Police Seizure of Firearms at Scenes of Domestic Violence
When police are called to a domestic violence scene, some states allow or require police to confiscate firearms. Eighteen states have laws addressing the seizure
of firearms at scenes of domestic violence. Eight require police to seize firearms at the scene that were used or threatened to be used in the assault, seven states
allow police to remove firearms at their discretion, and three states that require the removal of guns used in a domestic violence incident also permitting the
seizure of other present firearms depending on the circumstances. For example, West Virginia law enforcement “shall” remove firearms involved in the domestic
violence incident and “may” remove other weapons in plain view or discovered pursuant to a consensual search, as necessary for protection. The details of the
individual state laws further vary on a variety of issues: whether the seized guns must be in plain view (or discovered during a consensual search) or whether police
can search for them; whether the removal of guns requires the arrest of the abuser; whether the removed firearms must pose a danger to someone, and whether
ammunition must also be confiscated (see table below). Four states (AZ, CA, IN, MD) specify that only firearms in the “plain view” of the officer or discovered
pursuant to a consensual search can be removed, eight states do not impose this condition, and six others impose it under certain circumstances or for certain
weapons (for example, those not used in the domestic violence incident). Five state laws (AK, AZ, CA, HI, NJ) permit or require law enforcement to remove firearms
only when they potentially expose the victim, officer, or others to danger.
Ten of the eighteen states (AK, AZ, CA, CT, HI, IL, MD, MT, NJ, OK) also specify how long guns must remain in law enforcement custody, with most imposing
relatively brief time periods (7 days or less in several states) unless the firearm is need for evidence in a criminal prosecution or the abuser is deemed ineligible to
possess firearms. The eight other states provide no time frame for the return of the seized firearms.
Law Enforcement Authority to Confiscate Firearms at Domestic Violence Scene
Statute
May or
Shall
Authority
Authority to
Remove
Ammunition
Requires
Arrest of
Alleged
Abuser
Requires
that a
Gun
be Used or
Threatened in the
DV Incident
Eligible Guns: In Plain
View or Pursuant to
Consensual Search
Requires that
Gun Expose
Someone to
Danger
Guns Used in DV
Incident or All
Guns
ALASKA
Alaska Stat. §
18.65.515(b)
May No No
No for guns in plain
view.
Yes for other guns.
Guns not used in the
D.V. incident, but in
plain view may be
removed.
Yes All guns.
Guns use in the DV
incident may be
removed, but are not
subject to the plain
view requirement.
(b) If a peace officer
investigating a crime involving domestic violence determines that it is necessary to protect the victim or the victim's famil
y from domestic
violence or to protect the officer or the public during the investigation, the officer may (1) seize a deadly weapon in plain view of the officer, and (2) if a
deadly weapon was actually possessed during or used in the domestic violence, seize all deadly weapons owned, used, possessed, or within the control of
the alleged perpetrator. If the weapon is not needed as evidence in a criminal case, the law enforcement agency having custody of the weapon, within 24
hours of making the determination that the weapon is not needed as evidence in a criminal case, shall make the weapon available for pickup by the owner
of the weapon during regular business hours.
ARIZONA
Ariz. Rev. Stat. §
13-3601(C)
May No No No
Plain view or pursuant
to a consensual
search.
Yes All guns.
C
. A peace officer may question the persons who are present to determine if a firearm is present on the
premises. On learning or observing that a firearm is
present on the premises, the peace officer may temporarily seize the firearm if the firearm is in plain view or was found pursuant to a consent to search and
if the officer reasonably believes that the firearm would expose the victim or another person in the household to a risk of serious bodily injury or death. A
firearm that is owned or possessed by the victim shall not be seized unless there is probable cause to believe that both parties independently have committed
an act of domestic violence.
CALIFORNIA
Cal. Penal Code
§12028.5(b)
Shall No No No
Plain view or pursuant
to a consensual
search.
Yes All guns.
