House File 2180 - Introduced
HOUSE FILE
BY STAED, KURTH, and
HUNTER
A BILL FOR
1 An Act relating to the creation of an extreme risk protective
2 order against a person in possession of a firearm who
3 presents a significant danger to the person's self or
4 others, and providing penalties.
5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
TLSB 5002YH (11) 87
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PAG LIN
1 1 Section 1. Section 664A.1, subsection 2, Code 2018, is
1 2 amended to read as follows:
1 3 2. a. "Protective order" means a protective order issued
1 4 pursuant to chapter 232, a court order or court=approved
1 5 consent agreement entered pursuant to this chapter or chapter
1 6 235F, a court order or court=approved consent agreement entered
1 7 pursuant to chapter 236 or 236A, including a valid foreign
1 8 protective order under section 236.19, subsection 3, or section
1 9 236A.19, subsection 3, a temporary or permanent protective
1 10 order or order to vacate the homestead under chapter 598, or an
1 11 order that establishes conditions of release or is a protective
1 12 order or sentencing order in a criminal prosecution arising
1 13 from a domestic abuse assault under section 708.2A, or a civil
1 14 injunction issued pursuant to section 915.22.
1 15 b. "Protective order" does not include a protective order
1 16 issued pursuant to chapter 664B.
1 17 Sec. 2. NEW SECTION. 664B.1 Definitions.
1 18 As used in this chapter unless the context otherwise
1 19 requires:
1 20 1. "Affidavit" means a written declaration or statement of
1 21 fact made under oath, or legally sufficient affirmation, before
1 22 any person authorized to administer oaths within or without the
1 23 state.
1 24 2. "Family member" means a spouse, person cohabiting, a
1 25 parent, or other person related by consanguinity or affinity.
1 26 3. "Firearm" includes ammunition and any offensive weapon.
1 27 4. "Intimate relationship" means the same as defined in
1 28 section 235E.1.
1 29 5. "Plaintiff" means a family member, a person with whom the
1 30 respondent is having an intimate relationship with, or a peace
1 31 officer who files a petition under this chapter.
1 32 6. "Possession" includes ownership, custody, or control.
1 33 7. "Respondent" means a person against whom a protective
1 34 order is filed under this chapter.
1 35 Sec. 3. NEW SECTION. 664B.2 Extreme risk protective order
2 1 ==== petition.
2 2 1. A plaintiff may file a petition in the district court
2 3 requesting an extreme risk protective order. Venue shall lie
2 4 in the county where either party resides. The petition shall
2 5 contain all of the following:
2 6 a. Name of the plaintiff and the name and address of the
2 7 plaintiff's attorney, if any. If the plaintiff is proceeding
2 8 pro se, the petition shall state a mailing address for the
2 9 plaintiff. A mailing address may be provided by the plaintiff
2 10 pursuant to section 664B.6.
2 11 b. A statement of facts alleging the respondent presents
2 12 a significant danger to the respondent's self or others by
2 13 possessing, shipping, transporting, or receiving firearms
2 14 accompanied by an affidavit stating the specific statements,
2 15 actions, or facts that give rise to the reasons the respondent
2 16 presents a significant danger to the respondent's self or
2 17 others by possessing, shipping, transporting, or receiving
2 18 firearms.
2 19 c. The location, type, and number of firearms the plaintiff
2 20 believes are possessed by the respondent.
2 21 d. Whether the respondent is subject to a current protective
2 22 order or a no=contact order.
2 23 e. Whether any legal proceeding is pending between the
2 24 plaintiff and respondent, and if so, the nature of the legal
2 25 proceeding.
2 26 f. Desired relief, including a request for temporary or
2 27 emergency orders.
2 28 2. The filing fee and court costs for an extreme risk
2 29 protective order shall be waived for the plaintiff.
2 30 3. The clerk of the district court, the sheriff of any
2 31 county in this state, or any peace officer, or corrections
2 32 officer shall perform their duties relating to service of
2 33 process without charge to the plaintiff. When an order for
2 34 an extreme risk protective is entered by the court, the court
2 35 may direct the respondent to pay to the clerk of court the
3 1 fees for the filing of the petition and reasonable costs of
3 2 service of process if the court determines the respondent has
3 3 the ability to pay the plaintiff's fees and costs. In lieu of
3 4 personal service of a protective order issued pursuant to this
3 5 section, the sheriff of any county in this state, and other law
3 6 enforcement and corrections officers may serve a respondent
3 7 with a short=form notification pursuant to section 664B.3.
3 8 Sec. 4. NEW SECTION. 664B.3 Short=form notification.
3 9 1. In lieu of personal service of an extreme risk protective
3 10 order or an emergency extreme risk protective order on a
3 11 respondent whose firearms are to be surrendered by such an
3 12 order, a sheriff of any county in this state or any peace
3 13 officer or corrections officer in this state may serve the
3 14 respondent with a short=form notification pursuant to this
3 15 section to effectuate service of an unserved order.
