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Know the Laws: Delaware

UPDATED December 2, 2012

State Gun Laws


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WomensLaw.org strongly recommends that you get help from an organization in your area if you are dealing with an issue involving firearms.  To find help in your state, please click on the Where to Find Help tab at the top of this page.

Basic Info

back to topI am a victim of domestic violence and my abuser has a gun. Do I have legal options for getting the gun away from my abuser?

Yes. If you have an Order of Protection from Abuse against your abuser, or if your abuser has been convicted of a felony or domestic violence misdemeanor, then Federal law states that it is illegal for your abuser to buy, own or have a gun in their possession.*  This ban does not apply if the conviction has been erased or set aside.**

Delaware state law says as part of a Protection From Abuse Order, the court may require your abuser to turn over any firearms to the local law enforcement and prohibit purchasing or receiving firearms.***

Note: There are certain requirements that your Order of Protection from Abuse must meet for it to qualify under Federal law. See the next question to read more about what those requirements are.

If you are not sure if your abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors?

To read the definition of a felony, see What is the definition of a felony?

* 18 USC Sec. 922(g)(8); 18 USC Sec. 922(g)(9)
** 18 U.S.C. § 921(a)(20)
*** 10 Del. Code § 1045(a)

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Guns and DVPOs

back to topI have an Order of Protection from Abuse against my abuser. Can s/he keep a gun or buy a new gun?

It depends. Delaware state law says your Order of Protection from Abuse must specifically state that your abuser cannot have a gun or buy a new gun.*1  There is a check box on the first page of your order that will state your abuser is not allowed to possess a firearm.*2 Generally, if you notify the court that your abuser has a gun they will order the guns removed.

In order for your Order of Protection from Abuse to qualify under Federal law, the defendant (person who the order is against) must:

  • Be served (given) notice of the court hearing. In other words, the defendant must have been given paperwork that told him or her about the hearing.
  • Have an opportunity to attend the court hearing. (Note: The abuser does not have to be at the hearing, but s/he has to have the opportunity to come to the hearing.)
  • Be an "intimate partner" of the victim, which includes:
    • A current or former spouse
    • A person with whom you share a child
    • A person you live with or have lived with in the past *3
    • In Delaware, this also includes the following family members: parents, in-laws, stepparents and grandparents, your child, grandchildren, and stepparents. Your children are included regardless of legitimacy or adoption.*4
Note: If your Order of Protection from Abuse has expired, it is no longer a valid order under Federal law, which means the firearm ban also does not apply. The expiration date should be written on the last page of your order, next to the signatures.

Note: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.*5 If your abuser is a police officer, member of the military, or someone else who uses a gun for their job, talk to your local domestic violence program about your options. See DE State and Local Programs to find a program in your area.

*1 10 Del. Code § 1045(a)
*2 10 Del. Code § 1045(a)
*3 18 USC 921 (a)(32)
*4 10 Del. §§ 1041 and 901(9)
*5 18 USC Sec. 925 (a)(1)

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back to topIf my abuser is not an "intimate partner" according to the Federal definition, can my abuser's gun still be taken away when I get an Order of Protection from Abuse?

Yes. If your abuser is not an "intimate partner" according to the Federal definition, you can still try to ask the Judge to include a provision in your order that forbids your abuser to have, own or buy a gun.*

* Benson v. Muscari 769 A.2d 1291 (Vt. 2001)

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back to topIs there anything I can do to make it more likely that my abuser's gun is taken away when I get an Order of Protection from Abuse?

While it does not need to be written on your Order of Protection from Abuse that your abuser cannot own, buy or have a gun in order for the Federal law to be enforced, it may make it easier if it is written.

Delaware state law says that the judge must order the firearms removed, which means that if your order of protection does not clearly indicate the firearms have been ordered removed, law enforcement officials may not remove the firearms.  However, there are a couple steps you can take to help make it clear the firearms should be removed:

  1. If your abuser has a gun, tell the judge how many guns he has, and if he has ever threatened you with a gun(s). You can give the court information about your abusers firearms by writing it on your “Petition for Order of Protection from Abuse” on the first page, under number 4: “Petitioner has reason to believe that Respondent is in possession of the following firearm(s).”
  2. Ask the Judge to check the box on the order that says the respondent cannot possess a firearm.
  3. Before leaving the courthouse, check to make sure that the gun restriction is checked on your order.
It may be helpful if the judge orders how the guns will be removed from your abuser.  If the judge orders your abuser to turn over any firearms, ask for the order to specify:
  • where they must be turned in and
  • a date by which it must be done, and
  • that the police notify you when the guns are returned.

