1 HB267
2 209212-1
3 By Representative Coleman
4 RFD: Judiciary
5 First Read: 02-FEB-21
6 PFD: 02/01/2021
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8 SYNOPSIS: This bill would provide for the Extreme Risk
9 Protection Order Act.
10 This bill would provide for an extreme risk
11 protection order which would prohibit potentially
12 violent defendants from possessing firearms,
13 ammunition, or a pistol permit.
14 This bill would provide a process for the
15 implementation of an extreme risk protection order.
16 This bill would provide for the enforcement
17 and registration of an extreme risk protection
18 order.
19 This bill would require that information
20 regarding extreme risk protection orders be tracked
21 and distributed.
22 This bill would also provide for criminal
23 penalties for violations of extreme risk protection
24 orders.
25 Amendment 621 of the Constitution of Alabama
26 of 1901, now appearing as Section 111.05 of the
27 Official Recompilation of the Constitution of
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1 Alabama of 1901, as amended, prohibits a general
2 law whose purpose or effect would be to require a
3 new or increased expenditure of local funds from
4 becoming effective with regard to a local
5 governmental entity without enactment by a 2/3 vote
6 unless: it comes within one of a number of
7 specified exceptions; it is approved by the
8 affected entity; or the Legislature appropriates
9 funds, or provides a local source of revenue, to
10 the entity for the purpose.
11 The purpose or effect of this bill would be
12 to require a new or increased expenditure of local
13 funds within the meaning of the amendment.
14 However, the bill does not require approval of a
15 local governmental entity or enactment by a 2/3
16 vote to become effective because it comes within
17 one of the specified exceptions contained in the
18 amendment.
19
20 A BILL
21 TO BE ENTITLED
22 AN ACT
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24 Relating to firearms and domestic violence; to add a
25 new Chapter 10, commencing with Section 30-10-1, to Title 30,
26 Code of Alabama 1975; to create an extreme risk protection
27 order; to create a process to allow these orders to be issued
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1 and implemented; to create a process for enforcement of an
2 order; to provide for the registration of an order; to provide
3 a process for a defendant to surrender any firearms,
4 ammunition, or pistol permits to law enforcement; to require
5 that information regarding extreme risk protection orders be
6 tracked and distributed to Alabama law enforcement officials;
7 to create criminal penalties for violations of extreme risk
8 protection orders; to amend Section 13A-11-72, Code of Alabama
9 1975, to provide that it is unlawful for a person that has an
10 order against him or her to obtain or possess a firearm; and
11 in connection therewith would have as its purpose or effect
12 the requirement of a new or increased expenditure of local
13 funds within the meaning of Amendment 621 of the Constitution
14 of Alabama of 1901, now appearing as Section 111.05 of the
15 Official Recompilation of the Constitution of Alabama of 1901,
16 as amended.
17 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
18 Section 1. Chapter 10, commencing with Section
19 30-10-1, is added to Title 30, Code of Alabama of 1975, to
20 read as follows:
21 30-10-1.
22 This chapter shall be known as and may be cited as
23 the Extreme Risk Protection Order Act.
24 30-10-2.
25 As used in this chapter, the following words shall
26 have the following meanings:
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1 (1) AMMUNITION. Ammunition as provided in Section
2 13A-11-61.3.
3 (2) BACKGROUND CHECK. A check of the National
4 Instant Criminal Background Check System.
5 (3) COURT. A circuit court judge, a district court
6 judge appointed as a special circuit court judge pursuant to
7 law, or a district judge designated by a written standing
8 order from the presiding circuit court judge to handle extreme
9 risk protection order cases.
10 (4) DEFENDANT. An individual identified as the
11 defendant in a petition pursuant to this chapter.
12 (5) EXTREME RISK. A significant risk of causing
13 physical injury by virtue of an individual having custody or
14 control of any firearm or any ammunition.
15 (6) EXTREME RISK PROTECTION ORDER. An ex parte order
16 or a final order granted under this chapter.
17 (7) FAMILY MEMBER. A spouse, former spouse, child,
18 sibling, parent, grandparent, grandchild, and individuals in a
19 dating relationship, as provided in Section 30-5-2.
20 (8) FIREARM. Firearm as provided in Section 13A-8-1.
21 (9) PHYSICAL INJURY. Physical injury as provided in
22 Section 13A-1-2.
23 (10) PLAINTIFF. An individual that petitions a court
24 for an extreme risk protection order under this chapter.
25 30-10-3.
