I have a protection order against the abuser. Can s/he keep a gun or buy a new gun?
Possibly not. Nebraska state law allows the judge to order that the abuser cannot possess or purchase firearms as a term in your actual protection order.1
Also, under federal law, if you have a qualifying protection order, it can be illegal for the abuser to have a gun in his/her possession even if this is not written into the terms of your protection order. In order for your protection order to qualify under federal law, the defendant must:
- Be served (given) notice of the court hearing. In other words, the defendant must have been given paperwork that told him or her about the hearing.
- Have an opportunity to attend the court hearing. Note: The abuser does not have to actually be at the hearing, but s/he has to have the opportunity to come to the hearing.
- Be an “intimate partner” of the victim, which includes:
- A current or former spouse;
- A person with whom you share a child; or
- A person you live with or have lived with in the past.2
If your protection order has expired, it is no longer a valid order under federal law, which means the firearm ban also does not apply. Your protection order probably says in the second paragraph that your order, unless modified, is good for one year from the date of issue, which should be written on the bottom of page one of your order.
Note: This federal law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.3 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. To find a shelter or an advocate at a local program, please visit the NE Advocates and Shelters page under the Places that Help tab at the top of this page.
1 NE R.S. § 42-925(1)
2 18 USC § 921(a)(32)
3 18 USC § 925(a)(1)
I have a temporary (ex parte) protection order against the abuser. Can his/her gun be taken away?
Yes. Nebraska law allows the judge to order that the abuser cannot purchase or possess a firearm in an ex parte protection order.1 If this is something that you want in your order, you may want to specifically mention in your petition that the abuser has firearms in his/her possession.
1 NE R.S. §§ 42-924(g); 42-925(1)
Is there anything I can do to make it more likely that my abuser's gun is taken away when I get a protection order?
While it does not need to be written on your order that the abuser cannot own, 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 a few things that you may be able to ask for to try to make the firearm prohibition clearer:
- 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 check the box on your protection order that says the defendant cannot own, buy or have a gun while the order is in effect.
- Before leaving the courthouse, check to make sure that the gun restriction is 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. If the judge agrees to add language that the abuser cannot keep his/her guns while the order 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; and
- Order that the police notify you when the guns are returned to the abuser.
The abuser did not show up for the protection order hearing. Can his/her gun still be taken away?
Maybe. The abuser does not have to come to the hearing in order for the 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 about the protective order, then the federal firearm law might not apply to the abuser.2
1United States v. Bunnell, 106 F. Supp. 2d 60 (D. Me. 2000), aff’d 280 F. 3d 46 (1st Cir. 2002.)
2United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002.)