(b)A sheriff, undersheriff, deputy sheriff, marshal, deputy marsh
al, or police officer of a
city
,
[…]
a peace officer of the Department of the California Highway
Patrol, […] a member of the University of California Police Department, […] an officer listed in Section 830.6 while acting in the course and scope of his or her
employment as a peace officer, a member of a California State University Police Department, […] a peace officer of the Department of Parks and Recreation,
[…] a peace office, […] who is at the scene of a domestic violence incident involving a threat to human life or a physical assault, shall take temporary custody
of any firearm or other deadly weapon in plain sight or discovered pursuant to a consensual or other lawful search as necessary for the protection of the
peace officer or other persons present. […]
CONNECTICUT
Conn.
Gen. Stat. §
46b-38b(a)
May Yes. Yes No
Plain view or in alleged
batterer’s possession.
No All guns.
(a) Whenever a peace officer determines upon speedy information that a family violence crime has been committed within such o
fficer’s jurisdiction, such
officer shall arrest the person or persons suspected of its commission and charge such person or persons with the appropriate crime. The decision to arrest
and charge shall not (1) be dependent on the specific consent of the victim, (2) consider the relationship of the parties, or (3) be based solely on a request
by the victim. Whenever a peace officer determines that a family violence crime has been committed, such officer may seize any firearm or electronic defense
weapon, as defined in section 53a-3, or ammunition at the location where the crime is alleged to have been committed that is in the possession of any person
arrested for the commission of such crime or suspected of its commission or that is in plain view. Not later than seven days after any such seizure, the law
enforcement agency shall return such firearm, electronic defense weapon or ammunition in its original condition to the rightful owner thereof unless such
person is ineligible to possess such firearm, electronic defense weapon or ammunition or unless otherwise ordered by the court.
HAWAII
Haw. Rev. Stat. §§
134-7.5, 709-906
May Yes No
No for guns in plain
view or discovered
pursuant to a
consensual search.
Yes for other guns.
Plain view or pursuant
to a consensual search
for guns not used in
the DV incident.
Yes All guns.
(4) Any police officer, with or without a warrant, may take the following course of action where the officer has reasonable g
rounds to believe that there was
physical abuse or harm inflicted by one person upon a family or household member, regardless of whether the physical abuse or harm occurred in the
officer's presence: (f) The police officer may seize all firearms and ammunition that the police officer has reasonable grounds to believe were used or
threatened to be used in the commission of an offense under this section.
ILLINOIS
725 Ill. Comp. Stat.
5/112A-30(a)(2),
750 Ill. Comp. Stat.
60/304(a)(2)
Shall No No Yes No No
Guns used in the
D.V. incident only.
725 Ill. Comp. Stat. 5/112A
-
30(a)(2):
(a) Whenever a law enforcement officer has reason to believe that a person has been abused by a family or household
member, the officer shall immediately use all reasonable means to prevent further abuse, including: (2) If there is probable cause to believe that particular
weapons were used to commit the incident of abuse, subject to constitutional limitations, seizing and taking inventory of the weapons.
750 Ill. Comp. Stat. 60/304(a)(2): (a) Whenever a law enforcement officer has reason to believe that a person has been abused, neglected, or exploited by a
family or household member, the officer shall immediately use all reasonable means to prevent further abuse, neglect, or exploitation, including: (2) If there
is probable cause to believe that particular weapons were used to commit the incident of abuse, subject to constitutional limitations, seizing and taking
inventory of the weapons.
INDIANA
Ind. Code Ann. §
35-33-1-1.5
May Yes No
Gun
used in D.V.
incident or
immediate risk to
victim.
Plain view.
Gun used in DV
incident or
immediate risk
to victim.
All guns.
(b) A law enforcement officer may confiscate and remove a firearm, ammunition, or a deadly weapon from the scene if the law e
nf
orcement officer has:
(1)
probable cause to believe that a crime involving domestic or family violence has occurred; (2) a reasonable belief that the firearm, ammunition, or deadly
weapon: (A) exposes the victim to an immediate risk of serious bodily injury; or (B) was an instrumentality of the crime involving domestic or family violence;
and (3) observed the firearm, ammunition, or deadly weapon at the scene during the response
MARYLAND
Md. Code Ann.,
Fam. Law § 4-511
May No No No Plain view. No All guns.
