I have a temporary ex parte protection from abuse order against the abuser. Can the abuser have a gun?
Under Maine state law, the judge can order the defendant not to possess a firearm or other dangerous weapon while the temporary protection from abuse order is in effect if the complaint that you filed 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.1
In determining whether a “heightened risk” of immediate abuse exists, the judge must consider if:
- the temporary protection from abuse order is not likely to achieve its purpose without a firearm/weapon prohibition;
- the defendant has violated past orders of protection;
- past or present abuse resulted in injury;
- the abuse occurred in public; and
- 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; or
- abuse against a pregnant victim.1
If the judge prohibits the defendant from possessing dangerous weapons or firearms in the temporary protection from abuse (PFA) order, 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 PFA order on the defendant. The defendant has the right to file a motion in court to reverse this decision.1
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
1 ME ST T. 19-A § 4006(2-A)
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 order?
While it does not need to be written on your protection from abuse order that the abuser cannot buy or have a gun in order for the law to be enforced, it may make it easier if it is written. There are a couple steps you can take to try to help make this clear:
- If the abuser has a gun, be sure to make a request on your petition for a protection from abuse order that his/her gun(s) be taken away and held while your restraining is in effect. You may also want to write how many guns the abuser has and if s/he has ever threatened you with a gun(s).
- Ask the judge to specifically write in your protection from abuse order that the abuser cannot buy or have a gun while the order is in effect. There will most likely be a box that the judge can check off.
- Before leaving the courthouse, check to make sure that the gun restriction is written on your 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, and a time frame in which the guns must be turned over. If the judge agrees to add language that the abuser cannot keep his/her guns while the protection from abuse order is in effect, you may also want to ask that the judge:
- require the abuser to give his/her guns to the police, or require the police to go to the abuser’s house and get them;
- make it clear to both you and the abuser how long the guns will be kept away from the abuser; and
- order that the police notify you when the guns are returned to the abuser.
There is not a guarantee that the judge will do any of the things that you ask for since it often depends on the judge and the way that things are done in your county.
I have a final protection from abuse order against the abuser. Can s/he keep a gun or buy a new gun?
Maine law prohibits anyone from possessing a firearm if s/he is subject to a protection from abuse order where the victim is an “intimate partner,” which the law defines only as: 1) a current or former spouse; 2) someone s/he has a child in common with; or 3) someone who s/he currently lives with or used to live with. It does not cover other dating partners.1
The protection order must have been issued after notice and a hearing in Maine or in any other state, U.S. territory, commonwealth or tribe, and it must do both of the following:
- order the abuser to not:
- harass, stalk, or threaten an intimate partner or a child of his/her intimate partner; or
- act in a way that would place the intimate partner in reasonable fear or bodily injury to himself/herself or to his/her child; and
- include a determination that s/he represents a credible threat to the physical safety of an intimate partner or child; or
- specifically prohibit the use, attempted use, or threatened use of physical force against an intimate partner or child that would reasonably be expected to cause bodily injury.2
1 ME ST T. 15 § 393(1)(D); 18 USC § 921(a)(32)
2 ME ST T. 15 § 393(1)(D)