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HOUSE BILL NO. 75
IN THE LEGISLATURE OF THE STATE OF ALASKA
THIRTIETH LEGISLATURE - SECOND SESSION
BY REPRESENTATIVES TARR, Spohnholz, Drummond, Seaton, Josephson, Wool
Introduced: 1/23/17
Referred: Judiciary, Finance
A BILL
FOR AN ACT ENTITLED
1 "An Act relating to gun violence protective orders; relating to the crime of violating a
2 protective order; relating to a central registry for protective orders; relating to the
3 powers of district judges and magistrates; requiring physicians, psychologists,
4 psychological associates, social workers, marital and family therapists, and licensed
5 professional counselors to report annually threats of gun violence; and amending Rules
6 4 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of Administration."
7 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:
8 * Section 1. AS 11.56.740(a) is amended to read:
9 (a) A person commits the crime of violating a protective order if the person is
10 subject to a protective order
11 (1) issued or filed under AS 18.66 and containing a provision listed in
12 AS 18.66.100(c)(1) - (7) and knowingly commits or attempts to commit an act with
13 reckless disregard that the act violates or would violate a provision of the protective
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1 order;
2 (2) issued under AS 18.65.850, 18.65.855, or 18.65.860 and knowingly
3 commits or attempts to commit an act that violates or would violate a provision listed
4 in AS 18.65.850(c)(1) - (3); [OR]
5 (3) issued under AS 13.26.450 - 13.26.460 and knowingly commits or
6 attempts to commit an act with reckless disregard that the act violates or would violate
7 a provision of the protective order; or
8 (4) issued under AS 18.65.815 - 18.65.825 and knowingly commits
9 or attempts to commit an act that violates or would violate a provision listed in
10 AS 18.65.815(c).
11 * Sec. 2. AS 11.56.740(c) is amended to read:
12 (c) In this section, "protective order" means an order issued or filed under
13 AS 13.26.450 - 13.26.460, AS 18.65.815 - 18.65.825, 18.65.850 - 18.65.870
14 [AS 18.65.850 - 18.65.870], or AS 18.66.100 - 18.66.180.
15 * Sec. 3. AS 18.65.530(a) is amended to read:
16 (a) Except as provided in (b) or (c) of this section, a peace officer, with or
17 without a warrant, shall arrest a person if the officer has probable cause to believe the
18 person has, either in or outside the presence of the officer, within the previous 12
19 hours,
20 (1) committed domestic violence, except an offense under
21 AS 11.41.100 - 11.41.130, whether the crime is a felony or a misdemeanor;
22 (2) committed the crime of violating a protective order in violation of
23 AS 11.56.740(a)(1), [OR] (2), or (4);
24 (3) violated a condition of release imposed under AS 12.30.016(e) or
25 (f) or 12.30.027.
26 * Sec. 4. AS 18.65.540(a) is amended to read:
27 (a) The Department of Public Safety shall maintain a central registry of
28 protective orders issued by or filed with a court of this state under AS 13.26.450 -
29 13.26.460, AS 18.65.815 - 18.65.825, 18.65.850 - 18.65.870 [AS 18.65.850 -
30 18.65.870], or AS 18.66.100 - 18.66.180. The registry must include, for each
31 protective order, the names of the petitioner and respondent, their dates of birth, and
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1 the conditions and duration of the order. The registry shall retain a record of the
2 protective order after it has expired.
3 * Sec. 5. AS 18.65.540(b) is amended to read:
4 (b) A peace officer receiving a protective order from a court under
5 AS 13.26.450, 13.26.455, AS 18.65.815, 18.65.820, 18.65.850, 18.65.855
6 [AS 18.65.850 - 18.65.855], or AS 18.66.100 - 18.66.180, a modified order issued
7 under AS 13.26.460, AS 18.65.825, 18.65.860 [AS 18.65.860], or AS 18.66.120, or an
8 order dismissing a protective order shall take reasonable steps to ensure that the order,
9 modified order, or dismissal is entered into the central registry within 24 hours after
10 being received.
11 * Sec. 6. AS 18.65 is amended by adding new sections to article 11 to read:
12 Sec. 18.65.815. Gun violence protective orders. (a) An immediate family
13 member or a peace officer who reasonably believes that the respondent is a danger to
14 self or others by possessing, owning, purchasing, or receiving a firearm may file a
15 petition in the district or superior court for a protective order against a respondent. The
16 petition shall describe the number, types, and locations of any firearms or ammunition
17 the petitioner believes are owned or possessed by the respondent and the basis for the
18 petition.
