HOUSE OF REPRESENTATIVES

H.B. NO.

1543

THIRTIETH LEGISLATURE, 2019

 

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT

 

 

RELATING TO GUN VIOLENCE PROTECTIVE ORDERS.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


SECTION 1. The legislature finds that three hundred twenty-three mass shootings took place in the United States in 2018, an average of six mass shootings per week. Three hundred eighty-two lives were lost and over five hundred people were injured. Prior to many of these acts of gun violence, the perpetrator was known to be armed while displaying clear warning signs that he or she posed an immediate threat of violence. Yet, in many of these cases law enforcement officers had no legal means to immediately remove the perpetrator's firearms to prevent these acts from occurring.

On November 2, 1999, a gunman opened fire at his workplace in Honolulu killing seven co-workers in the deadliest mass shooting in Hawaii history. Prior to the incident the gunman was known to be armed while displaying signs that he posed an immediate threat of violence, yet law enforcement had no legal means to immediately remove the perpetrator's firearms to prevent this act from occurring.

On June 3, 2011, a gunman killed two Hawaii residents with a semi-automatic pistol while driving on the H-1 freeway. Prior to the incident the gunman was known to be armed and suffering from significant mental health issues and drug use. Yet, law enforcement had no legal means to immediately remove the perpetrator's firearms to prevent this act from occurring.

On February 14, 2018, a gunman opened fire at Marjory Stoneman Douglas High School killing fourteen students and three staff members. Prior to the mass shooting, the local sheriff's office received tips about the gunman's attempt to carry out a school shooting, and the FBI received a tip that the gunman had made death threats to other students. Yet, law enforcement had no legal means to immediately remove the perpetrator's firearms to prevent this act from occurring.

The legislature also finds that additional steps can be taken to protect victims of domestic violence from gun violence. Between 2001 and 2012, more than 6,410 women were murdered in the United States by an intimate partner using a gun. Yet, under current law even when a victim of domestic abuse is threatened by an armed abuser law enforcement does not always have a legal means to immediately remove the perpetrator's firearms to prevent a murder from occurring.

The purpose of this Act is to reduce gun deaths and injuries in Hawaii by establishing a process to allow a court to issue an order allowing law enforcement to temporarily remove firearms from a person determined to pose an immediate danger to themselves or others.

SECTION 2. Chapter 134, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part     . GUN VIOLENCE PROTECTIVE ORDERS

134-A Definitions. For the purposes of this part:

"Bodily injury" has the same meaning as in section 707-700.

"Business day" has the same meaning as in section 709-906.

"Colleague" means a person employed or working at the same place of business or employment as the respondent.

"Educator" means a person employed at an institution of learning at which the respondent may have a connection.

"Ex parte gun violence protective order" means an order issued by the family court, pursuant to section 134-D, prohibiting the respondent from owning, purchasing, possessing, receiving, or having custody or control of any firearm or ammunition until the court-scheduled hearing for a one-year gun violence protective order.

"Family or household member" means a spouse or reciprocal beneficiary, former spouse or former reciprocal beneficiary, person with whom a respondent has a child in common, parent, child, person related by consanguinity, person related by adoption, person jointly residing or who formerly resided with the respondent in the same dwelling unit, person with whom a respondent has or has had a dating relationship, or person who is or has acted as the respondent's legal guardian.

"Medical professional" means a licensed physician, advanced practice registered nurse, psychologist, or psychiatrist who has examined the respondent.

"One-year gun violence protective order" means an order issued by the family court, pursuant to section 134-E, prohibiting the respondent from owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition for a period of one year.

"Petitioner" means a law enforcement officer, family or household member of the respondent, medical professional, educator, or colleague, who files a petition pursuant to section 134-D or section 134-E.

"Respondent" means the person identified in the petition filed pursuant to section 134-D or section 134-E.

134-B Court jurisdiction. A petition for relief under this part may be filed in any family court in the circuit in which the petitioner resides. A petition under this part shall be given docket priority by the court.

134-C Commencement of action; forms. (a) A petitioner may seek a gun violence protective order by filing a written petition for relief upon forms provided by the court. The court shall designate an employee or appropriate nonjudicial agency to assist the petitioner in completing the petition.

