps, no other segment of the criminal justice system has received as much scrutiny as policing has for avoiding an enforcement response to domestic violence.
Although there is a wealth of research on police handling of domestic violence situations, very little is known about battering among police officers and their families. The paucity of data and inadequate theoretical development make it difficult to determine the magnitude of the problem, and it is equally difficult to estimate how this type of “police crime”5 impacts law enforcement agencies, personnel and policies. The literature on police deviance and culture suggests that law enforcement officers will be particularly loath to formally invoke the criminal process against “one of their own.”6 This situation, however, may be changing because of the passage of new federal legislation on domestic violence.
HISTORICAL CONTEXT OF
THE LAUTENBERG ACT
The Lautenberg Act, passed by the United States Congress in September 1996, prohibits individuals, including police officers, from owning firearms or ammunition if they have ever been convicted of an act of domestic violence. The Lautenberg Act was passed as an amendment to the Omnibus Consolidated Appropriations Act of 1997. It modifies the Gun Control Act of 1968 by prohibiting possession of firearms and/or ammunition by anyone who has been convicted of domestic violence. While felony convictions of all kinds have traditionally been used to limit gun ownership, the law extends these provisions to misdemeanor convictions for domestic violence.
Under the provisions of the legislation, any misdemeanor offense that involves the use of physical force or the threat of a deadly weapon constitutes an act of domestic violence if it is committed by (a) a current or former spouse, (b) a past or present cohabitating partner, (c) a person with whom the perpetrator has a child in common, or (d) a parent or guardian. An offense need not be legally labeled “domestic violence” by state statute to invoke the provisions of the federal law as long as it meets the above criteria. Convictions for misdemeanor battering render citizens ineligible to possess firearms or ammunition regardless of whether the conviction occurred before or after the law was passed unless they can get the conviction expunged or secure a pardon. Citizens in possession of firearms or ammunition in violation of this law are instructed by the Bureau of Alcohol, Firearms, and Tobacco (BATF) to surrender these items to their attorney, local law enforcement officials, or a licensed gun dealer. Violations of the law are punishable by a fine of $250,000 and/or imprisonment up to 10 years.
Most federal legislation having firearms provisions exempts police and military employees7 and the Lautenberg Act did not specifically set out to break new ground in this respect. Ironically, lawmakers supportive of “guns-rights” removed the military and police exemption in an attempt to defeat the bill as originally proposed. The approach failed and the bill passed as part of an all night legislative hearing conducted by a Congress desperate to pass an appropriations bill to avert a government shutdown. Apparently, then, the bill was passed before significant opposition could be marshaled. Shortly after passage of the bill, attempts were made to exempt police and military personnel and eliminate the retroactive provision of the act. Once the original legislation passed, however, it became difficult to argue for a repeal. Doing so might suggest police officers and the military should be treated more leniently than the general public.
Nonetheless, some local and national police organizations sought to modify the act. They argued that the law will involve extensive labor to identify officers with convictions and that it may result in the firing of large numbers of officers, some of whom may be very competent but have older convictions of domestic violence on their records. These organizations argued the law is too broad and that its retroactive provision is unfair to officers who might have pled guilty to get a charge resolved rather than mount an expensive and drawn out legal defense without ever knowing that it would cost them their jobs.
In contrast, advocates of the legislation tend to quote relatively high estimates of battering by police officers and stress the need for laws which remove batterers from the occupation. They argue that police officers should not be treated differently than other batterers in society and ask why these officers should be granted special privileges and be allowed to possess weapons when other batterers cannot. Advocates also argue that police batterers are probably less apt to enforce domestic violence laws and that they should, therefore, be removed from the profession. The media’s intense focus on the topics and the issues raised by both sides have given unprecedented attention to the issues over the last two years.8 Unfortunately, there is a tendency for both sides, as well as the media, to rely upon relatively few studies on the topic with little or no mention of the empirical deficiencies of these studies.
LITERATURE REVIEW
Very little literature directly addresses battering committed by police officers. A search of the literature located two such studies, only one of which is published. The unpublished study by Johnson reportedly surveyed 728 police officers and 479 spouses of police officers in two East Coast departments during the 1980s.9 Johnson found that 40 percent of the officers surveyed indicated they had behaved violently toward their spouses and/or children in the previous six months. Ten percent of the officers’ spouses indicated they had experienced physical violence at the hands of their police-husbands. Abuse, however, was not defined, and the context of the acts is not clear. This makes it impossible to determine what types of acts occurred and whether the violence was aggressive or defensive in nature.
