REFERENCE TITLE: order of protection; firearm possession

State of Arizona Senate Fifty-fifth Legislature Second Regular Session 2022

SB 1662

Introduced by Senators Gonzales: Hatathlie

 

AN ACT

 

amending title 12, chapter 10, Arizona Revised Statutes, by adding article 5; relating to public safety.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Be it enacted by the Legislature of the State of Arizona:

Section  1. Title 12, chapter 10, Arizona Revised Statutes, is amended by adding article 5, to read:

ARTICLE 5. SEVERE THREAT ORDER OF PROTECTION

START_STATUTE12-1881. Definitions

In this article, unless the context otherwise requires:

1. "ex parte severe threat order of protection" means an injunction issued by a court pursuant to Section 12-1883 that prohibits the respondent from owning, purchasing, possessing or receiving or having in the respondent's custody or control a firearm or ammunition until the court-scheduled hearing for a one-year severe threat order of protection.

2. "Family or household member" means any person who:

(a) Is related by blood, marriage or adoption to the respondent.

(b) Is the respondent's current or former dating partner.

(c) Is acting or has acted as the respondent's legal guardian.

(d) Has regularly resided in the same household as the respondent within the previous year.

3. "one-year severe threat order of protection" means an injunction that is issued by a court pursuant to Section 12-1884 and that prohibits the respondent from owning, purchasing, possessing or receiving or having in the respondent's custody or control a firearm or ammunition for a period of up to one year.

4. "Petitioner" means a person who is at least eighteen years of age and who is either a law enforcement officer, a family or household member, a school administrator or teacher or a licensed behavioral health professional who has personal knowledge that the respondent is a danger to self or others.

5. "Respondent" means the person who is identified in the petition that is filed pursuant to Section 12-1883 or 12-1884. END_STATUTE

START_STATUTE12-1882. Severe threat order of protection; commencing action; form

A. A petitioner may file a verified petition in the superior court requesting the court to issue a severe threat order of protection. Notwithstanding the location of the petitioner or respondent, any superior court may issue or enforce a severe threat order of protection.

B. The petition for a severe threat order of protection must include all of the following:

1. The name of the petitioner. The petitioner shall disclose the petitioner's address to the court for purposes of service.   If the address of the petitioner is unknown to the respondent, the petitioner may request that the address be protected. On the petitioner's request, the address shall not be listed on the petition.   Whether or not the court issues a severe threat order of protection, the protected address shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.

2. The respondent's name and address, if known.

3. A specific statement setting forth the grounds for issuing the severe threat order of protection, including detailed allegations based on personal knowledge that the respondent poses a significant danger of causing physical injury to self or others by having in the respondent's custody or control or owning, purchasing, possessing or receiving a firearm or ammunition.

4. The number, type and location of any firearm or ammunition that the petitioner presently believes the respondent possesses or controls.

5. A description of the relationship between the parties and whether there is or has been a severe threat order of protection, a domestic violence protective order, an injunction against harassment or an injunction against workplace harassment in place between the parties or against the respondent.

6. Whether there is any other pending lawsuit, complaint, petition or other action between the parties pursuant to the laws of this state.   The court administrator shall verify the terms of any existing order governing the parties.   The court may not delay granting relief because of the existence of a pending action between the parties or the necessity of verifying the terms of an existing order.   A petition for a severe threat order of protection may be granted whether or not there is a pending action between the parties.

C. The court shall provide forms, without charge, to assist parties without counsel.   The petitioner may not be charged a fee for filing a petition for a severe threat order of protection or for service of process pursuant to this article.

D. All health records and other health information provided in a petition or considered as evidence in a proceeding pursuant to this article shall be protected from public disclosure to the extent that the information identifies a respondent or petitioner, except that the information may be provided to a law enforcement agency as prescribed in Section 12-1888. Aggregate statistical data regarding the number of severe threat orders of protection issued, renewed, denied, dissolved or terminated shall be available to the public on request.

E. A person is not subject to civil or criminal liability for filing a petition, providing information or otherwise participating in proceedings authorized by this article unless the person acts with malice or intent to harass the respondent or commits false swearing in violation of section 13-2703. A person is not subject to civil or criminal liability for choosing not to file a petition, provide information or otherwise participate in proceedings authorized by this article.   END_STATUTE

START_STATUTE12-1883. Ex parte severe threat order of protection; issuance; hearing; notice

A. A petitioner, without notice to the respondent, may request that an ex parte severe threat order of protection be issued before a hearing for a one-year severe threat order of protection by including in the petition detailed allegations based on personal knowledge that the respondent poses an immediate and present danger of causing physical injury to self or others by having in the respondent's custody or control or owning, purchasing, possessing or receiving a firearm or ammunition.

B. The court shall review the petition, any other pleadings on file and any evidence offered by the petitioner, including any threat of harm to the petitioner or others by electronic contact or communication, to determine whether the court should issue an ex parte severe threat order of protection. Rules 65(a)(1) and 65(e) of the Arizona Rules of Civil Procedure do not apply to ex parte severe threat orders of protection that are requested pursuant to this section.

