Crime

Domestic violence: Gap in Idaho law let Wilder murder suspect get guns back

In this Dec. 9, 2013 file photo, firearms evidence is on display during a news conference in Portland, Ore. Oregon lawmakers passed a bill last year that makes it easier for police to take guns away from people convicted of domestic violence. Among other things, the state law makes it possible for local police to confiscate the guns.
In this Dec. 9, 2013 file photo, firearms evidence is on display during a news conference in Portland, Ore. Oregon lawmakers passed a bill last year that makes it easier for police to take guns away from people convicted of domestic violence. Among other things, the state law makes it possible for local police to confiscate the guns. AP/The Oregonian

Erasmo A. Diaz said he just wanted to relax, drink some beers and sit down to dinner after working all day on July 17, 2008.

He got upset after stepping inside his home on Red Top Road, about 5 miles northwest of Wilder, and finding supper wasn’t waiting for him.

Diaz confronted his wife, Amparo Godinez Sanchez, grabbed her by her hair and arm, and tried pulling her downstairs. As they struggled, Diaz began pushing her and Godinez landed on a bed.

The couple’s 14-year-old daughter heard her mother scream, grabbed a dowel from her bedroom and struck her father in the head. He fought back, punching the girl. A second daughter, then 17, came up the stairs and hit her father several times in the head with a hand-held back massager.

Diaz went into the master bathroom and grabbed a backpack containing three loaded handguns.

“He said he was going to shoot us,” Godinez told police.

It didn’t happen that night. But last June 11, police say, Diaz pulled out a gun — which federal law says he couldn’t possess after the 2008 incident — and fatally shot Godinez, 39, at the couple’s home.

Despite a $10,000 reward offered by Godinez’s family, Diaz, who turned 52 last Friday, has not been seen since. His car was found abandoned in Adrian, Ore., soon after the shooting.

SOME SAY CURRENT LAW INEFFECTIVE

Federal law prohibits felons, those convicted of misdemeanors involving domestic abuse and those subjected to protective orders from possessing firearms.

The domestic abuse restriction is relatively new — Congress added it in 1996. To qualify, a perpetrator must be a current or former spouse, parent or guardian of the victim, a person with whom the victim shares parenthood, or someone who has cohabited with the victim as a spouse, parent or guardian.

The U.S. Supreme Court ruled in 2014 that routine assault or battery convictions such as Diaz’s are sufficient to trigger a firearms prohibition. If a person went to a store to buy a gun, their conviction would come up during the required background check and the sale would be denied, said Assistant U.S. Attorney Aaron Lucoff. However, there would be no way to track the purchase if the gun was bought through a private sale, he said.

But critics say the law is weak: It does not apply to dating relationships, does not ban guns during temporary protective orders unless there is a hearing at which the person can challenge a ban, and does not establish procedures for abusers to surrender firearms. In Idaho and some other states, appellate courts have also exempted certain misdemeanors — not Diaz’s — based on whether the behavior was “reckless” rather than intentional. (The Supreme Court is expected to hear arguments on that last issue later this month.)

So in the past two years, more than a dozen states have passed more stringent laws related to domestic abuse. The measures have been backed by victims advocates, law enforcement groups and gun control supporters who see easy access to firearms as a major contributor to domestic violence killings.

Republican Gov. Brian Sandoval of Nevada and Democratic Gov. Kate Brown of Oregon are among those who signed bills implementing new restrictions this year. Gov. Nikki Haley of South Carolina, another Republican, signed a measure in June that includes a lifetime ban on gun ownership for the most serious domestic violence offenders.

“South Carolina is no longer thinking about the convenience of the abuser,” Haley said when she signed the bill in June. “South Carolina is thinking about strengthening the survivor.”

In Idaho, the federal law is the main tool used to deter relationship-related gun violence. That means only federal prosecutors can bring an illegal weapons case against someone convicted of misdemeanor domestic abuse. And generally, they become involved only if notified by a local agency that a prohibited person has a firearm or if it comes out during a federal investigation of other criminal activity, Lucoff said.

“Does our office track people who have lost their rights to possess guns? The answer to that is no. No one in the federal government that I’m aware of does that,” Lucoff said. “There isn’t a list.”

THE NUMBERS SPELL OUT THE PROBLEM

Between 1980 and 2008, two-thirds of spouse and ex-spouse homicide victims were killed with guns, according to the U.S. Department of Justice.

An average of 760 Americans were killed with guns each year by spouses, ex-spouses or dating partners between 2006 and 2014, according to an Associated Press analysis of FBI and Florida data.

The total is not a full count because not all law enforcement agencies report such information, and it doesn’t include children and other bystanders who were killed. More than 80 percent of those killed were women.

Godinez was one of six Idahoans killed in domestic violence incidents in 2015, according to the Idaho Coalition Against Sexual & Domestic Violence. And a Lewiston man estranged from his wife was allegedly responsible for three deaths in Spokane, Wash.

Six of those nine were shot to death. One was attacked with an ax, another was stabbed to death and the ninth bled to death after suffering traumatic injuries at the hand of her attacker.

Kelly Miller, the Boise-based coalition’s executive director, points out that such violence also affects neighbors, friends and other family members.

“It’s about the individual’s safety, but also about the community’s safety,” she said. “There are many people killed beyond the intimate partner relations — that should be enough, but we should look at the larger picture, too.”

WHEN DO YOU TAKE AWAY A GUN?

Each day in Idaho, more than 500 victims of domestic violence and their children seek safety and services from community-based domestic violence programs, according to the Idaho coalition. In 2014, the Idaho State Police reported 5,665 incidents of violence between spouses, ex-spouses and couples in dating relationships.

