AYA FUJIMURA-FANSELOW:
No kidding.
JAKE CHARLES: Are you all ready?
DARRELL MILLER: Yeah.
JAKE CHARLES: All right.
Thank you all.
We're going to get
started in a minute here.
Good afternoon.
Thank you all for being here.
My name is Jacob Charles.
I'm the executive director of
the Center for Firearms Law
here at Duke Law School.
And I want to thank
you all for being here.
October is Domestic
Violence Awareness Month,
as you may or may not be aware.
We're thrilled to have an
exciting panel discussing
this important issue
today on domestic violence
and the role of firearms
in those incidents.
I want to-- before we
get started and turn it
over to our panelists
today, thank our co-sponsors
for the event.
So the Center for Firearms
Law sponsored the event.
And it's also part of the
Human Rights and Practice
series organized by Duke's
International Human Rights
Clinic and the Center for
International and Comparative
Law.
The co-sponsors for the event
are many, and we thank them.
They are the Duke Human
Rights Center at the Franklin
Humanities Institute,
the Duke Human Rights
Center at the Kenan
Institute for Ethics,
the Coalition against Gender
Violence, the Human Rights Law
Society, the International
Law Society, and the Women Law
Students Association.
Thank you.
DARRELL MILLER: Thanks, Jake.
I'm really excited to be
moderating this panel.
Just for those of you
that don't know who I am,
my name is Darrell Miller.
I'm the Melvin G.
Shimm Professor of Law
here at Duke and
one of the faculty
co-directors of the center.
And this is, obviously,
a really timely sort
of evergreen issue about
the intersection of firearms
and domestic violence.
And I'm really delighted to have
this excellent panel together
to talk about this issue.
I'm going to introduce
you to the panelists.
They're going to
spend about 15 minutes
or so making some
remarks, and then we'll
open up the floor to
questions and hopefully
have a sort of robust
discussion here.
So in order of speaking,
to my immediate right is--
my right, your left--
is Sherry Honeycutt Everett.
She is the legal
and policy director
of the North Carolina Coalition
Against Domestic Violence.
She's a native of
North Carolina,
with over 10 years
experience litigating
on behalf of survivors
of domestic violence
and sexual assault.
She holds a JD
from the University of North
Carolina at Chapel Hill,
as well as a master of Arts in
teaching and a BA in history
and women's studies
from UNC Chapel Hill.
And prior to serving
with the Coalition,
Sherry worked on
behalf of survivors
in both private practice
and nonprofit legal sectors
and has experience serving on
councils and other committees
and task forces
dedicated to improving
the lives of survivors
of domestic violence.
To her right is my good
friend and former colleague
Dean Verna Williams.
Dean Williams is the dean
and Nippert Professor
of Law at the University of
Cincinnati College of Law.
Before joining the
College of Law,
Dean Williams was vice
president director
of educational opportunities
at the National Women's Law
Center, where she
focused on issues
of gender equity and education.
During her time at the
center, she was lead counsel
and successfully argued before
the United States Supreme
Court of the United States--
excuse me, the United
States Supreme Court--
in the 1999 case of
Davis vs. Monroe County
Board of Education,
which some of you
that are interested in
education law might have read.
She argued that case,
which established
that educational institutions
have an obligation
to respond and
address complaints
of student-to-student
sexual harassment.
She a cum laude graduate
of Harvard Law School
and a graduate of Georgetown.
Our final speaker is
Aya Fujimura-Fanselow.
She is the senior
lecturing fellow
and supervising attorney here at
Duke in the International Human
Rights Clinic.
Prior to joining
Duke in fall 2017,
she had developed
extensive expertise
in the human rights area of
advocacy, clinical teaching,
fact finding, research,
and litigation
within the United
States and abroad.
Her work is primarily focused
on gender and human rights,
as well as economic,
social, and cultural rights,
transitional justice,
reproductive rights,
and criminal justice with a
focus on pretrial detention.
She is a graduate of Fordham Law
School and Bryn Mawr College.
With that, I'll give
it to the panelists.
SHERRY HONEYCUTT EVERETT:
Thank you, Darrell.
Well, I'd like to thank
Duke for hosting this panel
and for caring about this issue.
I really am happy to be here and
happy to talk to you all more
about this work
that I do every day.
At the Coalition, we
are a statewide agency.
So we're located in
Durham, but we are actually
the domestic
violence agency that
is charged with looking at
this issue from all sides
across the state
of North Carolina.
And my role there as the
legal and policy director
includes, among
some other things,
being our lobbyist to the North
Carolina General Assembly.
So I'm going to talk
to you a little bit
today about North Carolina
State firearms law,
although I know
we're looking at this
from an international
human rights perspective.
We also know that
the actual mechanics
of owning, possessing,
and purchasing firearms
are governed largely
by state law.
So I'd like to talk to you a
little bit about what things
look like in the state of
North Carolina for victims
of domestic violence when
it comes to firearms.
And then I will-- so I'll
start with some statistics,
and I'm going to talk to you
a little bit about what's
happened recently in the area
of firearms law in our state.
And then end with
some action steps
that I think we should be
taking here in North Carolina.
And then I think my
colleagues on the panel
here are going to expand out
into a more broader view,
of more international
and national view,
as I understand it.
So starting first
with North Carolina,
why is it that we care
so deeply about this?
What specific risks are there
for domestic violence victims
when firearms are involved?
Well, we know that the
numbers are staggering.
The chances that a
domestic violence victim
will become a homicide victim
increase by about five times
if there is a firearm
present in the home.
We also know-- we're
tracking at the Coalition
the numbers of domestic
violence homicides
and what weapons were used.
And over a 10-year period
between 2004 and 2014,
there were 284 murder-suicide--
domestic violence
murder-suicides in our state.
98% of those involved a
firearm in at least one
of the two deaths.
So this is a very particular
area of concern for us
at the Coalition,
as we look for ways
to decrease risk and
increase safety for victims
of domestic violence.
