SP0408, LD 1312, item 1, An Act Regarding Access to Firearms by Extremely Dangerous and Suicidal Individuals

An Act Regarding Access to Firearms by Extremely Dangerous and Suicidal Individuals

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 15 MRSA c. 16 is enacted to read:

CHAPTER 16

EXTREME RISK PROTECTION ORDERS

SUBCHAPTER 1

GENERAL PROVISIONS

§ 401. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.

1. Court. "Court" means a District Court.

2. Extreme risk protection order. "Extreme risk protection order" means a written order signed by the court that prohibits and enjoins a restrained individual from purchasing, possessing or controlling a firearm and from attempting to purchase, possess or control a firearm. An extreme risk protection order may be a temporary extreme risk protection order issued pursuant to subchapter 2 or an extended extreme risk protection order issued pursuant to subchapter 3.

3. Family or household member. "Family or household member" means a spouse or domestic partner of the respondent, a former spouse or former domestic partner of the respondent, an individual presently or formerly living as a spouse of the respondent, a parent of a child of the respondent or an adult related by consanguinity or affinity to the respondent.

4. Law enforcement agency. "Law enforcement agency" means the State Police, a sheriff's department or a municipal police department.

5. Law enforcement officer. "Law enforcement officer" means a person who by virtue of public employment is vested by law with the power to make arrests for crimes or serve criminal process, whether that power extends to all crimes or is limited to specific crimes, and who possesses a current and valid certificate issued by the Board of Trustees of the Maine Criminal Justice Academy pursuant to Title 25, section 2803-A. As used in this chapter, "law enforcement officer" does not include federal law enforcement officers or attorneys prosecuting for the State.

6. Petition. "Petition" means a petition for an extreme risk protection order filed under this chapter.

7. Petitioner. "Petitioner" means a law enforcement agency, law enforcement officer or family or household member who files a petition for an extreme risk protection order under this chapter.

8. Respondent. "Respondent" means an individual named in a petition filed under this chapter whose purchase, possession or control of a firearm the petitioner seeks to restrain.

9. Restrained individual. "Restrained individual" means an individual who is the subject of an extreme risk protection order.

SUBCHAPTER 2

TEMPORARY EXTREME RISK PROTECTION ORDERS

§ 411. Petition

1. Filing of petition. A law enforcement agency, a law enforcement officer or a family or household member may file a petition under this chapter requesting that the court issue an extreme risk protection order.

2. Jurisdiction. Proceedings under this chapter must be filed, heard and determined in the District Court of the division in which either the petitioner or the respondent resides. If the petitioner is a law enforcement officer or law enforcement agency, the petition may be filed in any division in which the law enforcement officer or law enforcement agency has jurisdiction.

3. Assistance. The following assistance is available to the petitioner and respondent.

A. The court shall provide separate forms and clerical assistance in completing and filing a petition or other necessary documents. The assistance may not include legal advice or assistance in drafting legal documents.

B. If a judge is unavailable to review a petition under this chapter, the clerk of the court shall immediately notify the petitioner of other courts at which a judge or justice is available.

C. The clerk of the court shall provide written resources from which the petitioner or respondent may receive legal or social service assistance.

4. Forms. The forms provided by the court must be uniform throughout the State and must include a summons and an affidavit for a temporary extreme risk protection order. The summons must include a section in which to list the places where the respondent may be located or available to be served.

5. Fees. A fee may not be charged for forms or for the filing of a petition under this chapter. A petitioner may apply for leave to proceed in forma pauperis.

6. Notice. Before the petitioner signs a petition, the court shall notify the petitioner, orally or in writing, that it is a crime to make a false statement under oath in a court document.

§ 412. Procedure for issuance of temporary extreme risk protection orders

1. Grounds. Following review of a petition filed under this chapter, if the court finds probable cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or others, the court shall issue a temporary extreme risk protection order.

2. Testimony under oath or sworn affidavit. The court, before issuing a temporary extreme risk protection order, shall examine under oath the petitioner and any witness the petitioner may produce after informing the petitioner and any witness that offering false testimony made under oath is perjury, as defined in Title 17-A, section 451, and is a Class C crime. In lieu of examining the petitioner and any witness, the court may accept sworn affidavits of the petitioner and any witness. An affidavit supporting a petition for the issuance of a temporary extreme risk protection order must set forth the facts tending to establish the grounds of the petition or the reason for believing that the grounds exist. A false material statement under oath on an affidavit supporting issuance of an extreme risk protection order is perjury, as defined in Title 17-A, section 451, and is a Class C crime.

