Domestic Violence Offenders Abusers are Federally Banned from Owning Guns
But Texas federal judges recently ruled that it’s unconstitutionalBy Doug Mentes, Esq. | Reviewed by Canaan Suitt, J.D. | Last updated on March 28, 2023
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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.
Federal Gun Laws
Federal firearms 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:
- Former spouses
- Unmarried parents or dating partners
- Significant others or intimate partners who live, or have lived, together in cohabitation
The Hearing on the Protective 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 Court Order
Federal 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 the following:
- Language, or a finding, that the abuser is a credible threat to the physical safety of the victim or victim’s child
- 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 a “domestic abuse,” but may include any violent crime of physical force, including assault and battery.
How Long Will the Abuser Be Prohibited From Owning a Gun?
Victims and family members 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.
Federal Law Ruled Unconstitutional Federal Judges in Texas
In February 2023, a panel of federal judges on the Fifth Circuit Court of Appeals, which includes Texas, Mississippi, and Louisiana, ruled that it violates the Second Amendment to prohibit individuals under a protective order from possessing a firearm.
Before this ruling, there was already no clear policy in Texas requiring domestic abusers to turn in their guns to law enforcement. Domestic abusers were on an honor system, meaning they must voluntarily give their weapons to a third party.
With the Fifth Circuit’s recent ruling, it’s no longer a matter of lack of enforcement of federal law. Rather, the federal law prohibiting domestic abusers under protective orders from possessing firearms can’t be enforced. The Department of Justice has appealed the Fifth Circuit’s decision to the U.S. Supreme Court, which could overrule it. Unless that happens, the federal law on domestic abusers and firearms can’t be enforced in Texas.
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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