Unfortunately, over the
last few years in our state,
there are some
important protections
for domestic violence victims
which have been eroded.
And so I'm going to
tell you about that,
in both the criminal
sort of area
and also the civil area
of law the ways in which
some of these protections for
victims of domestic violence
are actually decreasing.
So we know from a really
great study by Michael Siegel
that when we have
state domestic violence
laws that cause perpetrators
of domestic violence
to surrender and prevent them
from possessing firearms,
we know that homicide
rates go down by about 14%.
So in states where those
laws exist and are strong,
we know that there are
14% fewer homicides.
For that reason,
at the Coalition,
we're really concerned
with how we strengthen
and how we maintain those
protections in our state's
domestic violence codes.
And so, unfortunately,
in 2015, we
had a state case,
Stancill versus Stancill.
And what happened,
in a nutshell--
I won't get too into the weeds
of the legal technicalities--
but in our state's domestic
violence restraining order
statute, we have four instances
in which prior to the Stancill
case we had interpreted our
statute as requiring surrender
of firearms and that a
defendant not possess them.
And those four
cases where the use
or threatened the use
of a deadly weapon
or the pattern of a use
of or threatened to use--
threats to seriously injure
or kill the aggrieved party,
threats to commit
suicide by the defendant,
and serious injuries that
were inflicted on the victim.
In the Stancill case,
what actually happened
is the judge-- the
Court of Appeals said,
these are the only
times that a judge
is allowed to order the
surrender of firearms.
And those four high-risk
factors did not
include a range of
behaviors that we
know are very
high-risk that increase
the chances of a
victim's lethality.
Including-- the biggest one I
can think of is strangulation.
We know that strangulation
often does not
leave visible injuries.
So that category there of
causing serious bodily injuries
is not necessarily
covered by that factor.
And so after the
Stancill case came out,
judges across the state
began saying, well,
none of these four
factors are present,
therefore we cannot order
that this defendant surrender
their firearms.
And in fact, that has been
tested a couple of times
since the Stancill case in 2015.
And it is the fact that this
is the law in North Carolina.
So at the Coalition, we
included in this year's
legislative long session
on our legislative agenda
the goal of trying to correct
for that outcome in Stancill
and to restore a
judge's discretion
to remove firearms
and additional factors
besides those four
that were listed.
And we did get a sponsor,
and we did run that
through the legislature.
But the thing that
happened is the thing
that very often
happens, which is
that it becomes a very heavily
polarized political issue.
And so when I spoke at our
judiciary committee meeting
on this law, it quickly
became highly partisan
and quickly became a debate
between the Republicans
and the Democrats
and the judiciary
about taking our guns away
and Second Amendment rights.
And so that vote was taken--
it didn't get out of committee.
It actually was 13 to 14,
with straight party lines,
and we were not successful
in making that change
and correcting for Stancill.
So that's a problem that we
still have in our state law
on the civil side of things.
On the criminal side
of things, we also
have an issue that
needs to be resolved,
which is federal firearms
law prohibits someone
who has been convicted of a
crime of domestic violence,
a misdemeanor crime
of domestic violence,
from possessing a firearm.
But the definition of the
crime of domestic violence
includes the use
of physical force.
And the problem in
North Carolina with that
is that our misdemeanor
assault statutes
include the potential for
someone to be convicted
from behaviors that come from
a state of mind that's culpable
negligence.
And so because that is
not actual willful force,
the United States
Supreme Court has
said that our statutes are not
in the category of misdemeanor
offenses that are crimes
of force for purposes
of preventing a
defendant from possessing
a firearm under federal code.
So those are two very North
Carolina-specific issues
that we currently have and
different groups of folks
and agencies have been looking
at ways to correct for those.
But the truth is,
despite the fact
that we try our best to frame
this as an issue of protections
for victims of
domestic violence,
and we are very careful
about making sure
that we have the best
research and statistics
as we go about talking
to legislators,
the truth is, it becomes
very political very quickly.
And we also know that a
lot of times, statistics
are just not
persuasive for people
who feel very strongly about
firearms-related gun control
rights.
And even we had House Bill 454,
which was introduced earlier
in this session, and following
the three mass shootings
that we had over a
period of eight days,
there was a group
of legislators who
tried really hard
to get that out
of committee and onto
the floor for a vote.
But the House leadership
simply wouldn't move that bill.
Even in the face of a
lot of public support,
it still didn't go anywhere.
And our legislators see
themselves as very beholden
to their constituents
who across North Carolina
are extremely passionate about
their Second Amendment rights.
And so, with all of
that said, I think
that going forward, what
the coalition's position
on firearms remains
and continues to be
is that we are looking at this
through a victim's rights,
survivors rights framework.
How can we reduce risk?
How can we increase
safety factors?
We try to stay out of the
political side of things,
but we can't because this is
a politically-charged issue.
And despite the fact that we try
to keep the focus on victims'
rights, it tends to spiral out
of our control in that way.
So with all of that said, I
would always welcome any of you
to reach out to the Coalition
and find out more about this
our work with victims and
survivors of domestic violence
as it relates to
firearms in our state.
And I'm happy to entertain
any questions now
or after my fellow
panelists talk here
in just a few minutes.
Thank you.
DARRELL MILLER: Dean Williams?
VERNA WILLIAMS: Thank you.
Thanks for the invitation.
It's really great to be here.
It's great to get to see
Professor Miller after all
these years, and it's really
wonderful to be here at Duke.
My talks is going to
be very different.
It's based on a
paper that I wrote,
in which I decided to take a
look at the Second Amendment
because I felt
frustrated in reading
cases like McDonald and
Heller, in which the majority
of the court talk about the
Second Amendment right in terms
that they--
to my mind, they didn't
talk about other rights.
To my mind, those cases
suggested the Second Amendment
right to keep and
bear arms is elevated
above all other rights.
And I wondered why.
Why would the court do this?
Because I could think of all
kinds of situations in which
the court--
they're balanced.
