I have a protection order against the abuser. Can s/he keep a gun or buy a new gun?
Ohio law does not specifically allow a judge to restrict an abuser’s access to firearms as part of a temporary order or a final civil protection order; however, the law does allow a judge to grant any relief that s/he believes is “equitable and fair” to protect the protected party.1 For a firearm restriction to be enforced by local police, you can ask the judge to write in your order that the abuser cannot use or have a gun.
The standard protective order forms in Ohio have a line on page 3, under #10, that says “DEFENDANT SHALL NOT POSSESS, USE, CARRY OR OBTAIN ANY DEADLY WEAPON.”
There is a space after #10 for the judge to write instructions for the abuser to give up his/her guns.2 If the judge sees the abuser’s firearm as a serious enough threat, the judge might decide to write this in.
Some judges in Ohio have decided that there must be a connection (nexus) between firearm use and the incident that led to the protective order for them to include gun restrictions.3 In those districts, the courts may use forms for their protective orders that do not have the default gun restriction language. If you live in a district that requires a nexus, be sure to include information in your petition about how the abuser used a gun to threaten or abuse you, if you want to ask the judge to include a firearm restriction
Federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances. Go to Federal Gun Laws to get more information.
1 Ohio Rev. Code § 3113.31(E)(1)(h)
2 See FORM 10.01-H: DOMESTIC VIOLENCE CIVIL PROTECTION ORDER (CPO) EX PARTE and FORM 10.01-I: DOMESTIC VIOLENCE CIVIL PROTECTION ORDER (CPO) FULL HEARING
3 See Maag v. Maag (Mar. 28, 2002), 3d Dist. No. 16-01-16, 2002 WL 468585
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?
Depending on the judge in your case, there may be some things you can do to increase the chances that the judge will require that an abuser’s guns are taken away. Keep in mind these tips may or may not result in the outcome that you are hoping for. Every judge is different. However, here are a few suggestions that may help:
- If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever shown you the guns or displayed them as a way to intimidate you and maintain control over you.
- Ask the judge to specifically write in your protective 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 protective 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.
- 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 protection 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.
- If the gun restriction is granted, check to make sure that it is written on your order before leaving the courthouse.