I have an order of protection from abuse against the abuser. Can s/he keep a gun or buy a new gun?
Under Delaware state law, it is against the law for someone to buy, own, possess, or control a firearm (or ammunition) if s/he is subject to either of the following protection orders while the order is in effect:
- a lethal violence protection order; or
- a family court protection from abuse order. However, if the protection order was issued only based on one or more of the following allegations, then it may not be illegal for the respondent to have a firearm (or ammunition):
- engaging in a course of alarming or distressing conduct in a manner which is likely to cause fear or emotional distress or to provoke a violent or disorderly response;
- trespassing on or in property of another person, or on or in property from which the trespasser has been excluded by court order;
- any other conduct which a reasonable person under the circumstances would find threatening or harmful.1
Also, as part of a final order of protection from abuse, the judge can specifically write into the order that the abuser cannot buy or possess any firearms while the order is in effect and that s/he has to surrender his/her firearms to the sheriff, constable or to a police officer.2
The judge also has the power to issue an order directing any law-enforcement agency to search for and seize (take) the abuser’s firearms if all of the following circumstances are met:
- you can convince the judge that s/he has possession of a firearm;
- you can describe the specific type and location of the firearm; and
- the abuser has used or threatened to use a firearm against you or you are fearful that the abuser may use a firearm against you.3
Federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a protective order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun. Go to the Federal Gun Laws page to get more information.
1 11 Del. Code §§ 1448(a)(6), (a)(11); 1041(1)(d), (1)(e), (1)(h)
2 10 Del. Code § 1045(a)(8)
3 10 Del. Code § 1045(a)(11)
I have an emergency ex parte order against the abuser. Can his/her gun be taken away?
Possibly. Delaware law allows a judge to order “any appropriate relief” in an ex parte order, including the protections that can be ordered in a final order.1 In a final order of protection from abuse, a judge can write into the order that the abuser cannot buy or possess any firearms while the order is in effect and that s/he has to surrender his/her firearms to the sheriff, constable or to a police officer. The judge also has the power to issue an order directing any law-enforcement agency to search for and seize (take) the abuser’s firearms if certain circumstances are met. See I have an order of protection from abuse against the abuser. Can s/he keep a gun or buy a new gun? for more information.2
Federal law may also prohibit the abuser from having a firearm while a temporary order is in effect but only if it is not an ex parte order. If the judge gave you an ex parte temporary protective order (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, it is possible that it is illegal for him/her to have a gun under federal law. The protective order must also meet certain other requirements, though. Read I have a final order of protection against the abuser. Can his/her gun be taken away? (in our Federal Gun Laws section) to find out more.
1 10 Del Code § 1043(e)
2 10 Del. Code § 1045(a)(8),(11)
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 from abuse?
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 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 for protection from abuse should have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section; and
- 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 protective order 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; and
- Order that the police notify you when the guns are returned to the abuser.