I have a temporary restraining order. Can the abuser have a gun?
Louisiana law tells a judge what protections s/he is allowed to grant someone in a temporary order of protection. Restricting an abuser’s access to have or buy a gun is not included in the list of protections that can be granted in a temporary order.1
1 LA R.S. 46:2135
I have a protective order against the abuser. Can s/he keep a gun or buy a new gun?
Louisiana law makes it illegal for someone to possess a firearm or carry a concealed weapon while a long-term protective order is in effect if:
- the order includes a finding that the defendant represents a believable (credible) threat to the physical safety of a family member, household member, or dating partner; and
- the order includes a notice to the defendant about this law and about the federal firearm law.1
In addition, if a person has a protective order against him/her that meets certain requirements, s/he would not qualify for a permit to carry a concealed handgun if s/he applied for one.2 The requirements are:
- the order was issued after a hearing;
- the abuser has to be given notice of the hearing and an opportunity to attend (whether or not s/he actually attends doesn’t matter);
- the abuser must be:
- your current or former spouse;
- a person with whom who you have a child in common; or
- a person with whom you live or have lived in the past;3 and
- the order of protection must contain the following specific legal language:
- it has to forbid the respondent from harassing, stalking, threatening, or behaving in any way that causes the petitioner to fear physical injury for him/herself or his/her child; and
- it has to say one of the following:
- the abuser represents a threat to the physical safety of the petitioner or his/her child; or
- the use, attempted use, or threatened use of physical force against the petitioner or his/her child is not allowed (prohibited).4
Lastly, federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances, including when there is an order of protection that was issued after notice to the abuser and a hearing. Go to Federal Gun Laws to get more information.
1 LA R.S. 46:2136.3
2 LA R.S. 40:1379.3(C)(17)
3 18 USC §§ 922(g)(8); 921(a)(32)
4 18 USC § 922(g)(8)
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?
Depending on the judge in your case, there may be some things you can do to increase the chances that the judge will require that an abuser’s guns are taken away. Keep in mind these tips may or may not result in the outcome that you are hoping for. Every judge is different. However, here are a few suggestions that may help:
- If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever shown you the guns or displayed them as a way to intimidate you and maintain control over you.
- Ask the judge to specifically write in your order for protection that the abuser cannot own, buy or have a gun while the order is in effect. The form that you will have to fill out to petition for an order for protection will have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section.
- 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. If the judge agrees to add language that the abuser cannot keep his/her guns while the order for protection 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; and
- order that the police notify you when the guns are returned to the abuser.
- If the gun restriction is granted, check to make sure that it is written on your order before leaving the courthouse.