SP0396, LD 1175, item 1, An Act To Expand Options for the Prevention of Domestic Violence

An Act To Expand Options for the Prevention of Domestic Violence

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

GUN VIOLENCE RESTRAINING 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. Family or household member. "Family or household member" has the same meaning as in Title 19-A, section 4002, subsection 4.

2. Gun violence restraining order. "Gun violence restraining order" means an order, in writing, signed by the court, prohibiting and enjoining a named person from having in that person's custody or control, owning, purchasing, possessing or receiving any firearms or ammunition.

3. Restrained person. "Restrained person" means the subject of a gun violence restraining order.

§ 402. Petition

A petition for a gun violence restraining order must describe the number, types and locations of any firearms and ammunition believed by the petitioner to be possessed or controlled by the subject of the petition.

§ 403. Gun violence restraining order

1. Firearms and ammunition while order is in effect. A person subject to a gun violence restraining order issued pursuant to this chapter may not have in that person's custody or control, own, purchase, possess or receive any firearms or ammunition while that order is in effect.

2. Surrender order. Upon issuance of a gun violence restraining order issued pursuant to this chapter, the court shall order the restrained person to surrender to a local law enforcement agency all firearms and ammunition in the restrained person's custody or control or that the restrained person possesses or owns.

3. Surrender of firearms and ammunition. The restrained person subject to the surrender ordered pursuant to subsection 2 shall, upon request of a law enforcement officer, immediately surrender all firearms and ammunition in a safe manner to the control of the officer after being served with the gun violence restraining order. A law enforcement officer serving a gun violence restraining order that indicates that the restrained person possesses firearms or ammunition shall request that all firearms and ammunition be immediately surrendered. Alternatively, if no request is made by a law enforcement officer, the restrained person shall comply with the surrender order within 24 hours of being served with the order, either by surrendering all firearms and ammunition in a safe manner to the control of a local law enforcement agency or by selling all firearms and ammunition to a federally licensed firearms dealer. The law enforcement officer or federally licensed firearms dealer taking possession of firearms or ammunition pursuant to this subsection shall issue a receipt to the person surrendering the firearms or ammunition at the time of surrender. A person ordered to surrender all firearms and ammunition pursuant to subsection 2 shall, within 48 hours after being served with the order, do both of the following:

A. File with the court that issued the gun violence restraining order the original receipt showing all firearms and ammunition have been surrendered to a local law enforcement agency or sold to a federally licensed firearms dealer. Failure to timely file a receipt constitutes a violation of the restraining order; and

B. File a copy of the receipt described in paragraph A from a federally licensed firearms dealer with the law enforcement agency that served the gun violence restraining order. Failure to timely file a copy of the receipt constitutes a violation of the restraining order.

4. Firearms and ammunition retained by law enforcement agency. A law enforcement agency shall retain firearms and ammunition surrendered to a law enforcement officer or law enforcement agency pursuant to this section until the expiration of the gun violence restraining order that has been issued against the restrained person. Upon expiration of an order, the law enforcement agency shall return the firearms and ammunition to the restrained person. The law enforcement agency may dispose of firearms and ammunition not claimed pursuant to Title 25, section 3503-A.

5. Sale or transfer of firearms and ammunition retained by law enforcement agency. A restrained person who owns firearms or ammunition that is in the custody of a law enforcement agency pursuant to this section and who does not wish to have the firearms or ammunition returned may sell or transfer title of the firearms or ammunition to a federally licensed firearms dealer if the firearms or ammunition are otherwise legal to own or possess and the restrained person otherwise has right to title of the firearms or ammunition.

6. Return to other claimant. If a person other than the restrained person claims title to firearms or ammunition surrendered pursuant to this section and the person is determined by the law enforcement agency that has custody of the firearms or ammunition to be the lawful owner of the firearms or ammunition, the law enforcement agency shall return the firearms or ammunition to the other person.

SUBCHAPTER 2

TEMPORARY EMERGENCY GUN VIOLENCE RESTRAINING ORDERS

§ 411. Issuance

1. Temporary emergency order; issuance. A court may issue a temporary emergency gun violence restraining order on an ex parte basis only if a law enforcement officer asserts and the court finds that there is reasonable cause to believe both of the following:

A. The subject of the petition poses an immediate and present danger of causing personal injury to that person or another person by having in that person's custody or control, owning, purchasing, possessing or receiving a firearm or ammunition; and

B. A temporary emergency gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another person because less restrictive alternatives either have been tried and found to be ineffective or have been determined to be inadequate or inappropriate for the circumstances of the subject of the petition.

