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Amendments › HF 654

Amendment H-1244 to HF 654

Relating to the carrying, transportation, and possession of and educational programs about weapons, and including effective date provisions

Ruled not germane · April 12, 2023

Filed April 12, 2023 in the House by

What it changes

  1. Page 9, after line 24 by inserting: “DIVISION ___ EXTREME RISK PROTECTIVE ORDERS Sec. ___. Section 664A.1, subsection 2, Code 2023, is amended to read as follows:
  2. a. “Protective order” means a protective order issued pursuant to chapter 232 , a court order or court-approved consent agreement entered pursuant to this chapter or chapter 235F , a court order or court-approved consent agreement entered pursuant to chapter 236 or 236A , including a valid foreign protective order under section 236.19, subsection 3 , or section 236A.19, subsection 3 , a temporary or permanent protective order or order to vacate the homestead under chapter 598 , or an order that establishes conditions of release or is a protective order or sentencing order in a criminal prosecution arising from a domestic abuse assault under section 708.2A or older individual assault under section 708.2D , or a civil injunction issued pursuant to section 915.22 . b. “Protective order” does not include a protective order issued pursuant to chapter 664B. Sec. ___. NEW SECTION . 664B.1 Definitions. As used in this chapter unless the context otherwise requires:
  3. “Affidavit” means a written declaration or statement of fact made under oath, or legally sufficient affirmation, before any person authorized to administer oaths within or without the state.
  4. “Family member” means a spouse, person cohabiting, a parent, or other person related by consanguinity or affinity.
  5. “Firearm” includes ammunition and any offensive weapon.
  6. “Intimate relationship” means the same as defined in section 235E.1.
  7. “Plaintiff” means a family member, a person with whom the respondent is having an intimate relationship with, or a peace -1- H 1206.1700 (3) 90 js/rh 1/ 15 officer who files a petition under this chapter.
  8. “Possession” includes ownership, custody, or control.
  9. “Respondent” means a person against whom a protective order is filed under this chapter. Sec. ___. NEW SECTION . 664B.2 Extreme risk protective order —— petition.
  10. A plaintiff may file a petition in the district court requesting an extreme risk protective order. Venue shall lie in the county where either party resides. The petition shall contain all of the following: a. Name of the plaintiff and the name and address of the plaintiff’s attorney, if any. If the plaintiff is proceeding pro se, the petition shall state a mailing address for the plaintiff. A mailing address may be provided by the plaintiff pursuant to section 664B.6. b. A statement of facts alleging the respondent presents a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms accompanied by an affidavit stating the specific statements, actions, or facts that give rise to the reasons the respondent presents a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms. c. The location, type, and number of firearms the plaintiff believes are possessed by the respondent. d. Whether the respondent is subject to a current protective order or a no-contact order. e. Whether any legal proceeding is pending between the plaintiff and respondent, and if so, the nature of the legal proceeding. f. Desired relief, including a request for temporary or emergency orders.
  11. The filing fee and court costs for an extreme risk protective order shall be waived for the plaintiff.
  12. The clerk of the district court, the sheriff of any -2- H 1206.1700 (3) 90 js/rh 2/ 15 county in this state, or any peace officer, or corrections officer shall perform their duties relating to service of process without charge to the plaintiff. When an order for an extreme risk protective order is entered by the court, the court may direct the respondent to pay to the clerk of court the fees for the filing of the petition and reasonable costs of service of process if the court determines the respondent has the ability to pay the plaintiff’s fees and costs. In lieu of personal service of a protective order issued pursuant to this section, the sheriff of any county in this state, and other law enforcement and corrections officers may serve a respondent with a short-form notification pursuant to section 664B.3. Sec. ___. NEW SECTION . 664B.3 Short-form notification.
  13. In lieu of personal service of an extreme risk protective order or an emergency extreme risk protective order on a respondent whose firearms are to be surrendered by such an order, a sheriff of any county in this state or any peace officer or corrections officer in this state may serve the respondent with a short-form notification pursuant to this section to effectuate service of an unserved order.
  14. Service of a short-form notification under this section shall be allowed during traffic stops and other contacts with the respondent by a sheriff, peace officer, or corrections officer in this state in the course of performing official duties. The respondent may be detained for a reasonable period of time to complete the short-form notification process.