3 16 2. Service of a short=form notification under this section
3 17 shall be allowed during traffic stops and other contacts with
3 18 the respondent by a sheriff, peace officer, or corrections
3 19 officer in this state in the course of performing official
3 20 duties. The respondent may be detained for a reasonable period
3 21 of time to complete the short=form notification process.
3 22 3. When the short=form notification process is complete,
3 23 the sheriff, peace officer, or corrections officer serving the
3 24 notification shall file a copy of the notification with the
3 25 clerk of the district court. The filing shall indicate the
3 26 date and time the notification was served on the respondent.
3 27 4. The short=form notification shall be on a form
3 28 prescribed by the state court administrator. The state court
3 29 administrator shall prescribe rules relating to the content
3 30 and distribution of the form to appropriate law enforcement
3 31 agencies in this state. The form shall include but not be
3 32 limited to all of the following statements:
3 33 a. The respondent shall immediately surrender all firearms
3 34 in the respondent's possession and any permit to carry weapons
3 35 or permit to acquire in the possession of the respondent.
4 1 b. The respondent is responsible for obtaining a full copy
4 2 of the extreme risk protective order or emergency extreme risk
4 3 protective order from the county sheriff of the county in which
4 4 the order was entered or from the clerk of the district court.
4 5 c. The terms and conditions of the extreme risk protective
4 6 order or emergency extreme risk protective order are
4 7 enforceable, and the respondent is subject to arrest for
4 8 violating the protective order.
4 9 Sec. 5. NEW SECTION. 664B.4 Plaintiffs proceeding pro se ====
4 10 provision of forms and assistance.
4 11 1. The department of justice shall prescribe standard forms
4 12 to be used by a plaintiff proceeding pro se when filing a
4 13 petition under this chapter. The standard forms shall include
4 14 language in fourteen point boldface type. Standard forms
4 15 prescribed by the department shall be the exclusive forms used
4 16 by a plaintiff proceeding pro se, and may be used by other
4 17 plaintiffs. The department shall distribute the forms to the
4 18 clerks of the district courts.
4 19 2. The clerk of the district court shall furnish the
4 20 required forms to plaintiffs seeking an extreme risk protective
4 21 order through pro se proceedings pursuant to this chapter.
4 22 Sec. 6. NEW SECTION. 664B.5 Assistance by county attorney.
4 23 A county attorney's office may provide assistance to a
4 24 plaintiff wishing to initiate proceedings pursuant to this
4 25 chapter or to a plaintiff at any stage of a proceeding under
4 26 this chapter, if the plaintiff does not have sufficient funds
4 27 to pay for legal assistance and if the assistance does not
4 28 create a conflict of interest for the county attorney's office.
4 29 The assistance provided may include, but is not limited to,
4 30 assistance in obtaining or completing forms, filing a petition
4 31 or other necessary pleading, presenting evidence to the court,
4 32 and enforcing the orders of the court entered pursuant to this
4 33 chapter. Providing assistance pursuant to this section shall
4 34 not be considered the private practice of law for the purposes
4 35 of section 331.752.
5 1 Sec. 7. NEW SECTION. 664B.6 Plaintiff's address ====
5 2 confidentiality of records.
5 3 1. A plaintiff may use any of the following addresses as a
5 4 mailing address for purposes of filing a petition under this
5 5 chapter:
5 6 a. The mailing address of a shelter or other agency.
5 7 b. A public or private post office box.
5 8 c. Any other mailing address, with the permission of the
5 9 resident of that address.
5 10 2. A plaintiff shall report any change of address, whether
5 11 designated according to subsection 1 or otherwise, to the clerk
5 12 of the district court no more than five days after the previous
5 13 address on record becomes invalid.
5 14 3. The entire file or a portion of the file under this
5 15 chapter shall be sealed by the clerk of the district court as
5 16 ordered by the court to protect the privacy interest or safety
5 17 of any person.
5 18 4. Notwithstanding subsection 3, court orders shall remain
5 19 public records, although the court may order that address and
5 20 location information be redacted from the public records.
5 21 Sec. 8. NEW SECTION. 664B.7 Hearing.
5 22 1. Not less than five and not more than fifteen days after
5 23 commencing a proceeding and upon notice to the other party,
5 24 a hearing shall be held at which the plaintiff must prove by
5 25 a preponderance of the evidence that the respondent presents
5 26 a significant danger to the respondent's self or others by
5 27 possessing, shipping, transporting, or receiving firearms.
5 28 2. Upon hearing, if the court finds by a preponderance of
5 29 the evidence that the respondent poses a significant danger
5 30 to the respondent's self or others by possessing, shipping,
5 31 transporting, or receiving firearms, the court shall issue an
5 32 extreme risk protective order for a period of one year.
