Can the abuser's gun be taken away as part of an ex parte temporary order?
Under Maine state law, the judge can order the defendant not to possess a firearm or other dangerous weapon while the temporary order is in effect if the complaint that you file demonstrates abuse that involves a firearm or other dangerous weapon or that there is a “heightened risk” of immediate abuse to you or your minor child. In determining whether or not a “heightened risk” of immediate abuse exists, the judge must consider the following factors (but s/he is not limited to only considering these factors):
- If the temporary order of protection is not likely to achieve its purpose without a this firearm/weapon prohibition;
- If the defendant has violated past orders of protection;
- If past or present abuse to a victim resulted in injury;
- If the abuse occurred in public; and
- If the abuse includes:
- Threats of suicide or homicide;
- Killing or threatening to kill pets;
- An escalation of violence;
- Stalking behavior or extreme obsession;
- Sexual violence;
- Excessive alcohol or drug use; and
- Abuse against a pregnant victim.1
If the judge prohibits the defendant from possessing dangerous weapons or firearms, the judge will direct the defendant to turn them over to a law enforcement officer or other individual within 24 hours after service of the order on the defendant (although the defendant has the right to file a motion in court to reverse this decision). Note: If the weapons are given to an individual (not law enforcement), the defendant must file a written statement that contains the name and address of the person holding the weapons and a description of all weapons held by that person within 24 hours after giving him/her the weapons to hold. The judge may later issue a search warrant authorizing a law enforcement officer to seize any firearms and other dangerous weapons at any location if there is probable cause to believe such firearms or dangerous weapons have not been turned over by the defendant.1
If your temporary protection from abuse order does not prohibit the abuser from having guns, the abuser most likely can keep his/her guns until a permanent order is issued. Under federal law, a defendant’s gun(s) generally cannot be taken away before a permanent order is in place.2
1 ME ST T. 19-A § 4006(2-A)
2 There are exceptions, but these exceptions are rare. See United States v. Calor, 172 F. Supp. 2d 900 (E.D. Ky. 2001), aff’d, 340 F. 3d 428 (6th Cir. 2003)
I have a protection from abuse order against the abuser. Can s/he keep a gun or buy a new gun?
It depends. If the protection from abuse (PFA) order states that the abuser cannot possess or buy a gun, then s/he cannot keep a gun or buy a new gun. If you apply for a protection from abuse order in Maine, the judge may, according to Maine state law, direct that the abuser cannot possess a gun or any other dangerous weapon while the order is in effect.1
Maine state law and federal law also state that when a civil court issues a Maine protection from abuse order (or an order from another state) against the abuser and that order meets the requirements outlined in the federal firearm statute, the abuser cannot buy or possess a gun.2 Note: Your protection from abuse order does not need to state that the abuser cannot have a gun for federal firearm law to apply.
For your protection from abuse order to meet federal law requirements, the defendant (the person who the protection from abuse order is filed against) must:
- be served (given) notice of the court hearing. In other words, the defendant must be given paperwork that tells him/her about the hearing;
- have an opportunity to attend the court hearing; and
- Note: The abuser does not need to be at the hearing, but s/he must have the opportunity to come to the hearing.
- be your “intimate partner,” including:
- A current or former spouse;
- A person with whom you share a child;
- A person that you live with or have lived with in the past.
If your protection from abuse order has expired, it is no longer a valid order under federal law. When the order is not valid under federal law, the firearm ban also does not apply.
Note: This law may not apply to law enforcement officials, military personnel, and other government employees who use guns while performing official duties.3 If the abuser is a police officer, member of the military, or someone else who uses a gun for his/her job, talk to your local domestic violence program about your options. See ME Advocates and Shelters page under the Places that Help tab at the top of this page.
1 ME ST T. 19-A § 4007
2 18 USC § 922(g)(8) and ME ST T. 15 § 393(D)
3 18 USC § 925(a)(1)
The abuser did not show up for the protection from abuse order hearing. Can his/her gun still be taken away?
Is there anything I can do to make it more likely that the abuser's gun is taken away when I get a protection from abuse (PFA) order?
To try to make it clear that the abuser cannot have a gun, here are a couple things you may want to ask for in court:
- If the abuser has a gun, tell the judge how many guns s/he has, and if s/he has ever threatened you with a gun(s).
- Ask the judge to write in the county sheriff’s office where the abuser has to surrender his/her guns. (Before leaving the courthouse, check to make sure that this is included on your PFA order.)
It also may be helpful if the judge explains what will happen to the abuser’s guns, who will take them, and where they will be held once you leave the courthouse. Therefore, you may also want to ask the judge:
- If it can be written in the order that the police to go to the abuser’s house and get the guns;
- To make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
- To order that the police notify you when the guns are returned to the abuser.