There are different
things that we
take into consideration
in terms of when
someone is exercising a right.
And the thing that came
most in my mind, of course,
is looking at another
non-controversial issue,
reproductive rights.
So what is it?
What is it that-- why
does the court treat
this right differently?
Why is this issue so charged?
And I decided to take a--
I'm a critical race feminist.
So I took a view that we called
"social justice feminism"
to examine the Second Amendment.
And social justice feminism
is a kind of feminism
that I heard about from
feminist legal advocates.
In fact, they said, I don't
want to do social justice--
and I don't want to
do feminism anymore
unless it's social
justice feminism.
My colleague Kristin Kalsem and
I decided to figure out-- well,
what do they mean by
social justice feminism.
And we determined that social
justice feminism is about
uncovering and dismantling
social and political structures
that support patriarchy, while
recognizing and addressing
multiple oppressions.
So Martha Chamallast
has called it a new take
on intersectional feminism.
So we're looking at feminism
as an intersex race, class,
and all other types
of oppression.
And so where
feminist legal theory
typically asks the
woman question--
that is, how a particular
law or policy affects women--
social justice feminism
goes beyond that.
It embodies three
core methodologies.
One is looking at
history to understand
subordinating structures.
Two is examining the
interrelationship
between interlocking
oppressions.
And finally, focusing
on bottom up strategies.
So we're looking at history.
We're looking at how does
sex intersect with race,
intersect with class.
And we're also looking at what
people on the ground are doing.
And I apply these
first two methods
to District of Columbia
versus Heller and McDonald
versus Chicago.
And the majority of the
justices in those cases
relied on the
Amendment's history
to find that the Second
Amendment provides
an individual right
to keep and bear arms.
I also looked at the
historical context, from which
the amendment emerged, but I
included the racial and gender
implications of that history.
And I concluded that
the Second Amendment
should be understood as
playing a role in constructing
the concepts of
nation and citizen,
as well as a social hierarchy
in which white men would
be at the top of both.
In this sense, the
Second Amendment
also plays a role in
constructing race and gender.
So first I looked at Heller.
You remember-- I'm sure you all
do that-- in Heller the court's
focus was on the words
of the amendment.
And it broke down the
text to a prefatory
and an operative clause.
The prefatory clause, a
well-regulated militia.
According to the
court, that clause
supports the right to bear arms
because historically, tyrants
suppressed political opponents
by disarming them or enabling
a militia.
But when I apply social
justice feminism,
I observed two interrelated
structural purposes.
The first was protecting
against tyranny
from a central government.
The Second Amendment is
one of several provisions
that limits the ability
of the central government
to establish and
maintain a standing army.
The colonists didn't
like standing armies.
For them, they'd be staffed by
professional soldiers who they
considered to be guns for hire.
So those folks lacked
loyalty to their communities
or the localities that
they purported to serve.
And so the term
"militia" is supposed
to signal a limit on the
centralized government,
as well as a definition of
who deserved and was expected
to serve in that regard--
white males.
And that leads to structural
purpose number two--
constructing race and
gender hierarchies.
And here, I wanted to turn
to the phrase, "the right
of the people," to ask, which
people the framers envisioned.
And it turns out that
similar to militia service,
keeping and bearing arms
was a privilege afforded
to certain people.
Historian Alexander
DeConde writes
that in England,
access to firearms
was limited to gentlemen.
And that tradition
traveled across the ocean
with the colonists.
And so in the New
World, the wrong men
were native and black.
So for example, in
Virginia, the law
punished selling or
trading firearms to Indians
with property forfeiture
or even death.
An 18th century
Virginia statute said--
excuse me-- barred
black and native men
from serving in militias
unless they were servile labor.
That is, drummers or
trumpeters or serving people.
By excluding black and native
men from gun ownership,
the legal regime
signaled who was
fit for protecting the state
and communities and who was not.
And in so doing, the regime
deprived black and native men
the markers of masculinity
and its privileges.
And so it rendered
them like dependents.
That is, like
women and children.
So framers had to be aware
of this legal regime.
This was something that
they were operating--
a context within which
they were operating.
Fast forward to the 19th
century and the court's opinion
in Dred Scott, and there there's
language that confirms it.
In concluding that
the framers never
intended to make
African-Americans citizens,
the Justice Taney remarked
on the absurd implications
of such a notion.
Quote, "It would give two
persons of the Negro race
the right to keep and carry
arms wherever they went
and inevitably produce
discontent and insubordination
among them,
endangering the peace
and safety of the nation."
Turning next to McDonald,
in which the court examined
the Reconstruction era to
hold that the Second Amendment
applies to state governments.
The court focused
on white attempts
to disarm newly-freed blacks.
To support its
conclusion that the right
applies to individuals
for self-defense.
But social justice feminism
reveals that more was at stake.
True enough, the enactment of
the 14th and 15th amendments
and implementing legislation
sparked violent resistance
among Southern rights.
Commentators have explained
that the Civil War
loss was a humiliating
blow to white men.
With emancipation, black men
no longer were dependents
and white men no longer
were the lone heads
of households, ruling over
property, human and otherwise.
Improving black man's
status was deemed
as a demotion for white men.
And so the former Confederates
turned to laws and violence
to counter black progress.
They enacted slave
codes to constrain
African-American
freedom, and these codes
included laws that prohibited
blacks from buying, owning,
or using firearms.
States also forbade blacks from
serving in militias and voting.
Reserving these two
important markers
of citizenship and masculinity
for white men, just as
was true before the Civil War.
With the reconstruction
amendments,
Congress overturned
these black codes,
extended the voting rights,
and made birthright citizenship
explicit.
White Southerners also
turned to violence and terror
to return to the
status quo ante.
As militiamen, some still in
their Confederate uniforms,
they targeted newly freedmen
and Republican officeholders.
Congress temporarily
disbanded the militias
in certain states of the
Confederacy to protect both.
In the face of
arguments that doing so
violated the Second Amendment.
Federal lawmakers
argued in return
though that they had to do
so to quell the continuing
Southern rebellion.
