2016 -- S 2767

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LC004861

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2016

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A N   A C T

RELATING TO CRIMINAL OFFENSES - WEAPONS

     Introduced By: Senator Harold M. Metts

     Date Introduced: March 10, 2016

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 8-8.1-3 of the General Laws in Chapter 8-8.1 entitled "Domestic

Assault" is hereby amended to read as follows:

     8-8.1-3. Protective orders -- Penalty -- Jurisdiction. -- (a) A person suffering from

domestic abuse may file a complaint in the district court requesting any order which will protect

her or him from the abuse, including but not limited to the following:

      (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting,

molesting or otherwise interfering with the plaintiff at home, on the street, or elsewhere, whether

the defendant is an adult or minor;

      (2) Ordering the defendant to vacate the household forthwith, unless the defendant holds

sole legal interest in the household;

      (3) Upon motion by the plaintiff, his or her address shall be released only at the

discretion of the district court judge;

      (4)(b) After notice to the respondent and after a hearing, the court may shall order the

defendant a person restrained under this section to surrender physical possession of all firearms in

his or her possession, care, custody or control, and not to purchase, or receive or attempt to

purchase or receive any firearms while the restraining order is in effect.

      (b) Any individual who accepts physical possession of a firearm pursuant to this section

is prohibited from returning any firearm to any defendant under a restraining order during the

existence of the restraining order. Violation of this provision shall subject both the defendant and

the individual responsible for the return of the firearm to the defendant, to being found in

contempt of court.

      (c) The district court shall provide a notice on all forms requesting a protective order

that, at the hearing for a protective order, the defendant may a person restrained under this section

shall be ordered to surrender possession or control of any firearms and not to purchase or receive

or attempt to purchase or receive any firearms for a period not to exceed the duration of the while

the restraining order is in effect.

      (d) If the defendant is present in court at a duly noticed hearing, the court may shall, in

addition to any other restrictions, order the defendant a person restrained under this section to

physically surrender any firearm(s) in that person's immediate physical ownership possession or

control, or subject to that person's immediate physical ownership, possession or control, within

twenty-four (24) hours of the order, by surrendering the possession of the firearm(s) to the control

of any individual not legally prohibited from possessing a firearm who is not related to the

defendant by blood, marriage, or relationship as defined by § 15-15-1(3), (4), or (5) of the Rhode

Island general laws, or by surrendering any firearm(s) to the Rhode Island state police or local

police department, or by surrendering the firearm(s) to a licensed gun dealer. If the defendant is

not present at the hearing, the defendant shall surrender the firearm(s) within forty-eight (48)

hours after being served with the order. A person ordered to surrender possession of any

firearm(s) pursuant to this subsection shall either:

     (1) file File with the court a receipt showing the firearm(s) was either physically

surrendered to an individual not legally prohibited from possessing a firearm who is not related to

the defendant by blood, marriage, or relationship as defined by § 15-15-1(3), (4), or (5) or

surrender to the Rhode Island state police or local police department, or to a licensed gun dealer;

or

     (2) Attest that, at the time of the order, the person owned no firearms and had no firearms

in their possession, and that the person currently owns no firearms and has no firearms in their

possession within seventy-two (72) hours after receiving the order. Any defendant transporting a

firearm to surrender in accordance with the above shall not be liable to prosecution under § 11-

47-8.

      (e) Any firearm surrendered pursuant to this section to a police agency or police

department shall be returned to the person formerly restrained under this section upon their

request if:

     (1) The person produces written documentation issued by a court indicating that the order

issued pursuant to this section prohibiting the person from purchasing, carrying, transporting, or

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possessing a firearm has expired and has not been extended; and

     (2) The person is not otherwise prohibited from possessing a firearm under state or

federal law.

     (e)(f) Nothing in this section shall limit a defendant's right under existing law to petition

the court at a later date for modification of the order.

