Bill Text: IA HF2180 | 2017-2018 | 87th General Assembly | Introduced
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 3-0)
Status: (Introduced - Dead) 2018-02-01 - Introduced, referred to Judiciary. H.J. 186. [HF2180 Detail]
Download: Iowa-2017-HF2180-Introduced.html
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 jm/rh 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 personwho 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) andwho 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 jm/rh
