Montana Domestic Violence Guide

Getting Seized Guns Back After a PFMA Case

A firearm taken at a domestic violence call does not come back automatically. Montana law requires an acquittal or a court order.

Written by

Ashley Hurlbert, Partner, A&M Law

Licensed Montana attorney and co-founder of A&M Law. 18 years of experience as lead counsel in 50+ jury and bench trials. A Certified Mediator and Certified Guardian ad Litem focusing on family law, criminal defense, and DUI defense.

18 yearsReviewed by Misty GaubatzLast reviewed: October 10, 2026

If police took a firearm when they responded to a partner or family member assault (PFMA) call, you do not get it back by asking at the front desk. Montana law says the weapon may not be returned "until acquittal or until the return is ordered by the court" (MCA § 46-6-603(3)). This page explains that rule, the court process for seized property, and what happens when the owner can no longer lawfully possess the firearm. It is part of the firearm section of our Montana Domestic Violence Guide.

Why the Firearm Was Taken

A firearm can end up in police custody on more than one legal basis, and it helps to know which one applies:

Mandatory seizure. A peace officer who responds to a PFMA call "shall seize the weapon used or threatened to be used in the alleged assault" (MCA § 46-6-603(1)). See weapons seized at the scene.
Evidence. A firearm may be held as evidence in the criminal case.
A court condition. A judge may order no firearms as a condition of release (MCA § 46-9-108(1)(h)), and firearms may have been turned over to comply. See firearms while the case is pending.

The Rule: Acquittal or a Court Order

For a weapon seized under § 46-6-603, the statute gives two release points. One is acquittal. The other is a court order. It does not mention dismissal, a plea to a different offense, or the end of a sentence. In those situations the dependable route is to ask the judge for an order.

The statute also does not set a deadline for the agency or describe the paperwork. Practice varies by court and by agency. The agency holding the firearm may have its own release requirements, so ask what it needs once you have an order.

Asking the Court: MCA § 46-5-312

Montana has a general procedure for property seized as evidence. A person claiming the right to possession "may apply to the judge for its return." The judge gives written notice to the prosecutor and to anyone who has or may have an interest in the property, and holds a hearing to determine the right to possession (MCA § 46-5-312(1)).

If the right to possession is established, the judge orders the property returned, other than contraband, if one of three things is true (MCA § 46-5-312(2)):

the property is not needed as evidence;
it is needed, but satisfactory arrangements can be made for its return for later use as evidence; or
all proceedings in which it might be required have been completed.

Montana also has a procedure for destroying physical evidence or appropriating it for law enforcement use once prosecutions are complete (MCA § 46-5-306). That is a reason not to let the question sit for years after a case ends.

When the Case Ends Without a Disqualifying Result

If you are acquitted, the statute itself permits return. If the case is dismissed, or resolved in a way that leaves you free to possess firearms, a motion for return asks the court to say so in an order. Before filing, a lawyer should confirm that nothing else stands in the way: no remaining release or sentence condition, no order of protection with firearm terms, and no federal prohibition. Our page on whether a Montana PFMA counts under federal law explains the federal side for misdemeanor convictions.

When You Cannot Lawfully Take It Back

A court will not order a firearm handed to a person who is prohibited from possessing it. In Henderson v. United States, 575 U.S. 622 (2015), the Supreme Court said the federal ban bars a court from ordering guns returned to a prohibited owner, because that would place the owner in violation of the law. After a PFMA conviction, the sentencing court may also prohibit possession or use of the firearm used in the assault (MCA § 45-5-206(7)).

Being prohibited from possessing a firearm is not the same as losing ownership of it. Henderson recognized that the owner keeps the right to sell or otherwise dispose of the property, and that brings up third-party transfers.

Transfers to a Third Party

Henderson held that the federal ban "does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use." The Court described two acceptable outcomes: a transfer to a firearms dealer for sale on the open market, or a transfer to a person who will keep custody and will not let the owner exert any influence over the firearms. A court may ask the recipient for assurances, and may refuse if it does not find them credible. The opinion cites a Montana case, State v. Fadness, as an example of a trial court finding that the assurances given by the owner's parents were not credible.

Henderson arose in federal court. A Montana judge deciding a motion under state law is applying Montana procedure, but the federal limit on constructive possession is the same everywhere. Our page on living with a gun owner explains that concept. A transfer to someone in your own household deserves particular care for that reason.

What Not to Do

Do not go to a home you are ordered to stay away from to collect firearms or anything else. See getting your belongings from home.
Do not contact the protected person, directly or through anyone else, about firearms.
Do not take possession of a firearm from the agency or from a relative until a lawyer has confirmed you may lawfully have it.

This page explains Montana and federal law in general as of the 2025 Montana Code Annotated. Agencies and courts have their own procedures for releasing property. It is not legal advice about your specific case.

Montana Domestic Violence Guide Domestic Violence Defense PFMA and Gun Rights The Federal Lautenberg Ban Does a Montana PFMA Count Federally?Orders of Protection and Guns

FAQ

Getting Seized Guns Back After a PFMA Case FAQ

How do I get my guns back after a PFMA arrest in Montana?

By acquittal or a court order. The statute says a weapon seized at a PFMA call may not be returned to the offender until acquittal or until the return is ordered by the court (MCA § 46-6-603(3)). That means asking the judge handling the case, by motion, and for property held as evidence the judge gives notice to the prosecutor and holds a hearing (MCA § 46-5-312).

Do I get my guns back automatically if the charge is dismissed?

The statute names two events: acquittal, and a court order. A dismissal is not an acquittal, so the careful approach is to ask the court for an order directing the return. Agencies also have their own release procedures, and those vary.

Can the police keep my guns after I am convicted?

A conviction can leave you unable to take the firearm back. The court may prohibit possession or use of the firearm used in the assault (MCA § 45-5-206(7)), and a sentence condition or a federal ban may bar possession altogether. In that situation the question becomes whether the firearm can be transferred to someone else or sold.

Can a family member pick up my guns for me?

Only if a court approves it and you will have no control over them afterward. In Henderson v. United States, 575 U.S. 622 (2015), the Supreme Court held that a court may order a prohibited owner's firearms transferred to a third party if it is satisfied the recipient will not allow the owner to use them or direct their use. A transfer that leaves you with access would itself be unlawful possession.

What if the police took guns that were not used in the incident?

The mandatory seizure rule covers the weapon used or threatened in the alleged assault. Other firearms may have been taken as evidence, for safekeeping, or to comply with a release condition. The reason they were taken affects how they are returned, so ask your lawyer to find out what the agency's records say. See weapons seized at the scene.

Need a Firearm Returned?

The statute points to a court order, and timing matters. Call 406-830-3060 for a confidential consultation.

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