      (f)(g) The prohibition against possessing a firearm(s) due solely to the existence of a

domestic violence restraining order issued under this section shall not apply with respect to sworn

peace officers as defined in § 12-7-21 and active members of military service including members

of the reserve components thereof, who are required by law or departmental policy to carry

departmental firearms while on duty or any person who is required by their employment to carry

a firearm in the performance of their duties. Any individual exempted pursuant to this exception

may possess a firearm only during the course of their employment. Any firearm required for

employment must be stored at the place of employment when not being possessed for

employment use; all other firearm(s) must be surrendered in accordance with § 8-8.1-3.

      (g)(h) Any violation of the aforementioned protective order shall subject the defendant to

being found in contempt of court.

      (h)(i) No order shall issue under this section which would have the effect of compelling a

defendant who has the sole legal interest in a residence to vacate that residence.

      (i)(j) The contempt order shall not be exclusive and shall not preclude any other

available civil or criminal remedies. Any relief granted by the court shall be for a fixed period of

time not to exceed three (3) years, at the expiration of which time the court may extend any order

upon motion of the plaintiff for such additional time as it deems necessary to protect the plaintiff

from abuse. The court may modify its order at any time upon motion of either party.

      (j)(k) Any violation of a protective order under this chapter of which the defendant has

actual notice shall be a misdemeanor which shall be punished by a fine of no more than one

thousand dollars ($1,000) or by imprisonment for not more than one year, or both.

      (k)(l) The penalties for violation of this section shall also include the penalties provided

under § 12-29-5.

      (l)(m) "Actual notice" means that the defendant has received a copy of the order by

service thereof or by being handed a copy of the order by a police officer pursuant to § 8-8.1-5(d).

      (m)(n) The district court shall have criminal jurisdiction over all violations of this

chapter.

     SECTION 2. Section 11-5-3 of the General Laws in Chapter 11-5 entitled "Assaults" is

hereby amended to read as follows:

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     11-5-3. Simple assault or battery. -- (a) Except as otherwise provided in § 11-5-2, every

person who shall make an assault or battery or both shall be imprisoned not exceeding one year or

fined not exceeding one thousand dollars ($1,000), or both.

      (b) Where the provisions of "The Domestic Violence Prevention Act", chapter 29 of title

12, are applicable, the penalties for violation of this section shall also include the penalties as

provided in § 12-29-5.

      (c) Upon conviction for a violation under this section, the court shall determine whether,

as a result of the violation, the offender is prohibited from purchasing, owning, carrying,

transporting, or having in their possession a firearm under 18 U.S.C. § 922(g)(9) or § 11-47-5.

     (d) If the offender is prohibited as described in subsection (c) of this section, the court

shall order the offender to surrender any and all firearms in their possession or control, and shall

ensure surrender is made as provided under § 11-47-5.3.

     SECTION 3. Section 11-47-5 of the General Laws in Chapter 11-47 entitled "Weapons"

is hereby amended to read as follows:

     11-47-5. Possession of arms by person convicted of crime of violence or who is a

fugitive from justice. -- Possession of arms by person convicted of crime of violence or

misdemeanor crime of domestic violence, person subject to certain restraining orders, or

who is a fugitive from justice. -- (a) No person who:

     (1) has Has been convicted in this state or elsewhere of a crime of violence;

     (2) Has been convicted in this state or elsewhere of a misdemeanor that involves the use,

or attempted use of force, or the threatened use of a firearm, against a family or household

member as defined in §12-29-2; or

     (3) or who is Is a fugitive from justice, shall purchase, own, carry, transport, or have in

his or her possession any firearm.

     (b) No person who is subject to an order issued pursuant to chapter 8.1 of title 8 or

chapter 15 of title 15, or an equivalent order in this state or elsewhere, that was issued after the

restrained person received notice of the proceedings and had an opportunity to be heard shall

purchase, carry, transport, or have in their possession any firearm.

      (b)(c) Notwithstanding the provisions of subsection (a) of this section, no person

convicted of an offense punishable as a felony offense under § 12-29-5 shall purchase, own,

carry, transport, or have in his or her possession any firearm, for a period of two (2) years

following the date of that conviction.

