Florida Senate - 2018 SENATOR AMENDMENT
Bill No. CS for SB 7026
Ì651680(Î651680
LEGISLATIVE ACTION
Senate . House
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Senator Gibson moved the following:
1 Senate Amendment
2
3 Delete lines 451 - 960
4 and insert:
5 (a) “Petitioner” means a law enforcement officer, a law
6 enforcement agency, or a family or household member that
7 petitions a court for a risk protection order under this
8 section. As used in this paragraph, the term “family or
9 household member” has the same meaning as provided in s. 741.28
10 and includes a person who:
11 1. Has a biological or legal parent-child relationship with
12 the respondent, including stepparents and stepchildren and
13 grandparents and grandchildren; and
14 2. Is acting or has acted as the respondent’s legal
15 guardian.
16 (b) “Respondent” means the individual who is identified as
17 the respondent in a petition filed under this section.
18 (c) “Risk protection order” means a temporary ex parte
19 order or a final order granted under this section.
20 (2) PETITION FOR A RISK PROTECTION ORDER.—There is created
21 an action known as a petition for a risk protection order.
22 (a) A petition for a risk protection order may be filed by
23 a law enforcement officer, a law enforcement agency, or a family
24 or household member.
25 (b) An action under this section must be filed in the
26 county where the petitioner is located or the county where the
27 respondent resides.
28 (c) Such petition for a risk protection order does not
29 require either party to be represented by an attorney.
30 (d) Notwithstanding any other law, attorney fees may not be
31 awarded in any proceeding under this section.
32 (e) A petition must:
33 1. Allege that the respondent poses a significant danger of
34 causing personal injury to himself or herself or others by
35 having a firearm or any ammunition in his or her custody or
36 control or by purchasing, possessing, or receiving a firearm or
37 any ammunition, and must be accompanied by an affidavit made
38 under oath stating the specific statements, actions, or facts
39 that give rise to a reasonable fear of significant dangerous
40 acts by the respondent;
41 2. Identify the quantities, types, and locations of all
42 firearms and ammunition the petitioner believes to be in the
43 respondent’s current ownership, possession, custody, or control;
44 and
45 3. Identify whether there is a known existing protection
46 order governing the respondent under s. 741.30, s. 784.046, or
47 s. 784.0485 or under any other applicable statute.
48 (f) If the petitioner is a law enforcement officer or a law
49 enforcement agency, the petitioner must make a good faith effort
50 to provide notice to a family or household member of the
51 respondent and to any known third party who may be at risk of
52 violence. The notice must state that the petitioner intends to
53 petition the court for a risk protection order or has already
54 done so and must include referrals to appropriate resources,
55 including mental health, domestic violence, and counseling
56 resources. The petitioner must attest in the petition to having
57 provided such notice or must attest to the steps that will be
58 taken to provide such notice.
59 (g) If the petitioner is a law enforcement officer or a law
60 enforcement agency, the petitioner must list the address of
61 record on the petition as being where the appropriate law
62 enforcement agency is located. If the petitioner is a family or
63 household member, the petitioner must list the address of his or
64 her residential address unless he or she has a reasonable fear
65 that including his or her residential address might result in
66 harm to himself or herself or to a person living at that
67 address, and if so, the petitioner may list a post office box
68 address.
69 (h) A court or a public agency may not charge fees for
70 filing or for service of process to a petitioner seeking relief
71 under this section and must provide the necessary number of
72 certified copies, forms, and instructional brochures free of
73 charge.
74 (i) A person is not required to post a bond to obtain
75 relief in any proceeding under this section.
76 (j) The circuit courts of this state have jurisdiction over
77 proceedings under this section.
78 (3) RISK PROTECTION ORDER HEARINGS AND ISSUANCE.—
79 (a) Upon receipt of a petition, the court must order a
80 hearing to be held no later than 14 days after the date of the
81 order and must issue a notice of hearing to the respondent for
82 the same.
83 1. The clerk of the court shall cause a copy of the notice
84 of hearing and petition to be forwarded on or before the next
85 business day to the appropriate law enforcement agency for
86 service upon the respondent as provided in subsection (5).
87 2. The court may, as provided in subsection (4), issue a
88 temporary ex parte risk protection order pending the hearing
89 ordered under this subsection. Such temporary ex parte order
90 must be served concurrently with the notice of hearing and
91 petition as provided in subsection (5).