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back to topMy abuser did not show up for the Order of Protection hearing. Can his gun still be taken away?

Maybe. Your abuser does not have to come to the hearing in order for the law to apply to him, but 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 about the Order of Protection, then the federal firearm law might not apply to your abuser.**

* United States v. Bunnell 106 F. Supp. 2d 60 (D. Me. 2000), aff'd 280 F. 3d 46 (1st Cir. 2002.)
** United States v. Spruill 292 F. 3d 207 (5th Cir. 2002.)

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back to topI have an Emergency ex parte Order against my abuser. Do I have to wait until I receive a permanent restraining order before my abuser's gun is taken away?

Maybe. You can ask the Judge to write in your temporary order that your abuser cannot have a gun while you are waiting for a full court hearing. If the judge sees your abuser's firearm as a serious enough threat, the judge might decide to write this in.

However, if there is no specific mention of a firearm restriction in the temporary order, then you may have to wait until you are given a permanent order.

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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 keep or buy a gun?

No. Under federal law, if the abuser has been convicted of a felony or a domestic violence misdemeanor, s/he cannot have or buy a gun.*  In addition, Delaware state law also makes it illegal for someone convicted in DE or elsewhere of a felony, a crime of violence involving physical injury to another, or any misdemeanor crime of domestic violence.**  If you're not sure if the abuser has been convicted of a domestic violence misdemeanor, see What crimes are considered domestic violence misdemeanors? for the federal definition.  For the DE state law definition, go to our DE Statutes page, and read section (a)(7) of 11 Del. Code § 1448. 

* 18 USC 922 (g)(9)
** 11 Del. Code § 1448(a)

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back to topWhat crimes are considered domestic violence misdemeanors?

To see the definition of a domestic violence misdemeanor under federal law, you can read about it on our federal law section.

If you're not sure if a certain crime counts as a domestic violence misdemeanor, you can contact the National Center on Full Faith and Credit at 1-800-903-0111, ext. 2

Delaware specifically defines a domestic violence misdemeanor as one of the crimes listed below that is committed by:

  • a family member (defined as: a spouse, a man and woman living together in a home in which there is a child of either or both; custodian and child; or any group of persons related by blood or marriage who are residing in one home under one head-of-househole or where one of the persons is related to the other by blood or marriage and both parties are residents of DE),
  • a former spouse of the victim;
  • a person who co-habitated with the victim at the time of the offense; or
  • by a person with a child in common with the victim.*
The crimes that may qualify are the following:
  • offensive touching,
  • menacing,
  • reckless endangering,
  • assault,
  • abuse of a sport official,
  • terroristic threatening,
  • unlawfully administering drugs,
  • vehicular assault (in the 2nd degree),
  • sexual harassment,
  • indecent exposure,
  • incest,
  • unlawful sexual contact,
  • unlawful imprisonment,
  • interference with custody, or
  • coercion.**
* 11 Del.C. § 1448(a)(7); 10 Del.C. § 901(12)
** 11 Del .Code § 1448(a)(7)

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back to topWhat is the definition of a felony?

A felony under Federal law is a crime that is punishable by a prison sentence of more than one year.*

*18 USC 227 (A) 3559

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back to topIf a law enforcement officer or other government employee is convicted of a domestic violence misdemeanor or felony, can s/he have or buy a gun?

No. Law enforcement officers and other government officials who have been convicted of a domestic violence misdemeanor or felony cannot have or buy guns for any purpose, including their official duties, according to federal law.*

*18 USC 925 (a) (1)

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back to topHow can I find out if my 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 your abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NCIS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NCIS. Your local police department may be willing to search NCIS for you if you ask, but they are not required to do so.

To read more about the NCIS, please see the question, What will happen if my abuser tries to purchase a gun?

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More Information and Where to Get Help

back to topIf my abuser's gun(s) is taken away, what will happen to it?

Delaware state law says that if a court orders a firearm removed as part of a Order of Protection, the firearm must be turned in to the sheriff, constable or to a police officer.*  The police will go to your abusers home and remove all the firearms, and issue a receipt.** Police can enter home and search if given permission by petitioner who also resides in home.***  When the Order expires, you abuser can pick up the firearms from the local police department.

