FIREARM PROHIBITIONS FOR PEOPLE SUBJECT TO DOMESTIC VIOLENCE PROTECTIVE ORDERS
In 2016, Virginia enacted a law that prohibits individuals subject to final domestic violence restraining or protective orders from possessing firearms.1 Because the definition of “family abuse” does not include dating partners who have not lived together during the last 12 months or do not have a child in common, many people in intimate relationships are ineligible for these firearm prohibiting orders.2 The law states that for a period of 24 hours after being served with such a protective order, the person may continue to possess and transport any firearm possessed by the person at the time of service for the purposes of selling or transferring it to any person not prohibited from possessing the firearm. No process is provided for people subject to family abuse orders to relinquish their firearms.
In 2020, Virginia extended the firearm prohibitions to apply to final restraining or protective orders issued against force or violence.3 This law also requires the court to order the respondent to surrender firearms within 24 hours to a law enforcement agency, a licensed gun dealer, or a person who is not prohibited from possessing guns, and to certify to the court that they have done so within 48 hours after being served with the order.4 While any person who has been the victim of a threat or act of violence or force is eligible for an order against force or violence, it also has substantial limitations. A preliminary order may be issued to protect the victim before the perpetrator is charged with a crime5 but if the perpetrator is not ultimately charged, the victim is ineligible for a final order to prevent an act of violence, force or threat. A dating partner who has been abused by a person who is not later charged with a crime would not be eligible for a family abuse protection order. While a dating partner may be able to obtain protection using the third type of order – a substantial risk order which is also firearm prohibiting – these orders can only be requested by law enforcement and prosecutors.
Virginia prohibits the purchase or transportation (but not possession) of a firearm by anyone subject to an ex parte protective order while the order is in effect.6
Any concealed weapon permittee who is the subject of a domestic violence protective order, including an ex parte order, is also prohibited from carrying a concealed firearm and must surrender his or her permit to the court entering the order, for the duration of the order.7
FIREARM PROHIBITIONS FOR PEOPLE Convicted of Domestic Violence misdemeanors
In 2021, Virginia enacted legislation to prohibit people convicted of some domestic violence misdemeanors from accessing firearms—namely, those convicted of the crime of “assault and battery against a family or household member” for three years following the conviction.8 However, there are still gaps in this law that leave other victims of domestic violence crimes unprotected.
First, the definition of “family or household member” in this law excludes most victims of dating violence. Unless the victim and abuser have been married, recently resided together, or have a child in common, a person convicted of assault and battery against an intimate partner is still generally able to legally access guns under Virginia law. This gap mirrors a gap in federal law known as “the Boyfriend Loophole” since it fails to provide the same protections to victims of dating violence as it does to other victims of domestic violence.
Second, Virginia’s domestic violence gun restrictions also still do not apply to people convicted of committing other violent misdemeanors against family or household members, meaning that Virginia’s law is still weaker than federal law in this area. Federal law generally prohibits gun access by people convicted of any misdemeanor involving the use or attempted use of violence, or threatened use of a deadly weapon, against a family or household member.9
Virginia law, however, doesnot:
- Prohibit individuals convicted of all domestic violence misdemeanors from possessing firearms or ammunition (unlike federal law);
- Prohibit individuals convicted of domestic violence crimes against a dating partner from possessing firearms or ammunition;
- Prohibit individuals subject to ex parte restraining orders from possessing firearms; or
- Explicitly authorize or require the removal of firearms or ammunition at the scene of a domestic violence incident.
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- Va. Code Ann. § 18.2-308.1:4.
- Va. Code Ann. § 16.1-228.
- Va. Code Ann. § 18.2-308.1:4(B) (citing Va. Code Ann. § 19.2-152.10).
- Va. Code Ann.§ 18.2-308.1:4(C).
- Va. Code Ann. § 19.2-152.9.
- Va. Code Ann. § 18.2-308.1:4(A).
- Va. Code Ann. § 18.2-308.1:4(A).
- Va. Code Ann. § 18.2-308.1:8.
- 18 U.S.C. 921(a)(33); 27 CFR 478.11