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Know the Laws: Montana

UPDATED July 16, 2017

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WomensLaw.org strongly recommends that you get in touch with a domestic violence advocate in your community for more information on gun laws. To find help in your state, please click on the Where to Find Help tab at the top of this page

Basic Info

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

Possibly not.  Both federal and Montana state law prohibit certain persons from having and buying guns, and both types of laws can be enforced in Montana.  We discuss both on this page.

If you have an order of protection against the abuser, or if s/he has been convicted of a felony or of a domestic violence misdemeanor, then federal law states that it is illegal for the abuser to buy, own or have a gun in his/her possession.*  There are certain requirements that your order of protection must meet for it to qualify under federal law.  See I have a final order of protection against the abuser. Can his/her guns be taken away? to read more about what those requirements are.

If you are not sure if the abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors?  To read the definition of a felony, see What is the definition of a felony?

Also, under Montana state law, if the abuser assaults you with a firearm and is convicted of a crime for this assault, the court may order that the gun used in the assault be taken away and not used by the abuser.**

* 18 USC § 922(g)(8),(9)
** Mont. Code § 45-5-206

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Guns and Protective Orders

back to topI have a temporary order of protection against the abuser. Can his/her guns be taken away?

Maybe. You can ask the judge to put in your temporary order that the abuser cannot have a gun while you are waiting for a full court hearing.  The judge is allowed to order this if a firearm was used or threatened in an assault against you.* 

However, if there is no specific mention of a firearm restriction in the temporary order, and the judge gave you an ex parte temporary order of protection (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 of protection, it is possible that it is ILLEGAL for him/her to have a gun under federal law.  The order of protection 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? to find out more.

* Mont. Code § 40-15-201(2)(f)

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back to topI have a final order of protection against the abuser. Can his/her guns be taken away?

Under Montana state law, a judge can order in a temporary or a final order of protection that the abuser is prohibited from possessing or using a firearm if one was used in an assault against you.*

Under federal law, if the order meets certain requirements, it is illegal for the abuser to buy, own, or have a gun in his/her possession during the period of time that you have a final order of protection.

The requirements are:

  1. the abuser has to be given notice of the hearing and an opportunity to attend (whether or not s/he actually attends doesn’t matter), and
  2. the abuser must be either your current or former spouse, a person who you have a child in common with, or a person you live with or have lived with in the past,** and
  3. the order of protection must contain specific legal language:
    • it has to forbid the respondent from harassing, stalking, threatening, or behaving in any way that causes the petitioner to fear physical injury for him/herself or his/her child AND
    • either state that the abuser represents a threat to the physical safety of the petitioner or her child OR
    • specifically prohibit the use, attempted use, or threatened use of physical force against the petitioner or his/her child.***
To find out if your order qualifies, you can call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2 or contact us through our Email Hotline. You can also read the exact wording of the law [18 USC § 922(g)(8)] on our Federal Statutes page.  The order of protection does NOT need to say that the abuser cannot have a gun for the federal law to apply but it may make it easier to enforce with local police if it is written on the order. Therefore, you can ask the judge to include this in the order during the protection order hearing.

Note
: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.****  If the abuser is a police officer, member of the military, or someone else who uses a gun for his/her job, talk to your local domestic violence program about your options.  See MT State and Local Programs to find a program in your area or National Organizations to find a national program.

* Mont. Code §§ 40-15-201(2); 40-15-204(3)
* 18 USC § 921(a)(32)
** 18 USC § 922(g)(8)
*** 18 USC § 925(a)(1)

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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?

While it does not need to be written on your order of protection that your abuser cannot buy or have a gun in order for the federal law to be enforced, it may make it easier if it is written.

Here are some suggestions of what you may want to do:

  • 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 indicate on the order of protection form that the abuser (respondent) must surrender his/her guns and/or that the respondent's firearm license is suspended or revoked.  If the judge agrees to do so, look to make sure that this is indicated on your order before leaving the courthouse.
If the judge takes away the guns, you may also want to ask the judge to:
  • 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.
  • Explain what will happen to the abuser's guns (where they will be held, etc.).
  • Make it clear to both you and the abuser how long the guns will be kept away from the abuser.
  • Order that the police notify you when the guns are returned to the abuser.

 

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back to topThe abuser did not show up for the order of protection hearing. Can his/her gun still be taken away?

Maybe. The abuser does not have to come to the hearing in order for the federal law to apply to him/her, but s/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 to the abuser about the court hearing, then the federal firearm law likely may not apply to the abuser.**

Also, under Montana state law, a respondent can be prohibited from using a firearm as part of a temporary or final order if a gun was used in an assault against you.***

* 18 USC §922(g)(8); See, for example, United States v. Bunnell, 106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F. 3d 46 (1st Cir. 2002)
** See, for example, United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002)
*** Mont. Code §§ 40-15-201(2); 40-15-204(3)

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Guns and Criminal Convictions

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

No. 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?

