HF 611 (LSB 1822YH (2) 87)

HOUSE FILE 611

BY  HUNTER

A BILL FOR

An Act relating to firearm violence protective orders and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 724.26, subsection 2, paragraph a, Code 2017, is amended to read as follows:
   a.  Except as provided in paragraph “b”, a person who is subject to a protective order under 18 U.S.C. §922(g)(8) or who has been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. §922(g)(9) and who knowingly possesses, ships, transports, or receives a firearm, offensive weapon, or ammunition and who is any of the following is guilty of a class “D” felony.:
   (i)  Is subject to a protective order under 18 U.S.C. §922(g)(8).
   (ii)  Has been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. §922(g)(9).
   (iii)  Is subject to a firearm violence protective order under chapter 724A.
    Sec. 2.  NEW SECTION.  724A.1  Definitions.
   For purposes of this chapter, unless the context clearly indicates otherwise:
   1.  “Firearm violence protective order” means a court order issued pursuant to this chapter prohibiting a person from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition.
   2.  “Immediate family member” means all of the following of a respondent:
   a.  Husband or wife.
   b.  Natural or adoptive parent, child, or sibling.
   c.  Stepparent, stepchild, or stepsibling.
   d.  Father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law.
   e.  Grandparent or grandchild.
   3.  “Law enforcement officer” means the same as defined in section 80B.3.
   4.  “Respondent” means a person against whom a petition is filed under this chapter.
    Sec. 3.  NEW SECTION.  724A.2  Temporary emergency firearm violence protective order.
   1.  When the court is unavailable from the close of business at the end of the day or week to the resumption of business at the beginning of the next day or week, a law enforcement officer may orally contact a district judge or district associate judge designated by the chief judge of the judicial district, who may grant temporary emergency relief if the district judge or district associate judge finds that there is reasonable cause to believe all of the following:
   a.  The respondent poses an immediate and present danger of causing physical injury to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition.
   b.  A temporary emergency firearm violence protective order is necessary to prevent physical injury to the respondent’s self or others because less restrictive alternatives either have been tried and found to be ineffective or are determined to be inadequate or inappropriate for the respondent’s circumstances.
   2.  A temporary emergency firearm violence protective order issued pursuant to this section shall prohibit the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition or attempting to possess, ship, transport, or receive firearms, offensive weapons, or ammunition, and shall expire twenty-one days from the date the order is issued.
    Sec. 4.  NEW SECTION.  724A.3  Ex parte temporary firearm violence protective order.
   1.  An immediate family member or a law enforcement officer may file a petition requesting that the court issue an ex parte firearm violence protective order enjoining the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition.
   2.  A court shall issue an ex parte temporary firearm violence protective order if the petition, supported by an affidavit made in writing and any additional information and signed by the petitioner under oath, shows a substantial likelihood that all of the following conditions exist:
   a.  The respondent poses a significant danger, in the near future, of causing physical injury to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition as determined by evidence of any of the following:
   (1)  A recent threat of violence or act of violence by the respondent directed toward the respondent’s self or others. For the purposes of this subparagraph, “recent” means within the last six months prior to the date the petition was filed.
   (2)  A pattern of violent acts or violent threats within the past twelve months, including but not limited to threats of violence or acts of violence by the respondent directed toward the respondent’s self or others.
   (3)  The unlawful and reckless use, display, or brandishing of a firearm, offensive weapon, or ammunition by the respondent.
   (4)  Other evidence indicating an increased risk of violence by the respondent.
   b.  An ex parte temporary firearm violence protective order is necessary to prevent physical injury to the respondent’s self or others because less restrictive alternatives have been tried and found to be ineffective, or are determined to be inadequate or inappropriate for the circumstances of the respondent.
   3.  If the court determines that grounds exist to issue an ex parte temporary firearm violence protective order, the court shall issue an ex parte temporary firearm violence protective order that prohibits the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition, or attempting to possess, ship, transport, or receive firearms, offensive weapons, or ammunition, and that expires not later than twenty-one days from the date the order is issued.
   4.  Within twenty-one days from the date the order is issued, the court shall hold a hearing to determine if a firearm violence protective order should be issued for a period of one year pursuant to section 724A.4.
    Sec. 5.  NEW SECTION.  724A.4  Firearm violence protective order —— notice and hearing.
   1.  Subsequent to the issuance of an ex parte firearm violence protective order pursuant to section 724A.3, an immediate family member or a law enforcement officer may request the court, after notice and a hearing, to issue a firearm violence protective order enjoining the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition for a period of one year.
   2.  In determining whether to issue a firearm violence protective order under this section, the court shall consider evidence of any of the following:
   a.  A recent threat of violence or act of violence by the respondent directed toward the respondent’s self or others. For the purposes of this paragraph, “recent” means within the last six months prior to the date the petition was filed.
   b.  A pattern of violent acts or violent threats within the past twelve months, including but not limited to threats of violence or acts of violence by the respondent directed toward the respondent’s self or others.
