I have a final protective order against the abuser. Can s/he keep a gun or buy a new gun?
It depends. On most protective order forms in IA, there will be a firearm restriction that can be checked off by the judge. Under federal law, however, it does not matter whether or not the firearm restriction is checked off on your order - a person who has a protective order against him/her cannot have or buy a gun while the PO is in effect.1 In order for your PO to qualify under federal law, the respondent (person who the order is against) must:
- Be served (given) notice of the court hearing. In other words, the respondent must have been given paperwork that told him or her about the hearing;
- Have an opportunity to attend the court hearing; Note: The abuser does not have to be at the hearing, but s/he has to have the opportunity to come to the hearing.
- Be an “intimate partner” of the victim, which includes:
- A current or former spouse;
- A person with whom you share a child;
- A person you live with or have lived with in the past.2
Note: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.3 If the abuser is a police officer, member of the military, or someone else who uses a gun for their job, talk to your local domestic violence program about your options. See IA Advocates and Shelters to find a program in your area.
1 18 USC § 922(g)(8)
2 18 USC § 921(a)(32)
3 18 USC § 925(a)(1)
I have a temporary order against the abuser. Do I have to wait until I receive a final order before the abuser's gun is taken away?
Maybe. 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 protective 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 protective order against the abuser. Can his/her gun be taken away? to find out more.
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a protective order?
While it does not need to be written on your protective order that the abuser cannot buy or have a gun in order for the federal law to be enforced, it may make it easier if it is written. There are a couple steps you can take to try to help make this clear:
- If the abuser has a gun, be sure to make a request on your petition for a protective order that his/her gun(s) be taken away and held while your PO is in effect. You can write this request under the “Other” section of what you ask the court to do. You may also want to write how many guns your abuser has and if s/he has ever threatened you with a gun(s).
- Ask the judge to specifically write in your protective order that the abuser cannot buy or have a gun while the order is in effect. There will most likely be a box that the judge can check off.
- Before leaving the courthouse, check to make sure that the gun restriction is written (or checked) 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, and a time frame in which the guns must be turned over. If the judge agrees to add language that the abuser cannot keep his 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;
- 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”
The abuser did not show up for the protective order 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 protective order, then the federal firearm law might not apply to the abuser. 2
1United 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)