5 33 3. In determining whether grounds for an extreme risk
5 34 protective order exist, the court may consider any relevant
5 35 evidence including but not limited to the following:
6 1 a. A recent act or threat of violence by the respondent
6 2 against the respondent's self or others, and whether such
6 3 violence or threat involves a firearm.
6 4 b. A pattern of acts or threats of violence against the
6 5 respondent's self or others within the preceding twelve months
6 6 of the filing of the petition.
6 7 c. Any serious mental impairment of the respondent.
6 8 d. Any violation of a no=contact order issued for violations
6 9 or alleged violations of sections 708.2A, 708.7, 708.11, 709.2,
6 10 709.3, and 709.4, and any other public offense for which there
6 11 is a victim.
6 12 e. Any violation of a protective order issued in a civil
6 13 proceeding under chapter 232, 235F, 236, 236A, 598, or 915.
6 14 f. The issuance of a previous extreme risk protective order
6 15 against the respondent under this chapter.
6 16 g. A violation of a previous extreme risk protective order
6 17 issued against the respondent under this chapter.
6 18 h. A conviction of the respondent for a crime that
6 19 constitutes domestic abuse assault in violation of section
6 20 708.2A.
6 21 i. The possession of or access to a firearm, or the intent
6 22 to possess a firearm by the respondent.
6 23 j. The unlawful or reckless use, display, or brandishing of
6 24 a firearm by the respondent.
6 25 k. Any history of use, attempted use, or threatened use of
6 26 physical force by the respondent against another person, or the
6 27 respondent's history of stalking or harassing another person.
6 28 l. Any prior arrest of the respondent for a felony offense
6 29 or violent crime.
6 30 m. Evidence of abuse of a controlled substance or alcohol
6 31 by the respondent.
6 32 n. Evidence of recent acquisition of a firearm by the
6 33 respondent.
6 34 4. The court may:
6 35 a. Examine under oath the plaintiff, the respondent, and
7 1 any witnesses that the plaintiff or respondent produces, or
7 2 in lieu of examination, consider affidavits of the plaintiff,
7 3 the respondent, or any witnesses the plaintiff or respondent
7 4 produces.
7 5 b. Ensure that a reasonable search has been conducted for
7 6 criminal history records relating to the respondent.
7 7 5. During the hearing, the court may order a substance abuse
7 8 evaluation.
7 9 6. An extreme risk protective order shall include all of the
7 10 following:
7 11 a. A statement of the grounds supporting the issuance of the
7 12 order.
7 13 b. The date and time the order was issued.
7 14 c. The date and time the order expires.
7 15 d. Whether a substance abuse evaluation is required.
7 16 e. Whether a responsive pleading may be filed.
7 17 f. A description of the firearms to be surrendered.
7 18 g. An extreme risk protective order shall contain the
7 19 following statement:
7 20 To the subject of this protective order: This order remains
7 21 effective until the date and time noted above. If you have not
7 22 done so already, you must surrender to the (insert the name of
7 23 a local law enforcement agency with jurisdiction) all firearms
7 24 in your possession, custody, or control and surrender any
7 25 permit to carry weapons or permit to acquire in your possession
7 26 to such agency. You shall not have in your possession a
7 27 firearm, or ship, transport, or receive, or attempt to ship,
7 28 transport, or receive such a firearm while this order is in
7 29 effect. You have the right to request one hearing to terminate
7 30 this order during each twelve=month period that this order is
7 31 in effect, starting from the date of this order and continuing
7 32 through any extension of the order. If the order requires
7 33 a substance abuse evaluation, you must first obtain such
7 34 evaluation and disclose the results of the evaluation to the
7 35 court prior to requesting a hearing.
8 1 7. If a hearing is continued, the court may make or extend
8 2 any order issued under subsection 2 that it deems necessary.
8 3 8. Upon the application of a party, the court shall issue
8 4 subpoenas requiring attendance and testimony of witnesses and
8 5 production of papers.
8 6 9. The court shall advise the respondent of a right to be
8 7 represented by counsel of the respondent's choosing and to have
8 8 a continuance to secure counsel.
8 9 10. If applicable, the court shall determine whether the
8 10 respondent has had sufficient opportunity to surrender the
8 11 respondent's firearms after service of an emergency extreme
8 12 risk protective order issued under section 664B.8.
8 13 11. Hearings shall be recorded.
8 14 Sec. 9. NEW SECTION. 664B.8 Emergency extreme risk
8 15 protective order.
8 16 1. A plaintiff may request that an emergency extreme risk
8 17 protective order be issued before a hearing for an extreme
8 18 risk protective order under section 664B.7, without notice
8 19 to the respondent, by including in the petition detailed
8 20 allegations based on personal knowledge that the respondent
8 21 poses a significant danger to the respondent's self or others,
8 22 in the near future, by possessing, shipping, transporting, or
8 23 receiving firearms.
8 24 2. In considering whether to issue an emergency extreme risk
8 25 protective order under this section, the court shall consider
8 26 all relevant evidence described in section 664B.7, subsection
8 27 3.
