- DOMESTIC VIOLENCE FIREARM PROHIBITIONS
- CIVIL PROTECTIVE ORDER FIREARM REMOVAL
- Domestic Violence Civil Protective Orders That Require Firearm Removal
- Individuals Who May Petition for a Protective Order
- Criminal History Search
- Removal Process
- Exemption from Removal Requirement
- Immunity from Self-Incrimination
- Fees for Storage
- Return of Firearms to Respondent
- Penalties for Violation
DOMESTIC VIOLENCE FIREARM PROHIBITIONS
California Domestic Violence Firearm Purchase and Possession Prohibitions
California prohibits the following from purchasing or possessing firearms or ammunition:
- Persons convicted of a misdemeanor for, among other things, assault, battery, sexual battery, and stalking regardless of the relationship between parties.1
- Persons subject to a domestic violence protective order whether issued ex parte, after notice and hearing, or in a judgment.2
- Persons subject to a protective order relating to a crime of domestic violence.3
CIVIL PROTECTIVE ORDER FIREARM REMOVAL
Domestic Violence Civil Protective Orders That Require Firearm Removal
Any protective order that includes any of the following restraining orders, whether issued ex parte, after notice and hearing, or in a judgment, require the removal of firearms:4
- An order issued pursuant to Cal. Fam. Code § 6320 (Ex parte order enjoining contact, credibly or falsely impersonating, or destroying personal property; protection for companion animals);
- Cal. Fam. Code § 6321 (Ex parte order excluding party from dwelling);
- Cal. Fam. Code § 6322 (Ex parte order enjoining specified behavior that the court deems necessary to effectuate orders under Section 6320 or 6321.)5
Individuals Who May Petition for a Protective Order
The following persons may petition for a domestic violence protective orders:6
- A spouse or former spouse.
- A cohabitant or former cohabitant, as defined in Section 6209 (a person who regularly resides in the household or a person who formerly regularly resided in the household);
- A person with whom the respondent is having or has had a dating or engagement relationship.
- A person with whom the respondent has had a child, where the presumption applies that the male parent is the father of the child of the female parent under the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12).
- A child of a party or a child who is the subject of an action under the Uniform Parentage Act, where the presumption applies that the male parent is the father of the child to be protected.
- Any other person related by consanguinity or affinity within the second degree.
Criminal History Search
Prior to a hearing for a domestic violence protective order, the court shall ensure that a search is or has been conducted to determine if the respondent has a prior criminal conviction for a violent or serious felony; a misdemeanor conviction involving domestic violence, weapons, or other violence; has an outstanding warrant; is currently on parole or probation; has a registered firearm; or has any prior protective order or any violation of a prior protective order.7
Upon issuance of a protective order, listed above, the court shall order the respondent to relinquish any firearm in the respondent’s immediate possession or control or subject to the respondent’s immediate possession or control.8 The protective order shall also prohibit the respondent from possessing or controlling any firearm for the duration of the order9 and the order “shall state on its face that the respondent is prohibited from owning, possessing, purchasing, or receiving a firearm while the protective order is in effect and that the firearm shall be relinquished to the local law enforcement agency for that jurisdiction or sold to a licensed gun dealer, and that proof of surrender or sale shall be filed with the court within a specified period of receipt of the order.”10 A law enforcement officer serving a protective order that indicates that the respondent possesses weapons or ammunition shall request that the firearm be immediately surrendered to the law enforcement officer.11 If the law enforcement officer makes no such request, the surrender shall occur within 24 hours of being served with the order.12 The respondent may surrender the firearm to local law enforcement officials, a licensed gun dealer, or sell it to a licensed gun dealer.13 The law enforcement official or licensed gun dealer taking possession of any firearms or ammunition shall issue a receipt to the person surrendering the firearm at the time of surrender.14 The respondent shall file the original receipt with the court that issued the protective order and a copy of the receipt with the law enforcement agency that served the protective order within 48 hours of service of the order.15
