law18006

Chapter 006

2018 -- S 2492 SUBSTITUTE A
Enacted 06/01/2018

A N A C T

RELATING TO COURTS AND CIVIL PROCEDURE--COURTS -- EXTREME RISK PROTECTION ORDERS -- CRIMINAL OFFENSES -- WEAPONS

Introduced By: Senators Goodwin, Ruggerio, McCaffrey, Euer, and DiPalma

Date Introduced: February 27, 2018

It is enacted by the General Assembly as follows:

SECTION 1. Title 8 of the General Laws entitled "COURTS AND CIVIL PROCEDURE

- COURTS" is hereby amended by adding thereto the following chapter:

CHAPTER 8.3

EXTREME RISK PROTECTION ORDERS

8-8.3-1. Definitions.

When used in this chapter, the following words and phrases shall have the following

meanings:

(1) "Court" means the superior court in the county in which the respondent resides.

(2) "Extreme risk protection order" means either a temporary order or a one-year order

granted under this chapter.

(3) "Family or household member" means present and former family members (as

defined in § 15-15-1), parents (as defined in § 15-15-1), stepparents, legal guardians, persons who

are or have been in a substantive dating or engagement relationship within the past one year (as

defined in § 15-15-1), and cohabitants (as defined in § 8-8.1-1).

(4) "Firearm" means and includes any machine gun, pistol, rifle, air rifle, air pistol,

"blank gun,", "BB gun,", or other instrument from which steel or metal projectiles are propelled,

or which that may readily be converted to expel a projectile, except crossbows, recurve,

compound, or longbows, and except instruments propelling projectiles which that are designed or

normally used for a primary purpose other than as a weapon. The frame or receiver of the weapon

shall be construed as a firearm pursuant to the provisions of this section.

(5) "Law enforcement agency" means the police department of any city or town, and the

division of the Rhode Island state police established pursuant to chapter 28 of title 42.

(6) "Law enforcement officer" means a sworn member of a law enforcement agency as

defined herein.

(7) "One-year extreme risk protection order" means an extreme risk protection order

granted pursuant to the provisions of § 8-8.3-5 or renewed pursuant to the provisions of § 8-8.3-7.

(8) "Petitioner" means a law enforcement agency that petitions for an order pursuant to

this chapter.

(9) "Respondent" means the person who is identified as the respondent in a petition filed

pursuant to this chapter.

(10) "Social media" means any cell phone- or internet-based tools and applications that

are used to share and distribute information.

(11) "Temporary extreme risk protection order" means an extreme risk protection order

issued pursuant to the provisions of § 8-8.3-4.

8-8.3-2. Filing of petition.

Proceedings under this chapter shall be filed, heard, and determined in the superior court

of the county in which the respondent resides. Any proceedings under this chapter shall not

preclude any other available civil or criminal remedies. A party filing a petition under this chapter

may do so without payment of any filing fee. There shall be no minimum residence requirements

for the filing of a petition under this chapter. All matters filed under this chapter, as well as any

documents submitted in conjunction with proceedings under this chapter, shall be maintained as

confidential or non-public by the superior court.

8-8.3-3. Contents of petition.

(a) A petition for an extreme risk protection order shall be filed only by a law

enforcement agency.

(b) A petitioner may file a petition with the court requesting an extreme risk protection

order that shall enjoin the respondent from having in their his or her possession, custody, or

control any firearms and shall further enjoin the respondent from purchasing, receiving, or

attempting to purchase or receive, any firearms while the order is in effect. The petitioner shall

concurrently file a sworn affidavit for a search warrant pursuant to chapter 5 of title 12 for the

search of any firearms in the possession, custody, or control of the respondent.

respondent poses a significant danger of causing imminent personal injury to self or others by

having in their his or her custody or control, or by purchasing, possessing, or receiving, a

firearm.

(d) A petition must state the specific statements, actions, or facts that support the belief

that the respondent poses a significant danger of causing imminent personal injury to self or

others by having in their his or her custody or control, or by purchasing, possessing, or receiving,

a firearm.

(e) A petition for an extreme risk protection order must be supported by a written

affidavit signed by the petitioner under oath. The petitioner may produce sworn statements or

testimony of other witnesses to support the petition.

