2017 -- H 5510

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LC001499

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2017

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A N   A C T

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

PROTECT RHODE ISLAND FAMILIES ACT

     Introduced By: Representatives Tanzi, Amore, Fogarty, Ruggiero, and Maldonado

     Date Introduced: February 15, 2017

     Referred To: House 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, in addition to any

other restrictions, may shall, for any protective order issued or renewed on or after July 1, 2017,

order the defendant a person retrained under this section to surrender physical possession of all

firearms in his or her possession, care, custody or control, and shall further order a person

restrained under this section not to purchase or receive or attempt to purchase or receive any

firearms while the protective 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 a person restrained under this section shall

may be ordered pursuant to §11-47-5 to surrender possession or control of any firearms and not to

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

exceed the duration of the restraining order is in effect.

     (d) If the defendant a person restrained under this section is present in court at a duly

noticed hearing, the court may, in addition to any other restrictions, shall for any protective order

issued or renewed on or after July 1, 2017, order the defendant a person restrained under this

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

control, or subject to that person's immediate physical 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 a person

restrained under this section is not present at the hearing, the defendant person restrained under

this order shall surrender the firearm(s) within forty-eight (48) hours after being served with the

order.

     (e) A person ordered to surrender possession of any firearm(s) pursuant to this subsection

shall, within seventy-two (72) hours after being served with the order, either:

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

surrendered to the Rhode Island state police or local police department, or to a licensed gun

dealer; or

     (2) Attest to the court that, at the time of the order, the person had no firearms in their

immediate physical possession or control or subject to their immediate physical possession or

control, and that the person, at the time of the attestation, has no firearms in their immediate

physical possession or control or subject to their immediate physical possession or control.

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

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

to a licensed gun dealer within seventy-two (72) hours after receiving the order. Any defendant

transporting a firearm to surrender in accordance with this section the above shall not be liable to

prosecution under § 11-47-8.

     (g) Any firearm surrendered in accordance with this section to the Rhode Island state

police or local police department shall be returned to the person formerly restrained under this

section upon their request only if:

     (1) The person formerly restrained under this section produces written documentation

issued by a court indicating that the restraining order issued pursuant to this section that

prohibited the person from purchasing, carrying, transporting or possessing firearms has expired

and has not been extended; and

     (2) The person formerly restrained under this section is not otherwise prohibited from

possessing a firearm under state or federal law.

     (h) The Rhode Island state police are authorized to develop rules and procedures

pertaining to the storage and return of firearms surrendered to the Rhode Island state police or

local police departments pursuant to this section. The Rhode Island state police may consult with

the Rhode Island Police Chiefs' Association in developing said rules and procedures.

     (e)(i) 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)(j) 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)(k) Any violation of the aforementioned protective order shall subject the defendant to

being found in contempt of court.

     (h)(l) 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)(m) 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

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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)(n) 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)(o) The penalties for violation of this section shall also include the penalties provided

under § 12-29-5.

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

chapter.

     SECTION 2. 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.

     (a) No person who has been convicted in this state or elsewhere of a crime of violence or

who is a fugitive from justice shall purchase, own, carry, transport, or have in his or her

possession any firearm.

     (b) Notwithstanding the provisions of subsection (a) of this section, no if that person:

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

     (2) Has, in this state or elsewhere, entered a plea of nolo contendere to or been convicted

of an offense punishable as a felony offense under § 12-29-5 a misdemeanor that involves the use

or attempted use of force, or the threatened use of a dangerous weapon, against a family or

household member as defined in §12-29-2;

     (3) Has entered a plea of nolo contendere to or been convicted of a misdemeanor for

violation of the provisions of a protective order entered pursuant to chapter 15 of title 15, chapter

8.1 of title 8, or §12-29-4, or an equivalent order in this state or elsewhere, where the respondent

had knowledge of the order and the penalty for its violation;

     (4) Has entered a plea of nolo contendere to or been convicted of a misdemeanor for

cyber stalking and cyber harassment under §11-52-4.2; or

     (5) Is a fugitive from justice.

     (b) No person 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. if that person is

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subject to an order issued pursuant to chapter 15 of title 15, chapter 8.1 of title 8, or §12-29-4, or

an equivalent order in this state or elsewhere, which order was issued after the person restrained

has received notice of the proceedings and had an opportunity to be heard.

     (c) 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

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) 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 3. Chapter 11-47 of the General Laws entitled "Weapons" is hereby amended

by adding thereto the following section:

     11-47-5.4. Surrender of firearms after domestic violence offenses.

     (a) A plea of nolo contendere to, or a conviction for a misdemeanor that involves the use

or attempted use of force, or the threatened use of a dangerous weapon, committed against a

family or household member as defined in §12-29-2, a plea of nolo contendere to or a conviction

for a misdemeanor for violation of the provisions of a protective order entered pursuant to chapter

15 of title 15, chapter 8.1 of title 8, or §12-29-4, or an equivalent order in this state or elsewhere,

where the respondent had knowledge of the order and the penalty for its violation, or a plea of

nolo contendere to or convicted for a misdemeanor for cyber stalking and cyber harassment under

§11-52-4.2 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 the Rhode

Island state police or local law enforcement or to a licensed gun dealer. The arresting law

enforcement agency shall be immediately notified of the order to surrender firearms. A law

enforcement agency or licensed gun 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, and the serial number, manufacturer, and model of all

surrendered firearms.