The second published study conducted by Neidig, Russell, and Seng10 more clearly defined abuse, but failed to establish the context in which the violence occurred. The researchers surveyed 385 male police officers, 115 female police-spouses, and 40 female police officers attending in-service training and law enforcement conferences in a southwestern state. Using a modified version of the Conflict Tactics Scale (CTS), 11 respondents were asked whether they had engaged in serious or minor family violence. With respect to minor violence, 27 percent of the male officers reported being victimized by their spouses, compared to 25 percent who reported having engaged in violence. In contrast police-wives and female officers reported that they themselves were more apt to commit minor violence (30% and 27% respectively) than to experience it at the hands of their police-husbands (25% of the wives and 17% of the female officers). These differences, however, did not reach statistical significance. In a similar vein, male officers were more apt to report that they had experienced severe violence at the hands of their spouses (6%) than to report that they themselves had committed violence (3%). Wives of officers reported that they were equally likely to commit violence themselves or to be victimized by their police-husbands (3%). In contrast 20 percent of female officers reported that they had experienced severe violence committed by their spouses, and none reported having committed severe violence. Small sample sizes make it impossible, however, to determine whether these differences were significant. In general, then, the findings of this single study suggest that mutual violence exists in police families.
Perhaps more important, the Neidig study concludes by asserting that violence in law enforcement families is disproportionately high when compared to military families and the general population. The study reports that 41 percent of law enforcement families have experienced some form of “relationship violence” compared to 32 percent of military families12 and 16 percent of the general population.13
This study empirically investigates the impact of the Lautenberg Act on law enforcement agencies in Kentucky to determine whether a significant proportion of agencies have been affected by the law and to determine whether a significant percentage of Kentucky officers will be forced to find alternative employment. The study also measures whether law enforcement officials are aware of the new legislation and describes what actions agencies are taking to comply with the legislation. These findings form the basis for policy recommendations to either bring Kentucky law enforcement agencies into compliance with the legislation or to enhance their responses. The study discusses the impact of the law as perceived by Kentucky law enforcement officials.
METHODOLOGY
Survey
A 45-item survey was developed for this study. The survey measured
basic demographic information including the size of the population
served by each law enforcement agency, the number and gender of officers
employed, and the government level of the agency (municipal, county, or
state). It also asked whether Kentucky agencies had or planned to have
a domestic violence unit, whether they have a domestic violence policy,
and whether they employ community policing. The survey solicited basic
information about the number of law enforcement officers convicted of
domestic violence, the agencies’ formal responses to those convictions,
and individual officers’ actions to mitigate the effects of a
conviction. The survey also asked respondents to indicate what
organizational measures they use to detect convictions and to determine
what actions take place when officers with domestic violence convictions
are discovered. Additionally, information was collected to measure
respondents' understandings of the federal legislation and its
requirements. Finally, law enforcement officials were asked to discuss
their perceptions of the impact of the law and to describe any
activities undertaken to influence legislation in this area of law.
Population and Sample Characteristics
The population for this study was all municipal and county law enforcement agencies in Kentucky. This resulted in a population of 401 law enforcement agencies.14 Of the 401 agencies in the population, 281 were municipal departments and 120 were sheriff departments.15 An initial mailing was made to each police chief or sheriff in this population in November 1998. It included the survey and a cover letter along with a promise of confidentiality. A second wave of surveys was administered in December 1998 to all non-respondents. The two waves of mailings resulted in 217 surveys being returned for a total response rate of 54 percent. This response rate is adequate to allow meaningful statistical analysis.
The sample consisted of 217 respondents and represents the experiences of over 4,400 law enforcement officers in Kentucky. Approximately 76 percent of the responding law enforcement agencies (n = 164) were municipal police departments, while 24 percent (n = 53) were county departments. Eighty-four percent of the agencies were in small jurisdictions (25,000 inhabitants and under), 10 percent were in medium jurisdictions (26,000-50,000), and six were percent in large jurisdictions (51,000 and above). The number of law enforcement officers employed by agencies ranged from one to 688, with the average being about 20 officers and the mode being four officers. Obviously, these figures varied significantly across Kentucky.
RESULTS
Domestic Violence Policies and Units
The vast majority of departments (91%) reported having a general domestic violence policy. Interestingly, the size of the agency, the presence of a domestic violence unit and the size of the jurisdiction (city size) were not significantly associated with the existence of a domestic violence policy.16 Neither was the political subdivision of law enforcement agencies. Nearly, 92 percent of municipal agencies had a policy compared to 89 percent of the county departments. Departments with domestic violence units were not significantly more likely to have a domestic violence policy. Agencies that reported using community policing, however, were significantly more likely to have domestic violence policies (93%) than those that did not (82%). Far fewer law enforcement agencies had developed domestic violence policies dealing specifically with the issue of domestic violence committed by police officers. Only, 44 percent of Kentucky law enforcement agencies had a policy dealing specifically with this issue.
