I have a temporary or final order of protection against the abuser. Can s/he keep a gun or buy a new gun?
In Montana, a judge can prohibit the respondent in a temporary domestic violence order of protection from possessing or using a firearm that was used in an assault against you. However, it would only apply to that specific firearm used, not all firearms. Also, the law allows the judge to include it but does not require the judge to issue that restriction.1
Also, federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances. Go to Federal Gun Laws to get more information.
1 Mont. Code §§ 40-15-201(1), (2); 40-15-204(3)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection?
While it does not need to be written on your order of protection 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 an order of protection that his/her gun(s) be taken away and held while your order of protection is in effect. You can write this request under the “Other” section of what you ask the judge to do. 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 order of protection 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 (or checked) 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 guns while the order of 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;
- order that the police notify you when the guns are returned to the abuser.