  15. When the short-form notification process is complete, the sheriff, peace officer, or corrections officer serving the notification shall file a copy of the notification with the clerk of the district court. The filing shall indicate the date and time the notification was served on the respondent.
  16. The short-form notification shall be on a form prescribed by the state court administrator. The state court administrator shall prescribe rules relating to the content and distribution of the form to appropriate law enforcement -3- H 1206.1700 (3) 90 js/rh 3/ 15 agencies in this state. The form shall include but not be limited to all of the following statements: a. The respondent shall immediately surrender all firearms in the respondent’s possession and any permit to carry weapons or permit to acquire in the possession of the respondent. b. The respondent is responsible for obtaining a full copy of the extreme risk protective order or emergency extreme risk protective order from the county sheriff of the county in which the order was entered or from the clerk of the district court. c. The terms and conditions of the extreme risk protective order or emergency extreme risk protective order are enforceable, and the respondent is subject to arrest for violating the protective order. Sec. ___. NEW SECTION . 664B.4 Plaintiffs proceeding pro se —— provision of forms and assistance.
  17. The department of justice shall prescribe standard forms to be used by a plaintiff proceeding pro se when filing a petition under this chapter. The standard forms shall include language in fourteen point boldface type. Standard forms prescribed by the department shall be the exclusive forms used by a plaintiff proceeding pro se, and may be used by other plaintiffs. The department shall distribute the forms to the clerks of the district courts.
  18. The clerk of the district court shall furnish the required forms to plaintiffs seeking an extreme risk protective order through pro se proceedings pursuant to this chapter. Sec. ___. NEW SECTION . 664B.5 Assistance by county attorney. A county attorney’s office may provide assistance to a plaintiff wishing to initiate proceedings pursuant to this chapter or to a plaintiff at any stage of a proceeding under this chapter, if the plaintiff does not have sufficient funds to pay for legal assistance and if the assistance does not create a conflict of interest for the county attorney’s office. The assistance provided may include but is not limited to -4- H 1206.1700 (3) 90 js/rh 4/ 15 assistance in obtaining or completing forms, filing a petition or other necessary pleading, presenting evidence to the court, and enforcing the orders of the court entered pursuant to this chapter. Providing assistance pursuant to this section shall not be considered the private practice of law for the purposes of section 331.752. Sec. ___. NEW SECTION . 664B.6 Plaintiff’s address —— confidentiality of records.
  19. A plaintiff may use any of the following addresses as a mailing address for purposes of filing a petition under this chapter: a. The mailing address of a shelter or other agency. b. A public or private post office box. c. Any other mailing address, with the permission of the resident of that address.
  20. A plaintiff shall report any change of address, whether designated according to subsection 1 or otherwise, to the clerk of the district court no more than five days after the previous address on record becomes invalid.
  21. The entire file or a portion of the file under this chapter shall be sealed by the clerk of the district court as ordered by the court to protect the privacy interest or safety of any person.
  22. Notwithstanding subsection 3, court orders shall remain public records, although the court may order that address and location information be redacted from the public records. Sec. ___. NEW SECTION . 664B.7 Hearing.
  23. Not less than five and not more than fifteen days after commencing a proceeding and upon notice to the other party, a hearing shall be held at which the plaintiff must prove by a preponderance of the evidence that the respondent presents a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms.
  24. Upon hearing, if the court finds by a preponderance of the evidence that the respondent poses a significant danger -5- H 1206.1700 (3) 90 js/rh 5/ 15 to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, the court shall issue an extreme risk protective order for a period of one year.
  25. In determining whether grounds for an extreme risk protective order exist, the court may consider any relevant evidence including but not limited to the following: a. A recent act or threat of violence by the respondent against the respondent’s self or others, and whether such violence or threat involves a firearm. b. A pattern of acts or threats of violence against the respondent’s self or others within the preceding twelve months of the filing of the petition. c. Any serious mental impairment of the respondent. d. Any violation of a no-contact order issued for violations or alleged violations of sections 708.2A, 708.7, 708.11, 709.2, 709.3, and 709.4, and any other public offense for which there is a victim. e. Any violation of a protective order issued in a civil proceeding under chapter 232, 235F, 236, 236A, 598, or
  26. f. The issuance of a previous extreme risk protective order against the respondent under this chapter. g. A violation of a previous extreme risk protective order issued against the respondent under this chapter. h. A conviction of the respondent for a crime that constitutes domestic abuse assault in violation of section 708.2A. i. The possession of or access to a firearm, or the intent to possess a firearm by the respondent. j. The unlawful or reckless use, display, or brandishing of a firearm by the respondent. k. Any history of use, attempted use, or threatened use of physical force by the respondent against another person, or the respondent’s history of stalking or harassing another person. l. Any prior arrest of the respondent for a felony offense or violent crime. -6- H 1206.1700 (3) 90 js/rh 6/ 15 m. Evidence of abuse of a controlled substance or alcohol by the respondent. n. Evidence of recent acquisition of a firearm by the respondent.
