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 issued after a hearing whether the abuse had the chance to be present. 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)