Only a very small percentage of the departments (7%) had a domestic violence unit, although an additional eight percent reported that they planned to institute one in the following year. This finding is most likely the product of the large number of small agencies in Kentucky where it may be impracticable to create special units. Domestic violence units are significantly more common in larger agencies and jurisdictions; 33 percent of the departments in the largest jurisdictions, 14 percent in the medium areas, and 4.5 percent in the small areas had special units. Political subdivision was not significantly associated with the presence of a domestic violence unit; municipal and county agencies were equally likely to have units.
The majority of departments (85%) professed adoption of community policing. Neither the size of the agency nor the size of the jurisdiction were significantly related to a department's inclination to use community policing. Municipalities, however, were significantly more likely than county agencies to employ community policing (88% and 72% respectively). Departments using community policing also were significantly more apt to have domestic violence policies (93%) than departments without community policing (82%). However, departments using community policing were not significantly more likely to have domestic violence units (7%) than departments without community policing (12%). Likewise, 57 percent of law enforcement agencies that used community policing had a specific policy on domestic violence by police officers compared with 44 percent of agenices without community policing. These findings suggest that while the size of an agency may determine its ability to create a domestic violence unit, an agency's policing philosophy may better predict its attention to policy development.
Knowledge of the Legislation
Three survey items were used to assess respondents’ knowledge and awareness of the new legislation. Rather than testing the individual respondent’s knowledge of the law, respondents were asked whether certain actions were allowed in their departments.17 The first item stated that: “Police officers who have been convicted of a misdemeanor domestic violence charge may possess weapons, but only while on duty.” The second item stated that: “Police officers may possess weapons on duty if convicted of a misdemeanor domestic violence charge as long as this charge occurred over five years ago.” The third item stated that: “Police officers may not possess weapons, even while on duty, if they have been convicted of a misdemeanor assault involving someone they cohabit with or someone with whom they have a child in common.” Virtually all of the respondents (94%) correctly reported that officers were prohibited from carrying a weapon if they had misdemeanor, domestic violence convictions, and 92 percent correctly reported that officers were not allowed to possess guns if the conviction was over five years old. Respondents appeared somewhat less sure on the third question; 25 percent incorrectly reported that the law did not apply if the conviction involved cohabitating relationships or relationships where a couple have a child in common.
These individual items were combined to form a “knowledge scale” which was used in subsequent analyses. It is a simple additive scale with a range of 0 to 3. The mean for the scale was 2.1 which suggests that most respondents had good working knowledge of the law.18
Few variables were associated with knowledge of the law. All respondents from small agencies had a good working knowledge of the law while about 85 percent of the respondents from medium and large agencies had a good working knowledge of the law. Similarly, respondents from small and medium size jurisdictions had a significantly better working knowledge of the law than did their counterparts from large jurisdictions. This finding may be the product of agency size, where police executives in small agencies must have a better overall knowledge of the law while their counterparts in larger agencies may rely on legal advisors and other specialists for information. Municipal agencies had a better working knowledge of the law than their county counterparts. Ninety-two percent of municipalities had a good working knowledge of the law whereas only 82 percent of county agencies did so.
Departmental Action
Respondents were asked about a variety of organizational responses to the legislation in several survey items, and they were provided with an open ended question which asked them to elaborate upon any actions which were not addressed in the survey. Only 18 percent of the departments reported that they have instituted counseling programs or other preventive measures to assist officers who may have problems with domestic violence. Surprisingly, only 27 percent of the departments specifically included questions on their employment applications to screen for prior domestic violence convictions. In contrast, the vast majority of departments (84%) reported that they run criminal background checks on all potential applicants and check misdemeanor convictions to ensure that none involve domestic violence (85%). Only a small percentage (17%) of departments, however, run annual background checks to detect domestic violence convictions after employment, and only about a third (36%) of the departments had requested that prosecutors or other court officials notify them in the event that an officer was involved in domestic violence.
It appears that police departments have made few organizational changes to detect batterers in blue. Few departments have taken the very basic steps of altering their application forms or modifying their personnel policies. Even fewer departments plan to routinely conduct background checks on an on-going basis. Instead, it appears clear that many departments believe that an initial background check will suffice in this area, and in all likelihood, most of these departments probably have been running pre-employment checks for quite some time.
