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Domestic Violence Offenders Abusers are Federally Banned from Owning Guns

But Texas does little to enforce those laws

Seeking a domestic violence restraining order, which will prohibit any contact from an abuser, is often the first step in protecting victims of domestic abuse. But victims should always be aware of other ways in which a protective order can limit danger from an abuser. Preventing abusers from gun ownership is one such way to protect victims.

The law

Federal law prohibits many domestic abusers from possessing firearms, handguns and ammunition. The law applies to victims who were in a relationship with the abuser, including:

  • Spouses
  • Former spouses or dating partners
  • Unmarried parents
  • Significant others or intimate partners who live, or have lived, together in cohabitation

The hearing on the protective court order

In order for the firearm prohibition to be enforced against an abuser, the abuser must have had actual notice of the protection hearing. This means that the abuser must be served with notice of the hearing and given an opportunity to appear at the hearing. It does not matter if the abuser chooses not to appear at the hearing.

It is very important to understand this requirement, as protection orders are often issued without a hearing. If a victim of domestic abuse wants the gun ban in place, the victim must:

  • ensure that the protective order provided an opportunity for a hearing
  • ensure the protective order provided notice to the respondent of that hearing

The protective order

The federal firearms law requires the language of the order to restrain the abuser from harassing, stalking, threatening, or engaging in conduct that would place the victim or child in reasonable fear of bodily injury. Further, the order must include language, or a finding, that the abuser is a credible threat to the physical safety of the victim or victim’s child; or, by its terms, explicitly prohibit the use, attempted use, or threatened use of physical force that would reasonably be expected to cause bodily injury.

What if there is no protective order in place?

If the abuser has been convicted of a domestic violence misdemeanor, the abuser is subject to the firearm prohibition. The crime must include an element that the abuser used or attempted to use physical force. The crime need not be labeled “domestic abuse,” but may include any crime of physical force, including assault and battery.

How long will the abuser be prohibited from owning a gun?

Victims must be aware of the expiration date of their protective order. Once the protective order expires, the abuser can get their guns back. However, the firearm prohibition against abusers convicted of a misdemeanor crime of domestic violence will stay in effect until the conviction is expunged, set aside or pardoned.

Texas law enforcement will not remove guns from an abuser

Although there are court programs in the El Paso and Dallas areas that seek to enforce the federal gun ban and firearms restrictions against domestic abusers, there is no clear state policy that requires domestic abusers to turn in their guns. Domestic abusers in Texas are on an honor system; they must voluntarily give their weapons to a third party. There is little to no evidence that Texas law enforcement will pursue the surrender of a domestic abuser’s weapons.

If abuse victims and their family members can assist law enforcement in catching abusers in the act of possessing firearms, or assist in locating the abuser’s firearms, Police officers may have no choice but to remove the abuser’s weapons and arrest the abuser for violation of the federal law.

For victims who believe it is important their abuser be kept from possessing guns, there are several potential traps in the law that could exempt the abuser from being subject to the firearm prohibition. Victims of domestic violence should talk to an experienced Texas family law attorney, who can assist in ensuring the abuser is prevented from keeping their guns.

For more information on this area, see our overview of family law.

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