(a) When responding to the scene of an alleged act of domestic violence, as described in this subtitle, a law enforcement o
fficer may remove a firearm from
the scene if: (1) the law enforcement officer has probable cause to believe that an act of domestic violence has occurred; and (2) the law enforcement officer
has observed the firearm on the scene during the response.
MONTANA
Mont. Code Ann. §
46-6-603
Shall No No Yes No. No
Guns used in the
D.V. incident only.
(1) A peace officer who
responds to a call relating to partner or family member assault shall seize the weapon used or threatened to be used in the a
lleged
assault.
(2) The responding officer may, as appropriate: (a) take reasonable action necessary to provide for the safety of a victim and any other member of the
household;
NEBRASKA
Neb. Rev. Stat. §
29-440
May &
Shall
Yes for May
Authority.
No for Shall
Authority.
Yes
No for May
Authority.
Yes for Shall
Authority.
Yes for May Authority.
No for Shall Authority.
Yes for May
Authority.
No for Shall
Authority.
All guns for May
Authority. Guns
used in the D.V.
incident only for
Shall Authority.
(1) Incident to an arrest under section 28
-
323, a peace officer:
(a) Shall seize all weapons that are alleged to have bee
n involved or threatened to be used;
and (b) May seize any firearm and ammunition in the plain view of the officer or that is discovered pursuant to a search authorized or consented to by the
person being searched or in charge of the premises being searched, as necessary for the protection of the officer or any other person.
NEW
HAMPSHIRE
N.H. Rev. Stat.
Ann. § 173 B:9 and
§ 173 B:10
Shall Yes No No No No All guns.
I. Whenever any peace officer has probable cause to believe that a person has been abused,
as defined in RSA 173
-
B:1, that officer shall use all means within
reason to prevent further abuse including, but not limited to: (a) Confiscating any deadly weapons involved in the alleged domestic abuse and any firearms
and ammunition in the defendant's control, ownership, or possession.
NEW JERSEY
N.J. Stat. Ann. §
2C:25-21(d)
May No No No No Yes All guns.
d. (1) In addition to a law enforcement officer’s authority to seize any weapon that is contraband, evidence or an instrument
ality of crime, a law
enforcement
officer who has probable cause to believe that an act of domestic violence has been committed shall: (a)question persons present to determine whether
there are weapons on the premises; and (b)upon observing or learning that a weapon is present on the premises, seize any weapon that the officer reasonably
believes would expose the victim to a risk of serious bodily injury. If a law enforcement officer seizes any firearm pursuant to this paragraph, the officer shall
also seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence.
OHIO
Ohio Rev. Code
Ann. §§ 2935.03
Shall No No Yes No No
Guns used in the
D.V. incident only.
(
h) If a peace officer described in division (A) of this section responds to a report of an alleged incident of the offense of
domestic violence or an alleged
incident of the offense of violating a protection order and if the circumstances of the incident involved the use or threatened use of a deadly weapon or any
person involved in the incident brandished a deadly weapon during or in relation to the incident, the deadly weapon that was used, threatened to be used,
or brandished constitutes contraband, and, to the extent possible, the officer shall seize the deadly weapon as contraband pursuant to Chapter 2981. of the
Revised Code. Upon the seizure of a deadly weapon pursuant to division (B)(3)(h) of this section, section 2981.12 of the Revised Code shall apply regarding
the treatment and disposition of the deadly weapon. For purposes of that section, the "underlying criminal offense" that was the basis of the seizure of a
deadly weapon under division (B)(3)(h) of this section and to which the deadly weapon had a relationship is any of the following that is applicable: (i) The
alleged incident of the offense of domestic violence or the alleged incident of the offense of violating a protection order to which the officer who seized the
deadly weapon responded; (ii) Any offense that arose out of the same facts and circumstances as the report of the alleged incident of the offense of domestic
violence or the alleged incident of the offense of violating a protection order to which the officer who seized the deadly weapon responded.
