6.6.1 Under a Protective Order

Both federal and state firearm prohibitions apply to anyone who is subject to a protective order - despite recent federal court decisions that have raised alarm for advocates of domestic violence survivors.1  8 U.S.C. § 922(g)(8) makes it unlawful for a person to possess or purchase a firearm if he is subject to a court order that restrains such person from harassing, stalking, or threatening an intimate partner (or child) or engaging in other conduct that would place an intimate partner (or child) in reasonable fear of bodily injury; except that it shall only apply to an order that:

(A) was issued after a hearing of which he received actual notice and had an opportunity to participate; and

(B)(i) includes a finding that such person represents a credible threat to the physical safety of the intimate partner or child; or

(ii) by its terms explicitly prohibits the use or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury.   

Thus, a protective order that expressly prohibits use of physical force or has a finding that the abuser poses a credible threat to the physical safety of the intimate partner or child invokes federal law prohibiting the abuser’s possession of a gun. The LPOR forms include the warning that federal law prohibits purchase or possession of firearms.

Violation of 18 U.S.C. § 922 may be prosecuted by federal authorities. Some abusers may be willing to consent to a protective order on the theory that § 922(g) would not apply to them since “no hearing occurred.” However, courts have not recognized this defense and the argument conflicts with other law about what constitutes a hearing.  So, any PO that is on the LPOR form would result in a federal prohibition on the possession of firearms by the defendant.

Louisiana also has a parallel provision that prohibits possession of firearms by a person against whom a protective order is issued.2  The prohibition applies where: 1) the protective order includes a finding that the person is a credible threat to the physical safety of a family or household member or a dating partner and 2) the protective order informs the person that they are prohibited from possessing a firearm under 18 U.S.C. § 922 and La. R.S. 46:2136.3.3  Violations of this statute are enforced as a criminal violation of La. R.S. 14.79.4

An abusive partner represented by counsel may seek to have an injunction entered that does not invoke these firearm prohibitions. Lawyers should advise clients as to the differences in protective orders and actively pursue firearm restrictions, particularly if the abusive partner has previously intimidated or harmed them with a firearm. La. R.S. 46:2136(A) allows the court to grant any provisions in a protective order that would bring about the end of abuse.5  Ask the court to expressly order the abusive partner to turn their guns over to law enforcement officials and to produce proof of said surrender to the court and ensure that the firearm prohibition is written on the protective order under Louisiana’s firearm removal law.6

• 1The Supreme Court’s ruling in New York State Rifle & Pistol Association, Inc. v. Bruen, 142 S. Ct. 2111, 2125 (2022), has called into question whether this provision is constitutional under the Second Amendment. The U.S. Fifth Circuit recently found it unconstitutional under the Bruen framework. United States v. Rahimi, 61 F.4th 443 (5th Cir.2023), cert. granted, 143 S. Ct. 2688 (2023); see also United States v. Perez-Gallan, No. PE:22-CR-00427-DC, 2022 WL 16858516, at *15 (W.D. Tex. Nov. 10, 2022). The logic of these cases may also render the similar Louisiana statute unconstitutional, though this has not yet been finally litigated and the statute continues to be enforced as of this writing.
• 2Similar to the federal questions on gun possession after the Rahimi decision, the constitutional framework used would also call into question the legitimacy of Louisiana’s statutory provision.
• 3La. R.S. 46:2136.3.
• 4Id.
• 5La. R.S. 46:2136(A).
• 6For further discussion, see Section 6.6.3.