HB 430

This bill enacts the "Protect Kids Not Guns Act, as described below. STORAGE OF FIREARMS This bill creates an offense for a person to store or keep a firearm in any place unless the firearm is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device that is properly engaged so as to render the firearm inoperable by any person other than the owner o r another lawfully authorized user . H owever, this provision does not apply to a firearm that is carried by or under the control of the owner or other lawfully authorized user. This offense is a Class A misdemeanor. LARGE-CAPACITY MAGAZINES This bill cr eates an offense for a person to possess an ammunition feeding device that has the capacity to accept more than 10 rounds (""large-capacity magazine""), with exceptions for law enforcement agencies. This bill provides that the offense exists regardless of t he date on which the magazine was acquired. This offense is a Class B misdemeanor. This bill establishes that it is an offense for a person to manufacture or cause to be manufactured, import, keep for sale, or offer or expose for sale, or to give, lend, buy, or receive a large-capacity magazine, with exceptions for law enforcement agencies. This offense is a Class A misdemeanor. This bill provides that a person who is not lawfully authorized to possess a large-capacity magazine must (i) remove the l arge-capacity magazine from this state; (ii) sell the large-capacity magazine to a licensed firearms dealer; or (iii) surrender the large-capacity magazine to a law enforcement agency for destruction. FIREARM S IN A MOTOR VEHICLE Under present law, a per son commits an offense who carries, with the intent to go armed, a firearm or a club. However, it is an exception to this offense if the person is carrying a handgun, whether openly or concealed, and the person (i) lawfully possesses the handgun; (ii) is in a place where the person is lawfully present; and (iii) is at least 21, or at least 18 if certain military service requirements are met. This bill deletes the above exception, as well as a provision of present law that, unless prohibited by federal la w, authorizes a person who meets the above exception to transport and store a firearm or firearm ammunition in the person's motor vehicle while on or utilizing any public or private parking area if the person's vehicle is parked in a location where the ve h icle is permitted to be, and the firearm or ammunition being transported or stored in the vehicle is either (i) kept from ordinary observation if the person is in the motor vehicle or (ii) kept from ordinary observation and locked within the trunk, glove b ox, or interior of the person's motor vehicle or a container securely affixed to the motor vehicle if the person is not in the motor vehicle. SELLING, TRANSFERRING, PURCHASING, OR OBTAINING OWNERSHIP OF A FIREARM This bill prohibits a person from selling or transferring ownership of a firearm, or purchasing or obtaining ownership of a firearm, unless any of the following situations occur:  The seller or transferor is a gun dealer .  The seller or transferor makes the sale or transfer to or through a gun dealer and obtains a receipt .  The sale or transfer of ownership of the firearm is a firearm classified as an antique firearm under federal law .  The sale or transfer of ownership of the firearm is a transfer of a firearm between gun dealers or between wholesalers and dealers .  The sale or transfer of ownership of the firearm is a transfer of any firearm to a law enforcement or military agency .  The transferor is transferring ownership of the firearm to a family member by gift, bequest, or inheritance, the transferee is not prohibited from possessing a firearm, and the transferee is at least 18 .  The transferor is transferring ownership of the firearm with the intent that the transfer is temporary, neither the transferor nor the transferee is prohibited from possessing a firearm, and the purpose of the transfer is not prohibited by law. This bill provides that an intentional violation of the above prohibition is a Class B misdemeanor, punishable by a fine of $500 to $10, 000 and up to nine months impris onment, and that a person convicted of a violation is prohibited from possessing a firearm for a period of two years. EXTREME RISK PROTECTION ORDER Petition This bill creates an action known as a petition for an extreme risk protection order . Pursuant to this bill:  A petition for an extreme risk protection order does not require either party to be represented by an attorney, and attorney fees are prohibited from being awarded in a proceeding under these provisions .  A petition for an extreme risk protection order must (i) identify the reasons why the petitioner believes that the respondent poses a risk of causing bodily injury to the respondent's self or others by having a firearm or any ammunition in the respondent's custody or control or by purchasing, possessing, or receiving a firearm or any ammunition, (ii) identify the quantities, types, and locations of all firearms and ammunition the petitioner believes to be in the respondent's current ownership, possession, custody, or control, (iii) identify whether there is a known existing protection order governing the respondent, (iv) identify whether there is any other pending legal action between the parties in any jurisdiction, and (v) include a physical description of the respondent and the respondent's last known location .  