92 3. The court may conduct a hearing by telephone pursuant to
93 a local court rule to reasonably accommodate a disability or
94 exceptional circumstances. The court must receive assurances of
95 the petitioner’s identity before conducting a telephonic
96 hearing.
97 (b) Upon notice and a hearing on the matter, if the court
98 finds by clear and convincing evidence that the respondent poses
99 a significant danger of causing personal injury to himself or
100 herself or others by having in his or her custody or control, or
101 by purchasing, possessing, or receiving, a firearm or any
102 ammunition, the court must issue a risk protection order for a
103 period that it deems appropriate, up to and including but not
104 exceeding 12 months.
105 (c) In determining whether grounds for a risk protection
106 order exist, the court may consider any relevant evidence,
107 including, but not limited to, any of the following:
108 1. A recent act or threat of violence by the respondent
109 against himself or herself or others, whether or not such
110 violence or threat of violence involves a firearm.
111 2. An act or threat of violence by the respondent within
112 the past 12 months, including, but not limited to, acts or
113 threats of violence by the respondent against himself or herself
114 or others.
115 3. Evidence of the respondent being seriously mentally ill
116 or having recurring mental health issues.
117 4. A violation by the respondent of a risk protection order
118 or a no contact order issued under s. 741.30, s. 784.046, or s.
119 784.0485.
120 5. A previous or existing risk protection order issued
121 against the respondent.
122 6. A violation of a previous or existing risk protection
123 order issued against the respondent.
124 7. Whether the respondent, in this state or any other
125 state, has been convicted of, had adjudication withheld on, or
126 pled nolo contendere to a crime that constitutes domestic
127 violence as defined in s. 741.28.
128 8. The respondent’s ownership of, access to, or intent to
129 possess firearms or ammunition.
130 9. The unlawful or reckless use, display, or brandishing of
131 a firearm by the respondent.
132 10. The recurring use of, or threat to use, physical force
133 by the respondent against another person or the respondent
134 stalking another person.
135 11. Whether the respondent, in this state or any other
136 state, has been arrested for, convicted of, had adjudication
137 withheld on, or pled nolo contendere to a crime involving
138 violence or a threat of violence.
139 12. Corroborated evidence of the abuse of controlled
140 substances or alcohol by the respondent.
141 13. Evidence of recent acquisition of firearms or
142 ammunition by the respondent.
143 14. Any relevant information from family and household
144 members concerning the respondent.
145 (d) A person, including an officer of the court, who offers
146 evidence or recommendations relating to the cause of action
147 either must present the evidence or recommendations in writing
148 to the court with copies to each party and his or her attorney,
149 if one is retained, or must present the evidence under oath at a
150 hearing at which all parties are present.
151 (e) In a hearing under this section, the rules of evidence
152 apply to the same extent as in a domestic violence injunction
153 proceeding under s. 741.30.
154 (f) During the hearing, the court must consider whether a
155 mental health evaluation or chemical dependency evaluation is
156 appropriate and, if such determination is made, may order such
157 evaluations, if appropriate.
158 (g) A risk protection order must include all of the
159 following:
160 1. A statement of the grounds supporting the issuance of
161 the order;
162 2. The date the order was issued;
163 3. The date the order ends;
164 4. Whether a mental health evaluation or chemical
165 dependency evaluation of the respondent is required;
166 5. The address of the court in which any responsive
167 pleading should be filed;
168 6. A description of the requirements for the surrender of
169 firearms and ammunition under subsection (7); and
170 7. The following statement:
171
172 “To the subject of this protection order: This order will last
173 until the date noted above. If you have not done so already, you
174 must surrender immediately to the (insert name of local law
175 enforcement agency) all firearms and ammunition in your custody,
176 control, or possession and any license to carry a concealed
177 weapon or firearm issued to you under s. 790.06, Florida
178 Statutes. You may not have in your custody or control, or
179 purchase, possess, receive, or attempt to purchase or receive, a
180 firearm or ammunition while this order is in effect. You have
181 the right to request one hearing to vacate this order, starting
182 after the date of the issuance of this order, and to request
183 another hearing after every extension of the order, if any. You
184 may seek the advice of an attorney as to any matter connected
185 with this order.”
