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Common Questions about Domestic Violence Protective Orders and Guns

Last updated on 02/22/2024 at 5:07 pm

Safety alert!

Computer use can be monitored and is impossible to completely clear. If you are afraid your internet and/or computer usage might be monitored, please use a safer computer, contact a local program and/or call the National Domestic Violence Hotline at 1-800-799-SAFE. If there is an emergency situation that involves your abuser and a gun, call 911.

How do I get a protective order?

A protective order case starts with filing a petition in magistrate court. The petition is a form available at the magistrate’s office. The person who is seeking protection and files the petition is called the petitioner. The person who is required to respond to the petition is called the respondent. The petitioner and respondent are called the parties to the case.

Read this article for more common questions about Domestic Violence Protective Orders.

You can also learn more about legal protection against domestic abuse on our podcast.

Is there a difference between federal law and WV state gun laws?

Yes, the federal laws apply to all states, but the WV laws only apply to WV. So, if your abuser is in a neighboring state, the law regarding his/her ability to possess a firearm may be different. You would need to consult with the laws in the applicable state.

The federal laws are broader in order to limit the access of guns to a wider range of criminals. Most of the gun laws regarding domestic violence are WV state laws. Both federal and WV State gun laws work together to protect victims and deny criminals access to guns.

Who is not allowed to buy a gun?

In WV, any person can buy a gun if he or she is over the age of 18 years old. However, a person cannot buy a gun if he or she violates any of the following restrictions:

• is guilty of a crime which carries a jail sentence of more than 1 year,
• is addicted to alcohol,
• uses or is addicted to drugs,
• has a mental defect,
• has been involuntarily committed to a mental institution,
• is not a U.S. citizen,
• was dishonorably discharged from the military,
• has been convicted of a crime of battery or assault that would generally be considered a domestic battery or domestic assault wherein the victim was household member, a family member, a spouse or intimate partner, or
• is subject to a domestic violence protective order.

What does it mean to “possess” a gun?

Possessing a gun can mean any of the following terms:

• owning,
• buying,
• using,
• carrying,
• traveling with,
• transporting, or
• selling.

If I file a Domestic Violence Protection Order, do I have to give up my gun?

No. Victims of Domestic Violence who are petitioners do not have to give up their guns. If, however, the Respondent files a DVPO against you and it is ordered by the Magistrate or Family Court, then you would have to give up your gun. If the Magistrate Orders the DVPO and you are a Respondent, you will have to surrender your guns. If the Sheriff holds your guns, you will need a Court Order from the Family Court to return the guns. This will only be Ordered when the Protection Order is no longer in effect. Sometimes guns will be held by a family member or close friend as a trustee. If this happens, they will have to promise not to make these guns available to you until you are allowed to lawfully possess them.

If I have a DVPO, can my abuser keep a gun he or she already owns?

No. In WV, the DVPO states that the abuser cannot keep a gun. They must surrender it to the Sheriff, or in some cases to a friend or family member who agrees to keep it.

What if my abuser lives with other people who own guns?

Sometimes the court will allow family members to have guns as long as they are locked up.

Sometimes the court will make the gun owning family member sign civil and criminal liability waivers to accept full liability in case the abuser takes possession of the guns. Basically, this means that the owners would be in trouble if the abuser somehow possessed one of their guns.

Judges and Courts have discretion in deciding how to handle this issue.

If I have a DVPO, can my abuser buy a new gun?

No. A Respondent to a DVPO cannot lawfully buy a new gun in WV if there is a DVPO against him or her.

What if my DVPO is only temporary?

It does not matter that the protection order is temporary. A Respondent to a DVPO cannot possess a gun while a DVPO is in effect.

What if my DVPO has expired or is terminated?

If your DVPO is expired or is terminated, the order is no longer in effect and the Respondent can purchase or possess a gun.

What is a domestic violence misdemeanor?

In WV, it can be for either domestic battery or domestic assault.

• A domestic battery misdemeanor is when a person is found guilty of physically hurting a family member or someone within the household.
  • When found guilty in court, the abuser is sent to jail for less than 12 months and/or is given a fine of less than $500.
  • WV Code 61-2-28(a)
  • When found guilty in court, the abuser is sent to jail for less than 6 months, fined $100 or less, or both sent to jail and fined
  • WV Code 61-2-28(b)

  What is a domestic violence felony?

  In WV, any person commits a domestic violence felony when he/she has been convicted three or more misdemeanors within 10 years.

  If found guilty, the abuser may be sent to prison for 1-5 years or has to pay a fine of $2,500 or less. The abuser can be both sent to prison and fined.

  What can I do if I do not have a protective order and my abuser has never been convicted of a domestic violence misdemeanor or felony?

  You may need to file for a DVPO in the Magistrate Court. If there is an emergency or if you are a victim of domestic violence, you can seek help from the following sources:

  • 911 (in an emergency)
  • Your local police department
  • The Sheriff
  • The State Police
  • An attorney
  • Local shelters

  Is there an exception for hunting season?

  There is no exception for hunting season. The DVPO prevents the Respondent from being able to possess a gun.

  Can my abuser use a gun for work as a police officer?

  There have been recent changes in the law to protect more victims of domestic violence. Now, any police officer who has been convicted of a domestic violence misdemeanor cannot possess a gun, even while on duty.

  What if my abuser is in the military?

  The abuser can remain an active military member, but he/she cannot possess a gun for work purposes.

  What will happen if my abuser commits a violation?

  In WV, if any person violates a DVPO by having a gun, then that person will be guilty of a misdemeanor and fined between $100-$1000 or sent to jail for 90 days to 1 year, or both.

  Where do I find out if my abuser has been convicted for a domestic violence misdemeanor or felony?

  Your local police department may help you determine if your abuser has a past domestic violence record. However, they are not required to.

  Criminal Court records are public records so you may check with your local Magistrate Court Clerk or Circuit Clerk.

  Can my abuser keep or buy a new gun if he/she has already been convicted of domestic violence?

  No. In WV, if your abuser has been found guilty in any court for a domestic violence misdemeanor, then your abuser cannot possess a gun.

  Who do I call if my abuser has a gun and is not allowed to?

  If you believe your abuser has a gun, you can call:

  • 911 (In an emergency)
  • Your local police department
  • The Sheriff
  • The State Police

  If your abuser has a gun, and you are unsure whether he or she is violating state or federal law, you can also call any of the numbers listed above. Those resources can help determine the law your abuser is violating, and they can help you stay safe.

  If your abuser has a gun and is violating federal law, you can call the Bureau for Alcohol, Tobacco and Firearms (ATF) at 1-800-283-4867.

  Resources

  West Virginia Coalition Against Domestic Violence: http://wvcadv.org/

  • Here you can find information on local domestic violence shelters across the entire state of West Virginia. Men, women, and children can find the phone numbers and contact information to seek help and stay safe.
  • This website provides information for women, men, and children on how to get help and stay safe. It also teaches everyone on how to determine if you or someone you know is in an abusive relationship because abuse comes in different forms. Abusive relationships can be verbal, emotional, sexual, or physical.