The petitioner is required to make a good faith effort to provide notice to a family or household member of the respondent and to any known third party who may be at risk of violence. The notice must state that the petitioner intends to petition the court for an extreme risk protection order or has already done so and, if the petitioner is a law enforcement officer or a law enforcement agency, must include referrals to appropriate resources, including mental health, domestic violence, and counseling resources. The petitioner also must attest in the petition to having provided such notice or must attest to the steps that will be taken to provide such notice .  If the petitioner is a law enforcement officer or a law enforcement agency, then the petitioner must list the address of record on the petition as being where the appropriate law enforcement agency is located .  A court or a public agency is prohibited from charging fees for filing or for service of process to a petitioner seeking relief and must provide the necessary number of certified copies, forms, and instructional brochures free of charge .  A person is not required to post a bond to obtain relief in any proceeding under these provisions .  The circuit courts of this state have jurisdiction over proceedings under these provisions . Hearing Upon receipt of a petition for an extreme risk protection order, this bill (i) requires the court to order a hearing to be held no later than 14 days after the date the petition is filed, and to issue a notice of hearing to the respondent; and (ii) authorizes the court to issue a temporary ex parte extreme risk protection order pending the hearing. Upon notice and a hearing on the matter, if the court finds by a preponderance of the evidence that the respondent poses a risk of causing bodily injury to the respondent's self or others by having in the respondent's custody or control, or by purchasing, possessing, or receiving, a firearm or any ammunition, then the court must issue an extreme risk protection order for an appropriate period of up to 12 months. Court Considerations In determining whether grounds for an extreme risk protection order exist, this bill authorizes the court to consider any relevant evidence, including a ll of the following:  A recent act or threat of violence by the respondent against the respondent's self or others, whether or not the violence or threat of violence involves a firearm .  An act or threat of violence by the respondent within the past 12 months, including, but not limited to, an act or threat of violence by the respondent against the respondent's self or others .  Evidence of the respondent being seriously mentally ill or having recurring mental health issues .  A violation by the respondent of an order of protection .  A previous or existing extreme risk protection order issued against the respondent .  A violation of a previous or existing extreme risk protection order issued against the respondent .  Whether the respondent, in this state or any other state, has been convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving domestic abuse .  Whether the respondent has used, or threatened to use, any weapons against the respondent's self or others .  The unlawful or reckless use, display, or brandishing of a firearm by the respondent .  The recurring use of, or threat to use, physical force by the respondent against another person or evidence of the respondent stalking another person .  Whether the respondent, in this state or any other state, has been arrested for, convicted of, had adjudication withheld on, or pled nolo contendere to a crime involving violence or a threat of violence .  Corroborated evidence of the abuse of controlled substances or alcohol by the respondent .  Evidence of recent acquisition of firearms or ammunition by the respondent .  Any relevant information from family and household members concerning the respondent .  Witness testimony, taken while the witness is under oath, relating to the matter before the court. Presentation of Evidence This bill requires a person, including an officer of the court, who offers evidence or recommendations relating to the petition to (i) present the evidence or recommendations in writing to the court with copies to each party and the party's attorney, if retained; or (ii) present the evidence under oath at a hearing at which all parties are present. Contents of Order This bill requires an extreme risk protection order to include all of the following:  A statement of the grounds supporting the issuance of the order .  The date the order was issued .  The date the order ends .  Whether a mental health evaluation or substance abuse assessment of the respondent is required .  The address of the court in which any responsive pleading should be filed .  A description of the requirements for the surrender of all firearms and ammunition that the respondent owns .  