When the violence
didn't abate, Congress
acceded to Republican request
to repeal that legislation,
making the way for
black militias.
And the combination of armed
black men protecting the state
and voting, in addition
to their new status
as autonomous actors,
made matters even worse.
It repudiated the
antebellum social order
and threatened white patriarchy.
White supremacists
redoubled their efforts
to vindicate the notion that the
United States was a white man's
country, and groups like
the Ku Klux Klan emerged.
They had different
names, but I'll
call them the Klan just
for purposes of simplicity.
And their purpose was
to protect, quote,
"females, friends, widows,
and their households."
And one of their strategies
was disarming the black militia
and preventing black men from
exercising their right to vote,
and it represented
an incident as one
that happened in
Hamburg, South Carolina.
The triggering event
happened on July 4, 1876.
You'll notice that's
the nation's centennial,
and it was an election year.
Black militia
soldiers were drilling
in anticipation of a parade
until two white men spotted
them, Thomas Butler
and Henry Getson.
These two men were outraged
by the sight of black men
armed and in uniform.
And to make matters worse,
celebrating July 4th.
They had no right to do any of
those things, in their view.
And so the white men claimed
that the black soldiers
were trespassing and
they blocked their way.
And they claimed that
their wagon had worn ruts
in the road, making it theirs.
That the black men
were trespassing.
The soldiers refused to
move, and Butler then,
as a result of the
impasse, went to get
his father, a former
Confederate general, MC Butler,
seeking retribution.
General Butler, for
his part, went to court
and he sought to have the black
soldiers arrested, claiming
that these men had broken the
law by possessing firearms,
by obstructing the
road, and by rioting.
Neither the militia
commander, Doc Adams,
or nor any of the officers
appeared in court.
Instead, they barricaded
themselves in the armory,
getting ready for
the violence to come.
General Butler
assembled a posse.
White residents got wind
of what was going to come
and they fled.
The battle started at
7:00 in the evening
and lasted until
1:00 in the morning.
And after it was over,
the posse capture 29 men,
killed five of them
after shooting them
when they attempted to escape.
And reports of the time
say that Butler's men
dismembered the decedents
and paraded their remains
to bystanders, including
the men's children.
Then South Carolina governor
Chamberlain sought assistance
from the federal government,
and President Grant
stated that this massacre
was outrageous, but sadly,
not uncommon.
Indeed, the Congress held
hearings about such outrages
around this time period,
but really nothing happened.
And indeed, MC Butler
went unpunished.
He later was elected to
United States Senate in 1877.
So what do you make of all this?
What do we make of all of this?
Well, here's a few things.
Black exercise of their
rights was construed
as illegal and a threat.
White attempts to
disarm blacks was
about reconstructing
the nation as white
and reinforcing white supremacy.
Whites alleged self-defense
to justify disarming blacks.
The self they were defending
was the antebellum concept
of nation and citizen.
The freedmen also asserted
a right to self-defense,
and it was their newly
enfranchised and legitimized
citizen self.
The last thing I'll
mention is there
was a question that
Professor Miller asked,
which is what can we use?
How can this perspective give
us any traction in this area?
A few thoughts I had
include the following.
That the Second Amendment
remains deeply tied
to contested notions of nation
and citizen, which helps,
I think, to explain why there's
so much heat around the issue.
Gun ownership and their use
have never been unfettered--
that's an important
point to take away--
but they are contingent
upon race and gender.
When we look at guns in
the Second Amendment,
I would also suggest
we need to be
thinking about the racial
and gender dimensions.
And the epidemic
of mass shootings
has finally put those
issues on the table.
As California Governor
Gavin Newsom asks,
quote, "Why does it have to be?
Why is it men
dominantly always?"
He might have modified that
question to include race,
because in the context
of mass shootings,
it is usually white men.
And the other gender
dimension here
is the connection
between mass shootings
and domestic violence.
The Washington State
Institute for power
public policy and the
Center for American Progress
have both found such a link.
That mass shooters
practice their aggression
on intimate partners before
moving to acts of terror
encompassing more people.
So if we see the gender and
racial roots of gun culture
and resistance to
gun regulation,
we can take steps, albeit
incremental, to challenge both.
Thank you.
DARRELL MILLER: Thank you.
Aya.
AYA FUJIMURA-FANSELOW:
Thank you.
It's great to be on this
panel to join Dean Williams
and Sherry.
So I will be speaking
on the issue of guns
in domestic violence from the
international human rights
perspective.
And this is partly
coming from some work
that the International
Human Rights
Clinic has done on this issue
for the last several years
in partnership with
Amnesty International,
including with a
couple of students
who were in the room have been
working on this project very
helpfully.
So I wanted to share--
start off by sharing
some data with respect to
guns and domestic violence
to sort of set the stage for the
issue that we're talking about.
And then turn to how
we address these issues
and what specifically an
international human rights
framing can bring to a
discussion about guns
in domestic violence,
especially as we
advocate for changes to be made
to these gun laws and policies.
So a little bit of
data on this issue.
First is that guns are the
most frequently used weapon
in fatal intimate partner
violence against women
in the US.
In an average month,
50 American women
are shot to death by
intimate partners,
and many more are injured.
From 2001 to 2012,
of all the women
killed by intimate partners,
55% were killed with guns.
The second statistic
is something
that Sherry also mentioned,
but I think is worth repeating.
It's something that strikes
me every time I read it.
Which is that the presence
of a gun in domestic violence
situations increases the
risk of intimate partner
homicide for women by 500%.
Guns are also often used in
non-fatal intimate partner
violence against women, with
significant, often lifelong,
adverse consequences.
For example, about
4.5 million women
have had an intimate partner
threaten them with a gun,
and nearly one million
have been shot or shot
at by an intimate partner.
Guns are also prevalent
in workplace homicides
among US women perpetrated
by intimate partners.
