Do Domestic Abusers Keep Their Guns?

Tennessee has taken steps to require surrender of an abuser’s guns

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In 2009, Tennessee enacted a law that requires that domestic abusers “dispossess” their guns. But, as of 2018, there appears to be little enforcement of that law. Domestic abusers in the state are required to file a “Dispossession of Firearms” form with the court, but, again, evidence shows that domestic abusers are on their honor to report gun possession to authorities.

What is the law?

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

  • Spouses
  • Former spouses
  • Unmarried parents
  • Significant others who live, or have lived, together

If the abuser has been convicted of a misdemeanor “crime of domestic violence,” the abuser is subject to the federal firearm ban. 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.

Tennessee has enacted laws that strengthen the federal ban for domestic abusers. Those convicted of domestic abuse-related crimes, or those subject to a protection order, are now required to file an affidavit with the court. The affidavit states:

  • whether the abuser owns or possesses firearms
  • how the abuser dispossessed themselves of any guns they had

Further, law enforcement has the authority to remove guns from an alleged domestic abuser at the crime scene. However, if an abuser has multiple guns, law enforcement may only be able to confiscate the gun used, or threatened to be used, in that crime.

What if the abuser has not been convicted of a domestic abuse crime?

If there is not a criminal “no contact” order in place between the abuser and victim, seeking a civil protection order is often the first step in protecting a victim from domestic abuse. A protective order will prohibit any contact from the abuser for a period of time. Once in place, it will activate the protections provided in the federal gun ban.

For the gun ban to be in effect against an abuser, the abuser must have had actual notice of the hearing on the protection order. This means that the abuser was both:

  • served with notice of a hearing
  • given an opportunity to appear at that hearing

It’s irrelevant whether the abuser voluntarily decides not to appear at the hearing. This notice requirement is important, because protection orders are often issued without a hearing. In addition, the federal law requires the protective order contain both the following findings:

  • the abuser is restrained from harassing, stalking, threatening or engaging in conduct that would place the victim or child in reasonable fear of bodily injury
  • the abuser is a credible threat to the physical safety of the victim or victim’s child; or, by its terms, explicitly prohibits the use, attempted use or threatened use of physical force that would reasonably be expected to cause bodily injury

Once the protective order expires, the abuser can get their guns back. However, the gun ban for abusers will stay in effect until the conviction is expunged, set aside or pardoned.

What if an abuser is hiding their guns?

Unfortunately, enforcement responsibilities in Tennessee may fall on the abuse victims and their loved ones. Domestic abuse victims should verify the abuser filled out the dispossession affidavit completely and truthfully. If not, they should alert authorities immediately. Anecdotal evidence indicates that law enforcement may remove guns from an abuser if alerted to the unlawful gun possession through a domestic inquiry or traffic stop. If the victim or their loved ones can assist law enforcement in catching abusers in the act of possessing firearms, or assist in locating the abuser’s firearms, law enforcement may have no choice but to arrest the abuser and take their guns.

For victims, there are several potential traps in the law that could exempt the abuser from being subject to the firearm prohibition. They should talk to an experienced Tennessee family law attorney, who can assist in ensuring the abuser is prevented from keeping their guns.

Tennessee

Unfortunately, enforcement responsibilities in Tennessee may fall on the abuse victims and their loved ones.

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