A specific statement that requires the respondent to surrender all firearms and ammunition in the respondent's custody, control, or possession, as well as any license to carry a handgun issued to the respondent by this state, and that notifies the respondent of the respondent's right to request a hearing to vacate the order. Request to Vacate the Ord er Pursuant to this bill, if the court issues an extreme risk protection order, then the court is required to inform the respondent that the respondent is entitled to request a hearing to vacate the order, and to provide the respondent with a form to req uest a hearing to vacate. Denial of Petitioner's Request for an Order Pursuant to this bill, if the court denies the petitioner's request for an extreme risk protection order, then the court is required to issue a written order stating the particular r easons for the denial. TEMPORARY EX PARTE EXTREME RISK PROTECTION ORDER This bill authorizes a petitioner to request that a temporary ex parte extreme risk protection order be issued before a hearing for an extreme risk protection order and without noti ce to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses a risk of causing bodily injury to the respondent's self or others in the near future by having in the respondent's custody or co n trol, or by purchasing, possessing, or receiving, a firearm or ammunition. In considering whether to issue a temporary ex parte extreme risk protection order, this bill requires the court to consider all relevant evidence. If a court finds there is rea sonable cause to believe that the respondent poses a risk of causing bodily injury to the respondent's self or others in the near future by having in the respondent's custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition, then this bill requires the court to issue a temporary ex parte extreme risk protection order, and to hold a temporary ex parte extreme risk protection order hearing in person or by telephone on the day the petition is filed or the next business day. Thi s bill requires a temporary ex parte extreme risk protection order to include all of the following:  A statement of the grounds asserted for the order .  The date the order was issued .  The address of the court in which any responsive pleading may be filed .  The date and time of the scheduled hearing .  A description of the requirements for the surrender of all firearms and ammunition that the respondent owns .  A specific statement that requires the respondent to surrender all firearms and ammunition in the respondent's custody, control, or possession, as well as any license to carry a handgun issued to the respondent by this state, and that notifies the respondent of the date a time of the hearing to determine whether an extreme risk protection order should be issued. This bill additionally states that:  A temporary ex parte extreme risk protection order expires upon the hearing on the extreme risk protection order .  A temporary ex parte extreme risk protection order is required to be served by a law enforcement officer in the same manner as provided for in this bill for service of the notice of hearing and petition, and must be served concurrently with the notice of hearing and petition .  If the court denies the petitioner's request for a temporary ex parte extreme risk protection order, then the court is required to issue a written order stating the particular reasons for the denial. NOTICE OF EXTREME RISK PROTECTION ORDER PETITIONS AND HEARINGS This bill requires the c lerk of the court to furnish a copy of the notice of hearing, petition, and temporary ex parte extreme risk protection order or extreme risk protection order, as applicable, to the sheriff of the county where the respondent resides or can be found, who must serve it upon the respondent as s o on as possible on any day of the week and at any time of the day or night . Such orders issued, changed, continued, extended, or vacated after the original service of documents must be certified by the clerk of the court and delivered to the parties at the time of the entry of the order. S ervice under these provisions takes precedence over the service of other documents, unless the other documents are of a similar emergency nature. HEARING TO VACATE AN EXTREME RISK PROTECTION ORDER This bill authorizes the respondent to submit one written request for a hearing to vacate an extreme risk protection order, starting after the date of the issuance of the order, and to request another hearing after subsequent extensions of the order, if any. Upon receipt of the request for a hearing to vacate an extreme risk protection order, this bill requires the court to set a date for a hearing no sooner than 14 days and no later than 30 days after the date of service of the request upon the petitioner; and requires noti c e of the request and hearing to be served on the petitioner. This bill provides that the respondent has the burden of proving by a preponderance of the evidence that the respondent does not pose a risk of causing bodily injury to the respondent's self or others by having in the respondent's custody or control, purchasing, possessing, or receiving a firearm or ammunition, and that the court may consider any relevant evidence . If the court finds that the respondent has met the burden of proof, then the cou rt must vacate the order, and the clerk of the court is required to notify the law enforcement agency holding any firearm or ammunition or handgun carry permit that has been surrendered of the court order to vacate the extreme risk protection order. MOTIO N TO EXTEND AN EXTREME RISK PROTECTION ORDER Pursuant to this bill:  The court is required to notify the petitioner of the impending end of an extreme risk protection order, and such notice must be received by the petitioner at least 30 days before the date the order ends .  The petitioner is authorized, by motion, to request an extension of an extreme risk protection order at any time within 30 days before the end of the order .  Upon receipt of the motion to extend, the court is required to order that a hearing be held no later than 14 days after receipt of the motion and to schedule such hearing; however, if the motion to extend is filed within 14 days of the date the extreme risk protection order is due to expire, then the court must also order a temporary extension of the extreme risk protection order to coincide with the date of the hearing .  