So in workplace homicides among
US women between 2003 and 2008,
nearly 80% of the personal
relations homicides
were perpetrated by
an intimate partner,
and firearms were used in a high
percentage of these homicides.
And there's a lot more
data on these issues.
I just wanted to share a
few of these statistics.
So moving from this very
sobering data about guns
and domestic violence, how do we
go about advocating for change?
And how do we pressure
the US government
to change its laws and
policies with respect
to guns and domestic violence?
And specifically, what does an
international human rights law
perspective bring
to this discussion
and to this advocacy?
And what this framework
allows us to do
is to show that
the US is violating
its international human rights
obligations when it comes
to guns and domestic violence.
So how do we do this?
First is that in advocating for
changes to laws and policies
on firearms, the human
rights framework can
provide an additional framing.
So when talking about guns
and domestic violence,
we're obviously talking
about the private sector.
So private actors, violence
that happens within the home.
And so how are we
able to hold the US
government accountable
for something that happens
in the privacy of the home?
And the answer is that under
international human rights law,
governments have what we call
a due diligence requirement,
which means that governments
must protect individuals
against human rights abuse,
even by private actors.
So there is no requirement
that law enforcement or police
or government actors
have to be involved.
And what this means
in practice is
that governments,
including the US,
must first prevent gun
violence in domestic violence
situations.
When the violence
occurs, they must
take steps to investigate
and prosecute perpetrators.
And they also must assist
and protect victims,
including by ensuring remedies.
And so this framing of using
the due diligence requirement
under human rights law allows
us to demand US Government
accountability for
violence, including that
committed by private actors.
A second way in which the
human rights framework
can be helpful in our
advocacy around guns
and domestic violence
is that it allows
us to draw on
international human rights
obligations and
treaties that do carry
binding legal obligations.
So the US has ratified a couple
of key human rights treaties,
including the International
Covenant on Civil and Political
Rights and the Convention on
the Elimination of all Forms
of Racial Discrimination.
The US has also signed, but
not ratified, several treaties
that are relevant for
this issue in particular,
such as the Convention
on the Elimination
of All Forms of Discrimination.
And there is a distinction
between ratification
and signing, but even if the US
has only signed these treaties,
the government still
has obligations.
And so being able to use these
treaties that the US is bound
to and that contain a
series of different rights
guarantees allow us
to bring pressure
to bear on the US government.
The human rights
framing also allows
us to address a full
range of impacts
that firearms have on different
aspects of individual lives
who are impacted by guns in
the domestic violence context.
So I wanted to talk
through a couple
of these different
impacts and how
they tie to very specific
human rights obligations
under these treaties.
First is that under
all of these treaties,
there is an obligation
of the government
to ensure non-discrimination
and equality.
And when it comes to the use
of guns in intimate partner
violence, there is a
disproportionate impact
on women.
So between 2006 and '14,
an average of 760 Americans
were killed with guns annually
by their spouses, ex-spouses,
or dating partners.
And out of this total
number, nearly 75% of victims
were current wives
and girlfriends.
So we see really a
disproportionately high number
of women who are in packed in
these domestic gun violence
situations.
We also make the argument
that the US government
is in breach of its obligations
to ensure the right to health
and security of
person by not putting
into place particular
laws with respect
to guns and domestic violence.
And that the government
has an obligation,
again, under its
treaty obligations,
to protect life, especially
in the case of individuals
who are especially vulnerable
because of domestic violence.
So Sherry made some reference
to some of the laws with respect
to guns and domestic violence.
And one of those laws
at the federal level
is that an individual who
has a permanent restraining
order against him--
I'll say him here because
the disproportionate impact
of violence on women--
or who has a misdemeanor
domestic violence charge is not
allowed to purchase weapon--
purchase firearms.
There is no requirement
under federal law
for relinquishment of weapons.
So if you have a domestic
violence situation
and the abuser has a misdemeanor
for domestic violence,
they can actually
under federal law
hold on to any existing
firearms that they might own.
And so we make the argument
that very logically,
the perpetrator of
violence would still
be able to use the firearms
in their possession
to commit violence
against their partner
in the domestic
violence relationship.
And that this would
violate the US obligation
to ensure the right to life and
to protect the right to life
of those most vulnerable.
A second example of this
under US federal law
is what is often called
the "boyfriend loophole,"
which you might have heard of.
Which is that laws
restricting access to firearms
do not cover people who
have dated or are currently
dating, unless certain
other requirements are met.
And so, again, we would
make the argument that
by not protecting
domestic violence victims
in this relationship
that the US government is
in breach of its obligations.
This is especially
the case, given
that between 1980 and
2008, close to 50%
of those killed by
intimate partners
were killed by dating partners.
Another right that's implicated
is the right to health.
So even for those individuals
who survive gunshots,
they often face a lifetime
of very serious health
consequences, both
physical as well as mental.
So with mental
health consequences,
we see, for example,
post-traumatic stress disorder,
and that often these conditions
are left untreated and even
undiagnosed.
We also see the ways in
which this right to health
impacts not only the direct
victims of gun violence,
but their families as well.
So for example, children who
are witness to the gun violence.
Family members who end up taking
on caretaking responsibilities
as well.
And another rights violation
that we bring attention to
is the right to work.
Again, something
that is guaranteed
in many international
human rights treaties.
And the fact that
women who are harmed
by gun violence in a
domestic violence situation
might lose their jobs
or have lost or reduced
wages following a gun injury.
And again, here we would
look at the indirect victims.
So the ways in
which family members
might have to take on additional
financial obligations.
Another way in which the
human rights perspective
and framework can be helpful
and advocacy around guns
and domestic violence
is that it allows
us to bring in a comparative
piece from other countries
and to demonstrate best
practices on firearm regulation
and violence prevention.
So while the fatal use
of guns against women
is a problem everywhere, it's
particularly stark in the US.
Women in the US
are 16 times more
likely to be killed
with guns than women
and other high income countries.
So with this, again,
we're able to show
that similarly-situated
countries elsewhere
that have different laws
and policies on guns
have much lower rates
of gun violence,
including as it connects
to domestic violence.
