Firearm Surrender Under a Massachusetts 258E Harassment Prevention Order

A judge who issues a harassment prevention order under G.L. c. 258E can suspend a firearms license and order the surrender of every firearm the defendant owns, controls, or possesses. The judge can suspend the license and order the surrender on the day the order issues, before the defendant has been heard, and without any criminal charge.

The judge can order the suspension and surrender where the plaintiff is a neighbor, a coworker, a landlord, a former friend, or a person the defendant has only ever encountered online. Chapter 258E requires no family or household relationship, which is the principal difference from a restraining order (abuse prevention order) under G.L. c. 209A.

The Statutes Governing Firearm Surrender Under a Harassment Prevention Order

Two sections of chapter 258E govern firearm surrender. G.L. c. 258E, § 4A applies at the ex parte stage, when the court issues a temporary or emergency order. G.L. c. 258E, § 4B applies after the defendant has had notice. Section 4B also states the standard on a defendant’s petition for review. The two sections set different standards, so the judge decides anew at the § 4B hearing whether to order or continue the surrender, rather than relying on the ex parte finding.

Sections 4A, 4B, and 4C of chapter 258E provide the authority for firearm surrender orders. J.C. v. J.H., 92 Mass. App. Ct. 224 (2017), which vacated a surrender provision from a 258E harassment prevention order, is superseded by statute on that point.

Neither surrender provision appears in G.L. c. 258E, § 3, which lists the forms of relief a judge may order. The judge may order the defendant to refrain from abuse or harassment, to refrain from contact, to remain away from a household or workplace, and to pay monetary compensation. Sections 4A and 4B state the suspension and surrender requirements separately. The judge orders the suspension and surrender once the judge makes the statutory finding.

What Section 4A Requires at the Ex Parte Stage

Upon issuance of a temporary or emergency order under G.L. c. 258E, §§ 5 or 6, the court shall issue two further orders if the plaintiff demonstrates a substantial likelihood of immediate danger of harassment. The court shall order the immediate suspension and surrender of any license to carry or firearm identification card the defendant may hold. The court shall also order the defendant to surrender all firearms and ammunition the defendant then controls, owns, or possesses.

The statute says that the judge “shall” order the surrender. The judge has no discretion to withhold the surrender order after making the finding. The statute also provides that law enforcement officials, upon service of the order, shall immediately take possession of the licenses, firearms, and ammunition. Notice of the surrender requirement is appended to the order and served with it under G.L. c. 258E, § 9.

The finding required for the surrender order does not add a new requirement for the plaintiff. The standard for issuing the ex parte order itself under § 5 is the same substantial likelihood of immediate danger of harassment, word for word. A plaintiff who obtains an ex parte 258E harassment prevention order has already made the § 4A showing. The surrender order is therefore effectively automatic at the ex parte stage.

Two features of the ex parte surrender order affect the defendant. The first feature is timing. An ex parte order issues without the defendant present, so the defendant usually learns of the surrender requirement when the police arrive to serve the order. The second feature is scope. The order covers everything the defendant controls, owns, or possesses, which is broader than what the defendant keeps at home. Under G.L. c. 140, § 121, the word firearm includes stun guns along with pistols, revolvers, rifles, and shotguns.

What the Trial Court Guidelines Require in Every Ex Parte Order

The Trial Court’s Guideline 4:03 for 258E harassment prevention order proceedings governs ex parte surrender orders. The guideline directs that the suspension and surrender provision be included in every ex parte order. The direction in Guideline 4:03 applies regardless of whether any evidence was presented that the defendant holds a firearm identification card or license to carry, or possesses any firearms or ammunition at all. The commentary to Guideline 4:03 states that the ex parte standard and the surrender standard are the same finding and that the box ordering surrender is therefore checked on all ex parte orders.

A defendant who has never owned a firearm can therefore still receive an order commanding surrender. For a defendant who has never owned a firearm, the surrender provision is standard text in the order rather than a finding about the particular defendant.

