If the abuser's gun is taken away, what will happen to it?
If the abuser is convicted of a crime and his/her gun is taken away, it will be destroyed or sold by law enforcement officials. If the abuser is ordered to give up his/her gun(s) by a domestic violence restraining order (DVRO), s/he has two choices: s/he can give them to local law enforcement officials for storage and safekeeping or s/he can sell them to a licensed gun dealer.1
If the abuser gives his/her gun(s) to a local law enforcement agency, the gun(s) will be kept in the property warehouse until the protective order expires. The abuser will have 24 hours after receiving notice of the order to turn in or sell his/her gun(s). After 48 hours of receiving notice of the order, the abuser will have to fill out form DV-800 (“Proof of Firearm Turned In”) and file it in court to show that s/he has turned in or sold his gun(s). If s/he fails to file this form, s/he will be violating the protective order. The judge is supposed to hold a hearing to review the file to determine whether the abuser filed the form that shows proof of turning in the firearms.2
This procedure will be explained to the abuser on the copy of the DVRO that is given to him/her.
1 Cal.Penal Code § 12028
2 Cal. Fam. Code § 6389(c)(1), (c)(2), (c)(4)
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 CA Sheriff Departments page.
You can find ATF field offices in California 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 CA 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 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.
What is the penalty for violating state firearm laws?
Under California state law, anyone who has, buys, or tries to buy a gun while under a protective order is guilty of a public offense and can be punished by a fine of up to $1,000, imprisonment for up to one year, or both.1 The abuser might also be violating federal firearm laws as well, which carries separate penalties. See Federal Gun Laws for more information.
1 Ann.Cal.Penal Code §12021(g)(1)-(2)