Federal and State Firearm Prohibitions – Protection Order oregon

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Bench Sheet: Protective Orders/ Firearm Prohibition

Updated 12/20/21

FEDERAL AND STATE FIREARM PROHIBITIONS – PROTECTION ORDER

OREGON BENCH SHEET

Updated 12/20/2021

OVERVIEW

Applicable to Respondents Subject to Protection Order: Persons who are subject to qualifying protective

orders are prohibited under state and federal law from purchasing or possessing any firearm or ammunition.

ORS 166.255, 18 USC 924(a)(2)

Qualifying Order: (ORS 166.255) An order that restrains a person from stalking, intimidating, molesting or

menacing a child, family or household member of the respondent and includes a finding that the person represents

a credible threat to the physical safety of family or household member of the person, a child of the family or

household member of the person, or a child of the person; and that was issued or continued after a hearing for

which the person had:

o Actual notice during which the respondent had an opportunity to be heard or

o Received noticed of the opportunity to request a hearing and either

• Requested a hearing but did not attend or

• Withdrew the request before the hearing occurred or

• Did not request a hearing during the period in which the opportunity to do so was available.

Duration of Prohibition: This prohibition is in effect while the person is subject to the order.

Official Use Exemption: Transporting, shipping, receiving, possessing, or importing any firearm or ammunition

imported for, sold or shipped to or issued for the use of the United States Government or any federal department

or agency, or any state or department, agency or political subdivision of a state. ORS 166.255(2)

Violation: Violation of this prohibition is a state and federal offense punishable by a fine and/or imprisonment. 18

USC 924(a)(2); ORS 166.255, ORS 166.250(5)

Court Obligations When Granting a Qualifying Protective Order: ORS 166.256

o When a respondent becomes subject to a qualifying order, the court shall:

• Indicate in the order that the respondent is prohibited from possessing firearms or ammunition

while the order is in effect; and

• Ensure that the respondent is subject to an additional order that requires that the respondent

transfer all firearms or ammunition in the respondent’s possession within 24 hours of the court’s

order in accordance with ORS 166.256(2) and file a declaration with the court and district

attorney within two judicial days of the court’s order

o If the respondent becomes subject to the firearm prohibition order while the respondent is present in

court, the court shall:

• Inform the respondent orally and in writing that the respondent is prohibited from possessing

firearms or ammunition;

• Order in writing that the respondent transfer all firearms or ammunition in the respondent’s

possession within 24 hours of the court’s order in accordance with ORS 166.256(2); and

• Order that the respondent file a declaration with the court and district attorney within two

judicial days of the court’s order

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Bench Sheet: Protective Orders/ Firearm Prohibition

Updated 12/20/21

FIREARM/ AMMUNITION PROHIBITIONS

WHEN SUBJECT TO QUALIFYING PROTECTIVE ORDER

Person Subject to Qualifying Protective Order

(State and Federal)

FEDERAL 18 USC §922(g)(8)

STATE ORS 166.255

“Qualifying Protective Order”

Qualifying Protective Order

A person is the subject of a court order that:

- Was issued after a hearing for which the person

had actual notice and opportunity to be heard;

AND

- The order restrains the person from stalking,

intimidating, molesting, or menacing a person

or a family or household member of the person

or a child of the person;

AND

- Includes a finding that the person is a credible

threat to the physical safety of a family or

household member of the person, a child of a

family or household member of the person or a

child of the person.

Qualifying Protective Order

A person is the subject of a court order that:

- Was issued or continued after a hearing for

which the person had actual notice and

during the course of which that person had

an opportunity to be heard;

- Was issued, continued, or remains in effect,

by order or operation of law, after the person

received notice of the opportunity to request

a hearing in which to be heard on the order

and either requested a hearing but did not

attend the hearing or withdrew the request

before the hearing;

- Was issued, continued, or remains in effect,

by order or operation of law, after the person

received notice of the opportunity to request

a hearing in which to be heard on the order

and did not request a hearing during the time

period in which the opportunity was

available;

AND

- The order restrains the person from stalking,

intimidating, molesting, or menacing a

family or household member of the person, a

child of a family or household member of the

person or a child of the person;

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Bench Sheet: Protective Orders/ Firearm Prohibition

Updated 12/20/21

AND

- Includes a finding that the person represents

a credible threat to the physical safety of a

family or household member of the person, a

child of a family or household member of the

person or a child of the person.

Specific Kinds of “Qualifying Orders” Under

Federal Law

Federal law does not specifically enumerate certain

kinds of orders as “qualifying orders,” but rather only

that the requirements listed above are met.

Specific Kinds of “Qualifying Orders” Under

Oregon Law

ORS 166.255 does not specifically designate which

types of court orders trigger a firearm prohibition.

Orders issued under Oregon law that always qualify

based on findings inherent in the order:

- Family Abuse Prevention Act Restraining

Orders issued under ORS 107.005 et seq.

