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Know the Laws: Ohio

UPDATED April 28, 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 in your area. Go to the OH Where to Find Help page for legal assistance or a domestic violence organization in your area.

Guns and Protective Orders

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

It depends. If your protection order specifically says that your abuser cannot have a gun or buy a new gun, then s/he cannot have a gun.  Box #11 should be checked on your civil protection order form.  However, whether or not Box #11 is checked on your CPO form, your abuser may not be able to have a gun or buy a gun under federal law.  In order for your protection order to qualify under federal law, the defendant (person who the order is against) must:

  • Be served (given) notice of the court hearing. In other words, the defendant 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 and
  • 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.*

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.

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 OH Where to Find Help to find a program in your area.

* 18 USC § 921(a)(32)
** 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 a protection order?

Here are some things that may help:

  1. 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).
  2. Ask the judge to specifically write in your protection order that the abuser cannot own, buy or have a gun while the order is in effect.
  3. 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 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.
  • Order that the police notify you when the guns are returned to your abuser.*

 * Americans for Gun Safety; "Domestic Violence and Guns: A Guide to Laws that can Remove Guns from a Domestic Abuser."  Note: This organization is now called Third Way, and no longer publishes this article on their site.

 

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back to topMy abuser did not show up for the CPO hearing. Can his/her 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/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 about the CPO order, 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.)

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back to topI have a temporary ex parte against my abuser. Do I have to wait until I receive a permanent order before my abuser's gun is taken away?

Maybe. According to federal firearm law, if 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.  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. You can read I have a final order of protection against the abuser. Can his/her gun be taken away? in our Federal Firearms section to find out more.

Also, for the firearm restriction to be enforced under state law, 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. There are two boxes on your ex parte order that the judge can check:

  • The box on page 1 that says “FIREARMS ACCESS--PROCEED WITH CAUTION;” and
  • The box on page 3 of your Temporary Protection Order, under #11, that says “DEFENDANT SHALL NOT POSSESS, USE, CARRY OR OBTAIN ANY DEADLY WEAPON.” 
  • There is a space after #11 for the judge to write instructions for your abuser to give up his/her guns.

If the judge sees your abuser's firearm as a serious enough threat, the judge might decide to write this in.



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