HB291 By Representative Coleman RFD Judiciary Rd 1 20-FEB-20

SYNOPSIS: This bill would establish the Gun Violence Protective Order Act.

This bill would authorize courts to issue ex parte gun violence protective orders and one-year gun violence protective orders, which may be authorized if the court finds that the respondent, as defined, poses an immediate and present danger of causing personal injury to self or others.

This bill would provide that upon the issuance of an ex parte or one-year gun violence protective order, the court shall order the respondent to surrender to the local law enforcement agency all firearms and ammunition of which the respondent has custody, control, ownership, or possession.

This bill would provide for the renewal or early termination of a one-year gun violence protective order under certain conditions.

This bill would provide criminal penalties for a violation.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

Relating to firearms; to establish the Gun Violence Protective Order Act; to provide for the issuance of ex parte gun violence protective orders and one-year gun violence protective orders; to require the surrender of all firearms and ammunition of a person subject to an ex parte gun violence protective order or one-year gun violence protective order; to provide for the renewal or early termination of an order; to provide criminal penalties for a violation; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Gun Violence Protective Order Act.

Section 2. Legislative purpose and intent.

The Legislature finds and declares the following:

(1) Over 100,000 people become victims of a gunshot wound each year and more than 30,000 of those victims lose their lives. In 2017, firearms killed 39,773 Americans.

(2) Federal law prohibits any individual subject to certain domestic violence restraining orders from purchasing or possessing firearms. Many states have similar laws. About half of the states also authorize or require a court that is issuing a domestic violence protective order to require the abuser to surrender firearms that he or she may already have in his or her possession. This act is modeled on existing domestic violence laws that have firearms surrender provisions.

(3) Studies have shown that an individual who engages in certain dangerous behaviors is significantly more likely to commit an act of violence towards himself or herself or others in the near future. These behaviors, which might include other acts or threats of violence, self-harm, or the abuse of drugs or alcohol, serve as warning signs that the individual might soon commit an act of violence.

(4) Under federal law, an individual suffering from mental illness is not prohibited from purchasing or possessing a firearm unless he or she has been involuntarily committed to a mental institution, found not guilty of a crime by reason of insanity, or undergone some other formalized court proceeding regarding his or her mental illness. Similarly, an individual who has committed a violent act towards another is not prohibited from possessing a firearm under federal law until after he or she has been convicted of a felony or domestic violence misdemeanor.

(5) It is the purpose and intent of the Legislature to reduce firearm deaths and injuries by providing a formal court procedure that law enforcement officers, teachers, and family members may use to obtain a court order that prevents an individual who poses a significant danger of causing personal injury to self or others from gaining access to firearms and ammunition. The Legislature intends for these court orders to be limited to situations in which the individual poses a significant danger of causing personal injury to self or others by owning, purchasing, controlling, possessing, or receiving a firearm or ammunition.

Section 3. Definitions.

The following terms shall have the following meanings:

(1) EX PARTE GUN VIOLENCE PROTECTIVE ORDER. An order issued by a court, pursuant to Section 5, that prohibits the respondent from owning, purchasing, controlling, possessing, or receiving firearms or ammunition until a court-scheduled hearing for a one-year gun violence protective order.

(2) FAMILY MEMBER. An individual related by blood, marriage, or adoption to the respondent, current or former dating partner of the respondent, and any individual who resides or has resided with the respondent, or who is acting or has acted as the respondent's legal guardian.

(3) FIREARM. A weapon from which a shot is discharged by gun powder.

(4) ONE-YEAR GUN VIOLENCE PROTECTIVE ORDER. An order issued by a court, pursuant to Section 6, prohibiting the respondent from owning, purchasing, controlling, possessing, or receiving guns or ammunition for a period of one year.

(5) PETITIONER. A law enforcement officer, teacher, or family member of the respondent who files a petition pursuant to Section 4.

(6) RESPONDENT. The individual identified in the petition filed under Section 5 or Section 6.

(7) TEACHER. A teacher, school administrator, school counselor, college professor, student teacher, safety or resource officer, or coach of the respondent.

Section 4. Commencement of Action; Forms.

(a) A petitioner may seek a gun violence protective order by filing a verified petition on a form approved by the Administrative Office of Courts in the court of the county where the respondent resides.

(b) The petition shall set forth the grounds for the issuance of the order and shall describe the number, types, and locations of any firearms or ammunition presently believed by the petitioner to be possessed or controlled by the respondent. The petition shall also state whether there is an existing domestic violence protective order in effect governing the respondent and whether there is any pending lawsuit, complaint, petition, or other action between the parties under the laws of this state. The court administrator shall verify the terms of any existing order governing the parties. The court may not delay granting relief because of the existence of a pending action between the parties or the necessity of verifying the terms of an existing order. A petition for a gun violence protective order may be granted whether or not there is a pending action between the parties.

