F.S. 790.233 – Gun Possession After Restraining Order

As an experienced Fort Lauderdale criminal defense attorney, I frequently represent clients facing firearms-related charges. One statute that often comes into play is Florida Statute 790.233, which prohibits individuals subject to specific types of injunctions from possessing firearms or ammunition. A conviction can result in serious legal consequences, including jail time or even prison time, fines and the potential for a permanent criminal record.

Florida Statute 790.233 makes it illegal for individuals who are subject to a final domestic violence, stalking, or repeat violence injunction to possess a firearm or ammunition. The law is designed to enhance protections for victims of domestic abuse, stalking, and violence by restricting access to firearms for individuals who pose a potential risk under an active injunction.

As noted in F.S. 790.233(1), respondents of injunctions must, upon service of that injunction:

• Surrender ALL firearms and ammunition to police.
• Obtain a receipt of surrender.
• File that receipt of surrender with the court. 

A “firearm” in this case is any weapon, including a starter gun, that will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. It excludes antique firearms made prior to 1918 and for which ammunition is not manufactured or readily accessible in the U.S.

• Prohibition on Firearms and Ammunition: Anyone subject to a final injunction for protection against domestic violence, stalking, or repeat violence cannot possess or control a firearm or ammunition.
• Injunction Types: The law specifically applies to domestic violence injunctions, stalking injunctions, and repeat violence injunctions. If the injunction is temporary, the restriction may not apply unless explicitly stated in the order.
• Criminal Penalties: A violation of F.S. 790.233 is a first-degree misdemeanor, punishable by up to one year in jail, 12 months of probation, and/or a $1,000 fine. However, if a firearm is used in the commission of another crime, penalties could escalate significantly. Just one “level up,” so-to-speak, would be a third-degree felony, which carries a maximum penalty of 5 years in a Florida state prison. 

A “firearm” in this case is any weapon, including a starter gun, that will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. It excludes antique firearms made prior to 1918 and for which ammunition is not manufactured or readily accessible in the U.S.

Surrender of firearms is not optional when you’ve been served any injunction for domestic violence OR a final injunction for stalking. It’s mandatory. However, as noted in the 1996 case of Blaylock v. Zeller, the court MAY order a surrender of firearms order as part of the injunction case in a repeat, dating or sexual violence case, so long as the issue was presented or discussed during the hearing. 

If you have received a temporary injunction for protection against stalking without specific findings, the court can’t prohibit you from possessing firearms and ammunition, as noted in the 2021 case of Dean v. Bevis. 

It’s worth noting there was a federal appellate ruling in 2021 that held it was unconstitutional under the 2nd Amendment of the U.S. Constitution to prohibit someone subject to a domestic violence restraining order from possessing a firearm. However, the U.S. Supreme Court in U.S. v. Rahimi reversed that ruling, finding such rules are constitutional under the 2nd Amendment.

It is noted in the statute that Florida lawmakers intended this and other laws restricting possession of firearms and ammunition to be consistent with federal law. As such, these restrictions don’t apply to a state or local law enforcement officer with active certification who receives or possesses a firearm or ammunition that is required for performing official duties on behalf of the officer’s employer – unless doing so would otherwise be prohibited by the employer. It also doesn’t apply to active military members. However, federal agencies, such as the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF), have found that this exemption applies only to on-duty possession of service weapons. 

The Florida Department of Law Enforcement (FDLE) is required to perform a check for federal and state disqualifiers, such as injunctions and domestic violence convictions, prior to authorizing the purchase of a firearm. However, this applies only to purchases from licensed firearm dealers. Such checks aren’t required for private sales. That doesn’t mean it’s legal. It’s incumbent on the person who is buying or possessing the firearm to know whether they’re lawfully allowed to do so.

If you are charged with violating F.S. 790.233, there are several possible defenses that may be available depending on the facts of your case. A strong defense with the help of a Fort Lauderdale criminal defense lawyer can help defendants potentially reduce or dismiss the charges, avoid jail time, or mitigate the penalties.

One possible defense is that the defendant did not know they were subject to an injunction. If the defendant was never properly served with the final injunction, or if there was a clerical error and the defendant never received proper notice, it may be difficult for the prosecution to prove that the defendant had knowledge of the injunction’s existence.

If the defendant was unaware that the injunction barred them from possessing firearms or ammunition, this could serve as a strong defense.

Another defense is that the injunction had expired or was no longer in effect at the time of the alleged offense. Final injunctions are often issued for specific time periods, and if the injunction had expired or was lifted by a court order before the defendant allegedly possessed the firearm, the prosecution would not be able to meet its burden of proof.

If the prosecution cannot prove that the defendant had possession or control of the firearm or ammunition, this could result in the charges being dismissed. For example, if a firearm was found in a shared home or vehicle and the defendant did not know it was there or did not have control over it, they cannot be found guilty under this statute.

This defense could also be used in situations where the firearm belongs to another occupant of the home or vehicle and the defendant did not have access to it.

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures. If law enforcement discovered the firearm or ammunition during an illegal search, the evidence may be excluded from the case. This could make it difficult for the prosecution to prove possession and lead to the dismissal of the charges.

Common examples of unlawful searches include searches conducted without a warrant, searches that exceed the scope of the warrant, or searches without proper probable cause.

In rare cases, a person’s firearm rights may have been restored by a court after a previous conviction or injunction. If the defendant’s right to own or possess firearms has been lawfully restored, this could serve as a defense to charges under F.S. 790.233.

If you have been charged with a gun crime or weapons offense in South Florida, contact the Fort Lauderdale Criminal Defense Lawyers at The Ansara Law Firm by calling (954) 761-4011.