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NH DOJ issues new guidance on state firearms law, seeking to clear the record

Despite its intentions, the law and its effects have proven highly contentious for both sides of the issue.
NH DOJ issues new guidance on state firearms law, seeking to clear the record
Photo by LOGAN WEAVER | @LGNWVR / Unsplash

A new state law curbing some enforcement of firearms law has drawn intense interest. This month, the Department of Justice is seeking to assuage concerns.

School officials can still report potential shooters on campus, Attorney General John Formella wrote this month. State Police officers can still confiscate weapons from alleged domestic abusers. A new federal firearms law closing the “boyfriend loophole” will still apply in New Hampshire.

The legal interpretations, issued in a nine-page opinion Sept. 1, are part of an effort by the department to provide more information and cool tensions around the new law, House Bill 1178, which prevents state and local officials from enforcing federal firearms laws that are not replicated in state law.

“Unless expressly delegated by a federal law enforcement agency, state and local law enforcement have never had the authority or jurisdiction to enforce or administer federal firearms violations or laws,” the department wrote in an accompanying “Frequently Asked Questions” document. “HB 1178 has not changed this.”

The law was championed by Republicans and Second Amendment advocates as a partial bulwark against federal firearms laws and rules, which include agency rules from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Those rules include the ATF’s decision under President Donald Trump to ban “bump stocks” – modifiers that allow semi-automatic rifles to fire at a faster rate – in 2018 after a mass shooting in Las Vegas, and they include current efforts by President Joe Biden to increase enforcement around untraceable “ghost guns.”

But despite its intentions, the law and its effects have proven highly contentious for both sides of the issue. Some conservatives say the law’s exemptions have weakened its effectiveness, while Democrats say it goes too far and could dissuade law enforcement action. Exactly how far it can be applied might only be answered through litigation, some observers say.

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The Department of Justice’s new guidance provides the most comprehensive interpretation to date. But Democrats are still unhappy with the statute, noting that it bars cooperation between state and local law enforcement and federal entities over firearms enforcement, and arguing that it’s too confusing. Democratic lawmakers will try to repeal the law next year, according to requests for new bills filed this week.

Signed by Gov. Chris Sununu this summer, the new law prohibits the state or any political subdivision, including county and municipal law enforcement, from using resources to enforce, administer, or cooperate with federal firearms laws and rules that aren’t consistent with state law. The law does not prevent federal agencies or officials from enforcing those federal laws in New Hampshire, but it does bar state and local agencies from aiding in those investigations.

The law includes an exception: New Hampshire officials may assist federal officials with enforcement if the investigation is not solely centered on alleged violations of federal firearms laws and regulations. If the investigation contains other alleged crimes, that cooperation is allowed, the new statute states.

Democrats and two of the state’s county sheriffs had raised concerns around the law back in July, arguing it would tie the hands of law enforcement and could dissuade officers from taking action against potential school shooters. The Department of Justice issued preliminary guidance that month stating that the new law would not prevent law enforcement from stopping school shooters, and urging school officials to reach out to law enforcement if they see a threat on campus. At the time, the department said a more complete legal analysis would follow.

No changes to school shooter responses, department says

The department released that expanded guidance on Sept. 1, explaining to law enforcement agencies what the new law prevents – and what it does not prevent.

The new law prevents local or state officials from using resources  to “cooperate” with any federal firearm actions. The department interprets that language “to prohibit state or local officials from being deputized by federal officials to conduct or assist in joint investigations or to participate in joint task forces that solely concern enforcement of federal firearms laws.” The law effectively ends decades of cooperation in those areas except in specific circumstances, the department notes. Moving forward, that cooperation can only happen with specific authorization in state law to do so.

However, while direct cooperation in most cases is now prohibited, the statute does not prevent state and local officials from reporting federal crimes to federal law enforcement agencies, according to the department. And it doesn’t prevent those New Hampshire officials from sharing information that could be useful to an investigation, which is enshrined elsewhere in New Hampshire law. In some cases, New Hampshire has an explicit statute, RSA 106-B:11 requiring that sharing of information.

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It’s an interpretation that should allow schools, school resource officers and local law enforcement to continue reporting on threats in schools, the department noted.

