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HOUSE BILL NO. 718
INTRODUCED BY R. FARRIS-OLSEN
A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING PROTECTION ORDER LAWS; PROVIDING A PROCEDURE FOR OBTAINING AN EXTREME RISK ORDER OF PROTECTION AND EX PARTE EXTREME RISK ORDER OF PROTECTION; PROVIDING DEFINITIONS; PROVIDING THAT FIREARMS IN THE POSSESSION OF A PERSON AGAINST WHOM AN EXTREME RISK PROTECTIVE ORDER IS ISSUED MUST BE SURRENDERED AND A PERMIT FOR CARRYING A CONCEALED WEAPON MUST BE TERMINATED; PROVIDING PENALTIES; PROVIDING CIRCUMSTANCES IN WHICH FIREARMS ARE RETURNED; PROVIDING FOR DEVELOPMENT OF EDUCATIONAL MATERIALS; AND PROVIDING REPORTING REQUIREMENTS."
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Definitions. In [sections 1 through 12], unless the context requires otherwise, the following definitions apply:
(1) "Crime of domestic violence" means any felony offense involving the use or attempted use of physical force or the use or threatened use of a weapon as defined in 45-2-101 and committed against a partner or family member or any misdemeanor offense that has as an element the use or attempted use of physical force or the threatened use of a deadly weapon and is committed against a partner or family member.
(2) "Extreme risk order of protection" means an ex parte temporary order or a final order granted under [sections 1 through 12].
(3) "Family member" has the definition found in 45-5-206.
(4) "Partner" has the definition found in 45-5-206.
(5) "Petitioner" means the person who petitions for an order under [sections 1 through 12].
(6) "Respondent" means the person who is identified as the respondent in a petition filed under [sections 1 through 12].
NEW SECTION. Section 2. Extreme risk order of protection established -- petition for extreme risk order of protection. (1) An extreme risk order of protection is established for the purpose of providing a court procedure by which law enforcement officers and partners or family members may obtain a court order that prohibits a person from purchasing or possessing firearms because the person poses a risk of causing personal injury to self or others.
(2) A petitioner may seek an extreme risk order of protection from a district court.
(3) A petition for an extreme risk order of protection may be filed by:
(a) a partner or family member of the respondent; or
(b) a law enforcement officer or agency.
(4) An action under [sections 1 through 12] must be filed in the county where the petitioner resides or the county where the respondent resides.
(5) A petition must:
(a) allege that the respondent poses a significant risk of causing personal injury to the respondent's self or others by having custody or control of, purchasing, possessing, or receiving a firearm, and must be accompanied by an affidavit made under oath stating the specific statements or actions by the respondent, or facts that give rise to a reasonable fear of future acts of violence by the respondent;
(b) identify the number, types, and location of any firearms the petitioner believes to be in the respondent's current ownership, possession, custody, or control;
(c) identify whether there is a known existing order of protection governing the respondent, under Title 40, chapter 15, part 2; and
(d) identify whether there is a pending lawsuit, complaint, petition, or other action between the parties to the petition under the laws of Montana.
(6) The clerk of district court of the judicial district in which the petition in filed or the office of court administrator shall verify the terms of any existing order governing the parties. The court in which the petition is filed may 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 an extreme risk protection order may be granted whether or not there is a pending action between the parties.
(7) If the petitioner is a law enforcement officer or agency, the petitioner shall make a good faith effort to provide notice to a family member or partner 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 order of protection or has already done so, and include referrals to appropriate resources, including mental health, domestic violence, and counseling resources. The petitioner must attest in the petition to having provided such notice or attest to the steps that will be taken to provide such notice.
(8) If the petition states that disclosure of the petitioner's address would risk harm to the petitioner or any member of the petitioner's family or household, the petitioner's address may be omitted from all documents filed with the court. If the petitioner has not disclosed an address under this subsection, the petitioner must designate an alternative address at which the respondent may serve notice of any motions. If the petitioner is a law enforcement officer or agency, the address of record must be that of the law enforcement agency.
