If the abuser's gun is taken away, what will happen to it?
A police officer responding to the scene of a crime where domestic violence is claimed to have happened can take the abuser’s gun if all of the following are true:
- the officer believes a crime involving domestic violence has happened;
- the firearm puts the victim in immediate risk of serious bodily injury;
- the firearm was used in the crime; and
- the officer saw the firearm at the scene.1
If the officer takes the gun, s/he will store it until any legal proceedings related to the incident have been completed.2
A police officer might also take a firearm away from someone who has been found to be a “dangerous individual.” If the abuser’s firearm was taken away due to a judge finding that the abuser is a “dangerous individual,” the abuser can file a petition after 180 days to get the firearm back. It is up to the judge whether to return the firearm or not based on whether the person is still considered “dangerous.”3 You can learn more about these types of firearm seizures in the Firearm Seizures and Retention section.
1 IC § 35-33-1-1.5(b)
2 IC § 35-33-1-1.5(c)
3 IC § 35-47-14-8(a)-(f)
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 Indiana Sheriff Departments page.
You can find ATF field offices in Indiana 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 that are called “victim/witness coordinators.” You may be able to ask to speak one of these advocates if you are having a hard time connecting with and ATF officer, or receiving a call back.
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 Indiana 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 is the penalty for violating firearm laws?
Under Indiana state law, anyone who has or buys a gun after being convicted of domestic battery is guilty of a Class A misdemeanor, or a Level 5 felony if certain conditions are met, and can be punished by jail time of up to one year, a fine of up to $5,000, or both.1 Also, anyone who has a handgun after being convicted of a serious violent felony is guilty of a Level 4 felony, which can be punished by incarceration of between two and twelve years, with the advisory sentence being six years. In addition, the person may be fined up to $10,000.2
1 IC §§ 35-47-2-1(c), (e); 35-47-4-6; 35-50-3-2
2 IC §§ 35-47-4-5(c); 35-50-2-5.5
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.