Know the Laws: West Virginia

UPDATED August 20, 2008

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WomensLaw.org strongly recommends that you get help from an organization in your area before proceeding with court action.To find an agency, please go to the WV Where to Find Help page.

• Guns and DVPOs
  • 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 Protective Order hearing. Can his gun still be taken away?
  • I have a Temporary (Ex parte) order against my abuser. Do I have to wait until I receive a permanent order before my abuser's gun is taken away?
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• More Information and Where to Get Help

Guns and DVPOs

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

No. The protective order in WV specifically says that your abuser cannot have a gun or buy a new gun. According to State and Federal law, if you have a protective order that was issued by a state civil court against your abuser. In West Virginia, your abuser cannot have a gun in his possession, or buy a new gun."*

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 filled in on the last page of the protective order.

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

 * 18 USC Sec 922(g)(8); WV 61-7-7(a)(7)

 ** 18 USC Sec 921(a)(32)

 *** 18 USC Sec 925 (a)(1)

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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. Even if your abuser is not an "intimate partner" according to the Federal definition, your WV protective order will still include a provision in your order that forbids your abuser to have, own or buy a gun.*

West Virginia defines intimate partner more broadly than the federal definition does.** Please go to WV How To Get a Protective Order page for details.

 

 * Benson v. Muscari 769 A.2d 1291

 ** WV 61-7-7(a)(7)

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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 Protective Order?

It is written on the WV protective order form under "Mandatory Relief" that the possessing a firearm is a crime.

This provision automatically applies and does not need to be checked off by a judge.

In some counties in West Virginia, the Sheriff will immediately arrange for guns to be collected and stored. In other counties, the judge will order the respondent to give the guns to a friend or family member. Still in other counties, the judge will only require any guns to be given up if the respondent gets possession of the home where the guns are stored.

A judge can also:

• 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.*
  

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. You can ask the judge to explain this to you.

 * Americans for Gun Safety; "Domestic Violence and Guns; A guide to Laws that can Remove Guns from a Domestic Abuser" Available: www.americansforgunsafety.com

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back to topMy abuser did not show up for the Protective Order 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 Protective 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)

 ** Unites States v. Spruill 292 F. 3d 207 (5th Cir 2002)

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back to topI have a Temporary (Ex parte) order against my abuser. Do I have to wait until I receive a permanent 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 there is no specific mention of a firearm restriction in the temporary order, then you may have to wait until you are given a permanent order.

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