A defendant who has no license, card, firearm, or ammunition to surrender does not need to take any action under the surrender provision. A defendant who does own firearms must obey the surrender provision as a binding court order.

The commentary also directs judges to make a second, separate determination of whether the record shows a credible threat to the physical safety of the plaintiff. The commentary directs a judge who finds a credible threat to indicate that finding on the order.

The practice of recording a credible-threat finding is based on United States v. Rahimi, 602 U.S. 680 (2024). In Rahimi the Supreme Court upheld the federal prohibition for a person subject to a domestic violence restraining order containing a credible-threat finding. The Court declined to decide whether a credible-threat finding is constitutionally required before a court may order surrender.

Chapter 258E requires only a harassment finding. Harassment under chapter 258E can be based on intimidation or property damage. After Rahimi, the constitutional question remains open for a surrender order that is based on no finding about physical safety at all. The defense can raise the constitutional question.

A companion guideline, Guideline 6:01 for 258E harassment prevention order proceedings, governs surrender orders at the after-notice stage.

What Section 4B Requires After Notice

Section 4B governs the after-notice stage, when the court continues or modifies an order under G.L. c. 258E, § 5, or acts on a defendant’s petition for review under § 4A. At the after-notice stage, the court shall order or continue the suspension and surrender if the court determines that the return of the license, the firearms, or the ammunition presents a likelihood of harassment to the plaintiff. The suspension and surrender continue as long as the harassment prevention order remains in effect.

How the Ex Parte Standard and the After-Notice Standard Differ

At the ex parte stage the plaintiff must demonstrate a substantial likelihood of immediate danger of harassment. The judge issues the ex parte order on the same showing, so the judge orders the surrender as a matter of course. After notice, the court decides on a contested record whether returning the license, the firearms, or the ammunition presents a likelihood of harassment to the plaintiff.

The after-notice hearing is where the firearms question is litigated. The defendant is present, may be represented by counsel, may cross-examine witnesses, and may present evidence about the firearms specifically. The defendant’s evidence can show how the firearms are stored, why the defendant holds them, and what the alleged harassment did and did not involve.

A defendant who defeats the ex parte findings at the two-party hearing has not necessarily resolved the surrender question, because § 4B requires a separate determination about the return of the license, the firearms, or the ammunition. Counsel who argues the harassment elements and says nothing about the firearms leaves the § 4B return question unanswered.

Storage, Transfer, and the One-Year Auction Deadline

Surrendered firearms and ammunition are handled under G.L. c. 140, § 129D. The section gives the owner one year to transfer the weapons.

Section 129D gives the owner, or the owner’s legal representative, the right to transfer the firearms and ammunition at any time up to one year after the surrender. The transferee may be a licensed dealer or a person legally permitted to purchase or take possession of the firearms and ammunition. The § 129D transfer right applies notwithstanding the limits on private transfers in § 128A.

The transferee must affirm in writing that the property will not be transferred back to the former owner. Property that may be evidence in a pending criminal investigation cannot be transferred. On written notice from both the owner and the transferee, the licensing authority delivers the property within ten days.

Chapter 258E adds a proviso of its own. The proviso states that nothing in §§ 4A or 4B authorizes the official holding surrendered property to transfer the property to anyone other than a licensed dealer. The relationship between the chapter 258E proviso and the owner’s § 129D transfer right is unsettled.

Read in context, the proviso limits the transfers that the law enforcement official may make under chapter 258E. The proviso does not say that the owner loses the § 129D transfer right. Counsel should invoke the § 129D right expressly and in writing, name the proposed transferee, and ask the department to state its position on the transfer.

The licensing authority may move surrendered property to a federally licensed dealer operating a bonded warehouse. The owner is liable to that dealer, not to the police, for reasonable storage charges. The property in dealer storage may be sold at auction once the storage charges are ninety days in arrears. The surplus after charges and costs is returned to the owner.

