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.*
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,** 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.***
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.**** 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.
* Mont. Code §§ 40-15-201(2); 40-15-204(3)
* 18 USC § 921(a)(32)
** 18 USC § 922(g)(8)
*** 18 USC § 925(a)(1)