  27. The court may: a. Examine under oath the plaintiff, the respondent, and any witnesses that the plaintiff or respondent produces, or in lieu of examination, consider affidavits of the plaintiff, the respondent, or any witnesses the plaintiff or respondent produces. b. Ensure that a reasonable search has been conducted for criminal history records relating to the respondent.
  28. During the hearing, the court may order a substance abuse evaluation.
  29. An extreme risk protective order shall include all of the following: a. A statement of the grounds supporting the issuance of the order. b. The date and time the order was issued. c. The date and time the order expires. d. Whether a substance abuse evaluation is required. e. Whether a responsive pleading may be filed. f. A description of the firearms to be surrendered. g. An extreme risk protective order shall contain the following statement in substantially the same form: To the subject of this protective order: This order remains effective until the date and time noted above. If you have not done so already, you must surrender to the (insert the name of a local law enforcement agency with jurisdiction) all firearms in your possession, custody, or control and surrender any permit to carry weapons or permit to acquire in your possession to such agency. You shall not have in your possession a firearm, or ship, transport, or receive, or attempt to ship, transport, or receive such a firearm while this order is in effect. You have the right to request one hearing to terminate -7- H 1206.1700 (3) 90 js/rh 7/ 15 this order during each twelve-month period that this order is in effect, starting from the date of this order and continuing through any extension of the order. If the order requires a substance abuse evaluation, you must first obtain such evaluation and disclose the results of the evaluation to the court prior to requesting a hearing.
  30. If a hearing is continued, the court may make or extend any order issued under subsection 2 that it deems necessary.
  31. Upon the application of a party, the court shall issue subpoenas requiring attendance and testimony of witnesses and production of papers.
  32. The court shall advise the respondent of a right to be represented by counsel of the respondent’s choosing and to have a continuance to secure counsel.
  33. If applicable, the court shall determine whether the respondent has had sufficient opportunity to surrender the respondent’s firearms after service of an emergency extreme risk protective order issued under section 664B.8.
  34. Hearings shall be recorded. Sec. ___. NEW SECTION . 664B.8 Emergency extreme risk protective order.
  35. A plaintiff may request that an emergency extreme risk protective order be issued before a hearing for an extreme risk protective order under section 664B.7, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger to the respondent’s self or others, in the near future, by possessing, shipping, transporting, or receiving firearms.
  36. In considering whether to issue an emergency extreme risk protective order under this section, the court shall consider all relevant evidence described in section 664B.7, subsection
  38. If the court finds there is good cause to believe that the respondent poses a significant danger to the respondent’s -8- H 1206.1700 (3) 90 js/rh 8/ 15 self or others, in the near future, by possessing, shipping, transporting, or receiving firearms, the court shall issue an emergency extreme risk protective order.
  39. The court shall hold an emergency extreme risk protective order hearing in person or by telephone on the day the petition is filed.
  40. 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 day or week, a petition may be filed before a district judge, or district associate judge designated by the chief judge of the judicial district, who may grant emergency relief under this section, if the district judge or district associate judge finds there is good cause to believe that the respondent poses a significant danger to the respondent’s self or others, in the near future, by possessing, shipping, transporting, or receiving firearms.
