If the abuser's gun(s) is taken away, what will happen to it?
If the judge orders that the abuser’s firearms be removed in your final order for protection for the reasons explained in I am a victim of domestic violence and the abuser has a gun. Is that legal?, there are two ways that the firearms can be taken away. First, if the judge believes that there is evidence that the abuser poses an immediate risk of causing you or another person substantial bodily harm, the judge must order the local law enforcement agency take immediate possession of all firearms in the abuser’s possession.1 If the judge does not believe there is an immediate risk, the abuser will have three business days to transfer the firearms to a federally licensed firearms dealer, a law enforcement agency, or a third party who may lawfully receive them (as long as the third party does not live with the abuser).2 The third party may be held criminally and civilly responsible if the abuser is able to access the firearm while it is in the custody of the third party. Then, the abuser must file proof of the transfer with the court within two business days of the transfer.3
If the abuser’s guns are taken away after the abuser is arrested for a crime, the judge may order as a condition of his/her release that the abuser surrender all firearms to the local police department or other law enforcement agency. The agency will inventory the gun(s) and will store them until such time that the abuser can get them back under the law. For example, if the abuser is acquitted, charges are dismissed, or if no charges are filed, the firearms will be returned. If the abuser is convicted of a crime, whether or not the firearms will ever be returned will depend on the crime.4
1 MN Statutes § 518B.01(6)(i)
2 MN Statutes § 518B.01(6)(g)
3 MN Statutes § 518B.01(6)(h)
4 MN Statutes § 629.715(2)
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 MN Sheriff Departments page.
You can find ATF field offices in Minnesota 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 MN 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
1 United 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 is the penalty for violating state or federal firearm law?
Anyone who owns, has or buys a gun in violation of the federal firearm law can be punished by a fine, jail time for up to 10 years, or both.1
Under MN law, any violation of an order for protection that involves a dangerous weapon is a felony and can be punished by jail time of up to 5 years, a fine of up to $10,000, or both.2
1 18 USC § 924(a)(2)
2 MN Statutes § 518B.01(14)(d)(2)
I do not have an order for protection against the abuser, and s/he has not been convicted of any crimes. Can s/he have a gun?
Minnesota state law makes it illegal to own a gun in many other situations aside from being the respondent in an order for protection case or being convicted of a crime. If the abuser falls into any of these categories, it may be illegal for him/her to have a gun under MN state law. If the abuser:
- is a user of unlawful drugs;
- is a fugitive from justice;
- is an undocumented immigrant or who was a U.S. citizen and renounced his/her citizenship;
- has been dishonorably discharged from the military;
- was deemed mentally ill by a judge and committed to a treatment facility or was found incompetent to stand trial or not guilty by reason of mental illness;
- was committed by a judge for drug treatment; or
- is a peace officer who has been informally admitted to drug treatment (unless the head of the treatment facility provides a certificate that the officer is discharged).1
Note: A person’s right to possess a firearm could eventually be restored (given back) by a judge if s/he falls into categories 5 through 7 listed above.2
If the abuser falls into any of the above categories, you may want to talk to a domestic violence advocate or attorney in your area about how this law is being enforced.
If none of these situations apply, you can still make a plan for your safety. See our Safety Tips page for more information. You can also contact your local domestic violence organization for additional help. You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety. To find a shelter or an advocate at a local program, please visit our MN Advocates and Shelters page.
For additional information on gun laws in Minnesota, you can go to the Giffords Law Center website.
Also, federal laws, which apply to all states, restrict an abuser’s right to have a gun under other circumstances. Go to Federal Gun Laws to get more information.
1 MN Statutes § 624.713(1)
2 MN Statutes § 624.713(1),(4)
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.
The abuser uses a gun for his/her job. Does the law still apply?
Maybe. If the abuser is subject to an order for protection and is a law enforcement officer, military employee or government employee, then s/he might be able to continue to use a gun for work purposes, but not for personal use.
However, if the abuser has been convicted of a felony or a domestic violence misdemeanor, then under federal law, s/he cannot buy or have a gun, even if s/he is a police officer or a military employee.1
If you are confused or not sure whether or not the abuser can still use a gun for work purposes, you can talk to a domestic violence advocate in your area or call the National Center on Protection Orders and Full Faith & Credit to find out more information: 1-800-903-0111, ext. 2 To find a shelter or an advocate at a local program, please visit our MN Advocates and Shelters page.
1 18 USC § 925(a)(1)
I've read through all of this information, and I am still confused. What can I do?
Trying to understand both federal and state law can be confusing but there are people out there who can help you better understand the law and your rights under the law. You can:
- Contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111 x 2.
- Contact a local domestic violence organization in your area - see our MN Advocates and Shelters page.
- Write to our Email Hotline.