Guideline 4:03
All ex parte orders must include
- an order for the “immediate suspension and surrender of any license to carry or firearm identification card that the defendant may hold” and
- an order that the defendant surrender to the police “all firearms and ammunition that the defendant then controls, owns or possesses.” G.L. c. 258E, § 4A.
As defined in G.L. c. 140, § 121, a firearm includes in its definition, “a stun gun, pistol, revolver, rifle, shotgun, sawed-off shotgun, large capacity firearm, assault-style firearm and machine gun.”
This provision must be included in any ex parte order regardless of whether there is any evidence presented that the defendant has a firearm identification card or license to carry or possesses any firearms or ammunition. Upon service of an ex parte order issued under c. 258E, law enforcement officials must immediately take possession of all firearms or ammunition, and any license to carry or firearm identification card in the control or possession of the defendant. G.L. c. 258E, § 4A.
Commentary
Chapter 258E requires the judge to issue a firearm surrender order upon a finding of a substantial likelihood of immediate danger of harassment. Since the standard to issue an ex parte order requires a finding of a substantial likelihood of an immediate danger of harassment, an ex parte c. 258E must include an order that the defendant surrender any firearms, ammunition, or firearms licenses (FID, LTC). Thus, the box ordering surrender must be checked on all ex parte orders. The judge should then determine whether there is a credible threat to the physical safety of the plaintiff, and, if so, indicate that finding on the order. See United States v. Rahimi, 144 S. Ct. 889, 1901 (2024) (upholding federal law barring an individual from possessing a firearm if they are the subject of a restraining order that includes a finding that they pose a “credible threat to the physical safety” of a protected person). The Rahimi court declined to address whether a finding of a credible threat to physical safety is required to order a firearm surrender. Id. at 1900.
The law further requires that whenever a harassment prevention order includes a firearm surrender order, the court must transmit a report containing the defendant’s name and identifying information and a statement describing the defendant’s alleged conduct and relationship to the plaintiff to the Department of Criminal Justice Information System (DCJIS). See G.L. c. 258E, § 4C. Upon expiration of any such order, the court must notify DCJIS of the expiration of the order. DCJIS is then required to notify the US Attorney General of the change. See id. This notification is accomplished through the data entry by court staff.
State law requires revocation of firearms licenses and precludes issuance of firearms licenses to persons subject to c. 258E orders. See G.L. c. 140, §§ 121F (j)(iii)(D) & (u)(1). This means, as a practical matter, that individuals subject to c. 258E orders are prohibited by state law from possessing firearms, and any license to carry firearms or firearms identification card must be revoked or suspended by the licensing authority. See id. See also G.L. c. 140, § 129B (a) & § 131 (d).
When the judge learns from the plaintiff in the course of a hearing that the defendant possesses firearms or ammunition, any information regarding the number and type of firearms and the location where they are kept should be memorialized on the order itself and conveyed to the law enforcement officials responsible for serving the order on the defendant. This notation will assist police officers in implementing the requirements of the order safely and effectively.
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| Last updated: | October 20, 2025 |
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