  41. An emergency extreme risk protective order shall include the following: a. A statement of the grounds supporting the issuance of the order. b. The date and time the order was issued. c. The date and time the order expires. d. Whether a responsive pleading may be filed. e. A description of the firearms to be surrendered. f. The date and time of the scheduled hearing. g. An emergency extreme risk protective order shall contain the following statement in substantially the same form: To the subject of this protective order: This order remains effective until the date and time noted above. If you have not done so already, you must immediately surrender to the (insert the name of a local law enforcement agency with jurisdiction) all firearms in your possession, custody, or control, and surrender any permit to carry weapons or permit to acquire in your possession to such agency. You shall not have in your possession a firearm, or ship, transport, or receive, or -9- H 1206.1700 (3) 90 js/rh 9/ 15 attempt to ship, transport, or receive such a firearm while this order is in effect. A hearing will be held on the date and time noted above to determine if an extreme risk protective order shall be issued. Failure to appear at that hearing may result in a court entering an extreme risk protective order against you that is valid for a period of one year. You may seek the advice of an attorney as to any matter connected with this order.
  42. An emergency extreme risk protective order issued under this section shall expire upon the issuance of an extreme risk protective order under section 664B.7 or if the court determines at a hearing on the petition for an extreme risk protective order under section 664B.7 that the plaintiff has not proven by a preponderance of the evidence that the respondent presents a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms.
  43. An emergency extreme risk protective order shall be served by the sheriff of any county in this state, a peace officer, or a corrections officer in the same manner provided in section 664B.2 for the service of the notice and petition, and shall be served concurrently with such notice of hearing and petition, if possible. Alternatively, an emergency extreme risk protective order may be served using short-form notification pursuant to section 664B.3, and shall be served concurrently with the notice of hearing and petition, if possible. Sec. ___. NEW SECTION . 664B.9 Notice of extreme risk protective order or emergency extreme risk protective order.
  44. The clerk of the district court or other person designated by the court shall provide a copy of the extreme risk protective order or the emergency extreme risk protective order to the plaintiff.
  45. The clerk of the district court shall provide a notice and copy of the protective order to the appropriate law -10- H 1206.1700 (3) 90 js/rh 10/ 15 enforcement agencies and the twenty-four-hour dispatcher for the law enforcement agencies in the same manner as provided in section 235F.6, 236.5, or 236A.7, as applicable. The clerk of the district court shall provide a notice and copy of a termination or extension of the protective order in the same manner. Sec. ___. NEW SECTION . 664B.10 Termination or extension of order.
  46. The respondent may request a hearing to terminate an extreme risk protective order issued under this chapter during the twelve-month period that the order is in effect, starting from the date of the order and continuing through any extensions. a. Upon receipt of a request for a hearing to terminate an extreme risk protective order, the court shall set a date for a hearing. Notice of the request shall be served on the plaintiff. The hearing shall occur no sooner than fourteen days and no later than thirty days from the date of service of the request upon the plaintiff. b. The respondent shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms. c. If the court finds after the hearing that the respondent has met the burden of proof, the court shall terminate the extreme risk protective order.
  47. A family member may, by motion, request an extension of an extreme risk protective order within ninety days of the expiration of the order. a. Upon receipt of a motion to extend an extreme risk protective order, the court shall order the hearing be held no earlier than fourteen days from the date of the motion. b. In considering whether to extend the extreme risk protective order under this section, the court shall consider all relevant evidence described in section 664B.7, subsection -11- H 1206.1700 (3) 90 js/rh 11/ 15
  48. c. If the court finds by a preponderance of the evidence that the requirements for issuance of an extreme risk protective order continue to be met, the court shall extend the order. However, if, after notice, the motion to extend is uncontested and the plaintiff does not seek a modification of the existing order, the order may be extended on the basis of the plaintiff’s motion or affidavit stating that there has been no material change in relevant circumstances since entry of the protective order. Sec. ___. NEW SECTION . 664B.11 Firearms and firearm permits —— surrender.
  49. Upon the issuance of an extreme risk protective order or an emergency extreme risk protective order, the court shall order the respondent to immediately surrender to the law enforcement agency named in the protective order, all firearms possessed by the respondent and any permit to carry weapons or permit to acquire possessed by the respondent, within forty-eight hours of service of the order or within forty-eight hours of a hearing held pursuant to section 664B.7 at which the respondent was present and an order was subsequently issued.
  50. At the time of surrendering any firearms, a law enforcement officer taking possession of any firearms shall issue a receipt identifying all firearms that have been surrendered and provide a copy of the receipt to the respondent. Within seventy-two hours after service of the order the law enforcement officer serving the order shall file the original receipt with the court and shall ensure that the law enforcement agency retains a copy of the receipt.
