One of the questions that is often asked of our attorneys is what happens to a person’s gun rights if a protective order is issued.
We turned to Deborah Alessi, an attorney in Missouri for an explanation.
Following is Alessi’s analysis on the types of orders available in Missouri and how they can affect your right to own or possess firearms.
Missouri law provides for two different types of restraining or protection orders in family law. One is a Restraining Order to prevent parties from acting badly while divorcing. The other, an Order of Protection, is to prevent domestic violence, which is available against a present or former family or household member.
Missouri Restraining and Protection Order statutes can be found in Missouri Revised Statutes Section 452.315: Authorized Motions – Restraining Order and Missouri Revised Statutes Chapter 455: Abuse-Adults and Children-Shelters and Protection Orders.
A restraining order is generally part of a divorce proceeding, but it is not automatic in Missouri, as it is in some states like California. The restraining order can be requested in an independent motion or as part of a temporary maintenance and child support request. A spouse would ask for this form of restraining order to ensure that property is disposed of appropriately and is accounted for.
If granted, both spouses are restrained from transferring, hiding, or using money or other property unless it is to cover the necessities of life, such as food, clothing, rent or mortgage, etc. The court would need an accounting of any extraordinary expenditures. In addition, when asked for and granted by the judge, this order can:
• Require one spouse to not harass, abuse, or disturb each other or any child;
• Remove one spouse from the family home, if it’s shown that physical or emotional harm would occur if not removed;
• Establish a child custody and child support order.
The restraining order in a divorce proceeding will terminate when the divorce is finalized, that is, the final judgment is entered, or when the parties voluntarily dismiss the divorce suit.
Another way to stop a spouse, former spouse, ex-boyfriend or girlfriend, or other abuser from harming you or your child is to get a protection order as authorized under §455.020.1. This type of order prevents the restrained party, your abuser, from physically abusing, molesting, stalking, or otherwise disturbing you. It stops the abuser from communicating with you in any way, including in-person communications, phone calls, text messages, or snail mail.
In addition, it can require the abuser to move out of a shared home. Your abuser can be ordered to continue to pay your rent or mortgage or car payment. Temporary possession of cars, keys, and personal effects can be determined. If you needed medical treatment for your injuries from the abuse, your abuser can be required to pay those bills. The abuser can be ordered to go to a batterers’ intervention or substance abuse program.
If you have children with your abuser, and no prior order regarding custody is pending or has been made, you can request temporary child custody, child support, and a visitation schedule. This will be subject to modification by future family court proceedings, but in a domestic violence emergency it’s great to have a temporary plan. If you are married to your abuser, you can be awarded spousal support (alimony).
To get a protection order, first, you must request one by filing a petition with the court. The judge will review the petition and determine whether the facts alleged justify signing a protection order ex parte, which is without the other party present. The court can deny or grant the ex parte order. You will then serve the other party and have a full hearing with both parties in attendance within 15 days of filing for the protection order. At that hearing, your abuser can provide evidence that the protection order isn’t necessary. The judge can grant the order of protection at that hearing to be enforceable for anywhere from 180 days to 1 year. Protection orders can also be renewed, if needed.
Under federal law, if the order meets certain requirements, it is illegal for the abuser to buy, own, or have a gun in his/her possession during the period of time that you have an order of protection.
Those requirements are:
– the abuser has to be given notice of the hearing and an opportunity to attend (whether or not s/he actually attends doesn’t matter), and
– the abuser must be either your current or former spouse, a person who you have a child in common with, or a person you live with or have lived with in the past, and
– the order of protection must contain specific legal language:
– it has to forbid the respondent from harassing, stalking, threatening, or behaving in any way that causes the petitioner to fear physical injury for him/herself or his/her child AND
– either state that the abuser represents a threat to the physical safety of the petitioner or his/her child OR
– specifically prohibit the use, attempted use, or threatened use of physical force against the petitioner or his/her child.