8 28 3. If the court finds there is good cause to believe that
8 29 the respondent poses a significant danger to the respondent's
8 30 self or others, in the near future, by possessing, shipping,
8 31 transporting, or receiving firearms, the court shall issue an
8 32 emergency extreme risk protective order.
8 33 4. The court shall hold an emergency extreme risk protective
8 34 order hearing in person or by telephone on the day the petition
8 35 is filed.
9 1 5. When the court is unavailable from the close of business
9 2 at the end of the day or week to the resumption of business
9 3 at the beginning of the day or week, a petition may be filed
9 4 before a district judge, or district associate judge designated
9 5 by the chief judge of the judicial district, who may grant
9 6 emergency relief under this section, if the district judge
9 7 or district associate judge finds there is good cause to
9 8 believe that the respondent poses a significant danger to the
9 9 respondent's self or others, in the near future, by possessing,
9 10 shipping, transporting, or receiving firearms.
9 11 6. An emergency extreme risk protective order shall include
9 12 the following:
9 13 a. A statement of the grounds supporting the issuance of the
9 14 order.
9 15 b. The date and time the order was issued.
9 16 c. The date and time the order expires.
9 17 d. Whether a responsive pleading may be filed.
9 18 e. A description of the firearms to be surrendered.
9 19 f. The date and time of the scheduled hearing.
9 20 g. An emergency extreme risk protective order shall contain
9 21 the following statement:
9 22 To the subject of this protective order: This order remains
9 23 effective until the date and time noted above. If you have not
9 24 done so already, you must immediately surrender to the (insert
9 25 the name of a local law enforcement agency with jurisdiction)
9 26 all firearms in your possession, custody, or control, and
9 27 surrender any permit to carry weapons or permit to acquire
9 28 in your possession to such agency. You shall not have in
9 29 your possession a firearm, or ship, transport, or receive, or
9 30 attempt to ship, transport, or receive such a firearm while
9 31 this order is in effect. A hearing will be held on the date
9 32 and time noted above to determine if an extreme risk protective
9 33 order shall be issued. Failure to appear at that hearing may
9 34 result in a court entering an extreme risk protective order
9 35 against you that is valid for a period of one year. You may
10 1 seek the advice of an attorney as to any matter connected with
10 2 this order.
10 3 7. An emergency extreme risk protective order issued under
10 4 this section shall expire upon the issuance of an extreme
10 5 risk protective order under section 664B.7 or if the court
10 6 determines at a hearing on the petition for an extreme risk
10 7 protective order under section 664B.7 that the plaintiff
10 8 has not proven by a preponderance of the evidence that the
10 9 respondent presents a significant danger to the respondent's
10 10 self or others by possessing, shipping, transporting, or
10 11 receiving firearms.
10 12 8. An emergency extreme risk protective order shall be
10 13 served by the sheriff of any county in this state, a peace
10 14 officer, or a corrections officer, in the same manner provided
10 15 in section 664B.2 for the service of the notice and petition,
10 16 and shall be served concurrently with such notice of hearing
10 17 and petition, if possible. Alternatively, an emergency
10 18 extreme risk protective order may be served using short=form
10 19 notification pursuant to section 664B.3, and shall be served
10 20 concurrently with the notice of hearing and petition, if
10 21 possible.
10 22 Sec. 10. NEW SECTION. 664B.9 Notice of extreme risk
10 23 protective order or emergency extreme risk protective order.
10 24 1. The clerk of the district court or other person
10 25 designated by the court shall provide a copy of the extreme
10 26 risk protective order or the emergency extreme risk protective
10 27 order to the plaintiff.
10 28 2. The clerk of the district court shall provide a notice
10 29 and copy of the protective order to the appropriate law
10 30 enforcement agencies and the twenty=four=hour dispatcher for
10 31 the law enforcement agencies in the same manner as provided in
10 32 section 235F.6, 236.5, or 236A.7, as applicable. The clerk
10 33 of the district court shall provide a notice and copy of a
10 34 termination or extension of the protective order in the same
10 35 manner.
11 1 Sec. 11. NEW SECTION. 664B.10 Termination or extension of
11 2 order.
11 3 1. The respondent may request a hearing to terminate
11 4 an extreme risk protective order issued under this chapter
11 5 during the twelve=month period that the order is in effect,
11 6 starting from the date of the order and continuing through any
11 7 extensions.
11 8 a. Upon receipt of a request for a hearing to terminate
11 9 an extreme risk protective order, the court shall set a date
11 10 for a hearing. Notice of the request shall be served on the
11 11 plaintiff. The hearing shall occur no sooner than fourteen
11 12 days and no later than thirty days from the date of service of
11 13 the request upon the plaintiff.
11 14 b. The respondent shall have the burden of proving by a
11 15 preponderance of the evidence that the respondent does not pose
11 16 a significant danger to the respondent's self or others by
11 17 possessing, shipping, transporting, or receiving firearms.