     (c)(d) No person who is in community confinement pursuant to the provisions of § 42-56-

20.2 or who is otherwise subject to electronic surveillance or monitoring devices as a condition of

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parole shall purchase, carry, transport, or have in his or her possession any firearm. This

subsection shall not apply to any person who has not been convicted of (or pleaded guilty or nolo

contendere to) a crime of violence in a court of competent jurisdiction.

      (d)(e) Every person violating the provisions of this section shall, upon conviction, be

punished by imprisonment for not less than two (2) nor more than ten (10) years; and for

penalties provided in this section he or she shall not be afforded the benefit of suspension or

deferment of sentence nor of probation.

     SECTION 4. Chapter 11-47 of the General Laws entitled "Weapons" is hereby amended

by adding thereto the following section:

     11-47-5.3. Surrender of firearms after domestic violence offenses. -- (a) Pleading nolo

contendere to, or conviction of, an offense under § 12-29-2 and punishable as a misdemeanor

offense under § 12-29-5, that involves the use or attempted use of force, or the threatened use of a

firearm, shall prohibit the offender from purchasing, owning, carrying, transporting, or having in

their possession any firearm. Upon such a plea or conviction, the court shall order the offender to

surrender all firearms owned by the person or in the person’s possession as described in this

section.

     (1) Surrender shall be made within twenty-four (24) hours of prohibition to state or local

law enforcement or to a federally licensed firearms dealer. A law enforcement agency or federally

licensed firearms dealer taking possession of a firearm shall issue a proof of surrender to the

person surrendering the firearm. The proof of surrender must include the name of the person, the

date of surrender, the serial number, manufacturer, and model of all surrendered firearms.

     (2) The offender shall, within forty-eight (48) hours after being served with the order,

either:

     (i) File a copy of proof of surrender with the court of jurisdiction, and attest that all

firearms owned by the person or in the person's possession at the time of plea or conviction, have

been surrendered in accordance with this section and that the person currently owns no firearms

and has no firearms in their possession; or

     (ii) Attest that, at the time of the plea or conviction, the person owned no firearms and

had no firearms in their possession, and that the person currently owns no firearms and has no

firearms in their possession.

     (3) If the person surrenders a firearm to a law enforcement agency, the law enforcement

agency may establish policies for disposal of the firearm, provided that such policies require that

the offender be notified of the disposal, and the offender receive any financial value received

from the disposal, less the cost associated with taking possession of, storing, and disposing of the

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firearm.

     SECTION 5. Section 12-29-5 of the General Laws in Chapter 12-29 entitled "Domestic

Violence Prevention Act" is hereby amended to read as follows:

     12-29-5. Disposition of domestic violence cases. -- (a) Every person convicted of or

placed on probation for a crime involving domestic violence or whose case is filed pursuant to §

12-10-12 where the defendant pleads nolo contendere, in addition to any other sentence imposed

or counseling ordered, shall be ordered by the judge to attend, at his or her own expense, a

batterer's intervention program appropriate to address his or her violent behavior; provided,

however, that the court may permit a servicemember or veteran to complete any court-approved

counseling program administered or approved by the Veterans' Administration. This order shall

be included in the conditions of probation. Failure of the defendant to comply with the order shall

be a basis for violating probation and/or the provisions of § 12-10-12. This provision shall not be

suspended or waived by the court.

      (b) Every person convicted of or placed on probation for a crime involving domestic

violence, as enumerated in § 12-29-2 or whose case if filed pursuant to § 12-10-12 where the

defendant pleads guilty or nolo contendere, in addition to other court costs or assessments

imposed, shall be ordered to pay a one hundred twenty-five dollar ($125) assessment. Eighty

percent (80%) of the assessment collected pursuant to this section shall be provided to the Rhode

Island Coalition Against Domestic Violence for programs to assist victims of domestic violence

and twenty percent (20%) of the assessment shall be deposited as general revenue.

      (c) (1) Every person convicted of an offense punishable as a misdemeanor involving

domestic violence as defined in § 12-29-2 shall:

      (i) For a second violation be imprisoned for a term of not less than ten (10) days and not

more than one year.

