I have a Protective Order against the abuser. Can s/he keep a gun or buy a new gun?
No. According to Federal law, if you have a protective order that was issued by a New Hampshire civil court against your abuser, s/he cannot have a gun in their possession, or buy a new gun.1
In order for your PO order to qualify under Federal law, the defendant (person who the PO is against) 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 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
- A person you live with or have lived with in the past
- Note: NH state law also allows you to get a protective order against a current or former dating partner, which means if you have a protective order against a current or former dating partner, the firearm ban will still apply under NH state law.2
If your PO order has expired, it is no longer a valid order under Federal law, which means the firearm ban also does not apply.
This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.3 If your abuser is a police officer, member of the military, or someone else who uses a gun for their job, talk to your local domestic violence program about your options. To find a local program please visit NH Advocates and Shelters page under the Places that Help tab on the top of this page.
Note: If your abuser violates the protective order in any way, NH state law says that the police must take any guns or ammunition that your abuser has or uses while violating the protective order.4 Remember that having a gun while being subject to a protective order is a violation in itself.
1 18 USC § 922(g)(8)
2 N.H. Rev. ST. 173-B:1(X)
3 18 USC Sec. 925 (a)(1)
4 N.H. Rev. Stat. Section 173-B:9(b)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a Protective Order?
While it does not need to be written on your Protective Order (PO) that your abuser cannot own, buy or have a gun in order for the law to be enforced, it may make it easier if it is written. New Hampshire state law specifically says that a person who has a PO order against them cannot have a license to own or buy a gun, which means that they cannot buy a new gun or keep the one they already have. However, sometimes it is not always clear to law enforcement officials that your abuser’s gun should be taken away when the PO is issued. There are a couple steps you can take to help make this clear:
- If your abuser has a gun, tell the judge how many guns he has, and if he has ever threatened you with a gun(s).
- Before leaving the courthouse, check to make sure that the gun restriction is written on your PO order.
In New Hampshire, your abuser cannot get his gun(s) back without the approval of the court. This applies whether the gun is stored with the police or a private individual. You will have an opportunity to be at the hearing when the court decides whether or not to return your abuser’s gun(s).1
1N.H. Rev. Stat. 173-B:5 (X)
The abuser did not show up for the PO hearing. Can his/her gun still be taken away?
Yes. Your abuser does not have to come to the hearing in order for the law to apply to him, but he does have to be given notice of the hearing and an opportunity to attend.1
In addition, New Hampshire has a law that says if you can show that you are in immediate and present danger of abuse (such as by calling the police, and having the police determine that you are in danger), the court will enter an emergency protective order that allows a peace officer to take your abuser’s guns away.2
1 United States v. Bunnell 106 F. Supp. 2d 60 (D. Me. 2000), aff’d 280 F. 3d 46 (1st Cir. 2002)
2 RSA § 173-B:4
I have a Temporary/ Ex parte PO order against the abuser. Do I have to wait until I receive a permanent order before my abuser's gun is taken away?
Maybe. NH state law allows a judge to order your abuser to give up any guns or deadly weapons that s/he has while the temporary (ex parte) order is in place.1 The judge can also prohibit your abuser from buying a gun while the temporary order is in place, and may even issue a warrant to have your abuser’s home searched if there is reason to believe that the guns have not been given up.2 It will be up to a judge to decide if any of these orders are necessary for your safety.
If there is no specific mention of a firearm restriction in the temporary (ex parte) order, then you may have to wait until you are given a permanent order. Under federal law, if 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 Protective Order against my abuser. Can s/he keep a gun or buy a new gun? to find out more.
1 N.H. Rev. Stat. 173-B:4(1)(a)(9)
2 N.H. Rev. Stat. 173-B:4(II)