Firearms and Restraining Orders in Massachusetts: Understanding the Legal Framework
When a restraining order is issued in Massachusetts, it triggers significant legal consequences regarding firearms possession. This article explores the intersection of restraining orders and guns in Massachusetts, detailing the surrender requirements, legal procedures, and implications for gun owners subject to protective orders.
Automatic Firearms Surrender Requirements Under Restraining Orders
In Massachusetts, when a court issues a restraining order under G.L. c. 209A (commonly known as a “209A order” or “abuse prevention order”), the law mandates immediate consequences regarding firearms. Under G.L. c. 209A, § 3B, when a judge issues a restraining order, they must also order the suspension and surrender of any firearms license held by the defendant and require the surrender of all firearms, rifles, shotguns, machine guns, and ammunition in the defendant’s control, ownership, or possession.
This surrender requirement is automatic and occurs by operation of law when the restraining order is issued. The court does not need to make additional findings regarding the defendant’s likelihood of using firearms against the plaintiff. The mere issuance of the restraining order triggers the firearms surrender requirement.
The Surrender Process
When a restraining order is issued, the defendant must immediately surrender all firearms and related items to the appropriate law enforcement agency. The surrender process typically works as follows:
- The court order will specify that the defendant must surrender all firearms, rifles, shotguns, machine guns, and ammunition.
- The defendant must surrender these items to the police department identified in the order, usually the department in the town where the defendant resides.
- The surrender must occur immediately upon service of the order, or within the timeframe specified by the court.
- The law enforcement agency will provide a receipt for the surrendered items and will maintain custody of them for the duration of the restraining order.
Failure to surrender firearms as ordered constitutes a violation of the restraining order and may result in criminal charges. Under Massachusetts law, violating a restraining order is a criminal offense punishable by imprisonment for up to 2.5 years in a house of correction, a fine of up to $5,000, or both.
Temporary vs. Permanent Orders and Firearms Surrender
The firearms surrender requirement applies to both temporary (ex parte) and permanent restraining orders. When a temporary restraining order is issued without the defendant present (ex parte), the defendant must surrender firearms upon being served with the order. This surrender requirement continues if the order is extended after the 10-day hearing where both parties have the opportunity to be heard.
If the restraining order is vacated or expires, the defendant may petition for the return of surrendered firearms. However, the return is not automatic and depends on whether the defendant remains legally eligible to possess firearms under both state and federal law.
Federal Implications: The “Brady Disqualifier”
In addition to state law requirements, federal law also prohibits individuals subject to qualifying domestic violence restraining orders from possessing firearms or ammunition. Under 18 U.S.C. § 922(g)(8), commonly known as the “Brady Disqualifier,” it is a federal crime for a person subject to a qualifying protection order to possess firearms or ammunition.
For a restraining order to qualify under federal law, it must:
- Have been issued after a hearing where the defendant had notice and an opportunity to participate;
- Restrain the defendant from harassing, stalking, or threatening an intimate partner or child of an intimate partner; and
- Include a finding that the defendant represents a credible threat to the physical safety of the intimate partner or child, or explicitly prohibit the use, attempted use, or threatened use of physical force against the intimate partner or child.
This means that while Massachusetts law automatically requires firearms surrender upon issuance of any 209A order (including temporary ex parte orders), the federal law prohibition only applies after the defendant has had an opportunity to be heard at the 10-day hearing.
Petitioning for Review of the Surrender Order
Massachusetts law provides a mechanism for defendants to petition for review of the firearms surrender order. Under G.L. c. 209A, § 3B, a defendant may file a petition for review of the surrender order with the court that issued the restraining order.
The petition must demonstrate by clear and convincing evidence that the defendant:
- Is not the subject of any other abuse prevention order or similar order;
- Has no history of violent behavior or acts;
- Is not a threat to the plaintiff or any household member; and
- Is not otherwise disqualified from possessing firearms.
The court will hold a hearing on the petition, and the plaintiff must receive notice and an opportunity to be heard. The burden of proof rests with the defendant to establish that they are entitled to relief from the surrender order.
Continuation or Modification of Surrender Orders
When a restraining order is extended or modified, the court must also address the continuation or modification of the firearms surrender order. Under G.L. c. 209A, § 3C, if the court extends or makes permanent a temporary order, the suspension and surrender order remains in effect unless explicitly modified by the court.
If the restraining order is vacated, expires without extension, or is terminated, the defendant may petition for the return of surrendered firearms. However, the court must first determine that the defendant is legally eligible to possess firearms under both state and federal law.
Record-Keeping and Reporting Requirements
When a court orders the suspension of a firearms license and the surrender of firearms, the court must transmit a report to the Department of Criminal Justice Information Services (DCJIS). This report includes the defendant’s identifying information and a description of the alleged conduct and relationship to the plaintiff.
This information is entered into state and national criminal justice databases, including the Massachusetts Criminal Justice Information System and the National Instant Criminal Background Check System (NICS). This ensures that if the defendant attempts to purchase firearms while subject to a restraining order, the background check will reveal the prohibition.
Long-Term Consequences for Firearms Rights
The impact of a restraining order on firearms rights can extend beyond the duration of the order itself. In Massachusetts, even after a restraining order expires or is vacated, the defendant may face challenges in regaining firearms rights due to:
- The discretionary nature of firearms licensing in Massachusetts, where licensing authorities may consider past restraining orders even if they have expired;
- Federal law, which permanently prohibits firearms possession by individuals convicted of domestic violence misdemeanors (the “Lautenberg Amendment”); and
- The potential impact on suitability determinations for firearms licenses, as licensing authorities may consider past restraining orders as evidence of unsuitability.
Additionally, if a defendant violates a restraining order while it is in effect, they may face criminal charges that could result in a permanent prohibition on firearms possession under both state and federal law.
Coercive Control and Firearms Restrictions
With the recent expansion of Massachusetts law to include “coercive control” as a form of abuse under G.L. c. 209A, the scope of restraining orders that trigger firearms restrictions has broadened. Coercive control includes patterns of behavior that cause a family or household member to reasonably fear physical harm or have a reduced sense of physical safety or autonomy.
This means that restraining orders issued based on coercive control, even without allegations of physical violence, will still trigger the firearms surrender requirement. This expansion reflects the legislature’s recognition that various forms of abuse, beyond physical violence, can create dangerous situations where firearms restrictions are warranted.
Practical Considerations for Defendants
For defendants subject to restraining orders who own firearms, it is crucial to understand and comply with surrender requirements. Failure to surrender firearms as ordered can result in criminal charges for violating the restraining order, as well as separate charges for illegal possession of firearms.
Defendants should:
- Immediately surrender all firearms and related items as directed in the order;
- Obtain and keep receipts for all surrendered items;
- Not attempt to purchase or possess firearms while the order is in effect;
- Consider consulting with an attorney about the potential for petitioning for review of the surrender order if appropriate; and
- Understand that even temporary restraining orders trigger the surrender requirement.
Conclusion
The automatic firearms surrender requirement for individuals subject to restraining orders reflects the legislature’s recognition of the heightened danger that firearms pose in domestic violence situations.
For those subject to restraining orders, understanding and complying with firearms surrender requirements is essential to avoid criminal penalties. For those seeking protection through restraining orders, knowing that firearms surrender is an automatic component of these orders can provide additional peace of mind.
The courts, law enforcement agencies, and the Department of Criminal Justice Information Services work together to implement and enforce these provisions, creating a system designed to reduce the risk of firearms-related violence in situations where restraining orders have been deemed necessary for protection.