Maine has a protection from abuse (PFA) law for victims of domestic violence, sexual assault, sex trafficking, and stalking. For background, see our article: Protection from Abuse – How the law works in Maine. There are some other laws you may want to know about if the person accused of abuse is in the military.
Participation in the court case
When someone files the paperwork in Court for a PFA, a hearing will be scheduled within 21 days. Some servicemembers may not able to go to court on the scheduled hearing date because of military duties. Two laws apply to those servicemembers:
- the Maine Servicemembers Civil Relief Act
- the federal Servicemembers’ Civil Relief Act
These laws give the servicemember a chance to ask the court to move the hearing to a later date. The court can delay the hearing for up to 90 days. If the Court issued a Temporary Protection from Abuse Order, it will stay in place while the hearing is postponed. The servicemember can also ask the court to let them attend by phone, video, or other means.
Firearms and weapons
If someone has a PFA Order against them, it could keep them from having access to a firearm. It depends on what the Order says. This can apply to servicemembers, but there are some exceptions.
The federal law is the Gun Control Act of 1968. This law does not let certain people have access to a firearm or ammunition. People with a PFA Order against them cannot have access to a firearm or ammunition if:
- they were notified of and had a chance to participate in the court hearing (even if they did not show up for the hearing)
- the court found that they are a credible threat to the physical safety of their intimate partner or child, or
- the Order explicitly prohibits the use, attempted use or threatened use of force against an intimate partner or child that would reasonably be expected to cause bodily injury, or
- the Order restrains them from harassing, stalking, or threatening an intimate partner or child of an intimate partner, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child.
An intimate partner is a spouse, ex-spouse, person who you have a child with or someone you currently or previously lived with.
The Federal Law and a Maine Order
The federal law does not apply to a Temporary PFA Order in Maine. This is because a Defendant will not have notice before a Temporary PFA Order is issued by the Maine Court.
Maine uses a standard court form for a final PFA Order. The form has boxes that the Judge can check. The federal law will apply if:
1. all the above federal requirements are met, and
2. Any of these boxes are checked: box 4, box A-1 or box A-2. They are all on the top half of the PFA form. Only one of these boxes needs to be checked for the federal law to apply.)
- Box "A-2" says, "the defendant is prohibited from the use, attempted use or threatened use of physical force that would reasonably be expected to cause bodily injury against the plaintiff or minor child residing in the household."
- Box "A-1" says, "the defendant is prohibited from threatening, assaulting, molesting, attacked, harassing or otherwise abusing the plaintiff and any minor child(ren) residing in the household."
- Box 4 says, "the defendant presents a credible threat to the physical safety of the plaintiff/minor child(ren)."
Exceptions to the federal prohibition
There is an official duty exception. If a servicemember needs a firearm or ammunition to perform their official duties in the military, they can. This exception only applies to the servicemember’s official duties. This means the defendant cannot have access to a firearm or ammunition during non-work time.
The federal law does not apply in PFA cases between people who are dating partners if:
- they never lived together, or
- never had a child together
It also does not apply to PFA cases where the person bringing the case is a victim of sexual assault or stalking and that person never lived with or never had a child with the defendant. This is true, even if box 4, A-1 or A-2 is checked on the Maine PFA Order.
The Maine Law
Under Maine law, the Court can order a defendant in a PFA action not to have a gun, muzzle-loader, bow, crossbow or dangerous weapon. The Court can do this in a Temporary Order as well as a final PFA Order. Both of these orders are standard court forms. The orders have a section that says the defendant is prohibited from possessing a firearm or other dangerous weapon:
If one of these boxes is checked, the defendant cannot have access to a gun, muzzle-loader, bow, crossbow or dangerous weapon. Maine law also lets the Court order the defendant to turn their weapons in to law enforcement. The Court can issue an "Order Prohibiting Possession and Requiring Relinquishment of Firearms and Dangerous Weapons" (19-A MRSA Section 4006, 4007).
Maine law is separate from the federal law. The federal exceptions do not apply to these Maine orders. Maine law does not have any exceptions. This means that a defendant cannot have access to a firearm, muzzle-loading firearm, bow, crossbow or other dangerous weapon if Box 8 on the Temporary Order or Box F on the Final PFA Order is checked.
A servicemember should not be discharged from the military for having a PFA Order entered against them. This is true even if the firearm prohibition under state or federal law applies.
Find more information about protection orders, domestic violence and the military and other laws affecting servicemembers and veterans on Stateside Legal.