Possession of a Firearm or Ammo while subject to a Restraining Order: What Miami Residents Need to Know

Being served with a restraining order can be a stressful and confusing time. Even more confusing is understanding how the restraining order may impact your Second Amendment rights. Can you still legally own a gun? What happens if you already own guns? Will you get arrested just for having ammunition in your home?

This article breaks down the basics of how a restraining order may affect your rights when it comes to firearms and ammunition in Miami. We’ll cover the law, penalties, and defenses with the help of Miami gun rights lawyers. Let’s get started.

The Law in Miami

In Miami, it is illegal to possess a firearm or ammunition if you are currently subject to a final restraining order under s. 741.30, F.S. This law is codified in Florida statute 790.233.

Specifically, the law states that a person may not have in his or her “care, custody, possession, or control any firearm or ammunition” if they are currently subject to a restraining order issued under s. 741.30. This applies to both final/permanent restraining orders as well as temporary ex parte restraining orders.

The reason for this law is simple – the state has an interest in preventing domestic violence offenders from accessing weapons that could be used to threaten, intimidate or harm their victims. However, the law is very broad and doesn’t take into account the specifics of each case.

What About Guns I Already Own?

According to this analysis, “The firearm prohibition applies as soon as the order is issued and served upon the respondent.”

This means if you already owned guns before the restraining order was issued, you must immediately surrender them or transfer them to someone else who can legally possess them. You cannot keep the guns locked in a safe or stored with a friend – the law requires you to fully surrender possession.

Many people are reluctant to give up their firearms, but it’s important to comply with the law here. If prosecutors can prove you kept guns after being served with the order, you could face criminal charges.

Defenses and Challenges

While the firearms prohibition law may seem harsh to some gun owners, it’s important to remember why it exists – to protect victims of domestic abuse and prevent future harm.

However, there are certain defenses you can raise if you believe the order was improper or that prohibiting your gun possession is unconstitutional:

• Invalid order: If there were procedural defects in how the restraining order was issued, you may be able to challenge its validity and get it dismissed. This requires showing it was improperly issued or expired.
• Second Amendment violation: You could potentially argue the prohibition violates your Second Amendment right to bear arms. But the courts have generally upheld these laws as constitutional.
• Self-defense: In rare cases, a respondent can argue they need the firearm for self-defense from a specific threat. But you’ll need strong evidence of a credible threat to successfully make this claim.
• Transfer guns to third party: Rather than surrender guns, some gun owners transfer them to a third party not subject to the order. But this still requires fully giving up direct possession.

If you want to explore any of these options for challenging the order, it’s critical to have an experienced Miami firearms lawyer on your side who can properly advise you on the law and risks involved. Never take actions that could be seen as violating the order without guidance from counsel.

The process can be frustrating, but taking defiant actions will only make the situation much worse. Patience and proper legal advice is key.