Ordering respondents to surrender firearms is not always easy for courts—it can mean more work for staff, extra hearings to ensure compliance, and negotiations with local law enforcement about storing the weapons and ammunition. But the power to order surrender of firearms as part of issuing a protection order is a vital means of reducing lethality in family violence cases.
Consider this: protection order laws are primarily designed to deal with situations involving threats of violence, property damage, or physical injury—states’ protection order statutes provide injunctive relief so that a person does not have to wait until the abuser actually carries out the threat before seeking a remedy. That is the design. The reality, however, is different. Unfortunately, many petitioners have already experienced physical abuse or property damage by the time they come to court seeking an order for protection. That means the individual has already shown a willingness to disobey the law by damaging property, pushing or shoving someone, or worse.
The Laws
Indiana’s law, which is based on the Model Code on Domestic and Family Violence, recognizes the potential for lethal outcomes inherent in many protection order cases and empowers judges to order the surrender of a person’s firearms, ammunition, and deadly weapons for the duration of the order. The statute also permits judges to prohibit an individual from possessing these items while the order remains in effect. Indiana statute requires the court to hold a hearing before ordering surrender or prohibition.
The federal law concerning firearms and protection orders differs from our state statute. Individuals are prohibited from selling, supplying, transferring, or possessing a firearm or ammunition while the protection order is in place, provided a hearing has occurred and the person received notice. The federal prohibition does not include other deadly weapons—while Indiana’s statute does—and the federal law does not address the surrender of the weapons.
Resources/Indiana Laws:
Please review Indiana Code 34-26-5 for statutes impacting protection orders and firearms; and see 18 U.S. Code §922 for federal law on this subject. A good resource on the federal firearms laws and their application to the states is: Mitchell and Carbon, Firearms and Domestic Violence: A Primer for Judges, available at:
http://aja.ncsc.dni.us/courtrv/cr39-2/CR39-2MitchellCarbon.pdf
One Jurisdiction’s Experience
Of course, even if Indiana’s statute did not expressly address surrender of firearms, federal law would still prevent a person from lawfully possessing a firearm or ammunition in cases involving intimate partners. State court judges around the country have worked with their local law enforcement agencies to devise systems for firearm surrender and safekeeping.
One such jurisdiction is Miami-Dade County, Florida, in the 11th Judicial Circuit of Florida. The Circuit houses several specialized domestic violence courts handling thousands of criminal misdemeanor and civil protection order cases each year. The judges in those courts routinely issue civil protective orders in cases involving domestic violence, dating violence, stalking, and sexual violence, and they regularly order the surrender of firearms. How does their system work?
First, they include “no gun provisions” in all protection orders and order the surrender of guns in not only civil protection order cases, but also as a condition of bail, pretrial release, or probation in criminal domestic violence cases. Second, they provide copies of all orders to their local law enforcement agencies. Third, the court designed a method to track respondents’ and defendants’ compliance with the orders. And, fourth, the court also developed a very controlled procedure for the return of firearms. The orders typically require a prohibited person to surrender his or her firearms to the police department nearest to his or her home within 24 hours of being served with the order; to obtain a receipt for the weapons; and, to file a copy of the receipt at the Clerk’s office within 24 hours of being served.
If the respondent/defendant is present at a hearing and denies possessing any firearms or ammunition within the six months prior to the hearing, the Court requires him or her to sign a sworn affidavit to that effect—this is done on the record, so that the judge can advise the prohibited person of the penalties for perjury.
If the system detects noncompliance with the surrender protocol, the Court issues an order to show cause. The Miami courts do allow a prohibited person to transfer firearms to a third party—provided that the third party meets certain legal requirements—or to sell the weapons instead of surrendering them to law enforcement. Once a protection order has expired or upon its dismissal, the respondent can file a motion for return of the firearms.
The petitioner is given notice and an opportunity to be heard. The respondent must complete a notarized affidavit affirming that he or she is the legal owner of the weapon and meets all federal and state qualifications for lawfully possessing a firearm. The respondent must also present proof of lawful ownership of the weapon, as well as the surrender receipt from the law enforcement agency or a copy of the order allowing transfer to a third party. Some courts always hold a hearing on the motion for return of firearms, while others do not. However, all of the Miami domestic violence courts conduct a background check on the national databases before ordering the return of firearms.
