I have a protection order against the abuser. Can s/he keep a gun or buy a new gun?
Under New Mexico law, it is a crime for a person who is subject to an order of protection to have a gun.1 Additionally, a judge can make the abuser turn over his/her guns if an order of protection is issued after a hearing that the abuser had notice of. The judge can only order that the abuser’s guns have to be turned over if s/he believes that the abuser is a “credible threat” to the safety of the protected person. In those cases, the abuser has to give the guns to law enforcement or to someone with a federal firearms license.2
Federal law also prohibits the respondent in a qualifying protection order from having a gun - go to the Federal Gun Laws page to get more information.
1 N.M.S.A. § 30-7-16(A)(2)
2 N.M.S.A. § 40-13-5(A)(2)
I have a temporary protection order against the abuser. Can his/her gun be taken away?
Maybe, but not likely. New Mexico law does not prohibit an abuser who has a temporary protection order against him/her from possessing a firearm.
Under federal law, it could still be legal for him/her to have a gun if the judge gave you an ex parte temporary protection order (which means that no advance notice was given to the abuser), which is commonly done. However, if the judge scheduled a court hearing and gave notice of the hearing to the abuser before giving you the temporary protection order, it is possible that it is illegal for him/her to have a gun under federal law. The protective order 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? (in our Federal Gun Laws section) to find out more.
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a protection order?
Here are a few things that may help:
- 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 specifically write in your protection order that the abuser cannot own, buy or have a gun while the order is in effect. The form that you will have to fill out to petition for a protection order will have a place where you can request additional protections. You can ask that the abuser’s gun(s) be taken away in that section; and
- Before leaving the courthouse, check to make sure that the gun restriction is written 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 protective 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.