West Virginia Law
DOMESTIC VIOLENCE FIREARM PROHIBITIONS
West Virginia Domestic Violence Firearm Purchase and Possession Prohibitions
West Virginia prohibits persons convicted of a misdemeanor offense of assault or battery in which the victim was “a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense” or a comparable federal or state misdemeanor crime of domestic violence from possessing a firearm.1
West Virginia prohibits the subject of a domestic violence protective order from possessing firearms if the order:
- Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
- Restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and (i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or(ii) By its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.2
- West Virginia prohibits the respondent of an emergency domestic violence protective order from possessing firearms.3
- West Virginia does not explicitly prohibit the subject of a temporary emergency protective order issued pursuant to an action for divorce, annulment, separate maintenance, or custody from possessing firearms.4
WEST VIRGINIA DOMESTIC VIOLENCE PROTECTIVE ORDER FIREARM REMOVAL
Civil Domestic Violence Protective Orders That Require Firearm Removal
If the petition for a domestic violence protective order provides information regarding firearms in the possession of the respondent, the “magistrate court, to protect the physical safety of the petitioner and other protected individuals, shall provide in the [emergency] protective order that the respondent shall surrender any and all firearms and ammunition[.]”5
If the petition for a domestic violence protective order or evidence obtained at the hearing provides information regarding firearms in the possession of the respondent, the “family court during the final hearing shall require the respondent to provide proof that he or she has surrendered or transferred any and all firearms and ammunition possessed by the respondent.”6 If the respondent cannot provide such proof, “the court, to protect the physical safety of the petitioner and other protected individuals, shall order the respondent to surrender any and all firearms and ammunition[.]”7
Individuals Who May Petition for a Protective Order
The following persons may petition for a domestic violence8 protective order:
- Spouses or former spouses;
- Persons living together as spouses;
- Current or former intimate partners;
- Current or former dating partners;
- Persons who reside or resided with the respondent;
- Persons who have a child in common regardless of whether they have ever been married or lived together;
- Persons who are a parent, stepparent, brother or sister, half-brother or half-sister, stepbrother or stepsister, father-in-law or mother-in-law, stepfather-in-law or stepmother-in-law, child or stepchild, daughter-in-law or son-in-law, stepdaughter-in-law or stepson-in-law, grandparent, step grandparent, aunt, aunt-in-law or step aunt, uncle, uncle-in-law or step uncle, niece or nephew, or first or second cousins;
- Persons who are a parent, stepparent, brother or sister, half-brother or half-sister, stepbrother or stepsister, father-in-law or mother-in-law, stepfather-in-law or stepmother-in-law, child or stepchild, daughter-in-law or son-in-law, stepdaughter-in-law or stepson-in-law, grandparent, step grandparent, aunt, aunt-in-law or step aunt, uncle, uncle-in-law or step uncle, niece or nephew, or first or second cousins to one of the persons in subsection (a) through (f);
- Persons who are an adult family or household member (person listed in subsections (a) through (g)) for the protection of the victim or for any family or household member who is a minor child or physically or mentally incapacitated;9
Removal Process
If the petition for a domestic violence protective order provides information regarding firearms in the possession of the respondent, the magistrate court “shall provide in the [emergency] protective order that the respondent shall surrender any and all firearms and ammunition to the law enforcement officer serving the protective order or shall allow the respondent to transfer any and all firearms and ammunition to a qualified third party[.]”10 However, prior to the respondent’s transfer of firearms and ammunition to a qualified third party, the law enforcement officer serving the order must determine if the third party is “qualified to possess firearms and is not otherwise prohibited by law from possessing firearms[.]”11
If the petition for a domestic violence protective order or evidence obtained at the hearing provides information regarding firearms in the possession of the respondent, the “family court during the final hearing shall require the respondent to provide proof that he or she has surrendered or transferred any and all firearms and ammunition possessed by the respondent.”12 If the respondent cannot provide such proof, the court “shall order the respondent to surrender any and all firearms and ammunition to a law enforcement agency or shall allow the respondent to transfer any and all firearms to a qualified third party[.]”13 However, prior to the respondent’s transfer of firearms and ammunition to a qualified third party, the law enforcement officer serving the order must determine if the third party is “qualified to possess firearms and is not otherwise prohibited by law from possessing firearms[.]”14
The court shall order the respondent to appear before the court to show proof of compliance with the court’s order to surrender or transfer firearms.15
The respondent shall provide written proof of firearms surrendered to the court.16 Written proof shall be provided on the form approved by the West Virginia Supreme Court of Appeals and shall include a description of the firearms surrendered and the name and address of the individual who has possession of the respondent’s firearms.17 Upon receiving such notice, the court shall notify the individual who has possession of the respondent’s firearms of their legal duties under federal and state laws.18
Return of Firearms
“Upon the termination, dismissal or expiration of a protective order, the respondent shall petition the court, on a form approved by the West Virginia Supreme Court of Appeals, for the return of any and all firearms and ammunition surrendered or transferred pursuant to the order of the court.”19
The court shall be provided a criminal background check of the respondent, “completed by a law enforcement agency, to determine whether the respondent is qualified to possess firearms and is not otherwise prohibited from possessing firearms and ammunition.”20 The court, by separate order, shall provide for the return of such firearms and ammunition.21
Penalties for Violation
A person who violates a domestic violence protective order may be incarcerated for no more than one year and may be fined no more than $2,000.22