(9) Within 90 days of [the effective date of this act] the clerk of court in each county of the respective judicial districts of the state shall make available the standardized forms, instructions, and informational brochures required by [section 11]. Any assistance or information provided by clerks under this section does not constitute the practice of law and clerks are not responsible for incorrect information contained in a petition.
(10) A fee for filing or service of process may not be charged by a court or any public agency or law enforcement agency to petitioners seeking relief under [sections 1 through 12]. Petitioners must be provided the necessary number of certified copies, forms, and instructional brochures free of charge.
(11) The district courts of the state of Montana have jurisdiction over proceedings under [sections 1 through 12]. If the notice and order are not served on the respondent in time for the hearing pursuant to [section 3], the issuing court may extend the ex parte extreme risk order of protection.
NEW SECTION. Section 3. Hearings --- issuance of extreme risk protection order. (1) Upon receipt of the petition, the court shall order a hearing to be held no later than 14 days from the date of the order and issue a notice of hearing to the parties.
(a) The court may schedule a telephonic hearing to reasonably accommodate a disability, or in exceptional circumstances to protect a petitioner from potential harm. The court shall require assurances of the petitioner's identity before conducting a telephonic hearing.
(b) The clerk of court shall provide a copy of the notice of hearing and petition within 48 hours to the appropriate law enforcement agency for service upon the respondent under [section 5].
(c) (i) The court may, as provided in [section 4], issue an ex parte extreme risk order of protection before the hearing ordered under this section.
(ii) An ex parte order must be served concurrently with the notice of hearing and petition.
(iii) Upon hearing the matter, if the court finds good cause to believe that the respondent is a significant risk of causing personal injury to the respondent's self or others by having custody or control of, purchasing, possessing, or receiving a firearm, the court shall issue an extreme risk order of protection for a period of 1 year.
(3) In determining whether grounds for an extreme risk order of protection exist, the court may consider any relevant evidence including but not limited to any of the following:
(a) a recent act or threat of violence by the respondent against the respondent's self or others, whether or not such violence or threat of violence involved a firearm;
(b) a pattern of acts or threats of violence by the respondent within the past 12 months, including but not limited to acts or threats of violence by the respondent against the respondent's self or others;
(c) any serious mental health issues of the respondent;
(d) a violation by the respondent of an order of protection issued under 40-15-202;
(e) a previous or existing extreme risk order of protection issued against the respondent;
(f) a violation of a previous or existing extreme risk order of protection issued against the respondent;
(g) a conviction of the respondent for a crime that constitutes a crime of domestic violence as defined in [section 1];
(h) the respondent's ownership of, access to, or intent to possess firearms;
(i) the unlawful or reckless use, display, or brandishing of a firearm by the respondent;
(j) the history of use, attempted use, or threatened use of physical force by the respondent against another person, or the respondent's history of stalking another person;
(k) any prior arrest of the respondent for a felony offense or violent crime;
(l) corroborated evidence of the abuse of controlled substances or alcohol by the respondent; and
(m) evidence of recent acquisition of firearms by the respondent.
(4) The court may:
(a) examine under oath the petitioner, the respondent, and any witnesses they may produce, or, in lieu of examination, consider sworn affidavits of the petitioner, the respondent, and any witnesses they may produce; and
(b) ensure that a reasonable search has been conducted for criminal history records related to the respondent.
(5) During the hearing, the court shall consider whether a mental health evaluation or chemical dependency evaluation is appropriate and may order such evaluation if appropriate.
