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Know the Laws:

UPDATED February 25, 2016

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The following information explains how an order of protection or criminal conviction affects an abuser’s right to have a gun under federal law. However, in addition to these federal gun laws, there may also be state-specific laws that may apply.  In order to fully understand all of the legal protections available, please also read your state’s laws by entering your state in our State Gun Laws section.

WomensLaw.org strongly recommends that you get in touch with a domestic violence advocate in your community for more information on gun laws in your area.

Definitions and Basic Info

back to topWhat is the difference between federal and state gun laws?

This section will explain the basics of federal gun laws.  If you go to State Gun Laws, and enter your state into the drop-down menu, you may also see gun laws that are specific to your state.  The major difference between federal and state gun laws has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.

One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself.  If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws.  Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws.  If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor. If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor).  For information on how you can contact ATF directly to report the violation of federal gun laws, go to the ATF website to find the office nearest you.  If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.

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back to topWhat is a felony?

Throughout these gun law pages, we will refer to gun laws that make it illegal for someone convicted of a felony to have a gun.  A felony is a crime that is punished more harshly than a misdemeanor.  A felony is defined under federal law as a crime that is punishable by a prison sentence of more than one year.*  However, you cannot always tell if someone was convicted of a felony only by looking at the amount of time s/he actually served in prison since sentences are often reduced or pled down.  If you are unsure if the abuser was convicted of a felony, you might want to talk to the prosecutor who handled the criminal case against the abuser to find out or go to the local criminal courthouse and try to search the records.

* 18 USC § 3559(a)

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back to topWhat is the definition of a domestic violence misdemeanor?

Throughout these gun law pages, we will refer to the fact that it is illegal to carry a gun if a person has been convicted of a "domestic violence misdemeanor."  Basically, if the abuser is/was a family or household member and was charged with a misdemeanor because s/he abused you with physical force or the threat of physical force or a deadly weapon, s/he could have been convicted of a domestic violence misdemeanor.*

Here are the steps you can take to figure out if the abuser was convicted of a domestic violence misdemeanor:

Step 1: You first need to know if the abuser was convicted of a misdemeanor crime either in state court or in federal court.*  A misdemeanor may have different definitions in each state, but basically it is a crime with a shorter possible sentence than a felony.  If you are unsure if the abuser was convicted of a misdemeanor, you can call the district attorney or prosecutor who handled the criminal case and ask him/her or go to the local criminal courthouse and try to do a search of his/her convictions.

Step 2: The next step is that you need to figure out if the misdemeanor crime involved either the use or attempted use of physical violence or force, or the threatened use of a deadly weapon.*  (“Force” does not have to be violent force; “offensive touching,” such as the type that comes under many crimes of battery, is considered to be force.)**  Note: An issue that may arise in a federal prosecution for violating this law is proving that the violence/force was “intentional.”***  In some states, misdemeanor crimes are described as either an “intentional” or “reckless.”  In these cases, if it could be interpreted that the abuser acted recklessly (instead of intentionally), a prosecution for wrongly possessing a firearm may be more complicated.  Again, if you are unsure, you might want to call the prosecutor who handled the case.

Step 3: The abuser must be either:

  • your current or former spouse;
  • your parent or guardian;
  • a person with whom you have a child in common;
  • a person who is like a spouse, parent or guardian to you (whether or not you live/d with him/her).  For example, this might be a long-term boyfriend or someone with whom you share an intimate, personal relationship.*

If all three of these steps apply to your situation, it is likely that the abuser was convicted of a domestic violence misdemeanor.

Note: The crime may not have to specifically mention "domestic violence" in order for it to be considered a domestic violence misdemeanor, and for the federal firearm law to apply.****  The relationship that the victim has with the offender could determine whether or not the misdemeanor is a "domestic violence misdemeanor."  For example: If Bob is convicted of a misdemeanor assault against his wife, it is probably illegal for him to buy or have a gun.  If Bob is convicted of a misdemeanor assault against his neighbor, he may still be able to have or buy a gun.

For more information, or if you are still confused, you might want to contact the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111, ext. 2.

