2020 -- S 2446

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LC004332

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- COURTS

     Introduced By: Senators Goodwin, Euer, Coyne, and McKenney

     Date Introduced: February 13, 2020

     Referred To: Senate Judiciary

     (Judiciary)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 8-8.1-1 and 8-8.1-3 of the General Laws in Chapter 8-8.1 entitled

"Domestic Assault" are hereby amended to read as follows:

     8-8.1-1. Definitions.

     The following words as used in this chapter shall have the following meanings:

     (1) "Cohabitants" means emancipated minors or persons eighteen (18) years of age or

older, not related by blood or marriage, who together are not the legal parents of one or more

children, and who have resided together within the preceding three (3) years or who are residing

in the same living quarters.

     (2) "Course of conduct" means a pattern of conduct composed of a series of acts over a

period of time, evidencing a continuity of purpose. Constitutionally protected activity is not

included within the meaning of "course of conduct."

     (3) "Courts" means the district court.

     (4) "Cyberstalking" means transmitting any communication by computer to any person or

causing any person to be contacted for the sole purpose of harassing that person or his or her

family.

     (5) "Domestic abuse" means the occurrence of one or more of the following acts between

cohabitants or against the minor child of a cohabitant, or the occurrence of one or more of the

following acts between persons who are or have been in a substantive dating or engagement

relationship within the past one year or against a minor child in the custody of the plaintiff;

"domestic abuse" shall be determined by the court's consideration of the following factors:

     (i) The length of time of the relationship;

     (ii) The type of the relationship;

     (iii) The frequency of the interaction between the parties;

     (iv) Attempting to cause or causing physical harm;

     (v) Placing another in fear of imminent serious physical harm;

     (vi) Causing another to engage involuntarily in sexual relations by force, threat of force,

or duress; or

     (vii) Stalking or cyberstalking.

     (6) "Harassing" means following a knowing and willful course of conduct directed at a

specific person with the intent to seriously alarm, annoy, or bother the person, and which serves

no legitimate purpose. The course of conduct must be such as would cause a reasonable person to

suffer substantial emotional distress, or be in fear of bodily injury.

     (7) "Sole legal interest" means defendant has an ownership interest in the residence and

plaintiff does not; or defendant's name is on the lease and plaintiff's is not.

     (8) "Stalking" means harassing another person or willfully, maliciously and repeatedly

following another person with the intent to place that person in reasonable fear of bodily injury.

     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) Ordering the defendant to surrender physical possession of all firearms in his or her

possession, care, custody, or control and shall further order a person restrained not to purchase or

receive, or attempt to purchase or receive, any firearms while the protective order is in effect. The

defendant shall surrender said firearms within twenty-four (24) hours of notice of the protective

order to the Rhode Island state police or local police department or to a federally licensed

firearms dealer.

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     (i) A person ordered to surrender possession of any firearm(s) pursuant to this section

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

     (A) 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 federally licensed firearm dealer; or

     (B) Attest to the court that, at the time of the order, the person had no firearms in his or

her immediate physical possession or control, or subject to his or her immediate physical

possession or control, and that the person, at the time of the attestation, has no firearms in his or

her immediate physical possession or control or subject to his or her immediate physical

possession or control.

     (ii) If a person restrained under this section transfers a firearm(s) to a federally licensed

firearms dealer pursuant to this section, the person restrained under this section may instruct the

federally licensed firearms dealer to sell the firearm(s) or to transfer ownership in accordance

with state and federal law, to a qualified named individual who is not a member of the person's

dwelling house, who is not related to the person by blood, marriage, or relationship as defined by

§ 15-15-1(7), and who is not prohibited from possessing firearms under state or federal law. The

owner of any firearm(s) sold shall receive any financial value received from its sale, less the cost

associated with taking possession of, storing, and transferring of the firearm(s).

     (iii) Every individual to whom possession of a firearm(s) is transferred pursuant to this

subsection shall be prohibited from transferring or returning any firearm(s) to the person

restrained under this section while the protective order remains in effect and shall be informed of

this prohibition. Any knowing violation of this subsection is a felony that shall be punishable by a

fine of not more than one thousand dollars ($1,000), or by imprisonment for a term of not less

than one year and not more than five (5) years, or both.

     (iv) An individual to whom possession of a firearm(s) is transferred pursuant to this

subsection shall return a firearm(s) to the person formerly restrained under this section only if the

person formerly restrained under this section provides 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.

     (b) After notice to the respondent and after a hearing, which shall be held within fifteen

(15) days of surrendering said firearms, the court, in addition to any other restrictions, may, for

any protective order issued or renewed on or after July 1, 2017, continue the order of surrender,

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.

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

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a person restrained under this section shall 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 restraining order is in effect. The form shall further provide that

any person who has surrendered their firearms shall be afforded a hearing within fifteen (15) days

of surrendering their firearms.

     (d) 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 when:

     (1) The person formerly restrained under this section produces 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 law enforcement agency in possession of the firearms determines that the person

formerly restrained under this section is not otherwise prohibited from possessing a firearm under

state or federal law.

     (3) The person required to surrender his or her firearms pursuant to this section shall not

be responsible for any costs of storage of any firearms surrendered pursuant to this section.

     (e) 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 rules and procedures.

     (f) Nothing in this section shall be construed to limit, expand, or in any way modify

orders issued under §§ 12-29-4 or 15-5-19.

     (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.

     (h) The court shall immediately notify the person suffering from domestic abuse whose

complaint gave rise to the protective order and the law enforcement agency where the person

restrained under this section resides of the hearing.

     (i) The person suffering from domestic abuse, local law enforcement, and the person

restrained under this section shall all have an opportunity to be present and to testify when the

court considers the petition.

     (j) At the hearing, the person restrained under this section shall have the burden of

showing, by clear and convincing evidence, that, if his or her firearm rights were restored, he or

she would not pose a danger to the person suffering from domestic abuse or to any other person.

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     (1) In determining whether to restore a person's firearm rights, the court shall examine all

relevant evidence, including, but not limited to: the complaint seeking a protective order; the

criminal record of the person restrained under this section; the mental health history of the person

restrained under this section; any evidence that the person restrained under this section has, since

being served with the order, engaged in violent or threatening behavior against the person

suffering from domestic abuse or any other person.

     (2) If the court determines, after a review of all relevant evidence and after all parties

have had an opportunity to be heard, that the person restrained under this section would not pose

a danger to the person suffering from domestic abuse or to any other person if his or her firearm

rights were restored, then the court may grant the petition and modify the protective order and lift

the firearm prohibition.

     (3) If the court lifts a person's firearms prohibition pursuant to this subsection, the court

shall issue the person written notice that he or she is no longer prohibited under this section from

purchasing or possessing firearms while the protective order is in effect.

     (k) 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 his or her employment to

carry a firearm in the performance of his or her duties. Any individual exempted pursuant to this

exception may possess a firearm only during the course of his or her 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 this section.

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

being found in contempt of court.

     (m) No order shall issue under this section that would have the effect of compelling a

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

     (n) 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.

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

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

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

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

under § 12-29-5.

     (q) "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).

     (r) The district court shall have criminal jurisdiction over all violations of this chapter.

     SECTION 2. This act shall take effect upon passage.

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LC004332

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- COURTS

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     This act would remove references to minors in certain sections relative to domestic

assault protective orders as the family court currently has jurisdiction over protective orders

involving minors.

     This act would take effect upon passage.

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LC004332

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