The Portland man who shot and killed his ex-wife and then turned a handgun on himself this week wasn't supposed to have any firearms. 

Multnomah County judge had signed off on a restraining order against Ian Elias two years earlier, and a temporary stalking order this spring.  In the orders, she required him to give up all of his guns. 

But no one made sure Elias surrendered the guns that his ex-wife repeatedly told the court he still had. 

"Unfortunately, it's almost like the honor system,'' said Michael McGrath, the attorney for Elias' ex-wife, Nicolette Elias. " Nobody really checks that you comply.  There didn't seem to be an efficient way to follow up and verify compliance.'' 

The same scenario plays out across the state, where only a patchwork of police agencies, prosecutors and county courts have established ways to follow through on the restraining order gun bans – authorized under federal law. 

The 1994 law directs state courts to notify domestic violence offenders or those facing restraining orders of the federal prohibition on having or buying guns, but it doesn't require states or local police to establish procedures for collecting the firearms. 

But now advocates working with Oregon's Department of Justice are pressing for a state law in the next session that would mirror federal law but expressly allow local police and sheriff's offices to make sure people relinquish their guns in domestic violence cases.  Any violations would become a criminal offense.  The law would set out procedures for tracking the gun turn-ins and make sure they're uniform across the state. 

In the past year, a handful of states, including Colorado, Connecticut, New Hampshire, Washington and Wisconsin, passed laws to improve such enforcement.  Some go beyond the federal law, which applies only to spouses, intimate partners who have lived together or couples with children.  Several states protect a broader class of victims, such as dating partners, former dating partners or any family or household members.  Some states also have extended the gun surrender orders to temporary protective orders. 

Without a new state law, the power to seize the guns lies with federal officers, said Erin Greenawald, domestic violence prosecutor for the state Justice Department.  And there are 14 federal ATF agents for all of Oregon.  That means essentially: "No checks-and-balance system to make sure they're actually turning over their guns,'' Greenawald said. 

Federal domestic violence gun laws and other state laws

Federal law

prohibits the purchase or possession of firearms or ammunition by anyone convicted of domestic violence-related misdemeanors and anyone who is the subject of certain domestic violence protective orders. 

Federal law

defines “intimate partner’’ as a spouse or former spouse of the person who sought the order, who co-parents a child or lives or lived with the person who sought the order.  The federal protection lasts for the life of the order, but only applies if the order was issued after a gun owner is notified and a hearing is held. 

Some states require or authorize removal or surrender of firearms and /and or ammunition

when a person is convicted of a domestic violence misdemeanor (California, Connecticut, Colorado, Hawaii, Illinois, Iowa, Minnesota, New York, Pennsylvania, Tennessee, Washington)

35 states and the District of Columbia now authorize or require courts to prohibit people facing certain domestic violence protective orders from buying or possessing firearms

. ( Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, Wisconsin)

Some states go beyond federal law by prohibiting firearm purchase or possession by people subject to certain domestic violence protective orders issued before notice to the gun owner or a full hearing

. ( California, Illinois, Massachusetts, Texas and West Virginia)

A few states directly authorize or require police to remove firearms and/or and ammunition from abusers subject to domestic violence protective orders

, including those where no hearing is held: In Massachusetts, police serving a domestic violence protective order must immediately take possession of the person’s firearms.  In Hawaii, an officer serving a protective order may take firearms in plain sight, discovered in a consensual search or surrendered by the person.  New Jersey authorizes a judge issuing a domestic violence protective order to direct police to search and seize any firearm the person has. 

SOURCE: October/November 2014 Civic Research Institute’s Domestic Violence Report

Guns cause more than 60 percent of all domestic violence-related homicides nationwide, according to federal statistics.  When a batterer has a gun, the risk of a homicide increases fivefold, according to federal statistics. 

The same holds true in Oregon.  Since 2009, more than 238 Oregonians have died in domestic violence attacks, with guns responsible for 64 percent of those deaths.  The majority of the deaths occurred as the victim was taking steps to leave the abuser, said Sybil Hebb, director of policy advocacy for the Oregon Law Center. 

"Despite recent good work at both the local and state levels, significant gaps in Oregon's laws continue to threaten our ability to prevent domestic violence firearm fatalities,'' Hebb said. 

Gun-rights advocates stand starkly opposed. 

Kevin Starrett, executive director of the Oregon Firearms Federation, said the federation will challenge any effort to pass a state law that mimics the federal firearm restrictions in domestic violence cases, particularly in restraining order cases.  He said people are losing their Second Amendment rights without having been convicted of a crime. 