Another benefit of using the
international human rights
framework in this
context is that it
allows us to use
certain underlying
principles of human rights.
So one of which is
intersectionality,
which Dean Williams
also spoke about.
And domestic gun violence
is, indeed, intersectional.
For example, in 2017, which is
the most recent date for which
we have data, black females
were murdered by males
at a rate that was more than
twice as high as white females.
And so this
intersectional approach
allows us to show the
disproportionate and different
impact of domestic gun
violence on racial minorities,
immigrant women, and
LGBTI populations.
The human rights
framework also requires
that the government
collect data,
including disaggregated data.
And we, find with the issue
of domestic gun violence,
that comprehensive
data that analyzes
the rates of domestic gun
homicides, specifically
among racial minorities,
LGBTI populations,
and immigrant communities,
is very much lacking.
And so under a human
rights framework,
we would argue that the
US government must collect
this disaggregated
data to better
understand how differently
situated individuals
and communities are
impacted by these laws
and to then use this
data that's collected
to inform policy changes.
And another benefit of
the human rights framework
is that it can
broaden and diversify
the groups and sort of
category of advocates
that work on this issue.
So, for example, the
Human Rights Clinic
submitted to the UN Human Rights
Committee a report this spring.
So the US government,
as I mentioned earlier,
has ratified this International
Covenant on Civil and Political
Rights.
And as a result must come
before a UN committee
that monitors the
extent to which
the US is in compliance
with this treaty
every couple of years.
And US government officials have
to appear before this committee
and answer questions about their
extent of treaty compliance.
And so we as a clinic
submitted this report
outlining the ways in
which, from our perspective,
the US government is in
breach of its obligations
under this treaty
for its failure
to protect victims
of domestic violence.
So this is a very sort
of official intervention
and a way to get
this information
before an official UN committee.
And when the US government now
comes before this committee,
some of their questions
will be based on the points
that we brought
up in our report.
So it really allows us
to engage with a range
of important
stakeholders, including
UN committees, and different
UN independent experts.
It can also be
useful in the sense
that groups in the United States
who are working on this issue
are not necessarily
bringing a human rights
framework to the advocacy.
So the clinic students and I
attended a conference in Denver
earlier this year that was
made up almost entirely
of social movements, grassroots
groups, and civil society
groups working on gun violence.
Including, for example, the
students from the Parkland
shooting and other families
of impacted individuals.
And we were able to contribute
this international human rights
framework to some
of the advocacy
that they're doing,
which is something
that they were very receptive
and open to, given that it's
sort of an additional tool that
they can use in their advocacy.
Given that it can also be--
often be an issue that it's
difficult to get traction
with that they were
very welcome to using
a potential additional
advocacy tool.
The final benefit of using
an international human rights
framework in this
area is that it
allows us to recommend a broader
range of different remedies.
So governments are required
to provide an effective remedy
for gun violence victims.
And in constructing
these remedies,
human rights law
requires that states
must be responsive to
individual circumstances.
So, for example,
going back again
to this issue of
intersectionality,
given the adverse impact of
policing in many communities,
including migrant communities--
immigrant communities,
and other communities, a
human rights compliant remedy
would not necessarily
call for an increased
role of law enforcement
in these communities.
Where there is often this
difficult relationship
with law enforcement.
But instead, we would try to
think about more creative ways
to engage with community
members in a way
that, sort of echoing
this bottom up idea,
would also be
listening to what it
is that victims of
domestic and gun violence
would be asking for.
Thank you.
DARRELL MILLER: So we've
got about 15 minutes.
We've got, I'm sure, lots
of really good questions
out there.
And I'll manage the queue.
Anybody with a direct
question to any our panelists,
any single one or to them all?
AUDIENCE: So I have a
question for Sherry.
How often in your and in the
agency's advocacy or your talks
on the [INAUDIBLE] does
the pushback that you get
come from legalistic
arguments about what
the Second Amendment
[INAUDIBLE]??
How much of it is
cultural anything
that you do around guns violates
my Second Amendment rights.
To what extent is it
[INAUDIBLE] on doctrine
or what the Second Amendment
means in a legal context.
How much is it like
cultural pushback?
SHERRY HONEYCUTT EVERETT:
That is a great question.
It's actually
something I'm thinking
a lot about this morning when
I was preparing to come over.
I'm not hearing the argument
framed as academically.
So in the Heller opinion,
which I've reviewed again
in preparation for the panel,
I was thinking about this area,
that we don't often hear
about the legalistic history
of Second Amendment rights.
And Dean Williams
outlines how some of that
has played out in history.
That's not the argument
that I'm hearing.
And in fact, it seems
like a lot of the pushback
that we get is very, very much
along gender and racial ideals
that are not necessarily
stated as much.
But the idea of protecting
my home and hearth and I've
got to be armed in case there's
an intrusion in my family
responsibilities that
are highly, I would say,
gender normed from the folks
that we're hearing them from.
Does that answer your question?
AUDIENCE: I was wondering-- my
question is for Miss Williams.
Specifically, when you were
introducing your topic,
you were talking about
how the Second Amendment
right has been framed
differently than other rights.
And I was wondering in
operation, how does that look?
What does it look
like for this right
to be defined differently?
What specifically
are they saying
that's different
from other rights?
VERNA WILLIAMS: I'm
thinking about it
in the court's description of
the Second Amendment right.
There's a reluctance
to regulate.
And Justice Thomas, for
example, recognizing, of course,
that he's writing
in concurrence.
But he suggests that the
Second Amendment-- in fact,
I think he even says
a Second Amendment
right is the right upon which
all other rights are based.
And that, yeah, that our nation
would rest upon that right.
And so he says that in a way to
suggest that the right should
not be regulated.
Regulation should
be very limited.
And I've yet to see a case in
which the court articulates
ways in which--
how regulation would
be accomplished.
What are factors that would
come into bear to determine
whether or not the state had
interfered with the Second
Amendment right?
