Bill Text: IA HF2115 | 2023-2024 | 90th General Assembly | Introduced

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Bill Title: A bill for an act relating to the creation of an extreme risk protective order against a person in possession of a firearm who presents a significant danger to the person's self or others, and providing penalties.

Spectrum: Partisan Bill (Democrat 12-0)

Status: (Introduced) 2024-01-23 - Introduced, referred to Public Safety. H.J. 120. [HF2115 Detail]

Download: Iowa-2023-HF2115-Introduced.html

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House File 2115 - Introduced
HOUSE FILE 2115
BY STAED , BAETH , AMOS JR. ,
KURTH , STECKMAN , CAHILL ,
SCHEETZ , LEVIN , GAINES ,
ABDUL-SAMAD , KRESSIG , and
BROWN-POWERS
A BILL FOR
An Act relating to the creation of an extreme risk protective
order against a person in possession of a firearm who
presents a significant danger to the person’s self or
others, and providing penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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Section 1. Section 664A.1, subsection 2, Code 2024, is
amended to read as follows:
2. a. “Protective order” means a protective order issued
pursuant to chapter 232 , a court order or court-approved
consent agreement entered pursuant to this chapter or chapter
235F , a court order or court-approved consent agreement entered
pursuant to chapter 236 or 236A , including a valid foreign
protective order under section 236.19, subsection 3 , or section
236A.19, subsection 3 , a temporary or permanent protective
order or order to vacate the homestead under chapter 598 , or an
order that establishes conditions of release or is a protective
order or sentencing order in a criminal prosecution arising
from a domestic abuse assault under section 708.2A or older
individual assault under section 708.2D , or a civil injunction
issued pursuant to section 915.22 .
b. “Protective order” does not include an extreme risk
protective order issued pursuant to chapter 664B.
Sec. 2. NEW SECTION . 664B.1 Definitions.
As used in this chapter unless the context otherwise
requires:
1. “Affidavit” means a written declaration or statement of
fact made under oath, or legally sufficient affirmation, before
any person authorized to administer oaths within or without the
state.
2. “Family member” means a spouse, person cohabiting, a
parent, or other person related by consanguinity or affinity.
3. “Firearm” includes ammunition and any offensive weapon as
that term is defined in section 724.1.
4. “Intimate relationship” means the same as defined in
section 235E.1.
5. “Plaintiff” means a family member, a person with whom the
respondent is having an intimate relationship with, or a peace
officer who files a petition under this chapter.
6. “Possession” includes ownership, custody, or control.
7. “Respondent” means a person against whom a protective
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order is filed under this chapter.
Sec. 3. NEW SECTION . 664B.2 Extreme risk protective order
—— petition.
1. A plaintiff may file a petition in the district court
requesting an extreme risk protective order. Venue shall lie
in the county where either party resides. The petition shall
contain all of the following:
a. The name of the plaintiff and the name and address of the
plaintiff’s attorney, if any. If the plaintiff is proceeding
pro se, the petition shall state a mailing address for the
plaintiff. A mailing address may be provided by the plaintiff
pursuant to section 664B.6.
b. A statement of facts alleging the respondent presents
a significant danger to the respondent’s self or others by
possessing, shipping, transporting, or receiving firearms
accompanied by an affidavit stating the specific statements,
actions, or facts that give rise to the reasons the respondent
presents a significant danger to the respondent’s self or
others by possessing, shipping, transporting, or receiving
firearms.
c. The location, type, and number of firearms the plaintiff
believes are possessed by the respondent.
d. Whether the respondent is subject to a current protective
order or a no-contact order.
e. Whether any legal proceeding is pending between the
plaintiff and respondent, and if so, the nature of the legal
proceeding.
f. Desired relief, including a request for temporary or
emergency orders.
2. The filing fee and court costs for an extreme risk
protective order shall be waived for the plaintiff.
