A gun violence restraining order law would allow courts to prohibit individuals who are determined to be a threat to themselves or others from owning firearms. Restrained persons would be prevented from obtaining guns and be required to surrender any weapons posses or have access to. The Coalition to End Gun Violence and similar organizations advocate for the issuance of a national gun violence restraining order law in order to prevent mentally unstable people from using firearms to harm others, while critics argue that because such a large percentage of the population has some form of psychiatric diagnosis, enactment would effectively eliminate second amendment rights.
Gun Violence Restraining Orders by State
California: California is one of six states that have laws that allow for gun violence restraining orders. It is also referred to as a firearms restraining order. The Penal Code sections dealing with firearms restraining orders are 18100 to 18205. In California, a family member, a member of the household, or a law enforcement officer can request a firearms restraining order. California defines close family or household members as the relationship between:
- Spouses or a domestic partner;
- An individual’s parents, siblings, children, grandparents, grandchildren and their spouses, which includes stepparents or step-grandparents.
- The parents, siblings, grandparents, and grandchildren of an individual’s spouse; and
- Any individual who regularly resides in the same household, either at the present time, or has resided in the home within the last 6 months.
If an individual is worried about the safety of themselves or others and they do not meet the standard definitions of a close family or household member, they can still go to local law enforcement and tell them about the situation. The law enforcement officer may decide to request a firearm restraining order with the given information.
A firearms restraining order, once issued, will order the restrained person to not possess any guns or ammunition, not to purchase any guns or ammunition, and will require the respondent, the restrained person, to turn in any guns and ammunition they possess to local law enforcement or the respondent has the option to store the guns and ammunition at a licensed gun dealer.
A firearms restraining order will not order the respondent to stay away from the person seeking the restraining order (petitioner) or the petitioner’s family. Individuals seeking a stay-away and no-contact restraining order will have to file either a domestic violence or a civil harassment restraining order. The same is true if the petitioner wants the respondent to move out of the home.
California courts can require respondents to turn over their firearms as part of a domestic violence and civil harassment restraining order. In California, individuals can also seek an elder or dependent adult abuse restraining order or a workplace violence restraining order if it is appropriate for the given situation.
If the court issues the temporary firearm restraining order, it will be valid until the scheduled court hearing date. This will typically be about 21 days after the initial temporary order is issued. If the judge grants the request for a firearm restraining order at the hearing, the order will be valid for a period of a year. Individuals can ask to renew the order for additional one-year periods.
Indiana: Indiana is also one of six states that have either gun violence restraining order laws or extreme risk protection order laws. In Indiana, it is called the, “Firearms Seizure and Retention Law.” This law allows a judge to issue an order for law enforcement officers to seize and retain firearms from individuals that the court has probable cause to deem as being dangerous individuals. Indiana law defines a “dangerous individual” as someone who poses an imminent risk of physical harm to either themselves or to others, or they could pose a risk of physical harm to themselves or others in the future and either the individual has a mental illness and is not consistently taking their medication, or there is a reasonable belief that the individual has a tendency to behave violently or in an emotionally unstable manner.
In Indiana, only law enforcement officers can request a judge to issue an order to seize a dangerous individual’s firearms. Law enforcement officers may also seize firearms without a warrant, but must submit a sworn statement after the fact explaining why the firearms were seized. The owner of the firearms is entitled to a hearing within two weeks of the firearms being seized.
In Indiana, individuals who have been convicted of a domestic battery may not possess or carry a firearm. Indiana also enacted a law in 2014 that states that the expunction of a domestic violence crime does not restore an individual’s right to possess a firearm. Individuals may however petition to have their rights to possess a firearm restored after 5 years have passed since the conviction.
Courts in Indiana can prohibit individuals who are subject to protective orders from possessing firearms. Law enforcement officers in Indiana are also authorized, but not required, to seize firearms from the scene of a domestic violence incident.
