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Know the Laws: Delaware

UPDATED April 12, 2017

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WomensLaw.org strongly recommends that you get help from an organization in your area if you are dealing with an issue involving firearms.  To find help in your state, please click on the Where to Find Help tab at the top of this page.

Basic Info and Definitions

back to topWhat is the difference between federal and state gun laws?

In these gun laws pages, we refer to both "federal gun laws" and "state gun laws."  The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  Throughout this section, we will be referring mostly to state laws.  Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well.  You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.

If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor.  If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun? If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

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back to topWhat is the definition of a felony?

In Delaware, felonies are serious crimes, punishable by incarceration in state prison and by a fine in an amount the judge believes is appropriate.*  You can see the different categories of felony crimes and their possible sentences on our DE Statutes page. 

A felony under federal law is a crime that is punishable by a prison sentence of more than one year.**

* See 11 Del Code § 4205
** 18 USC § 3559

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back to topI am a victim of domestic violence and the abuser has a gun. Is that legal?

Under Delaware state law, it is against the law for someone to buy, own, possess, or controll a  firearm (or ammunition) if: 

  • s/he was convicted (in Delaware or elsewhere) of a felony or a crime of violence involving physical injury to another -- it doesn't matter if s/he had any weapon during crime;
  • s/he is a fugitive from justice from a case in which s/he is accused of a felony;
  • s/he was convicted in any court of any misdemeanor crime of domestic violence, as defined in Delaware law Title 11, Section 1448(a)(7);
  • s/he was convicted for the unlawful use, possession or sale of a narcotic, dangerous drug, central nervous system depressant or stimulant, or controlled substance;
  • as a juvenile, s/he was adjudicated as delinquent for conduct which, if committed by an adult, would be a felony (Note: the firearm prohibition will last until the person turns 25 years old);
  • s/he is subject to a Family Court protection from abuse order (but not an ex parte order) while the order remains in effect; (Note: this part of the law does not apply to an order issued based on sections (1)(d),(e), or (h) of Title 10, Section 1041;
  • s/he was committed for a mental disorder to any hospital, mental institution or sanitarium;
  • s/he is currently a juvenile (unless it is a handgun for the purpose of engaging in lawful hunting, instruction, sporting or recreational activity while under the direct or indirect supervision of an adult); or
  • s/he is in possession of a semi-automatic or automatic firearm, or a handgun, while possessing a controlled substance at the same time.*

If any of these situations apply to the abuser, it may be illegal for him/her to have a gun.  Also, federal laws, which apply to all states, restrict an abuser's right to have a gun if you have a restraining order against him/her that meets certain requirements or if s/he has been convicted of a felony or domestic violence misdemeanor.  Go to Federal Gun Laws to get more information.

* 11 Del. Code § 1448(a)(1)-(9)

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Guns and Orders of Protection from Abuse

back to topI have an emergency ex parte order against the abuser. Can his/her gun be taken away?

Possibly.  Delaware law allows a judge to order "any appropriate relief" in an ex parte order, including the protections that can be ordered in a final order.*   In a final order of protection from abuse, a judge can write into the order that the abuser cannot buy or possess any firearms while the order is in effect and that s/he has to surrender his/her firearms to the sheriff, constable or to a police officer.  The judge also has the power to issue an order directing any law-enforcement agency to search for and seize (take) the abuser's firearms if certain circumstances are met.  See I have an order of protection from abuse against the abuser. Can s/he keep a gun or buy a new gun? for more information.**

Federal law may also prohibit the abuser from having a firearm while a temporary order is in effect but only if it is not an ex parte order.  If the judge gave you an ex parte temporary protective order (which means that no advance notice was given to the abuser), which is commonly done, it could still be legal for him/her to have a gun under federal law.  However, if the judge scheduled a court hearing and gave notice of the hearing to the abuser before giving you the temporary order, it is possible that it is illegal for him/her to have a gun under federal law.  The protective order must also meet certain other requirements, though.  Read I have a final order of protection against the abuser. Can his/her gun be taken away? (in our Federal Gun Laws section) to find out more.

