Arizona-2011-HB2645-Engrossed

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 12-2101, Arizona Revised Statutes, is amended to read:

START_STATUTE12-2101. Judgments and orders that may be appealed

A. An appeal may be taken to the court of appeals from the superior court in the following instances specified in this section.:

B. 1. From a final judgment entered in an action or special proceeding commenced in a superior court, or brought into a superior court from any other court, except in actions of forcible entry and detainer when the annual rental value of the property is less than three hundred dollars.

C. 2. From any special order made after final judgment.

D. 3. From any order affecting a substantial right made in any action when the order in effect determines the action and prevents judgment from which an appeal might be taken.

E. 4. From a final order affecting a substantial right made in a special proceeding or upon on a summary application in an action after judgment.

F. 5. From an order:

1. (a) Granting or refusing a new trial, or granting a motion in arrest of judgment.

2. (b) Granting or dissolving an injunction, or refusing to grant or dissolve an injunction or appointing a receiver.

3. (c) Dissolving or refusing to dissolve an attachment or garnishment.

(d) Granting or denying a petition to restore a person's right to possess a firearm pursuant to section 13-925.

G. 6. From an interlocutory judgment which that determines the rights of the parties and directs an accounting or other proceeding to determine the amount of the recovery.

H. 7. From an interlocutory judgment in any action for partition which that determines the rights and interests of the respective parties, and directs partition to be made.

I. 8. From any interlocutory judgment, decree or order made or entered in actions to redeem real or personal property from a mortgage thereof or lien thereon, determining such right to redeem and directing an accounting.

J. 9. From a judgment, decree or order entered in any formal proceedings under title 14.

K. 10. From an order or judgment:

1. (a) Adjudging a person insane or incompetent, or committing a person to the state hospital.

2. (b) Revoking or refusing to revoke an order or judgment adjudging a person insane or incompetent, or restoring or refusing to restore to competency any person who has been declared insane or incompetent.

L. 11. From an order or judgment made and entered on habeas corpus proceedings:

1. (a) The petitioner may appeal from an order or judgment refusing his discharge.

2. (b) The officer having the custody of the petitioner, or the county attorney on behalf of the state, from an order or judgment discharging the petitioner whereupon the court may admit the petitioner to bail pending the appeal.

M. B. If any of the orders order or judgments judgment referred to in this section are is made or rendered by a judge they are it is appealable as if made by the court. END_STATUTE

Sec. 2. Repeal

Section 13-925, Arizona Revised Statutes, is repealed.

Sec. 3. Title 13, chapter 9, Arizona Revised Statutes, is amended by adding a new section 13-925, to read:

START_STATUTE13-925. Restoration of right to possess a firearm; mentally ill persons; petition

A. A person may petition the court that entered an order, finding or adjudication that resulted in the person being a prohibited possessor as defined in section 13-3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code section 922(d)(4) or (g)(4) to restore the person's right to possess a firearm.

B. The person or the person's guardian or attorney may file the petition.� The petition shall be served on the attorney for the state who appeared in the underlying case.

C. On filing of the petition the court shall set a hearing.� At the hearing, the person shall present psychological or psychiatric evidence in support of the petition.� The state shall provide the court with the person's criminal history records, if any.� The court shall receive evidence on and consider the following before granting or denying the petition:

1. The circumstances that resulted in the person being a prohibited possessor as defined in section 13-3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code section 922(d)(4) or (g)(4).

2. The person's record, including the person's mental health record and criminal history record, if any.

3. The person's reputation based on character witness statements, testimony or other character evidence.

4. Whether the person is a danger to self or others, is persistently, acutely or gravely disabled or whether the circumstances that led to the original order, adjudication or finding remain in effect.

5. Any change in the person's condition or circumstances that is relevant to the relief sought.

6. Any other evidence deemed admissible by the court.

D. The petitioner shall prove by Clear and convincing evidence both of the following:

1. The petitioner is not likely to act in a manner that is dangerous to public safety.

2. Granting the requested relief is not contrary to the public interest.

E. At the conclusion of the hearing, the court shall issue findings of fact and conclusions of law.�

F. If the court grants the petition for relief, the original order, finding or adjudication is deemed not to have occurred for the purposes of applying section 13-3101, subsection A, paragraph 7, subdivision (a), Public Law 110-180, section 105(A) or 18 United States Code section 922(d)(4) or (g)(4) to that person.

