Brady Indicators and the Prohibition on Possession of Firearms Following an Order of Protection Hearing
If you are an avid gun collector or hunter, you need to be especially careful how you handle the situation if you are served with an Order of Protection. If you request a hearing on the Order of Protection and lose, you will be a prohibited possessor of firearms under the federal “Brady Bill” for the timeframe the Order of Protection remains in place (one year after the date of service).
The purpose of an Order of Protection is to restrain a person with whom a party has had an “intimate relationship” as defined by our statute from: (1) having all or certain types of contact; (2) having access to a residence the parties share; (3) going to certain locations such as a residence, school, or workplace of the Plaintiff; or (4) having contact with an animal or child. An Order of Protection can also order that the party not possess firearms, but only after the court makes a specific finding that the Defendant “is a credible threat to the physical safety of the plaintiff of other protected person.”
Regardless, the Defendant will not be able to possess firearms if he/she asks for a hearing and loses, meaning the Order of Protection is upheld. There is no additional findings or requirements necessary by the Court at that time.
Being a prohibited possessor means you cannot legally possess firearms, ammunition, or explosives. This can be particularly problematic for people who are required to possess firearms as part of their employment – such as police officers, security guards, etc. If you are found to be in possession of a firearm, you can be charged with a federal crime that carries a penalty of ten (10) years in prison and/or a $250,000.00 fine. Possession can mean actual possession or “constructive” possession – as in the gun is present in your residence or vehicle and you have the ability to access it even if you do not. As a result, you will likely want to surrender all firearms to the police during the time period the Order of Protection is in place.
As a result of this federal law, in some cases, it makes sense not to challenge the Order of Protection, but to simply allow it to remain in place until it expires. If the Court did not make an initial finding that the Defendant is a credible threat of physical harm, the Defendant will be able to continue to possess firearms. The Defendant will, of course, not be permitted to have any contact with the Plaintiff while the Order of Protection remains in place, but he/she will not have to surrender his/her weapons.
Allowing an Order of Protection to remain in place can cause logistical issues for things such as parenting time exchanges and legal decision-making (formerly custody). For more information on domestic violence and legal decision-making, please look for my next blog on these topics.
If you would like to work with one of our experienced Attorneys, please call OWENS & PERKINS at480.630.2464 to schedule your free 30-minute consultation.