Possession of a Firearm or Ammo while subject to a Restraining Order
Getting a restraining order can be a scary and difficult process. But it’s an important legal tool to help protect yourself or your children from an abusive person.
What many folks don’t realize is that restraining orders can also impact your Second Amendment rights. There are laws that restrict firearm and ammo possession for the restrained person.
This article will break down how restraining orders affect your ability to own guns and ammo in California. We’ll also chat about potential legal defenses and penalties if you violate the firearm prohibition.
How Restraining Orders Limit Gun Rights
In California, the two main types of orders are domestic violence restraining orders (DVROs) and civil harassment restraining orders.
If a judge grants a final DVRO or civil harassment order against you, you cannot own, possess, purchase or receive firearms or ammo while it’s in effect.The prohibition also applies if you have a temporary restraining order (TRO) against you. TROs go into effect immediately and last until the final hearing.This firearm restriction automatically happens under California law. The judge doesn’t need to specifically order it.Once the restraining order ends, the firearm prohibition remains in place for life if it was a DVRO. For civil harassment orders, it ends when the order expires.There are no exceptions to this prohibition, even if you need guns for work. The only option is to try to get the order dismissed or modified.
How Do Restrained People Surrender Firearms?
If you currently own guns or ammo, you’ll have to surrender them once you’re served with the restraining order.
In California, you must take firearms to the police department or sheriff’s office where you live within 24 hours. You may also give guns to a licensed gun dealer.When surrendering firearms, the law requires you to provide proof like a receipt. Make sure to keep this for your records.If convicted of illegally possessing weapons under a restraining order, having proof of surrendering can help show you made efforts to comply with the law.
What About Concealed Carry Permits?
Another impact of restraining orders is that they invalidate concealed carry weapon (CCW) permits.
California sheriffs must suspend CCW licenses if the holder becomes subject to a restraining order.
This suspension remains in effect for the duration of the order. If it was a domestic violence restraining order, the suspension is permanent.
Penalties for Possessing Firearms or Ammo
Knowingly violating the firearm prohibition under a restraining order is a crime.
If convicted of possessing a gun or ammo under California Penal Code 29825 PC, potential penalties include:
- Up to 3 years in county jail
- Up to a $10,000 fine
- Mandatory loss of firearm rights
Enhanced penalties apply if you have a prior conviction under this law. They can include up to 1 year in county jail and a $1,000 fine.
Legal Defenses to Firearm Possession Charges
There are several legal defenses that a California criminal defense lawyer may use to contest charges of illegally possessing firearms or ammo under a restraining order. Some common defenses include:
You Didn’t Know About the Restraining Order
Mistake of fact can sometimes be a defense. For example, maybe you were out of town and didn’t know a restraining order was issued against you.Lack of notice could show you didn’t knowingly violate the prohibition. But it’s tough to prove you had no reasonable way of finding out about the order.
Involuntary Possession
If you ended up with a firearm but had no intent to possess it, this may help show innocence. For example, say the police searched your workplace locker and found a gun left by someone else.
Since you didn’t know about it or intentionally take control of it, you may not be criminally liable.
You Surrendered The Firearms
The prosecution must prove you possessed prohibited guns or ammo. If you have receipts or other proof showing you turned in firearms to law enforcement, it can defeat the charges.
Misidentification
Mistaken identity is another potential defense. If the res
training order was actually against someone else with the same name, that could show your innocence.
Restoring Gun Ownership Rights
If convicted of possessing firearms illegally under a restraining order, you will lose your gun rights.
For domestic violence restraining orders, this loss is permanent under both federal and California law. The only option is trying to get a pardon from the governor.
If it was a civil harassment restraining order conviction, you can petition the court to restore your firearm rights once the order expires. You would need to show good cause. An attorney can help argue your case.
The Impact on Future Gun Purchases
Even after a restraining order ends, it can still affect your ability to buy guns in the future.
Federal law prohibits firearm sales to someone convicted of possessing a gun while subject to a domestic violence protective order. This restriction is permanent.
California also prohibits gun purchases by people convicted under the state’s restraining order firearm possession law.Trying to purchase a firearm in violation of these laws is a separate crime.
Restraining Orders Also Limit Ammo Sales
In addition to firearms, California’s laws also prohibit buying or possessing ammunition while subject to a restraining order.
This means you cannot purchase ammo from any source, including gun stores, sporting goods shops, and online retailers.
The same criminal penalties and defenses apply to illegally possessing ammunition under a restraining order.
Seek Legal Help to Restore Your Rights
Having your gun rights restricted can be very stressful and disruptive if firearms are important for your livelihood, recreation, or self-defense.
If you’ve become subject to a restraining order, don’t assume you must live with these restrictions forever. An experienced California firearms attorney can help you explore options like:
- Fighting to get the restraining order dropped or modified
- Restoring your gun rights if convicted of illegal possession
- Securing a gubernatorial pardon if necessary
Don’t hesitate to discuss your case with a lawyer knowledgeable about restraining orders and California’s firearm laws. Protecting your Second Amendment rights is extremely important.