I have an order of protection against the abuser. Can s/he keep a gun or buy a new gun?
It depends. Federal laws, which apply to all states, restrict an abuser's right to have a gun if you have a restraining order against him/her that meets certain requirements. Under Arkansas state law, all orders of protection must include a notice to the abuser that it is unlawful for him/her to ship, transport or possess a firearm or ammunition based on these federal laws.1 Go to Federal Gun Laws to get more information.
1 A.C.A. § 9-15-207
I have a temporary (ex parte) order against the abuser. Do I have to wait until I receive a permanent order before the abuser's gun is taken away?
Maybe. You can ask the judge to write in your temporary order that the abuser cannot have a gun while you are waiting for a full court hearing on the permanent order of protection. 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.
There could be a slight possibility that it may be illegal under federal law to have a firearm while there is a temporary order of protection. 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 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.3 The order of protection must also meet certain other requirements, though. Read I have an order of protection against the abuser. Can s/he keep a gun or buy a new gun? to find out more.
While waiting for the court to issue you a permanent order, you can take steps to keep yourself safe. Please see our Safety Tips page for information on keeping safe, especially in rural areas.
Is 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?
Here are some things that may help:
- 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 specifically write in your order of protection that the abuser cannot own, buy or have a gun while the order is in effect.
- 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 of protection 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 the abuser.1
1 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.
The 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 law to apply to him/her, but s/he does have to be given notice of the hearing and an opportunity to attend.1
If no hearing is scheduled, and/or no notice is given about the order of protection, then the federal firearm law might not apply to the abuser.2
1 United States v. Bunnell, 106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F. 3d 46 (1st Cir. 2002.)
2United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002.)