(b) The petition shall allege, under penalty of perjury, the grounds for issuance of the order and shall be accompanied by an affidavit made under oath or a statement made under penalty of perjury containing detailed allegations based on personal knowledge that the respondent poses a danger of causing death or bodily injury to the respondent's self or any other person by owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition, and shall state specific facts and circumstances in support thereof, as well as the number, types, and locations of any firearms or ammunition presently believed by the petitioner to be in the possession, custody, or control of the respondent. The petition may also state whether there is an existing restraining order or protective order in effect governing the respondent and whether there is any pending lawsuit, complaint, petition, or other action between the parties under the laws of this State. The judiciary shall verify the terms of any existing order governing the parties. The court shall not delay granting relief because of the existence of a pending action between the parties or the necessity of verifying the terms of an existing order. A petition for a gun violence protective order may be granted regardless of the existence of a pending action between the parties.

(c) If the respondent is alleged to pose an imminent danger of causing death or bodily injury to a family or household member, or a family or household member is alleged to have been the target of a threat or act of violence by the respondent, the petitioner shall make a good faith effort to provide notice of these allegations to any and all adult family or household members of the respondent. The notice shall also state that the petitioner intends to petition the court for a gun violence protective order and, if the petitioner is a law enforcement officer, shall include a referral to relevant domestic violence, stalking advocacy, or counseling resources, as appropriate. The petitioner shall attest to having provided the notice in the petition. If, after making a good faith effort, the petitioner is unable to provide notice to any or all adult family or household members of the respondent, the petition shall describe what efforts were made.

(d) All health records and other health information provided in a petition or considered as evidence in a proceeding under this part shall be sealed by the court, except that the identities of the petitioner and respondent may be provided to law enforcement agencies as set forth in section 134-J. Aggregate statistical data about the numbers of gun violence protective orders issued, renewed, denied, dissolved, or terminated shall be made available to the public upon request.

(e) Upon receipt of the petition, the court shall set a date for hearing on the petition within fourteen days, regardless of whether the court issues an ex parte gun violence protective order pursuant to section 134-D. If the court issues an ex parte gun violence protective order pursuant to section 134-D, notice of the hearing shall be served on the respondent with the ex parte order. Notice of the hearing shall be personally served on the respondent by an officer of the appropriate county police department.

134-D Ex parte gun violence protective order. (a) A petitioner may request that an ex parte order be issued before a hearing for a one-year gun violence protective order, without notice to the respondent.

(b) The court shall issue or deny an ex parte gun violence protective order on the same day that the petition is submitted to the court, unless the petition is filed too late in the day to permit effective adjudication, in which case the order shall be issued or denied on the next business day.

(c) Before issuing an ex parte gun violence protective order the court shall examine under oath the petitioner and any witnesses the petitioner may produce. The court may also ensure that a reasonable search has been conducted:

(1) Of all available records to determine whether the respondent owns any firearms or ammunition; and

(2) For criminal history and mental health records related to the respondent that are readily available to the court.

(d) In determining whether there are sufficient grounds for an ex parte gun violence protective order, the court shall consider all relevant evidence presented by the petitioner, and may also consider other relevant evidence, including evidence of facts relating to the respondent's:

(1) Unlawful, reckless, or negligent use, display, storage, possession, or brandishing of a firearm;

(2) Act or threat of violence against the respondent's self or any other person, regardless of whether the violence involves a firearm;

(3) Violation of a protective order or restraining order issued pursuant to chapter 586 or section 604-10.5, or a similar law in another state;

(4) Abuse of controlled substances or alcohol or commission of any criminal offense that involves controlled substances or alcohol; and

(5) Recent acquisition of firearms, ammunition, or other deadly weapons.

(e) The court shall also consider the time that has elapsed since the events described in subsection (d).

(f) If the court finds probable cause to believe that the respondent poses an imminent danger of causing bodily injury to the respondent's self or any other person by owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition, the court shall issue an ex parte gun violence protective order.

(g) An ex parte gun violence protective order issued pursuant to this section shall include a:

(1) Statement that the respondent shall not own, purchase, possess, receive, transfer ownership of, or have in the respondent's custody or control, or attempt to purchase, receive, or transfer ownership of any firearm or ammunition while the order is in effect;

(2) Description of the requirements for relinquishment of firearms and ammunition under section 134-H;

(3) Statement of the grounds asserted for the order;

(4) Notice of the hearing under section 134-C(e) to determine whether to issue a one-year gun violence protective order, including the address of the court and the date and time when the hearing is scheduled;

(5) Notice that at the hearing the court may extend the duration of the ex parte gun violence protective order for up to one year; and

(6) Notice that the respondent may seek the advice of an attorney as to any matter connected with the order, and that the attorney should be consulted promptly so that the attorney may assist the respondent in any matter connected with the order.