These are standards that we
see in the context of the First
Amendment, for example.
We know we have a First
Amendment right to free speech.
But it's not a right
that is without limits.
And there is a very robust
doctrine about when states can
and cannot regulate the
right to free speech.
Today, we don't really
have that when it
comes to the Second Amendment.
And that's what
I'm referring to.
And then it's not
occurring in the Doctrine.
And in the rhetoric,
which, granted,
is not the doctrine that
courts have to abide by,
the rhetoric suggests that
you can't take our guns away.
That any type of
regulation is one
that represents an
incursion on the right.
And my response to that would
be that history suggests--
and this is a history that
the majorities in both Heller
and McDonald didn't talk about--
that there have
been regulations.
And indeed, your center
for firearm regulation
has a wealth of laws that
show that the states had
been regulating gun
ownership from the beginning
of our republic.
So to say that it can't be
regulated is simply not true.
So that's what I
was referring to.
I wanted to actually say
something as well about
the home and hearth and the
gendered nature of that.
I mean, I think your question--
what's interesting
about that question is,
what happens when the
person living in the home
is the person who's at risk.
And here I think about
Stand Your Ground laws.
And when I wrote this
paper, one of the issues
that was rolling around was a
woman named Marissa Alexander.
She happened to
fire a gun to warn
her husband who'd been abusing
her not to hit her anymore.
And at trial, she was on trial
for aggravated assault. She
asserted a Stand Your Ground
defense used in Florida,
and the court said she couldn't
assert that defense because she
was in the home and
he was in the home.
And because her husband had
a right to be in the home,
she had no right to
assert the defense.
And that case was contrasted to
the case of Trayvon Martin, who
as you know, was killed
because Stand Your Ground
applies everywhere else.
So there are lots of states
for which the home is not safe,
and the reason that
Sherry's hearing
that you have to have guns
to protect yourself won't
necessarily apply to people
being battered because they
equally have the right
to be in that same space.
And I don't know of a way
that the law has figured out
how to address that,
other than to say, well,
she has a duty to retreat.
But where shall she go?
She's already in her home.
This is a way in which
the gendered notions of--
it's called the Castle Doctrine.
A man's home is his castle.
The battered person doesn't
have that same right.
This is an area that needs
to be addressed as well.
So it doesn't seem to--
if they're saying
that is the reason,
that's just all the more
reason to be concerned.
DARRELL MILLER: Any others?
Jesse?
AUDIENCE: So from an
international standpoint,
I'm trying to figure out for
violations of America's, I
guess, signature on this
international agreement,
what are the remedies that
could potentially happen?
Because one of the things that
just sticks out in my mind is,
we have situations that
are fairly recent where
police officers
are killing people
who look like me in their
home for no reason at all.
And I think that we are
beyond trying to figure out
how to get Congress to act.
So I'm wondering,
is there anything
on an international scale
to make America [INAUDIBLE]??
AYA FUJIMURA-FANSELOW: Yeah.
So a lot of the work--
I think for that
exact limitation,
in the sense of the
federal government failing
to act on these issues, is that
we've seen quite an upsurge
for this issue--
the issue you mentioned
terms of police violence
more broadly against people of
color and other human rights
issues for really
local advocates
to take up these issues
at their local government
level, city government level,
and state government level.
So under international
human rights law,
even though it's the
federal government that
has signed and ratified
these treaties,
the obligations do extend
to all levels of government.
And so I think, particularly
with the gun violence issue
where we've seen such an
increase in social movements
who are working on
these issues, we
have seen examples
where they are bringing
some of these human
rights framings
and arguments to their
local advocacy efforts.
And I didn't go into details
about some of the state laws,
but there are some key examples
of very favorable state laws
when it comes to guns
and domestic violence.
And so, for example,
in the submission
that we made to the UN Human
Rights Committee, as some
of our recommendations
included positive examples
from states that do have more
human rights compliant laws
and policies in place.
And arguing for, first of
all, for additional states
to adopt these laws,
but then also eventually
for the federal
government to also make
changes that are more human
rights compliant in that sense.
And I think what human rights
law, it can be a slow process.
But I think just the
fact that local advocates
are incorporating this more
into their advocacy, again,
at the very sort of
hyper-local level
is something that is potentially
positive in this area.
And actually just to add to
that as well that it can also
be a way to link with
advocates in other countries.
So around the issue
of police violence,
for example, we've seen
examples of groups in the US
that are linking up with
social movements abroad
that are also facing similar
issues and sort of being
able to borrow
strategies and advocacy
tools from one another.
AUDIENCE: I've heard
a few times you all
talk about the federal
statutory scheme.
And it looks like in
the scheme that anybody
who's convicted of misdemeanor
crime of domestic violence
is prohibited from
transporting or possessing
a firearm or ammunition.
So what's the disconnect
between a prohibition
on possessing a
firearm and having
to surrender that firearm?
Why doesn't that just
solve the issue here?
AYA FUJIMURA-FANSELOW:
In other words,
why doesn't the possession also
include the relinquishment?
AUDIENCE: A
requirement to disarm.
AYA FUJIMURA-FANSELOW: We
would argue that it should.
But, yeah, the language
is very specific
that it's possession,
transport, and sale, I believe.
And speaking of states,
there are some states
that do have
relinquishment laws,
but it's not in the
federal law, and it's
a minority of states that
have that requirement.
And so, yeah, we would
exactly argue at that point
that if the goal of
prohibiting possession
is that the person shouldn't
be allowed to own them,
that should also include
guns that are already owned.
So that would be an
exact logical conclusion
that is, unfortunately,
absent in the law.
SHERRY HONEYCUTT
EVERETT: And I would just
add to that that
when you are thinking
about this issue of
who is responsible,
who's the state
arm for enforcement
or the state and
federal governments,
we rely heavily on local
law enforcement agencies
for enforcement of federal law,
and it just doesn't happen.
And we have over
400 municipalities,
individual municipalities,
in local governments in North
Carolina, each of them doing
things completely differently
and separately from one another.