3. The clerk of the district court, the sheriff of any
county in this state, or any peace officer or corrections
officer shall perform their duties relating to service of
process without charge to the plaintiff. When an order for
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an extreme risk protective order is entered by the court, the
court may direct the respondent to pay to the clerk of court
the fees for the filing of the petition and reasonable costs
of service of process if the court determines the respondent
has the ability to pay the plaintiff’s fees and costs. In lieu
of personal service of an extreme risk protective order issued
pursuant to this section, the sheriff of any county in this
state, and other law enforcement and corrections officers, may
serve a respondent with a short-form notification pursuant to
section 664B.3.
Sec. 4. NEW SECTION . 664B.3 Short-form notification.
1. In lieu of personal service of an extreme risk protective
order or an emergency extreme risk protective order on a
respondent whose firearms are to be surrendered by such an
order, a sheriff of any county in this state or any peace
officer or corrections officer in this state may serve the
respondent with a short-form notification pursuant to this
section to effectuate service of an unserved order.
2. Service of a short-form notification under this section
shall be allowed during traffic stops and other contacts with
the respondent by a sheriff, peace officer, or corrections
officer in this state in the course of performing official
duties. The respondent may be detained for a reasonable period
of time to complete the short-form notification process.
3. When the short-form notification process is complete,
the sheriff, peace officer, or corrections officer serving the
notification shall file a copy of the notification with the
clerk of the district court. The filing shall indicate the
date and time the notification was served on the respondent.
4. The short-form notification shall be on a form
prescribed by the state court administrator. The state court
administrator shall prescribe rules relating to the content
and distribution of the form to appropriate law enforcement
agencies in this state. The form shall include but not be
limited to all of the following statements:
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a. The respondent shall immediately surrender all firearms
in the respondent’s possession and any permit to carry weapons
or permit to acquire in the respondent’s possession.
b. The respondent is responsible for obtaining a full copy
of the extreme risk protective order or emergency extreme risk
protective order from the county sheriff of the county in which
the order was entered or from the clerk of the district court.
c. The terms and conditions of the extreme risk protective
order or emergency extreme risk protective order are
enforceable, and the respondent is subject to arrest for
violating the protective order.
Sec. 5. NEW SECTION . 664B.4 Plaintiffs proceeding pro se ——
provision of forms and assistance.
1. The department of justice shall prescribe standard forms
to be used by a plaintiff proceeding pro se when filing a
petition under this chapter. The standard forms shall include
language in fourteen point boldface type. Standard forms
prescribed by the department shall be the exclusive forms used
by a plaintiff proceeding pro se, and may be used by other
plaintiffs. The department shall distribute the forms to the
clerks of the district courts.
2. The clerk of the district court shall furnish the
required forms to plaintiffs seeking an extreme risk protective
order through pro se proceedings pursuant to this chapter.
Sec. 6. NEW SECTION . 664B.5 Assistance by county attorney.
A county attorney’s office may provide assistance to a
plaintiff wishing to initiate proceedings pursuant to this
chapter or to a plaintiff at any stage of a proceeding under
this chapter, if the plaintiff does not have sufficient funds
to pay for legal assistance and if the assistance does not
create a conflict of interest for the county attorney’s office.
The assistance provided may include but is not limited to
assistance in obtaining or completing forms, filing a petition
or other necessary pleading, presenting evidence to the court,
and enforcing the orders of the court entered pursuant to this
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chapter. Providing assistance pursuant to this section shall
not be considered the private practice of law for the purposes
of section 331.752.
Sec. 7. NEW SECTION . 664B.6 Plaintiff’s address ——
confidentiality of records.
1. A plaintiff may use any of the following addresses as a
mailing address for purposes of filing a petition under this
chapter:
a. The mailing address of a shelter or other agency.
b. A public or private post office box.
c. Any other mailing address, with the permission of the
resident of that address.
2. A plaintiff shall report any change of address, whether
designated according to subsection 1 or otherwise, to the clerk
of the district court no more than five days after the previous
address on record becomes invalid.
3. The entire file or a portion of the file under this
chapter shall be sealed by the clerk of the district court as
ordered by the court to protect the privacy interest or safety
of any person.
4. Notwithstanding subsection 3, court orders shall remain
public records, although the court may order that address and
location information be redacted from the public records.
Sec. 8. NEW SECTION . 664B.7 Hearing.