And beyond reporting incidents to federal authorities, the new law does not prevent local officers from taking action against school threats themselves, the department stated.Even though federal firearms statutes, including the Gun Free Schools Act, cannot be enforced by local police officers, New Hampshire state statute still allows law enforcement to intervene in the case of suspected school shooters.  The principle of “see something, say something” will continue, the opinion stated.

“State and local law enforcement officers are empowered to respond to, investigate, and take action with respect to any potential threat to schools pursuant to their authority under the New Hampshire Criminal Code,” the guidance notes. “The passage of (HB 1178) does not alter ths.”

Domestic violence firearms seizures unaffected

The new law will not stop New Hampshire State Police officers from helping conduct federally required background checks for firearms purchases, the Department of Justice wrote. That role is outlined in state law.

Separately, the Department of Justice sought to dismantle concerns that the new law would prevent state and local law enforcement from confiscating firearms of those convicted of domestic violence misdemeanors.

State law already allows officers to take firearms from an accused person “in order to prevent further abuse,” according to the department. Victims of domestic violence may initiate that by filing protective orders. And by extension, the officers are also able to hold onto those firearms if the person is convicted and to request that a court prevent their return, according to the department

A new federal law closing  the “boyfriend loophole” for firearms purchases will also remain operational in New Hampshire, according to the department. Under that new federal law, a person convicted of domestic violence in a “dating relationship” is barred from buying a gun.   Previously, the domestic violence prohibition only applied to people who live together, have a child together or are married.

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Some critics had raised concerns that House Bill 1178 could prevent state and local enforcement of the “boyfriend loophole.” But in its guidance, the department noted that New Hampshire’s domestic violence statute already prevents people who are convicted of domestic violence against an “intimate partner” from purchasing a gun. For the purposes of the new federal law, “intimate partner” is analogous to “dating relationship” and thus the federal law is consistent with state law, the Attorney General’s office found.

The new guidance around domestic violence cases was applauded by the state’s Coalition Against Domestic and Sexual Violence.

“As the Attorney General’s Office has consistently said throughout the legislative process, this law will have no impact on the ability of law enforcement officers in New Hampshire to remove firearms from those who are legally prohibited from possessing or purchasing them, including those convicted of misdemeanor crimes of domestic violence,” Amanda Grady Sexton, director of public affairs for the coalition, said in a statement Wednesday. “Additionally, this law will not have an impact on survivors who seek domestic violence protective orders. With 50 percent of all homicides in New Hampshire related to domestic violence, it is critical that laws surrounding this crime remain effective ways to prevent future violence.”

The Department of Justice’s opinion was accompanied by a seven-page “Frequently Asked Questions” document intended to help law enforcement navigate specific situations. Among the advice given there: New Hampshire law enforcement are still able to participate in federal drug enforcement programs; state and local officers are allowed to arrest someone for a state law and alert federal officers of a potential federal firearms violation; and firearms collected during a search warrant may still be held if they provide “evidentiary value” or constitute state or federal definitions of contraband.

Democrats continue to express concern

The new legal interpretations from the department will not necessarily end the controversy around the law. Firearms owners who believe a state or local agency is violating the new statute by attempting to enforce federal firearms laws may take legal action. If a lawsuit were waged against the New Hampshire State Police, the Department of Justice would likely defend the police; local departments would be defended by town or municipal attorneys.

And Democratic lawmakers have indicated they will attempt to repeal the law in next year’s session. This week, Rep. Paul Berch, of Westmoreland, filed a legislative service request for the “Making Our Communities Safe Act,” which would repeal the law entirely. Former House Speaker Steve Shurtleff, of Penacook, is filing a separate bill that would codify the Gun Free School Zones Act into state law, permitting its enforcement.

Berch argued the department’s new guidance has not fixed matters, and said he had filed the bill “at the request of state and local law enforcement, school students, teachers and administrators, victims of domestic violence and citizens across the state.”

“I have filed a bill to repeal HB 1178, an ill-conceived, poorly crafted, and confusing law that hampers New Hampshire police officers and makes our citizens less safe,” he wrote in a statement. “Even noting that guidance from the Attorney General finally arrived last week, months after the bill’s enactment, major confusion and gray areas remain for law enforcement as to what constitutes the ‘enforcement’ of federal firearms laws.”

This story was produced by the editorially independent New Hampshire Bulletin, which is not affiliated with Granite Memo.