2023 -- H 5702

========

LC001487

========

     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

____________

A N   A C T

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

     Introduced By: Representatives Baginski, Alzate, Kazarian, Casimiro, McEntee, and
Batista

     Date Introduced: February 17, 2023

     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 that 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;

     (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 the 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.

     (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

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

LC001487 - Page 2 of 11

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.

     (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

LC001487 - Page 3 of 11

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 thousand dollars

($1,000) or by imprisonment for not more than one year, or both. The attorney general shall

prosecute any violations of a protective order under this chapter.

LC001487 - Page 4 of 11

     (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. Section 12-29-4 of the General Laws in Chapter 12-29 entitled "Domestic

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

     12-29-4. Restrictions upon and duties of court.

     (a)(1) Because of the likelihood of repeated violence directed at those who have been

victims of domestic violence in the past, when a person is charged with or arrested for a crime

involving domestic violence, that person may not be released from custody on bail or personal

recognizance before arraignment without first appearing before the court or bail commissioner. The

court or bail commissioner authorizing release shall issue a no-contact order prohibiting the person

charged or arrested from having contact with the victim.

     (2) At the time of arraignment or bail hearing the court or bail commissioner shall

determine whether a no-contact order shall be issued or extended.

     (3) Willful violation of a court order issued under subdivision (1), (2), or as part of

disposition of this subdivision of this subsection is a misdemeanor and shall be prosecuted by the

attorney general. The written order releasing the person charged or the written order issued at the

time of disposition shall contain the court’s directive and shall bear the legend: “Violation of this

order is a criminal offense under this section and will subject a violator to arrest”. A copy of the

order shall be provided to the victim.

     (4) Whenever an order prohibiting contact is issued, modified, or terminated under

subdivision (1), (2) or (3) of this subsection, the clerk of the court shall forward a copy of the order

on or before the next judicial day to the appropriate law enforcement agency specified in the order.

     (b) Because of the serious nature of domestic violence, the court in domestic violence

actions:

     (1) Shall not dismiss any charge or delay disposition because of concurrent dissolution of

marriage or other civil proceedings;

     (2) Shall not require proof that either party is seeking a dissolution of marriage prior to

instigation of criminal proceedings;

     (3) Shall identify by reasonable means on docket sheets those criminal actions arising from

acts of domestic violence; and

     (4) Shall make clear to the defendant and victim that the prosecution of the domestic

LC001487 - Page 5 of 11

violence action is determined by the prosecutor attorney general and not the victim.

     (c) To facilitate compliance with the provisions of this section, the district court shall assure

that the misdemeanor and felony complaint forms indicate whether the crime charged involves

domestic violence and, if so, the relationship of the victim and defendant.

     (d) Notwithstanding the provisions of section 12-10-12, the filing of any complaint for a

crime involving domestic violence shall be conditioned upon the defendant keeping the peace and

being of good behavior for a period of three (3) years. In the event a particular case involving

domestic violence is filed on a plea of not guilty, guilty or nolo contendere pursuant to section 12-

10-12, the court having jurisdiction shall retain the records of the case for a period of three (3) years

from the date of the filing. These records shall not be expunged, sealed, or otherwise destroyed for

a period of three (3) years from the date of filing. Furthermore, the destruction or sealing of records

in the possession of the department of attorney general bureau of criminal identification, the

superintendent of the state police, or the police departments of any city or town after a filing related

to a crime involving domestic violence shall be governed by section 12-1-12.

     SECTION 3. 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, or a parent, custodian, or legal guardian on behalf of a minor child or the

director of the department of children, youth and families (“DCYF”) or its designee for a child in

the custody of DCYF, pursuant to §§ 40-11-7 and 40-11-7.1, suffering from domestic abuse or

sexual exploitation as defined in § 15-15-1, may file a complaint in the family court requesting any

order that will protect and support her or him from abuse or sexual exploitation, including, but not

limited to, the following:

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

molesting, sexually exploiting, 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, and further providing in

the order for the safety and welfare of all household animals and pets;

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

     (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

LC001487 - Page 6 of 11

dealer.

     (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 firearms 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 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.

     (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 ownership 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 ownership 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;

     (5) 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

LC001487 - Page 7 of 11

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.

     (b) After notice to the respondent and 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 after 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 family court shall provide a notice on all forms requesting a protective order that a

person restrained under this section shall be ordered pursuant to § 11-47-5 to surrender possession

of any firearms while the protective order is in effect. The form shall further provide that any person

who has surrendered his or her firearms shall be afforded a hearing within fifteen (15) days of

surrendering his or her 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 his or her 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 determined 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 their 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 § 12-29-7 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

LC001487 - Page 8 of 11

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.

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

of the family court judge.

     (m)(1) Any violation of the protective orders in subsection (a) of this section shall subject

the defendant to being found in contempt of court.

LC001487 - Page 9 of 11

     (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.

     (n)(1) 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 thousand

dollars ($1,000) or by imprisonment for not more than one year, or both. The attorney general shall

prosecute any violations of a protective order under this chapter.

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

by § 12-29-5.

     (o) 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).

     (p)(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 4. Section 42-9-4 of the General Laws in Chapter 42-9 entitled "Department of

Attorney General" is hereby amended to read as follows:

     42-9-4. Prosecution of offenses.

     (a) The attorney general shall draw and present all informations and indictments, or other

legal or equitable process, against any offenders, as by law required, and diligently, by a due course

of law or equity, prosecute them to final judgment and execution.

     (b) The duty of the attorney general under this section shall include the duty to prosecute

all charges of violations of §§ 31-27-2.1, 31-27-2.3, and/or 31-27-2.5, jurisdiction over the

adjudication of which is conferred upon the traffic tribunal under chapter 41.1 of title 31.

     (c) The duty of the attorney general under this section shall include the duty to prosecute

all charges of violations of §§ 8-8.1-3, 12-29-4 and/or 15-15-13.

     SECTION 5. This act shall take effect upon passage.

========

LC001487

========

LC001487 - Page 10 of 11

EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

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

***

     This act would provide the office of attorney general with the authority to prosecute any

violation of a protective order.

     This act would take effect upon passage.

========

LC001487

========

LC001487 - Page 11 of 11