Civil Protective Orders have a Significant Impact on your Gun Ownership Federally, and in the State of Virginia

Posted by Paul McGlone | Oct 28, 2015 | 0 Comments

Federal Law Regarding Firearms

The best known restriction on gun ownership and those for whom a protective order is filed against is found in federal law.  Generally, federal law prohibits you from possessing, shipping, transporting, or receiving any firearm, if four conditions are met:

a. a protective order has been issued against you (this includes the duration of an emergency protective order, preliminary protective order, or a longer continuing protective order)

b. if the protective order pertains to your “intimate partner” or the child of such “intimate partner.” The term “intimate partner” is defined to include a spouse, former spouse, person with whom you have a child or have cohabited, but not a girlfriend or boyfriend with whom you have not cohabited.

c. the protective order was issued after an evidentiary hearing, and you had notice and an opportunity to participate in the hearing. Whether or not you actually attended the hearing does not matter.

d. the order is more than a simple “no contact” order. The protective order must find that you are a credible threat to the alleged victim's physical safety; or, the order must prohibit the use, attempted use, or threatened use of physical force against the alleged victim.

The federal prohibition stays in place for the duration of the protection order.  Therefore, if it is extended, then that includes your gun ownership rights prohibition also.

The prohibition under federal law requires that you remove any firearms from your residence, vehicle, or any other place to which you have access and over which you can exercise control.

There is an exception to the federal law that applies to firearms issued by state or federal governments for use by individuals in their official capacity. The exception protects law enforcement or military personnel, who may carry their employer-issued firearms whether they are on or off duty.

State Law Regarding Firearms and Domestic Violence

Virginia law provides a separate, but sometimes overlapping set of restrictions.  Under current Virginia law, it is unlawful for a person who is subject to a protective order to purchase or transport a firearm. In addition, such individuals lose their right to carry a concealed weapon.

The Virginia prohibition is distinct from federal law in the following ways:

Firstly, the Virginia prohibition applies to any protective order authorized under Virginia law. The order does not have to relate to an “intimate partner;” the restrictions apply whether or not you had notice of the hearing; and the restrictions apply even to “no contact” orders, so long as same are issued pursuant to one of Virginia's protective order statutes.  They also apply to any protective order issued by any other state/jurisdiction.

Second, the Virginia law does not prohibit possession of a firearm, only the purchase or transport of same. This means, in effect, that you may keep your firearms in your home. You are simply not permitted to carry a firearm on your person or be in control of it moving from place to place.

Lastly, the Virginia prohibition does not contain an official-use exemption for law enforcement or military personnel. If you are served with a protective order, you will be prohibited from carrying your employer-issued firearm, even if you are required to carry it in order to do your job.

What You Should Do If You Have Firearms and Receive a Protective Order

You should remove the firearm from your home while the protective order is active or pending.  Be aware that if you have appealed a protective order, the underlying requirements, and the underlying order remain in effect during the appeals process.  You should contact a local attorney to clarify your compliance with the laws.

About the Author

Paul McGlone

Experience: Attorney McGlone has handled 1,000's of cases in Fairfax County Courts. Paul McGlone knows all of the best practices to give his clients all advantages available for the best results.  Paul McGlone has attended 100's of hours of professional training in the highly specialized area...


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