11 18 c. If the court finds after the hearing that the respondent
11 19 has met the burden of proof, the court shall terminate the
11 20 extreme risk protective order.
11 21 2. A family member may, by motion, request an extension
11 22 of an extreme risk protective order within ninety days of the
11 23 expiration of the order.
11 24 a. Upon receipt of a motion to extend an extreme risk
11 25 protective order, the court shall order the hearing be held no
11 26 earlier than fourteen days from the date of the motion.
11 27 b. In considering whether to extend the extreme risk
11 28 protective order under this section, the court shall consider
11 29 all relevant evidence described in section 664B.7, subsection
11 30 3.
11 31 c. If the court finds by a preponderance of the evidence
11 32 that the requirements for issuance of an extreme risk
11 33 protective order continue to be met, the court shall extend
11 34 the order. However, if, after notice, the motion to extend is
11 35 uncontested and the plaintiff does not seek a modification of
12 1 the existing order, the order may be extended on the basis of
12 2 the plaintiff's motion or affidavit stating that there has been
12 3 no material change in relevant circumstances since entry of the
12 4 protective order.
12 5 Sec. 12. NEW SECTION. 664B.11 Firearms and firearm permits
12 6 ==== surrender.
12 7 1. Upon the issuance of an extreme risk protective order
12 8 or an emergency extreme risk protective order, the court shall
12 9 order the respondent to immediately surrender to the law
12 10 enforcement agency named in the protective order, all firearms
12 11 possessed by the respondent and any permit to carry weapons
12 12 or permit to acquire possessed by the respondent, within
12 13 forty=eight hours of service of the order or within forty=eight
12 14 hours of a hearing held pursuant to section 664B.7 at which the
12 15 respondent was present and an order was subsequently issued.
12 16 2. At the time of surrendering any firearms, a law
12 17 enforcement officer taking possession of any firearms
12 18 shall issue a receipt identifying all firearms that have
12 19 been surrendered and provide a copy of the receipt to the
12 20 respondent. Within seventy=two hours after service of the
12 21 order the law enforcement officer serving the order shall file
12 22 the original receipt with the court and shall ensure that the
12 23 law enforcement agency retains a copy of the receipt.
12 24 3. Upon a sworn statement or testimony of the plaintiff or
12 25 of any law enforcement officer alleging that the respondent has
12 26 failed to comply with the surrender of firearms and permits
12 27 as required by any order issued under this section, the court
12 28 shall determine whether probable cause exists to believe that
12 29 the respondent has failed to surrender all firearms or permits
12 30 in the possession of the respondent. If probable cause exists,
12 31 the court shall issue a search warrant describing the firearms
12 32 and authorizing a search of the locations where the firearms
12 33 are reasonably believed to be and the seizure of any firearms
12 34 discovered in the search.
12 35 4. If a person other than the respondent claims to own
13 1 any of the firearms seized or surrendered pursuant to this
13 2 chapter, and the law enforcement agency where the firearms are
13 3 stored determines that person to be the lawful owner of the
13 4 firearms, the firearms shall be returned to the lawful owner if
13 5 the lawful owner agrees to store the firearms in such a manner
13 6 that prevents the respondent from having access to the firearms
13 7 during the time an extreme risk protective order or emergency
13 8 extreme risk protective order is in effect.
13 9 Sec. 13. NEW SECTION. 664B.12 Firearm surrender ==== hearing.
13 10 Upon the issuance of an extreme risk protective order, the
13 11 court shall order a new hearing within three business days
13 12 of the issuance of the order that requires the respondent
13 13 to provide evidence to the court that the respondent has
13 14 surrendered any firearms in the possession of the respondent.
13 15 The court may dismiss the hearing upon a satisfactory showing
13 16 the respondent has complied with the order.
13 17 Sec. 14. NEW SECTION. 664B.13 Firearms ==== storage.
13 18 All law enforcement agencies shall develop policies and
13 19 procedures by June 1, 2019, regarding the acceptance, storage,
13 20 and return of firearms surrendered to a law enforcement agency
13 21 under this chapter.
13 22 Sec. 15. NEW SECTION. 664B.14 Return of firearms and
13 23 unclaimed firearms.
13 24 1. If an extreme risk protective order is terminated or
13 25 expires without an extension, the law enforcement agency in
13 26 possession of any firearms surrendered by a respondent shall
13 27 return any such firearms upon request of the respondent,
13 28 provided the respondent is eligible to possess a firearm.
13 29 2. Notwithstanding section 809.21, for firearms that remain
13 30 unclaimed by the lawful owner, the firearms shall be destroyed
13 31 pursuant to 661 IAC 95.8.
13 32 Sec. 16. NEW SECTION. 664B.15 Penalties.
13 33 1. A person who files a petition under this chapter knowing
13 34 the information in the petition to be materially false commits
13 35 a serious misdemeanor.