3. Determination on same day. If the court finds probable cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or others, the court shall issue a temporary extreme risk protection order on the day that the petition is submitted to the court. If the court does not find probable cause to believe that the respondent poses an immediate and present danger of causing bodily injury to the respondent or others, the court may not issue a temporary extreme risk protection order and shall set a date for a hearing on the petition, pursuant to subchapter 3, to determine whether an extended extreme risk protection order should be issued.

4. Ex parte order. The court may issue a temporary extreme risk protection order on an ex parte basis.

§ 413. Contents of temporary extreme risk protection order

A temporary extreme risk protection order issued pursuant to this subchapter must include a notice informing the restrained individual:

1. Prohibition regarding firearms. That the restrained individual is prohibited from purchasing, possessing or controlling any firearm or attempting to purchase, possess or control any firearm;

2. Surrender of firearms. That the restrained individual is required to surrender all firearms the restrained individual owns, possesses or controls to a law enforcement agency or law enforcement officer;

3. Hearing. The time, date and location of the hearing, if any, pursuant to subchapter 3;

4. Right to counsel. The restrained individual's right to counsel, including the right for an indigent restrained individual to be appointed counsel;

5. Right to review petition and findings. The restrained individual's right to access and review the petition and findings of fact; and

6. Duration. The duration of the temporary extreme risk protection order.

§ 414. Effect of temporary extreme risk protection order; surrender of firearm

1. Effect. A temporary extreme risk protection order prohibits and enjoins the restrained individual from purchasing, possessing or controlling or attempting to purchase, possess or control any firearm while the order is in effect. The temporary extreme risk protection order also must direct the restrained individual to surrender to a law enforcement agency or law enforcement officer all firearms the restrained individual owns, possesses or controls.

2. Search warrant. The court shall subsequently issue a search warrant authorizing a law enforcement officer to search for and seize any firearms if the court finds there is probable cause to believe the restrained individual owns, possesses or controls any firearms. This subsection does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.

3. Surrender of firearm. Upon request of the law enforcement officer serving a temporary extreme risk protection order, a restrained individual subject to a temporary extreme risk protection order shall immediately surrender all firearms the restrained individual owns, possesses or controls in a safe manner to the control of the law enforcement officer. Any firearm not surrendered to a law enforcement officer at the time of service of the temporary extreme risk protection order or removed pursuant to a search warrant must be surrendered to a law enforcement agency within 24 hours of service of a temporary extreme risk protection order.

§ 415. Term of temporary extreme risk protection order

A temporary extreme risk protection order expires either 14 days from the date the order is issued or when a hearing is held pursuant to subchapter 3 to determine whether an extended extreme risk protection order should be issued, whichever occurs first.

§ 416. Law enforcement officer responsibilities

Following the issuance of a temporary extreme risk protection order by a court pursuant to this subchapter, the court shall order a law enforcement officer to serve the temporary extreme risk protection order. The law enforcement officer shall:

1. Serve order. Serve the temporary extreme risk protection order on the restrained individual as soon as practicable after issuance if the restrained individual can reasonably be located;

2. File with court. File with the court a copy of the temporary extreme risk protection order and an inventory of any firearms surrendered at the time of the service of the temporary extreme risk protection order, any firearms surrendered by the restrained individual following service of the temporary extreme risk protection order and any firearms seized during the execution of a search warrant issued pursuant to section 414, subsection 2 as soon as practicable after the surrender or seizure of the firearms; and

3. Database. Enter the record of the temporary extreme risk protection order into the database for protection orders maintained by the Department of Public Safety.

SUBCHAPTER 3

EXTENDED EXTREME RISK PROTECTION ORDERS

§ 421. Procedure for issuance of extended extreme risk protection orders

1. Time of hearing. Within 14 days of the filing of a petition under section 411, the court shall hold a hearing to determine if an extended extreme risk protection order should be issued.

2. Evidence; burden of proof. In determining whether grounds for issuance of an extended extreme risk protection order exist, the court shall consider all relevant evidence. At a hearing for an extended extreme risk protection order, a petitioner has the burden of proof.

3. Right to counsel. All parties have the right to be represented by counsel at the hearing. If any party is indigent and requests counsel, the court shall appoint an attorney to represent that party.

4. Standard of proof for issue of order. At the conclusion of a hearing for an extended extreme risk protection order, if the court finds by clear and convincing evidence that the respondent poses a danger of causing bodily injury to the respondent or others, the court shall issue an extended extreme risk protection order.

§ 422. Contents of extended extreme risk protection order

An extended extreme risk protection order issued pursuant to this subchapter must include a notice informing the restrained individual:

1. Prohibition regarding firearms. That the restrained individual is prohibited from purchasing, possessing or controlling any firearm or attempting to purchase, possess or control any firearm;

2. Surrender of firearms. That the restrained individual is required to surrender all firearms owned, possessed or controlled by that restrained individual to a law enforcement agency or law enforcement officer;

3. Duration of order. Of the duration of the extended extreme risk protection order;

4. Right to motion for dissolution. That the restrained individual has the right to file one motion for dissolution during the duration of the extended extreme risk protection order; and

5. Right to counsel. That the restrained individual has the right to counsel, including the right, if indigent, to be appointed counsel.