Oregon: There is an extreme risk protection order law in Oregon, SB 719. This law allows law enforcement officers or a family/household member to file a petition with the court requesting an extreme risk protection order. The judge will make a determination based on the petition whether or not the individual poses an imminent risk of physical harm to themselves or to others. If the individual is deemed to pose a risk to themselves or to others, the court will order the individual to surrender all of their firearms. Law enforcement officers have the right to search the person’s home to make sure all firearms have been surrendered or seized. The owner of the firearms has 30 days to request a hearing so that they may keep their firearms. If at the hearing, the individual’s request is denied, they will be prohibited from possessing and purchasing firearms and ammunition for a period of one year. The orders can be extended or renewed.
If the individual meets certain criteria, and they have been convicted of a qualifying domestic violence misdemeanor, they will be prohibited from possessing firearms or ammunition in Oregon. Oregon law also prohibits individuals who are subject to domestic violence protective orders from possessing firearms.
Rhode Island: There is a gun violence restraining order law in Rhode Island. The law does not create new authority for law enforcement officers to confiscate firearms, but instead directs them to use all of the available legal steps to remove firearms from individuals who have shown warning signs, such as having made threats of violence, be it in person or online. The new executive order will allow law enforcement officers to seize firearms from individuals who are deemed to pose an imminent risk of physical harm to themselves or to others.
New domestic violence firearm laws enacted in 2017 have changed a significant amount of laws in Rhode Island. Now, individuals who have been convicted of a domestic violence offense are generally prohibited from possessing, controlling, owning, carrying, transporting, and purchasing firearms. This applies to individuals convicted of both felonies and misdemeanors.
The 2017 law enacted in Rhode Island also now prohibits individuals who are subject to domestic violence protective orders from possessing or purchasing firearms, so long as the individual received notice of the order and was afforded a hearing. However, Rhode Island law does not explicitly authorize or require law enforcement officers who respond to the scene of a domestic violence incident to remove firearms.
Vermont: The Vermont legislature recently passed an extreme risk protective order law. If the state’s attorney or the Attorney General’s Office can show that an individual is at extreme risk of harming themselves or others, the new bill will allow a family court judge to order that individual to surrender any firearms and explosives they may have. While the order by the judge is usually issued after a hearing, in emergency situations, a judge could issue a temporary order without a hearing. Violation of the court order could result in prison time of a period of up to one year and a $1,000 penalty.
There is no Vermont law that prohibits individuals who are subject to a domestic violence protective order from possessing firearms or ammunition. However, there is a law that allows courts issuing protective orders to make such orders as the court deems necessary for the safety and protection of family and household members. This can include ordering the individual who is subject to the protective order not to possess firearms.
Washington: There is an extreme risk protection order law in Washington (Chapter 7.94 RCW). The extreme risk protection order, if issued, would order an individual to surrender all of their firearms. It would also prohibit the individual from controlling and purchasing firearms, prohibit the attaining of a concealed pistol license, and would require the surrender of the concealed pistol license if they already possess one.
The order can be requested by a law enforcement agency, a law enforcement officer, a family member of the individual, or a household member of the individual who poses a risk. The judge would review the petition and determine whether the individual poses an imminent risk of physical harm to themselves or others. Judges may rely on information about the individual to make the determination, such as, whether the individual has shown violent behavior, has made threats of harm either against themselves or others, has a substance abuse problem, or is suffering from a mental health crisis that is dangerous. The owner of the firearms is entitled to a hearing within two weeks of the initial court order requiring seizure of the firearms. The order, if granted, is effective for a period of one year, and may be renewed for additional one-year periods.
Washington law prohibits individuals who have been convicted of domestic violence misdemeanors from possessing firearms. This also applies to individuals who have been found not guilty of a domestic violence misdemeanor due to the reason of insanity.
Mirroring federal law, Washington law also prohibits individuals who are subject to a domestic violence restraining or protective order from possessing firearms. However, there is no Washington law that authorizes or requires law enforcement officers who respond to the scene of a domestic violence incident to remove firearms. There is also no Vermont law that requires law enforcement officers responding to the scene of a domestic violence incident to remove firearms.