14 1 2. A respondent who possesses a firearm, or who ships,
14 2 transports, or receives, or attempts to ship, transport, or
14 3 receive a firearm while an extreme risk protective order or
14 4 emergency extreme risk protective order is in effect commits an
14 5 aggravated misdemeanor.
14 6 3. A person who claims ownership of a firearm pursuant to
14 7 section 664B.11, subsection 4, who agrees to store the firearm
14 8 in such a manner that prevents a respondent from having access
14 9 to the firearm commits a serious misdemeanor if the respondent
14 10 is later found to have access to the firearm that is subject
14 11 to the agreement while an extreme risk protective order is in
14 12 effect.
14 13 4. A respondent who violates subsection 2 shall be
14 14 prohibited from possessing, shipping, transporting, or
14 15 receiving a firearm for a period of five years from the date of
14 16 the conviction.
14 17 Sec. 17. Section 724.8, Code 2018, is amended by adding the
14 18 following new subsections:
14 19 NEW SUBSECTION. 7. Is subject to an extreme risk protective
14 20 order or an emergency extreme risk protective order issued
14 21 under chapter 664B.
14 22 NEW SUBSECTION. 8. Has been convicted of a violation of
14 23 section 664B.15, subsection 2, within the previous five years.
14 24 Sec. 18. Section 724.15, subsection 1, Code 2018, is amended
14 25 by adding the following new paragraphs:
14 26 NEW PARAGRAPH. d. Is subject to an extreme risk protective
14 27 order or an emergency extreme risk protective order issued
14 28 under chapter 664B.
14 29 NEW PARAGRAPH. e. Has been convicted of a violation of
14 30 section 664B.15, subsection 2, within the previous five years.
14 31 Sec. 19. Section 724.26, subsection 2, paragraph a, Code
14 32 2018, is amended to read as follows:
14 33 a. Except as provided in paragraph "b", a person who is
14 34 subject to a protective order under 18 U.S.C. {922(g)(8) or who
14 35 has been convicted of a misdemeanor crime of domestic violence
15 1 under 18 U.S.C. {922(g)(9) and who knowingly possesses,
15 2 ships, transports, or receives a firearm, offensive weapon, or
15 3 ammunition and who is any of the following is guilty of a class
15 4 "D" felony.:
15 5 (i) Is subject to a protective order under 18 U.S.C.
15 6 {922(g)(8).
15 7 (ii) Has been convicted of a misdemeanor crime of domestic
15 8 violence under 18 U.S.C. {922(g)(9).
15 9 (iii) Is subject to an extreme risk protective order under
15 10 chapter 664B.
15 11 EXPLANATION
15 12 The inclusion of this explanation does not constitute agreement with
15 13 the explanation's substance by the members of the general assembly.
15 14 This bill relates to the creation of an extreme risk
15 15 protective order against a person who presents a significant
15 16 danger to the person's self or others by possessing, shipping,
15 17 transporting, or receiving firearms.
15 18 DEFINITIONS. The bill defines "family member" to mean a
15 19 spouse, person cohabiting, a parent, or other person related
15 20 by consanguinity or affinity. The bill defines "firearm" to
15 21 include ammunition and any offensive weapon. The bill defines
15 22 "possession" to include ownership, custody, or control. The
15 23 bill defines "plaintiff" to mean a family member, a person with
15 24 whom the respondent is having an intimate relationship with, or
15 25 a peace officer. The bill defines "intimate relationship" to
15 26 mean the same as defined in Code section 235E.1.
15 27 PETITION FOR EXTREME RISK PROTECTIVE ORDER. Under the bill,
15 28 a plaintiff may file a petition in district court requesting
15 29 an extreme risk protective order stating that the subject of
15 30 the extreme risk protective petition (respondent) presents
15 31 a significant danger to the respondent's self or others by
15 32 possessing, shipping, transporting, or receiving firearms.
15 33 The bill requires the petition to contain an affidavit
15 34 stating the specific facts that give rise to the reasons the
15 35 respondent presents a significant danger to the respondent's
16 1 self or others; the location, type, and number of firearms the
16 2 plaintiff believes are possessed by the respondent; whether
16 3 the respondent is subject to a current protective order or
16 4 no=contact order; and whether any legal proceedings are pending
16 5 between the plaintiff and respondent.
16 6 In lieu of personal service of an extreme risk protective
16 7 order on a respondent, the bill allows a sheriff of any county
16 8 in this state or any peace officer or corrections officer
16 9 in this state to serve the respondent with a short=form
16 10 notification to effectuate service of an unserved order.
16 11 Short=form notification includes service during traffic stops
16 12 and other contacts with the respondent by a sheriff, peace
16 13 officer, or corrections officer in this state in the course of
16 14 performing official duties.
16 15 The bill requires the department of justice to prescribe
16 16 standard forms to be used by a plaintiff proceeding pro se when
16 17 filing an extreme risk protective order petition.