(6) An extreme risk order of protection must include:
(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 mental health evaluation or chemical dependency evaluation of the respondent is required;
(e) the address of the court in which any responsive pleading should be filed;
(f) a description of the requirements for relinquishment of firearms under [section 7]; and
(g) the following statement:
"To the subject of this extreme risk order of protection: This order will last until the date and time noted above. If you have not done so already, you must surrender to the (insert name of local law enforcement agency) all firearms in your custody, control, or possession and any concealed weapons permit issued to you under 45-8-321 immediately. You may not have in your custody or control, or purchase, possess, receive, or attempt to purchase or receive, a firearm while this order is in effect. You have the right to request one hearing to terminate this order every twelve-month period that this order is in effect, starting from the date of this order and continuing through any renewals. You may seek the advice of an attorney as to any matter connected with this order."
(7) When the court issues an extreme risk order of protection, the court shall inform the respondent that the respondent is entitled to request termination of the order in the manner prescribed by [section 6]. The court shall provide the respondent with a form to request a termination hearing.
(8) If the court declines to issue an extreme risk order of protection, the court shall state the particular reasons for the court's denial.
NEW SECTION. Section 4. Ex parte extreme risk order of protection. (1) A petitioner may request that an ex parte extreme risk order of protection be issued before a hearing for an extreme risk order of protection, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses a significant risk of causing personal injury to the respondent's self or others in the near future by having custody or control of, purchasing, possessing, or receiving a firearm.
(2) In considering whether to issue an ex parte extreme risk order of protection under this section, the court shall consider all relevant evidence, including the evidence described in [section 3].
(3) If a court finds there is good cause to believe that the respondent poses a significant risk of causing personal injury to the respondent's self or others by having custody or control of, purchasing, possessing, or receiving a firearm if the court does not act immediately, the court shall issue an ex parte extreme risk order of protection.
(4) The court shall hold an ex parte extreme risk order of protection hearing in person or by telephone on the day the petition is filed or within 48 hours of the filing of the petition.
(5) In accordance with [section 3], the court shall schedule a hearing within 14 days of the issuance of an ex parte extreme risk order of protection to determine if a 1-year extreme risk order of protection should be issued under [sections 1 through 12].
(6) An ex parte extreme risk order of protection must include:
(a) a statement of the grounds asserted for the order;
(b) the date and time the order was issued;
(c) the date and time the order expires;
(d) the address of the court in which any responsive pleading should be filed;
(e) the date and time of the scheduled hearing;
(f) a description of the requirements for surrender of firearms under [section 7]; and
(g) the following statement:
"To the subject of this extreme risk order of protection: This order is valid until the date and time noted above. You are required to surrender all firearms in your custody, control, or possession. You may not have in your custody or control, purchase, possess, receive, or attempt to purchase or receive, a firearm while this order is in effect. You must surrender to (insert name of local law enforcement agency) or a federally licensed firearms dealer all firearms in your custody, control, or possession and any concealed weapons permit issued to you under 45-8-321 immediately. A hearing will be held on the date and at the time noted above to determine if an extreme risk order of protection should be issued. Failure to appear at that hearing may result in a court issuing an extreme risk order of protection that is valid for one year. You may seek the advice of an attorney as to any matter connected with this petition, hearing, or order."
(7) Any ex parte extreme risk order of protection issued expires upon the hearing on the extreme risk order of protection.
(8) An ex parte extreme risk order of protection must be served by a law enforcement officer in the same manner as provided for in [section 3] for service of the notice of hearing and petition and shall be served concurrently with the notice of hearing and petition.
(9) If the court declines to issue an ex parte extreme risk order of protection, the court shall state the particular reasons for the court's denial.
NEW SECTION. Section 5. Service of extreme risk order of protection. (1) An extreme risk order of protection issued under [section 3] must be served on the respondent as provided in [this act] and the Montana Rules of Civil Procedure.
(2) A law enforcement agency with jurisdiction in the area in which the respondent resides must attempt to serve the respondent personally.
(3) To assist in service by a law enforcement agency, the court shall forward a copy of the order to the local law enforcement agency specified in the order for service upon the respondent within 48 hours.