OKLAHOMA
Okla. Stat. tit. 22, §
60.8
Shall No Yes Yes No No
Guns used in the
D.V. incident only.
A. Each peace officer of this state shall seize any weapon or instrument when such officer has probable cause to believe such
weapon or
instrument has been
used to commit an act of domestic abuse as defined by Section 60.1 of this title, provided an arrest is made, if possible, at the same time.
PENNSYLVANIA
18 Pa. Cons. Stat. §
2711
Shall No Yes Yes No No
Guns used in the
D.V. incident only.
(a) General rule.
--
A police officer shall have the same right of arrest without a warrant as in a felony whenever he has probable cause to belie
ve the defendant
has violated section 2504 (relating to involuntary manslaughter), 2701 (relating to simple assault), 2702(a)(3), (4) and (5) (relating to aggravated assault),
2705 (relating to recklessly endangering another person), 2706 (relating to terroristic threats) or 2709.1 (relating to stalking) against a family or household
member although the offense did not take place in the presence of the police officer. A police officer may not arrest a person pursuant to this section without
first observing recent physical injury to the victim or other corroborative evidence. For the purposes of this subsection, the term "family or household
member" has the meaning given that term in 23 Pa.C.S. § 6102 (relating to definitions).
(b) Seizure of weapons.--The arresting police officer shall seize all weapons used by the defendant in the commission of the alleged offense.
TENNESSEE
Tenn. Code Ann.
§§ 36-3-620, 39-
17-1317
May &
Shall
No
Yes for May
Authority
No for Shall
Authority
No for May
Authority.
Yes for Shall
Authority.
Yes for May Authority.
No for Shall Authority.
Yes for May
Authority.
No for Shall
Authority.
All guns for May
Authority. Guns
used in the D.V.
incident only for
Shall Authority.
(a) (1) If a law enforcement officer has probable cause to believe that a criminal offense involving domestic abuse against a
victim, as defined in § 36
-
3
-
601,
has occurred, the officer shall seize all weapons that are alleged to have been used by the abuser or threatened to be used by the abuser in the
commission of a crime. (2) Incident to an arrest for a crime involving domestic abuse against a victim, as defined in § 36-3-601, a law enforcement officer
may seize a weapon that is in plain view of the officer or discovered pursuant to a consensual search, if necessary for the protection of the officer or other
persons; provided, that a law enforcement officer is not required to remove a weapon such officer believes is needed by the victim for self defense.
UTAH
Utah Code Ann. §
77-36-2.1
Shall No No. Yes No. No.
Guns used in
the
D.V. incident only.
(1) A law enforcement officer who responds to an allegation of domestic violence shall use all reasonable means to protect th
e victim and prevent further
violence, including: (b) confiscating the weapon or weapons involved in the alleged domestic violence;
WEST VIRGINIA
W. Va. Code § 48-
27-1002
May &
Shall
No Yes
No for May
Authority.
Yes for Shall
Authority.
Yes for May Authority.
No for Shall Authority.
Yes for May
Authority.
No for Shall
Authority.
All guns for May
Authority. Guns
used in the D.V.
incident only for
Shall Authority.
(e) Whenever any person is arrested pursuant to the provisions of this article or for a violation of an order issued pursuant
to section five hundred nine or
subsections (b) and (c), of section six hundred eight, article five of this chapter the arresting officer, subject to the requirements of the Constitutions of this
state and of the United States: (1) Shall seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic
violence; (2) May seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the
officer or other persons; and (3) May seize all weapons that are possessed in violation of a valid protective order.