But how each of those cases affects the right to own a gun is inconsistent. Sometimes it’s because alleged victims are reluctant to characterize violence as domestic abuse, or because a victim doesn’t qualify as a domestic partner, Miller said.

And other common challenges of domestic violence cases apply.

“There are many people who are maybe originally charged with domestic violence felonies and then eventually are (pleaded) down,” Miller said. If a felony is pleaded down to a charge such as disturbing the peace, for instance, the person could legally keep their firearms, she said.

Plea deals aren’t unusual for first-time offenders. They minimize complications from victims who sometimes become uncooperative and sidestep an oft-tricky jury trial, said Aaron Bazzoli, the former Canyon County deputy prosecutor who handled Diaz’s 2008 case.

“It’s one person’s word against another. You always look for the physical evidence to dispel that, but there’s always an answer for how that bruise got there, how that mark got there, who hit first,” said Bazzoli, who previously served as Elmore County’s prosecuting attorney and is now in private practice in Caldwell.

And how does a prosecutor know when to push for more? “It’s hard to tell who is going to be a habitual domestic abuser,” Bazzoli said. Many people who commit domestic abuse crimes aren’t committing other crimes; they’re just in a toxic relationship, he said.

In 2008, Diaz fit these patterns. Other than traffic tickets and a Fish and Game citation, he didn’t have a criminal history. And he pleaded three felony assault counts down to misdemeanors.

He was sentenced to 90 days in jail, given credit for four he spent after his arrest and had the rest suspended. After serving a year’s probation, he petitioned the court to retrieve the three handguns seized from him. Because Idaho has no specific state law on the matter, he was allowed to get them back.

Because of the ongoing case against Diaz, Canyon County investigators, who continue to pursue leads, have revealed few details of Godinez’s death. It’s unclear whether they think one of those guns was used to kill Godinez.

WILL THERE BE IDAHO LEGISLATION?

Curbing gun ownership among those convicted of misdemeanors related to domestic violence is an uphill battle, advocates say. And no legislation on the matter has been proposed recently. But two state lawmakers interviewed about the issue said it’s one Idaho might be open to, in the right form.

Rep. Melissa Wintrow, D-Boise, said advancing legislation that would curb gun access in any form is challenging in this state’s political climate. But she said it’s time to re-evaluate certain loopholes that permit people with domestic violence misdemeanors to own or keep guns — such as the challenge of plea deals.

“We need to discuss this and really come to some balance in individual and community rights,” she said.

Rep. Rich Wills, R-Glenns Ferry, chairs the House Judiciary, Rules and Administration Committee. He said he’s a strong Second Amendment supporter but sees room for regulation when it comes to gun ownership in this area, as long as it doesn’t penalize people before they’re convicted or a concerning pattern develops. He suggested that Idaho’s Criminal Justice Commission might be an appropriate group to recommend solutions.

“I’m a staunch supporter of doing everything we can to minimize the dangers of domestic violence,” he said. “While protecting our citizens I think there is a balance. How we find that, I’m not sure yet.”

John Sowell: 208-377-6423, @IDS_Sowell

Erin Fenner: 208-377-6207, @erinfenner

The Associated Press contributed.

Idahoans who lost their lives in 2015 through domestic violence

▪  AnnaRae Ponce, 34. Ponce was shot and killed New Year’s Day in Idaho Falls when her boyfriend, Kevin McQuilliams, 25, of Pocatello, hit a 16-year-old with the handle of a pistol and it went off, striking Ponce. McQuilliams pleaded guilty to involuntary manslaughter and was sentenced to seven to 18 years in prison.

▪  Amparo Godinez Sanchez, 39. She was shot to death at her home in Wilder on June 12. Her husband, Erasmo A. Diaz, fled and is wanted for her murder.

▪  Enrique Hernandez, 43. Hernandez and his wife, Maria Gutierrez, 33, traveled to Las Vegas from their home in Jerome to attend a birthday celebration with family members. Hector Gutierrez, Maria’s brother, allegedly killed Hernandez with a hatchet found in the couple’s car. Both of the Guiterrezes are charged with conspiracy to commit murder and murder with the use of a deadly weapon. They have pleaded not guilty and are set to go to trial Aug. 22 in Clark County, Nev.

▪  Barbara S. Chitwood, 81. She was shot to death with a .22-caliber pistol at her home in Twin Falls on Aug. 21. Robert P. Welch, 86, who was also injured, is charged in the death. Welch pleaded not guilty and is currently being evaluated for mental competency.

▪  Melissa D. Kincaid, 34. She was killed Aug. 29 at her home in Burley. Her husband, Ronnie G. Kincaid Jr., 34, a registered sex offender, is accused of inflicting fatal internal injuries to his wife. He pleaded not guilty to first-degree murder and is scheduled to go to trial May 23 in Cassia County.

▪  Chelsey Malone, 23. She was stabbed to death at her home in Nampa. Her boyfriend, Brandon J. Shaw, 23, is charged with first-degree murder. He pleaded not guilty and is scheduled to go to trial April 19 in Canyon County.

An Idahoan was also allegedly responsible for the deaths of Lisa Canfield, 52, her son, John Constable, 23, and husband Terrance Canfield, 58, killed May 26 in Spokane, Wash. The Canfields’ son-in-law, Roy H. Murry, 30, of Lewiston, is accused of shooting them to death. His estranged wife was the intended target, but was at work at the time of the murders. Murry, who received a Bronze Star Medal for service in Iraq, is charged with three counts of first-degree murder.

  Comments