     (2) An offender transporting a firearm to surrender in accordance with this section shall

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not be liable to prosecution under §§11-47-5(a)(2) or 11-47-5(c).

     (3) 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 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.

     (4) The court of jurisdiction's copy of proof of surrender shall be kept under seal and

shall not be part of the public record.

     (5) The Rhode Island state police are authorized to develop rules, regulations and

procedures pertaining to the storage and disposal of firearms that are surrendered pursuant to this

section, provided that such policies shall require that the offender be notified of the disposal, and

that the owner of a firearm receive any financial value generated from its disposal, less the cost

associated with taking possession of, storing, and disposing of the firearm, and provided that no

disposal shall occur while any appeal of the conviction is pending. The Rhode Island state police

may consult with the Rhode Island Police Chiefs' Association in developing said rules and

procedures.

     SECTION 4. 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. [Effective January 1, 2017.]

     (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

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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) The court shall determine, for every conviction or plea of nolo contendere for:

     (1) A misdemeanor that involves the use or attempted use of force, or the threatened use

of a dangerous weapon, committed against a family or household member as defined in §12-29-

2;

     (2) A misdemeanor for violation of the provisions of a protective order entered pursuant

to chapter 15 of title 15, chapter 8.1 of title 8, or §12-29-4, or an equivalent order in this state or

elsewhere, where the respondent had knowledge of the order and the penalty for its violation; or

     (3) A misdemeanor for cyberstalking and cyber harassment under §11-52-4.2 whether, as

a result of the violation, the offender is prohibited under §11-47-5 from purchasing, owning,

carrying, transporting, or having in their possession any firearm.

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

shall inform the offender of their prohibited status and order the offender to surrender any

firearms in their possession or control, and shall ensure surrender is made in accordance with

§11-47-5.4

     (d)(e) 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)(f) 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 a plea of nolo contendere for

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

defendant is prohibited under §§ 11-47-5 and 11-47-5.3 from purchasing, owning, carrying,

transporting, or having in their possession, any firearm(s). The court shall inform the defendant of

their prohibited status and shall order the defendant to surrender any firearm(s) in their

ownership, possession, care, custody or control in accordance with § 11-47-5.3.

     (g) No proceeds shall be provided to any person if the firearm(s) is destroyed pursuant to

this section.

     (h) Any firearm(s) used in the commission of the offense leading to the conviction

pursuant to this section shall be forfeited to the state upon conviction.

     SECTION 5. 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, for any protective order the defendant issued or renewed after July 1,

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2017, order a person restrained under this section to surrender physical possession of all firearms

in his or her possession, care, custody or control.

     (b) Any individual who accepts physical possession of a firearm pursuant and shall

further order a person restrained under this section not to this section is prohibited from returning

any firearm purchase or receive or attempt to purchase or receive any defendant under a firearms

while the 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 is in effect.

     (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 a person restrained under this section is present in court at a duly

noticed hearing, the court may , in addition to any other restrictions, shall, for any protective

order the defendant issued or renewed on or after July 1, 2017, order a person restrained under

this section to physically surrender any firearm firearm(s) in that person's immediate physical

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

Island state police or local police department, or by surrendering the firearm(s) to a licensed gun

dealer. If the defendant a person restrained under this section is not present at the hearing, the

defendant person restrained under this order 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 to a licensed gun dealer 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 person ordered to surrender possession of any firearm(s) pursuant to this subsection

shall, within seventy-two (72) hours after being served with the order, either:

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     (1) File with the court a receipt showing the firearm(s) was physically surrendered to the

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

     (2) Attest to the court that, at the time of the order, the person had no firearms in their

immediate physical possession or control or subject to their immediate physical possession or

control, and that the person, at the time of the attestation, has no firearms in their immediate

physical possession or control or subject to their immediate physical possession or control.

     (f) Any defendant transporting a firearm to surrender in accordance with this section shall

not be liable to prosecution under §11-47-8.

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

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

their request only if:

     (1) The person formerly restrained under this section produces written documentation

issued by a court indicating that the restraining order issued pursuant to this section that

prohibited the person from purchasing, carrying, transporting or possessing firearms has expired

and has not been extended; and

     (2) The person formerly restrained under this section is not otherwise prohibited from

possessing a firearm under state or federal law.

     (h) The Rhode Island state police are authorized to develop rules and procedures

pertaining to the storage and return of firearms surrendered to the Rhode Island state police or

local police departments pursuant to this section. The Rhode Island state police may consult with

the Rhode Island Police Chiefs' Association in developing said rules and procedures.

     (e)(i) 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)(j) 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)(k) Upon motion by the plaintiff, his or her address shall be released only at the

discretion of the family court judge.

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     (h)(l) (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)(m) (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)(n) 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)(o) (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 6. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

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

PROTECT RHODE ISLAND FAMILIES ACT

***

     This act would limit access to firearms when an individual is under certain types of

domestic restraining orders or protective orders issued or renewed on or after July 1, 2017.

     This act would take effect upon passage.

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