16 18 The bill permits a county attorney's office to provide
16 19 assistance to a plaintiff wishing to initiate the filing of an
16 20 extreme risk protective order petition or to a plaintiff at any
16 21 stage of a proceeding under the bill, if the plaintiff does
16 22 not have sufficient funds to pay for legal assistance and if
16 23 the assistance does not create a conflict of interest for the
16 24 county attorney's office.
16 25 The bill permits the plaintiff to use an alternate mailing
16 26 address for the purposes of filing a petition for an extreme
16 27 risk protective order including the mailing address of a
16 28 shelter or other agency, a public or private post office box,
16 29 or any other mailing address with permission of the resident of
16 30 that address.
16 31 The bill requires that hearing on the petition for an extreme
16 32 risk protective order shall occur not less than five but no
16 33 more than 15 days after commencing the proceeding and after
16 34 notice to the respondent.
16 35 The bill provides that upon hearing on the petition, if
17 1 the court finds by a preponderance of the evidence that the
17 2 respondent presents a significant danger to the respondent's
17 3 self or others by possessing, shipping, transporting, or
17 4 receiving firearms, the court shall issue an extreme risk
17 5 protective order for a period of one year. In determining
17 6 whether grounds for an extreme risk protective order exist,
17 7 the court may consider any relevant evidence including but not
17 8 limited to the following: a recent act or threat of violence
17 9 by the respondent against the respondent's self or others; a
17 10 pattern of acts or threats of violence against the respondent's
17 11 self or others by the respondent within the preceding twelve
17 12 months of the filing of the petition; any serious mental
17 13 impairment of the respondent; any previous violations of
17 14 no=contact orders or protective orders by the respondent; a
17 15 previous issuance of an extreme risk protective order issued
17 16 against the respondent; a previous domestic abuse assault
17 17 conviction; the possession of a firearm or the reckless use,
17 18 display, or brandishing of a firearm by the respondent; any
17 19 history of use of physical force by the respondent against
17 20 another person; any prior criminal history of the respondent;
17 21 and evidence of abuse of a controlled substance or alcohol by
17 22 the respondent.
17 23 EMERGENCY EXTREME RISK PROTECTIVE ORDER. The bill allows
17 24 a plaintiff to request an emergency extreme risk protective
17 25 order, without notice to the respondent, by including in the
17 26 petition detailed allegations based on personal knowledge that
17 27 the respondent poses a significant danger to the respondent's
17 28 self or others, in the near future, by possessing, shipping,
17 29 transporting, or receiving firearms. If the court finds good
17 30 cause to believe that the respondent presents a significant
17 31 danger to the respondent's self or others, in the near future,
17 32 by possessing, shipping, transporting, or receiving firearms,
17 33 the court shall issue an emergency extreme risk protective
17 34 order.
17 35 The court shall hold an emergency extreme risk protective
18 1 order hearing in person or by telephone on the day the petition
18 2 is filed.
18 3 When the court is unavailable from the close of business
18 4 at the end of the day or week to the resumption of business
18 5 at the beginning of the day or week, the bill provides that
18 6 a petition for an extreme risk protective order may be filed
18 7 before a district judge, or district associate judge designated
18 8 by the chief judge of the judicial district, who may grant
18 9 emergency relief, if the district judge or district associate
18 10 judge finds good cause to believe that the respondent presents
18 11 a significant danger to the respondent's self or others, in
18 12 the near future, by possessing, shipping, transporting, or
18 13 receiving firearms.
18 14 The emergency extreme risk protective order shall be
18 15 in effect until the issuance of an extreme risk protective
18 16 order after a hearing on the petition for an extreme risk
18 17 protective order or the court determines at the hearing on the
18 18 petition the plaintiff has not proven by a preponderance of
18 19 the evidence that the respondent presents a significant danger
18 20 to the respondent's self or others by possessing, shipping,
18 21 transporting, or receiving firearms.
18 22 In lieu of personal service of an emergency extreme risk
18 23 protective order on a respondent, the bill allows a sheriff of
18 24 any county in this state or any peace officer or corrections
18 25 officer to serve the respondent with a short=form notification
18 26 to effectuate the service on an unserved order. Short=form
18 27 notification includes service during traffic stops and other
18 28 contacts with the respondent by the sheriff, peace officer, or
18 29 corrections officer.
18 30 REQUEST TO TERMINATE ORDER. Under the bill, the respondent
18 31 may submit a request for a hearing to terminate an extreme risk
18 32 protective order during each 12=month period that the order is
18 33 in effect, beginning from the date of the order and continuing
18 34 through any extensions. The bill provides that the respondent
18 35 shall have the burden of proving by a preponderance of the
19 1 evidence that the respondent does not present a significant
19 2 danger to the respondent's self or others by possessing,
19 3 shipping, transporting, or receiving firearms.