"This has nothing to do with protecting women.  What this has to do with is harassing the rights of gun owners,'' Starrett said. " A restraining order is not even an accusation of a crime or a conviction.  And most of these laws rarely stop people from having guns.'' 

***

Portland police admit they don't follow up on most restraining order violations reported to them – be it gun violations or unwanted contact.  Last fiscal year, they investigated only 13 percent – or 151 -- of 1,137 violations.  That's despite having probable cause and information on the suspects in 75 percent of the cases, police said. 

"We don't have the resources to do that. ...  We've had to triage the 'worst of the worst,''' said Capt.  Derek Rodrigues, who leads the Police Bureau's Family Services Division. 

Portland City Commissioner Dan Saltzman, together with Multnomah County's Chief Family Court Judge Maureen McKnight, led a work group of police, prosecutors and court officials to make changes. 

Typically, a local judge has the discretion to check off a box on a restraining order, demanding the surrender of all firearms.  A civil deputy would serve the restraining order to the person named -- and that was where oversight ended. 

"For some abusers, this has sent the message that nobody takes this court order seriously so you don't have to either,'' said Annie Neal, Multnomah County's domestic violence coordinator. " And that's not the message we want to send.'' 

Multnomah County recently adopted new court-reporting requirements and a step-by-step process that will allow police and the district attorney's office to track people who fail to notify the court by sworn affidavit that either they don't have firearms, have turned them over to police or given them to a credible third party. 

"The intersection of domestic violence and firearms has been an exceedingly problematic one for a long time,'' McKnight said. " This is not a panacea.  It's not perfect.  But I look at it as one big step down a road that we had difficulty traversing so far.'' 

District Attorney Rod Underhill, who in the mid-90s had run the county's domestic violence prosecution unit, said he's worked for these changes for at least a decade. 

But past efforts were stymied by lack of staff for follow-up, questions on where to store the guns , legal quagmires over an owner's due process rights and police enforcement powers, and a transition to a new court database and a need to figure out how to flag and send restraining orders with gun restrictions to police or prosecutors for follow-up. 

***

Some counties, including Clackamas, Clatsop and Washington, have gone a step further than Multnomah, requiring people to attend a compliance hearing shortly after they're served with restraining orders to surrender their guns. 

On Oct. 1, Clackamas County – which has issued on average 274 restraining orders a year between 2009 and 2012 – started requiring the compliance hearings in gun surrender cases, even requiring the third-party who agrees to store someone's firearms to appear in court and pledge to safeguard them.  Marion County also is considering such hearings. 

Multnomah County's crowded dockets don't allow for such hearings – the county typically handles 24,00 to 2,500 restraining orders a year -- so Judge McKnight looked for an alternative. 

She found this one: Multnomah County residents now have 48 hours to turn over their guns when directed to do so by a restraining order.  By appointment, they can take their guns to three sites: Portland Police Bureau's Central Precinct in downtown Portland (open 24 hours), the bureau's Property & Evidence Warehouse or the Multnomah County Sheriff's Office.  Or they can leave their firearms with a friend or relative who must pass a state police background check and sign a notarized affidavit. 

Within three days of when the restraining order is served, they must file a firearms affidavit with the court that shows a law enforcement receipt or the notarized signature of the third party holding the firearm with their criminal background check number. 

The court will track the cases when people fail to file the affidavit on time and forward those to the district attorney's office and police at least once a month.  A domestic violence investigator will be assigned to do follow-up, which may include sending a letter or calling the gun owner. 

Multnomah County District Attorney Rod Underhill points to new protocols the county adopted that will help police and prosecutors track domestic violence cases in which a person facing an order to surrender guns as part of a restraining order fails to comply. 

If the person is on probation, a probation officer may be asked to help retrieve any guns.  If the gun owner doesn't respond to police, prosecutors may seek a contempt of court arrest warrant and/or search warrant.  A contempt of court finding could mean six months in jail, a $500 fine or 1 percent of their gross income. 

To help enforce the new steps, Portland police this week received $224,000 to create a three-member Domestic Violence Restraining Order Team.  A sergeant and two officers will be dedicated to investigating violations of restraining orders and enforcing gun surrender orders. 

"This is to make sure those checked-off boxes on the restraining orders that require guns to be surrendered don't get lost in the ether,'' Saltzman said. " It's certainly my hope, underscored by the tragedy in Southwest Portland, that this will make a difference, and when a restraining order says surrender your weapons, they'll be some teeth to the order.'' 

--Maxine Bernstein