- Extreme Risk Protection Order issued under

ORS 166.527

Orders issued under Oregon law which MAY qualify

include, but are not limited to:

- Stalking Protective Orders issued under ORS

30.866 or ORS 163.738

- Elderly Persons or Persons with a Disability

Protective Order issued under ORS 124.010

Official Use Exception Under Federal Law

18 USC §925(a)(1)

There is an “official use exception” under federal law.

The prohibition against possession of firearms or

ammunition does not apply to transporting, shipping,

receiving, possessing, or importing any firearm or

ammunition imported for, sold or shipped to or issued

for the use of the United States Government or any

federal department or agency, or any state or

department, agency or political subdivision of a state.

Official Use Exception Under State Law

ORS 166.255(2); ORS 166.260

There is an “official use exception” under Oregon

law that states that the firearm or ammunition

prohibition does not apply with respect to

transporting, shipping, receiving, possessing, or

importing any firearm or ammunition imported for,

sold or shipped to or issued for the use of the United

States Government or any federal department or

agency, or any state or department, agency or

political subdivision of a state.

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Bench Sheet: Protective Orders/ Firearm Prohibition

Updated 12/20/21

Duration of Prohibition

18 USC §922(g)(8)

The prohibition to possess firearms or ammunitions

applies while the protective order is in effect.

Upon expiration or termination of an order, the

prohibition on firearms/ammunition is no longer in

effect.

Duration of Prohibition

ORS 166.255(1)(a); 166.256 (1)(a)(A), (7)

The prohibition to possess firearms or ammunitions

applies while the protective order is in effect.

Upon expiration or termination of an order, the

prohibition on firearms/ammunition is no longer in

effect.

Court Obligation Re: Notice of Firearm and Ammunition Prohibition and

Court-Ordered Dispossession Order

Court Obligation: Notice of Prohibition and Order

to Dispossess

No specific obligations are outlined under federal law

regarding notice or dispossession order.

Court Obligation: Notice of Prohibition and

Order to Dispossess

ORS 166.256(1)(a), ORS 166.255

When a respondent becomes subject to a qualifying

order, the court shall:

- Indicate in the order that the respondent is

prohibited from possessing firearms or

ammunition while the order is in effect; and

- Ensure that the respondent is subject to an

additional order that requires that the

respondent transfer all firearms or

ammunition in the respondent’s possession

within 24 hours of the court’s order in

accordance with ORS 166.256(2) and file a

declaration with the court and district

attorney within two judicial days of the

court’s order.

If the respondent becomes subject to the firearm

prohibition order while the respondent is present in

court, the court shall:

- Inform the respondent orally and in writing

that the respondent is prohibited from

possessing firearms or ammunition;

- Order in writing that the respondent transfer

all firearms or ammunition in the

respondent’s possession within 24 hours of

the court’s order in accordance with ORS

166.256(2); and

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Bench Sheet: Protective Orders/ Firearm Prohibition

Updated 12/20/21

- Order that the respondent file a declaration

with the court and district attorney within

two judicial days of the court’s order

Court Obligation: Written Order of Dispossession

There are no specific obligations outlined under federal

law

Court Obligation: Written Order of Dispossession

ORS 166.256

The court must order in writing that respondent

transfer all firearms and ammunition in the person’s

possession and order that the respondent file a

declaration as described below.

Within 24 hours of being prohibited from

possessing firearms and ammunition,

respondent must:

- Surrender all firearms or ammunition in

defendant’s possession to a local law

enforcement agency, a gun dealer; or a third

party who does not reside with the

respondent; and

- Obtain a proof of transfer of the firearms or

ammunition.

Court Obligation: Order to File Declaration

ORS 155.256(4)

Within two judicial (business) days of being

prohibited from possessing firearms and ammunition,

the respondent must file with the court and the

district attorney’s office a declaration (under penalty

of perjury) that:

- All firearms or ammunition in the

respondent’s possession have been

transferred to a law enforcement agency, gun

dealer, or eligible third party;

- The respondent has no firearms or

ammunition; or

The respondent is asserting the constitutional

right against self-incrimination.

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Bench Sheet: Protective Orders/ Firearm Prohibition

Updated 12/20/21

Possession “Grace Period”

There is no “grace period” under federal law. The

prohibition attaches as soon as the requirements of a

qualifying protective order are met.

Possession “Grace Period”

ORS 166.256(6)

A person who is subject to the firearm or ammunition

prohibition and is in possession of a firearm or

ammunition in violation of ORS 166.255(1)(b) or (c)

may not be prosecuted under ORS 166.250 if:

- The respondent is in possession of the court

order prohibiting possession of firearms/

ammunition that went into effect or was

issued within the previous 24 hours;

- The firearm is unloaded; and

- The respondent is transporting the firearm or

ammunition to a law enforcement agency,

gun dealer or third party for transfer.

Failure to File Declaration

Because there is no federal obligation to file a

declaration, there is no penalty imposed under federal

law for failure to do so.

Failure to File Declaration

ORS 166.256(8)

If the respondent does not file a declaration described

above, the district attorney may commence contempt

proceedings under ORS 33.015 to 33.155.