1. Not less than five and not more than fifteen days after
commencing a proceeding and upon notice to the other party,
a hearing shall be held at which the plaintiff must prove by
a preponderance of the evidence that the respondent presents
a significant danger to the respondent’s self or others by
possessing, shipping, transporting, or receiving firearms.
2. Upon hearing, if the court finds by a preponderance of
the evidence that the respondent poses a significant danger
to the respondent’s self or others by possessing, shipping,
transporting, or receiving firearms, the court shall issue an
extreme risk protective order for a period of one year.
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3. In determining whether grounds for an extreme risk
protective order exist, the court may consider any relevant
evidence including but not limited to the following:
a. A recent act or threat of violence by the respondent
against the respondent’s self or others, and whether such
violence or threat involves a firearm.
b. A pattern of acts or threats of violence against the
respondent’s self or others within the preceding twelve months
of the filing of the petition.
c. Any serious mental impairment of the respondent.
d. Any violation of a no-contact order issued for violations
or alleged violations of sections 708.2A, 708.2D, 708.7,
708.11, 709.2, 709.3, and 709.4, and any other public offense
for which there is a victim.
e. Any violation of a protective order issued in a civil
proceeding under chapter 232, 235F, 236, 236A, 598, or 915.
f. The issuance of a previous extreme risk protective order
against the respondent under this chapter.
g. A violation of a previous extreme risk protective order
issued against the respondent under this chapter.
h. A conviction of the respondent for a crime that
constitutes domestic abuse assault in violation of section
708.2A.
i. The possession of or access to a firearm, or the intent
to possess a firearm by the respondent.
j. The unlawful or reckless use, display, or brandishing of
a firearm by the respondent.
k. Any history of use, attempted use, or threatened use of
physical force by the respondent against another person, or the
respondent’s history of stalking or harassing another person.
l. Any prior arrest of the respondent for a felony offense
or violent crime.
m. Evidence of abuse of a controlled substance or alcohol
by the respondent.
n. Evidence of recent acquisition of a firearm by the
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respondent.
4. The court may:
a. Examine under oath the plaintiff, the respondent, and
any witnesses that the plaintiff or respondent produces, or
in lieu of examination, consider affidavits of the plaintiff,
the respondent, or any witnesses the plaintiff or respondent
produces.
b. Ensure that a reasonable search has been conducted for
criminal history records relating to the respondent.
5. During the hearing, the court may order a substance abuse
evaluation.
6. An extreme risk protective order shall include all of the
following:
a. A statement of the grounds supporting the issuance of the
order.
b. The date and time the order was issued.
c. The date and time the order expires.
d. Whether a substance abuse evaluation is required.
e. Whether a responsive pleading may be filed.
f. A description of the firearms to be surrendered.
g. The following statement in substantially the same form:
To the subject of this protective order: This order remains
effective until the date and time noted above. If you have
not done so already, you must surrender to the (insert the
name of a local law enforcement agency with jurisdiction)
all firearms in your possession, custody, or control and
surrender any permit to carry weapons or permit to acquire in
your possession to such agency. You shall not have in your
possession a firearm or ship, transport, or receive, or attempt
to ship, transport, or receive, such a firearm while this order
is in effect. You have the right to request one hearing to
terminate this order during each twelve-month period that this
order is in effect, starting from the date of this order and
continuing through any extension of the order. If the order
requires a substance abuse evaluation, you must first obtain
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such evaluation and disclose the results of the evaluation to
the court prior to requesting a hearing.
7. If a hearing is continued, the court may make or extend
any order issued under subsection 2 that it deems necessary.
8. Upon the application of a party, the court shall issue
subpoenas requiring attendance and testimony of witnesses and
production of papers.
9. The court shall advise the respondent of a right to be
represented by counsel of the respondent’s choosing and to have
a continuance to secure counsel.
10. If applicable, the court shall determine whether the
respondent has had sufficient opportunity to surrender the
respondent’s firearms after service of an emergency extreme
risk protective order issued under section 664B.8.
11. Hearings shall be recorded.
Sec. 9. NEW SECTION . 664B.8 Emergency extreme risk
protective order.
