I have an order for protection against the abuser. Can his/her gun be taken away?
Under federal law, if you have a qualifying order for protection against the abuser, s/he cannot have a gun in his/her possession during the term of the order. In order for your order for protection to qualify under federal law, the defendant (person who the order is against) must:
- Be served (given) notice of the court hearing. (In other words, the defendant 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; or
- A person you live with or have lived within the past.1
Usually your order for protection will only be valid for no more than two years, unless ordered otherwise by the court.2 You should be aware of the order’s expiration date so that you can extend the order (if need be) before it ends. See How do I change or extend an order for protection? for more information. Usually you will need to show evidence that you still need the order for protection.
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 his/her job, talk to your local domestic violence program about your options. See our Places that Help page to find a program in your area.
1 18 U.S.C. § 921(a)(32)
2 IC § 34-26-5-9(e)
4 18 U.S.C. § 925(a)(1)
I have a temporary order for protection against the abuser. Can his/her gun be taken away?
Maybe. If the judge gave you an ex parte temporary order for protection (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 for protection, it is possible that it is ILLEGAL for him/her to have a gun under federal law. The order of protection must also meet certain other requirements, though. Read I have an order for protection against the abuser. Can his/her gun be taken away? to find out more.
My abuser did not show up for the order for protection 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 order for protection, then the federal firearm law might not apply to your 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)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get an order for protection?
Indiana state law does not specifically say that a person who has an order for protection against him/her cannot own or buy a gun, but the order for protection form should automatically say that the abuser cannot have or buy a gun (due to federal law).1
To try to make it clear that the abuser cannot have a gun, here are a couple things you may want to ask for in court:
- 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 write in the county sheriff’s office where the abuser has to surrender his/her guns. (Before leaving the courthouse, check to make sure that this is included on your order for protection.)
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. Therefore, you may also want to ask the judge:
- If it can be written in the order that the police to go to the abuser's house and get the guns;
- To make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
- To order that the police notify you when the guns are returned to the abuser.
1 IC § 34-26-5-3(c)