   c.  The unlawful and reckless use, display, or brandishing of a firearm, offensive weapon, or ammunition by the respondent.
   d.  Other evidence indicating an increased risk for violence by the respondent.
   3.  At the hearing, the petitioner shall have the burden of proving, by clear and convincing evidence, all of the following:
   a.  The respondent poses a significant danger of personal injury to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition.
   b.  A firearm violence protective order is necessary to prevent physical injury to the respondent’s self or others because less restrictive alternatives have been tried and found to be ineffective or are determined to be inadequate or inappropriate for the respondent’s circumstances.
   c.  (1)  If the court finds that there is clear and convincing evidence to issue a firearm violence protective order, the court shall issue a firearm violence protective order that prohibits the respondent from having in the respondent’s custody or control, or owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm, offensive weapon, or ammunition, and that expires one year from the date of the order.
   (2)  If the court finds that there is not clear and convincing evidence to support the issuance of a firearm violence protective order, the court shall dissolve any temporary emergency or ex parte firearm violence protective order then in effect.
    Sec. 6.  NEW SECTION.  724A.5  Judicial branch forms and rules.
   The judicial branch shall prescribe standard forms and rules necessary or expedient to carry out the intent and purposes of this chapter.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to firearm violence protective orders and makes penalties applicable.
   The bill establishes three categories of firearm violence protective orders: (1) a temporary emergency firearm violence protective order (available outside of regular court hours), (2) an ex parte firearm violence protective order, and (3) a firearm violence protective order issued after notice and hearing.
   TEMPORARY EMERGENCY FIREARM VIOLENCE PROTECTIVE ORDER.  The bill provides that a law enforcement officer may seek a temporary emergency firearm protective order by orally contacting a judicial officer. A court may issue a temporary emergency firearm protective order if a judicial officer finds there is reasonable cause to believe that a person poses an immediate and present danger of physical injury to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition and that a temporary emergency firearm violence protective order is necessary to prevent physical injury to the respondent’s self or others because less restrictive alternatives have been tried and found to be ineffective or are determined to be inadequate or inappropriate for the respondent’s circumstances. A temporary emergency firearm violence protective order issued under the bill shall prohibit the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition or attempting to possess, ship, transport, or receive a firearm, offensive weapon, or ammunition, and expires 21 days from the date the order is issued.
   EX PARTE TEMPORARY FIREARM VIOLENCE PROTECTIVE ORDER. An immediate family member of a respondent or a law enforcement officer may file a petition requesting the court to issue an ex parte temporary firearm violence protective order enjoining the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition. A court shall issue an ex parte temporary firearm violence protective order if the petition, supported by an affidavit made in writing and any additional information and signed by the petitioner under oath, shows a substantial likelihood that the respondent poses a significant danger, in the near future, of physical injury to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition as determined by certain evidence including threats of or acts of violence by the respondent, and that the order is necessary to prevent physical injury to the respondent’s self or others because less restrictive alternatives have been tried and found to be ineffective, or are determined to be inadequate or inappropriate for the circumstances of the respondent. If the court issues an ex parte temporary firearm violence protective order that prohibits the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition, or attempting to possess, ship, transport, or receive firearms, offensive weapons, or ammunition, the order expires not later than 21 days from the date the order is issued. Within 21 days after the date the order is issued, the court shall hold a hearing to determine if a firearm violence protective order should be issued for a period of one year.
   FIREARM VIOLENCE PROTECTIVE ORDER —— NOTICE AND HEARING.  Subsequent to the issuance of an ex parte firearm violence protective order, an immediate family member or a law enforcement officer may request the court, after notice and a hearing, to issue a firearm violence protective order enjoining the respondent from possessing, shipping, transporting, or receiving firearms, offensive weapons, or ammunition for a period of one year. The court may consider additional evidence to determine whether to issue a firearm violence protective order for a period of one year. The evidentiary requirements and standard of review are similar to those required for an ex parte firearm violence protective order.
   PENALTIES. Under current Code section 724.26, a person who is the subject of a domestic abuse protective order or who has been convicted of a misdemeanor crime of domestic violence under federal law who knowingly possesses, ships, transports, or receives a firearm, offensive weapon, or ammunition is guilty of a class “D” felony. The bill expands this category of persons to include a person who is the subject of a firearm violence protective order under the bill. The bill makes applicable certain provisions contained in Code section 724.26 relating to the surrender of any firearm, offensive weapon, or ammunition in the possession of a prohibited person under the bill, including certain transfer, sale, reporting information, and the return of any firearms, offensive weapons, and ammunition to the person upon the expiration of the firearm protective order.
   RULES. The bill requires the judicial branch to prescribe forms and rules necessary to carry out the intent and purposes of the bill.