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Legal Information: Maine

State Gun Laws

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March 4, 2020

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)