House File 611 - Introduced




                                 HOUSE FILE       
                                 BY  HUNTER

                                      A BILL FOR

  1 An Act relating to firearm violence protective orders and
  2    making penalties applicable.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
    TLSB 1822YH (2) 87
    jm/rh/rj

PAG LIN



  1  1    Section 1.  Section 724.26, subsection 2, paragraph a, Code
  1  2 2017, is amended to read as follows:
  1  3    a.  Except as provided in paragraph "b", a person who is
  1  4 subject to a protective order under 18 U.S.C. {922(g)(8) or who
  1  5 has been convicted of a misdemeanor crime of domestic violence
  1  6 under 18 U.S.C. {922(g)(9) and who knowingly possesses,
  1  7 ships, transports, or receives a firearm, offensive weapon, or
  1  8 ammunition and who is any of the following is guilty of a class
  1  9 "D" felony.:
  1 10    (i)  Is subject to a protective order under 18 U.S.C.
  1 11 {922(g)(8).
  1 12    (ii)  Has been convicted of a misdemeanor crime of domestic
  1 13 violence under 18 U.S.C. {922(g)(9).
  1 14    (iii)  Is subject to a firearm violence protective order
  1 15 under chapter 724A.
  1 16    Sec. 2.  NEW SECTION.  724A.1  Definitions.
  1 17    For purposes of this chapter, unless the context clearly
  1 18 indicates otherwise:
  1 19    1.  "Firearm violence protective order" means a court order
  1 20 issued pursuant to this chapter prohibiting a person from
  1 21 possessing, shipping, transporting, or receiving firearms,
  1 22 offensive weapons, or ammunition.
  1 23    2.  "Immediate family member" means all of the following of
  1 24 a respondent:
  1 25    a.  Husband or wife.
  1 26    b.  Natural or adoptive parent, child, or sibling.
  1 27    c.  Stepparent, stepchild, or stepsibling.
  1 28    d.  Father=in=law, mother=in=law, son=in=law,
  1 29 daughter=in=law, brother=in=law, or sister=in=law.
  1 30    e.  Grandparent or grandchild.
  1 31    3.  "Law enforcement officer" means the same as defined in
  1 32 section 80B.3.
  1 33    4.  "Respondent" means a person against whom a petition is
  1 34 filed under this chapter.
  1 35    Sec. 3.  NEW SECTION.  724A.2  Temporary emergency firearm
  2  1 violence protective order.
  2  2    1.  When the court is unavailable from the close of business
  2  3 at the end of the day or week to the resumption of business
  2  4 at the beginning of the next day or week, a law enforcement
  2  5 officer may orally contact a district judge or district
  2  6 associate judge designated by the chief judge of the judicial
  2  7 district, who may grant temporary emergency relief if the
  2  8 district judge or district associate judge finds that there is
  2  9 reasonable cause to believe all of the following:
  2 10    a.  The respondent poses an immediate and present danger
  2 11 of causing physical injury to the respondent's self or others
  2 12 by possessing, shipping, transporting, or receiving firearms,
  2 13 offensive weapons, or ammunition.
  2 14    b.  A temporary emergency firearm violence protective order
  2 15 is necessary to prevent physical injury to the respondent's
  2 16 self or others because less restrictive alternatives either
  2 17 have been tried and found to be ineffective or are determined
  2 18 to be inadequate or inappropriate for the respondent's
  2 19 circumstances.
  2 20    2.  A temporary emergency firearm violence protective order
  2 21 issued pursuant to this section shall prohibit the respondent
  2 22 from possessing, shipping, transporting, or receiving firearms,
  2 23 offensive weapons, or ammunition or attempting to possess,
  2 24 ship, transport, or receive firearms, offensive weapons, or
  2 25 ammunition, and shall expire twenty=one days from the date the
  2 26 order is issued.
  2 27    Sec. 4.  NEW SECTION.  724A.3  Ex parte temporary firearm
  2 28 violence protective order.
  2 29    1.  An immediate family member or a law enforcement officer
  2 30 may file a petition requesting that the court issue an ex parte
  2 31 firearm violence protective order enjoining the respondent from
  2 32 possessing, shipping, transporting, or receiving firearms,
  2 33 offensive weapons, or ammunition.
  2 34    2.  A court shall issue an ex parte temporary firearm
  2 35 violence protective order if the petition, supported by an
  3  1 affidavit made in writing and any additional information and
  3  2 signed by the petitioner under oath, shows a substantial
  3  3 likelihood that all of the following conditions exist:
  3  4    a.  The respondent poses a significant danger, in the near
  3  5 future, of causing physical injury to the respondent's self
  3  6 or others by possessing, shipping, transporting, or receiving
  3  7 firearms, offensive weapons, or ammunition as determined by
  3  8 evidence of any of the following:
  3  9    (1)  A recent threat of violence or act of violence by the
  3 10 respondent directed toward the respondent's self or others.
  3 11 For the purposes of this subparagraph, "recent" means within the
  3 12 last six months prior to the date the petition was filed.
  3 13    (2)  A pattern of violent acts or violent threats within the
  3 14 past twelve months, including but not limited to threats of
