Will My Guns Be Taken Away After a Domestic Violence Call?

Posted by Josh Valentine | Jun 26, 2019

Under North Carolina law, if the court finds that an act of domestic violence has occurred, the court can issue a protective order. A protective order may require the defendant to turn over all firearms and ammunition to the sheriff, including permits to purchase or carry concealed firearms. Failure to turn over firearms subject to a protective order is a felony.  

For some people involved in alleged domestic violence, it may seem like the cards are stacked against them. The police may arrest the wrong person just based on the words of the accuser. The accused may never have intended harm or it may have even been the accuser who was the aggressor. Domestic violence claims are serious and you should contact an experienced North Carolina criminal defense lawyer to fight the charges so you stay out of jail and keep your right to possess a firearm.

Process for Surrender of Firearms in North Carolina

North Carolina Statute § 50B-3.1 provides for requiring the surrender of firearms related to a domestic violence order. This can be related to a permanent protective order after a hearing or as part of an ex parte or emergency protective order. An emergency or ex parte protective order can be issued without the input or response of the defendant.

An ex parte or emergency protective order can require the defendant to surrender all firearms, machine guns, ammunition, and firearms permits, whenever the court finds any of the following factors.

  1. The use or threatened use of a deadly weapon by the defendant or a pattern of prior conduct involving the use or threatened use of violence with a firearm against persons.
  2. Threats to seriously injure or kill the aggrieved party or minor child by the defendant.
  3. Threats to commit suicide by the defendant.
  4. Serious injuries inflicted upon the aggrieved party or minor child by the defendant.

During a protective order 10-day hearing, the court will inquire of the defendant of the presence over, ownership of, or access to firearms, ammunition, and permits, including the description, number, and location of firearms.

Surrendering Weapons Upon Service of the Order

Upon service of the protection order, the defendant is to “immediately surrender to the sheriff possession of all firearms, machine guns, ammunition, permits to purchase firearms, and permits to carry concealed firearms.”

Can I Get My Guns Back After a Restraining Order?

Generally, the defendant is subject to the gun restrictions as long as the protective order is in effect. The order should provide instructions for retrieving firearms when the protective order is no longer in effect. If the gun restriction is based on an ex parte or emergency order, the defendant may generally retrieve the weapons after the ex parte or emergency order expires.

After an order expires, the defendant may file a motion for return of the firearms. A hearing will be scheduled and the court will determine whether to return the firearms or keep the restrictions in place.

Domestic Violence Criminal Defense in Shelby   

At Caulder & Valentine Law Firm, PLLC, we have helped individuals accused of domestic violence fight for their rights and defend them against domestic violence charges that could jeopardize their freedom and rights to see their children. Contact us today for a consultation.

About the Author

Josh Valentine

You could say Josh has a God-given ability for sustaining long-term relationships. He and his wife first met in elementary school and went to Gardner Webb University (GWU) together, where they tied for number 1 in their class. Then, they both started law school on the same day of their graduation and got married during their first semester. He has also known his law partner Blake Caulder since Kindergarten. Theirs is the perfect partnership. “He’s the brake; I am the accelerator,” Josh says. Both Josh and his wife attended an innovative program at Charlotte Law School that allowed them to complete law school in two years instead of the typical three. His wife graduated and passed the North Carolina bar at age 20, becoming one of the youngest attorneys in the state. He readily admits she’s smarter than him. Of course, Josh went on to pass the North Carolina State Bar himself and later the South Carolina State Bar. While in school, he was Associate Editor of the Law Review and received accolades like Phi Delta Phi International Legal Honor Society membership, Order of the Crown, Pro Bono Honors, CALI Awards (highest grade). In his career as a lawyer, he has been admitted to the United States Federal Court for the Western District of North Carolina, is a member of the American Association of Premier DUI Attorneys, and completed training for DWI Detection & Standardized Field Sobriety Testing. Josh has also been named to the Top 40 Under 40 for Criminal Defense by The National Trial Lawyers, the Business North Carolina 2019 Legal Elite for Criminal Defense, and the 10 Best Attorneys for Client Satisfaction by the American Institute of Criminal Law Attorneys three years in a row (2016, 2017, and 2018). Community involvement has been important to Josh all his life. In high school, he participated in building a Holocaust museum that has become internationally regarded. He and his wife are actively engaged in animal rescue, which currently means seven cats and two kittens. He served in prison ministry and assisted with fundraiser banquets there, and he provides pro bono and reduced fee legal services to those in need. As if all of that weren’t enough, Josh also mentors high risk youth and helps with his church’s youth group. He participates in other community volunteer projects involving construction, remodeling, drywall, painting, and landscaping. He’s an active student of the Bible and has traveled to Israel, Brazil, and Europe for mission work. No one can say Josh isn’t a well-rounded individual. In his spare time, he likes to play softball, basketball, and tennis, and he can play the piano and trombone. Sometimes on weekends, believe it or not, he enjoys pouring and finishing concrete with friends who own a concrete and grading business. In his law practice, Josh has made it a point to develop positive relationships with officers, clerks, and district attorneys, which has proven invaluable in delivering positive results for his clients. It’s important to him to both listen to his clients and fight for them. Law enforcement officers have important responsibilities to keep our communities safe and uphold the law, but one of the responsibilities of attorneys is to make sure officers do their job correctly. Josh considers it his job to hold them accountable for their actions. Josh is a person of deep faith. He knows that the established order of our universe and strength of America’s Judeo-Christian influenced court system is built on God’s word. His passion to serve each client with innovation, excellence and integrity is a byproduct of his faith. When asked why he became a lawyer, Josh says, “All through my life, I have personally witnessed family members and very close friends endure divorce, child custody battles, bankruptcy, civil lawsuits, and even fraudulent criminal accusations. I both saw and experienced the stress such events can place on an individual, and I realized that everyone, at some point in their life, needs hope, comfort, and encouragement. In each one of those situations, the person who was best situated to provide that vital support was their lawyer. So that’s why I became an attorney. I understand what you are going through, and I’m here to help you. Our office is focused on meeting your needs and guiding you through what may be the most difficult time of your life.” Education: Charlotte School of Law J.D., Magna Cum Laude Class Rank – 21 of 328 Associate Editor of Charlotte School of Law Law Review Certification and Concentration in Employment Law Phi Delta Phi International Legal Honor Society Order of the Crown Pro Bono Honors CALI Awards (Highest Grade)—Lawyering Process I and Contracts I Full Scholarship Gardner-Webb University B.S. in Accounting, Summa Cum Laude Distinguished Senior Student Award – Highest GPA Alpha Sigma Lambda National Honorary Society Bar Admissions: North Carolina State Bar