(f) If the petitioner believes there are firearms in the respondent's current ownership,

possession, custody, or control, the petition and search warrant affidavit shall identify the

number, types, and locations of all such firearms, if known.

(g) A petitioner for an extreme risk protection order, at the time of the filing, shall

identify all known restraining orders, orders of protection, and pending lawsuits, complaints,

petitions, or actions pending, active, or filed within one year prior to the petition involving the

respondent, including, but not limited to, an order entered pursuant to chapter 8.1 of title 8 or

chapter 15 of title 15.

8-8.3-4. Temporary orders -- Proceedings.

(a) Upon the filing of a petition under this chapter, the court may enter a temporary order

if the court finds there is probable cause from specific facts shown by the petition that the

respondent poses a significant danger of causing imminent personal injury to self or others by

having in their his or her custody or control, or by purchasing, possessing, or receiving, a firearm

before notice can be served and a hearing held.

(b) If the court finds probable cause under subsection (a) of this section and from the

sworn affidavit, a search warrant shall issue pursuant to chapter 5 of title 12 for the search for any

firearms in the possession, custody, or control of the respondent. Such The warrant shall be

executed pursuant to chapter 5 of title 12.

be filed before any available superior court judge.

(d) Any order and warrant issued under this section, and any documentation in support of

an order and warrant, shall be filed immediately with the clerk of the superior court. The filing

shall have the effect of commencing proceedings under this chapter and invoking the other

provisions of this chapter.

(e) A temporary extreme risk protection order must include:

(1) A statement of the grounds supporting the issuance of the order;

(2) The date and time the order was issued;

(3) A statement that the order shall continue until such time as a court considers the

petition pursuant to § 8-8.3-5 at a hearing;

(4) The address of the court that issued the order and in which any responsive pleading

should be filed;

(5) The date and time of the scheduled hearing;

(6) The following statement: "To the subject of this protection order: This order will

continue until the hearing scheduled on the date and time noted above. If any of your firearms

have not been seized by the petitioner, you are under an obligation to immediately contact the

petitioner to arrange for the surrender of any other firearms that you own and/or are in your

custody, control, or possession, that have not been seized. You must surrender to the petitioner all

firearms that you own and/or are in your custody, control, or possession, and also immediately

surrender to the licensing authority or the attorney general any concealed carry permit issued to

you pursuant to § 11-47-11 or § 11-47-18. While this order is in effect, it is illegal for you to have

any firearm in your possession, custody, or control or for you to purchase, receive, or attempt to

purchase or receive, any firearm. You may seek the advice of an attorney as to any matter

connected with this order. If you believe you cannot afford an attorney, you are hereby referred to

the public defender for an intake interview, and if eligible, the court shall appoint an attorney for

you.”

(7) Any temporary extreme risk protection order issued pursuant to this section shall

continue until the time of the hearing pursuant to § 8-8.3-5. If the court continues a hearing

pursuant to § 8-8.3-5, the temporary order shall remain in effect until the next hearing date.

(f) The court shall schedule a hearing within fourteen (14) days of the issuance of a

temporary extreme risk protection order to determine if a one-year extreme risk protection order

should be issued under this chapter.

(g) A temporary extreme risk protection order shall be immediately personally served by

the petitioner along with supporting documents that formed the basis of the order, the notice of

hearing, and the petition for the one-year extreme protection order. Alternate Alternative service

shall be in accordance with § 8-8.3-6. Service issued under this section takes precedence over the

service of other documents, unless the other documents are of a similar emergency nature. If

timely personal service cannot be made, the court shall set a new hearing date and shall require

additional attempts at obtaining personal service or permit alternate alternative service as

provided in this chapter.

(h) If the court declines to issue a temporary extreme risk protection order, the court shall

state in writing the reasons for the denial.

8-8.3-5. Hearings on petition – Grounds for issuance – Contents of order.

(a) Upon hearing the matter, if the court finds by clear and convincing evidence that the

respondent poses a significant danger of causing imminent personal injury to self or others by

having in their his or her custody or control, or by purchasing, possessing, or receiving, a

firearm, the court shall issue a one-year extreme risk protection order. An extreme risk protection

order issued by the court shall be for a fixed period of one year, at the expiration of which time

the court may renew the extreme risk protection order as set forth in § 8-8.3-7.

