One question that our Virginia members often ask our independent program attorneys is what happens to a person’s gun rights if a protective order is issued.
We turned to U.S. Law Shield of Virginia Independent Program Attorneys Riley & Wells for an explanation of the law.
Here is what they had to say:
The answer will depend on what type of protective order is entered, and whether the gun rights are affected under federal law or Virginia law. Some jurisdictions call a protective order a restraining order.
Gun restrictions under Virginia law
Va. Code § 18.2-308.1:4(B) states that it is unlawful for any person to knowingly possess any firearm while a family abuse “final” or “permanent” protective order is in effect. This is a felony offense punishable by up to 5 years in prison and a $2500 fine. An exception allows for possession of the firearm for up to 24 hours after such protective order is served for purposes of transferring any firearm to a person who can legally possess firearms.
Va. Code § 18.2-308.1:4(A) makes it illegal to purchase or transport any firearm while an emergency protective order, preliminary protective order, protective order and family related protective orders are in effect. This includes orders issued pursuant to Va.
Code § 20-103(B) involving reasonable apprehension of physical harm in divorce, visitation & custody cases; orders entered pursuant to Va. Code § 18.2-60.3 involving stalking; preliminary protective orders entered pursuant to Va. Code § 16.1-253 (F) involving abuse or neglect of a child; and substantially similar orders issued from other states. A violation of this section is a misdemeanor offense punishable by up to 12 months in jail and a $2500 fine.
Additionally, any protective order will disqualify an individual from obtaining a concealed handgun permit (Va. Code § 18.2-308.09) and shall also prohibit one from carrying any concealed firearm with a previously issued permit. A previously issued concealed handgun permit shall be surrendered to the court entering the order for the duration of any protective order.
Gun restrictions under federal law
Persons subject to a qualifying protection order under federal law are generally prohibited from transporting, shipping, possessing or receiving any firearms or ammunition according to 18 U.S.C. § 922 (g)(8). A violation can trigger imprisonment of up to 10 years. 18 U.S.C. § 924 (2)(2).
What Should You Do If You Have Firearms and Receive a Protective Order?
In the event you are served with any type of protective order, we recommend a two-step process. First, you should make sure that you comply with applicable laws by neither attempting to purchase, transport nor carry a firearm until you are able to obtain legal counsel. Second, you should meet with an attorney who can advise you as to what specific steps should be taken to ensure you are in compliance with the applicable law. You should discuss all your options, including contesting and/or appealing the issuance of any protective order.
Protective orders are serious and must not be taken lightly. A violation can result in a felony conviction and incarceration.
What exactly is a protective order?
In Virginia, a protective order is a legal document issued by a judge or magistrate to protect the health and safety of a person who is alleged to be a victim of any act involving violence, force or threat that results in bodily injury or places that person in fear of death, sexual assault or bodily injury.
In Virginia, there are 3 primary types of protective orders:
1. Emergency Protective Order (EPO):
Any judge or magistrate may issue an emergency protective order to protect the health or safety of any person when there is evidence of probable danger involving an act of violence, force, or threat or an arrest warrant has been issued for any criminal offense resulting from the commission of an act of violence, force, or threat. An emergency protective order shall expire at 11:59 p.m. on the third day following issuance. If the expiration occurs on a day that the court is not in session, then the emergency protective order shall be extended until 11:59 p.m. on the next day that the court is in session. Va. Code § 19.2-152.8; Va. Code § 16.1-253.4
2. Preliminary Protective Order (PPO):
A preliminary protective order may be ordered by a court against an alleged perpetrator to protect the health and safety of the petitioner or any family or household member of the petitioner. The preliminary protective order is effective upon personal service on the alleged perpetrator and shall specify a date for a full hearing. The preliminary protective order shall remain in effect until the full hearing. Va. Code § 19.2-152.9; Va. Code § 16.1-253.1; Va. Code § 16.1-253; Va. Code § 20-103(B)
3. Protective Order:
A court may issue a protective order if the court finds that the petitioner is or has been, within a reasonable period of time, subjected to an act of violence, force, or threat by a preponderance of the evidence. These are sometimes referred to as “final” or “permanent” protective orders. They are only issued after a full hearing where both parties can present evidence and argument. The maximum period of time for a protective order is 2 years, but such protective orders can be extended. Va. Code § 19.2-152.10. In cases of family abuse, the court may issue a protective order to protect the health and safety of the petitioner and family or household members of the petitioner. Va. Code § 16.1-279.1
According to federal law, a qualifying protection order may be issued by a criminal court or a civil court, such as divorce court, family court, magistrate or general jurisdiction court that restrains a person from harassing, stalking, or threatening an intimate partner or a child of an intimate partner. There are four components to a qualifying protective order according to federal law. 18 U.S.C. § 922 (g)(8)
1. Hearing: The defendant/respondent received actual notice of the hearing and had an opportunity to participate. A Virginia EPO would not be considered a qualifying protective order under federal law because the defendant/respondent is not permitted to participate in the proceeding.
2. Intimate Partner: The petitioner is an intimate partner of the defendant/respondent. [NOTE: According to Virginia law, an intimate partner relationship is not required for a protective order to be issued.] An intimate partner may include:
• a spouse or former spouse of the defendant/respondent
• a person who cohabitates or who has cohabitated with the defendant/respondent
• a person with whom the defendant/respondent has or had a child in common
3. Restrains Future Conduct:
• The order restrains the defendant/respondent from harassing, stalking, or threatening the intimate partner, child of the defendant/respondent, or child of the defendant/respondent’s intimate partner, OR
• The order restrains defendant/respondent from engaging in other conduct that would place the intimate partner in reasonable fear of bodily injury to the partner or child.
4. Credible Threat or Physical Force:
• The order includes a finding that defendant/respondent is a credible threat to the physical safety of the intimate partner or child, OR
• The order, by its terms, explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child that would reasonably be expected to cause bodily injury.
NOTE 1: A simple “no contact” order that is often issued by courts for various reasons would not be classified as protective order under federal law because they do not include a finding that the defendant/respondent is a credible threat to the alleged petitioner’s physical safety
NOTE 2: The federal law prohibiting someone from having a firearm or ammunition while there is an order of protection against him/her may not apply to law enforcement officials, military personnel, and other government employees who were issued guns and use them while performing official duties. 18 U.S.C. § 925