If the abuser’s gun rights are taken away in the protection from abuse order, what happen to the gun?
Unfortunately, Kansas does not have a specific law that requires law enforcement to remove firearms from individuals who are prohibited from having them.1 You may want to specifically ask the judge to include a term in the protection from abuse order that says how the abuser has to give up (relinquish) his/her firearms.
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 KS Sheriff Departments page.
You can find ATF field offices in Kansas 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 (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
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 KS 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 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.
What is the penalty for violating Kansas state gun laws?
Kansas state laws make it illegal to do any of the following acts:
- possess any firearm if the person has a protection order issued against them that meets the following requirements:
- it was issued after a hearing, of which the person received actual notice, and at which the person had an opportunity to participate;
- it restrains such person from harassing, stalking or threatening an intimate partner or his/her child or the respondent’s child, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or the child; and
- it includes a determination (finding) that such person represents a credible threat to the physical safety of an intimate partner or a child; or
- by its terms, it specifically prohibits the use, attempted use or threatened use of physical force against an intimate partner or a child that would reasonably be expected to cause bodily injury; or
- possess any firearm if the person was convicted of a misdemeanor for a domestic violence offense within the past five years;
- possess any firearm if the person is/was mentally ill and subject to involuntary commitment for care and treatment;
- possess any firearm if the person has an alcohol or substance abuse problem and is subject to involuntary commitment for care and treatment;
- possess any firearm while a fugitive from justice;
- possess any firearm if the person is an undocumented immigrant or illegally in the United States;
- possess any firearm if the person is addicted to and an unlawful user of drugs (controlled substance);1
- carry a concealed weapon while under the age of 21;
- carrying a shotgun with a barrel less than 18 inches in length or any other firearm that automatically discharges more than once when a single trigger is pulled.2
Committing a crimes listed in numbers one through six, above, is a level 8 nonperson felony, which can carry a sentence of up to 11 months in jail or more if the person has a prior record3 plus a fine.
Committing a crime listed in number seven, above, is a class B nonperson select misdemeanor, which can carry a sentence of up to six months in county jail and a fine of up to $1,000.4
Committing a crime listed in number eight, above, is a class A nonperson misdemeanor, which can carry a sentence of up to one year in county jail and a fine of up to $2,500.5
Committing a crime listed in number nine, above, is a level 9 nonperson felony, which can carry a sentence of up to nine months in jail or more if the person has a prior record6 plus a fine.
1 Kan. Stat. § 21-6301(a)
2 Kan. Stat. § 21-6302(a)(4), (a)(5)
3 Kan. Stat. §§ 21-6301(b)(4); 21-6804(a)
4 Kan. Stat. §§ 21-6301(b)(3); 21-6602(a)(2); 21-6611(b)(1)
5 Kan. Stat. §§ 21-6302(b)(1); 21-6602(a)(1); 21-6611(b)(1)
6 Kan. Stat. §§ 21-6302(b)(2); 21-6804(a)