* 10 Del Code § 1043(e)
** 10 Del. Code § 1045(a)(8),(11)

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back to topI have an order of protection from abuse against the abuser. Can s/he keep a gun or buy a new gun?

Under Delaware state law, it is against the law for someone to buy, own, possess, or controll a  firearm (or ammunition) if s/he is subject to a Family Court protection from abuse order (but not an ex parte order) while the order remains in effect. (Note: This does not apply to an order issued based only on sections (1)(d),(e), or (h) of Title 10, Section 1041* unless the judge specifically orders a firearm prohibition in the order.)

Also, as part of a final order of protection from abuse, the judge can specifically write into the order that the abuser cannot buy or possess any firearms while the order is in effect and that s/he has to surrender his/her firearms to the sheriff, constable or to a police officer.**  The judge also has the power to issue an order directing any law-enforcement agency to search for and seize (take) the abuser's firearms if all of the following circumstances are met:

  1. you can convince the judge that s/he has possession of a firearm;
  2. you can describe the specific type and location of the firearm; and
  3. the abuser has used or threatened to use a firearm against you or you are fearful that the abuser may use a firearm against you.***

Federal laws, which apply to all states, restrict an abuser's right to have a gun if you have a protective order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun.  Go to the Federal Gun Laws page to get more information.

* 11 Del. Code § 1448(a)(6)
** 10 Del. Code § 1045(a)(8)
*** 10 Del. Code § 1045(a)(11)

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back to topIs there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection from abuse?

Here are a few things that may help:

  • If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s);
  • Ask the judge to specifically write in your order that the abuser cannot own, buy or have a gun while the order is in effect. The form that you will have to fill out to petition for an order for protection from abuse should have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section; and
  • Before leaving the courthouse, check to make sure that the gun restriction is written on your order.

It also may be helpful if the judge explains what will happen to the abuser's guns, who will take them, and where they will be held once you leave the courthouse.  If the judge agrees to add language that the abuser cannot keep his/her guns while the protective order is in effect, you may also want to ask that the judge:

  • Require the abuser to give his/her guns to the police, or require the police to go to the abuser's house and get them;
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
  • Order that the police notify you when the guns are returned to the abuser.

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Guns and Criminal Convictions

back to topIf the abuser has been convicted of a crime, can s/he keep or buy a gun?

Delaware state law makes it illegal for the following criminals to possess a firearm:

  • someone convicted in Delaware or elsewhere of a felony or a crime of violence involving physical injury to another -- it doesn't matter if s/he had any weapon during crime;
  • any person who has been convicted for the unlawful use, possession or sale of a narcotic, dangerous drug, central nervous system depressant or stimulant, or controlled substance;
  • any person (until that person turns age 25), who, as a juvenile, has been adjudicated as delinquent for conduct which, if committed by an adult, would constitute a felony;
  • any person who, knowing that s/he is the defendant or co-defendant in any criminal felony case, s/he becomes a "fugitive from justice" by failing to appear for any scheduled court proceeding; or
  • any person who has been convicted in any court of any misdemeanor crime of domestic violence.  For purposes of this paragraph, the term “misdemeanor crime of domestic violence” means any misdemeanor offense that:
    • was committed by a member of the victim's family; by a former spouse of the victim; by a person who co-habitated with the victim at the time of the offense; or by a person with a child in common with the victim; and
    • is one of the offenses listed in the Delaware criminal law 11 Del. Code § 1448 (which you can find here - see section (a)(7)(b)) - or any similar offense when committed or prosecuted in another state.*

In addition, under federal law, if the abuser has been convicted of a felony or a domestic violence misdemeanor, s/he cannot have or buy a gun.**  If you're not sure if the abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors? on our Federal Gun Laws page for the federal definition. 

* 11 Del. Code § 1448(a)
** 18 U.S.C. § 922(g)(9)

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back to topHow can I find out if my abuser has been convicted of a domestic violence misdemeanor or felony?