Also, under MT state law, if the abuser assaults you with a firearm and is convicted of a crime for this assault, the court may order that the gun used in the assault be taken away and not used by the abuser.**

*18 USC § 922(g)(9)
** Mont. Code § 45-5-206(7)

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back to topHow can I find out if the 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 the 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 (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

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

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back to topWhat crimes are considered domestic violence misdemeanors?

A crime is considered a domestic violence misdemeanor under federal law if it:

  • Can be defined as a misdemeanor under federal or state law; and
  • Involves physical violence or force, or includes threats made with a deadly weapon; and
  • Was committed by:
    • a current or former spouse;
    • a parent or guardian of the victim;
    • a person with whom the victim shares a child;
    • a person living with the victim as a spouse, parent or guardian; OR
    • a person who has a similar relationship (listed above) with a spouse, parent or guardian of the victim.*

Note: The crime does not have to specifically mention "domestic violence" in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply.** The relationship that the victim has with the offender is what determines whether or not the misdemeanor is a "domestic violence" misdemeanor.***

For example: If Bob is convicted of a misdemeanor assault against his wife, he may no longer have or buy a gun.  If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.

Note: Montana is one of 10 states in which there are some misdemeanors that will not qualify as domestic violence misdemeanors, even if they seem to meet all of the requirements explained above.****  For more information about this complex topic, you can email us, call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2 or talk to a lawyer who is familiar with gun laws and domestic violence – see our MT Finding a Lawyer page.

* 18 USC 921 (a) (33) (A)
** United States v. Kavoukian, 315 F. 3d 139 (2d. Cir. 2002); United States v. Meade, 175 F.3d 215 (1st Cir. 1999).
*** United States v. Denis, 297 F.3d.25 (1st Cir. 2002.); United States v. Costigan, No. 009-B0H, 2000 U.S. Dist. (D. Me. June 16, 2000).
**** Although federal law prohibits owning or buying a gun if the abuser is convicted of a “domestic violence misdemeanor,” Montana is bound by current case law, which holds that misdemeanors that involve the "reckless use of force" will not meet the federal definition of domestic violence misdemeanors. See United States v. Nobriga, 474 F.3d 561, 564 (9th Cir. 2006)

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back to topWhat is the definition of a felony?

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

*18 USC § 3559; Mont. Code § 45-2-101(23)

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back to topIf a law enforcement officer or other government employee is convicted of a domestic violence misdemeanor, can s/he have or buy a gun?

No. Law enforcement officers and other government officials who have been convicted of a domestic violence misdemeanor or felony cannot have or buy guns for any purpose, including their official duties, according to federal law. *

*18 USC 925 (a) (1)

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More Information and Where to Get Help

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

It depends.  If the abuser’s gun is ordered to be taken away by your order of protection, it may either be held by the sheriff department in your county, or in some cases, the authorities will allow the abuser to leave the gun with a friend or relative while your order is in effect.  You can ask the court or law enforcement official handling your case where the abuser’s guns will go.

If the abuser’s gun is confiscated by the police because s/he was convicted of a domestic violence misdemeanor or felony, the police may destroy the weapon.

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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 the state firearm laws, you can call your local police or sheriff department or the State Police.  If you believe s/he is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have protective order against the abuser, s/he has been convicted of a felony or domestic violence misdemeanor.

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

To contact your local ATF field office, see the ATF website.  For reporting illegal firearm activity, you can also call: 1-800-ATF-GUNS (1-800-283-4867).

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 MT State and Local Programs page under the Where to Find Help tab on the top of this page.

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

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.*

* 18 USC § 924(a)(2)

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back to topI do not have an order of protection against the abuser, and s/he has not been convicted of any crimes. Can s/he have a gun?

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 MT 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 Montana, you can go to the Law Center to Prevent Gun Violence website.

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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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back to topThe abuser uses a gun for his/her job. Does the law still apply?

If the abuser has been convicted of a felony or a domestic violence misdemeanor, then under federal law, the abuser can NEVER buy or have a gun, even if s/he is a police officer or a military employee.

However, if the abuser was not convicted of one of the above-mentioned crimes, an abuser who is a law enforcement officer, military employee or government employee may still be able to continue to use a gun for work purposes (but not for personal use) even if you have a protective order.*

If you are confused or not sure whether the abuser can still use his/her gun for work purposes, you can talk to a domestic violence advocate in your area or call the National Center on Protection Orders and Full Faith & Credit to find out more information: 1-800-903-0111 x 2. To find a domestic violence advocate in your area, please go to our MT State and Local Programs page under the Where to Find Help tab on the top of this page.

* 18 USC § 925(a)(1) 

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

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

  • You can also 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 a local domestic violence organization in your area - see MT State and Local Programs page.
  • You can write to our Email Hotline.

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