(4) (a) If a law enforcement agency cannot complete service upon the respondent within 48 hours and after attempting service for 10 days, the law enforcement agency must notify the petitioner and the court. The petitioner shall attempt to provide additional information sufficient to assist in service.
(b) If a law enforcement agency cannot complete service upon the respondent within an additional 10 days, then the petitioner shall serve the respondent by alternate means provided in Rule 4 of the Montana Rules of Civil Procedure.
(5) If an order entered by the court states that the respondent appeared in person before the court, the necessity for further service is waived and proof of service of that order is not necessary.
NEW SECTION. Section 6. Termination and renewal of orders. (1) (a) The respondent may submit one written request for a hearing to terminate an extreme risk order of protection issued under [sections 1 through 12] during every 12-month period that the order is in effect, starting from the date of the order and continuing through any renewals.
(b) Upon receipt of the request for a hearing to terminate an extreme risk order of protection, the court shall set a date for a hearing. Notice of the request must be served on the petitioner in accordance with [section 5]. The hearing must occur no sooner than 14 days and no later than 30 days from the date of service of the request upon the petitioner.
(c) The respondent has the burden of proving that there is no longer good cause to believe that the respondent is a significant risk of causing personal injury to the respondent's self or others by having custody or control of, purchasing, possessing, or receiving a firearm. The court may consider any relevant evidence, including evidence of the considerations listed in [section 3].
(d) If the court finds after the hearing that the respondent has met the burden, the court shall terminate the order.
(2) The court must notify the petitioner of the impending expiration of an extreme risk order of protection. Notice must be received by the petitioner at least 60 days before the date the order expires.
(3) (a) A partner or family member of a respondent or a law enforcement officer or agency may by motion request a renewal of an extreme risk order of protection at any time within 60 days before the expiration of the order.
(b) Upon receipt of the motion to renew, the court shall order that a hearing be held within 14 days from the date of the court's order.
(i) The court may schedule a hearing by telephone in the manner provided in [section 3].
(ii) The respondent shall be personally served in the manner provided in [section 5].
(c) In determining whether to renew an extreme risk order of protection, the court shall consider all relevant evidence presented by the petitioner and follow the same procedure as provided in [section 3].
(d) If the court finds that there is continued good cause to believe that there is danger of harm if the court does not act immediately as provided in [section 3], the court shall renew the order. If, following notice, the motion for renewal is uncontested and the petitioner seeks no modification of the order, the order may be renewed on the basis of the petitioner's 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 renewal.
(e) An extreme risk order of protection may be renewed for 1 year, subject to termination as provided in subsection (1), or further renewal by order of the court.
NEW SECTION. Section 7. Surrender of firearms. (1) Upon issuance of any extreme risk order of protection, including an ex parte extreme risk order of protection, the court shall order the respondent to surrender to the local law enforcement agency all firearms in the respondent's custody, control, or possession and any concealed weapons permit issued under 45-8-321.
(2) (a) The law enforcement officer serving any extreme risk order of protection under [sections 1 through 12], including an ex parte extreme risk order of protection, shall request that the respondent immediately surrender all firearms in the respondent's custody, control, or possession and any concealed weapons permit issued under 45-8-321, or obtain a search warrant and conduct any search permitted by law for the firearms.
(b) The law enforcement officer shall take possession of all firearms belonging to the respondent that are surrendered, in plain view, or discovered pursuant to a lawful search.
(c) Alternatively, if personal service by a law enforcement officer is not possible, or not required because the respondent was present at the extreme risk order of protection hearing, the respondent shall surrender the firearms in a safe manner to the control of the local law enforcement agency within 48 hours of being served with the order by alternate service or within 48 hours of the hearing at which the respondent was present.
(3) At the time of surrender, a law enforcement officer taking possession of a firearm or concealed weapons permit shall provide a receipt identifying all firearms that have been surrendered and provide a copy of the receipt to the respondent. Within 72 hours after service of the order, the law enforcement officer serving the order shall file the original receipt with the court and retain a copy of the receipt for the law enforcement agency.