19 4 EXTENSION OF ORDER. An extreme risk protective order may be
19 5 extended under the bill. A family member may by motion request
19 6 an extension of an extreme risk protective order within 90
19 7 days of the expiration of the order. The bill provides that
19 8 if the court finds by a preponderance of the evidence that the
19 9 requirements for issuance of an extreme risk protective order
19 10 continue to be met, the court shall extend the order.
19 11 SURRENDER OF FIREARMS AND FIREARM PERMITS. Upon the
19 12 issuance of an extreme risk protective order or an emergency
19 13 extreme risk protective order, the bill provides that the court
19 14 shall order the respondent to immediately surrender to the law
19 15 enforcement agency named in the protective order, all firearms
19 16 possessed by the respondent and any permit to carry weapons or
19 17 permit to acquire possessed by the respondent, within 48 hours
19 18 of being served with the order or within 48 hours of the end of
19 19 the hearing on the petition at which the respondent was present
19 20 and an order was subsequently issued.
19 21 The bill requires that at the time of surrendering any
19 22 firearms, a peace officer taking possession of any firearms
19 23 shall issue a receipt identifying all firearms that have
19 24 been surrendered and provide a copy of the receipt to the
19 25 respondent.
19 26 Upon a sworn statement or testimony of the petitioner or of
19 27 any peace officer alleging that the respondent has failed to
19 28 comply with the surrender of firearms and permits as required
19 29 by any order, the bill requires the court to determine whether
19 30 probable cause exists to believe that the respondent has failed
19 31 to surrender all firearms or permits in the possession of the
19 32 respondent. If probable cause exists, the bill requires the
19 33 court to issue a search warrant describing the firearms and
19 34 authorizing a search of the locations where the firearms are
19 35 reasonably believed to be and the seizure of any firearms
20 1 discovered in the search.
20 2 If a person other than the respondent claims to own any of
20 3 the firearms seized or surrendered pursuant to the bill and the
20 4 law enforcement agency where the firearms are stored determines
20 5 the person to be the lawful owner of the firearms, the firearms
20 6 shall be returned to the lawful owner if the lawful owner
20 7 agrees to store the firearms in such a manner that prevents
20 8 the respondent from having access to the firearms during the
20 9 time an extreme risk protective order or emergency extreme risk
20 10 protective order is in effect. Under the bill, the lawful
20 11 owner commits a serious misdemeanor if the respondent is later
20 12 found to have access to the firearms while an extreme risk
20 13 protective order or emergency extreme risk protective order is
20 14 in effect against the respondent.
20 15 Upon the issuance of an extreme risk protective order, the
20 16 bill requires the court to order a new hearing within three
20 17 business days of the issuance of the extreme risk protective
20 18 order that requires the respondent to provide evidence to the
20 19 court that the respondent has surrendered any firearms in
20 20 the possession of the respondent. The court may dismiss the
20 21 hearing upon a satisfactory showing the respondent has complied
20 22 with the extreme risk protective order.
20 23 All law enforcement agencies must develop policies and
20 24 procedures by June 1, 2019, regarding the acceptance, storage,
20 25 and return of firearms surrendered to a law enforcement agency
20 26 under the bill.
20 27 RETURN OF FIREARMS. Under the bill, if an extreme risk
20 28 protective order is terminated or expires without an extension,
20 29 the law enforcement agency holding any firearms surrendered by
20 30 the respondent shall return any firearms to the respondent upon
20 31 request of the respondent, provided the respondent is eligible
20 32 to possess a firearm.
20 33 Notwithstanding Code section 809.21 (disposition of seized
20 34 property == sale of certain ammunition and firearms) for
20 35 firearms that remain unclaimed by the lawful owner, the
21 1 firearms shall be destroyed pursuant to 661 IAC 95.8.
21 2 PENALTIES. The bill provides that a respondent shall not
21 3 be eligible to obtain a permit to carry weapons or a permit to
21 4 acquire pistols or revolvers while an extreme risk protective
21 5 order or emergency risk protective order is in effect against
21 6 the respondent.
21 7 The bill provides that a plaintiff who files a petition for
21 8 an extreme protective order knowing the information in the
21 9 petition to be materially false commits a serious misdemeanor.
21 10 The bill provides that a respondent who possesses a firearm,
21 11 or who ships, transports, or receives, or attempts to ship,
21 12 transport, or receive such a firearm while an extreme risk
21 13 protective order or emergency extreme risk protective order
21 14 is in effect against the respondent commits an aggravated
21 15 misdemeanor. A respondent who violates this provision shall
21 16 be prohibited from possessing, shipping, transporting, or
21 17 receiving a firearm for a period of five years from the date of
21 18 the conviction. If, during the five=year prohibition period
21 19 the respondent knowingly has under the respondent's dominion
21 20 and control or possession, or ships, transports, or receives,
21 21 or causes to be shipped, transported, or received a firearm,
21 22 the respondent commits a class "D" felony.
LSB 5002YH (11) 87
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