In determining whether to extend an extreme risk protection order, the court is authorized to consider all relevant evidence .  If the court finds by a preponderance of the evidence that the requirements for issuance of an extreme risk protection order continue to be met, then the court is required to extend the order. However, if, after notice to the respondent, the motion for extension is uncontested and no modification of the order is sought, then the order may be extended on the basis of a motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested extension .  The court is authorized to extend an extreme risk protection order for a period that it deems appropriate, up to 12 months. ISSUANCE OF EXTREME RISK PROTECTION ORDER / SURRENDER Upon issuance of an extreme risk protection order, including a temporary ex parte extreme risk protection order, this bill requires all of the following actions:  The court to order the respondent to surrender to the local law enforcement agency all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession, except as provided in this bill, and any handgun carry permit held by the respondent .  The law enforcement officer serving an extreme risk protection order to request that the respondent immediately surrender all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit held by the respondent and take possession of all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit held by the respondent, which are surrendered. Alternatively, if personal service by a law enforcement officer is not possible or is not required because the respondent was present at the extreme risk protection order hearing, then the respondent must surrender all firearms and ammunition owned by the respondent or in the respondent's custody, control, or possession and any handgun carry permit held by the respondent, in a safe manner to the control of the local law e n forcement agency immediately after being served with the order by service or immediately after the hearing at which the respondent was present. This bill also authorizes a law enforcement officer to seek a search warrant from a court of competent jurisdi ction to conduct a search for firearms or ammunition owned or held by the respondent if the officer has probable cause to believe that there are firearms or ammunition in the respondent's custody, control, or possession that have not been surrendered. REC EIPT IDENTIFYING SURRENDERED FIREARMS, AMMUNITION, AND PERMITS At the time of surrender, this bill requires a law enforcement officer taking possession to issue a receipt identifying all firearms and the quantity and type of ammunition that have been sur rendered, and any permit surrendered, and to provide a copy of the receipt to the respondent. Within 72 hours after service of the order, this bill requires the law enforcement officer serving the order to file the original receipt with the court and to e nsure that the officer's law enforcement agency retains a copy of the receipt. FAILURE TO COMPLY WITH SURRENDER Upon the sworn statement or testimony of any person alleging that the respondent has failed to comply with the surrender of firearms or ammun ition as required, this bill requires the court to determine whether probable cause exists to believe that the respondent has failed to surrender all firearms or ammunition owned by the respondent or in the respondent's custody, control, or possession. I f the court finds that probable cause exists, then the court must issue a warrant describing the firearms or ammunition owned or possessed by the respondent and authorizing a search of the locations where the firearms or ammunition owned or possessed by th e respondent are reasonably believed to be found and the seizure of all firearms or ammunition owned or possessed by the respondent discovered pursuant to the search. LAWFUL OWNER OF SURRENDERED FIREARMS OR AMMUNITION If a person other than the responden t claims title to any firearms or ammunition surrendered and the person is determined by the law enforcement agency to be the lawful owner of the firearm or ammunition, then the firearm or ammunition must be returned to the person, if (i) the lawful owner agrees to store the firearm or ammunition in a manner such that the respondent does not have access to or control of the firearm or ammunition; and (ii) the firearm or ammunition is not otherwise unlawfully possessed by the owner. HEARING TO PROVE RESPONDENT'S COMPLIANCE WITH SURRENDER Upon the issuance of an extreme risk protection order, this bill requires the court to order a new hearing date and require the respondent to appear no later than three business days after the issuance of the order. At the hearing, the court must require proof that the respondent has surrendered any firearms or ammunition owned by the respondent or in the respondent's custody, control, or possession; however, the court may cancel the hearing upon a satisfactory sho w ing that the respondent is in compliance with the order. POLICIES AND PROCEDURES REGARDING SURRENDERED PROPERTY This bill requires all law enforcement agencies to develop policies and procedures regarding the acceptance, storage, and return of firearms, ammunition, or licenses required to be surrendered under this bill. VACATED EXTREME RISK PROTECTION ORDER Pursuant to this bill, if an extreme risk protection order is vacated or ends without extension, then:  A law enforcement agency holding a firearm or any ammunition owned by the respondent, or any handgun carry permit held by the respondent, that has been surrendered or seized pursuant to an extreme risk protection order must return the surrendered firearm, ammunition, or permit, as requested by a respondent only after confirming through a background check that the respondent is currently eligible to own or possess firearms and ammunition under federal and state law and confirming with the court that the extreme risk protection order has been vacated or has ended without extension .  