English
EspañolI have a temporary order of protection against the abuser. Can his/her gun be taken away?
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 final order of protection against the abuser. Can his/her gun be taken away? to find out more.
However, even if the abuser can have a gun while you have a temporary order of protection under federal law, your state may have laws that would make it illegal for him/her to have a gun. Go to the State Gun Laws page in your state to read more.
I have a final order of protection against the abuser. Can his/her gun be taken away?
If the order meets certain requirements, it is illegal for the abuser to buy, own, or have a gun while you have a final order of protection. The requirements are:
- The order is issued after a hearing;
- The abuser has to be given notice of the hearing and an opportunity to attend; (Note: Whether or not s/he actually attends doesn’t matter);
- The abuser must be:
- your current or former spouse;
- a person with whom who you have a child in common; or
- a person with whom you live or have lived in the past;1 and
- The order of protection must contain the following specific legal language:
- It has to forbid the respondent from harassing, stalking, threatening, or behaving in any way that causes the petitioner to fear physical injury for him/herself or his/her child; and
- It has to say one of the following:
- the abuser represents a threat to the physical safety of the petitioner or his/her child; or
- the use, attempted use, or threatened use of physical force against the petitioner or his/her child is not allowed (prohibited).2
The order of protection does not need to say that the abuser cannot have a gun for the federal law to apply.
To find out if your order qualifies, you can call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111 ext. 2.
Note: An abuser who works for a government organization, such as a police officer or military servicemember, may still be allowed to possess a work-issued firearm even if s/he was convicted of a felony or if s/he has an order of protection issued against him/her . Please see The abuser uses a gun for his/her job. Does the law still apply? for more information.
1 18 USC §§ 922(g)(8); 921(a)(32)
2 18 USC § 922(g)(8)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get an order of protection?
Here are some suggestions of what you may want to do:
- 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.
- Ask the judge to check the boxes on the order of protection form that says the abuser (respondent) must surrender his/her guns and/or that the respondent’s firearm license is suspended or revoked. If the judge agrees to do so, look to make sure that the boxes are checked on your order before leaving the courthouse.
If the judge orders that the abuser cannot have a gun, you may also want to ask the judge to:
- 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.
- Explain what will happen to the abuser’s guns (where they will be held, etc.).
- Make it clear to both you and the abuser how long the guns will be kept away from the abuser.
- Order that the police notify you when the guns are returned to the abuser.
Note: It does not need to be written on your order of protection that the abuser cannot own, buy, or have a gun in order for the federal law to be enforced.
The abuser did not show up for the order of protection hearing. Can his/her gun still be taken away?
The abuser does not have to come to the hearing in order for the law to apply to him/her, but s/he does have to be given notice of the hearing and an opportunity to attend.1 If the abuser was given notice of the hearing and did not attend, his/her gun may still be taken away under federal law.
If no hearing is scheduled, and/or no notice is given to the abuser about the court hearing, then the federal firearm law likely may not apply to the abuser.2
1 18 USC § 922(g)(8); See, for example, United States v. Bunnell, 106 F. Supp. 2d 60 (D. Me. 2000), aff’d 280 F. 3d 46 (1st Cir. 2002)
2 See, for example, United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002)
