Know the Laws: Virginia

UPDATED August 28, 2008

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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 VA Where to FInd Help page to find help.

• Guns and Protective Orders
  • I have a Protection Order against my abuser. Can s/he keep a gun or buy a new gun?
  • Does the law apply if my abuser is not an "intimate partner" according to the Federal definition?
  • Is there anything I can do to make it more likely that my abuser's gun is taken away when I get a Protection Order?t
  • My abuser did not show up for the PO hearing. Can his gun still be taken away?
  • I have an emergency (ex parte) or preliminary order against my abuser. Do I have to wait until I receive a permanent order before my abuser's gun is taken away?
• Guns and Criminal Convictions
• More Information and Where to Get Help
• Basic Info

Guns and Protective Orders

back to topI have a Protection Order against my abuser. Can s/he keep a gun or buy a new gun?

No. According to both Federal and state law, your abuser cannot buy a gun if you have a PO that was issued by a VA civil court against your abuser and meets Federal law requirements.*

VA state law also says that if your abuser has a concealed handgun permit, s/he must surrender it while your PO is in effect. This will be stated clearly on your protective order form as a warning to the respondent (your abuser).**

Whether or not your abuser can keep any guns he already has in his possession while the PO is in effect may depend on whether or not the judge specifically orders that the guns need to be taken away from your abuser. Federal law says that the guns should be taken away automatically, but VA state law does not say this, so it may be up to a judge to make it clear that any guns your abuser has should be taken away. (Id.)

In order for your Protective 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.
* 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 Protective 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 Protective Order just above the judge's signature.

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. See VA State and Local Programs to find a program in your area.

* (18 USC § 922 (g)(8); Va. Code §18.2-308.1:4)

** (Va. Code §18.2-308.1:4) .

*** (18 USC 921 (a)(32))

**** (18 USC Sec. 925 (a)(1))

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back to topDoes the law apply if my abuser is not an "intimate partner" according to the Federal definition?

If your abuser is not an "intimate partner" according to the Federal definition, then Federal law will not apply in your case. However, VA state law will still apply, which means your abuser cannot buy a gun while your protective order is in effect.

You can also ask the Judge at your protective order hearing to order that your abuser's guns be taken away, if he has any. If the judge sees your abuser's guns as a serious enough threat, s/he may decide to do this.

In addition to the people included under the federal definition of "intimate partner," VA state law defines "family or household member" to include anyone you are related to by blood, whether or not you live with them, and anyone related to you by marriage if you live with that person. *

* Va. Code §16.1-228

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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 Protection Order?t

Virginia state law specifically says that a person who has a Protective Order against them cannot buy or transport a gun (and there will be a warning on your PO form to your abuser that states this), but it does not prohibit the person from having a gun.*  To help make sure your abuser's gun(s) is taken away, there are a couple steps you can take:

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).

2. Ask a judge to specifically write in your PO that your abuser cannot have a gun in his possession while the order is in effect. The judge can order any relief that s/he believes is necessary to protect you from your abuser. On the PO form, additional orders can be written in the lines provided above the expiration date.

3. Before leaving the courthouse, check to make sure that the gun restriction is written on your order, if the judge agrees to order the guns taken away.

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 your abuser cannot keep his guns while the PO is in effect, you may also want to ask that the judge:

• Require your 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. (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)

* (Va. Code §18.2-308.1:4)

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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.))

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back to topI have an emergency (ex parte) or preliminary order against my abuser. Do I have to wait until I receive a permanent order before my abuser's gun is taken away?

Maybe. VA state law says that anyone subject to an emergency, preliminary, or permanent protective order cannot buy or transport a gun while the order is in effect, but it does not say anything about keeping a gun he already owns. * 

Once your abuser has been served with the emergency order, the gun restriction is in effect, meaning your abuser cannot buy a gun or carry a concealed weapon. If he has a concealed weapon permit, he will have to surrender it to the authorities. ** 

* Va. Code §18.2-308.1:4

** Carrie Chew, Domestic Violence, Guns, and Minnesota Women: Responding to New Law, Correcting Old Legislative Need, and Taking Cues from Other Jurisdictions, 25 Hamline J. Pub. L. & Pol'y 115, 133 (2003)

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