186
187 (h) If the court issues a risk protection order, the court
188 must inform the respondent that he or she is entitled to request
189 a hearing to vacate the order in the manner provided by
190 subsection (6). The court shall provide the respondent with a
191 form to request a hearing to vacate.
192 (i) If the court denies the petitioner’s request for a risk
193 protection order, the court must state the particular reasons
194 for the denial.
195 (4) TEMPORARY EX PARTE RISK PROTECTION ORDERS.—
196 (a) A petitioner may request that a temporary ex parte risk
197 protection order be issued before a hearing for a risk
198 protection order, without notice to the respondent, by including
199 in the petition detailed allegations based on personal knowledge
200 that the respondent poses a significant danger of causing
201 personal injury to himself or herself or others in the near
202 future by having in his or her custody or control, or by
203 purchasing, possessing, or receiving, a firearm or ammunition.
204 (b) In considering whether to issue a temporary ex parte
205 risk protection order under this section, the court shall
206 consider all relevant evidence, including the evidence described
207 in paragraph (3)(c).
208 (c) If a court finds there is reasonable cause to believe
209 that the respondent poses a significant danger of causing
210 personal injury to himself or herself or others in the near
211 future by having in his or her custody or control, or by
212 purchasing, possessing, or receiving, a firearm or ammunition,
213 the court must issue a temporary ex parte risk protection order.
214 (d) The court must hold a temporary ex parte risk
215 protection order hearing in person or by telephone on the day
216 the petition is filed or on the business day immediately
217 following the day the petition is filed.
218 (e) A temporary ex parte risk protection order must include
219 all of the following:
220 1. A statement of the grounds asserted for the order;
221 2. The date the order was issued;
222 3. The address of the court in which any responsive
223 pleading may be filed;
224 4. The date and time of the scheduled hearing;
225 5. A description of the requirements for surrender of
226 firearms and ammunition under subsection (7); and
227 6. The following statement:
228
229 “To the subject of this protection order: This order is valid
230 until the date noted above. You are required to surrender all
231 firearms and ammunition in your custody, control, or possession.
232 You may not have in your custody or control, or purchase,
233 possess, receive, or attempt to purchase or receive, a firearm
234 or ammunition while this order is in effect. You must surrender
235 immediately to the (insert name of local law enforcement agency)
236 all firearms and ammunition in your custody, control, or
237 possession and any license to carry a concealed weapon or
238 firearm issued to you under s. 790.06, Florida Statutes. A
239 hearing will be held on the date and at the time noted above to
240 determine if a risk protection order should be issued. Failure
241 to appear at that hearing may result in a court issuing an order
242 against you which is valid for 1 year. You may seek the advice
243 of an attorney as to any matter connected with this order.”
244
245 (f) A temporary ex parte risk protection order ends upon
246 the hearing on the risk protection order.
247 (g) A temporary ex parte risk protection order must be
248 served by a law enforcement officer in the same manner as
249 provided for in subsection (5) for service of the notice of
250 hearing and petition and must be served concurrently with the
251 notice of hearing and petition.
252 (h) If the court denies the petitioner’s request for a
253 temporary ex parte risk protection order, the court must state
254 the particular reasons for the denial.
255 (5) SERVICE.—
256 (a) The clerk of the court shall furnish a copy of the
257 notice of hearing, petition, and temporary ex parte risk
258 protection order or risk protection order, as applicable, to the
259 sheriff of the county where the respondent resides or can be
260 found, who shall serve it upon the respondent as soon thereafter
261 as possible on any day of the week and at any time of the day or
262 night. When requested by the sheriff, the clerk of the court may
263 transmit a facsimile copy of a temporary ex parte risk
264 protection order or a risk protection order that has been
265 certified by the clerk of the court, and this facsimile copy may
266 be served in the same manner as a certified copy. Upon receiving
267 a facsimile copy, the sheriff must verify receipt with the
268 sender before attempting to serve it upon the respondent. The
269 clerk of the court shall be responsible for furnishing to the
270 sheriff information on the respondent’s physical description and
271 location. Notwithstanding any other provision of law to the
272 contrary, the chief judge of each circuit, in consultation with
273 the appropriate sheriff, may authorize a law enforcement agency
274 within the jurisdiction to effect service. A law enforcement
275 agency effecting service pursuant to this section shall use
276 service and verification procedures consistent with those of the
277 sheriff. Service under this section takes precedence over the
278 service of other documents, unless the other documents are of a
279 similar emergency nature.