The one-year auction deadline is harder to manage, because it continues to run while the order is in effect. Firearms and ammunition not disposed of within one year of surrender shall be sold at public auction by the colonel of the state police. The proceeds go to the General Fund. The owner receives nothing from that auction.

A 258E harassment prevention order can remain in effect for a year under § 3(d) and can then be extended or made permanent. A defendant who simply waits for the order to end can therefore lose the property outright and receive nothing. The defendant should direct a § 129D transfer well before the year ends.

The Penalty for Failing to Surrender

A violation of a surrender order under § 4A or § 4B is punishable by a fine of not more than $5,000, by imprisonment for not more than two and one half years in a house of correction, or both. The penalty for violating a surrender order is separate from the penalty for the offense of violating the underlying order under G.L. c. 258E, § 9. A defendant who keeps one firearm back, or who moves firearms to a relative’s house instead of surrendering them, can be charged with violating the surrender order in addition to any other charge.

Review of a Surrender Order

A defendant aggrieved by a surrender order under § 4A may petition the court for review. The court must hear the petition not later than 10 court business days after the court receives notice of the petition. Under the statute, the petition may be heard together with the ten-day return date on the underlying order. In practice, the petition and the return date are usually consolidated. The review is decided under the § 4B return standard.

The faster remedy is the expedited employment hearing. On an affidavit that a firearm or ammunition is required in the performance of the defendant’s employment, and a request for an expedited hearing, the court shall hold the hearing within two business days. The hearing is limited to the surrender and suspension issue. The expedited hearing separates the firearms question from the merits of the harassment allegation. For a police officer, a corrections officer, a security professional, or anyone else armed for work, the expedited hearing is the remedy that protects the job.

A defendant should consider filing the petition if the defendant’s livelihood depends on a license. A defendant should also consider filing the petition if storage charges or the one-year auction could cost the defendant the value of a collection, or if the plaintiff alleged nothing about weapons at all.

How Surrender Under Chapter 258E Differs From a 209A Restraining Order, an Extreme Risk Protection Order, and a Criminal Charge

Massachusetts courts order firearm surrender under three other procedures. Clients frequently confuse those procedures with surrender under chapter 258E.

G.L. c. 209A, §§ 3B and 3C are the direct parallels. Section 3B corresponds to § 4A at the ex parte stage, and § 3C corresponds to § 4B after notice. Sections 3B and 3C state the same standards in terms of abuse rather than harassment. The relationship prerequisite is the difference between the two chapters. A 209A restraining order requires that the parties be family or household members.

A 258E harassment prevention order requires no relationship at all. The storage rule under G.L. c. 140, § 129D is the same under both chapters. The firm’s article on firearms after a domestic violence charge explains what happens to firearms after a domestic violence allegation.

The extreme risk protection order is a separate proceeding. The petition is filed under G.L. c. 140, § 131R. The order issues after a hearing under § 131S on a finding by a preponderance of the evidence that the respondent poses a risk of causing bodily injury to self or others by possessing firearms. Section 131T provides for the emergency version of the order. The petition form itself asks whether a 209A restraining order or a 258E harassment prevention order is already in place.

§ 131S(i) contains an express procedure for the return of surrendered property when the order ends. Chapter 258E contains no return provision. The storage provisions of § 129D and the licensing statutes govern what happens to the property after a 258E harassment prevention order ends. The licensing authority applies those provisions when the person seeks return of the firearms.

A criminal charge is a separate proceeding from the civil orders. A defendant facing a Massachusetts firearms charge or a charge of violating an order can be subject to conditions of release and to licensing consequences. The conditions of release and the licensing consequences are imposed because of the criminal case, not because of the civil order. The two cases proceed on separate schedules and are decided under different standards of proof.

