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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 58
Introduced by Morfeld, 46.
Read first time January 10, 2019
Committee: Judiciary
1 A BILL FOR AN ACT relating to relating to firearms; to amend sections
2 69-2406, 69-2407, and 69-2439, Reissue Revised Statutes of Nebraska,
3 and section 25-2740, Revised Statutes Cumulative Supplement, 2018;
4 to adopt the Extreme Risk Protection Order Act; to harmonize
5 provisions; to repeal the original sections; and to declare an
6 emergency.
7 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 16 of this act shall be known and may be
2 cited as the Extreme Risk Protection Order Act.
3 Sec. 2. For purposes of the Extreme Risk Protection Order Act:
4 (1) Ex parte extreme risk protection order means a temporary
5 protection order issued on an ex parte basis under section 5 of this act;
6 (2) Family or household member includes spouses or former spouses,
7 children, persons who are presently residing together or who have resided
8 together in the past, persons who have a child in common whether or not
9 they have been married or have lived together at any time, other persons
10 related by consanguinity or affinity, and persons who are presently
11 involved in a dating relationship with each other or who have been
12 involved in a dating relationship with each other. For purposes of this
13 subdivision, dating relationship means frequent, intimate associations
14 primarily characterized by the expectation of affectional or sexual
15 involvement, but does not include a casual relationship or an ordinary
16 association between persons in a business or social context;
17 (3) Final extreme risk protection order means an order issued under
18 section 4 of this act or an ex parte extreme risk protection order that
19 is deemed final under section 5 of this act and includes renewals of such
20 orders;
21 (4) Firearm has the same meaning as in section 28-1201;
22 (5) Law enforcement agency means the police department or town
23 marshal in incorporated municipalities, the office of the sheriff in
24 unincorporated areas, and the Nebraska State Patrol;
25 (6) Law enforcement officer means any officer or employee of a law
26 enforcement agency authorized by law to make arrests;
27 (7) Petitioner means the person who petitions for an extreme risk
28 protection order; and
29 (8) Respondent means the person who is identified as the respondent
30 in a petition filed under the act.
31 Sec. 3. (1) A petition for an extreme risk protection order may be
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1 filed by (a) a family or household member of the respondent or (b) a law
2 enforcement agency or law enforcement officer.
3 (2) A petition for an extreme risk protection order shall be filed
4 with the clerk of the district court of the county where the petitioner
5 or respondent resides, and the proceeding may be heard by the county
6 court or the district court as provided in section 25-2740. A petition
7 may not be withdrawn except upon order of the court.
8 (3) A petition for an extreme risk protection order shall:
9 (a) Allege that the respondent poses a significant risk of causing
10 personal injury to self or others by having in his or her custody or
11 control, purchasing, possessing, or receiving a firearm;
12 (b) Be accompanied by an affidavit made under oath stating the
13 specific statements, actions, or facts that give rise to a reasonable
14 fear of future dangerous acts by the respondent;
15 (c) Identify the number, types, and locations of any firearms the
16 petitioner believes to be in the respondent's current ownership,
17 possession, custody, or control;
18 (d) If known by the petitioner, identify any existing harassment
19 protection order, sexual assault protection order, domestic violence
20 protection order, or other similar protection order governing the
21 respondent, whether from this state or another jurisdiction; and
22 (e) Identify whether there is a pending lawsuit, complaint,
23 petition, or other action between the parties to the petition under the
24 laws of Nebraska or any other jurisdiction.
25 (4) The court shall verify the terms of any existing domestic court
26 order governing the parties and, if reasonably practicable, the terms of
27 any such existing court order from another jurisdiction. The court shall
28 not delay granting relief because of the existence of a pending action
29 between the parties or in order to verify the terms of an existing order.
30 A petition for an extreme risk protection order may be granted whether or
31 not there is a pending action between the parties.
