Relating to the creation of an extreme risk protective order against a person in possession of a firearm who presents a significant danger to the person’s self or others, and providing penalties

Under the bill, a plaintiff may file a petition in district court requesting an extreme risk protective order stating that the subject of the extreme risk protective petition (respondent) presents a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms. The bill requires the petition to contain an affidavit stating the respondent’s name and address, whether the respondent has a permit to carry weapons, whether the respondent has a criminal record, the specific facts that give rise to the reasons the respondent presents a significant danger to the respondent’s self or others; the location, type, and number of firearms the plaintiff believes are possessed by the respondent; whether the respondent is subject to a current protective order or no-contact order; and whether any legal proceedings are pending between the plaintiff and respondent. In lieu of personal service of an extreme risk protective order on a respondent, the bill allows a sheriff of any county in this state or any peace officer or corrections officer in this state to serve the respondent with a short-form notification to effectuate service of an unserved order. Short-form notification includes service 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 bill permits a county attorney’s office to provide assistance to a plaintiff wishing to initiate the filing of an extreme risk protective order petition or to a plaintiff at any stage of a proceeding under the bill, if the assistance does not create a conflict of interest for the county attorney’s office. The bill requires that a hearing on the petition for an extreme risk protective order shall occur not less than five but no more than seven days after commencing the proceeding and after notice to the respondent. The bill provides that upon a hearing on the petition, if the court finds by clear and convincing evidence that the respondent presents a significant danger 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 up to one year. However, the court shall not issue an extreme risk protective order for an amount of time longer than the minimum amount of time necessary for the danger identified in the hearing to resolve. 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 recent act or threat of violence by the respondent against the respondent’s self or others; a pattern of acts or threats of violence against the respondent’s self or others by the respondent within the preceding months of the filing of the petition; any serious mental impairment of the respondent; any violations of no-contact orders or protective orders by the respondent within the preceding six years; a previous issuance of an extreme risk protective order issued against the respondent; a previous domestic abuse assault conviction; the possession of a firearm or the reckless use, display, or brandishing of a firearm by the respondent; any history of use of physical force by the respondent against another person; any prior criminal history of the respondent; and evidence of abuse of a controlled substance or alcohol by the respondent. EMERGENCY EXTREME RISK PROTECTIVE ORDER. The bill allows a plaintiff to request an emergency extreme risk protective order, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses an imminent, significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms. If the court finds by a preponderance of the evidence that the respondent presents an imminent, significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, the court shall issue an emergency extreme risk protective order that shall be effective for not more than seven days. The court shall hold an emergency extreme risk protective order hearing in person or by telephone on the day the petition is filed. If a 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, the bill provides that a petition for an emergency extreme risk protective order 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, if the district judge or district associate judge finds 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. The emergency extreme risk protective order shall be in effect until its expiration, the issuance of an extreme risk protective order after a hearing on the petition for an extreme risk protective order, or the court determines at the hearing on the petition the plaintiff has not proven by clear and convincing evidence that the respondent presents a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms, whichever finalizing event occurs first. In lieu of personal service of an emergency extreme risk protective order on a respondent, the bill allows a sheriff of any county in this state or any peace officer or corrections officer to serve the respondent with a short-form notification to effectuate the service on an unserved order. Short-form notification includes service during traffic stops and other contacts with the respondent by the sheriff, peace officer, or corrections officer. REQUEST TO TERMINATE ORDER. Under the bill, the respondent may submit a request for a hearing to terminate an extreme risk protective order during the period that the order is in effect, beginning from the date of the order and continuing through the expiration or termination of the order. The bill provides that the respondent shall have the burden of proving by clear and convincing evidence that the respondent does not pose a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms. EXTENSION OF ORDER. The bill authorizes a court, upon petition by a plaintiff and after notice and hearing, to extend an extreme risk protective order at any time. The court may extend the order if the court, after a hearing at which the respondent has the opportunity to be heard, finds that the respondent continues to pose a significant danger to the respondent’s self or others by possessing, shipping, transporting, or receiving firearms. The bill prohibits a court from issuing more than one extension of an extreme risk protective order. If the court has already issued one extension, the bill requires a plaintiff to follow the procedures set forth in the bill to request a new extreme risk protective order. SURRENDER OF FIREARMS AND FIREARM PERMITS. Upon the issuance of an extreme risk protective order or an emergency extreme risk protective order, the bill provides that the court shall order the respondent to immediately surrender to the law enforcement agency named in the protective order, the person designated by the court in the extreme risk protective order, or, pursuant to an emergency extreme risk protective order, a commercial dealer with a federal firearms license who is designated by the court all firearms possessed by the respondent, and the respondent shall immediately surrender any permit to carry weapons or permit to acquire possessed by the respondent to the law enforcement agency. A court may issue and deliver to any peace officer a search warrant that authorizes the officer to enter and search any place where there is probable cause to believe a firearm or permit is located and to seize the firearm or permit if there is probable cause to believe that the respondent has not surrendered a firearm or permit in the respondent’s possession. The bill requires that a peace officer taking possession of any firearms, or a peace officer on behalf of the person designated by the court in the extreme risk protective order or on behalf of a commercial dealer pursuant to an emergency extreme risk protective order, shall issue a receipt identifying all firearms that have been surrendered and provide a copy of the receipt to the respondent within hours of taking possession of the firearms. If a person other than the respondent claims to own any of the firearms seized or surrendered pursuant to the bill and the law enforcement agency where the firearms are stored, or after consulting with a law enforcement agency the person designated by the court to maintain control of the firearms or the commercial dealer, determines the 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. Under the bill, the lawful owner commits a serious misdemeanor if the respondent is later found to have access to the firearms while an extreme risk protective order or emergency extreme risk protective order is in effect against the respondent. Upon the issuance of an extreme risk protective order, the bill requires the court to order a new hearing within three business days of the issuance of the extreme risk protective 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 extreme risk protective order. All law enforcement agencies must develop policies and procedures by June 1, 2021, regarding the acceptance, storage, and return of firearms surrendered to a law enforcement agency under the bill. RETURN OF FIREARMS. Under the bill, if an extreme risk protective order is terminated or expires, or an emergency extreme risk protective order expires without the issuance of an extreme risk protective order, the law enforcement agency, person designated by the court, or commercial dealer holding any firearms surrendered by the respondent shall return any firearms to the respondent upon request of the respondent, provided the respondent is eligible to possess a firearm.8. REPORT. Upon the issuance of an extreme risk protective order, the bill requires the clerk of the district court to forward only such information as is necessary to identify the person to the department of public safety, which in turn shall forward the information to the federal bureau of investigation or its successor agency for the sole purpose of inclusion in the national instant criminal background check system database. PENALTIES. The bill provides that a respondent shall not be eligible to obtain a permit to carry weapons or a permit to acquire pistols or revolvers while an extreme risk protective order or emergency risk protective order is in effect against the respondent. The bill provides that a plaintiff who files a petition for an extreme risk protective order knowing the information in the petition to be materially false commits a serious misdemeanor. The bill provides that a respondent who possesses a firearm, or who ships, transports, or receives, or attempts to ship, transport, or receive such a firearm while an extreme risk protective order or emergency extreme risk protective order is in effect against the respondent commits a serious misdemeanor.