The State Licensing Prohibition, Which Applies to Every Defendant

Most defendants miss the consequence that state law imposes whether or not any federal statute applies. Under G.L. c. 140, § 121F(j), a person currently subject to a permanent or temporary harassment prevention order under chapter 258E is a prohibited person. The state law prohibition requires no relationship to the plaintiff and no surrender order. The 258E harassment prevention order itself makes the defendant a prohibited person.

Under § 121F(u)(1), the licensing authority shall revoke or suspend any license or card once the holder becomes a prohibited person. The Trial Court’s own guideline commentary states that a person subject to a 258E harassment prevention order is prohibited by state law from possessing firearms while the order is in effect.

The Federal Prohibition, Element by Element

18 U.S.C. § 922(g)(8) prohibits firearm possession by a person subject to a qualifying court order. The statute has three elements, all of which must be met. The order must have issued after a hearing of which the person had actual notice and an opportunity to participate.

The order must restrain the person from harassing, stalking, or threatening an intimate partner or a child of the intimate partner or of the person. Restraint of other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child also qualifies. The order must also satisfy one of two findings requirements.

The first alternative is a finding in the order that the person represents a credible threat to the physical safety of the intimate partner or child. The second alternative is a term of the order that explicitly prohibits the use, attempted use, or threatened use of physical force against the intimate partner or child.

Intimate partner is a defined term. Under 18 U.S.C. § 921(a)(32), the term means a spouse, a former spouse, a co-parent of the person’s child, or a current or former cohabitant. A dating partner who never lived with the defendant and shares no child is outside the definition. The misdemeanor crime of domestic violence provisions, § 921(a)(33) and § 922(g)(9), cover a dating relationship. Section 922(g)(8) does not cover a dating relationship.

The federal analysis ends at the relationship element in the ordinary case under chapter 258E, where the plaintiff is a neighbor, a coworker, a classmate, or an online antagonist. The order does not restrain conduct toward an intimate partner, so § 922(g)(8) does not apply, on any theory and regardless of what findings the order contains.

A 258E harassment prevention order can satisfy the federal statute where the parties are in fact intimate partners. Chapter 258E has no relationship prerequisite, so a former spouse or former cohabitant may seek an order under chapter 258E.

Even for intimate partners, each of the three federal elements must be met separately. An ex parte order can never satisfy the hearing element, so no § 4A-stage order qualifies. The standard terms of a 258E harassment prevention order are to refrain from harassment, to have no contact, and to stay away. None of those standard terms is an explicit prohibition on the use of physical force. The third element therefore depends on whether the judge made a credible-threat finding. Guideline 4:03 directs judges to consider and record a credible-threat finding.

State law imposes two consequences regardless of the federal analysis. The state licensing prohibition described above applies to every defendant subject to a 258E harassment prevention order. Under G.L. c. 258E, § 4C, every § 4A or § 4B surrender order also generates a report to the Department of Criminal Justice Information Services. The report contains the defendant’s name, the alleged conduct, and the relationship to the plaintiff.

The § 4C report is forwarded for inclusion in the National Instant Criminal Background Check System. A federal examiner relies on the relationship stated in the report. A 258E harassment prevention order between parties who are not intimate partners still produces a NICS entry. The NICS entry is one more reason for the defendant to contest the order itself, not just the surrender.

The License After the Order Ends

Expiration or vacatur of the 258E harassment prevention order removes the § 121F(j) disqualifier. The end of the order does not by itself restore the license or the firearms. Under § 121F, a revoked or suspended license or card may be reinstated only upon the termination of all disqualifying conditions. Any independent disqualifier therefore remains in effect after the order ends. For a license to carry, the licensing authority’s separate suitability judgment also remains available.

For a firearm identification card, the licensing authority cannot itself deny the card on unsuitability grounds. The licensing authority must petition the district court instead. The defendant’s remedy is a district court petition if the licensing authority refuses to reinstate the license or card. The court may order the license issued or reinstated on a finding that there was no reasonable ground for the denial, suspension, or revocation and that the petitioner is not otherwise prohibited.