* 10 Del. Code § 1045(a)
** DE Deputy Atty. Gen. Dave Favata on 8/7/06
*** Georgia v Randolph(126 S. Ct. 1515, US. Ga. 2006)

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back to topWho do I notify if I think my abuser should not have a gun?

If you think your abuser is violating the federal firearm law, you can call your local police or sheriff department, the State Police, or the Bureau of Alcohol, Tobacco and Firearms (ATF). Let them know that either you have an Order of Protection from Abuse against your abuser, or your abuser has been convicted of a felony or domestic violence misdemeanor.

You can find contact information for sheriff departments in your area on our DE Sheriff Department Locations page.

There is an ATF field office located in Wilmington. Their contact information is:

1007 North Orange Street, Suite 201
Wilmington, Delaware 19802
(302) 252-0110
Fax: (302) 252-0129
http://www.atf.gov/field/baltimore/fo-delaware.html
For reporting illegal firearm activity: 1-800-ATF-GUNS (1-800-283-4867)

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. To find help in your state, please click on the Where to Find Help tab at the top of this page.

Note: Generally, your abuser does not have to have to know s/he is violating the law by having a firearm to be arrested.*

*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 is the penalty for violating the federal and state firearm laws?

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.*

In Delaware, possession of a deadly weapon by a prohibited person can be a class D of class F felony, punishable by jail time, depending on various factors.**

* 18 USC 924 (a) (2)
** 11 Del. Code § 1448(c)

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back to topI do not have an order of protection from abuse against my abuser, and s/he has not been convicted of a domestic violence misdemeanor or felony, is there anything I can do?

Aside from it being illegal for people convicted of certain violent crimes or someone with an order of protection against him/her to have a gun, it is also illegal under Delaware state law for the following people to possess a deadly weapon (firearm, knife, or dangerous instrument):*

  • any person who has been committed to any hospital, mental institution or sanitarium for a mental disorder;
  • anyone convicted of the unlawful use, possession or sale of drugs;
  • anyone under age 25 who has been convicted as a juvenile of a crime that would be a felony if s/he were an adult;
  • anyone who is a juvenile and possesses a handgun, unless it is for the purposes of lawful hunting/sporting activity and s/he is under the supervision of an adult;
  • anyone who knows that s/he is the defendant or co-defendant in a felony criminal case and has failed to appear for a court proceeding; or
  • any person, if the deadly weapon is a semi-automatic or automatic firearm, or a handgun, who, at the same time, possesses a controlled substance (drug).*
If none of these situations apply, you can still make a plan for your safety. See our Staying Safe page for more information. 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. To find a shelter or an advocate at a local program, please visit the DE State and Local Programs page under the Where to Find Help tab at the top of this page.

* 11 Del. Code § 222(5)
** 11 Del. Code § 1448(a)(2)-(5),(8)-(9)

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back to topWhat will happen if my abuser tries to purchase a gun?

Before purchasing a gun, all buyers must undergo a criminal background check that is processed through the National Instant Criminal Background Check System (NCIS). If your abuser has a qualifying Order of Protection from Abuse against him, or has been convicted of a felony or domestic violence crime in any state, those records should be in the NCIS, which should prevent your abuser from 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.

If your abuser is able to purchase a gun, you can alert the police, and ask that his/her gun be taken away. Generally, it is not a good idea to assume that because your abuser was able to buy a gun, it is legal for him to have one. The criminal background check system is not foolproof.

Note: There may also be some loopholes in the law that your abuser can take advantage of. For more information, you can contact a local domestic violence organization in your area. To find help in your state, please click on the Where to Find Help tab at the top of this page.

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

Maybe. If your abuser is a law enforcement officer, military employee or government employee, then s/he might be able to continue to use their gun for work purposes, but not for personal use.

However, if your abuser has been convicted of a felony or a domestic violence misdemeanor, then under federal law, your abuser cannot buy or have a gun, even if s/he is a police officer or a military employee.*

If you are confused or not sure whether your abuser can still use their gun for work purposes, you can talk to a domestic violence advocate in your area or call the National Center on Full Faith and Credit to find out more information: 1-800-903-0111, ext. 2

To find an advocate at a local program, please visit the DE State and Local Programs page under the Where to Find Help tab at the top of this page.

*18 USC 925 (a)(1)

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

Trying to understand both Federal and State 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 also contact the National Center on Full Faith and Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111, ext. 2

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