26 (a) The Administrative Office of Courts shall
27 develop a standard petition for an extreme risk protection
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1 order and an ex parte and final extreme risk protection
2 orders. The standardized forms shall be prepared by the
3 Administrative Office of Courts in consultation with
4 interested persons, including representatives of gun violence
5 prevention groups, judges, clerks, and law enforcement
6 personnel. The forms shall be based on best practices and
7 shall be available online to the public.
8 (b)(1) The petition shall include instructions
9 designed to assist plaintiffs in completing the petition.
10 (2) The instructions shall include a means for a
11 plaintiff to identify the firearm, firearms, or ammunition the
12 defendant may have in his or her custody or control. The
13 instructions shall provide pictures of types of firearms and
14 ammunition that the plaintiff may select to identify the
15 relevant firearms or ammunition or shall provide an equivalent
16 means to allow the plaintiff to identify firearms or
17 ammunition without requiring specific or technical knowledge
18 regarding firearms or ammunition.
19 (3) The instructions shall describe the use of and
20 the process for obtaining, extending, or vacating an extreme
21 risk protection order.
22 (c) The forms of extreme risk protection orders
23 shall include, in a conspicuous location, notice of criminal
24 penalties resulting from violations of the order and the
25 following statement: "You have the sole responsibility to
26 avoid or refrain from violating this order. Only the court can
27 amend the order and only upon written request."
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1 (d) Any clerk of court may create a community
2 resource list of crisis intervention, mental health, substance
3 abuse, interpreter, counseling, and other relevant resources
4 serving the county in which the court is located.
5 30-10-4.
6 (a) A court shall have jurisdiction to issue ex
7 parte and final extreme risk protection orders.
8 (b) A petition for an ex parte or final extreme risk
9 protection order may be filed by a law enforcement officer or
10 a family member.
11 (c) A petition for an ex parte or final extreme risk
12 protection order may be filed in any of the following
13 locations:
14 (1) Where the family member resides or is
15 temporarily located.
16 (2) Where the law enforcement officer's office is
17 located.
18 (3) Where the defendant resides.
19 (d) Any extreme risk protection order issued in this
20 state pursuant to this chapter shall be effective throughout
21 this state.
22 (e) Any extreme risk protection order, or any
23 substantially similar order, issued by the court of another
24 state shall be accorded full faith and credit and enforced as
25 if it were an order of this state.
26 30-10-5.
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1 (a) A sworn petition for an extreme risk protection
2 order shall include all of the following:
3 (1) A statement alleging that the defendant poses a
4 significant risk of causing physical injury to himself,
5 herself, or others by having a firearm or any ammunition in
6 his or her custody or control.
7 (2) An affidavit made under oath stating the
8 specific statements, actions, or facts that give rise to a
9 reasonable fear of future dangerous acts by the defendant.
10 (3) Identify, to the best of his or her ability, the
11 quantities, types, and locations of all firearms and
12 ammunition the plaintiff believes or knows to be in the
13 defendant's current custody or control.
14 (4) Identify whether there is a known existing order
15 of protection governing the defendant pursuant to Chapters 5,
16 5A, or 5B of Title 30 or Article 7A of Chapter 6 of Title 13A.
17 (5) Identify whether there is or has been a
18 violation by the defendant of any prior or existing order or
19 protection under Title 13A.
20 (6) Indicate whether the plaintiff is requesting an
21 ex parte extreme risk protection order.
22 (b) If the plaintiff is a law enforcement officer,
23 the plaintiff shall make a good faith effort to provide
24 written notice to a family member of the defendant who may be
25 at risk of physical injury. The notice shall state that the
26 plaintiff intends to petition the court for an extreme risk
27 protection order, or has already done so, and shall include
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1 referrals to appropriate resources, including mental health,
2 domestic violence, and counseling resources. The plaintiff
3 shall attest in the petition to having provided the notice or
4 shall attest to the steps that have been taken or will be
5 taken to provide the notice.
6 30-10-6.
7 (a) Any plaintiff who files a petition for an
8 extreme risk protection order may do so through an attorney or
9 may represent himself or herself throughout the legal process,
10 including, but not limited to, the filing of pleadings,
11 motions, or any other legal documents with any court, and the
12 appearance in ex parte and final court proceedings on his or
13 her behalf.
14 (b) Notwithstanding any other law, attorneys' fees
15 may not be awarded in any proceeding pursuant to this chapter.