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1 (5) If the petitioner is a law enforcement agency or law enforcement
2 officer, the petitioner shall make a good faith effort to provide notice
3 to any family or household member of the respondent who may be at risk of
4 violence and to any known third party who may be at risk of violence. If
5 such person is a minor, notice to such minor's parent or guardian, other
6 than the respondent, shall be sufficient. The notice shall state that the
7 petitioner intends to petition the court for an extreme risk protection
8 order or has already done so, and include referrals to appropriate
9 resources, including mental health, domestic violence, and counseling
10 resources. The petitioner shall attest in the petition to having provided
11 such notice or attest to the steps that will be taken to provide such
12 notice.
13 (6) If the petitioner is a family or household member of the
14 respondent and the petition for an extreme risk protection order states
15 that disclosure of the petitioner's address would risk harm to the
16 petitioner or any member of the petitioner's family or household, the
17 petitioner's address may be omitted from all documents filed with the
18 court. If the petitioner has not disclosed an address under this
19 subsection, the petitioner must designate an alternative address at which
20 the respondent may serve notice of any motions. If the petitioner is a
21 law enforcement agency or law enforcement officer, the petition must
22 contain the address of record of such agency or officer.
23 (7) No fees for filing or service of process shall be charged by a
24 court or any public agency to petitioners seeking relief under the
25 Extreme Risk Protection Order Act, except that a court may assess such
26 fees and costs if the court finds, by clear and convincing evidence, that
27 the statements contained in the petition were false and that the extreme
28 risk protection order was sought in bad faith.
29 (8) Petitioners shall be provided the necessary number of certified
30 copies, forms, and instructional brochures free of charge.
31 (9) A petitioner shall not be required to post a bond to obtain
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1 relief in any proceeding under the Extreme Risk Protection Order Act.
2 Sec. 4. (1) If an extreme risk protection order is not issued ex
3 parte under section 5 of this act, upon receipt of the petition, the
4 court shall immediately schedule an evidentiary hearing to be held within
5 fourteen days after the filing of the petition, and the court shall cause
6 notice of the hearing to be given to the petitioner and the respondent.
7 The clerk of the district court shall cause a copy of the notice of
8 hearing and petition to be forwarded on or before the next judicial day
9 to the appropriate law enforcement agency for service upon the
10 respondent. Service issued under this section takes precedence over the
11 service of other documents, unless the other documents are of a similar
12 emergency nature.
13 (2) Subject to court rules, a hearing under the Extreme Risk
14 Protection Order Act, including an evidentiary hearing, may be held
15 telephonically or by videoconferencing or similar means at any location
16 within the judicial district as ordered by the court and in a manner that
17 ensures the preservation of an accurate record, when doing so is
18 necessary to reasonably accommodate a disability or in exceptional
19 circumstances to protect a petitioner or witness from potential harm. The
20 court shall require assurances of the identity of the petitioner and any
21 witness before conducting a hearing in such manner.
22 (3) Upon hearing the matter, if the court finds by a preponderance
23 of the evidence that the respondent poses a significant risk of causing
24 personal injury to self or others by having in his or her custody or
25 control, purchasing, possessing, or receiving a firearm, the court shall
26 issue an extreme risk protection order that shall be effective for one
27 year.
28 (4) In determining whether grounds for issuing an extreme risk
29 protection order exist, the court may consider any relevant evidence,
30 including, but not limited to:
31 (a) A recent act or threat of violence by the respondent against
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1 self or others, whether or not such violence or threat of violence
2 involves a firearm;
3 (b) A pattern of acts or threats of violence by the respondent,
4 including, but not limited to, acts or threats of violence by the
5 respondent against self or others;
6 (c) Evidence of the respondent being seriously mentally ill or
7 having recurring mental health issues;
8 (d) A violation by the respondent of a harassment protection order,
9 sexual assault protection order, domestic violence protection order, or
10 other similar protection order, whether from this state or another
11 jurisdiction;
12 (e) The existence of any previous or current extreme risk protection
13 order issued against the respondent, whether from this state or another
14 jurisdiction, and whether the respondent has violated such order;
15 (f) Whether the respondent, in this state or any other jurisdiction,
16 has been convicted of, had adjudication withheld or deferred on, or pled
17 nolo contendere to a crime in which any victim was a family or household
18 member of the respondent;
19 (g) The respondent's ownership of, access to, or intent to possess
20 firearms;
21 (h) The unlawful or reckless use, display, or brandishing of a
22 firearm by the respondent;
23 (i) The history of use, attempted use, or threatened use of physical
24 force by the respondent against another person;
25 (j) Any history of stalking by the respondent;
26 (k) Whether the respondent, in this state or any other jurisdiction,
27 has been arrested for, convicted of, had adjudication withheld or
28 deferred on, or pled nolo contendere to a crime involving violence or a
29 threat of violence;
30 (l) Corroborated evidence of the abuse of controlled substances or
31 alcohol by the respondent; and
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1 (m) Evidence of recent acquisition of firearms by the respondent.
