I have a temporary order against the abuser. Can his/her gun be taken away?
In South Dakota, as part of an ex parte temporary order, the judge can order the abuser to “immediately turn over all weapons and ammunition to the local sheriff.”1 A person can also be denied a permit to carry a concealed weapon if s/he has a “history of violence,”2 although the law doesn’t specifically define what this means.
Federal law may also prohibit the abuser from having a firearm while a temporary order is in effect but it’s not likely. If the judge gave you an ex parte temporary protective order (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 protective 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.
I have a protection order against the abuser. Can s/he keep a gun or buy a new gun?
In South Dakota, as part of an ex parte temporary order or a final protection order, the judge can order the abuser to “immediately turn over all weapons and ammunition to the local sheriff.”1
In addition, a person can be denied a permit to carry a concealed weapon if s/he is the respondent on a protection order that was issued after notice and a hearing that:
- restrains him/her from:
- harassing, stalking, or threatening an intimate partner or the child of an intimate partner; or
- engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- includes a finding that s/he represents a credible threat to the physical safety of an intimate partner or child or specifically prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.2
Federal laws, which apply to all states, restrict an abuser’s right to have a gun if you have a protection order against him/her that meets certain requirements even if the judge does not specifically include on the order that s/he cannot have a gun. Go to the Federal Gun Laws page to get more information.
If you are afraid for your safety, talk to your local domestic violence program about your options. Go to the SD Advocates and Shelters to find a program in your area.
1 See Domestic Permanent Order of Protection, Domestic Temporary Ex Parte Order of Protection, Stalking Permanent Order of Protection, and Stalking Temporary Ex Parte Order of Protection
2 SDCL §§ 23-7-7;. 23-7-7.1(10); 18 USC § 922(g)
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 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; 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 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.