§ 423. Effect of extended extreme risk protection order; surrender of firearms

1. Effect. An extended extreme risk protection order prohibits a restrained individual from purchasing, possessing or controlling or attempting to purchase, possess or control any firearm.

2. Search warrant. Following the issuance of an extended extreme risk protection order pursuant to this subchapter, the court shall issue a search warrant authorizing a law enforcement officer to search for and seize any firearms if the court finds there is probable cause to believe the restrained individual owns, possesses or controls any firearms. This subsection does not authorize a law enforcement officer to perform a warrantless search or seizure if a warrant would otherwise be required.

3. Surrender of firearm. A restrained individual subject to an extended extreme risk protection order shall surrender all firearms that restrained individual owns, possesses or controls in a safe manner to the control of a law enforcement agency. A firearm not surrendered to a law enforcement officer at the time of service of the temporary extreme risk protection order pursuant to section 414 or removed pursuant to a search warrant must be surrendered to a law enforcement agency within 24 hours of issuance of an extended extreme risk protection order.

§ 424. Term of extended orders and renewal

An extended extreme risk protection order expires one year from the date the order is issued. Within 45 days prior to the expiration of an extended extreme risk protection order, the petitioner may request that the court renew the order. The petitioner has the burden of proving that the restrained individual continues to pose a danger of causing bodily injury to the restrained individual or others. If, after a hearing, the court finds by clear and convincing evidence that the restrained individual continues to pose a danger of causing bodily injury to the restrained individual or others, then the court shall renew the extended extreme risk protection order for one year from the date the court orders the renewal. Pursuant to subchapter 4, the restrained individual may file a motion requesting a hearing to dissolve the order once within the term of the extended extreme risk protection order.

§ 425. Law enforcement officer responsibilities

Following the issuance of an extended extreme risk protection order by a court pursuant to this subchapter, the court shall order a law enforcement officer to serve the extended extreme risk protection order. The law enforcement officer shall:

1. Serve order. Serve the extended extreme risk protection order on the restrained individual as soon as practicable after issuance if the restrained individual can reasonably be located;

2. File with court. File with the court a copy of the extended extreme risk protection order and an inventory of any firearms surrendered at the time of the service of the extended extreme risk protection order, any firearms surrendered by the restrained individual following service of the extended extreme risk protection order and any firearms seized during the execution of a search warrant issued pursuant to section 423, subsection 2 as soon as practicable after the surrender or seizure of the firearms; and

3. Database. Enter the record of the extended extreme risk protection order into the database for protection orders maintained by the Department of Public Safety.

SUBCHAPTER 4

DISSOLUTION OF EXTREME RISK PROTECTION ORDERS; RETENTION AND RETURN OF FIREARMS; PENALTY

§ 431. Dissolution of temporary and extended extreme risk protection orders

1. Dissolution of temporary extreme risk protection order after hearing. If the court finds after a full hearing that there is not clear and convincing evidence to support the issuance of an extended extreme risk protection order, the court shall dissolve any temporary extreme risk protection order in effect and may not issue an extended extreme risk protection order. If a temporary extreme risk protection order is dissolved pursuant to this subsection, the court shall direct a law enforcement agency to ensure that the record of the order is removed from the database for protection orders maintained by the Department of Public Safety.

2. Dissolution of extended extreme risk protection order after hearing. A restrained individual may submit one written request for a hearing to dissolve an extended extreme risk protection order. At a hearing for the dissolution of an extended extreme risk protection order, the restrained individual has the burden of proof. If the court finds after the hearing that the restrained individual has demonstrated by clear and convincing evidence that the restrained individual no longer poses a danger of causing bodily injury to the restrained individual or others, the court shall dissolve the extended extreme risk protection order. If an extended extreme risk protection order is dissolved pursuant to this subsection, the court shall direct a law enforcement agency to enter the fact that the order was dissolved into the database for protection orders maintained by the Department of Public Safety.

§ 432. Retention and return of firearms

1. Firearms retained by law enforcement agency. A law enforcement agency shall retain any firearm surrendered to or seized by a law enforcement officer or law enforcement agency pursuant to this chapter for as long as an extreme risk protection order remains in effect, in accordance with this section.

2. Return of firearms. If an extreme risk protection order is dissolved or expires and is not renewed, the law enforcement agency shall return any firearm surrendered by or seized from a restrained individual to the restrained individual. If a family or household member of the restrained individual petitioned for the expired or dissolved extreme risk protection order, the law enforcement agency must provide prior notice of the return of any firearms to that family or household member.