  3 15 violence or acts of violence by the respondent directed toward
  3 16 the respondent's self or others.
  3 17    (3)  The unlawful and reckless use, display, or brandishing
  3 18 of a firearm, offensive weapon, or ammunition by the
  3 19 respondent.
  3 20    (4)  Other evidence indicating an increased risk of violence
  3 21 by the respondent.
  3 22    b.  An ex parte temporary firearm violence protective order
  3 23 is necessary to prevent physical injury to the respondent's
  3 24 self or others because less restrictive alternatives have
  3 25 been tried and found to be ineffective, or are determined to
  3 26 be inadequate or inappropriate for the circumstances of the
  3 27 respondent.
  3 28    3.  If the court determines that grounds exist to issue an ex
  3 29 parte temporary firearm violence protective order, the court
  3 30 shall issue an ex parte temporary firearm violence protective
  3 31 order that prohibits the respondent from possessing, shipping,
  3 32 transporting, or receiving firearms, offensive weapons, or
  3 33 ammunition, or attempting to possess, ship, transport, or
  3 34 receive firearms, offensive weapons, or ammunition, and that
  3 35 expires not later than twenty=one days from the date the order
  4  1 is issued.
  4  2    4.  Within twenty=one days from the date the order is issued,
  4  3 the court shall hold a hearing to determine if a firearm
  4  4 violence protective order should be issued for a period of one
  4  5 year pursuant to section 724A.4.
  4  6    Sec. 5.  NEW SECTION.  724A.4  Firearm violence protective
  4  7 order ==== notice and hearing.
  4  8    1.  Subsequent to the issuance of an ex parte firearm
  4  9 violence protective order pursuant to section 724A.3, an
  4 10 immediate family member or a law enforcement officer may
  4 11 request the court, after notice and a hearing, to issue a
  4 12 firearm violence protective order enjoining the respondent from
  4 13 possessing, shipping, transporting, or receiving firearms,
  4 14 offensive weapons, or ammunition for a period of one year.
  4 15    2.  In determining whether to issue a firearm violence
  4 16 protective order under this section, the court shall consider
  4 17 evidence of any of the following:
  4 18    a.  A recent threat of violence or act of violence by the
  4 19 respondent directed toward the respondent's self or others.
  4 20 For the purposes of this paragraph, "recent" means within the
  4 21 last six months prior to the date the petition was filed.
  4 22    b.  A pattern of violent acts or violent threats within the
  4 23 past twelve months, including but not limited to threats of
  4 24 violence or acts of violence by the respondent directed toward
  4 25 the respondent's self or others.
  4 26    c.  The unlawful and reckless use, display, or brandishing of
  4 27 a firearm, offensive weapon, or ammunition by the respondent.
  4 28    d.  Other evidence indicating an increased risk for violence
  4 29 by the respondent.
  4 30    3.  At the hearing, the petitioner shall have the burden
  4 31 of proving, by clear and convincing evidence, all of the
  4 32 following:
  4 33    a.  The respondent poses a significant danger of personal
  4 34 injury to the respondent's self or others by possessing,
  4 35 shipping, transporting, or receiving firearms, offensive
  5  1 weapons, or ammunition.
  5  2    b.  A firearm violence protective order is necessary to
  5  3 prevent physical injury to the respondent's self or others
  5  4 because less restrictive alternatives have been tried and
  5  5 found to be ineffective or are determined to be inadequate or
  5  6 inappropriate for the respondent's circumstances.
  5  7    c.  (1)  If the court finds that there is clear and
  5  8 convincing evidence to issue a firearm violence protective
  5  9 order, the court shall issue a firearm violence protective
  5 10 order that prohibits the respondent from having in the
  5 11 respondent's custody or control, or owning, purchasing,
  5 12 possessing, or receiving, or attempting to purchase or receive,
  5 13 a firearm, offensive weapon, or ammunition, and that expires
  5 14 one year from the date of the order.
  5 15    (2)  If the court finds that there is not clear and
  5 16 convincing evidence to support the issuance of a firearm
  5 17 violence protective order, the court shall dissolve any
  5 18 temporary emergency or ex parte firearm violence protective
  5 19 order  then in effect.
  5 20    Sec. 6.  NEW SECTION.  724A.5  Judicial branch forms and
  5 21 rules.
  5 22    The judicial branch shall prescribe standard forms and rules
  5 23 necessary or expedient to carry out the intent and purposes of
  5 24 this chapter.
  5 25                           EXPLANATION
  5 26 The inclusion of this explanation does not constitute agreement with
  5 27 the explanation's substance by the members of the general assembly.
  5 28    This bill relates to firearm violence protective orders and
  5 29 makes penalties applicable.
  5 30    The bill establishes three categories of firearm violence
  5 31 protective orders: (1) a temporary emergency firearm violence
  5 32 protective order (available outside of regular court hours),
  5 33 (2) an ex parte firearm violence protective order, and (3)
