If the abuser's gun is taken away, what will happen to it?
Montana requires a peace officer responding to a call about an abuser assaulting a partner or family member to take the weapon used or threatened to be used in the incident.1 The weapon may not be returned to the abuser until:
the offender has been acquitted; or
a judge orders that the weapon be returned.2
Montana does not require an officer to remove firearms or require the abuser to surrender firearms when a domestic violence order of protection issued against the abuser.3
1 Mont. Code § 46-6-603(1)
2 Mont. Code § 46-6-603(3)
3 Giffords Law Center
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating the state firearm laws, you can call your local police or sheriff department or the State Police. If you believe s/he is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have order of protection against the abuser, s/he has been convicted of a felony or domestic violence misdemeanor.
You can find contact information for sheriff departments in your area on our MT Sheriff Departments page.
To contact your local ATF field office, see the ATF website. For reporting illegal firearm activity, you can also call: 1-800-ATF-GUNS (1-800-283-4867).
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 MT Advocates and Shelters page.
Note: Generally, a person does not have to have knowledge of the law in order to be arrested for violating the law. If the abuser has a gun or buys a gun in violation of the law, s/he can be arrested, whether or the abuser knows 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 state firearm laws?
If a person is restricted from having a firearm because s/he was convicted of a crime, the punishment for having a firearm is imprisonment in a state prison for two to ten years.1
1 Mont. Code § 45-8-313(2)