English
EspañolIf the abuser's gun is taken away, what will happen to it?
If the abuser is convicted of a crime and his/her gun is taken away, it will be destroyed or sold by law enforcement officials. If the abuser is ordered to give up his/her gun(s) by a domestic violence restraining order (DVRO), s/he has two choices: s/he can give them to local law enforcement officials for storage and safekeeping or s/he can sell them to a licensed gun dealer.1
If the abuser gives his/her gun(s) to a local law enforcement agency, the gun(s) will be kept in the property warehouse until the protective order expires. The abuser will have 24 hours after receiving notice of the order to turn in or sell his/her gun(s). After 48 hours of receiving notice of the order, the abuser will have to fill out form DV-800 (“Proof of Firearm Turned In”) and file it in court to show that s/he has turned in or sold his gun(s). If s/he fails to file this form, s/he will be violating the protective order. The judge is supposed to hold a hearing to review the file to determine whether the abuser filed the form that shows proof of turning in the firearms.2
This procedure will be explained to the abuser on the copy of the DVRO that is given to him/her.
1 Cal.Penal Code § 12028
2 Cal. Fam. Code § 6389(c)(1), (c)(2), (c)(4)
If I think the abuser has a gun illegally, who do I report it to?
|
If… |
Then… |
|---|---|
|
|
|
|
Also, a local domestic violence organization may be able to answer your questions and help you talk to the right law enforcement officials. You can find contact information for organizations in your area on our California Advocates and Shelters page.
Note: Generally, a person does not need to know the law to be arrested for breaking it. Therefore, if the abuser has or buys a gun in violation of the law, s/he can be arrested, whether or not s/he knows that s/he broke the law.1
1United States v. Lippman, 369 F. 3d 1039 (8th Cir. 2004); United States v. Henson, 55 F. Supp. 2d 528 (S.D. W.V. 1999)
What will happen if the abuser tries to purchase a gun?
Buying a gun from a licensed gun seller
Someone who wants to buy a gun from a licensed gun seller, also known as a firearms dealer, must first pass a criminal background check. This background check is done through the National Instant Criminal Background Check System (NICS). A licensed gun seller will use the NICS to instantly check whether the person can legally buy, have, and transport guns or explosives.1
If the abuser was convicted of a felony or domestic violence misdemeanor in any state or territory, or if s/he has a qualifying protection order against him/her, those records should be in the NICS. This should prevent the abuser from legally buying a gun. However, not all states automatically put their records in NICS. This makes it more difficult to do a complete criminal background check. Sometimes criminals and abusers might slip through the system.
Buying a gun from a private seller or online
Someone who wants to buy a gun from a private seller or online seller doesn’t have to go through a background check. Private and online gun sellers don’t use the NICS.
Note: Just because someone was able to buy a gun, this doesn’t always mean it is legal for him/her to have one. If you believe that the abuser cannot legally have a gun but has one anyway, you can report it to the police. You can ask them to take the abuser’s gun away. Hopefully, the police will investigate the situation. You may also want to consider making a safety plan, which might include filing for a restraining order. An advocate at your local domestic violence organization may be able to help you design a personalized safety plan
What is the penalty for violating state firearm laws?
Under California state law, anyone who has, buys, or tries to buy a gun while under a protective order is guilty of a public offense and can be punished by a fine of up to $1,000, imprisonment for up to one year, or both.1 The abuser might also be violating federal firearm laws as well, which carries separate penalties. See Federal Gun Laws for more information.
1 Cal. Penal Code § 12021(g)(1)-(2)