A slight majority (54%) of the departments indicated that they distributed memos to notify police officers about the new egislation. Departments were not very prone to change their policies; only about 39 percent of the departments had modified their personnel policies, and only 46 percent had changed their domestic violence policies in response to the legislation. Even fewer (27%) had modified their internal affairs (IA) process.
Survey items also were used to create an action scale which assessed departments' cumulative efforts to address the new law. The scale ranges from 0 to 10 and evaluates whether departments have (a) altered their employment applications, (b) completed background checks, (c) planned to implement annual background checks, (d) circulated memos, (e) instituted some type of waiver/form, (f) modified IA processes, (g) modified policies of any kind (domestic violence, personnel, or other policies), (h) taken preventive actions, or (i) engaged in other types of action. The scale had a mean of 4.3 which indicates that while Kentucky law enforcement agencies were somewhat active in addressing the new law, there was still room for improvement. The national score by law enforcement agencies on this same scale was only slightly higher.19
Several variables were associated with a department’s willingness to act. Municipal departments were more likely to have taken extensive action to address the legislation than were county departments. Interestingly, departments that professed to have adopted community policing were more likely to have taken action on this issue than those that reported not adopting the police philosophy. Likewise those departments that had engaged in training on the issue were more likely to have developed courses of action to address the problem. In all it would seem that those agencies that are more progressive in philosophy and training are also more proactive in developing solutions to the problem of domestic violence among police. Table 4 presents data from this study as well as data from a national study of domestic violence by police. The data show that Kentucky law enforcement agencies fall short in some areas that could help prevent domestic violence among officers, but excel in other areas.
The Effect on Departments
Contrary to the self report studies on domestic violence among police, but consistent with the police deviancy literature, a very small number of departments and only a handful of officers were directly affected by the law. Only 12 officers were reported to have been involved in a domestic violence conviction that would render them ineligible to carry a firearm. Only about four percent of Kentucky departments identified officers with convictions for misdemeanor domestic violence offenses. Departments reported that of the 12 officers identified, two were terminated, two were forced to secure legal counsel, and seven had their convictions expunged. Presumably the remaining officer’s case had not yet been resolved. In short, 58 percent of the officers detected with domestic violence convictions were presumably still on the job performing police functions. Given the relatively few officers and departments that have been affected by the legislation, one is hard pressed to understand the national concern over this legislation or media reports that provided unrealistically high estimates of the number of police officers who would be adversely affected.
Predictably, larger departments were more affected by the legislation; eight percent of departments serving in large jurisdictions had experienced some form of direct effect compared to four percent of medium size departments and zero percent for small departments. No other variables accounted for the different rates at which departments were affected by the legislation. Despite the limited effect of the legislation, Kentucky law enforcement officials expressed concern over the law. More than 76 percent of law enforcement officials expressed either serious or moderate concern, while just 12 percent expressed only minor or no concern over the legislation. None of the variables collected in the survey were significantly related to the level of concern Kentucky police officials expressed over the legislation. This finding suggests that law enforcement officials’ views of the legislation may have been shaped by media coverage of the issue more than any real effect of the legislation.
DISCUSSION AND IMPLICATIONS
The passage of the Lautenberg Act was met with intense, but short-lived media attention. Much speculation surrounded passage of the act with proponents and opponents making claims about the effect it would have on law enforcement. While many predicted that large numbers of agencies and officers would be adversely affected, the present research indicates that the law has had a minimal effect on police officers and law enforcement agencies in Kentucky. In fact, an insignificant number of enforcement officers and agencies have been adversely affected by the legislation. Of the relatively few officers detected with domestic violence convictions, most had their convictions expunged and a majority of the remaining officers' cases had yet to be resolved.
While the vast majority of Kentucky law enforcement agencies had a good working knowledge of the legislation and most expressed concern about its provisions, far fewer took more than the most basic actions to conform with the new law's provisions. While this approach is in keeping with national trends, it leaves agencies vulnerable to civil liability should an officer with a domestic violence conviction go undetected and commit an act of violence in the course of employment. Law enforcement agencies, generally, need to be more proactive in their efforts to prevent and detect domestic violence among their officers.
By and large neither proponents nor opponents' predictions and concerns with the legislation have come to fruition, and the actual number of batterers in blue remains largely unknown. We do know, however, that the number of officers with convictions detected to date has been very small. The lackluster police response to this legislation renders the law largely symbolic, but subjects departments to civil liability risks and charges that law enforcement is not being responsive to either the legislation or the issues surrounding family violence.