Two timing rules also apply. The ninety-day grace period for an expired license does not apply to a license that has been revoked or suspended. A license that lapses during the order therefore gets no ninety-day grace period. The one-year auction deadline under § 129D also continues to run during the order. A defendant who plans to be licensed again should also plan, from the first week of the order, what will happen to the surrendered property.

What to Do Before the Hearing

• The defendant should surrender the licenses, the firearms, and the ammunition on time and in full. Compliance is not an admission and does not weaken a defense
• The defendant should not move firearms to a relative or a friend on their own. A defendant who transfers firearms on their own can be charged with violating the surrender order. A lawful transfer is a § 129D transfer directed through the licensing authority to a licensed dealer or to a person legally permitted to take possession, with the transferee’s written affirmation. Counsel invokes the § 129D right expressly, because chapter 258E’s own proviso limits the transfers the official may make
• The defendant should record what was surrendered, to which department, and on what date, and should keep the receipt
• The defendant should monitor the one-year auction deadline. Property not disposed of within one year of surrender shall be auctioned with the proceeds to the General Fund, so the defendant should direct a transfer well before the year ends
• Counsel should argue the firearms question at the hearing as a separate issue. The § 4B question concerns the return of the license, the firearms, or the ammunition. The court decides the § 4B question on the contested record rather than on the ex parte findings
• The defendant should file the § 4A petition for review and should request the two-business-day expedited employment hearing where a firearm is required for work
• The defendant should not contact the plaintiff about the firearms. A message about the return of property is still contact. The message can support a violation charge under G.L. c. 258E, § 9

Key Takeaways

• A judge issuing a 258E harassment prevention order can suspend a license to carry or a firearm identification card and order surrender of all firearms and ammunition. No family or household relationship is required, and no criminal charge is required
• G.L. c. 258E, §§ 4A, 4B, and 4C supply the surrender authority. J.C. v. J.H., 92 Mass. App. Ct. 224 (2017), which held that chapter 258E gave judges no surrender authority, is superseded by statute on that point
• Section 4A’s ex parte standard is the same finding the judge makes to issue the ex parte order, so surrender is effectively automatic at the ex parte stage. Guideline 4:03 directs that the surrender provision be included in every ex parte order. The § 4B return question is contested at the after-notice hearing
• Surrendered property is handled under G.L. c. 140, § 129D, which gives the owner one year to direct a transfer to a licensed dealer or to a person legally permitted to take possession. Property not disposed of within the year is auctioned with proceeds to the General Fund
• Violating a surrender order is punishable by a fine of not more than $5,000, imprisonment for not more than two and one half years in a house of correction, or both
• A defendant may petition for review, which the court must hear within 10 court business days. A defendant whose work requires a firearm can obtain a hearing within two business days on an employment affidavit
• Every defendant subject to a 258E harassment prevention order is a prohibited person under state law while the order is in effect, G.L. c. 140, § 121F(j). The licensing authority must suspend or revoke the defendant’s license. Every surrender order also generates a NICS report under § 4C
• 18 U.S.C. § 922(g)(8) applies only where the protected person is an intimate partner as federally defined or a covered child, the order issued after a noticed hearing, and the order contains a credible-threat finding or explicit force prohibition

Related Serpa Law Office Resources

• Massachusetts 258E harassment prevention orders
• How to get a 258E harassment prevention order in Massachusetts
• restraining and harassment orders
• criminal violation of a 258E harassment prevention order
• 209A restraining order and 258E harassment prevention order violation FAQs
• terminating, modifying, and expunging a restraining order
• firearms after a domestic violence charge
• Massachusetts firearms charges
• Massachusetts 209A restraining orders (abuse prevention orders)
• extreme risk protection orders in Massachusetts
• criminal violation of a 209A restraining order
• expunging a 209A restraining order or 258E harassment prevention order from the registry
• 209A restraining order and 258E harassment prevention order expungement FAQs