2. Order; prohibition; expiration. A temporary emergency gun violence restraining order issued pursuant to this subchapter prohibits the subject of the petition from having in the person's custody or control, owning, purchasing, possessing or receiving or attempting to purchase or receive a firearm or ammunition. The order expires 21 days from the date the order is issued.

§ 412. Order contents

A temporary emergency gun violence restraining order issued pursuant to this subchapter must include all of the following:

1. Grounds. A statement of the grounds supporting the issuance of the order;

2. Expiration. The date and time the order expires; and

3. Statement. The following statement:

"To the restrained person: This order will last until the date and time noted above. You are required to surrender all firearms and ammunition that you own or possess in accordance with the Maine Revised Statutes, Title 15, section 403, and you may not have in your custody or control, own, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while this order is in effect. A more permanent gun violence restraining order may be obtained from the court. You may seek the advice of an attorney as to any matter connected with the order. The attorney should be consulted promptly so that the attorney may assist you in any matter connected with the order."

§ 413. Law enforcement officer responsibilities

A law enforcement officer who requests a temporary emergency gun violence restraining order under this subchapter shall do all of the following:

1. Memorialize oral order. If the order is obtained orally, memorialize the order of the court on a form approved by the Supreme Judicial Court;

2. Serve order. Serve the order on the restrained person if the restrained person can reasonably be located;

3. File with court. File a copy of the order with the court as soon as practicable after issuance; and

4. Database. Have the order entered into the computer database system for protection orders maintained by the Department of Public Safety.

SUBCHAPTER 3

EX PARTE GUN VIOLENCE RESTRAINING ORDERS

§ 421. Issuance

1. Petition. A law enforcement officer or a family or household member of a person may file a petition requesting that the court issue an ex parte gun violence restraining order enjoining the subject of the petition from having in that person's custody or control, owning, purchasing, possessing or receiving a firearm or ammunition.

2. Grounds. A court may issue an ex parte gun violence restraining order if the petition, supported by an affidavit made in writing and signed by the petitioner under oath or an oral statement taken pursuant to section 422 and any additional information provided to the court, shows that there is a substantial likelihood that both of the following are true:

A. The subject of the petition poses a significant danger, in the near future, of personal injury to that person or another person by having in that person's custody or control, owning, purchasing, possessing or receiving a firearm as determined by considering the factors listed in section 422; and

B. An ex parte gun violence restraining order is necessary to prevent personal injury to the subject of the petition or another person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the subject of the petition.

3. Affidavit. An affidavit supporting a petition for the issuance of an ex parte gun violence restraining order must set forth the facts tending to establish the grounds of the petition or the reason for believing that they exist.

4. Determination. The court shall issue or deny an ex parte gun violence restraining order under this subchapter on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the court shall issue or deny the order on the next day of judicial business in sufficient time for the order to be filed that day with the clerk of the court.

§ 422. Requirements

1. Testimony or affidavit under oath. The court, before issuing an ex parte gun violence restraining order under this subchapter, shall examine under oath the petitioner and any witness the petitioner may produce. In lieu of examining the petitioner and any witness the petitioner may produce, the court may require the petitioner and any witness to submit a written affidavit signed under oath.

2. Grounds. In determining whether grounds for an ex parte gun violence restraining order under this subchapter exist, the court shall consider all evidence of the following:

A. A recent threat of violence or act of violence by the subject of the petition directed toward another person;

B. A recent threat of violence or act of violence by the subject of the petition directed toward the subject of the petition;

C. A violation of a protection from abuse order issued pursuant to Title 19-A, chapter 101 that is in effect at the time the court is considering the petition;

D. A recent violation of an unexpired protection from abuse order pursuant to Title 19-A, chapter 101; and

E. A pattern of violent acts or violent threats within the past 12 months, including, but not limited to, threats of violence or acts of violence by the subject of the petition directed toward the subject of the petition or another person.

For the purposes of this subsection, "recent" means within the 6 months prior to the date the petition was filed.

3. Evidence of increased risk for violence. In determining whether grounds for an ex parte gun violence restraining order under this subchapter exist, the court may consider any other evidence of an increased risk for violence, including, but not limited to:

A. The unlawful and reckless use, display or brandishing of a firearm by the subject of the petition;

B. The history of use, attempted use or threatened use of physical force by the subject of the petition against another person;

C. Any prior arrest of the subject of the petition for a Class A, Class B or Class C crime;

D. Any history of a violation by the subject of the petition of an emergency protection from abuse order issued pursuant to Title 19-A, chapter 101;

E. Documentary evidence, including, but not limited to, police reports and records of convictions, of either recent criminal offenses by the subject of the petition that involve controlled substances or alcohol or ongoing abuse of controlled substances or alcohol by the subject of the petition; and

F. Evidence of recent acquisition of firearms, ammunition or other deadly weapons.

For the purposes of this subsection, "recent" means within the 6 months prior to the date the petition was filed.