280 (b) All orders issued, changed, continued, extended, or
281 vacated after the original service of documents specified in
282 paragraph (a) must be certified by the clerk of the court and
283 delivered to the parties at the time of the entry of the order.
284 The parties may acknowledge receipt of such order in writing on
285 the face of the original order. If a party fails or refuses to
286 acknowledge the receipt of a certified copy of an order, the
287 clerk shall note on the original order that service was
288 effected. If delivery at the hearing is not possible, the clerk
289 shall mail certified copies of the order to the parties at the
290 last known address of each party. Service by mail is complete
291 upon mailing. When an order is served pursuant to this
292 subsection, the clerk shall prepare a written certification to
293 be placed in the court file specifying the time, date, and
294 method of service and shall notify the sheriff.
295 (6) TERMINATION AND EXTENSION OF ORDERS.—
296 (a) The respondent may submit one written request for a
297 hearing to vacate a risk protection order issued under this
298 section, starting after the date of the issuance of the order,
299 and may request another hearing after every extension of the
300 order, if any.
301 1. Upon receipt of the request for a hearing to vacate a
302 risk protection order, the court shall set a date for a hearing.
303 Notice of the request must be served on the petitioner in
304 accordance with subsection (5). The hearing must occur no sooner
305 than 14 days and no later than 30 days after the date of service
306 of the request upon the petitioner.
307 2. The respondent shall have the burden of proving by clear
308 and convincing evidence that the respondent does not pose a
309 significant danger of causing personal injury to himself or
310 herself or others by having in his or her custody or control,
311 purchasing, possessing, or receiving a firearm or ammunition.
312 The court may consider any relevant evidence, including evidence
313 of the considerations listed in paragraph (3)(c).
314 3. If the court finds after the hearing that the respondent
315 has met his or her burden of proof, the court must vacate the
316 order.
317 4. The law enforcement agency holding any firearm or
318 ammunition or license to carry a concealed weapon or firearm
319 that has been surrendered pursuant to this section shall be
320 notified of the court order to vacate the risk protection order.
321 (b) The court must notify the petitioner of the impending
322 end of a risk protection order. Notice must be received by the
323 petitioner at least 30 days before the date the order ends.
324 (c) The petitioner may, by motion, request an extension of
325 a risk protection order at any time within 30 days before the
326 end of the order.
327 1. Upon receipt of the motion to extend, the court shall
328 order that a hearing be held no later than 14 days after the
329 date the order is issued and shall schedule such hearing.
330 a. The court may schedule a hearing by telephone in the
331 manner provided by subparagraph (3)(a)3.
332 b. The respondent must be personally served in the same
333 manner provided by subsection (5).
334 2. In determining whether to extend a risk protection order
335 issued under this section, the court may consider all relevant
336 evidence, including evidence of the considerations listed in
337 paragraph (3)(c).
338 3. If the court finds by clear and convincing evidence that
339 the requirements for issuance of a risk protection order as
340 provided in subsection (3) continue to be met, the court must
341 extend the order. However, if, after notice, the motion for
342 extension is uncontested and no modification of the order is
343 sought, the order may be extended on the basis of a motion or
344 affidavit stating that there has been no material change in
345 relevant circumstances since entry of the order and stating the
346 reason for the requested extension.
347 4. The court may extend a risk protection order for a
348 period that it deems appropriate, up to and including but not
349 exceeding 12 months, subject to an order to vacate as provided
350 in paragraph (a) or to another extension order by the court.
351 (7) SURRENDER OF FIREARMS AND AMMUNITION.—
352 (a) Upon issuance of a risk protection order under this
353 section, including a temporary ex parte risk protection order,
354 the court shall order the respondent to surrender to the local
355 law enforcement agency all firearms and ammunition in the
356 respondent’s custody, control, or possession except as provided
357 in subsection (9), and any license to carry a concealed weapon
358 or firearm issued under s. 790.06.
359 (b) The law enforcement officer serving a risk protection
360 order under this section, including a temporary ex parte risk
361 protection order, shall request that the respondent immediately
362 surrender all firearms and ammunition in his or her custody,
363 control, or possession and any license to carry a concealed
364 weapon or firearm issued under s. 790.06. The law enforcement
365 officer shall take possession of all firearms and ammunition
366 belonging to the respondent which are surrendered.