(h) An ex parte gun violence protective order issued pursuant to this section shall be personally served on the respondent by an officer of the appropriate county police department.

(i) In accordance with section 134-C(e), the court shall schedule a hearing within fourteen days of the issuance of an ex parte gun violence protective order to determine if a one-year gun violence protective order shall be issued. A respondent may seek an extension of time before the hearing. The court shall dissolve any ex parte gun violence protective order in effect against the respondent if the court subsequently holds the hearing and issues or denies a one-year gun violence protective order.

(j) If the respondent fails to:

(1) Appear at the hearing; and

(2) Provide reasonable cause for the failure to appear,

then the judge may issue a one-year gun violence protective order or extend the duration of the ex parte gun violence protective order.

134-E One-year gun violence protective order issued after notice and hearing. (a) A petitioner requesting a one-year gun violence protective order shall include in the petition detailed allegations based on personal knowledge that the respondent poses a danger of causing bodily injury to the respondent's self or any other person by owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition.

(b) Before a hearing for a one-year gun violence protective order, the court shall ensure that a reasonable search has been conducted:

(1) Of all available records to determine whether the respondent owns any firearms or ammunition; and

(2) For criminal history and mental health records related to the respondent that are readily available to the court.

(c) In determining whether to issue a one-year gun violence protective order under this section, the court shall consider all relevant evidence presented by the petitioner and the respondent, and may also consider other relevant evidence, including but not limited to evidence of the facts identified in section 134-D(d).

(d) If the court finds by a preponderance of the evidence at the hearing that the respondent poses a danger of causing bodily injury to the respondent's self or any other person by owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition, the court shall issue a one-year gun violence protective order.

(e) A one-year gun violence protective order issued pursuant to this section shall include:

(1) A statement that the respondent shall not own, purchase, possess, receive, transfer ownership of, or have in the respondent's custody or control, or attempt to purchase, receive, or transfer ownership of any firearm or ammunition while the order is in effect;

(2) A description of the requirements for the surrender of firearms and ammunition under section 134-H;

(3) A statement of the grounds supporting the issuance of the order;

(4) The date and time the order expires;

(5) The address of the court that issued the order;

(6) A statement that the respondent may request a hearing to terminate the order at any time during its effective period;

(7) A statement that the respondent may seek the advice of an attorney as to any matter connected to the order;

(8) A statement of whether the respondent was present in court to be advised of the contents of the order or whether the respondent failed to appear; and

(9) If the respondent was present in court at the hearing for the one-year gun violence protective order, a statement that the respondent's presence shall constitute proof of service of notice of the terms of the order.

(f) If the respondent fails to appear at the hearing, a one-year gun violence protective order issued pursuant to this section shall be personally served on the respondent by an officer of the appropriate county police department.

134-F Early termination of one-year gun violence protective order. (a) The respondent named in a one-year gun violence protective order issued under section 134-E may submit a written request at any time during the effective period of the order for a hearing to terminate the order. Upon receipt of the written request for termination, the court shall set a date for a hearing, which shall occur no sooner than fourteen days from the date of service of the request upon the petitioner.

(b) Notice of the request shall be personally served on the petitioner by any person authorized by section 634-21.

(c) The respondent seeking termination of the order shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a significant danger of causing bodily injury to the respondent's self or any other person by owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition.

(d) If the court finds after the hearing that the respondent has met the respondent's burden, the court shall terminate the order.

134-G Renewal of one-year gun violence protective order. (a) A petitioner may submit a written request for a renewal of a one-year gun violence protective order issued under section 134-E within three months prior to the expiration of the order.

(b) In determining whether to renew a one-year gun violence protective order, the court, after notice to the respondent, shall consider all relevant evidence presented by the petitioner and the respondent, and may also consider other relevant evidence, including evidence of the facts identified in section 134-D(d).

(c) The court may renew a one-year gun violence protective order if the court finds by a preponderance of the evidence that the respondent continues to pose a danger of causing bodily injury to the respondent's self or any other person by owning, purchasing, possessing, receiving, or having in the respondent's custody or control any firearm or ammunition.

(d) A one-year gun violence protective order renewed pursuant to this section shall expire after one year, subject to termination by further order of the court at a hearing held pursuant to section 134-F and further renewal by order of the court pursuant to this section.

134-H Surrender of firearms and ammunition. (a) Upon issuance of an ex parte or one-year gun violence protective order, the court shall order the respondent to voluntarily surrender or dispose of all firearms and ammunition that the respondent owns or possesses, or has in the respondent's custody or control, in accordance with section 134-7.3(b).