1. A plaintiff may request that an emergency extreme risk
protective order be issued before a hearing for an extreme
risk protective order under section 664B.7, without notice
to the respondent, by including in the petition detailed
allegations based on personal knowledge that the respondent
poses a significant danger to the respondent’s self or others,
in the near future, by possessing, shipping, transporting, or
receiving firearms.
2. In considering whether to issue an emergency extreme risk
protective order under this section, the court shall consider
all relevant evidence described in section 664B.7, subsection
3.
3. If the court finds there is good cause to believe that
the respondent poses a significant danger to the respondent’s
self or others, in the near future, by possessing, shipping,
transporting, or receiving firearms, the court shall issue an
emergency extreme risk protective order.
4. The court shall hold an emergency extreme risk protective
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order hearing in person or by telephone on the day the petition
is filed.
5. When the court is unavailable from the close of business
at the end of the day or week to the resumption of business
at the beginning of the day or week, a petition may be filed
before a district judge, or district associate judge designated
by the chief judge of the judicial district, who may grant
emergency relief under this section, if the district judge
or district associate judge finds there is good cause to
believe that the respondent poses a significant danger to the
respondent’s self or others, in the near future, by possessing,
shipping, transporting, or receiving firearms.
6. An emergency extreme risk protective order shall include
all of the following:
a. A statement of the grounds supporting the issuance of the
order.
b. The date and time the order was issued.
c. The date and time the order expires.
d. Whether a responsive pleading may be filed.
e. A description of the firearms to be surrendered.
f. The date and time of the scheduled hearing.
g. The following statement in substantially the same form:
To the subject of this protective order: This order remains
effective until the date and time noted above. If you have not
done so already, you must immediately surrender to the (insert
the name of a local law enforcement agency with jurisdiction)
all firearms in your possession, custody, or control, and
surrender any permit to carry weapons or permit to acquire in
your possession to such agency. You shall not have in your
possession a firearm or ship, transport, or receive, or attempt
to ship, transport, or receive, such a firearm while this order
is in effect. A hearing will be held on the date and time noted
above to determine if an extreme risk protective order shall
be issued. Failure to appear at that hearing may result in a
court entering an extreme risk protective order against you
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that is valid for a period of one year. You may seek the advice
of an attorney as to any matter connected with this order.
7. An emergency extreme risk protective order issued under
this section shall expire upon the issuance of an extreme
risk protective order under section 664B.7 or if the court
determines at a hearing on the petition for an extreme risk
protective order under section 664B.7 that the plaintiff
has not proven by a preponderance of the evidence that the
respondent presents a significant danger to the respondent’s
self or others by possessing, shipping, transporting, or
receiving firearms.
8. An emergency extreme risk protective order shall be
served by the sheriff of any county in this state, a peace
officer, or a corrections officer, in the same manner provided
in section 664B.2 for the service of the notice and petition,
and shall be served concurrently with such notice of hearing
and petition, if possible. Alternatively, an emergency
extreme risk protective order may be served using short-form
notification pursuant to section 664B.3, and shall be served
concurrently with the notice of hearing and petition, if
possible.
Sec. 10. NEW SECTION . 664B.9 Notice of extreme risk
protective order or emergency extreme risk protective order.
1. The clerk of the district court or other person
designated by the court shall provide a copy of the extreme
risk protective order or the emergency extreme risk protective
order to the plaintiff.
2. The clerk of the district court shall provide a notice
and copy of the protective order to the appropriate law
enforcement agencies and the twenty-four-hour dispatcher for
the law enforcement agencies in the same manner as provided in
section 235F.6, 236.5, or 236A.7, as applicable. The clerk
of the district court shall provide a notice and copy of a
termination or extension of the protective order in the same
manner.
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Sec. 11. NEW SECTION . 664B.10 Termination or extension of
order.
1. The respondent may request a hearing to terminate
an extreme risk protective order issued under this chapter
during the twelve-month period that the order is in effect,
starting from the date of the order and continuing through any
extensions.
a. Upon receipt of a request for a hearing to terminate
an extreme risk protective order, the court shall set a date
for a hearing. Notice of the request shall be served on the
plaintiff. The hearing shall occur no sooner than fourteen
days and no later than thirty days from the date of service of
the request upon the plaintiff.
b. The respondent shall have the burden of proving by a
preponderance of the evidence that the respondent does not pose
a significant danger to the respondent’s self or others by
possessing, shipping, transporting, or receiving firearms.
c. If the court finds after the hearing that the respondent
has met the burden of proof, the court shall terminate the
extreme risk protective order.