(c) If the respondent is alleged to pose an immediate and present danger of causing personal injury to a family member, or a family member is alleged to have been the target of a threat or act of violence by the respondent, the petitioner shall make a good faith effort to provide notice to any and all adult family members of the respondent. The notice must state that the petitioner intends to petition the court for a gun violence protective order, and, if the petitioner is a law enforcement officer, must also include a referral to relevant domestic violence or stalking advocacy or counseling resources, if appropriate. The petitioner shall attest to having provided the notice in the verified petition. If the petitioner is unable to provide notice to any or all adult family members of the respondent, the verified petition shall describe what good faith efforts were made.

(d) All health records and other health information provided in a petition or considered as evidence in a proceeding under this act shall be protected from public disclosure to the extent the information identifies a respondent or petitioner, except that the information may be provided to law enforcement agencies as set forth in Section 10. Aggregate statistical data about the numbers of gun violence protective orders issued, renewed, denied, dissolved, or terminated shall be available to the public upon request.

(e) Upon receipt of the petition, the court shall set a date for a hearing within 14 calendar days, regardless of whether the court issues an ex parte gun violence protective order. If the court issues an ex parte gun violence protective order, notice of the hearing shall be served on the respondent with the ex parte order. Notice of the hearing shall be personally served on the respondent by a law enforcement officer.

(f) The Administrative Office of Courts shall prescribe the form of the petitions, orders, and any other documents and shall adopt any rules of court necessary for the implementation of this act.

Section 5. Ex Parte Gun Violence Protective Order.

(a) A petitioner may request that an ex parte order be issued prior to a hearing for a one-year gun violence protective order, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses an immediate and present danger of causing personal injury to self or others through his or her ownership, purchase, control, possession, or receipt of a firearm or ammunition.

(b) The court shall issue or deny an ex parte gun violence protective order on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to allow for its effective review, in which case the order shall be issued or denied on the next business day.

(c) Before issuing an ex parte gun violence protective order, the court shall examine under oath the petitioner and any witnesses the petitioner may produce. The court may also do the following:

(1) Ensure that a reasonable search has been conducted of all available records to determine whether the respondent owns any firearms or ammunition.

(2) Ensure that a reasonable search has been conducted for criminal history records related to the respondent.

(d) In determining whether grounds for an ex parte gun violence protective order exists, the court shall consider all relevant evidence presented by the petitioner, and may also consider other relevant evidence, including, but not limited to, evidence of the occurrence of any of the following events by the respondent:

(1) Unlawful, reckless, or negligent use, display, storage, possession, or brandishing of a firearm.

(2) Act or threat of violence against self or another, whether or not the violence involved a firearm.

(3) Violation of a protective order issued under Chapter 5 or Chapter 5B of Title 30 of the Code of Alabama 1975, or a similar law in another state.

(4) Abuse of controlled substances or alcohol or any criminal offense that involves controlled substances or alcohol.

(5) The recent acquisition of firearms, ammunition, or other deadly weapons.

(e) The court shall also consider the time that has elapsed since the occurrence of any event described in subsection (d).

(f) If a court finds reasonable cause to believe that the respondent poses an immediate and present danger of causing personal injury to self or others by owning, purchasing, controlling, possessing, or receiving a firearm or ammunition, the court shall issue an ex parte gun violence protective order.

(g) An ex parte gun violence protective order shall include all of the following:

(1) A statement that the respondent may not own, purchase, control, possess, or receive, or attempt to purchase or receive, a firearm or ammunition while the order is in effect.

(2) A description of the requirements for relinquishment of firearms and ammunition under Section 8.

(3) A statement of the grounds asserted for the order.

(4) A notice of the hearing under subsection (e) of Section 4 to determine whether to issue a one-year gun violence protective order, including the address of the court and the date and time for when the hearing is scheduled.

(5) A statement that the court may extend the order by one year at the hearing.

(6) A statement that the respondent may seek the advice of an attorney as to any matter connected with the order, and that the attorney should be consulted promptly so that the attorney may assist the individual in any matter connected with the order.

(h) An ex parte gun violence protective order shall be personally served on the respondent by a law enforcement officer.

(i) In accordance with subsection (e) of Section 4, the court shall schedule a hearing within 14 calendar days of the issuance of an ex parte gun violence protective order to determine if a one-year gun violence protective order shall be issued; provided, however, that a respondent may seek an extension of time before the hearing. The court shall dissolve any ex parte gun violence protective order in effect against the respondent when the court holds the hearing.