  51. Upon a sworn statement or testimony of the plaintiff or of any law enforcement officer alleging that the respondent has failed to comply with the surrender of firearms and permits as required by any order issued under this section, the court shall determine whether probable cause exists to believe that the respondent has failed to surrender all firearms or permits -12- H 1206.1700 (3) 90 js/rh 12/ 15 in the possession of the respondent. If probable cause exists, the court shall issue a search warrant describing the firearms and authorizing a search of the locations where the firearms are reasonably believed to be and the seizure of any firearms discovered in the search.
  52. If a person other than the respondent claims to own any of the firearms seized or surrendered pursuant to this chapter, and the law enforcement agency where the firearms are stored determines that person to be the lawful owner of the firearms, the firearms shall be returned to the lawful owner if the lawful owner agrees to store the firearms in such a manner that prevents the respondent from having access to the firearms during the time an extreme risk protective order or emergency extreme risk protective order is in effect. Sec. ___. NEW SECTION . 664B.12 Firearm surrender —— hearing. Upon the issuance of an extreme risk protective order, the court shall order a new hearing within three business days of the issuance of the order that requires the respondent to provide evidence to the court that the respondent has surrendered any firearms in the possession of the respondent. The court may dismiss the hearing upon a satisfactory showing the respondent has complied with the order. Sec. ___. NEW SECTION . 664B.13 Firearms —— storage. All law enforcement agencies shall develop policies and procedures by June 1, 2022, regarding the acceptance, storage, and return of firearms surrendered to a law enforcement agency under this chapter. Sec. ___. NEW SECTION . 664B.14 Return of firearms and unclaimed firearms.
  53. If an extreme risk protective order is terminated or expires without an extension, the law enforcement agency in possession of any firearms surrendered by a respondent shall return any such firearms upon request of the respondent, provided the respondent is eligible to possess a firearm. -13- H 1206.1700 (3) 90 js/rh 13/ 15
  54. Notwithstanding section 809.21, for firearms that remain unclaimed by the lawful owner, the firearms shall be destroyed pursuant to 661 IAC 95.8. Sec. ___. NEW SECTION . 664B.15 Penalties.
  55. A person who files a petition under this chapter knowing the information in the petition to be materially false commits a serious misdemeanor.
  56. A respondent who possesses a firearm, or who ships, transports, or receives, or attempts to ship, transport, or receive a firearm while an extreme risk protective order or emergency extreme risk protective order is in effect commits an aggravated misdemeanor.
  57. A person who claims ownership of a firearm pursuant to section 664B.11, subsection 4, who agrees to store the firearm in such a manner that prevents a respondent from having access to the firearm commits a serious misdemeanor if the respondent is later found to have access to the firearm that is subject to the agreement while an extreme risk protective order is in effect.
  58. A respondent who violates subsection 2 shall be prohibited from possessing, shipping, transporting, or receiving a firearm for a period of five years from the date of the conviction. Sec. ___. Section 724.8, Code 2023, is amended by adding the following new subsections: NEW SUBSECTION .
  59. Is subject to an extreme risk protective order or an emergency extreme risk protective order issued under chapter 664B. NEW SUBSECTION .
  60. Has been convicted of a violation of section 664B.15, subsection 2, within the previous five years. Sec. ___. Section 724.15, subsection 2, Code 2023, is amended by adding the following new paragraphs: NEW PARAGRAPH . f. Is subject to an extreme risk protective order or an emergency extreme risk protective order issued under chapter 664B. -14- H 1206.1700 (3) 90 js/rh 14/ 15 NEW PARAGRAPH . g. Has been convicted of a violation of section 664B.15, subsection 2, within the previous five years. Sec. ___. Section 724.26, subsection 2, paragraph a, Code 2023, 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 . : (1) Is subject to a protective order under 18 U.S.C. §922(g)(8). (2) Has been convicted of a misdemeanor crime of domestic violence under 18 U.S.C. §922(g)(9). (3) Is subject to an extreme risk protective order under chapter 664B.” ___. Title page, line 2, after “locations,” by inserting “establishing a process for issuing extreme risk protective orders, providing penalties,””

Shortened here; the full amendment is in the official document.

Official amendment (PDF) · In the Bill Book