* 18 USC 921(a)(33)(A); see Buster v. United States, 447 F.3d 1130 (8th Cir. 2006) (for discussion of defining "as a spouse.")
** See United States v. Castleman, 134 S. Ct. 1405, 188 L. Ed. 2d 426 (2014)
*** See United States v. Nobriga, 474 F.3d 561 (9th Cir. Ct App., 2006); United States v. Belless, 338 F.3rd 1063 (9th Cir. 2003); see also Domestic Violence and Firearms: A Deadly Combination
**** See United States v. Hayes, 555 U.S. 415, 129 S.Ct. 1079 (2009)

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back to topThe abuser has a gun. Is that legal?

Under federal law, there are two situations that make it illegal for the abuser to buy, own or have a gun in his/her possession.

First, if the abuser has been convicted of a felony or a domestic violence misdemeanor, s/he can never legally buy, own or have a gun.*

Second, if you have a final order of protection against the abuser (assuming the order meets certain requirements), it is illegal for the abuser to buy, own, or have a gun in his/her possession during the period of time that you have the order of protection.**  Read I have a final order of protection against the abuser. Can his/her gun be taken away? to find out more.

Please note that this is a federal law, which is enforced and prosecuted by federal law enforcement.  However, many states have similar laws and have their own rules which may be stricter, or less strict.  Please check your state's rule on this website and/or talk to an advocate at a domestic violence organization in your area about whether state law or federal law may be of more help to you and how to report violations of these laws.

* 18 USC § 922(g)(1),(9)
** 18 USC § 922(g)(8)

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Guns and Orders of Protection

back to topI have a temporary order of protection against the abuser. Can his/her gun be taken away?

Maybe.  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 under federal law s/he can carry a gun while you have a temporary order of protection, your state may have laws that would make it illegal for him/her to have a gun – go to the State Gun Laws pages in your state to read more.

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back to topI 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 in his/her possession during the period of time that you have a final order of protection.  The requirements are:

  1. the order is issued after a hearing;
  2. the abuser has to be given notice of the hearing and an opportunity to attend (whether or not s/he actually attends doesn’t matter); and
  3. the abuser must be either 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;* and
  4. the order of protection must contain 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 herself or his/her child; and
      • either state that the abuser represents a threat to the physical safety of the petitioner or his/her child; or
      • specifically prohibit the use, attempted use, or threatened use of physical force against the petitioner or his/her child.** 

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.  You can also read the exact wording of the law [18 USC § 922(g)(8)] on our Federal Statutes page.  The order of protection does not need to say that the abuser cannot have a gun for the federal law to apply.

Note: This federal law prohibiting someone from having a firearm while there is an order of protection against him/her may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties*** unless the judge specifically includes a firearm prohibition relating to the abuser’s work as a term in the order of protection.  If the abuser is a police officer, member of the military, or someone else who uses a gun for his/her job, talk to your local domestic violence program about your options.  See State and Local Programs to find a program in your area or National Organizations to find a national program.

* 18 USC § 921(a)(32)
** 18 USC § 922(g)(8)
*** 18 USC § 925

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back to topIs 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 takes away the guns, 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.

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back to topThe abuser did not show up for the order of protection hearing. Can his/her gun still be taken away?

Maybe. 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.*

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.**

* 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)
** See, for example, United States v. Spruill, 292 F. 3d 207 (5th Cir. 2002)

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Guns and Criminal Convictions

back to topIf the abuser has been convicted of a domestic violence misdemeanor or felony, can s/he legally keep or buy a gun?

No.  Under federal law, if the abuser has been convicted of any felony or a domestic violence misdemeanor, s/he can never legally have or buy a gun.*  Please talk to a lawyer who is knowledgeable about federal gun laws to find out if the abuser's gun can be taken away based on your specific situation.

* 18 USC §922(g)(1),(9)

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back to topHow can I find out if the abuser has been convicted of a domestic violence misdemeanor or felony?

Domestic violence misdemeanor and felony records are open to the public, but they are not always easy to access.  If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.  If you know the county where s/he may have been prosecuted, you may also be able to contact the county prosecutor to ask for specifics about his/her conviction.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS).  However, only law enforcement officials and licensed firearm sellers are allowed to search the NICS.  Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question, What will happen if the abuser tries to buy a gun when s/he isn't supposed to?