2. A family member may, by motion, request an extension
of an extreme risk protective order within ninety days of the
expiration of the order.
a. Upon receipt of a motion to extend an extreme risk
protective order, the court shall order the hearing be held no
earlier than fourteen days from the date of the motion.
b. In considering whether to extend the extreme risk
protective order under this section, the court shall consider
all relevant evidence described in section 664B.7, subsection
3.
c. If the court finds by a preponderance of the evidence
that the requirements for issuance of an extreme risk
protective order continue to be met, the court shall extend
the order. However, if, after notice, the motion to extend is
uncontested and the plaintiff does not seek a modification of
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the existing order, the order may be extended on the basis of
the plaintiff’s motion or affidavit stating that there has been
no material change in relevant circumstances since entry of the
protective order.
Sec. 12. NEW SECTION . 664B.11 Firearms and firearm permits
—— surrender.
1. Upon the issuance of an extreme risk protective order
or an emergency extreme risk protective order, the court
shall order the respondent to immediately surrender to the
law enforcement agency named in the protective order all
firearms possessed by the respondent and any permit to carry
weapons or permit to acquire possessed by the respondent within
forty-eight hours of service of the order or within forty-eight
hours of a hearing held pursuant to section 664B.7 at which the
respondent was present and an order was subsequently issued.
2. At the time of surrendering any firearms, a law
enforcement officer taking possession of any firearms
shall issue a receipt identifying all firearms that have
been surrendered and provide a copy of the receipt to the
respondent. Within seventy-two hours after service of the
order the law enforcement officer serving the order shall file
the original receipt with the court and shall ensure that the
law enforcement agency retains a copy of the receipt.
3. Upon a sworn statement or testimony of the plaintiff or
of any law enforcement officer alleging that the respondent has
failed to comply with the surrender of firearms and permits
as required by any order issued under this section, the court
shall determine whether probable cause exists to believe that
the respondent has failed to surrender all firearms or permits
in the possession of the respondent. If probable cause exists,
the court shall issue a search warrant describing the firearms
and authorizing a search of the locations where the firearms
are reasonably believed to be and the seizure of any firearms
discovered in the search.
4. If a person other than the respondent claims to own
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any of the firearms seized or surrendered pursuant to this
chapter, and the law enforcement agency where the firearms are
stored determines that person to be the lawful owner of the
firearms, the firearms shall be returned to the lawful owner if
the lawful owner agrees to store the firearms in such a manner
that prevents the respondent from having access to the firearms
during the time an extreme risk protective order or emergency
extreme risk protective order is in effect.
Sec. 13. NEW SECTION . 664B.12 Firearm surrender —— hearing.
Upon the issuance of an extreme risk protective order, the
court shall order a new hearing within three business days
of the issuance of the order that requires the respondent
to provide evidence to the court that the respondent has
surrendered any firearms in the possession of the respondent.
The court may dismiss the hearing upon a satisfactory showing
that the respondent has complied with the order.
Sec. 14. NEW SECTION . 664B.13 Firearms —— storage.
All law enforcement agencies shall develop policies and
procedures by June 1, 2025, regarding the acceptance, storage,
and return of firearms surrendered to a law enforcement agency
under this chapter.
Sec. 15. NEW SECTION . 664B.14 Return of firearms and
unclaimed firearms.
1. If an extreme risk protective order is terminated or
expires without an extension, the law enforcement agency in
possession of any firearms surrendered by a respondent shall
return any such firearms upon request of the respondent,
provided the respondent is eligible to possess a firearm.
2. Notwithstanding section 809.21, for firearms that remain
unclaimed by the lawful owner, the firearms shall be destroyed
pursuant to 661 IAC 95.8.
Sec. 16. NEW SECTION . 664B.15 Penalties.
