It depends on what the court found when it issued the protective order. If you had notice and an opportunity to participate in the protective hearing, and if the protective order finds that you are a threat to your intimate partner or partner’s child, or if the order prohibits the use of physical force against your partner or child, then you may not possess firearms. Below, this post will discuss this issue in more detail.
Federal law says that you can’t possess firearms if a court has issued an order that:
· Was issued after a hearing, and you knew about the hearing, and you had an opportunity to participate in the hearing, and
· The order restrains you from harassing, stalking or threatening your intimate partner, or a child of your intimate partner, or from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the intimate partner or intimate partner’s child, and the order either
o Finds that you represent a credible threat to the physical safety of your intimate partner or child, or
o By its terms explicitly prohibits the use, attempted use, or threatened use of physical force against your intimate partner or child that would reasonably be expected to cause bodily injury.
If a protective order contains the above terms, then you can’t possess firearms. But not all protective orders contain these terms, so federal law doesn’t prohibit everyone with a protective order from having firearms.
In Oklahoma, the state court system prints a standard protective order form for a judge to sign when the judge issues a protective order. The courts have written the portion of the form relating to firearms to comply with federal law. This form looks like this:
If the court issues a protective order that doesn’t prohibit you from possessing firearms, the judge should check box 1). If the court issues a protective order that prohibits you from possessing firearms, the judge should check box 2).
See the federal law containing these terms at 18 U.S.C. § 922(g)(8), here.
Note also that, although most protective order law is state law, this statute is from federal law, and so applies to a protective order issued anywhere in the United States.
This past year, the Supreme Court held that the prohibition on protective order recipients possessing firearms does not violate the Second Amendment’s right to keep and bear arms.
What does it mean to “possess” firearms?
This is a tricky question, and it has been particularly problematic in cases where two or more people live together, and one of them is not allowed to possess firearms, but the other occupants are. How do we know who “possesses” the firearm?
One court case holds that there are two types of possession: “actual” possession and “constructive” possession. Constructive possession exists when a person “knowingly” has “ownership, dominion, and control” over a firearm and the property where the firearm is found. If the person is the only person occupying the premises, then constructive possession has been established. However, if more than one person occupies the premises, then, in order to obtain a conviction, the government must show “some connection or nexus” between the person and the firearm. The government must show that the accused person had:
· Knowledge of the firearm, and
· Access to the firearm.
Perhaps the best way to understand what’s allowed any what isn’t, is to look at various court cases, and see when a court found that a person did “possess” firearms and was therefore guilty under the law, and when the court found a person did not possess firearms, and so was not guilty. Because this blog concerns Oklahoma, and Oklahoma falls under the jurisdiction of the Tenth Circuit, this blog will only discuss cases from the federal Tenth Circuit Court of Appeals.
U.S. v. Norman – Defendant was driving a car with a passenger. Police stopped the car and found a gun in the car’s glove compartment. The court noted that Defendant had the key to the glove compartment when he later sold the car. Also, Defendant owned the car and had exclusive control of the car. Defendant was found guilty.
U.S. v. Mills – Police obtained a warrant to search Mills’ house. They searched a truck belonging to Judy Hall, who lived in Mills’ house. Hall was not present at the time, and police gave Mills permission to remove guns from Hall’s truck and place the guns in his garage. Six days later, police executed another search warrant on the house, and found guns in Hall’s mattress, and in Hall’s dining table. Mills was found not guilty. The Court found that there was not sufficient evidence to show that Mills had “dominion and control” over the guns.
U.S. v. Hien Van Tieu – Officers found a firearm in a bedroom that Defendant claimed was his bedroom. At trial, testimony showed that Defendant slept in the bed where the firearm was found, and used the bedroom to store his personal effects. The firearm and ammunition were wrapped in a bandana similar to other bandanas in the house. Defendant was found guilty.
U.S. v. Heckard – Defendant owned a home where officers found revolver. When the officers found the revolver, Defendant was awake and was near the revolver. There was evidence that Defendant received the revolver only a few months before he was arrested. Defendant was found guilty.
U.S. v. Taylor – Police discovered a pistol in the closet of the northeast bedroom of an apartment where Defendant temporarily lived. Defendant jointly occupied the northeast bedroom with someone else. Two other people lived at the same residence. Two witnesses testified that they saw Defendant handling guns; however, their testimony was not entirely clear as to what they saw. Officers found Western Union receipts and pawn shop tickets belonging to the Defendant in another room of the apartment. Defendant was found not guilty.
U.S. v. Hishaw – Officers found a semiautomatic pistol in the car Defendant was driving. At trial, Defendant testified that a friend of his brother owned the car. The government presented no evidence to refute Defendant’s contention that his brother’s friend owned the car. The government also didn’t show whether Defendant had dominion or control over the vehicle. Defendant was found not guilty. The court held that the evidence was “simply too remote and too vague” to convict Defendant of possessing the pistol. Although Defendant had possessed a semiautomatic pistol on other occasions, this past behavior was not sufficient to convict him of possessing a firearm at the time he was arrested.
U.S. v. Gorman – Defendant and another man were living out of a truck. Police found a gun on the driver’s side of the truck, and Defendant could see and retrieve the gun from his seat; he was sitting in this seat just before the search. Police found another unloaded 9mm magazine in the driver’s seat cover. Also, Defendant was an auto mechanic, and he owned the truck and had worked on the truck. So, Defendant would have known where to hide items in the truck. Defendant was found guilty.
U.S. v. Sullivan – Russell and Mary Sullivan were charged with possession of a firearm. A witness testified that she saw Russell display a clip, and heard Russell boast that he could drop this clip into his AR-15 and that this would make the AR-15 “rock and roll” in a matter of seconds. Mary’s son testified that he had bought the AR-15 and given it to his younger brother, and that he took this AR-15 and other guns to Mary’s house after some of his guns were stolen. Mary’s son also testified that after his brother died, he moved the gun cabinet into his mother’s bedroom. Mary admitted that she kept these guns after her son’s death. Also, officers found a machine gun in the Sullivans’ master bedroom, along with an auto sear and 30-shot clips. Defendants were found guilty.
Need help or have questions? Contact the Persaud Law Office.
At the Persaud Law Office, we have represented many clients in protective order cases. If you have had a protective order issued against you, and you have questions about what you can or can’t do, we may be able to assist you. Also, if you have a protective order against someone, and you are concerned that they may be violating the protective order, we may assist you. Contact us today.
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