 

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The Abuser Isn't Supposed to Have a Gun...Now What?

back to topWho 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 Sheriff Departments page.

You can find ATF field offices in your area 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 State and Local Programs 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.*

* United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)

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back to topWill the abuser go to jail for having a gun when s/he isn't supposed to?

The abuser can get jail time for having a gun in violation of the law.  Under federal law, anyone who owns, has or buys a gun in violation of the federal firearm law can be punished by a fine, jail time for up to 10 years, or both.*  However, as with any criminal case, the actual sentence the abuser gets may depend on a lot of different factors.

Note: Generally, the abuser does not have to have knowledge of the law in order to be arrested (and convicted) for violating the law.  If the abuser has a gun or buys a gun in violation of the law, the abuser can be arrested and convicted, whether or not the abuser knows s/he was in violation of the law.  "Ignorance of the law" is no excuse or defense.**

* 18 USC § 924(a)(2)
** See, for example, United States v. Denis, 297 F.3d. 25 (1st Cir. 2002); United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999).

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back to topWhat will happen if the abuser tries to buy a gun when s/he isn't supposed to?

Before legally buying a gun, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NICS).  If the abuser has a qualifying order of protection* against him/her, or has been convicted of a felony or domestic violence misdemeanor, those records should be in the NICS, which should prevent the abuser from buying a gun.  However, 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.

To find out if your order of protection “qualifies” under federal law, go to I have a final order of protection against the abuser. Can his/her gun be taken away? You can also call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111, ext. 2.  You can also read the exact wording of the law 18 USC §922(g)(8) on our Federal Statutes page.

If the abuser is able to purchase a gun and you believe that s/he should not have been able to get one due to your order of protection or due to his/her criminal history, you can alert the police, and ask that his/her gun be taken away (although the police may not act on this request).  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.  The criminal background check system is not foolproof.

For more information or to discuss the specific facts of your case, you can contact a local domestic violence organization in your area.  Go to our State and Local Programs page to find an organization near you by choosing your state from the drop-down menu.

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More Information and Where to Get Help

back to topI do not have an order of protection against the abuser, and s/he has not been convicted of a domestic violence misdemeanor or felony. How can I stay safe?

If you think the abuser has a gun or can access a gun, it is important to try to make a plan for your safety.  Access to a gun is one indicator that a victim may be at increased risk of death or serious harm – see our Danger Assessment page for a list of other risk factors.  Our Staying Safe page has tips on how to plan for your safety.  You can also contact your local domestic violence organization for additional help.  You may want to talk to them about whether leaving the area - either long term or for a little while - might help improve your safety.  See our State and Local Programs page to find a local domestic violence organization near you and choose your state from the drop-down menu.

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back to topThe abuser uses a gun for his/her job. Does the law still apply?

If the abuser has been convicted of a felony or a domestic violence misdemeanor, then under federal law, the abuser can never buy or have a gun, even if s/he is a police officer or a military employee.

However, if the abuser is a law enforcement officer, military employee or government employee against whom you have a qualifying order of protection (and s/he was not convicted of one of the above-mentioned crimes) s/he may still be able to continue to use a gun for work purposes (but not for personal use) despite the order of protection.*  The abuser must sign out the firearm and ammunition from a supervisor to be able to use it at work and must return it at the end of the shift in order to comply with federal law.

If you are confused or not sure whether the abuser can still use a gun for work purposes, you can talk to a lawyer or domestic violence advocate in your area or call the National Center on Protection Orders and Full Faith & Credit at 1-800-903-0111, ext. 2.  To find a domestic violence advocate in your area, please go to our State and Local Programs page and choose your state from the drop-down menu.

* 18 USC § 925(a)(1)

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back to topI've read through all of this information, and I am still confused. What can I do?

Trying to understand federal law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

  • You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111, ext. 2.
  • You can write to our Email Hotline.
  • You can contact a local domestic violence organization in your area. (See our State and Local Programs page.  Choose your state from the drop-down menu.)

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