(b) In determining whether grounds for an extreme risk protection order exist, the court

may consider any or all of the following, including, but not limited to:

(1) A recent act or threat of violence by the respondent against self or others, regardless

of whether such the act or threat of violence involves a firearm;

(2) A pattern of acts or threats of violence by the respondent within the past twelve (12)

months, including, but not limited to, acts or threats of violence against self or others;

(3) The respondent's mental health history;

(4) Evidence of the respondent's abuse of controlled substances or alcohol;

(5) Previous violations by the respondent of any court order including, but not limited to,

restraining orders, no-contact orders issued pursuant to chapter 29 of title 12, and protective

orders issued pursuant to chapter 8.1 of title 8 or chapter 15 of title 15;

(6) Previous extreme risk protection orders issued against the respondent;

(7) The unlawful, threatening, or reckless use or brandishing of a firearm by the

respondent, including, but not limited to, such act taken or displayed through social media;

(8) The respondent's ownership of, access to, or intent to possess firearms;

(9) The respondent's criminal history, including, but not limited to, arrests and

convictions for felony offenses, crimes of violence as defined in § 11-47-2, violent misdemeanor

offenses, crimes involving domestic violence as defined in § 12-29-2, and stalking;

(10) The history, use, attempted use, or threatened use of physical violence by the

respondent against another person, or the respondent’s history of stalking another person, or

evidence of cruelty to animals by the respondent, including, but not limited to, evidence of

violations or convictions pursuant to the provisions of chapter 1 of title 4; and

(11) Evidence of recent acquisition or attempts at acquisition of firearms by the

respondent.

court may also consider any other relevant and credible evidence presented by the petitioner,

respondent, and any witnesses they may produce.

(d) The court may continue a hearing under this section upon a showing of good cause,

including, but not limited to, whether service was effectuated less than seven (7) days from the

date of the scheduled hearing. If the court continues a hearing under this subsection in a matter in

which a temporary extreme risk protection order has been issued under § 8-8.3-4, the temporary

extreme risk protection order shall remain in effect until the next hearing date.

(e) During the hearing the court may consider whether a mental health evaluation or

substance abuse evaluation is appropriate, and may recommend that the respondent seek such the

evaluation if appropriate.

(f) An extreme risk protection order must include:

(1) A statement of the grounds supporting the issuance of the order;

(2) The date and time the order was issued;

(3) The date and time the order expires;

(4) Information pertaining to any recommendation by the court for mental health and/or

substance abuse evaluations, if applicable;

(5) The address of the court that issued the order and in which any responsive pleading

should be filed; and

(6) The following statement: "To the subject of this protection order: This order will

continue until the date and time noted above unless terminated earlier by court order. If any of

your firearms have not been seized by the petitioner, you are under an obligation to immediately

contact the petitioner to arrange for the surrender of any other firearms that you own and/or are in

your custody, control, or possession, that have not been seized. You must surrender to the

petitioner all firearms that you own and/or are in your in your custody, control, or possession, and

also immediately surrender to the licensing authority or the attorney general any concealed carry

permit issued to you pursuant to § 11-47-11 or § 11-47-18. While this order is in effect, it is

illegal for you to have any firearm in your possession, custody, or control or for you to purchase,

receive, or attempt to purchase or receive, any firearm. You have the right to request one hearing

to terminate this order within each twelve-(12) month (12) period that this order, or any renewal

order, is in effect. You may seek the advice of an attorney as to any matter connected with this

order. If you believe you cannot afford an attorney, you are hereby referred to the public defender

for an intake interview, and if eligible, the court shall appoint an attorney for you.”

(g) Upon the issuance of a one-year extreme risk protection order, the court shall inform

the respondent that they are he or she is entitled to request termination of the order in the manner

prescribed by § 8-8.3-7. The court shall provide the respondent with a form to request a

termination hearing. The court shall also schedule a review hearing of the matter, which hearing

shall be scheduled within thirty (30) calendar days before the date the one-year extreme risk

protection order is set to expire.

