This website is intended to serve as an online resource pertaining to drafting and enforcing Tribal protection orders. Note that each tribe is unique with respect to Tribal constitutions and codes. The reader should consult the specific Tribal constitution and Tribal codes for additional requirements regarding drafting and enforcement of Tribal protection orders.
The use of a firearm in domestic violence incidents is associated with a dramatically increased risk of lethality.[1] Firearms are used to commit more than half of all intimate partner homicides in the United States.[2] Tribal codes can provide a legal framework to reduce the risk of domestic violence-related firearm injury and fatality by disarming certain domestic abusers.
This section focuses on two Federal firearm statutes related to protection orders including the protection order language needed to activate the Federal firearms prohibitions related to protection orders.
- What Federal statutes relate to possession of a firearm and certain protection orders?
There are generally two Federal statutes that relate to possession of a firearm and/or ammunition while subject to a qualifying protection order:
- It is a Federal crime to possess a firearm and/or ammunition while subject to a valid qualifying protection order. 18 USC 922(g)(8). The exception to this possession is found at 18 USC 925 which sets forth this restriction does not apply to firearms issued by government agencies to a law enforcement officer or military personnel so long as the individual is on duty.
- It is a Federal crime to possess a firearm and/or ammunition after the conviction of a qualifying state misdemeanor crime of domestic violence. 18 USC 922(g)(9). Importantly, there is no official use exemption for law enforcement and military personnel as was set forth in 18 USC 922(g)(8)
- What language must be present in the protection order to activate the Federal firearm restrictions of 18 USC 922(g)(8)?
To engage the Federal firearms restrictions of 18 USC 922(g)(8) the protection order must contain certain language. The person must be subject to a court order that:
- Was issued after a hearing which the defendant had notice and opportunity to be heard;
- The order restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner, or the order restrains the defendant from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
Note that Tribal court’s wishing to activate the Federal firearms restrictions under this statute must carefully make findings and note a-c of the relevant provisions above in the protection order
- What language must be present in the protection order to trigger the Federal firearm restrictions of 18 USC 922(g)(9)?
To engage the Federal firearms restrictions of 18 USC 922(g)(9) after conviction of a domestic violence misdemeanor the defendant must have been convicted, in any court, of a misdemeanor crime of domestic violence.
A misdemeanor crime of domestic violence includes:
- an offense that
- is a misdemeanor under Federal, State, or Tribal law;
- and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon,
- committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.
Note that a misdemeanor crime of domestic violence requires:
- the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and
- in the case of a prosecution for an offense described in this paragraph for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either
- was tried by a jury, or
- the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise.
- A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.
Tribal courts wishing to trigger the Federal firearms restrictions of this statute must carefully note that (a)(i-ii) and (b) above have been satisfied in the language of relevant Tribal court conviction documents including plea agreements and documents of conviction.
A note on the United States v. Rahimi, 2024 WL 3074728 (U.S. 2024). The Supreme Court upheld the constitutionality of §922(g)(8) discussed above. Tribal courts should document the defendant receiving notice of the underlying protection order and make a find that the defendant posed a credible threat to the physical safety of other. Note that the Court did not rule on the other provision of §922(g)(8), in italics below, but it seems reasonable a similar analysis would apply. For more information, see Understanding the Supreme Court’s Decision in United States v. Rahimi.
The person must be subject to a court order that:
- Was issued after a hearing which the defendant had notice and opportunity to be heard;
- The order restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner, or the order restrains the defendant from engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
- includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
For useful information on this issue please see ATF Protection Orders and Firearms Prohibitions and ATF What is a Misdemeanor Crime of Domestic Violence?
[1] Jacquelyn Campbell et al., Risk Factors for Femicide in Abusive Relationships: Results from a Multisite Case Control Study, 93 Am. J. Pub. Health 1089, 1092 (2003) (finding that that when a firearm was used in the most severe incident of domestic violence the odds of it ending in homicide were 41 times that of when a firearm was not used).); Emiko Petrosky, et al., Racial and Ethnic Differences in Homicides of Adult Women and the Role of Intimate Partner Violence in the United States 2013-2014 (CDC 2017)
[2] Emma E. Fridel and James Alan Fox, Gender Differences in Patterns and Trends in U.S. Homicide, 1976 2017, 6 Violence and Gender 1, 27-36 (2019); Neil Websdale et al., The Domestic Violence Fatality Review Clearinghouse: Introduction To A New National Data System With a Focus On Firearms, 25 INJ EPIDEMIOL. 6 (2019).