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Guns N Orders: Firearms and Family Law
by Fred Adams

There are a number of both state and federal laws about which the family law practitioner should be knowledgeable, so that they will be in a position to advise their clients.

The most significant portion of federal law, from a family law perspective, are contained within 18 USC Sections 921-930.

It is unlawful for “any person to sell or otherwise dispose of any firearm or ammunition to any person knowing, or having reasonable cause to believe that such person is subject to a court order that restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury; or has been convicted in any court of a misdemeanor crime of domestic violence. Except that this paragraph shall only apply to a court order that (a)was issued after a hearing of which such person received actual notice, and at which such person had the opportunity to participate; and (b)(i) includes the finding that such person represents a credible threat to the physical safety of such intimate partner or child or (ii) by its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonable be expected to cause bodily injury.”

Thus, while not applicable to our standard temporary restraining order, it is clear that a person that is subject to the standard set of temporary orders in a family law case which precludes the threatening, harassing or causing of physical injury to the other party, is prohibited from purchasing a firearm or ammunition.

Further, under 18 USC Section 922(g)(8), it shall be unlawful for any person under those same circumstances, to ship or transport in interstate or foreign commerce or possess in or affecting commerce, any firearm or ammunition or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

In other words, if the temporary orders prohibit the use, attempted use or threatened use of physical force against an intimate partner or child, the party who is subject to that order, may not purchase or possess a firearm or ammunition.

A. Case Law

In the United States of America vs. Timothy Joe Emerson in the United States Court of Appeals, Fifth Circuit, 270 F.3d 203 (2001) just such a set of facts existed.

Mr. Emerson was in the midst of a divorce from his wife and on September 4, 1998 a temporary hearing was had wherein the standard form temporary orders were entered.

No evidence was adduced concerning any act of violence or threatened violence by Mr. Emerson against any member of his family and no findings were made to that effect. Furthermore, the Court did not admonish Mr. Emerson that if he granted the temporary injunction, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the Order. Mr. Emerson was convicted and served time.

B. Exceptions Under 18 USC Section 925

18 USC Section 925(a)(l) provides “provisions of this chapter, except for sections 922(d)(9) (conviction of misdemeanor crime of domestic violence precluding purchase) and 922(g)(9) ( conviction of a misdemeanor crime of domestic violence precluding possession) and the provisions relating to firearms subject to the prohibitions of Section 922(p) (prohibiting firearms which are not detectable by airport security) shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any state or any department, agency, or political subdivision thereof.
Thus, unless convicted of the misdemeanor crime of domestic violence, peace officers would be entitled to possess a firearm which was “imported for, sold, or shipped to, or issued for the use of his department.” This would even appear to allow a peace officer to possess a firearm while he was the subject of a protective order, at least with respect to his issued weapon while on duty.

Section 925(a)(2) provides that “the provisions of this chapter shall not apply with respect (A) the shipment or receipt of firearms or ammunition when sold or issued by the secretary of the army … and (B) the transportation of any such firearm or ammunition carried out to enable a person, who lawfully receives such firearm or ammunition from the secretary of the army, to engage in military training or in competition.

Thus, a person enlisted in the military would be entitled to possess his issued firearm for the purposes of training or competition.

I have spoken with several BATF lawyers (Bureau of Alcohol Tobacco and Firearms) and discussed the applicability of 18 USC 922 to courts that use standing orders. It is their position that the law is applicable and failing to request a hearing to exclude the portions of the Temporary Orders that make it applicable is a waiver.

Thus, it is imperative that as Family Law practitioners we determine if our clients possess ammunition or firearms, explain the law to them and ensure that the weapons and ammunition are safely placed with a third party during the pendency of the divorce.