The department of safety, if the department has suspended a handgun carry permit pursuant to the entry of an extreme risk protection order, must reinstate the permit only after confirming that the respondent is currently eligible to have a handgun carry permit .  A law enforcement agency must provide notice to any family or household members of the respondent before returning any surrendered firearm and ammunition owned by the respondent .  Any firearm and ammunition surrendered by a respondent that remains unclaimed by the lawful owner for one year after an order to vacate the extreme risk protection order must be disposed of. RESPONDENT MAY TRANSFER FIREARMS AND AMMUNITION TO ANOTHER PERSON This bill authorizes a responde nt in an action under this bill to elect to transfer all firearms and ammunition owned by the respondent that have been surrendered to or seized by a local law enforcement agency to another person who is willing to receive the respondent's firearms and amm unition. The law enforcement agency must allow such a transfer only if it is determined that the chosen recipient meets all of the following criteria:  Currently is eligible to own or possess a firearm and ammunition under federal and state law after confirmation through a background check .  Attests to storing the firearms and ammunition in a manner such that the respondent does not have access to or control of the firearms and ammunition until the extreme risk protection order against the respondent is vacated or ends without extension .  Attests not to transfer the firearms or ammunition back to the respondent until the extreme risk protection order against the respondent is vacated or ends without extension. ENTRY OF ORDER INTO DATABASES Within 24 ho urs after issuance, this bill requires the clerk of the court to (i) enter the extreme risk protection order into the uniform case reporting system and (ii) forward a copy of the order issued to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, this bill requires the law enforcement agency to enter the order into the national crime information center and similar state databases. This bill states that entry of the order into the national crime information center and similar state databases constitutes notice to all law enforcement agencies of the existence of the order, and that the order is fully enforceable in any county in this state. Within three business days after issuance of an extreme risk protection order, this bill requires the issuing court to forward all available identifying information concerning the respondent, along with the date of order issuance, to the department of safety. Upon receipt of the information, this bill require s the department of safety to determine if the respondent has a handgun carry permit, and if the respondent does have a handgun carry permit, then to immediately suspend the permit. Pursuant to this bill, if an extreme risk protection order is vacated bef ore its end date, then the clerk of the court must, on the day the order to vacate is issued, forward a copy of the order to the department of safety and the appropriate law enforcement agency specified in the order to vacate. Upon receipt of the order, t his bill requires the law enforcement agency to promptly remove the order from any computer-based system in which it was entered. PERJURY / UNLAWFUL POSSESSION OF FIREARMS OR AMMUNITION BY RESPONDENT This bill provides that a person commits perjury, a C lass A misdemeanor, if such person makes a false statement under oath, in a hearing held pursuant to the provisions of this bill relative to extreme risk protection orders, in regard to any material matter . This bill provides that a person who has in the person's custody or control a firearm or any ammunition or who purchases, possesses, or receives a firearm or any ammunition, with knowledge that the person is prohibited from doing so by an order issued pursuant to this bill, commits a Class E felony. L IABILITY RELATED TO OBTAINING AN EXTREME RISK PROTECTION ORDER Except as otherwise provided in this bill, this bill states that there is no criminal or civil liability on any person or entity for acts or omissions related to obtaining an extreme risk pro tection order or temporary ex parte extreme risk protection order. ADMINISTRATIVE OFFICE OF THE COURTS This bill requires the administrative office of the courts to do all of the following:  Develop and prepare instructions and informational brochures, standard petitions and extreme risk protection order forms, and a court staff handbook on the extreme risk protection order process .  Update the instructions, brochures, standard petition and extreme risk protection order forms, and court staff handbook as necessary, including when changes in the law make an update necessary .  Distribute a master copy of the petition and order forms, instructions, and informational brochures to the clerks of court. This bill requires, within 90 days after receipt of the m aster copy from the administrative office of the courts, the clerk of the court to make available the standardized forms, instructions, and informational brochures required by this bill."