      (ii) For a third and subsequent violation be deemed guilty of a felony and be imprisoned

for a term of not less than one year and not more than ten (10) years.

      (2) No jail sentence provided for under this section can be suspended.

      (3) Nothing in this subsection shall be construed as limiting the discretion of the judges

to impose additional sanctions authorized in sentencing.

      (d) For the purposes of this section, "batterers intervention program" means a program

which is certified by the batterers intervention program standards oversight committee according

to minimum standards, pursuant to §§ 12-29-5.1, 12-29-5.2, and 12-29-5.3.

      (e) For purposes of this section, "servicemember" means a person who is presently

serving in the armed forces of the United States including the Coast Guard, a reserve component

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thereof, or the National Guard. "Veteran" means a person who has served in the armed forces,

including the Coast Guard of the United States, a reserve component thereof, or the National

Guard, and has been discharged under other than dishonorable conditions.

     (f) The court shall indicate on every record of conviction or plea of nolo contendere for

an offense punishable as a misdemeanor involving domestic violence, as defined in §12-29-2, that

the offender is prohibited under §11-47-5 from purchasing, owning, carrying, transporting, or

having in their possession any firearm. The court shall inform the offender of their prohibited

status and shall order the offender to surrender any firearms in their possession in accordance

with §11-47-5.3.

     SECTION 6. Section 15-15-3 of the General Laws in Chapter 15-15 entitled "Domestic

Abuse Prevention" is hereby amended to read as follows:

     15-15-3. Protective orders -- Penalty -- Jurisdiction. -- (a) A person suffering from

domestic abuse may file a complaint in the family court requesting any order which will protect

and support her or him from abuse including, but not limited, to the following:

      (1) Ordering that the defendant be restrained and enjoined from contacting, assaulting,

molesting, or interfering with the plaintiff at home, on the street, or elsewhere, whether the

defendant is an adult or a minor;

      (2) Ordering the defendant to vacate the household immediately;

      (3) Awarding the plaintiff custody of the minor children of the parties, if any;

      (4) After notice to the respondent and a hearing, ordering either party to make payments

for the support of a minor child or children of the parties as required by law for a period not to

exceed ninety (90) days, unless the child support order is for a child or children receiving public

assistance pursuant to chapter 5.1 of title 40. In these cases, legal counsel for the division of

taxation, child support enforcement, shall be notified as a party in interest to appear for the

purpose of establishing a child support order under a new or existing docket number previously

assigned to the parties and not under the protective docket number. The child support order shall

remain in effect until the court modifies or suspends the order.

      (5) (b) After notice to the respondent and a hearing, the court in addition to any other

restrictions, may shall order the defendant a person restrained under this section to surrender

physical possession of all firearms in his or her possession, care, custody or control, and not to

purchase or receive or attempt to purchase or receive any firearms while the restraining order is in

effect.

      (b) Any individual who accepts physical possession of a firearm pursuant to this section

is prohibited from returning any firearm to any defendant under a restraining order during the

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existence of the restraining order. Violation of this provision shall subject both the defendant and

the individual responsible for the return of the firearm to the defendant, to being found in

contempt of court.

      (c) The Family Court shall provide a notice on all forms requesting a protective order

that, at the hearing for a protective order, the defendant may a person restrained under this section

shall be ordered pursuant to § 11-47-5 to surrender physical possession or control of any firearms

and not to purchase or receive or attempt to purchase or receive any firearms for a period not to

exceed the duration of while the restraining order is in effect.

