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Domestic Violence Cases & Rights of Gun Owners 

Gun owners have a constitutional right to bear arms. The Second Amendment says: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. This Constitutional right is not absolute, especially when it intersects with the rights of those who are protected by domestic violence orders.

If someone shares certain relationships with you, such as a spouse or former spouse, current or former household member, or as a parent of your child, he or she may ask the court to enter a domestic violence protective Order (DVPO). Grounds for a DVPO include intentionally causing or attempting to cause bodily injury, placing someone (or their family members or household) in fear of imminent serious bodily injury or continued harassment that rises to such a level as to inflict substantial emotional distress, and various types of sexual assault. The DVPO may order someone to refrain from threatening, abusing, following or harassing the other person by telephone, visiting the home or workplace, or other means. The DVPO may prohibit someone from purchasing a firearm for a certain time period, even if the DVPO is entered on a temporary emergency basis without notice to the defendant until he or she is served with a copy of the emergency order.

Federal Law: Are You Allowed to Request the Return of Your Guns?

A federal statute, 18 U.S.C. §922(g)(1-9), prohibits the following people from possessing, shipping, transporting, or receiving any firearm or ammunition: (1) a person convicted of a crime punishable by imprisonment exceeding one year; (2) a person who is a fugitive from justice; (3) a person who is an unlawful user of, or who is addicted to, a controlled substance; (4) a person who has been adjudicated as a mental defective or who has been admitted to a mental institution; (5) an alien who is unlawfully in the U.S. or who has been admitted to the U.S. under a nonimmigrant visa; (6) a person who has been discharged from the Armed Forces under dishonorable conditions; (7) a person who, having been a citizen of the U.S., renounces his citizenship; and particularly for our purposes:

(8) (Note: this next category is referring to a DVPO) a person subject to a court order that . . . restrains the person from harassing, stalking, or threatening an intimate partner or partner’s child, and which order includes a finding that the person is a credible threat to such partner or partner’s child, or by its terms prohibits the use, attempted use or threatened use of such force against such partner or partner’s child; or

(9) a person who has been convicted of a misdemeanor crime of domestic violence. (Note: In NC, a DVPO is a entered in a civil case, unless and until a DVPO is violated. In that event, the violation of it is a crime).

State Law: How Do You Get Your Guns Back?

Emergency temporary DVPOs require law enforcement to immediately seize guns and ammunition before the actual trial takes place. At the (non-emergency) trial, the judge may dismiss the request for the DVPO, or the judge may require the emergency temporary DVPO to remain in place for a specific time period, usually for one year. The federal restrictions on possessing, shipping, transporting, or receiving any firearm or ammunition apply to the state as well. It is the state law that spells out the method by which guns may be returned to the owner when the DVPO expires, assuming he or she is eligible under federal law. There are certain exceptions for defendants who are members of the armed forces and certain law enforcement officers.

Within 90 days of the date the DVPO expires (or 90 days after the order denying the other person’s request for a one-year DVPO), a gun owner has the right to file a Motion For Return of Weapons Surrendered Under Domestic Violence Protective Order, and must attach documents that prove the DVPO has expired (or that it was denied in the first place). The court will hold a hearing to decide whether the guns should be returned to the owner. If not, the court may order the guns to be kept by the Sheriff’s Department for official use (or sold by the Sheriff’s Department), or destroyed if there is no unique identification number or the gun is unsafe for use because of wear, damage, age, or modification. The judge may also order the guns be provided to the NC State Crime Laboratory’s weapons reference library for official use by that agency, or to the NC Justice Academy for official use by that agency.

This article is current as of 2015(c).
NC Gen. Stat. 14-269.1 and NC Gen. Stat. 50B-3.1.

Personalized Domestic Violence Safety Plan (from the NC Dept. of Health & Human Services) 

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