I have a permanent order of protection against the abuser. Can s/he keep a gun or buy a new gun?
Under Arizona state law, if the judge thinks that the abuser is a threat to you or to anyone else protected in the order, the judge can write on the order of protection that the abuser cannot have or buy a gun. The judge should also order the abuser to give the gun(s) s/he has to a law enforcement agency within 24 hours of being served with the order.1 The ban on guns would be valid for as long as the order of protection lasts. In Arizona, orders of protection are valid for one year after the date the abuser was given notice of the order.2
Federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a restraining order against him that meets certain requirements even if the judge does not specifically include on the order that he cannot have a gun. Go to Federal Gun Laws to get more information.
If you are afraid for your safety, talk to your local domestic violence program about your options. Go to the AZ Advocates and Shelters to find a program in your area.
1 A.R.S. § 13-3602(G)(4)
2 A.R.S. §13-3602(K)
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 a few 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. The form that you will have to fill out to petition for an order of protection will have a place to ask that the abuser’s gun(s) be taken away. Make sure you ask for it.
- 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.2
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.
I have an emergency order of protection (EOP) against the abuser. Do I have to wait until I receive a permanent order before the abuser's gun is taken away?
It depends. Under AZ state law, you can ask the judge to write in your emergency order that the abuser cannot have a gun and if the judge believes that the abuser (defendant) may cause you physical injury or death, the judge can include in the emergency order that the abuser cannot have or buy a gun.1 Therefore, be sure to speak up and tell the judge your fears and ask that the guns be removed.
However, if there is no specific mention of a firearm restriction in the emergency order, then you may have to wait until you are given a permanent order. For the guns to be taken away in a permanent order, the judge only has to believe that the abuser is a threat to you or anyone else protected in the order.2
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 a permanent 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.
1 A.R.S. § 13-3624(D)(4)
2 A.R.S. § 13-3602(G)(4)
3 18 USC § 922(g)(8)
What is the penalty if the abuser has a gun in violation of my order of protection?
Under Arizona state law, if the abuser violates any part of your order of protection, including the firearm ban, he can be arrested for “interfering with judicial proceedings.” This crime is considered a class 1 misdemeanor and he can be punished by a fine of up to $2,500 and imprisoned for up to six months.1 Also, if by violating the order, the abuser commits another crime, he can be arrested for that crime as well.2
1 A.R.S. §§ 13-2810; 13-802; 13-707(A)(1)
2 A.R.S. § 13-3602(J)