      (d) If the defendant is present in court at a duly noticed hearing, the court may shall

order the defendant a person restrained under this section to physically surrender any firearm

firearms in that person's immediate ownership, possession or control, or subject to that person's

immediate physical ownership, possession or control, within twenty-four (24) hours of the order,

by surrendering the possession of the firearm(s) to the control of any individual not legally

prohibited from possessing a firearm(s) who is not related to the defendant by blood, marriage, or

relationship as defined by § 15-15-1(3), (4), or (5), of the Rhode Island general laws, or by

surrendering any firearm(s) to the Rhode Island State Police or local police department, or by

surrendering the firearm(s) to a licensed gun dealer. If the defendant is not present at the hearing,

the defendant shall surrender possession of the firearm(s) within forty-eight (48) hours after being

served with the order. A person ordered to surrender possession of any firearm(s) pursuant to this

subsection shall either:

     (1) file File with the court a receipt showing the firearm(s) was either legally transferred

to an individual not legally prohibited from possessing a firearm who is not related to the

defendant by blood, marriage, or relationship as defined by § 15-15-1(3), (4), or (5) of the Rhode

Island general laws or surrender physically surrendered to the Rhode Island state police or local

police department, or to a licensed gun dealer; or

     (2) Attest that, at the time of the order, the person owned no firearms and had no firearms

in their possession, and that the person currently owns no firearms and has no firearms in their

possession within seventy-two (72) hours after receiving the order. Any defendant transporting a

firearm to surrender in accordance with the above shall not be liable to prosecution under § 11-

47-8.

     (e) Any firearm surrendered pursuant to this section to a police agency or police

department shall be returned to the person formerly restrained under this section upon their

request if;

     (1) The person produces written documentation issued by a court indicating that the order

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issued pursuant to this section prohibiting the person from purchasing, carrying, transporting, or

possessing a firearm has expired and has not been extended; and

     (2) The person is not otherwise prohibited from possessing a firearm under state or

federal law.

      (e)(f) Nothing in this section shall limit a defendant's right under existing law to petition

the court at a later date for modification of the order.

      (f)(g) The prohibition against possessing a firearm(s) due solely to the existence of a

domestic violence restraining order issued under this section shall not apply with respect to sworn

peace officers as defined in § 12-7-21 and active members of military service including members

of the reserve components thereof, who are required by law or departmental policy to carry

departmental firearms while on duty or any person who is required by their employment to carry

a firearm in the performance of their duties. Any individual exempted pursuant to this exception

may possess a firearm only during the course of their employment. Any firearm required for

employment must be stored at the place of employment when not being possessed for

employment use; all other firearm(s) must be surrendered in accordance with § 15-15-3.

      (g)(h) Upon motion by the plaintiff, his or her address shall be released only at the

discretion of the family court judge.

      (h)(i) (1) Any violation of the protective orders in subsection (a) of this section shall

subject the defendant to being found in contempt of court.

      (2) The contempt order shall not be exclusive and shall not preclude any other available

civil or criminal remedies. Any relief granted by the court shall be for a fixed period of time not

to exceed three (3) years, at the expiration of which time the court may extend any order, upon

motion of the plaintiff, for any additional time, that it deems necessary to protect the plaintiff

from abuse. The court may modify its order at any time upon motion of either party.

      (i)(j)(1) Any violation of a protective order under this chapter of which the defendant has

actual notice shall be a misdemeanor which shall be punished by a fine of no more than one

thousand dollars ($1,000) or by imprisonment for not more than one year, or both.

      (2) The penalties for violation of this section shall also include the penalties as provided

by § 12-29-5.

      (j)(k) Actual notice means that the defendant has received a copy of the order by service

or by being handed a copy of the order by a police officer pursuant to § 15-15-5(d).

      (k)(l) (1) The district court shall have criminal jurisdiction over all adult violations of

this chapter.

      (2) The family court shall have jurisdiction over all juvenile violations of this chapter.

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     SECTION 7. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO CRIMINAL OFFENSES - WEAPONS

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     This act would prohibit any person convicted of a crime of domestic violence or one

subject to a restraining order, from possessing, transporting, carrying or owning a firearm and

would provide that such person surrender any firearms so possessed or owned to the RI state

police, the local police or a federally licensed firearms dealer while the restraining order is in

effect. It would also require that the courts with jurisdiction over the criminal case or restraining

order inform the person so restrained about their prohibited status and would allow for the return

of any firearms to the person so restrained upon termination of the restraining order.

     This act would take effect upon passage.

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