North Carolina Divorce Lawyers Blog
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Return of Firearms After a Domestic Violence Protective Order

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Dear Carolyn,

I want my guns back.  My ex-wife filed a 50B for domestic violence that never happened, and the judge took my guns away.  The incident, she fabricated, didn’t even involve a gun.  The year is up, so how do I get my guns back?

 

Carolyn Answers…

Unless the court extends the Domestic Violence Protective Order (DVPO) for your ex after the year is up, you are likely entitled to get your guns back.  The Sheriff of Guilford County is holding your guns (assuming you are from Guilford). You must file a Motion to the court and request a time for a hearing. You need to do this quickly after the year is up; do not wait. You only have 90 days.

At the hearing, the court must determine whether there are any other laws that prevent you from owning or possessing firearms. For example, if you are a felon or if you are on probation that precludes firearms, you will not get your guns back from the judge. Otherwise, your guns will likely be returned with an order of the District Court granting you the right to the return of your guns from the Sheriff.

One factor that bothers me about your fact pattern is that the court must make certain findings to remove guns from a defendant when the court grants a DVPO.  Nothing you mention in your question suggests that the judge should have removed your guns. I think this is a misunderstood point under the domestic violence law. Just because the court grants a DVPO doesn’t automatically mean that the court can remove a defendant’s firearms. Let’s look at when the judge can remove firearms in granting a DVPO.

North Carolina General Statutes Section 50B-3.1(a), enumerates four situations or factors. The judge specifically must find one of the four factors to order the defendant to surrender firearms to the Sheriff.  These factors are as follows:

  • 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.
  • Threats to seriously injure or kill the aggrieved party or minor child by the defendant.
  • Threats to commit suicide by the defendant.
  • Serious injuries inflicted upon the aggrieved party or minor child by the defendant.

In the recent case of Griffin v. Reichard, the North Carolina Court of Appeals reversed a New Hanover County District Court Judge for ordering the surrender of firearms in a DVPO without the findings of one of the specific four factors. The Court of Appeals discussed in detail that removal of a defendant’s firearms cannot be part of the general relief of granting a DVPO, but must have more findings specifically related to the firearms.

 

Dear Carolyn,

I read your column on July 9 concerning guns and 50Bs—the one where the guy wanted his guns back after the year of the 50B was up.  You told him to file a motion within 90 days.  My questions is:  what happens to the guns collected in 50Bs when the motion for return of the gun is not filed?

– Gun Owner

 

Dear Gun Owner,

The Sheriff asks the court for a disposition order for the gun.  The court has several options for the disposition of the guns collected by the Sheriff in a 50B and unclaimed after the 50B expires pursuant to North Carolina General Statutes Section 14-269.1.  At the court’s direction,

  • The Sheriff will destroy the gun if there is no serial number;
  • The Sheriff will destroy the gun if the gun is unsafe;
  • The Sheriff will turn over to N.C. State Crime Lab for the gun to be in the weapon reference library; or
  • The Sheriff will turn over the weapon to the N.C. Justice Academy.

Thanks for reading Ask Carolyn.

 

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The first half of this blog is revised from an excerpt of Ask Carolyn 2, available now on Kindle. The second half is revised from a previous Ask Carolyn in The Rhino Times.

Send your questions on family law and divorce matters to “Ask Carolyn…” at askcarolyn@rhinotimes.com, or P.O. Box 9023, Greensboro, NC  27427.  Please do not put identifying information in your questions. 

Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation.  The column also uses hypothetical questions.  A subtle fact in your unique case may determine the legal advice you need in your unique case.  Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”

Updated 4/10/18.