Skip to main content

Implications for Firearms Owners Served with 209A Restraining Orders

Immediately upon being served with a 209A restraining order, M.G.L. c. 209A § 3B requires that the subject of the order surrender their License to Carry Firearms and/or Firearms Identification Card, all “firearms, rifles, shotguns, machine guns and ammunition which he then controls, owns or possesses.” Law enforcement officers, upon service of the restraining order, shall immediately confiscate all licenses, firearms and ammunition. Note that the requirement to surrender all firearms and licenses must be made immediately upon service of the order, even if you intend to oppose the issuance of the order at a subsequent hearing.

What happens to the seized firearms?

Weapons seized as a result of a restraining order by the police may only be thereafter transferred to a licensed dealer by the police department. The police department may not release the firearms back to you (even should the order be ultimately vacated); nor may they release the firearms to any licensed individual – only a federally-licensed firearm dealer. M.G.L. c. 209A § 3B is very specific as to who the firearms may be transferred to after seizure. The restraining order statute requires that only a licensed dealer may take custody of the firearms, and act as a transfer agent when your carry rights have been restored.

This means that even if the order is vacated after a hearing, you must first request that the Chief of Police or other licensing authority reinstate your license to carry firearms or firearms identification card. Once your license has been reinstated, you must then determine if the firearms are in the custody of the police, or if they have been transferred to a licensed dealer. If the firearms are still in the custody of the police, they must first be released to a licensed dealer, who may then transfer them back to the license holder (after they perform the appropriate check to ensure that you are properly licensed).

What if your employment requires the use of a firearm (such as a police officer)?

If the restraining order was initially obtained without a hearing, and you are required to carry or possess a firearm as a condition of your employment, you may file an affidavit demonstrating such an employment requirement, and request an expedited hearing on the restraining order. The Court will schedule a hearing, but only on the issue of the surrender and suspension of firearms pursuant to M.G.L. c. 209A.

How long does a firearms license stay suspended after the initial service of a restraining order?

If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

However, although an individual who was the subject of the now-vacated 209A restraining order may petition the Chief of Police to reinstate of a license to carry firearms, the Police Chief is not under obligation to do so. In Howard v. Chief of Police of Wakefield et al. (59 Mass. App. Ct. 901, 2003) the Appeals Court upheld the Police Chief’s determination that a 209A Abuse Prevention Order issued by a Judge, after a hearing, represents a finding that the individual poses a threat of violence, and that the expiration of the 209A does not erase the fact that the individual has a history of being found post a threat of violence. Since the chief has broad discretion to determine the suitability of an individual to possess a firearms license, the Chief or other licensing authority may consider this information as relevant to his determination as to reinstate the license.

Being the subject of a 209A Restraining Order may cause you to lose your firearms rights for life, and has significant implications as to your property rights, as well. Some licensing authorities may be willing to extend licenses to individuals who are no longer the subject of an abuse prevention order, but it is at the discretion of the licensing officer. Additionally, with even a small firearms collection the value of the confiscated weapons could be thousands of dollars, and larger collections could be valued at hundreds of thousands of dollars. The legal requirement to surrender such property immediately upon the issuance of a restraining order could have significant financial consequences. It is important that, if you are served with a restraining order, you immediately contact an attorney to both protect your rights, your property, and ensure compliance with the law.

For more information about firearms licensing laws, applications, renewals and appeals visit our firearms website.

Comments

  1. Restraining order are nightmares for the gun owners. Anyways, this blog post is one of the most informative posts I have ever read. One thing I would like to ask here is what if a person's profession requires him to carry the gun? After the affidavit, who knows how long the court will take to call you for the hearing. What will happen by that time, should a person be off duty till he gets his firearms back??

    Thanks in advance!
    Jacky

    ReplyDelete
  2. The initial ex-parte order only lasts 10 days before another hearing must be held. So an expedited hearing, if allowed, would have to happen within that ten day period. If the restraining order is extended at the 10-day hearing, or at anytime thereafter following an extension or modification hearing, M.G.L. c. 209A § 3C requires that the individual’s license to carry firearms remains suspended (and any firearms may not be returned or possessed) for as long as the restraining order remains in place. As such, any firearms or firearms license may not be returned until the 209A order is vacated.

    While the order is in effect, whether or not a person can perform his job duties without a firearm would depend on their job and their employer. Some jobs may accommodate this situation it possible.

    ReplyDelete

Post a Comment

Popular posts from this blog

New Massachusetts Child Support Guidelines (2021): Big Changes, Little Changes, Typos & some Unexpected Results

UPDATE: The court has released a web calculating version of the 2021 MA Child Support Guidelines Worksheet .  It resolves some of the typos referred to below, but the unexpected calculations still apply. Every four years, per federal mandate, the Massachusetts Probate & Family Court revisits the Child Support Guidelines through the work of a Task Force appointed by the Chief Justice.  The 2021 Massachusetts Child Support Guidelines were recently posted.  They take effect on October 4, 2021.    If you are interested in a training on all of these changes to the new Child Support Guidelines: DMTA Presents the 2021 MA Child Support Guidelines Update  – Attend this event to learn the key updates you need to know for your mediation clients. Presented by Justin Kelsey of  Divorce Mediation Training Associates  and  Skylark Law & Mediation, PC . For a full comparison of all the  tracked changes between the 2018 and 2021 Massachusetts Child Support Guidelines you can download a pdf sho

What is the purpose of the Divorce Nisi waiting period?

In Massachusetts the statutory waiting period after a Judgment of Divorce and before the divorce becomes final (or absolute) is called the Nisi period. After a divorce case settles or goes to trial, a Judgment of Divorce Nisi will issue and it will become Absolute after a further ninety (90) days. This waiting period serves the purpose of allowing parties to change their mind before the divorce becomes final. If the Judgment of Divorce Nisi has issued but not become final yet, and you and your spouse decide you don't want to get divorced, then you can file a Motion to Dismiss and the Judgment will be undone. Although many of my clients who are getting divorced think the idea of getting back together with their ex sounds crazy, I have had cases where this happened. In addition to offering a grace period to change your mind, the Nisi period has three other legal effects: 1. The most obvious effect of the waiting period is that you cannot remarry during the Nisi period, be

Online Tool for Creating Parenting Plans

It is our hope that all families find a way to resolve conflict peacefully.  This is especially true when children are involved.  Divorced or separated parenting has many complications and the first is just deciding how to share time with a child from two separate households.  Developing a schedule can result in a lot of tension, especially if parents have trouble picturing how this new schedule will interact with their work schedules and the schedules of their children. To help make this easier, we've created an online tool for creating parenting plans that is simple and easy to use: We encourage parents, regardless of the process they are using to divorce, to use this form to assist in evaluating and settling custody disputes. The form allows you to choose between the Model Parenting Plan proposals or customize your parenting plan over a four week period by clicking directly on the form.  When you click on a section of the calendar it switches between Mom and Dad, an