4. Order; contents; expiration. If the court determines that grounds to issue an ex parte gun violence restraining order under this subchapter exist, it shall issue an ex parte gun violence restraining order that prohibits the subject of the petition from having in the person's custody or control, owning, purchasing, possessing or receiving or attempting to purchase or receive a firearm or ammunition and that expires no later than 21 days from the date of the order.

§ 423. Order contents

1. Ex parte order; contents. An ex parte gun violence restraining order issued pursuant to this subchapter must include all of the following:

A. A statement of the grounds supporting the issuance of the order;

B. The date and time the order expires;

C. The address of the court in which any responsive pleading must be filed;

D. The date and time of the hearing scheduled pursuant to section 424; and

E. The following statement:

"To the restrained person: This order is valid until the expiration date and time noted above. You are required to surrender all firearms and ammunition that you own or possess in accordance with the Maine Revised Statutes, Title 15, section 403, and you may not have in your custody or control, own, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while this order is in effect. A hearing will be held on the date and at the time noted above to determine if a more permanent gun violence restraining order should be issued. Failure to appear at that hearing may result in a court issuing an order against you that is valid for one year. You may seek the advice of an attorney as to any matter connected with the order. The attorney should be consulted promptly so that the attorney may assist you in any matter connected with the order."

2. Served on person. An ex parte gun violence restraining order issued pursuant to this subchapter must be personally served on the restrained person by a law enforcement officer if the restrained person can reasonably be located. When serving the order, a law enforcement officer shall inform the restrained person of the hearing scheduled pursuant to section 424.

§ 424. Hearing

Within 21 days after the date on an ex parte gun violence restraining order issued pursuant to this subchapter, the court shall hold a hearing pursuant to section 432 to determine if a gun violence restraining order should be issued pursuant to subchapter 4.

SUBCHAPTER 4

GUN VIOLENCE RESTRAINING ORDERS ISSUED AFTER NOTICE AND HEARING

§ 431. One-year order

A law enforcement officer or a family or household member of a person may file a petition requesting that a court, after notice and a hearing, issue a gun violence restraining order enjoining the subject of the petition from having in that person's custody or control, owning, purchasing, possessing or receiving a firearm or ammunition for a period of one year.

§ 432. Issuance

1. Grounds. In determining whether to issue a gun violence restraining order pursuant to this chapter, the court shall hold a hearing to consider evidence of the facts identified in section 422, subsection 2 and may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of the facts identified in section 422, subsection 3.

2. Burden on petitioner. At a hearing under this section, the petitioner has the burden of proving by clear and convincing evidence that both of the following are true:

A. The subject of the petition or the person subject to an ex parte gun violence restraining order, as applicable, poses a significant danger of personal injury to that person or another person by having in that person's custody or control, owning, purchasing, possessing or receiving a firearm or ammunition; and

B. A gun violence restraining order is necessary to prevent personal injury to the subject of the petition or the person subject to an ex parte gun violence restraining order, as applicable, or another person because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the subject of the petition or the person subject to an ex parte gun violence restraining order, as applicable.

3. Issuance of order; expiration; termination; renewal. If the court finds at a hearing under this section that there is clear and convincing evidence to issue a gun violence restraining order, the court shall issue a gun violence restraining order that prohibits the subject of the petition from having in that person's custody or control, owning, purchasing, possessing or receiving or attempting to purchase or receive a firearm or ammunition. A gun violence restraining order issued pursuant to this subchapter expires one year from the date of issuance, subject to termination by further order of the court at a hearing held pursuant to section 434 and renewal by further order of the court pursuant to section 435.

4. Dissolution of existing order. If the court finds at a hearing under this section that there is not clear and convincing evidence to support the issuance of a gun violence restraining order, the court shall dissolve any temporary emergency gun violence restraining order or ex parte gun violence restraining order in effect.

§ 433. Order contents

1. One-year order; contents. A gun violence restraining order issued pursuant to this subchapter must include all of the following:

A. A statement of the grounds supporting the issuance of the order;

B. The date and time the order expires; and

C. The following statement:

"To the restrained person: This order will last until the date and time noted above. If you have not done so already, you must surrender all firearms and ammunition that you own or possess in accordance with the Maine Revised Statutes, Title 15, section 403. You may not have in your custody or control, own, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while this order is in effect. Pursuant to section 434, you have the right to request one hearing to terminate this order at any time during its effective period. You may seek the advice of an attorney as to any matter connected with this order."

