I have a final order of protection against the abuser. Can his/her guns be taken away?
Under Montana state law, a judge can order in a temporary or a final order of protection that the abuser is prohibited from possessing or using a firearm if one was used in an assault against you.1
Under federal law, if the order meets certain requirements, it is illegal for the abuser to buy, own, or have a gun in his/her possession during the period of time that you have a final order of protection.
The requirements are:
- 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), and
- the abuser must be either your current or former spouse, a person who you have a child in common with, or a person you live with or have lived with in the past,2 and
- the order of protection must contain 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
- either state that the abuser represents a threat to the physical safety of the petitioner or her child OR
- specifically prohibit the use, attempted use, or threatened use of physical force against the petitioner or his/her child.21
To find out if your order qualifies, you can call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 x 2 or contact us through our Email Hotline. You can also read the exact wording of the law [18 USC § 922(g)(8)] on our Federal Statutes page. The order of protection does NOT need to say that the abuser cannot have a gun for the federal law to apply but it may make it easier to enforce with local police if it is written on the order. Therefore, you can ask the judge to include this in the order during the protection order hearing.
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. See MT Advocates and Shelters to find a program in your area or National Organizations to find a national program.
1 Mont. Code §§ 40-15-201(2); 40-15-204(3)
1 18 USC § 921(a)(32)
2 18 USC § 922(g)(8)
3 18 USC § 925(a)(1)
I have a temporary order of protection against the abuser. Can his/her guns be taken away?
Maybe. You can ask the judge to put in your temporary order that the abuser cannot have a gun while you are waiting for a full court hearing. The judge is allowed to order this if a firearm was used or threatened in an assault against you.1
However, if there is no specific mention of a firearm restriction in the temporary order, and the judge gave you an ex parte temporary order of 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 the temporary order of protection, it is possible that it is ILLEGAL for him/her to have a gun under federal law. The order of protection must also meet certain other requirements, though. Read I have a final order of protection against the abuser. Can his/her gun be taken away? to find out more.
1 Mont. Code § 40-15-201(2)(f)
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 your 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.
Here are some suggestions of what you may want to do:
- 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 indicate on the order of protection form that the abuser (respondent) must surrender his/her guns and/or that the respondent’s firearm license is suspended or revoked. If the judge agrees to do so, look to make sure that this is indicated on your order before leaving the courthouse.
If the judge takes away the guns, you may also want to ask the judge to:
- 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.
- Explain what will happen to the abuser’s guns (where they will be held, etc.).
- 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.
The abuser did not show up for the order of 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 federal 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 to the abuser about the court hearing, then the federal firearm law likely may not apply to the abuser.2
Also, under Montana state law, a respondent can be prohibited from using a firearm as part of a temporary or final order if a gun was used in an assault against you.3
1 18 USC §922(g)(8); See, for example, United States v. Bunnell, 106 F. Supp. 2d 60 (D. Me. 2000), aff’d 280 F. 3d 46 (1st Cir. 2002)
2 See, for example, United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002)
3 Mont. Code §§ 40-15-201(2); 40-15-204(3)