Importance of Removal Laws and Obstacles to Effective Implementation
Although a minority of states have enacted laws that grant law enforcement officials the authority to remove guns when responding to a domestic violence
incident, these laws are crucial tools for actively engaging the criminal justice system in the removal of firearms from individuals who are violent toward their
domestic partners. While the immediate removal of a firearm from a domestic violence scene offers obvious benefits, some studies have found that most
individuals who had a firearm seized from them did not seek return of their weapons, effectively creating a longer cooling-off period for those who did not seek
the return of their guns.
1
in Police gun removal laws are a significant complement to the federal law as it pertains to firearm removal and domestic violence, and
have the potential to reduce the risks associated with armed batterers. These laws are an important step in disarming domestic violence perpetrators; however,
a number of obstacles prevent these laws from being fully and effectively implemented.
Lack of training and enforcement. Police, for one, may be reluctant to seize firearms, even where possession of a firearm is banned by a protective order. One
study found that even when a protective order banned possession of a firearm, law enforcement officials failed to take effective steps to enforce those orders by
1
Parker, G. F. (2015). Circumstances and outcomes of a firearm seizure law: Marion County, Indiana, 2006-2013. Behav. Sci. Law, 33, 308-322.
seizing or otherwise removing those firearms from abusive households.
2
Police departments may also be unfamiliar with their precise responsibilities under their
state’s laws, making them reluctant to confiscate firearms at a domestic violence scene for fear violating an individual’s constitutional rights.
3
Logistical barriers. In states that simply allow police to confiscate firearms, logistical hurdles may prevent them from seizing firearms. A lack of adequate space
for the storage of a potentially large number of guns and concerns over accountability – police departments may fear being held liable if seized firearms end up
lost or damaged – can deter police from confiscating firearms during domestic violence calls.
4
State Examples
Maryland. In 2006, a study was conducted on the implementation of the court order and police removal provisions of the Maryland Gun Violence Act in select
urban, suburban, and rural localities via interviews with individuals in positions that suggested some responsibility to implementing the two domestic violence
provisions, such as judges, policy advocates, and law enforcement. They found that most interviewees expressed uncertainty about the extent of authority
provided to officers through the police removal of firearms policy and stated that the law lacks the clarity officers need to apply it to the various domestic
violence situations they encounter. The interviewees expressed that the law failed to be instructive in practice, as the “circumstances they encounter in the field
are more complex than is accounted for by the law,” but noted that clarifying legislative or regulatory actions have been successful at addressing these issues
and further officer training may help ease some of the frustration associated with interpreting this law and to promote uniform implementation.
5
Indiana. In 2015, a study looked at the implementation and impact of firearm removal laws in Marion County, Indiana, from 2006 to 2013. Of the 404 firearm
seizure cases heard in Marion Supreme Court, 115 of the firearm seizures, or 28.5%, had occurred in the context of a domestic disturbance.
6
The study further
found certain sub-groups to be particular prevalent in the 115 domestic disturbances: 39.1% of the domestic disturbances were due to arguments with
significant others, 21.7% were due to the end of a relationship, 20% were due to threat to a family member or a significant other without a report of an
argument, and 10.4% were due to arguments with family members.
7
2
Webster, D., Frattaroli, S., Vernick, J., O’Sullivan, C., Roehl, J., & Campbell, J. (2010). Women with protective orders report failure to remove firearms from their abusive
partners: Results from an exploratory study. Journal of Women’s Health, 19(1), 93-98. doi: 10.1089/jwh.2007.0530
3
https://www.thetrace.org/2015/10/domestic-abuse-guns-boyfriend-loophole/
4
https://www.thetrace.org/2015/10/domestic-abuse-guns-boyfriend-loophole/
5
Fattaroli, S.and Teret, S. (2006). Understanding and informing policy implementation: A case study of the domestic violence provision sof the Maryland Gun Violence Act.
Evaluation Review, 30, 347-360.
6
Parker, G. F. (2015). Circumstances and outcomes of a firearm seizure law: Marion County, Indiana, 2006-2013. Behav. Sci. Law, 33, 308-322.
7
Id.