367 Alternatively, if personal service by a law enforcement officer
368 is not possible or is not required because the respondent was
369 present at the risk protection order hearing, the respondent
370 must surrender any firearms, ammunition, and license to carry a
371 concealed weapon or firearm in a safe manner to the control of
372 the local law enforcement agency immediately after being served
373 with the order by service or immediately after the hearing at
374 which the respondent was present. Notwithstanding ss. 933.02 and
375 933.18, a law enforcement officer may seek a search warrant from
376 a court of competent jurisdiction to conduct a search for
377 firearms or ammunition if the officer has probable cause to
378 believe that there are firearms or ammunition in the
379 respondent’s custody, control, or possession which have not been
380 surrendered.
381 (c) At the time of surrender, a law enforcement officer
382 taking possession of a firearm, any ammunition, or a license to
383 carry a concealed weapon or firearm shall issue a receipt
384 identifying all firearms and the quantity and type of ammunition
385 that have been surrendered and shall provide a copy of the
386 receipt to the respondent. Within 72 hours after service of the
387 order, the law enforcement officer serving the order shall file
388 the original receipt with the court and shall ensure that his or
389 her law enforcement agency retains a copy of the receipt.
390 (d) Notwithstanding ss. 933.02 and 933.18, upon the sworn
391 statement or testimony of any person alleging that the
392 respondent has failed to comply with the surrender of firearms
393 or ammunition as required by an order issued under this section,
394 the court shall determine whether probable cause exists to
395 believe that the respondent has failed to surrender all firearms
396 or ammunition in his or her custody, control, or possession. If
397 the court finds that probable cause exists, the court must issue
398 a warrant describing the firearms or ammunition and authorizing
399 a search of the locations where the firearms or ammunition are
400 reasonably believed to be found and the seizure of any firearms
401 or ammunition discovered pursuant to such search.
402 (e) If a person other than the respondent claims title to
403 any firearms or ammunition surrendered pursuant to this section
404 and he or she is determined by the law enforcement agency to be
405 the lawful owner of the firearm or ammunition, the firearm or
406 ammunition shall be returned to him or her, if:
407 1. The lawful owner agrees to store the firearm or
408 ammunition in a manner such that the respondent does not have
409 access to or control of the firearm or ammunition.
410 2. The firearm or ammunition is not otherwise unlawfully
411 possessed by the owner.
412 (f) Upon the issuance of a risk protection order, the court
413 shall order a new hearing date and require the respondent to
414 appear no later than 3 business days after the issuance of the
415 order. The court shall require proof that the respondent has
416 surrendered any firearms or ammunition in his or her custody,
417 control, or possession. The court may cancel the hearing upon a
418 satisfactory showing that the respondent is in compliance with
419 the order.
420 (g) All law enforcement agencies must develop policies and
421 procedures by January 1, 2019, regarding the acceptance,
422 storage, and return of firearms, ammunition, or licenses
423 required to be surrendered under this section.
424 (8) RETURN AND DISPOSAL OF FIREARMS AND AMMUNITION.—
425 (a) If a risk protection order is vacated or ends without
426 extension, a law enforcement agency holding a firearm or any
427 ammunition that has been surrendered or seized pursuant to this
428 section must return such surrendered firearm or ammunition
429 requested by a respondent only after confirming through a
430 background check that the respondent is currently eligible to
431 own or possess firearms and ammunition under federal and state
432 law and after confirming with the court that the risk protection
433 order has been vacated or has ended without extension.
434 (b) If a risk protection order is vacated or ends without
435 extension, the Department of Agriculture and Consumer Services,
436 if it has suspended a license to carry a concealed weapon or
437 firearm pursuant to this section, must reinstate such license
438 only after confirming that the respondent is currently eligible
439 to have a license to carry a concealed weapon or firearm
440 pursuant to s. 790.06.
441 (c) A law enforcement agency must provide notice to any
442 family or household members of the respondent before the return
443 of any surrendered firearm and ammunition.
444 (d) Any firearm and ammunition surrendered by a respondent
445 pursuant to subsection (7) which remains unclaimed by the lawful
446 owner after an order to vacate the risk protection order shall
447 be disposed of in accordance with the law enforcement agency’s
448 policies and procedures for the disposal of firearms in police
449 custody.