G. The granting of a petition under this section only restores the person's right to possess a firearm and does not apply to and has no affect on any other rights or benefits the person receives.

H. The court shall promptly notify the department of public safety of an order granting a petition under this section.� As soon thereafter as practicable the department shall update, correct, modify or remove the person's record in any database that the department maintains and makes available to the national instant criminal background check system consistent with the rules pertaining to the database.� Within ten business days after receiving the notification from the court, the department shall notify the united states attorney general that the person no longer falls within the provisions of section 13-3101, subsection A, paragraph 7, subdivision (a) or 18 United States Code section 922(d)(4) or (g)(4). END_STATUTE

Sec. 4. Title 13, chapter 40, Arizona Revised Statutes, is amended by adding section 13-4441, to read:

START_STATUTE13-4441. Right to be heard on a petition to restore the right to possess a firearm; notice

A. A victim has the right to be present and be heard at any proceeding in which the defendant has filed a petition pursuant to section 13-925 to restore the defendant's right to possess a firearm.

B. If the victim has made a request for postconviction notice, the attorney for the state shall provide notice to the victim at least five days before the hearing. END_STATUTE

Sec. 5. Section 38-1102, Arizona Revised Statutes, is amended to read:

START_STATUTE38-1102. Carrying of firearms by peace officers; exceptions; definitions

A. Notwithstanding any other law and except as provided pursuant to subsection B �C of this section, a peace officer shall not be prohibited from carrying a firearm if the peace officer is in compliance with the firearm requirements prescribed by the Arizona peace officer standards and training board.

B. Notwithstanding any other law and except as provided pursuant to subsection C, paragraphs 1, 2, 4, 5, 6, 7 and 8, a retired peace officer shall not be prohibited from carrying a firearm.

B. C. A peace officer or retired peace officer may be prohibited from carrying a firearm as follows:

1. In a jail, correctional facility or juvenile detention facility.

2. By order of:

(a) The presiding judge or justice when attending any court that is established pursuant to the constitution of this state or title 12, except if the peace officer or retired peace officer is providing court security or responding to an emergency.

(b) A justice court when attending the justice court, except if the peace officer or retired peace officer is providing court security or responding to an emergency.

(c) A municipal court when attending the municipal court, except if the peace officer or retired peace officer is providing court security or responding to an emergency.

3. When the peace officer is relieved of duty and is under a criminal or administrative investigation.

4. When in a secured police facility.

5. When consuming alcohol at a licensed liquor establishment operated by this state, a county, a city or town or any other political subdivision of this state, except if the a peace officer's employing agency authorizes the consumption of alcohol in the performance of the peace officer's duties.

6. In a location prohibited by federal law.

7. Pursuant to court order.

8. Pursuant to any state or federal law that makes the officer a prohibited possessor.

9. When in the judgment of the department head, or the department head's designee, the peace officer exhibits any impairment, including any physical or mental impairment that would cause concern for the well-being and safety of the officer, the officer's law enforcement agency, law enforcement agency employees or the community.

C. D. A law enforcement agency that employs a peace officer may establish rules that are consistent with this section.� The law enforcement agency may determine the number, type, model, caliber and brand of firearm and the ammunition that is carried by its peace officers on or off duty.

D. E. This section does not create any civil liability for acting or failing to act.

E. F. For the purposes of this section:

1. "Firearm" has the same meaning prescribed in section 13‑105.

2. "Peace officer" has the same meaning prescribed in section 1‑215.

3. "Relieved of duty" means when a peace officer is no longer required to perform, either temporarily or permanently, the duties for which the officer was employed.

4. "Retired peace officer" means a person who has honorably served as a law enforcement officer in the United States for at least ten consecutive years and who possesses a photographic identification or a letter from a law enforcement agency that states the person has served for at least ten consecutive years as a law enforcement officer in the United States.

4. 5. "Secured police facility" means a building or structure that is used primarily by a public agency and that is not accessible to the general public except by controlled access. END_STATUTE