C. The court shall issue or deny an ex parte severe threat order of protection on the same day that the petition is submitted to the court unless the petition is filed too late in the day to allow effective review, in which case the court shall issue or deny the order on the next day of judicial business.

D. In determining whether grounds for an ex parte severe threat order of protection exist, the judge shall consider all relevant evidence presented by the petitioner and may also consider other relevant evidence, including evidence relating to the respondent's:

1. Unlawful, reckless or negligent use, display, storage, possession or brandishing of a firearm.

2. Acts or threats of violence to self or others, whether or not this violence involves a firearm.

3. Violation of a severe threat order of protection, a domestic violence protective order, an injunction against harassment or an injunction against workplace harassment or a violation of a similar order in another state.

4. Abuse of a controlled substance or alcohol or any criminal offense that involves a controlled substance or alcohol.

5. Recent acquisition of a firearm, ammunition or another deadly weapon.

6. Cruel mistreatment of an animal.

7. History of using, attempting to use or threatening to use physical force against another person or of stalking another person.

E. The court shall also consider the time that has elapsed since the events described in subsection D of this section.

F. If the court finds reasonable cause to believe that the respondent poses an immediate and present danger of causing physical injury to self or others by having in the respondent's custody or control or owning, purchasing, possessing or receiving a firearm or ammunition, the court shall issue an ex parte severe threat order of protection.

G. An ex parte severe threat order of protection must include all of the following:

1. A statement that the respondent may not have in the respondent's custody or control or own, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while the order is in effect.

2. A description of the requirements for the relinquishment of a firearm and ammunition pursuant to Section 12-1886.

3. A statement of the grounds asserted for the order.

4. A notice of the hearing pursuant to Section 12-1884 to determine whether to issue a one-year severe threat order of protection, including the address of the court and the date and time when the hearing is scheduled.

5. A statement that at the hearing, the court may extend the order for up to one year.

6. A statement that the respondent may seek the advice of an attorney as to any matter connected with the order and that the attorney should be consulted promptly so that the attorney may assist the respondent in any matter connected with the order.

H. If the court grants the petitioner's request for an ex parte severe threat order of protection, the court shall schedule a hearing within fourteen days after granting the request to determine if a one-year severe threat order of protection should be issued.   A respondent may seek an extension of time before the hearing date.   The court shall dissolve an ex parte severe threat order of protection in effect against the respondent when the court holds the hearing.

I. The court shall ensure that notice of the hearing is served on the respondent with the ex parte severe threat order of protection as soon as practicable. Notice shall be personally served by a peace officer or, if necessary, by another person who is authorized to serve process pursuant to rule 4(d) of the Arizona Rules of Civil Procedure.

J. If the court denies the petitioner's request for an ex parte severe threat order of protection, the court may schedule a further hearing within ten days after the denial, with reasonable notice to the respondent, to determine whether to issue a one-year severe threat order of protection pursuant to Section 12-1884. END_STATUTE

START_STATUTE12-1884. One-year severe threat order of protection; issuance; notice; hearing

A. A petitioner who requests a one-year severe threat order of protection shall include in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger of causing physical injury to self or others by having in the respondent's custody or control or owning, purchasing, possessing or receiving a firearm or ammunition.

B. On receipt of the petition, the court shall set a date for a hearing within ten days after the request. The court shall ensure that notice of the hearing is served on the respondent as soon as practicable.   Notice shall be personally served by a peace officer or, if necessary, by another person who is authorized to serve process pursuant to rule 4(d) of the Arizona Rules of Civil Procedure.

C. In determining whether to issue a one-year severe threat order of protection, the court shall consider all relevant evidence presented by the petitioner and respondent and may also consider other relevant evidence, including evidence relating to the respondent's:

1. Unlawful, reckless or negligent use, display, storage, possession or brandishing of a firearm.

2. Acts or threats of violence to self or others, whether or not this violence involves a firearm.

3. Violation of a severe threat order of protection, a domestic violence protective order, an injunction against harassment or an injunction against workplace harassment or a violation of a similar order in another state.

4. Abuse of a controlled substance or alcohol or any criminal offense that involves a controlled substance or alcohol.

5. Recent acquisition of a firearm, ammunition or another deadly weapon.

6. Cruel mistreatment of an animal.

7. History of using, attempting to use or threatening to use physical force against another person or of stalking another person.

D. The court shall also consider the time that has elapsed since the events described in subsection C of this section.

E. If the court finds by a preponderance of the evidence at the hearing that the respondent poses a significant danger of causing physical injury to self or others by having in the respondent's custody or control or owning, purchasing, possessing or receiving a firearm or ammunition, the court shall issue a one-year severe threat order of protection.

F. A one-year severe threat order of protection must include all of the following:

1. A statement that the respondent may not have in the respondent's custody or control or own, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while the order is in effect.

2. A description of the requirements for the relinquishment of a firearm and ammunition pursuant to Section 12-1886.

3. A statement of the grounds supporting the issuance of the order.

4. The date and time the order expires, which is not more than one year after the date the order was granted unless the court specifies an alternate date within one year.

5. The address of the court that issued the order.

6. A statement that the respondent has the right to request one hearing to terminate the order at any time during the order's effective period.