450 (9) TRANSFER OF FIREARMS AND AMMUNITION.—A respondent may
451 elect to transfer all firearms and ammunition that have been
452 surrendered to or seized by a local law enforcement agency
453 pursuant to subsection (7) to another person who is willing to
454 receive the respondent’s firearms and ammunition. The law
455 enforcement agency may allow such a transfer only if it is
456 determined that the chosen recipient:
457 (a) Currently is eligible to own or possess a firearm and
458 ammunition under federal and state law after confirmation
459 through a background check;
460 (b) Attests to storing the firearms and ammunition in a
461 manner such that the respondent does not have access to or
462 control of the firearms and ammunition until the risk protection
463 order against the respondent is vacated or ends without
464 extension; and
465 (c) Attests not to transfer the firearms or ammunition back
466 to the respondent until the risk protection order against the
467 respondent is vacated or ends without extension.
468 (10) REPORTING OF ORDERS.—
469 (a) Within 24 hours after issuance, the clerk of the court
470 shall enter any risk protection order or temporary ex parte risk
471 protection order issued under this section into the uniform case
472 reporting system.
473 (b) Within 24 hours after issuance, the clerk of the court
474 shall forward a copy of an order issued under this section to
475 the appropriate law enforcement agency specified in the order.
476 Upon receipt of the copy of the order, the law enforcement
477 agency shall enter the order into the National Instant Criminal
478 Background Check System, any other federal or state computer
479 based systems used by law enforcement agencies or others to
480 identify prohibited purchasers of firearms or ammunition, and
481 into any computer-based criminal intelligence information system
482 available in this state used by law enforcement agencies to list
483 outstanding warrants. The order must remain in each system for
484 the period stated in the order, and the law enforcement agency
485 shall only remove orders from the systems that have ended or
486 been vacated. Entry into the Florida Crime Information Center
487 and National Crime Information Center constitutes notice to all
488 law enforcement agencies of the existence of the order. The
489 order is fully enforceable in any county in this state.
490 (c) The issuing court shall, within 3 business days after
491 issuance of a risk protection order or temporary ex parte risk
492 protection order, forward all available identifying information
493 concerning the respondent, along with the date of order
494 issuance, to the Department of Agriculture and Consumer
495 Services. Upon receipt of the information, the department shall
496 determine if the respondent has a license to carry a concealed
497 weapon or firearm. If the respondent does have a license to
498 carry a concealed weapon or firearm, the department must
499 immediately suspend the license.
500 (d) If a risk protection order is vacated before its end
501 date, the clerk of the court shall, on the day of the order to
502 vacate, forward a copy of the order to the Department of
503 Agriculture and Consumer Services and the appropriate law
504 enforcement agency specified in the order to vacate. Upon
505 receipt of the order, the law enforcement agency shall promptly
506 remove the order from any computer-based system in which it was
507 entered pursuant to paragraph (b).
508 (11) PENALTIES.—
509 (a) A person who files a petition under this section
510 knowing the information in such petition is materially false, or
511 files with the intent to harass the respondent, commits a
512 misdemeanor of the first degree, punishable as provided in s.
513 775.082 or s. 775.083.
514 (b) A person who has in his or her custody or control a
515 firearm or any ammunition or who purchases, possesses, or
516 receives a firearm or any ammunition with knowledge that he or
517 she is prohibited from doing so by an order issued under this
518 section commits a felony of the third degree, punishable as
519 provided in s. 775.082, s. 775.083, or s. 775.084.
520 (12) LAW ENFORCEMENT RETAINS OTHER AUTHORITY.—This section
521 does not affect the ability of a law enforcement officer to
522 remove a firearm or ammunition or license to carry a concealed
523 weapon or concealed firearm from any person or to conduct any
524 search and seizure for firearms or ammunition pursuant to other
525 lawful authority.
526 (13) LIABILITY.—Except as provided in subsection (10) or
527 subsection (11), this section does not impose criminal or civil
528 liability on any person or entity for acts or omissions related
529 to obtaining a risk protection order or temporary ex parte risk
530 protection order, including, but not limited to, providing
531 notice to the petitioner and any known third party that may be
532 at risk of