Domestic Violence misdemeanor and felony records are open to the public, but they are not always easy to access. If you know the exact courthouse where your abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NCIS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NCIS. Your local police department may be willing to search NCIS for you if you ask, but they are not required to do so.

To read more about the NCIS, please see the question, What will happen if my abuser tries to purchase a gun?

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The Abuser Isn’t Supposed to Have a Gun…Now What?

back to topIf the abuser's gun(s) is taken away, what will happen to it?

Delaware state law says that if a judge orders a firearm removed as part of an order of protection from abuse, the firearm must be turned in to the sheriff, constable or to a police officer.*  The judge also has the power to issue an order directing any law-enforcement agency to search for and seize (take) the abuser's firearms if certain circumstances are met.**  See I have an order of protection from abuse against the abuser. Can s/he keep a gun or buy a new gun? for more information.

* 10 Del. Code § 1045(a)(8)
** 10 Del. Code § 1045(a)(11)

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back to topWho do I notify if I think the abuser should not have a gun?

If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police.  If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).

You can find contact information for sheriff departments in your area on our DE Sheriff Departments page.

You can find ATF field offices in Delaware on the ATF website.  For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867).  Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.

A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials.  You will find contact information for organizations in your area on our DE State and Local Programs page.

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.*

* United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

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back to topWhat is the penalty for violating the federal and state firearm laws?

Under Delaware state law, anyone who is prohibited by law from possessing a deadly weapon can be guilty of a class C, D or F felony, punishable by incarceration.  The length of time of incarceration depends on various factors - you can read about these factors in sections (c) through (g) of the law, 11 Del. Code § 1448, on our DE Statutes page.* 

Also, anyone who owns, has or buys a gun in violation of the federal firearm law can be punished by a fine, jail time for up to 10 years, or both.**

* 11 Del. Code § 1448(c)-(g) 
** 18 USC 924 § (a)(2)

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back to topWhat will happen if the abuser tries to purchase a gun?

Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS).  If the abuser has a qualifying protection order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from buying a gun.  Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system.  Also, it is important to know that background checks are not required for private and online gun sales.  

If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate.  Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.

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More Information and Where to Get Help

back to topI do not have an order of protection from abuse and s/he has not been convicted of a domestic violence misdemeanor or felony. Can his/her gun be taken away?

Aside from it being illegal for people convicted of certain violent crimes or someone with an order of protection against him/her to have a gun, it is also illegal under Delaware state law for the following people to possess a deadly weapon (firearm, knife, or dangerous instrument):*

  • any person who has been committed to any hospital, mental institution or sanitarium for a mental disorder;
  • anyone who was convicted of the unlawful use, possession or sale of a narcotic, dangerous drug, central nervous system depressant or stimulant, or controlled substance;
  • anyone under age 25 who has been convicted as a juvenile of a crime that would be a felony if s/he were an adult;
  • anyone who is a juvenile and possesses a handgun, unless it is for the purposes of lawful hunting/sporting activity and s/he is under the supervision of an adult;
  • anyone who knows that s/he is the defendant or co-defendant in a felony criminal case and has failed to appear for a court proceeding (a "fugitive from justice"); or
  • any person, if the deadly weapon is a semi-automatic or automatic firearm, or a handgun, who, at the same time, possesses a controlled substance (drug).*

If none of these situations apply, you can still make a plan for your safety. See our Staying Safe page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. To find a shelter or an advocate at a local program, please visit the DE State and Local Programs page under the Where to Find Help tab at the top of this page.

For additional information on gun laws in Delaware, you can go to the Law Center to Prevent Gun Violence website.

* 11 Del. Code § 222(5)
** 11 Del. Code § 1448(a)(2)-(5),(8)-(9)

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back to topI read through all of this information, and I'm still confused. What can I do?

Trying to understand both federal and state law can be confusing.  There are people who can help you better understand the law and your rights under the law.

  • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111 x 2.
  • You can contact us by writing to our Email Hotline.
  • You can contact a local domestic violence organization in your area.

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