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Brooklyn Law Review

Bonnie Carlson

Abstract

State actors are imbued with the power of the government to enforce and apply the law. When they use that power to instead inhibit a law’s enforcement, they are engaging in subversion. Subversion is problematic on its face: it frustrates legislative intent, creates confusion, and destabilizes the separation of powers foundational to our democracy. But subversion is particularly insidious when it is done to the detriment of vulnerable individuals. That is the case when state prosecutors and judges purposefully undermine federal law intended to keep firearms out of the hands of abusive partners. Guns and domestic violence can be a lethal combination. In the 1990s, Congress recognized this danger and passed two important pieces of legislation: one barring individuals subject to a protection order from possessing firearms, and one prohibiting the same from individuals convicted of domestic violence. While these laws passed through Congress with bipartisan support, and while their constitutionality has been continually upheld in court, there are state prosecutors and judges who use their position to subvert the legislation. Some prosecutors undercharge crimes of domestic violence to avoid triggering the gun ban, and some judges cross out mandatory gun prohibition language in protection orders. These officials have abdicated their responsibility to enforce and uphold the law, instead relying upon their own judgment about the importance of abusive partners continuing to have access to firearms. This article discusses examples of subversion compiled from interviews with practitioners, newspaper articles, and several statewide studies. After uncovering this harmful practice, this article proposes several practical, client-centered solutions to (1) determine the prevalence of this subversion nationwide; and (2) limit its scope—and potential harm—for victims of domestic violence.

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