19 (b) When a petition for a protective order is filed, the court shall schedule a
20 hearing and provide at least 10 days' notice to the respondent of the hearing and of the
21 respondent's right to appear and be heard, either in person or through an attorney. If
22 the court finds by clear and convincing evidence that the respondent is a danger to self
23 or others by possessing, owning, purchasing, or receiving a firearm, regardless of
24 whether the respondent appears at the hearing, the court may order the relief available
25 under (c) of this section. The provisions of a protective order issued under this section
26 are effective for six months unless earlier dissolved by the court.
27 (c) A protective order issued under this section shall prohibit the respondent
28 from possessing, owning, purchasing, receiving, or attempting to purchase or receive a
29 firearm or ammunition.
30 (d) If the court issues a protective order under this section, the court shall
31 (1) make reasonable efforts to ensure that the order is understood by
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1 the petitioner and by the respondent, if present;
2 (2) have the order delivered to the appropriate local law enforcement
3 agency for expedited service;
4 (3) direct the respondent to surrender to the appropriate law
5 enforcement agency or sell to a firearms dealer all firearms and ammunition that the
6 respondent possesses or owns within 24 hours after receipt of the order.
7 Sec. 18.65.820. Ex parte and emergency gun violence protective orders. (a)
8 An immediate family member of a respondent or a peace officer who reasonably
9 believes that a respondent is a danger to self or others may file a petition under
10 AS 18.65.815 and request an ex parte gun violence protective order. If the court finds
11 that the petition establishes by a preponderance of the evidence that the respondent
12 poses a significant danger of injury to self or others by possessing, owning,
13 purchasing, or receiving a firearm, that less restrictive alternatives have been tried and
14 were ineffective, and that the petitioner has certified to the court in writing the efforts,
15 if any, that have been made to provide notice to the respondent, the court shall ex parte
16 and without notice to the respondent issue a protective order. Before issuing the
17 protective order, the court shall examine on oath the petitioner and any witnesses the
18 petitioner produces. The court may require the petitioner and any witnesses to submit
19 a written affidavit signed under oath instead of examining the petitioner and witnesses.
20 An ex parte protective order under this subsection shall prohibit the respondent from
21 possessing, owning, purchasing, or receiving a firearm or ammunition. An ex parte
22 protective order expires 20 days after it is issued unless dissolved earlier by the court
23 at the request of either the petitioner or the respondent after notice and, if requested, a
24 hearing. If the court issues an ex parte protective order, the court shall have the order
25 delivered to the appropriate law enforcement agency for expedited service.
26 (b) A peace officer may request an emergency gun violence protective order
27 from a judicial officer. The request may be made orally or in writing based on the
28 sworn statement of a peace officer, and in person or by telephone. If the court finds by
29 a preponderance of the evidence that the respondent poses an immediate danger of
30 injury to self or others by possessing, owning, purchasing, or receiving a firearm and
31 that less restrictive alternatives have been tried and were ineffective, the court ex parte
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1 shall issue an emergency protective order. An emergency protective order shall
2 prohibit the respondent from possessing, owning, purchasing, or receiving a firearm or
3 ammunition. An emergency protective order expires 72 hours after it is issued unless
4 dissolved earlier by the court at the request of the petitioner. A peace officer who
5 obtains an emergency protective order under this subsection shall
6 (1) place the provisions of an oral order in writing on a form provided
7 by the court and file the written order with the issuing court by the end of the judicial
8 day after the order is issued; and
9 (2) immediately serve a copy of the order on the respondent.
10 Sec. 18.65.825. Modification of gun violence protective order. (a) Either the
11 petitioner or the respondent may request modification of a gun violence protective
12 order issued under AS 18.65.815 or 18.65.820(a). If a request is made for modification
13 of
14 (1) a protective order, after notice and hearing under AS 18.65.815, the
15 court shall schedule a hearing within 20 days after the date the request is made, except
16 that, if the court finds that the request is meritless on its face, the court may deny the
17 request without a hearing; or
18 (2) an ex parte protective order under AS 18.65.820(a), the court shall
19 schedule a hearing on three days' notice or on shorter notice as the court may
20 prescribe.