If a formerly restrained individual does not wish to reclaim any firearm previously surrendered or is otherwise prohibited under state or federal law from possessing firearms, the formerly restrained individual may request that the law enforcement agency transfer title of the firearm to a licensed dealer. The law enforcement agency may transfer the firearm to the dealer only after the dealer gives the agency written proof of the proposed sale or transfer.

If a seized or surrendered firearm remains unclaimed 6 months after the expiration or dissolution of an extreme risk protection order, the law enforcement agency may dispose of the unclaimed firearm in accordance with Title 25, section 3503-A.

3. Law enforcement agency duties; liability. The duties and liability of a law enforcement agency with respect to the safe handling and storage of firearms surrendered or seized pursuant to this chapter are governed by Title 25, section 2804-C, subsection 2-C.

4. Return to another claimant. If a person other than a restrained individual claims title to a firearm surrendered or seized pursuant to this chapter and the person is determined by the law enforcement agency that has custody of the firearm to be the lawful owner of the firearm, the law enforcement agency shall return the firearm to that person only after determining, through a background check, that that person is not prohibited from possessing firearms under state or federal law. A person seeking the return of a firearm under this subsection shall attest in writing that a firearm returned to that person will be securely stored in a manner that ensures that the firearm cannot be accessed by the restrained individual.

§ 433. Offense

Possession of a firearm by a restrained individual is a Class D crime when the restrained individual has prior actual notice, which may be notice by means other than service in hand, of the existence of an extreme risk protection order issued against that restrained individual.

Sec. 2. 25 MRSA §2804-C, sub-§2-C, as amended by PL 2013, c. 147, §30, is further amended to read:

2-C. Receipt of firearms; training; procedure; liability. The Maine Criminal Justice Academy shall provide training for municipal, county and state law enforcement officers regarding the proper handling, storage, safekeeping and return of firearms and firearm accessories received pursuant to a court order under Title 15, chapter 16, Title 19-A, section 4006, subsection 2-A or Title 19-A, section 4007, subsection 1, paragraph A-1. Such training must include education concerning the prohibitions on the purchase or possession of a firearm when a protection order has been obtained and communication with parties to protection orders concerning such prohibitions.

In developing materials for training in domestic violence issues, the Maine Criminal Justice Academy may consult with a statewide organization involved in advocacy for victims of domestic violence and with an organization having statewide membership representing the interests of firearms owners.

A law enforcement officer who receives custody of a firearm pursuant to Title 15, chapter 16, Title 19-A, section 4006, subsection 2-A or Title 19-A, section 4007, subsection 1, paragraph A-1 shall exercise reasonable care to avoid loss, damage or reduction in value of the firearm and may not permanently mark the firearm or fire the firearm unless there is reasonable suspicion that the firearm has been used in the commission of a crime. Any liability for damage or reduction in value to such a firearm is governed by Title 14, chapter 741.

summary

This bill creates an extreme risk protection order to authorize a court to order a person to surrender that person's firearms temporarily for 14 days or on an extended basis for 365 days when it has been proved that the person poses a danger of causing personal injury to that person or another person. The bill provides that:

1. A law enforcement officer, a law enforcement agency or a family or household member may file a petition for a temporary extreme risk protection order, which may be granted if the court finds probable cause exists to issue the order. The temporary extreme risk protection order expires in 14 days or when a hearing to determine whether to issue an extended extreme risk protection order is held, whichever occurs sooner. A temporary extreme risk protection order may be issued on an ex parte basis;

2. Whether or not the court issues a temporary extreme risk protection order, the court is required to hold a hearing within 14 days to determine whether the person poses a danger of causing personal injury to that person or another person. If the court, based on clear and convincing evidence, finds that an extended extreme risk protection order should be issued, the extended extreme risk protection order must be issued, and it expires 365 days after the issuance of the order unless extended after another hearing;

3. Following the issuance of a temporary or extended extreme risk protection order, the court is required to order law enforcement to serve the order and is required to issue a search warrant if the court finds probable cause that the person who is the subject of the order is in possession of a firearm;

4. A person who is the subject of a temporary or extended extreme risk protection order is required to surrender all firearms in the person's possession to a law enforcement officer or law enforcement agency. The firearms must be returned to the person at the expiration of the extreme risk protection order unless an extended extreme risk protection order is issued;

5. A person against whom an extended extreme risk protection order is issued may request that the order be dissolved and be granted a hearing once during the term of the extended extreme risk protection order; and

6. A person who possesses firearms in violation of an extreme risk protection order commits a Class D crime.

SP0408 LD 1312	Session - 129th Maine Legislature		LR 147 Item 1
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