Section 6. One-Year Gun Violence Protective Order Issued After Notice and Hearing.

(a) A petitioner requesting a one-year gun violence protective order shall include in the petition detailed allegations based on personal knowledge that the respondent poses a substantial danger of causing personal injury to self or others through his or her ownership, purchase, control, possession, or receipt of a firearm or ammunition.

(b) Prior to a hearing for a one-year gun violence protective order, the court shall do both of the following:

(1) Ensure that a reasonable search has been conducted of all available records to determine whether the respondent owns any firearms or ammunition.

(2) Ensure that a reasonable search has been conducted for criminal history records related to the respondent.

(c) In determining whether to issue a one-year gun violence protective order under this section, the court shall consider all relevant evidence presented by the petitioner and may also consider other relevant evidence, including, but not limited to, evidence of events identified in subsection (d) of Section 5.

(d) If the court finds by a preponderance of the evidence at the hearing that the respondent poses a substantial danger of personal injury to self or others through his or her ownership, purchase, control, possession, or receipt of a firearm or ammunition, the court shall issue a one-year gun violence protective order.

(e) A one-year gun violence protective order issued under this section shall include all of the following:

(1) A statement that the respondent may not own, possess, control, purchase, or receive, or attempt to purchase or receive, a firearm or ammunition while the order is in effect.

(2) A description of the requirements for relinquishment of firearms and ammunition under Section 8.

(3) A statement of the grounds supporting the issuance of the order.

(4) The date and time the order expires.

(5) The address of the court that issued the order.

(6) A statement that the respondent shall have the right to request one hearing to terminate the order at any time during its effective period.

(7) A statement that the respondent may seek the advice of an attorney as to any matter connected with the order.

(f) If the respondent fails to appear at the hearing and the court determines that a one-year gun violence protective order shall be issued, the order shall be personally served on the respondent by a law enforcement officer.

Section 7. Termination and Renewal.

(a) A respondent subject to a one-year gun violence protective order may submit one written request at any time during the effective period of the order for a hearing to terminate the order.

(1) Upon receipt of the request for termination, the court shall set a date for a hearing. Notice of the request shall be served on the petitioner in accordance with the Alabama Rules of Civil Procedure. The hearing shall occur no sooner than 14 calendar days from the date of service of the request upon the petitioner.

(2) The respondent seeking termination of the order shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a substantial danger of causing personal injury to self or others through his or her ownership, purchase, control, possession, or receipt of a firearm or ammunition.

(3) If the court finds that the respondent has met his or her burden, the court shall terminate the order.

(b) A petitioner may request a renewal of a one-year gun violence protective order at any time within the three months before the expiration of the order.

(1) A court, after notice and a hearing, may renew the one-year gun violence protective order if the court, by a preponderance of the evidence, finds that the respondent continues to pose a substantial danger of causing personal injury to self or another through his or her ownership, purchase, control, possession, or receipt of a firearm or ammunition.

(2) In determining whether to renew a one-year gun violence protective order, the court shall consider all relevant evidence presented by the petitioner, and may also consider other relevant evidence, including, but not limited to, evidence of the events identified in subsection (d) of Section 5.

(3) A one-year gun violence protective order renewed under this subsection shall expire after one year, subject to termination by further order of the court at a hearing held under subsection (a) and further renewal by order of the court under this subsection.

Section 8. Relinquishment of firearms and ammunition.

(a) Upon issuance of an ex parte or one-year gun violence protective order, the court shall order the respondent to surrender to the local law enforcement agency all firearms and ammunition of which the respondent has custody, control, or ownership.

(b) A law enforcement officer serving a gun violence protective order shall request that all firearms and ammunition belonging to or in the custody or control of the respondent be immediately surrendered and shall take possession of the firearms and ammunition that are surrendered. A law enforcement officer serving a gun violence protective order may conduct a lawful search for firearms and ammunition.

(c) At the time of surrender or removal, a law enforcement officer taking possession of a firearm or ammunition pursuant to a gun violence protective order shall issue a receipt identifying all firearms and ammunition that have been surrendered or removed and provide a copy of the receipt to the respondent. Within 72 hours after serving the order, the officer who served the order shall file the original receipt with the court that issued the gun violence protective order, and shall ensure that the law enforcement agency retains a copy of the receipt.

(d) If a petitioner has probable cause to believe a respondent to a gun violence protective order owns, controls, or possesses a firearm or ammunition that the respondent has failed to surrender pursuant to this section, or has received or purchased a firearm or ammunition while subject to the order, the petitioner may petition the court to issue a warrant. The petition shall describe the firearm or ammunition and where the firearm or ammunition is reasonably believed to be located. The court may issue the warrant upon a finding of probable cause.

