2016 -- S 2490

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LC004254

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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 COURTS AND CIVIL PROCEDURE--COURTS -- DOMESTIC ASSAULT

     Introduced By: Senators Goodwin, Goldin, Gallo, Coyne, and Paiva Weed

     Date Introduced: February 25, 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) After notice to the respondent and after a hearing, the court may order the defendant

to surrender physical possession of all firearms in his or her possession, care, custody or control,

and may order the defendant not to purchase or receive or attempt to purchase or receive any

firearms for a period not to exceed the duration of the restraining order.

      (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 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 restraining order.

      (d) When an allegation has been made that the defendant owns, possesses or controls any

firearms the court shall make a finding as to whether the defendant has ownership, possession, or

control of any firearm(s). If the defendant is present in court at a duly noticed hearing, the court

may, in addition to any other restrictions, order the defendant 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, and the court orders the surrender of the firearm(s) then 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 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) the Rhode Island state police or local police

department or surrender surrendered to a licensed gun dealer or attest that at the time of the order,

the defendant did not own, possess or control any firearm(s) and that the defendant currently does

not own, possess or control any firearm(s), 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) A law enforcement agency or licensed gun dealer taking possession of a firearm shall

issue written 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.

     (f) Any firearm surrendered pursuant to this section to the Rhode Island state police or

local police department, or surrendered to a licensed gun dealer shall be returned to the defendant

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upon their request if:

     (1) The defendant produces written documentation issued by the court indicating that the

order issued pursuant to this section prohibiting the defendant from purchasing, carrying,

transporting, or possessing a firearm has expired and has not been extended; and

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

federal law.

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

being found in contempt of court.

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

under § 12-29-5.

      (l)(n) "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)(o) The district court shall have criminal jurisdiction over all violations of this

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chapter.

     SECTION 2. 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) After notice to the respondent and a hearing, the court in addition to any other

restrictions, may order the defendant to surrender physical possession of all firearms in his or her

possession, care, custody or control and may order the defendant not to purchase or receive or

attempt to receive any firearms for a period not to exceed the duration of the restraining order.

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

that, at the hearing for a protective order, the defendant may be ordered to surrender physical

ownership, 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 restraining order.

      (d) When an allegation has been made that the defendant owns, possesses or controls any

firearms the court shall make a finding as to whether the defendant has ownership, possession, or

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control of any firearm(s). If the defendant is present in court at a duly noticed hearing, the court

may in addition to any other restrictions order the defendant to physically surrender any firearm

firearm(s) 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,

and the court orders the surrender of firearm(s) then 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 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 attest that at the time of the order, the defendant did not own, possess or control any

firearm(s) and that the defendant currently does not own, possess or control any firearm(s), 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) A law enforcement agency or licensed gun dealer taking possession of a firearm shall

issue written 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.

     (f) Any firearm surrendered pursuant to this section to the Rhode Island state police or

local police department, or to a licensed gun dealer shall be returned to the defendant upon their

request if:

     (1) The defendant produces written documentation issued by the court indicating that the

order issued pursuant to this section prohibiting the defendant from purchasing, carrying,

transporting, or possessing a firearm has expired and has not been extended; and

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

federal law.

     (e)(g) 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.

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

discretion of the family court judge.

      (h)(j) (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)(k) (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)(l) 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)(m) (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.

     SECTION 3. This act shall take effect on January 1, 2017.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE--COURTS -- DOMESTIC ASSAULT

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     This act would provide that a respondent in domestic abuse cases wherein a protective

order is issued may not possess, purchase or receive any firearms for a period not to exceed the

duration of the restraining order.

     This act would take effect on January 1, 2017.

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