16 (c) If the plaintiff is a family member and the
17 petition states that disclosure of the plaintiff's home or
18 business address, home or business telephone number,
19 confidential relocation placement, or the home or business
20 address or telephone number of the plaintiff's immediate
21 family members, would risk physical injury to the plaintiff or
22 any members of the plaintiff's family or household, the
23 plaintiff's addresses and telephone numbers shall be omitted
24 from all documents filed with the court. If the plaintiff has
25 not disclosed an address under this subsection, the plaintiff
26 shall designate an alternative address where the defendant may
27 serve notice of any motions or elect to substitute the
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1 business address and telephone number of his or her attorney
2 of record.
3 (d) A court or law enforcement agency shall not
4 charge fees to a plaintiff for filing an extreme risk
5 protection order or for service of process pursuant to this
6 chapter and shall provide the necessary number of certified
7 copies and forms at no cost.
8 30-10-7.
9 (a) A plaintiff may request that an ex parte extreme
10 risk protection order be issued before a hearing, without
11 notice to the defendant, by including in the petition detailed
12 allegations based on personal knowledge that the defendant
13 poses a significant risk of causing personal injury to
14 himself, herself, or others in the immediate future by having
15 a firearm or ammunition in his or her custody or control.
16 (b) If the plaintiff requests an ex parte extreme
17 risk protection order, the court shall hold an ex parte
18 hearing on the day the petition is filed or on the business
19 day immediately following the day the petition is filed.
20 (c) In considering whether to issue an ex parte
21 extreme risk protection order, the court shall consider all
22 relevant evidence, including the evidence described in
23 subsection (a) of Section 30-10-9.
24 (d) The court shall conduct an inquiry to determine
25 whether the defendant has in his or her custody or control any
26 firearms, ammunition, or a permit to carry a pistol.
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1 (e) If a court finds there is reasonable cause to
2 believe that the defendant poses a significant risk of causing
3 personal injury to himself, herself, or others in the
4 immediate future by having a firearm or ammunition in his or
5 her custody or control, the court shall issue an ex parte
6 extreme risk protection order and shall require that any
7 firearms, ammunition, or any permit to carry a pistol be
8 surrendered pursuant to this chapter.
9 (f) An ex parte extreme risk protection order shall
10 include all of the following:
11 (1) A statement of the grounds supporting the
12 issuance of the order.
13 (2) The date the order was issued.
14 (3) The address of the court where any responsive
15 pleading may be filed.
16 (4) The date, time, and place of the final hearing.
17 (5) A description of the requirements for the
18 relinquishment of all firearms and ammunition that the
19 defendant has in his or her custody or control, pursuant to
20 Section 30-10-12.
21 (6) The following statement:
22 "To the subject of this protection order: This order
23 is valid until the date noted above. You are required to
24 relinquish all firearms, ammunition, and any permits to carry
25 a pistol that are in your custody or control. You may not have
26 in your custody or control a firearm or ammunition while this
27 order is in effect. You must immediately relinquish to the
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1 (insert name of local law enforcement agency) all firearms and
2 ammunition in your custody or control and any permit to carry
3 a pistol issued to you under Section 13A-11-75 or recognized
4 under Section 13A-11-85. A hearing will be held on the date,
5 time, and place noted above to determine if a final extreme
6 risk protection order should be issued. Failure to appear at
7 that hearing may result in a court issuing an extreme risk
8 protection order against you which is valid for one year. You
9 may seek the advice of an attorney as to any matter connected
10 with this order, however, one will not be appointed at state
11 expense."
12 (g) An ex parte extreme risk protection order shall
13 be served by a law enforcement officer in the same manner as
14 provided in Section 30-10-10 for service of the notice of
15 hearing and petition and shall be served concurrently with the
16 notice of hearing and petition.
17 (h) If the court denies the plaintiff's request for
18 an ex parte extreme risk protection order, the court shall
19 state the particular reasons for the denial.
20 (i) If the court denies the plaintiff's request for
21 an ex parte extreme risk protection order, the court shall
22 still be required to hold a hearing to determine whether a
23 final extreme risk protection order should be issued pursuant
24 to Section 30-10-8.
25 (j) An ex parte extreme risk protection order shall
26 terminate upon the conclusion of the final hearing on the
27 extreme risk protection order.
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1 30-10-8.
2 (a) After a petition is filed in the clerk's office,
3 the court shall order a final hearing to be held within 14
4 days of the perfection of service and shall issue a notice of
5 hearing and serve a copy of the petition to the defendant as
6 provided in Section 30-10-10. The court may order a
7 continuance of the final hearing date upon the consent of all
8 parties.
9 (b) Upon notice and a final hearing on the matter,
10 if the court finds by clear and convincing evidence that the
11 defendant poses a significant risk of causing personal injury
12 to himself, herself, or others by having a firearm or
13 ammunition in his or her custody or control, the court shall
14 issue an extreme ri