(b) A police officer serving a gun violence protective order may take custody of any and all firearms and ammunition in accordance with the procedure described in section 134-7(f). Alternatively, if personal service by a police officer is not possible, the respondent shall surrender the firearms and ammunition in a safe manner to the control of the chief of police where the respondent resides within forty-eight hours of being served with the order.

(c) At the time of surrender or removal, a police officer taking possession of a firearm or ammunition pursuant to a gun violence protective order shall issue a receipt identifying all firearms and ammunition that have been surrendered or removed and provide a copy of the receipt to the respondent. Within seventy-two hours after being served with the order, the officer serving the order shall file the original receipt with the court that issued the gun violence protective order, and shall ensure that the appropriate county police department retains a copy of the receipt.

(d) A court that has probable cause to believe a respondent to a gun violence protective order owns, possesses, or has in the respondent's custody or control any firearms or ammunition that the respondent has failed to surrender pursuant to this section, or has received or purchased a firearm or ammunition while subject to the order, shall issue a warrant describing the firearm or ammunition and authorizing a search of any location where the firearm or ammunition is reasonably believed to be and the seizure of any firearm or ammunition discovered pursuant to the search.

(e) The appropriate county police department may charge the respondent a fee not to exceed the reasonable and actual costs incurred by the department for storing a firearm or ammunition surrendered pursuant to this section for the duration of the gun violence protective order and any additional periods necessary under section 134-I.

134-I Return and disposal of firearms or ammunition. (a) Thirty days before a one-year gun violence protective order is set to expire, a county police department holding any firearm or ammunition that has been surrendered pursuant to the order shall notify the petitioner that the order is set to expire. The notice shall advise the petitioner of the procedures for seeking a renewal of the order pursuant to section 134-G.

(b) If a gun violence protective order is terminated or expires and is not renewed, a county police department holding any firearm or ammunition that has been surrendered pursuant to section 134-H shall notify the respondent that the respondent may request the return of the firearm or ammunition. A county police department shall return any surrendered firearm or ammunition requested by a respondent only after confirming, through a background check, that the respondent is currently eligible to own or possess firearms and ammunition.

(c) A respondent who has surrendered any firearm or ammunition to a county police department pursuant to section 134-H and who does not wish to have the firearm or ammunition returned, or who is no longer eligible to own or possess firearms or ammunition, may sell or transfer title of the firearm or ammunition to a firearms dealer licensed under section 134-31. The department shall transfer possession of the firearm or ammunition to a firearms dealer licensed under section 134-31 only after the dealer has provided written proof of transfer of the firearm or ammunition from the respondent to the dealer and the department has verified the transfer with the respondent.

(d) If a person other than the respondent claims title to any firearm or ammunition surrendered pursuant to section 134-H, and that person is determined by the appropriate county police department to be the lawful owner of the firearm or ammunition, the firearm or ammunition shall be returned to the lawful owner.

(e) A county police department holding any firearm or ammunition that was surrendered by a respondent pursuant to section 134-H may dispose of the firearm or ammunition only after six months from the date of proper notice to the respondent of the department's intent to dispose of the firearm or ammunition, unless the firearm or ammunition has been claimed by the lawful owner. If the firearm or ammunition remain unclaimed after six months from the date of notice, then no party shall thereafter have the right to assert ownership thereof and the department may dispose of the firearm or ammunition.

(f) For the purposes of this section, "dispose" means selling the firearm or ammunition to a firearms dealer licensed under section 134-31, or destroying the firearm or ammunition.

134-J Reporting of order to Hawaii criminal justice data center. (a) The court shall notify the Hawaii criminal justice data center no later than one business day after issuing, renewing, dissolving, or terminating an ex parte or one-year gun violence protective order under this chapter.

(b) The information required to be submitted to the Hawaii criminal justice data center pursuant to this section shall include identifying information about the respondent and the date the order was issued, renewed, dissolved, or terminated. In the case of a one-year order, the court shall include the date the order is set to expire.

(c) Within one business day of service, a police officer who serves a gun violence protective order shall submit the proof of service to the Hawaii criminal justice data center.

(d) The Hawaii criminal justice data center shall maintain a searchable database of the information it receives under this section and make the information available to law enforcement agencies upon request.

(e) The Hawaii criminal justice data center shall immediately make information about an ex parte or one-year gun violence protective order issued, renewed, dissolved, or terminated pursuant to this chapter available to the National Instant Criminal Background Check System for the purposes of firearm purchaser background checks.