NOTES
1. Berk, S. and Loseke, D. (1980). Handling family violence:
Situational determinants of police arrest in domestic disturbances. Law
and Society Review, 15 (2): 317-346; Goolkasian, G. (1986). Confronting
domestic violence: A guide for criminal justice agencies. National
Institute of Justice, Research in Brief. Washington, D.C.: U.S.
Department of Justice; Goolkasian, G. (1986). Confronting domestic
violence: The role of criminal court judges. National Institute of
Justice, Research in Brief, Washington, D.C.: U.S. Department of
Justice; Loving, N. (1981). Spouse abuse: A curriculum guide for police
trainers. Washington, D.C.: Police Executive Research Forum; Waits, K.
(1985). The criminal justice system’s response to battering:
Understanding the problem, forging the solutions. Washington Law Review,
60: 267-329.
2. Buzawa, E. and Buzawa, C. (1993). The scientific evidence is not
conclusive: Arrest is no panacea. In R. Gelles and D. Loseke (Eds.),
Current controversies on family violence (pp. 337-356). Newbury Park,
CA: Sage, p. 338.
3. Berk and Loseke (1980); Buzawa, E. and Austin, T. (1993).
Determining police response to domestic violence victims: The role of
victim preferences. American Behavioral Scientist, 36 (5): 610-623;
Dolon, R., Hendricks, J. and Meagher, M. (1986). Police practices and
attitudes toward domestic violence. Journal of Police Science and
Administration, 14 (3): 187-192; Dutton, D. (1988). The domestic assault
of women: Psychological and criminal justice perspectives. Boston: Allyn
and Bacon; Worden, R.and Pollitz, A. (1984). Police arrests in domestic
disturbances: A further look. Law and Society Review, 18 (1): 105-119.
4. Eigenberg, H., Kappeler, V., and Scarborough, K. (1996).
Contributory factors affecting arrest in domestic and non-domestic
assaults. American Journal of Police, 15(4): 55-77.
5. Kappeler, V.E., Sluder, R. & Alpert, G.P. (1998). Forces of
deviance: Understanding the dark side of the force. Prospect Heights,
IL: Waveland Press.
6. This attitude is well documented in the literature on police
culture and deviance generally. See, Kappeler, Sluder, and Alpert
(1998); Reuss-lanni, E. (1983). Two cultures of policing. New
Brunswick, NJ: Transaction Books; Savitz, L. (1971). The dimensions of
police loyalty. In Hann, H. (Ed.) Police in urban society. Beverly
Hills, CA: Sage; Skolnick, J. H. (1966). Justice without trial: Law
enforcement in a democratic society. New York, NY: Wiley; Stoddard, E.
R. (1968). The informal code of police deviancy: A group approach to
blue-collar crime. Journal of Criminal Law, Criminology and Police
Science, 59(2):201-213. The attitude is particularly acute regarding
women in law enforcement. See, Balkin, J. (1988). Why policemen don’t
like policewomen. Journal of Police Science and Administration, 16 (1):
29-38; Christopher, W. (1991). Summary: Report of the Independent
Commission on the Los Angeles Police Department. Los Angeles, CA: City
of Los Angeles; Haarr, R.N. (1997). Patterns of interaction in a police
patrol bureau: Race and gender barriers to integration. Justice
Quarterly, 14(1): 53-85; Hunt, J. (1990). The logic of sexism among
police. Women & Criminal Justice, 1(2):3-30; Kraska, P.B. and Kappeler,
V.E. (1995). To serve and pursue: Exploring police sexual violence
against women. Justice Quarterly, 12(1):85-111; Morash, M. and Haar, R.
(1995). Gender, workplace problems and stress in policewomen.” Justice
Quarterly, 12(1):113-140.
7. This is similar to the VAWA provision which allows police officers
with a valid protective order to possess a weapon while on duty.
8. For examples of these issues and media coverage see, Lautenberg,
F.R. (1997). Domestic violence gun ban. The Washington Post, April 3;
Levinson, A. (1996). Federal gun ban hard to enforce. Associated Press,
December 11; Pace, D. (1997) GOP blocks retroactive gun ban. Associated
Press, January 8; Reibstein, L. and Engen, J. (1996). One strike and
you’re out. Time, December 23.
9. cited in Neidig, P., Russell, H., and Seng, A. (1992). Interpersonal
aggression in law enforcement families: A preliminary investigation.
Police Studies, 15 (1): 30-38.
10. Neidig, Russell, and Seng (1992).