While it does not need to be written on your order of protection that the abuser cannot buy or have a gun in order for the federal law to be enforced by the local police, it may make it easier if it is written and some judges may include such language in the order if requested at the hearing. The judge may also include language that the abuser must surrender all guns in his possession and revoke any firearm’s license h/she may have.
However, if the judge gave you an ex parte temporary order of protection (meaning that no advance notice was given to the abuser yet), it could still be LEGAL for him/her to have a gun under federal law because those specific requirements described above were not met.
If the judge scheduled a court hearing and gave notice of the hearing to the abuser before giving you a full Order of Protection, it is generally ILLEGAL for him/her to have a gun under federal law so long as the Order of Protection also meets the requirements set out above.
The abuser does not have to come to the hearing in order for the law to apply to him/her, but s/he does have to be given notice of the hearing and an opportunity to attend.
Any protection order issued pursuant to sections 455.010 to 455.085 is effective throughout the entire state.
PROTECTION ORDERS AND FEDERAL FIREARMS PROHIBITIONS
Persons subject to a qualifying protection order under federal law are generally prohibited from possessing any firearm or ammunition in or affecting commerce (or shipping or transporting any firearm or ammunition in interstate or foreign commerce, or receiving any such firearm or ammunition). Violation of this prohibition while the order remains in effect is a federal offense punishable by up to ten years imprisonment. Title 18 U.S.C. §§ 922(g)(8), 924(a)(2).
A qualifying court order may be issued by a criminal court or a civil court, such as divorce court, family court, magistrate or general jurisdiction court.
If someone subject to a qualifying court order possesses firearms or ammunition, then they have committed a federal crime. If the order expires or is dismissed, the respondent can then possess firearms again. The prohibition lasts as long as the protection order remains in effect.
The specific language of the Federal law is as follows:
18 U.S.C. § 922. Unlawful acts (sections ‘g’ and ‘h’ only)
(g) It shall be unlawful for any person–
(8) who is subject to a court order that–
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
(h) It shall be unlawful for any individual, who to that individual’s knowledge and while being employed for any person described in any paragraph of subsection (g) of this section, in the course of such employment–
(1) to receive, possess, or transport any firearm or ammunition in or affecting interstate or foreign commerce; or
(2) to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Once again, the prohibition only last for so long as the order of protection is in effect.
Most people know that it is a federal crime to possess a firearm if you have been convicted of a felony. However, it is also illegal to possess a firearm if you are convicted of a crime of domestic violence, even if it is only a misdemeanor. Further, you will not be able to purchase a gun if a criminal background check shows a misdemeanor domestic violence conviction.
The 1968 Gun Control Act and subsequent amendments codified at 18 U.S.C. § 921 et seq. prohibit anyone convicted of a felony and anyone subject to a domestic violence protective order from possessing a firearm. In 1996, it was further amended to extend the firearms ban to anyone convicted of a “misdemeanor crime of domestic violence.”
18 U.S.C. § 922(g)(9).
As enacted the statute defines “misdemeanor crime of domestic violence” (MCDV) as any state or federal misdemeanor that –
“has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.”
This definition includes all misdemeanors that involve the use or attempted use of physical force (e.g., simple assault, assault and battery), if the offense is committed by one of the defined parties. This is true whether or not the statute specifically defines the offense as a domestic violence misdemeanor. For example, a person convicted of misdemeanor assault against his or her spouse would be prohibited from receiving or possessing firearms.
The prohibition applies to persons convicted of such misdemeanors at any time, even if the conviction occurred prior to the amended law’s effective date, September 30, 1996.
Defendants in domestic violence misdemeanors are sometimes offered or seek a Suspended Imposition of Sentence (SIS). In this arrangement, the defendant agrees to plead guilty, be placed on probation and a sentence is not imposed at the time of the plea. If the defendant successfully completes probation, his record will be closed. There are exceptions to who may have access to this information. Although the law is less than clear, the prevailing opinion among lawyers is that your gun rights are lost until you successfully complete probation.
I have included a copy of a typical Full Order of Protection for you to review here.