I have a final PFA order against the abuser. Can s/he keep a gun or buy a new gun?
Kansas state law says that it is illegal for someone who has a current protection order against him/her ("respondent") to have a firearm if the protection order meets the following three conditions:
- It was issued after a hearing and the respondent received notice of the hearing beforehand and had the opportunity to participate in the hearing;
It restrains the respondent from doing any of the following:
harassing, stalking, or threatening an intimate partner, the intimate partner's child, or the respondent's child; or
engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to himself/herself or his/her child; and
The protection order:
includes a finding by the judge that the respondent represents a "credible threat" to the physical safety of the intimate partner or his/her child; or
has terms in it that clearly prohibit the use, attempted use, or threatened use of physical force against the intimate partner or his/her child that would reasonably be expected to cause bodily injury;1
1 Kan. Stat. Ann.§ 21-6301(a)(17)
I have a temporary PFA order against the abuser. Do I have to wait until I receive a final PFA order before the abuser's gun is taken away?
Maybe. If the judge gave you an ex parte temporary PFA 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 PFA order, it is possible that it is ILLEGAL for him/her to have a gun under federal law. The PFA order must also meet certain other requirements, though. Read I have a protection from abuse order against the abuser. Can s/he keep a gun or buy a new gun? 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 PFA order?
While it does not need to be written on your protection from abuse 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 PFA order that his/her gun(s) be taken away and held while your PFA is in effect. You may also want to write how many guns the abuser has and if s/he has ever threatened you with a gun(s).
- Ask the judge to specifically write in your PFA 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 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/her 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
There is not a guarantee that the judge will do any of the things that you ask for since it often depends on the judge and the way that things are done in your county.
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 PFA 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 PFA 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.)