West Virginia does not establish a procedure for the removal of firearms when a person becomes prohibited from possessing firearms due to domestic violence.
Firearm Prohibitions for Domestic Violence Misdemeanors
A person may not possess a firearm if they have been convicted of a misdemeanor offense of domestic assault or domestic battery under West Virginia law.1 This prohibition also applies to a person who has been convicted of a federal or state domestic violence statute “with the same essential elements,” in which the victim was:
- A current or former spouse;
- A current or former sexual or intimate partner;
- A person with whom the defendant has a child in common;
- A person with whom the defendant cohabits or has cohabited;
- A parent or guardian;
- The defendant’s child or ward; or
- A member of the defendant’s household at the time of the offense.2
Firearm Prohibitions for Domestic Violence Restraining/Protective Orders
No person may possess a firearm who is subject to a domestic violence protective order that:
- Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
- Restrains such person from harassing, stalking or threatening an intimate partner or such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- Either includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or by its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.3
Furthermore, under a law West Virginia enacted in 2012, a domestic violence protective order must prohibit the respondent from possessing firearms or ammunition.4 The protective order must inform the respondent that he or she is prohibited from possessing any firearm or ammunition and that possession of a firearm or ammunition while subject to the court’s protective order is a criminal offense under state and federal law, notwithstanding the fact that the respondent might otherwise have a right to possess a firearm.5
Upon the filing of a petition for a protective order, the magistrate court may enter an emergency protective order ex parte (without notice and a hearing) upon good cause shown.6 If the court enters an emergency protective order, the order must prohibit the respondent from possessing firearms.7
Under another law West Virginia enacted in 2012, a court that is issuing a temporary “personal safety order” (an order issued against any person who has committed a sexual offense, attempted sexual offense, stalking, or harassment against a victim) may, in its discretion, prohibit the respondent from possessing a firearm if:
- A weapon was used or threatened to be used in the commission of the offense;
- The respondent has violated any prior personal safety order; or
- The respondent has been convicted of an offense involving the use of a firearm.10)
The firearm prohibition is also available in an ex parte personal safety order under the same conditions, if there is reasonable cause to believe the respondent has committed the offense.11
Removal or Surrender of Firearms from the Scene of a Domestic Violence Incident
As necessary for the protection of the officer or other persons, the arresting officer must seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence, and may seize any weapon that is in plain view of the officer or that was discovered pursuant to a consensual search, whenever any person:
- Is arrested for committing domestic violence pursuant to West Virginia law;
- Has violated the terms of a protective order issued during divorce, annulment or separation proceedings;12 or
- Has violated the terms of a protective order issued to protect an individual from abuse.13
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- W. Va. Code § 61-7-7(a)(8). See W. Va. Code § 61-2-28.
- W. Va. Code §§ 61-2-9(b), (c), 61-7-7(a)(8).
- W. Va. Code § 61-7-7(a)(7).
- W. Va. Code § 48-27-502(b).
- W. Va. Code § 48-27-502(c).
- W. Va. Code § 48-27-403(a).
- W. Va. Code § 48-27-202.
- W. Va. Code § 48-27-204.
- W. Va. Code § 53-8-7(d)(1)(F
- W. Va. Code § 53-8-5.(a)(1)(F).
- See W. Va. Code § 48-5-509.
- W. Va. Code § 48-27-1002(e). See also W. Va. Code § 48-5-608.