Enforcing 'No Guns' Order In Ky. Relies On Defendant's Honor System
The attorney for Brett Hankison had one request during his arraignment in a Jefferson Circuit Court earlier this month: that his client, who is charged with three felony counts of first degree wanton endangerment, could keep his guns.
Hankison, a former Louisville Metro Police officer, had received threats against his life since he shot into the apartments of Breonna Taylor and her neighbors, according to attorney Stew Mathews, and he needed the guns for “self defense purposes.”
Judge Ann Bailey Smith rejected the plea and ordered Hankison to give up his guns, saying anyone charged with a crime involving a firearm would be expected to do the same. But in the days that followed that court date, Louisville’s law enforcement agencies were not instructed to confiscate Hankison’s guns, and they made no effort to do so. Both the Louisville Metro Police Department and the Jefferson County Sheriff suggested the other was responsible.
Ultimately, Hankison handed over four shotguns, four rifles, and four handguns to the sheriff’s office in Spencer County, where he owns a home, on October 6. That was the same day KyCIR asked Mathews whether Hankison’s firearms had been confiscated. The agency is not required to search for additional firearms and the documents do not indicate the sheriff searched Hankison’s property for additional firearms.
The confusion about which agency was responsible for confiscating the weapons, and the lack of aggressive enforcement of the court order, is typical. That’s because there is no system in Kentucky to enforce orders like these, which depend on the proactive honesty of a criminal defendant.
Given the lack of a formal system, it’s difficult to determine if a person accused of a violent crime has surrendered any guns and impossible to know if they gave up all of them. This puts victims, the public, and even police and other first responders at risk, according to criminal justice experts, victims’ rights advocates, and law enforcement officials.
“An ‘honor system’ alone is insufficient,” said Sam Levy, senior counsel at Everytown For Gun Safety, a gun safety advocacy group backed by former presidential candidate Michael Bloomberg.
Levy said if there is probable cause to believe a person possesses firearms when they've been ordered not to, law enforcement should actively seek to remove those guns.
“Court orders that prohibit firearm possession only work if their terms are clearly communicated and rigorously enforced,” he said.
‘Nothing We Can Do’
An order to not possess guns is common in cases involving violence or threats of violence, said Ingrid Geiser, Jefferson County Attorney First Assistant.
Ensuring that condition is met, however, is virtually impossible, she said.
“There’s really nothing we can do,” she said. “It’s up to the individual to follow the order.”
Chances are slim that law enforcement would seek a warrant to search a person’s home for a gun, said Geiser, the former head of the county attorney’s criminal division. A search warrant requires probable cause, and judges that issue orders prohibiting a person from possessing a gun rarely even ask if the defendant does, in fact, have guns, she said.
When it comes to protective orders related to domestic violence, which often come with a mandate that the perpetrator give up any guns, there is a system: the Jefferson County Sheriff is tasked with confiscating and keeping prohibited firearms.
Carl Yates, a spokesperson for the Jefferson County Sheriff, said the agency serves about 7,500 protective orders annually, and has more than 3,000 confiscated weapons in the agency’s property room “at any given time.” But the sheriff’s department is not tasked with enforcing judges’ orders to defendants that specifically mandate they relinquish firearms.
On rare occasions, Yates said a protective order will list certain guns that should be seized. Other times, a sheriff deputy might see a gun while delivering the protective order. But, he emphasized that sheriff deputies don’t search for guns. And that means it is up to the individual to voluntarily surrender their guns, he said.
“We actually never know if we have all of them or not,” he said.
What’s left unknown is most concerning when victims are at risk — oftentimes in domestic violence cases, said Geiser. In such cases, and other cases where the threat of violence seems imminent, prosecutors will often ask a judge to keep a defendant in jail. If that doesn’t happen, prosecutors will seek an order prohibiting the possession of guns.
But, the court order is no guarantee.
“No one knows there is another gun, until we know,” she said.
Hankison was fired from the Louisville Metro Police Department in June. Shortly after that, the department’s public integrity unit took his "one loaner weapon” that Hankison was issued after his service weapon was collected as evidence following the death of Breonna Taylor, said Lamont Washington, an LMPD spokesperson.
As for his other guns, Washington told KyCIR on October 6 — a week after Hankison’s arraignment — that the Jefferson County Sheriff or the Kentucky Attorney General would be responsible for the confiscation and collection of those.
But Yates, the spokesperson for the sheriff, said such a task would be the responsibility of the Louisville Metro Police Department. And Elizabeth Kuhn, a spokesperson for the Attorney General said the agency wasn’t involved in the confiscation of the guns, but they “were surrendered to the proper authorities.” She did not specify which agency.
Kuhn’s comments came on the same day Hankison turned in his guns to the Spencer County Sheriff. His attorney said the timing had nothing to do with KyCIR’s questions before hanging up on a reporter.
The court order simply states that Hankison “shall not possess any firearms,” and does not specify any timeline or instructions for relinquishing his guns. Judge Ann Bailey Smith, her assistant and other court officials did not respond to multiple requests for comment about the order.
Simply taking a gun doesn’t ensure a defendant won’t be able to get another gun, said Meg Savage, legal counsel at the Kentucky Coalition Against Domestic Violence.
In Kentucky, guns can be bought and sold online, in stores, and between individuals — and there’s no law requiring they be registered. Here, it can be easier to get a gun than to take one away, she said.
Taking guns can be a barrier that can keep victims and first responders safe, she said.
“From a law enforcement point of view, they would appreciate it if there are fewer guns in the hands of potentially violent people,” she said.
Presently, though, the measures to remove guns from people ordered by a court to not possess firearms are largely toothless, she said.
But enforcing court orders that prohibit gun possession is a complex task, said Kellie Lynch, an assistant professor of criminology and criminal justice at The University of Texas at San Antonio.
Lynch received her doctorate from the University of Kentucky and extensively studied the processes related to court ordered gun confiscation in the state. Her big takeaway: “it’s complicated.”
Lynch said a solution wouldn’t necessarily require new laws, but rather a more efficient and enforced implementation of current mandates.
“The responsibility bounces around a bit between agencies,” she said.
And that is a problem which could be addressed by assigning the task of gun confiscation to a central agency, and ensuring that agency has the resources needed to take and store guns.
The cultural status of gun ownership and protection in Kentucky is a bigger barrier to improving processes for taking a person’s guns, Lynch said.
“These are political issues,” she said. “One person told me that, ‘taking away someone’s gun is like taking away their life.’”
Contact Jacob Ryan at firstname.lastname@example.org.