(4) Upon the sworn statement or testimony of the petitioner or of any law enforcement officer alleging that the respondent failed to comply with the surrender of firearms as required, the court shall determine whether probable cause exists to believe that the respondent has failed to surrender all firearms in the respondent's custody, control, or possession. If probable cause exists, the court shall issue a 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 pursuant to the search.
(5) If a person other than the respondent claims title to any firearms surrendered pursuant to this section, and the person is determined by the law enforcement agency to be the lawful owner of the firearm, the firearm must be returned to the person, provided that:
(a) the firearm is removed from the respondent's custody, control, or possession and the lawful owner agrees to store the firearm in a manner such that the respondent does not have access to or control of the firearm; and
(b) the firearm is not otherwise unlawfully possessed by the lawful owner.
(6) Upon the issuance of a 1-year extreme risk order of protection, the court shall order a new hearing date and require the respondent to appear within 3 days from the issuance of the order. The court shall require a showing that the respondent has surrendered any firearms in the respondent's custody, control, or possession. The court may dismiss the hearing upon a satisfactory showing that the respondent is in compliance with the order.
(7) All law enforcement agencies must develop policies and procedures by October 1, 2019, regarding the acceptance, storage, and return of firearms required to be surrendered under [sections 1 through 12].
NEW SECTION. Section 8. Return and disposal of firearms. (1) If an extreme risk order of protection is terminated or expires without renewal, a law enforcement agency holding any firearm that has been surrendered pursuant to [sections 1 through 12] must return any surrendered firearm requested by a respondent after confirming, through a background check, that the respondent is currently eligible to own or possess firearms under federal and state law and after confirming with the court that the extreme risk order of protection has terminated or has expired without renewal.
(2) A law enforcement agency must provide notice to any family member or partner of the respondent before the return of any surrendered firearm and ammunition owned by the respondent.
(3) Any firearm surrendered by a respondent pursuant to [section 7] that remains unclaimed by the lawful owner must be disposed of in accordance with the law enforcement agency's policies and procedures for the disposal of firearms in the agency's custody.
NEW SECTION. Section 9. Reporting of orders. (1) The clerk of court shall enter any extreme risk order of protection or ex parte extreme risk order of protection issued into a statewide judicial information system on the same day the order is issued.
(2) The clerk of the court shall forward a copy of an order issued under [sections 1 through 12] the same day the order is issued to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order, the law enforcement agency shall immediately provide a copy to the department of justice for entry of the order into the national instant criminal background check system, any other federal or state computer-based systems used by law enforcement, or others that identify prohibited purchasers of firearms, and any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. The order must remain in each system for the period stated in the order, and the department of justice may only expunge orders from the systems that have expired or terminated. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any county in the state.
(3) The issuing court shall forward a copy of the respondent's driver's license or other acceptable identification with a photograph, or comparable information, along with the date the order was issued, to the sheriff of the county where the respondent resides within 3 days after the issuance of an extreme risk order of protection or ex parte extreme risk order of protection. Upon receipt of the information, the sheriff shall determine if the respondent has a concealed weapons permit. If the respondent has a concealed weapons permit, the sheriff shall immediately revoke the permit.
(4) If an extreme risk order of protection is terminated before its expiration date, the clerk of the court shall forward on the same day a copy of the termination order to the appropriate law enforcement agency specified in the termination order. Upon receipt of the order, the law enforcement agency shall promptly remove the order from any computer-based system in which it was entered pursuant to subsection (2).
NEW SECTION. Section 10. Penalties. (1) A person who files a petition under [sections 1 through 12] knowing the information in the petition to be materially false, or with intent to harass the respondent, is guilty of a misdemeanor and shall be fined an amount not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.
(2) A person who has custody or control of, purchases, possesses, or receives a firearm with knowledge that the person is prohibited from doing so by an order issued under [sections 1 through 12] is guilty of a felony and shall be imprisoned in a state prison for more than 10 years and fined not more than $50,000, or both.