1. A person who files a petition under this chapter knowing
the information in the petition to be materially false commits
a serious misdemeanor.
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2. A respondent who possesses a firearm or who ships,
transports, or receives, or attempts to ship, transport, or
receive, a firearm while an extreme risk protective order or
emergency extreme risk protective order is in effect commits an
aggravated misdemeanor.
3. A person who claims ownership of a firearm pursuant to
section 664B.11, subsection 4, who agrees to store the firearm
in such a manner that prevents a respondent from having access
to the firearm commits a serious misdemeanor if the respondent
is later found to have access to the firearm that is subject
to the agreement while an extreme risk protective order is in
effect.
4. A respondent who violates subsection 2 shall be
prohibited from possessing, shipping, transporting, or
receiving a firearm for a period of five years from the date of
the conviction.
Sec. 17. Section 724.8, Code 2024, is amended by adding the
following new subsections:
NEW SUBSECTION . 7. Is subject to an extreme risk protective
order or an emergency extreme risk protective order issued
under chapter 664B.
NEW SUBSECTION . 8. Has been convicted of a violation of
section 664B.15, subsection 2, within the previous five years.
Sec. 18. Section 724.15, subsection 2, Code 2024, is amended
by adding the following new paragraphs:
NEW PARAGRAPH . f. Is subject to an extreme risk protective
order or an emergency extreme risk protective order issued
under chapter 664B.
NEW PARAGRAPH . g. Has been convicted of a violation of
section 664B.15, subsection 2, within the previous five years.
Sec. 19. Section 724.26, subsection 2, paragraph a, Code
2024, is amended to read as follows:
a. Except as provided in paragraph “b” , a person who is
subject to a protective order under 18 U.S.C. §922(g)(8) or who
has been convicted of a misdemeanor crime of domestic violence
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under 18 U.S.C. §922(g)(9) and who knowingly possesses,
ships, transports, or receives a firearm, offensive weapon, or
ammunition and who is any of the following is guilty of a class
“D” felony . :
(1) Is subject to a protective order under 18 U.S.C.
§922(g)(8).
(2) Has been convicted of a misdemeanor crime of domestic
violence under 18 U.S.C. §922(g)(9).
(3) Is subject to an extreme risk protective order under
chapter 664B.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
This bill relates to the creation of an extreme risk
protective order against a person who presents a significant
danger to the person’s self or others by possessing, shipping,
transporting, or receiving firearms.
DEFINITIONS. The bill defines “family member” to mean a
spouse, person cohabiting, a parent, or other person related
by consanguinity or affinity. The bill defines “firearm” to
include ammunition and any offensive weapon as that term is
defined in Code section 724.1. The bill defines “possession”
to include ownership, custody, or control. The bill defines
“plaintiff” to mean a family member, a person with whom the
respondent is having an intimate relationship with, or a peace
officer. The bill defines “intimate relationship” to mean the
same as defined in Code section 235E.1.
PETITION FOR EXTREME RISK PROTECTIVE ORDER. Under the bill,
a plaintiff may file a petition in district court requesting
an extreme risk protective order stating that the subject of
the extreme risk protective petition (respondent) presents
a significant danger to the respondent’s self or others by
possessing, shipping, transporting, or receiving firearms.
The bill requires the petition to contain an affidavit
stating the specific facts that give rise to the reasons the
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respondent presents a significant danger to the respondent’s
self or others; the location, type, and number of firearms the
plaintiff believes are possessed by the respondent; whether
the respondent is subject to a current protective order or
no-contact order; and whether any legal proceedings are pending
between the plaintiff and respondent.
In lieu of personal service of an extreme risk protective
order on a respondent, the bill allows a sheriff of any county
in this state or any peace officer or corrections officer
in this state to serve the respondent with a short-form
notification to effectuate service of an unserved order.
Short-form notification includes service during traffic stops
and other contacts with the respondent by a sheriff, peace
officer, or corrections officer in this state in the course of
performing official duties.
The bill requires the department of justice to prescribe
standard forms to be used by a plaintiff proceeding pro se when
filing an extreme risk protective order petition.
