English
EspañolI have a protective order against the abuser. Can s/he keep a gun or buy a new gun?
If you have a protective order against some who has abused you, then in most cases, West Virginia law doesn’t allow that person to have a gun. A judge might also include a specific provision in the order about not having a gun but that isn’t necessary for the law to apply. The law says that for a person to be prohibited from having a gun due to a protective order, there must be an order that meets the following three requirements:
1. it was issued after a hearing of which the abuser had notice and an opportunity to be heard;
2. it restrains the abuser from:
- harassing, stalking, or threatening his/her intimate partner or a child of his/her intimate partner; or
- engaging in other conduct that would place his/her partner or the child in reasonable fear of bodily injury; and
3. it either:
- includes a finding that the abuser is a credible threat to the physical safety of his/her intimate partner or child; or
- prohibits the use, attempted use, or threatened use of physical force against an intimate partner or his/her child that would reasonably be expected to cause bodily harm.1
Additionally, 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 moe information.
1 W. Va. Code § 61-7-7(a)(7)
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a protective 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.