21 (b) If the court modifies a protective order under this section, the court shall
22 issue a modified order and shall
23 (1) make reasonable efforts to ensure that the order is understood by
24 the petitioner and by the respondent, if present at the hearing; and
25 (2) have the order delivered to the appropriate local law enforcement
26 agency for expedited service.
27 Sec. 18.65.830. Surrender of firearms and ammunition. (a) When a court
28 issues a gun violence protective order under AS 18.65.815 - 18.65.825, the court shall
29 order the respondent to surrender to the appropriate local law enforcement agency or
30 to sell to a firearms dealer all firearms and ammunition that the person possesses,
31 owns, or has within the respondent's custody or control within 24 hours of receipt of
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1 the protective order.
2 (b) Within 48 hours of receiving notice of the protective order, the respondent
3 shall file with the
4 (1) court an original receipt showing that all firearms and ammunition
5 have been surrendered to the local law enforcement agency or sold to a firearms
6 dealer; and
7 (2) local law enforcement agency that served the protective order a
8 copy of the receipt under (1) of this subsection.
9 (c) Any firearms or ammunition surrendered to a law enforcement agency
10 under this section shall be retained by the law enforcement agency until the expiration
11 of the gun violence protective order. When the protective order expires, the law
12 enforcement agency shall return the firearms or ammunition to the respondent.
13 (d) A respondent who has surrendered firearms or ammunition to a law
14 enforcement agency and does not want the firearms or ammunition returned may sell
15 or transfer title of the firearms or ammunition to a firearms dealer.
16 (e) A person other than the respondent who claims title to any firearms or
17 ammunition surrendered under a protective order issued under AS 18.65.815 -
18 18.65.825 may petition the court to have the firearms or ammunition returned to the
19 person.
20 Sec. 18.65.835. Service of process; forms for petitions and orders; fees;
21 warnings; notification; and pending civil or criminal actions. (a) Service of
22 process of an order issued by the court under AS 18.65.815 - 18.65.825 shall be as
23 provided in AS 18.66.160 for service of process of domestic violence protective
24 orders.
25 (b) The Alaska Court System shall prepare forms for petitions and protective
26 orders and instructions for their use by a person seeking a protective order under
27 AS 18.65.815 - 18.65.825. The forms must conform to the Alaska Rules of Civil
28 Procedure, except that information on the forms may be filled in by legible
29 handwriting. Filing fees may not be charged in any action seeking only the relief
30 provided in AS 18.65.815 - 18.65.845. Each protective order form must contain the
31 following statements in boldface type:
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1 (1) "Violation of this order may be a misdemeanor, punishable by up
2 to one year of incarceration and a fine of up to $10,000"; and
3 (2) "To the restrained person: this order will last until the date and time
4 noted above. You are required to surrender all firearms and ammunition that you own
5 or possess in accordance with AS 18.65.835, and you may not have in your custody or
6 control, own, purchase, possess, receive, or attempt to purchase or receive, a firearm
7 or ammunition while this order is in effect. You may seek the advice of an attorney as
8 to any matter connected with the order. The attorney should be consulted promptly so
9 that the attorney may assist you in any matter connected with the order."
10 (c) In addition to other information required, a petition for a protective order
11 must include a statement of pending civil and criminal actions involving either the
12 petitioner or the respondent, if known. While a protective order is in effect or a
13 petition for a protective order is pending, both the petitioner and respondent have a
14 continuing duty to inform the court of pending civil and criminal actions involving
15 either the petitioner or the respondent, if known.
16 Sec. 18.65.840. Notification of law enforcement agencies. When a court
17 issues or accepts for filing a protective order under AS 18.65.815 - 18.65.825, the
18 court shall send a copy of the order to the appropriate local law enforcement agency.
19 Each law enforcement agency shall establish procedures to inform peace officers of
20 protective orders. Peace officers shall use every reasonable means to enforce a
21 protective order issued or filed under AS 18.65.815 - 18.65.825.
22 Sec. 18.65.843. Health care providers; duty to report serious threats of
23 gun violence. Annually, a health care provider shall report to the Department of
24 Health and Social Services any serious threat conveyed to the health care provider
25 during the year of gun violen