The bill permits a county attorney’s office to provide
assistance to a plaintiff wishing to initiate the filing of an
extreme risk protective order petition or to a plaintiff at any
stage of a proceeding under the bill, if the plaintiff does
not have sufficient funds to pay for legal assistance and if
the assistance does not create a conflict of interest for the
county attorney’s office.
The bill permits the plaintiff to use an alternate mailing
address for the purposes of filing a petition for an extreme
risk protective order including the mailing address of a
shelter or other agency, a public or private post office box,
or any other mailing address with permission of the resident of
that address.
The bill requires that hearing on the petition for an extreme
risk protective order shall occur not less than five but no
more than 15 days after commencing the proceeding and after
notice to the respondent.
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The bill provides that upon hearing on the petition, if
the court finds by a preponderance of the evidence that the
respondent presents a significant danger to the respondent’s
self or others by possessing, shipping, transporting, or
receiving firearms, the court shall issue an extreme risk
protective order for a period of one year. In determining
whether grounds for an extreme risk protective order exist,
the court may consider any relevant evidence including but not
limited to the following: a recent act or threat of violence
by the respondent against the respondent’s self or others; a
pattern of acts or threats of violence against the respondent’s
self or others by the respondent within the preceding twelve
months of the filing of the petition; any serious mental
impairment of the respondent; any previous violations of
no-contact orders or protective orders by the respondent; a
previous issuance of an extreme risk protective order issued
against the respondent; a previous domestic abuse assault
conviction; the possession of a firearm or the reckless use,
display, or brandishing of a firearm by the respondent; any
history of use of physical force by the respondent against
another person; any prior criminal history of the respondent;
and evidence of abuse of a controlled substance or alcohol by
the respondent.
EMERGENCY EXTREME RISK PROTECTIVE ORDER. The bill allows
a plaintiff to request an emergency extreme risk protective
order, without notice to the respondent, by including in the
petition detailed allegations based on personal knowledge that
the respondent poses a significant danger to the respondent’s
self or others, in the near future, by possessing, shipping,
transporting, or receiving firearms. If the court finds good
cause to believe that the respondent presents a significant
danger to the respondent’s self or others, in the near future,
by possessing, shipping, transporting, or receiving firearms,
the court shall issue an emergency extreme risk protective
order.
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The court shall hold an emergency extreme risk protective
order hearing in person or by telephone on the day the petition
is filed.
When the court is unavailable from the close of business
at the end of the day or week to the resumption of business
at the beginning of the day or week, the bill provides that
a petition for an extreme risk protective order may be filed
before a district judge, or district associate judge designated
by the chief judge of the judicial district, who may grant
emergency relief, if the district judge or district associate
judge finds good cause to believe that the respondent presents
a significant danger to the respondent’s self or others, in
the near future, by possessing, shipping, transporting, or
receiving firearms.
The emergency extreme risk protective order shall be in
effect until the issuance of an extreme risk protective order
after a hearing on the petition for an extreme risk protective
order or the court determines at the hearing on the petition
that the plaintiff has not proven by a preponderance of the
evidence that the respondent presents a significant danger
to the respondent’s self or others by possessing, shipping,
transporting, or receiving firearms.
In lieu of personal service of an emergency extreme risk
protective order on a respondent, the bill allows a sheriff of
any county in this state or any peace officer or corrections
officer to serve the respondent with a short-form notification
to effectuate the service on an unserved order. Short-form
notification includes service during traffic stops and other
contacts with the respondent by the sheriff, peace officer, or
corrections officer.
REQUEST TO TERMINATE ORDER. Under the bill, the respondent
may submit a request for a hearing to terminate an extreme risk
protective order during each 12-month period that the order is
in effect, beginning from the date of the order and continuing
through any extensions. The bill provides that the respondent
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shall have the burden of proving by a preponderance of the
evidence that the respondent does not present a significant
danger to the respondent’s self or others by possessing,
shipping, transporting, or receiving firearms.
EXTENSION OF ORDER. An extreme risk protective order may be
extended under the bill. A family member may by motion request
an extension of an extreme risk protective order within 90
days of the expiration of the order. The bill provides that
if the court finds by a preponderance of the evidence that the
requirements for issuance of an extreme risk protective order
continue to be met, the court shall extend the order.