2. Notice of one hearing. When the court issues a gun violence restraining order pursuant to this subchapter, the court shall inform the restrained person that the person is entitled to one hearing to request a termination of the order, pursuant to section 434, and shall provide the restrained person with a form to request a hearing.

§ 434. Termination of order

1. Request to terminate order. A person subject to a gun violence restraining order issued pursuant to this subchapter may submit one written request at any time during the effective period of the order for a hearing to terminate the order.

2. Termination of order. If the court finds after the hearing under subsection 1 that there is no longer clear and convincing evidence to believe that the conditions under section 432, subsection 2 are true, the court shall terminate the order.

§ 435. Renewal of order

1. Request a renewal. A law enforcement officer or a family or household member of a restrained person may file a petition requesting a renewal of a gun violence restraining order issued pursuant to this subchapter at any time within the 3 months before the expiration of the gun violence restraining order.

2. Notice and hearing. A court may, after notice and a hearing, renew a gun violence restraining order issued pursuant to this subchapter if the petitioner proves, by clear and convincing evidence, that the conditions under section 432, subsection 2 continue to be true.

3. Grounds. In determining whether to renew a gun violence restraining order issued pursuant to this subchapter, the court shall consider evidence of the facts identified in section 422, subsection 2 and any other evidence of an increased risk for violence, including, but not limited to, evidence of any of the facts identified in section 422, subsection 3.

4. Burden on petitioner. At the hearing under subsection 2, the petitioner has the burden of proving, by clear and convincing evidence, that the conditions under section 432, subsection 2 continue to be true.

5. Renewal. If the renewal petition under subsection 1 is supported by clear and convincing evidence, the court shall renew the gun violence restraining order issued pursuant to this subchapter.

6. Renewed order contents. A gun violence restraining order renewed pursuant to this section must include the information identified in section 433, subsection 1.

§ 436. Expiration of order

A gun violence restraining order issued or renewed pursuant to this subchapter expires one year from the date of issuance or renewal, subject to termination by further order of the court at a hearing held pursuant to section 434 and renewal by further order of the court pursuant to section 435.

§ 437. Hearing

A hearing held pursuant to this subchapter may be continued upon a showing of good cause. A gun violence restraining order issued pursuant to this subchapter remains in effect during the period of continuance.

§ 438. Service of order

If a person subject to a gun violence restraining order issued or renewed pursuant to this subchapter was not present in court at the time the order was issued or renewed, the gun violence restraining order must be personally served on the restrained person by a law enforcement officer if the restrained person can reasonably be located.

SUBCHAPTER 5

OFFENSE

§ 441. Offense

A person who owns or possesses a firearm or ammunition knowing that the person is prohibited from doing so by a temporary emergency gun violence restraining order issued pursuant to subchapter 2, an ex parte gun violence restraining order issued pursuant to subchapter 3 or a gun violence restraining order issued after notice and a hearing pursuant to subchapter 4 commits a Class D crime. As part of the sentencing alternative, the court shall prohibit the person from having in the person's custody or control, owning, purchasing, possessing or receiving or attempting to purchase or receive a firearm or ammunition for a 5-year period, to commence upon the expiration of the gun violence restraining order.

SUMMARY

This bill creates a gun violence restraining order to authorize a court to order a person to surrender that person's firearms and ammunition for a specific period of time 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 may file for a temporary emergency gun violence restraining order, which expires in 21 days;

2. A law enforcement officer or a family or household member of the person may request an ex parte gun violence restraining order, which expires in 21 days. The court is required to hold a hearing to determine if a one-year order should be issued within 21 days;

3. A law enforcement officer or a family or household member of the person may request that a one-year gun violence restraining order be issued. The plaintiff must prove by clear and convincing evidence that the person poses a significant danger and that the order is necessary to prevent injury because less restrictive alternatives have been tried or are inappropriate in the specific case;

4. The subject of a gun violence restraining order is required to surrender all firearms and ammunition in the person's possession to a law enforcement officer or to sell the firearms and ammunition to a federally licensed firearms dealer. If the firearms and ammunition are surrendered to a law enforcement agency, the firearms and ammunition must be returned to the person at the expiration of the gun violence restraining order; and

5. A person who possesses firearms or ammunition in violation of a gun violence restraining order commits a Class D crime. Part of the sentence must include the prohibition on possession of firearms and ammunition for an additional 5 years.

SP0396 LD 1175	Session - 128th Maine Legislature		LR 2097 Item 1
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