When presented with evidence that the subject of a protective order has a firearm in violation of such order, the court may set a review hearing.16 However, the court may make a determination that the subject of the protective order has a firearm in violation of such order “at any noticed hearing when a domestic violence protective order is issued, at a subsequent review hearing, or at any subsequent family or juvenile law hearing while the order remains in effect.”17 The court may consider a determination that the subject of a protective order has a firearm in violation of such order in issuing:
- An order to show cause for contempt; or
- An order for money sanctions.18
If the respondent fails to relinquish the firearm within 24 hours of being served with the order, California law authorizes the issuance of a search warrant, so law enforcement may search for and seize such firearms.19
Exemption from Removal Requirement
The court may grant a respondent an exemption from the surrender requirement for a particular firearm “If the respondent can show that a particular firearm is necessary as a condition of continued employment and that the current employer is unable to reassign the respondent to another position where a firearm is unnecessary.”20 If an exemption is granted, the respondent may only have physical possession of the firearm during scheduled work hours and during travel to and from his or her place of employment.21
If the respondent is a peace officer “who as a condition of employment and whose personal safety depends on the ability to carry a firearm, a court may allow the peace officer to continue to carry a firearm, either on duty or off duty, if the court finds by a preponderance of the evidence that the officer does not pose a threat of harm.”22
“If the respondent notifies the court that he or she owns a firearm that is not in his or her immediate possession, the court may limit the order to exclude that firearm if the judge is satisfied the respondent is unable to gain access to that firearm while the protective order is in effect.”23
Immunity from Self-Incrimination
If a respondent refuses to relinquish a firearm pursuant to a protective order based on the assertion of the right against self-incrimination, as provided by the Fifth Amendment to the United States Constitution and Section 15 of Article I of the California Constitution, the court may grant use immunity for the act of relinquishing the firearm.24
Fees for Storage
A local law enforcement agency may charge a respondent a fee for storing firearms surrendered pursuant to a protective order, though the fee may not exceed the actual cost incurred by the law enforcement agency for storing the firearm(s).25
A licensed firearm dealer may charge a respondent a “reasonable fee” for storing firearms or ammunition surrendered pursuant to a protective order.26
Return of Firearms to Respondent
Within five days of the expiration of an order, the local law enforcement agency shall return possession of any surrendered firearm to the respondent unless the local law enforcement agency determines that:
- The firearm has been stolen,
- The respondent is prohibited from possessing a firearm, or
- Another successive domestic violence protective order is issued against the respondent.27
Any person who claims title to any firearm that is in the custody or control of a court or law enforcement agency and who wishes to have the firearm returned shall make application for a determination by the Department of Justice as to whether the applicant is eligible to possess a firearm.28
California law provides no law enforcement agency or court that has taken custody of any firearm may return the firearm to any individual unless the following requirements are satisfied:
- The individual presents to the agency or court notification of a determination the by the Department of Justice that the person is eligible to possess firearms.
- The agency or court has verified that the firearm is not listed as stolen, and that the firearm has been recorded in the Automated Firearms System in the name of the individual who seeks its return.
- If the firearm has been reported lost or stolen, the law enforcement agency shall notify the owner or person entitled to possession. However, that person shall provide proof of eligibility to possess a firearm.29
Penalties for Violation
Any person who owns, possesses, purchases, receives, or attempts to purchase or receive a firearm in violation of a protective order “is guilty of a public offense, which shall be punishable by imprisonment in a county jail not exceeding one year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine.”30
A willful and knowing violation of a protective order shall constitute contempt of court (a misdemeanor crime) punishable by imprisonment in a county jail for not more than one year, by a fine of not more than $1,000, or by both.31
- If you do not qualify for an order above, you may qualify for a civil harassment restraining order, workplace violence restraining order, or elder or dependent adult abuse restraining order.