(h) If the court declines to issue a one-year extreme risk protection order, the court shall

state in writing the particular reasons for the court's denial and shall also order the return of

weapons to the respondent. Such The return should be effectuated consistent with the provisions

of § 8-8.3-8.

8-8.3-6. Service of one-year extreme risk protection orders.

(a) A one-year extreme risk protection order issued under this chapter shall be personally

served upon the respondent by the division of sheriffs. Provided, the division of sheriffs may

request the assistance of the state police with such the service as needed. If the division of

sheriffs cannot complete service of the one-year extreme risk protection order upon the

respondent within seven (7) days of the order's issuance, the deputy sheriff shall notify the

petitioner and the court. The petitioner shall then seek an order for alternate alternative service

pursuant to this chapter.

(b) If the court determines that after diligent effort, personal service on the respondent

with or of any documents as required pursuant to this chapter cannot be made, then the court may

order an alternate alternative method of service designed to give reasonable notice to the

respondent. Alternative service may include, but shall not be limited to: service by certified and

regular mail at respondent's last-known address or place of employment; leaving copies at the

respondent's dwelling or usual place of abode with a person of suitable age and discretion

residing therein; or by affixing a summons to the door of the respondent's residence. Provided,

due to the nature of these proceedings, notice shall not be given by publication in a newspaper.

to this chapter cannot be obtained, the court shall have discretion to continue any extreme risk

protection order, and hearing thereon, as the court deems appropriate, until service can be made

upon the respondent.

(d) Upon receipt of alternate alternative service of any order, notice, or other document

issued pursuant to this chapter, the respondent shall comply with the order, notice, or document as

if personally served.

8-8.3-7. Termination – Expiration – Renewal of orders.

(a) Termination of order. The respondent may submit a single written request for a

hearing to terminate a one-year extreme risk protection order issued under this chapter within the

twelve-(12) month (12) period that the order, or any renewal order, is in effect.

(1) Upon receipt of the request for a hearing to terminate a one-year extreme risk

protection order, the court shall set a date for a hearing. The respondent shall cause a copy of the

notice of the request to be served on the original petitioner. A hearing on this motion shall be

scheduled not later than thirty (30) days from the date of filing the request.

(2) At a hearing to terminate a one-year extreme risk protection order prior to its

scheduled date of expiration, the respondent shall have the burden of proving by clear and

convincing evidence that the respondent does not pose a significant danger of causing imminent

personal injury to self or others by having a firearm in their his or her custody or control, or by

purchasing, possessing, or receiving, a firearm. The court may consider any relevant evidence,

including evidence of the considerations enumerated in § 8-8.3-5. In addition, the court may

consider whether the respondent complied with the court’s recommendation that the respondent

undergo a mental health and/or substance abuse evaluation.

(3) If the court finds after the hearing that the respondent has met their his or her burden

by clear and convincing evidence, the court shall terminate the one-year order and order return of

the firearms consistent with the provisions of § 8-8.3-8.

(b) Notice of impending expiration. The original petitioner shall notify in writing all

interested parties, including but not limited to family or household members of the respondent, of

the impending expiration of any one-year extreme risk protection order within fourteen (14)

calendar days before the date the order expires.

one-year extreme risk protection order at any time within fourteen (14) calendar days before the

date the order expires.

(1) Upon receipt of a motion to renew a one-year extreme risk protection order, the court

shall order that a hearing be held not later than fourteen (14) days from the date the motion is

filed. The respondent shall be personally served with notice of the motion, unless otherwise

ordered by the court.

(2) In determining whether to renew a one-year extreme risk protection order under this

section, the court shall consider all relevant evidence presented by the petitioner and follow the

same procedures provided in § 8-8.3-5. The court may also consider whether the respondent

complied with any court recommendation for a mental health and/or substance abuse evaluation.

(3) If the court finds by clear and convincing evidence that the requirements for issuance

of a one-year extreme risk protection order as provided in § 8-8.3-5 continue to be met, the court

shall renew the order for another year. Further, if, after notice, the motion for renewal is

uncontested and the petitioner seeks no modification of the order, the order may be renewed on

the basis of the petitioner's motion and affidavit stating that there has been no material change in

relevant circumstances since entry of the order which that is subject to renewal.