SURRENDER OF FIREARMS AND FIREARM PERMITS. Upon the
issuance of an extreme risk protective order or an emergency
extreme risk protective order, the bill provides that the court
shall order the respondent to immediately surrender to the law
enforcement agency named in the protective order all firearms
possessed by the respondent and any permit to carry weapons or
permit to acquire possessed by the respondent within 48 hours
of being served with the order or within 48 hours of the end of
the hearing on the petition at which the respondent was present
and an order was subsequently issued.
The bill requires that at the time of surrendering any
firearms, a peace officer taking possession of any firearms
shall issue a receipt identifying all firearms that have
been surrendered and provide a copy of the receipt to the
respondent.
Upon a sworn statement or testimony of the petitioner or of
any peace officer alleging that the respondent has failed to
comply with the surrender of firearms and permits as required
by any order, the bill requires the court to determine whether
probable cause exists to believe that the respondent has failed
to surrender all firearms or permits in the possession of the
respondent. If probable cause exists, the bill requires the
court to issue a search warrant describing the firearms and
authorizing a search of the locations where the firearms are
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reasonably believed to be and the seizure of any firearms
discovered in the search.
If a person other than the respondent claims to own any of
the firearms seized or surrendered pursuant to the bill and the
law enforcement agency where the firearms are stored determines
the person to be the lawful owner of the firearms, the firearms
shall be returned to the lawful owner if the lawful owner
agrees to store the firearms in such a manner that prevents
the respondent from having access to the firearms during the
time an extreme risk protective order or emergency extreme risk
protective order is in effect. Under the bill, the lawful
owner commits a serious misdemeanor if the respondent is later
found to have access to the firearms while an extreme risk
protective order or emergency extreme risk protective order is
in effect against the respondent.
Upon the issuance of an extreme risk protective order, the
bill requires the court to order a new hearing within three
business days of the issuance of the extreme risk protective
order that requires the respondent to provide evidence to the
court that the respondent has surrendered any firearms in
the possession of the respondent. The court may dismiss the
hearing upon a satisfactory showing that the respondent has
complied with the extreme risk protective order.
All law enforcement agencies must develop policies and
procedures by June 1, 2025, regarding the acceptance, storage,
and return of firearms surrendered to a law enforcement agency
under the bill.
RETURN OF FIREARMS. Under the bill, if an extreme risk
protective order is terminated or expires without an extension,
the law enforcement agency holding any firearms surrendered by
the respondent shall return any firearms to the respondent upon
request of the respondent, provided the respondent is eligible
to possess a firearm.
Notwithstanding Code section 809.21 (sale of certain
ammunition and firearms), for firearms that remain unclaimed by
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the lawful owner, the firearms shall be destroyed pursuant to
661 IAC 95.8.
PENALTIES. The bill provides that a respondent shall not
be eligible to obtain a permit to carry weapons or a permit to
acquire pistols or revolvers while an extreme risk protective
order or emergency extreme risk protective order is in effect
against the respondent.
The bill provides that a plaintiff who files a petition for
an extreme risk protective order knowing the information in the
petition to be materially false commits a serious misdemeanor.
The bill provides that a respondent who possesses a firearm
or who ships, transports, or receives, or attempts to ship,
transport, or receive, such a firearm while an extreme risk
protective order or emergency extreme risk protective order
is in effect against the respondent commits an aggravated
misdemeanor. A respondent who violates this provision shall
be prohibited from possessing, shipping, transporting, or
receiving a firearm for a period of five years from the date
of the conviction. If during the five-year prohibition period
the respondent knowingly has under the respondent’s dominion
and control or possession or ships, transports, or receives, or
causes to be shipped, transported, or received, a firearm, the
respondent commits a class “D” felony.
A serious misdemeanor is punishable by confinement for no
more than one year and a fine of at least $430 but not more than
$2,560. An aggravated misdemeanor is punishable by confinement
for no more than two years and a fine of at least $855 but
not more than $8,540. A class “D” felony is punishable by
confinement for no more than five years and a fine of at least
$1,025 but not more than $10,245.
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