(e) A law enforcement agency may charge the respondent a fee not to exceed the reasonable and actual costs incurred by the law enforcement agency for storing a firearm or ammunition surrendered pursuant to this section for the duration of the gun violence protective order and any additional periods necessary under Section 7.

Section 9. Return and Disposal of Firearms or Ammunition.

(a) As used in this section, dispose means to sell or transfer a firearm or ammunition to a federally licensed dealer, defined under 18 U.S.C. § 921 et seq., or to destroy the firearm or ammunition.

(b) Thirty days before a one-year gun violence protective order is set to expire, a law enforcement agency holding a firearm or ammunition that has been surrendered pursuant to the order shall notify the petitioner that the order is set to expire. The notice shall advise the petitioner of the procedures for seeking a renewal of the order pursuant to Section 7.

(c) If a gun violence protective order is terminated or expires and is not renewed, a law enforcement agency holding any firearm or ammunition that has been surrendered pursuant to Section 8 shall notify the respondent that he or she may request the return of the firearm or ammunition. The law enforcement agency shall return any surrendered firearms or ammunition requested by a respondent only after confirming, through a background check, that the respondent is currently eligible to own or possess firearms and ammunition.

(d) A respondent who has surrendered a firearm or ammunition to a law enforcement agency pursuant to Section 8 and who does not wish to have the firearm or ammunition returned or who is no longer eligible to own or possess a firearm or ammunition may sell or transfer title of the firearm or ammunition to a licensed firearms dealer. The law enforcement agency shall transfer possession of the firearm or ammunition to a licensed firearms dealer only after the dealer has displayed written proof of transfer of the firearm or ammunition from the respondent to the dealer and the law enforcement agency has verified the transfer.

(e) If an individual other than the respondent claims title to a firearm or ammunition surrendered pursuant to Section 8, and the individual is determined by the law enforcement agency to be the lawful owner of the firearm or ammunition, the gun or ammunition shall be returned to him or her.

(f) A law enforcement agency holding a firearm or ammunition that was surrendered by a respondent pursuant to Section 8 may dispose of the firearm or ammunition only after six months from the date of proper notice to the respondent of the intent to dispose of the firearm or ammunition, unless the firearm or ammunition has been claimed by the lawful owner. If the firearm or ammunition remains unclaimed after six months from the date of notice, then no party shall have the right to assert ownership of the firearm or ammunition and the law enforcement agency may dispose of the firearm or ammunition.

Section 10. Reporting of Orders to a Statewide System.

(a) The court shall notify the Alabama State Law Enforcement Agency (ALEA) no later than one business day after issuing, renewing, dissolving, or terminating an ex parte or one-year gun violence protective order under this act.

(b) The information required to be submitted to ALEA pursuant to this section shall include identifying information about the respondent and the date the order was issued, renewed, dissolved, or terminated. In the case of a one-year order, the court shall include the date the order is set to expire. The court shall also indicate whether the respondent to the one-year gun violence protective order was present in court to be advised of the contents of the order or if the respondent failed to appear. The respondent's presence in court shall constitute proof of service of notice of the terms of the order.

(c) Within one business day of service, a law enforcement officer who serves a gun violence protective order or the clerk of the court shall submit the proof of service and a copy of the protection order to ALEA for entry into the appropriate database.

(d) The information to be submitted to ALEA under this section shall be submitted in an electronic format, in a manner prescribed by ALEA. ALEA shall maintain a searchable database of this information, available to law enforcement agencies upon request.

(e) Within 30 days of submission of the information under subsection (d), ALEA shall make information about an ex parte or one-year gun violence protective order issued, renewed, or terminated pursuant to this act available to the National Instant Criminal Background Check System for the purposes of firearm purchaser background checks.

Section 11. Penalties.

(a) A person who files a petition for a gun violence protective order, knowing the information in the petition to be materially false or with an intent to harass the respondent, is guilty of a Class C misdemeanor.

(b) A person who owns, purchases, controls, possesses, or receives a firearm or ammunition with knowledge that he or she is prohibited from doing so by a gun violence protective order is guilty of a Class C misdemeanor and shall be prohibited from owning, purchasing, controlling, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition for a period of five years from the date of conviction.

Section 12. Law Enforcement to Retain Other Authority.

This act shall not affect the ability of a law enforcement officer to remove firearms or ammunition from any individual pursuant to other lawful authority.

Section 13. Lack of Liability for Failure to Seek Order.

This act shall not be construed to impose criminal or civil liability on any individual who chooses not to seek a gun violence protective order pursuant to this act.

Section 14. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 15. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

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