Know the Laws: Idaho
UPDATED August 20, 2008
Please consider getting in touch with a domestic violence advocate in your community for more information on gun laws in your area.To find help in your state, please click on the Where to Find Help tab at the top of this page.
- Guns and Protective Orders
- I have a Protective Order against my abuser. Can s/he keep a gun or buy a new gun?
- If my abuser is not an "intimate partner" according to the Federal definition, can my abuser's gun still be taken away when I get a Protective Order?
- Is there anything I can do to make it more likely that my abuser's gun is taken away when I get a Protective Order?
- My abuser did not show up for the PO hearing. Can his gun still be taken away?
- I have a ex parte temporary order against my abuser. Do I have to wait until I receive a twelve month order before my abuser's gun is taken away?
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- More Information and Where to Get Help
- Basic Info
Guns and Protective Orders
back to topI have a Protective Order against my abuser. Can s/he keep a gun or buy a new gun?
It depends. Your abuser will be warned on the protection order that Federal law punishes individuals who have or receive a firearm or ammunition while the protection order is in effect. However, if the judge hearing your case does not specifically write in on your order that your abuser cannot have or buy a gun, the law enforcement officers in your county may not take away your abuser’s gun.
In order for your Protection Order to qualify under Federal law, the respondent (person who the order is against) must:
- Be served (given) notice of the court hearing. In other words, the respondent must have been given paperwork that told him or her about the hearing.
- Have an opportunity to attend the court hearing.
Note: The abuser does not have to be at the hearing, but s/he has to have the opportunity to come to the hearing. - Be an "intimate partner" of the victim, which includes:
- A current or former spouse
- A person with whom you share a child
- A person you live with or have lived with in the past*
Note: If your Protection Order has expired, it is no longer a valid order under Federal law, which means the firearm ban also does not apply. The expiration date should be written on the first page of your Protection Order right before the Federal warnings.
Note: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.** If your abuser is a police officer, member of the military, or someone else who uses a gun for their job, talk to your local domestic violence program about your options. To find help in your state, please click on the Where to Find Help tab at the top of this page.
*18 USC 921 (a)(32)
**18 USC Sec. 925 (a)(1)
back to topIf my abuser is not an "intimate partner" according to the Federal definition, can my abuser's gun still be taken away when I get a Protective Order?
Yes. If your abuser is not an "intimate partner" according to the Federal definition, you can still ask the Judge to include a provision in your order that forbids your abuser to have, own or buy a gun.* Under ID state law, domestic violence can occur between “family or household members” as well as between two people who are dating or have dated.**
*Benson v. Muscari 769 A.2d 1291(Vt. 2001)
**ID Code §39-6303(1)
back to topIs there anything I can do to make it more likely that my abuser's gun is taken away when I get a Protective Order?
While it does not need to be written on your Protection Order that your abuser cannot buy or have a gun in order for the Federal law to be enforced, it will make it easier if it is written. ID state law specifically says that anyone who has a Protection Order against him/her cannot have a concealed weapons license, and all ID Protection Orders contain a statement of the Federal Firearms Prohibition.* However, because ID state law does not specifically say that a person who is subject to a protection order cannot have or buy a gun, a law enforcement officer may not take your abuser’s gun(s) away unless the judge specifically orders it to be done.
There are a couple steps you can take to help make this clear:
1. If your abuser has a gun, tell the judge how many guns he has, and if he has ever threatened you with a gun(s). You can write this information directly into your petition for a protection order.
2. Ask the judge to specifically write in your Protection Order that your abuser cannot own, buy or have a gun while the order is in effect.The judge can do so in Section #8 on a Temporary order and in section #10 on a permanent order.
3. Before leaving the courthouse, check to make sure that the gun restriction is written on your order.
It may also 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 your abuser cannot keep his guns while the Protection
Order is in effect, you may also want to ask that the judge:
- Require the abuser to give his 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 your abuser.
- Order that the police notify you when the guns are returned to your abuser.
*ID Code §18-3302(1)(n)
**Americans for Gun Safety; "Domestic Violence and Guns: A Guide to Laws that can Remove Guns from a Domestic Abuser." Available: http://www.americansforgunsafety.com
back to topMy abuser did not show up for the PO hearing. Can his gun still be taken away?
Maybe. Your abuser does not have to come to the hearing in order for the law to apply to him, but he does have to be given notice of the hearing and an opportunity to attend.*
If no hearing is scheduled, and/or no notice is given about the PO, then the federal firearm law might not apply to your abuser.**
* United States v. Bunnell 106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F. 3d 46 (1st Cir. 2002.)
** United States v. Spruill 292 F. 3d 207 (5th Cir. 2002.)
back to topI have a ex parte temporary order against my abuser. Do I have to wait until I receive a twelve month order before my abuser's gun is taken away?
Maybe. You can ask the Judge to write in your temporary order* that your abuser cannot have a gun while you are waiting for a full court hearing. If the judge sees your abuser’s firearm as a serious enough threat, the judge might decide to write this in.
However, if the judge does not write a firearm restriction in the temporary order, then you may have to wait until you are given a permanent order.
* in section #8 marked “Other”