(4) A renewal of a one-year extreme risk protection order shall be for another fixed

period of one year, subject to termination as provided in subsection (a) of this section or future

renewal by order of the court pursuant to this subsection.

8-8.3-8. Firearms return –- Disposal.

(a) Any firearm seized or surrendered in accordance with this chapter shall be returned to

the respondent upon their his or her request, within ten (10) days, when:

(1) The respondent produces documentation issued by the court indicating that any

extreme risk protective order issued pursuant to this chapter has expired, terminated, or has not

been renewed. Respondent shall not be required to acquire any additional court order granting

the return of seized or surrendered firearms; and

(2) The law enforcement agency in possession of the firearms conducts a national

criminal records check and determines that the respondent is not otherwise prohibited from

possessing a firearm under state or federal law.

(b) A law enforcement agency shall, if requested by the court or the petitioner, provide

prior notice to any interested party, including but not limited to family or household members of

the respondent, of the impending return of a firearm to a respondent, in the manner provided in §

8-8.3-6.

firearm(s) shall transfer possession of the firearm(s) to a federally licensed firearms dealer, who

or that may be designated by the respondent if so desired.

(1) The respondent may instruct the federally licensed firearms dealer designated by the

respondent where applicable to sell the firearm(s) or to transfer ownership or possession in

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

person's dwelling house, 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 their

its sale, less the cost associated with taking possession of, storing, and transferring of the

firearm(s).

(2) Any 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 respondent

while the extreme risk protective order is in effect and shall be informed of this prohibition. Any

knowing violation of this subsection is a felony which that shall be punishable by imprisonment

for a term of not more than five (5) years, or by a fine of not more than one thousand dollars

($1,000), or both.

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

subsection shall only return a firearm(s) to the respondent if the respondent provides court

documentation that the extreme risk protection order issued pursuant to this chapter has expired

or been withdrawn or terminated, and has not been renewed.

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

pertaining to the storage and return of firearms seized by or surrendered to the local law

enforcement agency or the state police pursuant to the provisions of this chapter or chapter 8.1 of

title 8. The state police may consult with the Rhode Island Police Chiefs' Association in

developing rules and procedures to effectuate this section.

8-8.3-9. Reporting of orders.

(a) The clerk of the court shall enter any one-year extreme risk protection order or

temporary extreme risk protection order issued pursuant to this chapter into a statewide judicial

information system on the same day such the order is issued.

(b) The clerk of the court shall forward a copy of any order issued, renewed, or

terminated under this chapter the same day such the order is issued to the appropriate law

enforcement agency specified in the order and the attorney general.

(1) Upon receipt of the copy of an extreme risk protection order, the attorney general

shall enter the order into:

(i) The national instant criminal background check system National Instant Criminal

Background Check System, also known as the NICS database;

(ii) All federal or state computer-based systems and databases used by law enforcement

or others to identify prohibited purchasers of firearms; and

(iii) All computer-based criminal intelligence information systems and databases

available in this state used by law enforcement agencies.

(2) The order must remain in each system for the period stated in the order, and the law

enforcement agency shall only remove orders from the systems upon notice that they have been

terminated or expired. Entry into the computer-based criminal intelligence information system

constitutes notice to all law enforcement agencies of the existence of the order. The order shall be

fully enforceable in any city or town in the state.

extreme risk protection order or temporary extreme risk protection order, forward a copy of the

respondent's driver's license, or comparable information, along with the date of order issuance, to

the attorney general and the appropriate licensing authority. Upon receipt of the information, the

attorney general or the appropriate licensing authority shall determine if the respondent has a

concealed carry permit. If the respondent does have a concealed carry permit, the attorney general

or the appropriate licensing authority shall immediately revoke the license.

(d) If any extreme risk protection order is terminated before its expiration date, the clerk

of the court shall forward, on the same day, a copy of the termination order to the office of the

attorney general and the petitioner. Upon receipt of the order, the attorney general shall promptly

remove the order from any computer-based system into which it was entered pursuant to

subsection (b) of this section.

