Can a domestic violence case affect your right to own a gun?
Yes, and often sooner than people expect. Gun rights after a domestic violence charge in California can be limited by a protective order, by a conviction or by federal law.
The rules on gun rights in a domestic violence case in California can catch people off guard. Here is how the main state and federal firearm rules work in a domestic violence case. Each one has its own trigger and its own time frame.
What is a domestic violence charge in California?
In California, domestic violence is not one single crime. It is a group of charges that involve a spouse, former spouse, dating partner, co-parent or certain family members.
Two common charges are Penal Code 273.5 and Penal Code 243(e)(1). Section 273.5 covers willfully inflicting a “corporal injury resulting in a traumatic condition,” which means a physical injury, even a minor one. Domestic battery under Section 243(e)(1) covers unwanted force or violence with no injury required.
Both can be charged as misdemeanors. Section 273.5 can also be charged as a felony.
That difference matters a great deal for firearms. You can read more on our domestic violence defense page.
Do you keep gun rights while a California domestic violence case is pending?
Often you cannot. Many Sacramento domestic violence cases start with a protective order. A protective order is a court order that tells a person to stay away from someone and to follow other rules.
The judge in the criminal case can issue a criminal protective order. In family court, the other person can request a civil domestic violence restraining order. Either one can include firearm terms, and the order itself will list them.
For civil domestic violence restraining orders, Family Code 6389 says the restrained person may not own, possess, buy or receive a firearm or ammunition while the order is in effect.
How fast do you have to give up firearms under a restraining order?
The deadlines are short. Under Family Code 6389, if a police officer serving the order asks for your firearms, you must hand them over right away. If no officer asks, you have 24 hours after being served to surrender them.
You can surrender firearms to local law enforcement. Another option is to sell them to, or store them with, a licensed gun dealer. Either way, you should get a receipt.
Within 48 hours of service, you must file that receipt with the court that issued the order. You must also file a copy with the law enforcement agency that served you. Missing either filing is itself a violation of the order.
The local agency can charge a storage fee. Family Code 6389 limits that fee to the agency’s actual costs.
What happens to your firearms when the order ends?
When a restraining order expires, Family Code 6389 says the agency must return surrendered firearms within five days. There are exceptions. The agency will not return them if they were stolen, if you are prohibited for another reason or if a new restraining order is issued.
During the order, you can also make one sale of all stored firearms to a licensed dealer. The law sets out how the dealer collects them from the agency.
Are there work exceptions for peace officers or armed jobs?
In narrow cases, yes. Family Code 6389 lets a court grant an exemption for a specific firearm when a job requires it and the employer cannot reassign the person.
For a sworn peace officer, the court must order a psychological evaluation first. Other armed jobs leave that evaluation up to the court.
The court must find the person does not pose an added threat to the protected party or the public. Even then, the exemption covers only that firearm and only on the terms the court sets.
What does a misdemeanor domestic violence conviction do to gun rights?
California and federal law both reach misdemeanor convictions.
Under California Penal Code 29805, a misdemeanor conviction for certain listed offenses brings a 10-year firearm ban. The list includes Section 243, the battery law that covers domestic battery, and Section 273.6, which covers violating a protective order.
A misdemeanor conviction under Section 273.5 on or after January 1, 2019 is treated more harshly. Penal Code 29805(b) makes it a crime for that person to own or possess a firearm at any later time. In other words, the state ban has no end date.
What about federal law?
Federal law adds another layer. Under 18 U.S.C. 922(g)(9), a person convicted of a “misdemeanor crime of domestic violence” may not ship, transport, possess or receive firearms or ammunition.
The federal rule is separate from California’s rule. So even when a California time limit runs out, federal law may still apply. Whether a specific California conviction counts under federal law depends on the elements of the offense and the record of the case.
Federal law also reaches some protective orders. Under 18 U.S.C. 922(g)(8), some orders issued after a hearing also bar firearm possession while they are in effect. This applies when the order protects an intimate partner or that partner’s child and the restrained person had notice and a chance to take part.
What does a felony domestic violence conviction do?
A felony conviction brings a lifetime ban under state law. Penal Code 29800 makes it a felony for any person convicted of a felony to own, buy, receive or possess a firearm.
Federal law has a similar rule under 18 U.S.C. 922(g)(1) for crimes punishable by more than one year in prison. Some felonies in California are “wobblers,” which means they can be charged or later reduced to a misdemeanor. Our post on felony vs misdemeanor charges in California explains how that works.
Does an expungement restore gun rights?
Not in California. A dismissal under Penal Code 1203.4, often called an expungement, offers real benefits. But the statute says plainly that it does not permit a person to own or possess a firearm.
That rule is in Penal Code 1203.4(a)(2). So a person with a 10-year or lifetime ban should not assume a dismissal changes it.
Can a warrant alone affect firearm rights?
Yes. Under Penal Code 29805(a)(2), a person who knows of an outstanding warrant for one of the listed misdemeanors may not have a firearm. Penal Code 29800 has a similar rule for felony warrants.
If you think you have a warrant, talk with a lawyer before you touch any firearm. A lawyer can also help you deal with the warrant itself.
What should you do right now?
- Read any protective order carefully. Note the firearm terms and the deadlines.
- Surrender or transfer firearms the lawful way, and keep every receipt.
- File the receipt with the court and the serving agency within 48 hours.
- Do not ask a friend or family member to “hold” your guns informally.
- Talk with a defense lawyer before you accept any plea offer. The charge you plead to can decide whether a firearm ban lasts 10 years, for life or not at all.
What questions should you ask your lawyer about firearms?
A short list of questions can make a first meeting more useful. Consider asking:
- Does the protective order in my case include firearm terms?
- Where and how should I surrender or store my firearms?
- Which charges in my case could bring a 10-year or lifetime ban?
- Could federal law apply even if state law does not?
- When could I ask for my firearms back, if ever?
Write down the answers. Bring the list to each meeting so nothing gets missed.
How can the Law Office of Richard T. Dudek help?
The Law Office of Richard T. Dudek defends people in state and federal criminal courts. Criminal defense attorney Richard Dudek knows the Sacramento courts, and the defense team includes licensed private investigators.
Our team has never forgotten that any conviction is likely to change someone’s life. You can also read about related charges on our weapons charges page.
If you or someone you love is facing a domestic violence charge in Sacramento, you don’t have to figure out the next step alone. Call (916) 848-6508 for a free consultation, or contact us online.
The information here is general information about California criminal law, not legal advice. Firearm laws change often, and federal and state rules can apply differently to each case. Reading it does not create an attorney-client relationship. Please talk with a lawyer about your own situation.