What is the Violent Felon Loophole?

Why does Vermont need to bring state law in line with federal law to prohibit violent felons from possessing weapons?

A:

Vermont is one of only two states in the nation that doesn’t have a law prohibited violent felons from possessing weapons. Because this law is only on the books at the federal level, local law enforcement cannot enforce it themselves and must refer cased to the federal authorities (and frequently those federal authorities do not have the resources to prosecute these cases unless they are coupled with other crimes.)

A further exploration of this issue, can be found in this article from the Rutland Herald from March 2013.

Rutland Herald – March 18, 2013 — “Shumlin Unsure on Enforcing Certain Firearm Laws”http://www.rutlandherald.com/article/20130318/NEWS03/703189828

Since the murder of 20 kindergarten students in Newtown, Conn., sparked a nationwide debate over firearms, Gov. Peter Shumlin has been unwavering in his opposition to any new Vermont laws aimed at restricting the rights of gun owners.

“I just think you need a 50-state solution,” Shumlin said at a press conference last Thursday. “That’s not something that I feel any ambiguity about.”

Could a new piece of information change his mind?

At that same press conference, Shumlin was asked whether state and local police should be able to enforce federal gun laws that aren’t codified in Vermont statute. Federal law, for example, prohibits felons from possessing firearms, while state statute is silent on the matter.

“I think it’s up to Vermont law enforcement to enforce the laws,” Shumlin said.

So if a state trooper isn’t authorized to enforce the federal ban on felons possessing firearms, he’d want to do something about it?

“Well, I’d like to know the answer to that. Let’s find out if it’s really true or not,” Shumlin answered.

But if it was true that state troopers, city police and local sheriffs aren’t allowed to remove firearms from the possession of felons, Shumlin was asked, then he’d want to see that changed?

“Let me get the information. I don’t have it,” Shumlin said. “I tell you when I don’t know what I’m talking about. I plead guilty.”

As it turns out, state and local law enforcement officers aren’t authorized to enforce that federal statute. Commissioner of Public Safety Keith Flynn said Thursday the federal provision is outside the jurisdiction of Vermont police.

There are lots of federal laws with state-based equivalents. The reason is so that Vermont cops can enforce the same things the feds have criminalized.

A group of House lawmakers thinks the state should join with the feds in prohibiting felons from carrying firearms. Rep. Linda Waite-Simpson, an Essex Democrat, said she introduced gun legislation containing that provision in part because of conversations with law-enforcement officers who expressed frustration about not being able to remove guns from the possession of the felons carrying them.

Flynn said his officers do have some recourse when they encounter felons violating the federal ban on gun possession.

“Because we don’t have an arrest power for that, it would be something we make a referral to ATF on,” Flynn said.

Capt. Glenn Hall, head of the Vermont Drug Task Force, said it’s a judgment call on whether to make the referral or not.

“Some of the considerations are: Does the person have a history? What are the felonies they’ve been convicted of? How long ago?” Hall said.

In instances where the state does make the referral, Flynn and Hall said, sometimes the ATF follows up with an investigation, and sometimes it doesn’t.

So would Flynn like to see lawmakers add the ban on felon gun possession to Vermont law?

“In some instances it would be beneficial, because it would allow us not to have to go through the feds,” Flynn said.

But he said it isn’t so cut and dried.

“That’s one of the those things where I think it would require much broader discussion with the Legislature as to whether that’s something they want to do. There are a lot of competing interests in that,” Flynn said. “Because you have to look at the types of crimes that brings in, and some of them are nonviolent, like someone convicted 20 years ago of passing a bad check, or false pretense, and that qualifies as a felony. And it may give pause to think, would it serve justice better to prohibit that person to be in possession of a firearm for the rest of their life?”

Shumlin has repeatedly stated his blanket opposition to Waite-Simpson’s bill, or any or other gun control legislation in Montpelier. However, that was before he knew his state troopers can’t pry firearms from the hands of convicted felons. 

We have yet to hear whether the new information has altered the Governor’s position. 


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