  5 34 a firearm violence protective order issued after notice and
  5 35 hearing.
  6  1 TEMPORARY EMERGENCY FIREARM VIOLENCE PROTECTIVE ORDER.
  6  2  The bill provides that a law enforcement officer may seek
  6  3 a temporary emergency firearm protective order by orally
  6  4 contacting a judicial officer.  A court may issue a temporary
  6  5 emergency firearm protective order if a judicial officer
  6  6 finds there is reasonable cause to believe that a person
  6  7 poses an immediate and present danger of physical injury to
  6  8 the respondent's self or others by possessing, shipping,
  6  9 transporting, or receiving firearms, offensive weapons, or
  6 10 ammunition and that a temporary emergency firearm violence
  6 11 protective order is necessary to prevent physical injury to
  6 12 the respondent's self or others because less restrictive
  6 13 alternatives have been tried and found to be ineffective or
  6 14 are determined to be inadequate or inappropriate for the
  6 15 respondent's circumstances.  A temporary emergency firearm
  6 16 violence protective order issued under the bill shall prohibit
  6 17 the respondent from possessing, shipping, transporting,
  6 18 or receiving firearms, offensive weapons, or ammunition or
  6 19 attempting to possess, ship, transport, or receive a firearm,
  6 20 offensive weapon, or ammunition, and expires 21 days from the
  6 21 date the order is issued.
  6 22    EX PARTE TEMPORARY FIREARM VIOLENCE PROTECTIVE ORDER.  An
  6 23 immediate family member of a respondent or a law enforcement
  6 24 officer may file a petition requesting the court to issue an
  6 25 ex parte temporary firearm violence protective order enjoining
  6 26 the respondent from possessing, shipping, transporting, or
  6 27 receiving firearms, offensive weapons, or ammunition. A
  6 28 court shall issue an ex parte temporary firearm violence
  6 29 protective order if the petition, supported by an affidavit
  6 30 made in writing and any additional information and signed by
  6 31 the petitioner under oath, shows a substantial likelihood
  6 32 that the respondent poses a significant danger, in the
  6 33 near future, of physical injury to the respondent's self or
  6 34 others by possessing, shipping, transporting, or receiving
  6 35 firearms, offensive weapons, or ammunition as determined by
  7  1 certain evidence including threats of or acts of violence by
  7  2 the respondent, and that the order is necessary to prevent
  7  3 physical injury to the respondent's self or others because
  7  4 less restrictive alternatives have been tried and found
  7  5 to be ineffective, or are determined to be inadequate or
  7  6 inappropriate for the circumstances of the respondent.  If the
  7  7 court issues an ex parte temporary firearm violence protective
  7  8 order that prohibits the respondent from possessing, shipping,
  7  9 transporting, or receiving firearms, offensive weapons, or
  7 10 ammunition, or attempting to possess, ship, transport, or
  7 11 receive firearms, offensive weapons, or ammunition, the order
  7 12 expires not later than 21 days from the date the order is
  7 13 issued. Within 21 days after the date the order is issued, the
  7 14 court shall hold a hearing to determine if a firearm violence
  7 15 protective order should be issued for a period of one year.
  7 16    FIREARM VIOLENCE PROTECTIVE ORDER ==== NOTICE AND HEARING.
  7 17  Subsequent to the issuance of an ex parte firearm violence
  7 18 protective order, an immediate family member or a law
  7 19 enforcement officer may request the court, after notice and a
  7 20 hearing, to issue a firearm violence protective order enjoining
  7 21 the respondent from possessing, shipping, transporting, or
  7 22 receiving firearms, offensive weapons, or ammunition for a
  7 23 period of one year.  The court may consider additional evidence
  7 24 to determine whether to issue a firearm violence protective
  7 25 order for a period of one year. The evidentiary requirements
  7 26 and standard of review are similar to those required for an ex
  7 27 parte firearm violence protective order.
  7 28    PENALTIES.  Under current Code section 724.26, a person who
  7 29 is the subject of a domestic abuse protective order or who has
  7 30 been convicted of a misdemeanor crime of domestic violence
  7 31 under federal law who knowingly possesses, ships, transports,
  7 32 or receives a firearm, offensive weapon, or ammunition is
  7 33 guilty of a class "D" felony.  The bill expands this category
  7 34 of persons to include a person who is the subject of a firearm
  7 35 violence protective order under the bill.  The bill makes
  8  1 applicable certain provisions contained in Code section
  8  2 724.26 relating to the surrender of any firearm, offensive
  8  3 weapon, or ammunition in the possession of a prohibited person
  8  4 under the bill, including certain transfer, sale, reporting
  8  5 information, and the return of any firearms, offensive weapons,
  8  6 and ammunition to the person upon the expiration of the firearm
  8  7 protective order.
  8  8    RULES.  The bill requires the judicial branch to prescribe
  8  9 forms and rules necessary to carry out the intent and purposes
  8 10 of the bill.
       LSB 1822YH (2) 87
       jm/rh/rj