If the abuser's gun is taken away, what will happen to it?
If the judge orders that the abuser’s gun be taken away as part of an order for protection, s/he will have to give up any guns in his/her possession and will have to surrender any other guns to the law enforcement agency in his/her county.1 When the order for protection expires, the abuser may be able to go to the law enforcement agency that took the guns to get them back.
Even if there is not an order for protection in place, a police officer may take a gun away from an abuser for up to seven days if the officer believes that it was recently used to threaten or assault a family or household member. The police department that took the gun will hold the gun for longer than seven days if:
- criminal charges are filed against the abuser;
- the abuser had the gun illegally;
- the gun or ammunition is going to be used as evidence; or
- there is an active order for protection against the abuser.2
Also, if an abuser applies for a gun permit but is denied or if s/he becomes disqualified to have a gun at any point, s/he must:
- surrender his/her guns to law enforcement within 30 days; or
- get rid of the guns by:
- selling them to a licensed gun dealer; or
- giving or selling them to another person who has a permit to have a gun.3
However, if the reason that the abuser is disqualified from having a gun is due to an order for protection being issued, then the abuser has to surrender his/her guns to law enforcement within 48 hours, and s/he may not be able to give or sell the gun to a licensed dealer or to another person.4
1 Haw. Rev. Stat. § 134-7(f)
2 Haw. Rev. Stat. § 134-7.5(a), (d)
3 Haw. Rev. Stat. § 134-7.3
4 Haw. Rev. Stat. § 134-7.3(b), (d)
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the State Police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our HI Sheriff Departments page.
You can find ATF field offices in Hawaii on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
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 HI Advocates and Shelters page.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What is the penalty for violating state firearm laws?
Under Hawaii law, if a convicted felon possesses a gun, s/he is guilty of a class B felony. A person is guilty of a class C felony if s/he has a gun even though s/he is restricted from owning a firearm because s/he:
- is not able to own a gun under federal gun laws;
- is a fugitive from justice; or
- has a felony charge pending.1
Any other person who possesses a gun or ammunition illegally is guilty of a misdemeanor.1
A class B felony is punishable by up to ten years in prison, a fine of up to $25,000, or both. A class C felony is punishable by up to five years in prison, a fine of up to $10,000, or both.3 A misdemeanor is punishable by up to one year in jail, a fine of up to $2,000, or both.4
1 Haw. Rev. Stat. § 134-7(h)
2 Haw. Rev. Stat. §§ 706-640(b); 706-660(a)
3 Haw. Rev. Stat. §§ 706-640(c); 706-660(b)
4 Haw. Rev. Stat. §§ 701-107(3); 706-640(d)
What 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). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 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 legally 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 and so in those situations, the seller is not looking in the NICS.
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.