So there's really
just not one uniform
set of laws that act
as an enforcement
mechanism for relinquishment
or confiscation.
It's just not there.
AUDIENCE: So with the
recent mass shootings,
there's obviously a
lot more legislation
that takes into
account mental health.
Is they're becoming like an
integration between those?
Because a lot of times
abusers in this situation
exhibit signs of mental health.
So is there like a push to
integrate that legislation
into just kind of domestic
violence possession as well?
SHERRY HONEYCUTT EVERETT:
Well, in North Carolina House
Bill 454, which I
mentioned earlier,
was our version of an extreme
risk protective order, which
was introduced by
Representative Morey this year.
I think it's a separate
statute, but what
we did do, as I sat down with
the groups that were advocating
for the sponsorship,
and we looked
to make sure that the two
statutes would be compatible.
In other words, it wouldn't
set up dual processes
that a victim of
domestic violence
would have to go
through both of them
in order to secure the
surrender of a firearm.
And I think we did
that with some success,
but they weren't
the same-- it wasn't
incorporated into existing
domestic violence firearms law.
It was its own standalone.
But I do think it's
wise anytime you're
working on the mental health
issues and extreme risk
protective orders to get all
the stakeholders involved
and make sure that
you're not inadvertently
working at cross
purposes or setting up
overly burdensome processes.
DARRELL MILLER: So I'm going
to take moderator's privilege
and ask a somewhat--
I think it's a question
that needs to be asked,
even though I've sort
of previewed it for you.
Because in a case
called Caetano,
which you might be familiar
with, the Supreme Court uses
a woman suffering from domestic
violence as the kind of, look,
this woman's being
denied the right
to have a weapon
to protect herself.
It's a case that the Supreme
Court of the United States
said that the analysis at the
Massachusetts Supreme Judicial
Court was wrong in
terms of figuring out
whether a taser was an arm that
was protected by the Second
Amendment.
And there is a slice
of individuals,
like Justice Alito, in his
opinion, that will take up
this, but say, yeah.
And the reason why
we have gun rights
is for the protection of
women, not necessarily
for their exploitation or harm.
And I'm just kind
of curious about--
I have to believe
that each of you
have encountered that
sort of counter argument,
especially in the
legislative sphere,
and what is your
sort of best account
or best counter to that kind
of narrative about gun rights
and its intersection
with domestic violence?
SHERRY HONEYCUTT EVERETT:
Well, my response to that,
as someone who's served
victims directly for 10 years,
it's very anecdotal and not
at all backed by any research.
But I just really encountered--
I think I encountered
one victim in 10 years
and probably, I'm
going to estimate,
800 different cases I
worked on who actually
took the step of going
and securing a pistol
permit for herself as a
means of protecting herself.
My observation,
again, not backed
by any research
whatsoever, is largely
that is not an option that
most of the victims that I
have worked with
have been turning to.
I think that it's an
appealing argument
for gun rights
advocates to make in
that it sounds very
empowering for survivors
of domestic violence.
And I certainly wouldn't--
I wouldn't want to
disempower a survivor who
was looking towards
that as an option
and for whom that was the last
means that they felt they had
of protecting themselves.
I'm just-- I did
not observe that
being an overwhelming
response to the survivors
that I worked with on the whole
for protecting themselves.
Not to say it doesn't exist.
VERNA WILLIAMS: Well,
I would just add,
as I mentioned before, I
mean, the Stand Your Ground,
that means, I think the
woman in that situation
might find herself
not really being
able to avail herself
of that type of defense,
if the person--
her cohabitant was
somebody who was authorized
to be in that location.
So that's one problem.
The other problem--
and remember,
there are other
jurisdictions where--
when police-- and Cincinnati is
like-- this when police show up
to a call, a place where
there's a domestic violence
disturbance and the woman says,
my boyfriend's been beating me,
and he says, well, she's
been beating me too,
that they arrest both of them.
And so because they say, well,
we can't make a determination.
And I forgot the name of that.
There's a name for this.
SHERRY HONEYCUTT EVERETT:
Predominant aggressor.
VERNA WILLIAMS:
No, that's not it.
But You have that happening
as well, so that the abuser,
who is--
I mean, let's remember,
this is about power,
it's about control,
it's about manipulation,
that abusers are not beyond
manipulating law enforcement.
And so they will
come up with reasons
that will undercut
whatever reason
it is that the survivor
is using to justify
her use of her own hands or
whatever weapon that she has.
So I think-- and then
the third thing is--
Sherry, you're feeling like--
more guns is not the answer
to more guns, it seems.
This is not the wild, wild West.
AYA FUJIMURA-FANSELOW: Yeah.
I'll just sort of
add on that point
in terms of determining
who the aggressor is
versus the person
defending themselves
is we had somewhat of
a focus on Louisiana
in looking at this work.
And there were a couple
of documented examples
where, for example, in lesbian
and gay relationships when
the police showed up, they
would sort of make an assumption
based on who looked
to be sort of the more
dominant member of
the relationship
and automatically arrest
that person without listening
to the people who
were involved about,
again, if there was one person
who was defending themselves,
someone was the aggressor.
And similarly, in
immigrant communities,
where, for example, if one
member of the relationship
is able to speak English
and the other person is
isn't or sort of
more used to dealing
with power authorities--
is a citizen, for example--
that power dynamic comes
into play as well.
And so sort of all
articulation on behalf
of the person who might
be defending herself
is lost in the face
of that interaction.
So I think that's an additional
danger of this issue of self
[INAUDIBLE].
DARRELL MILLER: In the
international rights
perspective, to the extent it's
putting onus on the government
to actually act, as opposed to
say, hey, you're on your own--
AYA FUJIMURA-FANSELOW:
You're on your own.
Right.
DARRELL MILLER: Changes
the framing for it.
Well, with that, thank you
very much to the panel.
An excellent talk.
I really appreciate
you coming out.
[APPLAUSE]
