I have an order for protection against the abuser. Can his/her gun be taken away?
It depends. If you have a final order for protection against the abuser, Minnesota law states that a judge must order the abuser not to possess firearms for the time that the order is in effect if the order:
- instructs the abuser from harassing, stalking, or threatening you, or from engaging in other conduct that would place you in reasonable fear of bodily injury; and
- includes a finding (the judge’s determination) that the abuser represents a credible threat to your physical safety or prohibits the abuser party from using, attempting to use, or threatening to use physical force against you.1
Also, according to federal law, which applies to all states, the abuser/respondent cannot have or buy a gun if s/he is subject to a valid order for protection. 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 with in the past.2
In MN, your order should automatically contain a notice of this federal firearms prohibition.3
Note: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.4 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. To find a shelter or an advocate at a local program, please visit our MN Advocates and Shelters page.
1 Minn. Stat. § 518B.01(6)(g)
2 18 USC § 921(a)(32)
3 MN Statutes § 518B.01(18)(a)(4)
4 18 USC § 925(a)(1)
I have a temporary (ex parte) protection order against the abuser. Do I have to wait until I receive a permanent order before the abuser's gun is taken away?
Maybe. If the judge gave you an ex parte 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 a temporary order, it is possible that it is ILLEGAL for him/her to have a gun under federal law. The order for 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.
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?
While it does not need to be written on your order that the abuser cannot own, buy or have a gun in order for the federal law to be enforced, it may make it easier if it is written.
Here are a few things that you may be able to ask for to try to make the firearm prohibition clearer:
- 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 into the order for protection that the defendant cannot own, buy or have a gun while the order is in effect.
- Before leaving the courthouse, check to make sure that this 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. If the judge agrees to add language that the abuser cannot keep his/her guns while the 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; and
- Order that the police notify you when the guns are returned to the abuser.
The 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 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.)