8-8.3-10. Penalties.

(a) Any violation of any extreme risk protection order shall subject the violator to being

found in contempt of court. The contempt order shall not be exclusive and shall not preclude any

other available civil or criminal remedies.

(b) Any violation of an extreme risk protection order issued under this chapter of which

the respondent has actual notice shall be a felony and, upon conviction, shall be punished by

imprisonment for not more than ten (10) years, or a fine of not more than ten thousand dollars

($10,000), or both.

information in or for such petition to be materially false, or with intent to harass the respondent,

shall be a felony that shall be punished by imprisonment for not more than five (5) years, or a fine

of not more than five thousand dollars ($5,000), or both.

8-8.3-11. Liability.

Except as provided in §§ 8-8.3-8 and 8-8.3-10, this chapter does not impose criminal or

civil liability on a law enforcement agency, law enforcement officer, or the attorney general or a

member of that department, for acts or omissions related to obtaining any extreme risk protection

order including, but not limited to, reporting, declining to report, investigating, declining to

investigate, filing, or declining to file a petition under this chapter.

8-8.3-12. Required notice on orders – Confidentiality of proceedings.

(a) Any extreme risk protection order form shall include, in a conspicuous location,

notice of penalties resulting from violation of the order, and the following statement: "You have

the sole responsibility to avoid or refrain from violating this order's provisions. Only the court can

change the order and only upon written application."

(b) All filings, petitions, orders, warrants, affidavits, evidence, and any other document

filed pursuant to this chapter shall be deemed confidential documents and shall not be available

for public inspection or disclosure absent a court order. This section shall not prohibit the entry of

orders into appropriate databases as required pursuant to § 8-8.3-9.

8-8.3-13. Appeal.

Any order under this chapter shall remain in effect during the pendency of an appeal to

the supreme court unless the order is stayed by a justice of the supreme court.

8-8.3-14. Severability.

If any section of this chapter or its application to any person or circumstance is held

invalid by a court of competent jurisdiction, the remainder of the chapter and the application of

the section to other persons or circumstances shall not be affected. The invalidity or

unconstitutionality of any section or sections or part of any section or sections of this chapter

shall not affect the validity of the remainder of this chapter and to this end the sections of this

chapter are severable.

SECTION 2. Section 12-5-2 of the General Laws in Chapter 12-5 entitled "Search

Warrants" is hereby amended to read as follows:

12-5-2. Grounds for issuance.

A warrant may be issued under this chapter to search for and seize any of the following:

(1) Property stolen or embezzled, or obtained by any false pretense, or pretenses, with

intent to cheat or defraud within this state, or elsewhere;

(2) Property kept, suffered to be kept, concealed, deposited, or possessed in violation of

law, or for the purpose of violating the law;

(3) Property designed or intended for use, or which that is or has been used, in violation

of law, or as a means of committing a violation of law;

(4) Property which that is evidence of the commission of a crime; or

(5) Samples of blood, saliva, hair, bodily tissues, bodily fluids, or dental impressions

from the body of a person, that may yield evidence of the identity of the perpetrator of a crime

when subjected to scientific or other forensic analysis. The foregoing samples, and the results of

any scientific or other forensic analysis, shall be admissible in all criminal proceedings, subject to

application of the rules of evidence and criminal procedure. When any of the foregoing samples

are seized for scientific or forensic analysis, the seizure shall be conducted in accordance with the

regulations, guidelines, or protocols of the department of health or the state crime laboratory, as

may be appropriate under the circumstances; or

(6) Samples of blood or breath that may yield evidence of the presence of alcohol or a

controlled substance when subjected to a chemical test, as contemplated in § 31-27-2. When any

of the foregoing samples are seized for purposes of performing the aforementioned chemical test,

the seizure shall be conducted in accordance with the regulations of the department of health that

apply to the consensual collection of such a sample for purposes of the chemical test

contemplated by Rhode Island general laws § 31-27-2; or

(7) Property of a respondent under chapter 8.3 of title 8 where firearms may be under the

possession, custody, or control of the respondent.

SECTION 3. This act shall take effect upon passage.

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LC005022/SUB A

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