NEW SECTION. Section 11. Instructional and informational material. (1) The office of court administrator shall develop and prepare instructions and informational brochures, standard petitions and extreme risk order of protection forms, and a court staff handbook on the extreme risk order of protection process. The standard petition and order forms must be used after December 1, 2019, for all petitions filed and orders issued under [sections 1 through 12]. The instructions, brochures, forms, and handbook must be prepared in consultation with interested persons, including representatives of gun violence prevention groups, judges, law enforcement personnel, domestic violence experts, and suicide experts. Materials must be based on best practices and available electronically online to the public.
(a) The instructions must be designed to assist petitioners in completing the petition and must include a sample of a standard petition and order for protection forms.
(b) The instructions and standard petition must include a means for the petitioner to identify, with only lay knowledge, the firearms the respondent may own, possesses, receive, or have in the respondent's custody or control. The instructions must provide pictures of types of firearms that the petitioner may choose from to identify the relevant firearms, or an equivalent means to allow petitioners to identify firearms without requiring specific or technical knowledge regarding the firearms.
(c) The informational brochure must describe the use of and the process for obtaining, modifying, and terminating an extreme risk order of protection under [sections 1 through 12], and provide relevant forms.
(d) The extreme risk order of protection form must include, in a conspicuous location, notice of criminal penalties resulting from violation of the order, and the following statement: "You have the sole responsibility to avoid or refrain from violating this order's provisions. Only the court can change the order and only upon written application."
(e) The court staff handbook must allow for the addition of a community resource list by the clerk of district court.
(2) Any clerk of district court may create a community resource list of crisis intervention, mental health, substance abuse, interpreter, counseling, domestic violence experts, suicide experts, and other relevant resources serving the county in which the court is located. The court may make the community resource list available as part of or in addition to the informational brochures described in subsection (1).
(3) The office of court administrator shall distribute a master copy of the petition and order forms, instructions, and informational brochures to each clerk of district court and shall distribute a master copy of the petition and order forms to all district courts. Distribution of all documents must be in an electronic format or formats accessible to all courts and each clerk of district court in the state.
(4) The office of court administrator shall determine the significant non-English speaking or limited English speaking populations in the state. If any significant non-English speaking or limited English speaking populations in the state are discovered, the administrator shall arrange for translation of the instructions and informational brochures required by this section, which shall contain a sample of the standard petition and order for protection forms, into the languages spoken by the significant non-English speaking populations and shall distribute a master copy of the translated instructions and informational brochures to all court clerks by December 1, 2019.
(5) The office of court administrator shall update on an ongoing basis the instructions, brochures, standard petition and extreme risk order of protection forms, and court staff handbook as necessary, including when changes in the law make an update necessary.
NEW SECTION. Section 12. Annual report. (1) On or before January 31 of each year, each clerk of court shall report to the office of court administrator the following information:
(a) the total number of petitions for an extreme risk order of protection, and the total number of those petitions that requested the order be issued ex parte during the previous calendar year;
(b) the total number of temporary ex parte extreme risk orders of protection issued and the total number denied during the previous calendar year;
(c) the total number of extreme risk orders of protection issued and the total number denied during the previous calendar year;
(d) the total number of extreme risk orders of protection vacated upon petition by the respondent during the previous calendar year;
(e) the total number of extreme risk orders of protection extended during the previous calendar year.
(2) On or before April 1 of each year, the office of court administrator shall compile and publish on its website a report that aggregates the information received pursuant to subsection (1) and lists each category by county and type of court.
NEW SECTION. Section 13. Codification instruction. [Sections 1 through 12] are intended to be codified as an integral part of Title 40, chapter 15, and the provisions of Title 40, chapter 15, apply to [sections 1 through 12].
NEW SECTION. Section 14. Severability. If a part of [this act] is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of [this act] is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
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Latest Version of HB 718 (HB0718.01)
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