134-K Penalties. A person who files a petition for a gun violence protective order under this part, knowing the information in the petition to be materially false or with an intent to harass the respondent, is guilty of a misdemeanor.

134-L Law enforcement to retain other authority. This part shall not affect the ability of a law enforcement officer to remove firearms or ammunition from any person pursuant to other applicable law.

134-M Lack of liability for failure to seek order. This part shall not be construed to impose criminal or civil liability on any person who chooses not to seek a gun violence protective order pursuant to this part."

SECTION 3. Section 134-7, Hawaii Revised Statutes, is amended by amending subsection (f) to read as follows:

"(f) No person who has been restrained pursuant to an order of any court, including [an ex parte order as provided in this subsection,] a gun violence protective order issued pursuant to part , from contacting, threatening, or physically abusing any person, shall possess, control, or transfer ownership of any firearm or ammunition therefor, so long as the protective order, restraining order, or any extension is in effect, unless the order, for good cause shown, specifically permits the possession of a firearm and ammunition. The protective order or restraining order [or order of protection] shall specifically include a statement that possession, control, or transfer of ownership of a firearm or ammunition by the person named in the order is prohibited. [Such] The person shall relinquish possession and control of any firearm and ammunition owned by that person to the police department of the appropriate county for safekeeping for the duration of the order or extension thereof. [In the case of an ex parte order, the affidavit or statement under oath that forms the basis for the order shall contain a statement of the facts that support a finding that the person to be restrained owns, intends to obtain or to transfer ownership of, or possesses a firearm, and that the firearm may be used to threaten, injure, or abuse any person. The ex parte order shall be effective upon service pursuant to section 586-6.] At the time of service of a protective order or restraining order involving firearms and ammunition issued by any court, the police officer may take custody of any and all firearms and ammunition in plain sight, those discovered pursuant to a consensual search, and those firearms surrendered by the person restrained. If the person restrained is the registered owner of a firearm and knows the location of the firearm, but refuses to surrender the firearm or refuses to disclose the location of the firearm, the person restrained shall be guilty of a misdemeanor. In any case, when a police officer is unable to locate the firearms and ammunition either registered under this chapter or known to the person granted protection by the court, the police officer shall apply to the court for a search warrant pursuant to chapter 803 for the limited purpose of seizing the firearm and ammunition.

For the purposes of this subsection, good cause shall not be based solely upon the consideration that the person subject to restraint pursuant to an order of any court[, including an ex parte order as provided for in this subsection,] is required to possess or carry firearms or ammunition during the course of the person's employment. Good cause consideration may include but not be limited to the protection and safety of the person to whom a restraining order is granted."

SECTION 4. Section 134-7.3, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (b) to read:

"(b) Any person disqualified from ownership, possession, or control of firearms and ammunition under section 134-7[,] or part , within seven days of disqualification, shall voluntarily surrender all firearms and ammunition to the chief of police where the person resides or dispose of all firearms and ammunition. If any person fails to voluntarily surrender or dispose of all firearms and ammunition within seven days from the date of disqualification, the chief of police may seize all firearms and ammunition."

2. By amending subsection (d) to read:

"(d) For the purposes of this section, "dispose" means selling the firearms to a gun dealer licensed under section 134-31, transferring ownership of the firearms to any person who meets the requirements of section 134-2, or surrendering all firearms to the chief of police where the person resides for storage or disposal; provided, for a person subject to section 134-7(f)[,] or part , "dispose" shall not include transferring ownership of the firearms to any person who meets the requirements of section 134-2."

SECTION 5. The judiciary shall adopt any rules of court necessary to implement this Act.

SECTION 6. The department of the attorney general shall adopt any rules, pursuant to chapter 91, Hawaii Revised Statutes, necessary to implement this Act.

SECTION 7. The chiefs of police of the respective counties shall adopt any procedures necessary to implement this Act.

SECTION 8. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 9. In codifying the new sections added by section 2 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 11. This Act shall take effect on January 1, 2020; provided that sections 5, 6, and 7 shall take effect on July 1, 2019.

 

INTRODUCED BY:

_____________________________

 

 


 


 

Report Title:

Gun Violence; Protective Orders

 

Description:

Establishes a process allowing law enforcement officers and family or household members to obtain a court order to prevent a person from accessing firearms and ammunition where the person poses a danger of causing bodily injury to oneself or another.

 

 

 

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