If the abuser’s gun is taken away, what will happen to it?
Within 24 hours after an abuser has been convicted of a qualifying crime or a qualifying restraining order has been issued against him/her, s/he has to transfer any firearms and ammunition that are in his/her possession. The judge will inform the abuser about this verbally and will include firearms restrictions in the judgment or order. The abuser can transfer the firearms to:
- a law enforcement agency;
- a licensed gun dealer; or
- a third party that has completed a background check and signed a statement under the penalty of perjury that includes:
- that s/he understands that the abuser cannot have a gun; and
- that s/he, the third party, can be punished criminally if s/he lets the abuser have the gun.1
The agency or person that receives the firearms from the abuser will provide written proof of receipt. Within two days, the abuser then has to file certain documents, which includes proof of this receipt and the signed third party statement if the guns were transferred to a third party. 1
The abuser has to file these documents with the judge, and also with the district attorney. If s/he fails to file the documents as required, the district attorney can bring a contempt case against the abuser.1
When the restraining order prohibiting firearm possession has expired, the abuser can request for the firearms and ammunition s/he transferred to be returned to him/her. The person or agency returning the items has to perform a background check first to make sure that the abuser is not prohibited from possessing firearms for another reason. If law enforcement has the firearms and ammunition, they can hold them for 72 hours and also notify the Department of Justice about the request. Law enforcement will also confirm that the abuser is the owner of the items or has permission from the owner to possess them before turning them over to the abuser.2
1 Or. Rev. Stat. § Ch. 201, §§ 3; 4
2 Or. Rev. Stat. § Ch. 201, §5
Who do I notify if I think the abuser should not have a gun?
If you think the abuser is violating state firearm laws, you can call your local police or sheriff department or the state police. If you think the abuser is violating federal firearm laws, you can call the Bureau of Alcohol, Tobacco and Firearms (ATF).
You can find contact information for sheriff departments in your area on our Oregon Sheriff Departments page.
You can find ATF field offices in Oregon on the ATF website. For reporting illegal firearm activity, a person can also call 1-800-ATF-GUNS (1-800-283-4867). Many ATF offices have victim advocates on staff (called “victim/witness coordinators”) and so perhaps you may ask to speak one of these advocates if you are having a hard time connecting with (or receiving a call back from) an ATF officer.
A local domestic violence organization in your area may also be able to answer your questions and assist you in talking to the necessary law enforcement officials. You will find contact information for organizations in your area on our Oregon Advocates and Shelters page.
Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested for breaking the law. If the abuser has or buys a gun in violation of the law, the abuser can be arrested, whether or not s/he knows that s/he was in violation of the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What is the penalty for violating state firearm laws?
According to Oregon state law, the crime of illegal possession of a firearm is a Class A misdemeanor, which carries a sentence of up to 364 days and a fine of up to $6,250.1 However, if the abuser is a convicted felon who is in possession of a firearm, it is a Class C felony, which carries a sentence of up to five years and a fine of up to $125,000.2
If the abuser has a gun in violation of a specific term against possessing firearms that was written into your restraining order by the judge, s/he may be arrested for the crime of violating the restraining order. Violation of the specific terms of a stalking protective order, for example, can be considered either a Class A misdemeanor or a Class C felony, depending on certain circumstances.3
The abuser might also be violating federal gun laws as well, which carry separate criminal penalties. Go to Federal Gun Laws for more information.
1 Or. Rev. Stat. §§ 166.250(5); 161.615(1); 161.635(1)(a)
2 Or. Rev. Stat. §§ 166.270(5); 161.605(3); 161.625(1)(d)
3 Or. Rev. Stat. § 163.750(2)(a), (2)(b)
What will happen if the abuser tries to purchase a gun?
Before purchasing a gun from a licensed firearm dealer, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS). The National Instant Criminal Background Check System is used by federal firearms licensees (FFLs), such as firearms dealers or pawnbrokers, to instantly determine whether someone is eligible to receive (own, possess, transport) firearms or explosives.1 If the abuser has a qualifying restraining order against him/her, or has been convicted of a felony or domestic violence misdemeanor in any state, those records should be in the NICS, which should prevent the abuser from legally buying a gun. Not all states have automated record keeping systems, making it more difficult to process the criminal background check, and some criminals and abusers do slip through the system. Also, it is important to know that background checks are not required for private and online gun sales and so in those situations, the seller is not looking in the NICS.
If the abuser is able to purchase a gun and you believe that s/he should not be able to have one under the law, you can alert the police, and ask that his/her gun be taken away and perhaps the police will investigate. Generally, it is not a good idea to assume that because the abuser was able to buy a gun, it is legal for him/her to have one.