2 (5) The court may:
3 (a) Examine under oath the petitioner, the respondent, and any
4 witnesses they may produce, or, in lieu of examination, consider sworn
5 affidavits of the petitioner, the respondent, and any witnesses they may
6 produce; and
7 (b) Ensure that a reasonable search has been conducted for criminal
8 history record information related to the respondent.
9 (6) In a hearing under the Extreme Risk Protection Order Act, the
10 rules of evidence apply to the same extent as in proceedings for a
11 domestic protection order under the Protection from Domestic Abuse Act.
12 (7) During the hearing, the court shall consider whether a mental
13 health evaluation or chemical dependency evaluation of the respondent is
14 appropriate, and may order such evaluation, if appropriate.
15 (8) If the court issues an extreme risk protection order, such order
16 shall include:
17 (a) A statement of the grounds supporting the issuance of the order;
18 (b) The date and time the order was issued;
19 (c) The date and time the order expires;
20 (d) Whether a mental health evaluation or chemical dependency
21 evaluation of the respondent is required;
22 (e) The address of the court in which any responsive pleading should
23 be filed;
24 (f) A description of the requirements for relinquishment of firearms
25 under section 10 of this act; and
26 (g) A statement in substantially the following form: "To (name of
27 respondent): This order will last until the date and time noted above. If
28 you have not done so already, you must immediately surrender to the (name
29 of local law enforcement agency) all firearms in your custody, control,
30 or possession, any permit to carry a concealed handgun issued to you
31 under the Concealed Handgun Permit Act, and any certificate issued to you
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1 under section 69-2404. While this order is in effect you shall not have a
2 firearm in your custody or control or purchase, possess, receive, or
3 attempt to purchase, possess, or receive a firearm. You have the sole
4 responsibility to avoid or refrain from violating this order. Only the
5 court can terminate this order and only upon written request. You have
6 the right to request a hearing to terminate this order once during every
7 twelve-month period that this order is in effect, starting from the date
8 of this order and continuing through any renewals. You may seek the
9 advice of an attorney as to any matter connected with this order."
10 (9) When the court issues an extreme risk protection order following
11 a hearing under this section, the court shall inform the respondent that
12 he or she is entitled to request termination of the order in the manner
13 prescribed by section 8 of this act. The court shall provide the
14 respondent with a form to request a termination hearing.
15 (10) If the court declines to issue an extreme risk protection
16 order, the court shall state on the record the particular reasons for the
17 denial.
18 Sec. 5. (1) A petitioner may request that an extreme risk
19 protection order be issued ex parte to the respondent and without prior
20 notice to the respondent by including in the petition detailed
21 allegations based on personal knowledge that the respondent poses a
22 significant risk of causing personal injury to self or others in the near
23 future by having in his or her custody or control, purchasing,
24 possessing, or receiving a firearm.
25 (2) In considering whether to issue an ex parte extreme risk
26 protection order under this section, the court shall consider all
27 relevant evidence, including the evidence described in subsection (4) of
28 section 4 of this act.
29 (3) The court shall hold a hearing for a petition for an ex parte
30 extreme risk protection order on the day the petition is filed or on the
31 judicial day immediately following the day the petition is filed. Subject
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