June 16, 2017

gunIf a court issues a restraining order against you, many of your rights will be restricted. One of those rights is your right to keep and bear arms.

If you own a gun and a restraining order is issued against you, you must either:

  • Sell the gun to a licensed gun dealer
  • Store the gun with a licensed gun dealer or law enforcement agency, or
  • Surrender the gun to a law enforcement agency

What About My Second Amendment Rights?

The Second Amendment guarantees the right of citizens to keep and bear arms, but it is not an unlimited right. In District of Columbia v. Heller, the U.S. Supreme Court ruled that the Second Amendment is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” This means that states have the power to limit access to guns in the interest of protecting public safety.

California courts have similarly ruled that so long as the person being denied access to firearms is given due process, “the state may ensure that firearms are not in the hands of someone who may use them dangerously.” Due process means that you had notice of the hearing that could take away your gun rights, and you were given an opportunity to be heard.

So What Do I Do with My Gun?

If your restraining order prohibits you from owning or possessing a firearm (including handguns, rifles, shotguns, or assault weapons), you must either temporarily or permanently relinquish your guns. You can:

  • Sell the gun to a licensed gun dealer
  • Store the gun with a licensed gun dealer
  • Store the gun with a law enforcement agency, or
  • Surrender the gun to a law enforcement agency

If you choose to store the gun, contact a licensed gun dealer or law enforcement agency and ask about their fees. Most gun dealers and some law enforcement agencies may charge a fee for this service.

If you turn the gun into a law enforcement agency, you can still change your mind and sell it. You are allowed to make one sale through a licensed gun dealer. The gun dealer will present a bill of sale to the agency, and the agency will turn over the weapon to the dealer.

Regardless of your choice, always transport your gun in the trunk of a vehicle and keep the weapon unloaded. Never bring a loaded firearm to a law enforcement agency. If you are under a restraining order, contact the police to advise them that you are transporting the weapon to them for storage or surrender. This way, if you are pulled over while traveling to the police agency, the officers will be aware that you are attempting to comply with the terms of your order.

What If I Decide to Keep My Gun?

If you ignore the restraining order and attempt to keep the weapon, you could face serious penalties. First, you must be aware that California law authorizes the court to issue a search warrant if a domestic violence restraining order is issued against you and you fail to relinquish any firearms in your possession. If you are found to have kept your gun, you could face a misdemeanor conviction, which would result in a fine of $1,000 and up to 364 days in county jail.

However, the penalties may not end there. The 1996 Lautenberg Amendment to the federal Gun Control Act prohibits the possession of a firearm if your restraining order was for “harassing, stalking, or threatening an intimate partner or his or her child.” Violations of this act are severely punished, with fines up to $250,000 and a prison sentence of up to 10 years.

Contact the Criminal Defense Attorneys at Wallin & Klarich Today

If you face a restraining order, you should seek the help of an experienced criminal defense attorney right away. At Wallin & Klarich, our skilled attorneys have over 35 years of experience successfully representing clients in restraining order matters. Let us help you now.

With offices in Orange County, Riverside, San Bernardino, Los Angeles, San Diego, West Covina, Torrance and Victorville, there is an experienced and skilled Wallin & Klarich criminal defense attorney available to help you no matter where you are located.

Contact our offices at (877) 4-NO-JAIL or (877) 466-5245 for a free phone consultation. We will be there when you call.


Author: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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