OLR Bill Analysis
AN ACT CONCERNING TEMPORARY RESTRAINING ORDERS.
This bill makes changes in various laws that relate to orders of protection (see BACKGROUND), service of process, and firearms and ammunition possession.
With regard to the service of civil restraining orders, the bill:
1. revises the application form for a civil restraining order to allow an applicant to indicate whether the accused holds a firearm eligibility certificate or an ammunition certificate;
2. requires (a) police officers, instead of state marshals or other proper officers, to serve process in certain circumstances and (b) the accused, where possible, to surrender any firearms or ammunition in his or her possession or control to the police at the time of service;
3. requires an expedited hearing for peace officers subject to an ex parte order (an order issued without a hearing);
4. reduces, from five to three, the number of days before a hearing date that process must be served; and
5. continues an ex parte order beyond the initial hearing date under certain circumstances.
The bill also (1) allows state marshals to access the Judicial Branch's Internet-based service tracking system (see BACKGROUND), (2) requires them to enter specific information into the system, and (3) increases the mileage expenses they may recover for serving process.
The bill requires the Judicial Branch to (1) revise and simplify the restraining order application process, (2) allocate space in the court for meetings between state marshals and restraining order applicants, and (3) annually collect restraining and protection order data.
It expands the state marshal commission's regulatory authority and requires the commission to study the Judicial Branch's "marshal of the day" practice (see BACKGROUND).
The bill extends certain firearms and ammunition prohibitions to a person subject to an ex parte order in cases involving physical force. It requires the Department of Emergency Services and Public Protection (DESPP) commissioner, upon the (1) request of a person who was subject to such an order and (2) verification of the order's expiration, to reinstate any gun permit, firearms eligibility certificate, or ammunition certificate revoked as a result of such an order, if the person is otherwise eligible for the credential.
It makes a person ineligible to possess firearms or ammunition when he or she receives legal notice of the ex parte order and makes it a class C felony for such a person to violate the firearms or ammunition transfer, delivery, or surrender requirements.
The bill also shortens, from two business days to 24 hours, the time period within which a person who is subject to any type of order of protection (see BACKGROUND) in a case involving physical force must transfer, deliver, or surrender his or her firearms and ammunition. It (1) adds the municipal police department, instead of just the State Police, as an option to receive the delivery or surrender of firearms and ammunition by those who are required to do so and (2) requires the DESPP commissioner to update the existing protocol to allow for such a surrender.
It also makes technical and conforming changes.
EFFECTIVE DATE: October 1, 2015, except the section on the state marshal commission's study is effective on passage.
§ 3 — CIVIL RESTRAINING ORDERS
Under current law, a civil restraining order application form must allow an applicant, at his or her option, to indicate whether the accused (respondent) holds a gun permit or possesses firearms or ammunition. Under the bill, the application form must also give the applicant the option to indicate whether the respondent holds a handgun eligibility certificate, long gun eligibility certificate, or an ammunition certificate.
Initial Hearing Date
Under existing law, the court must hold a hearing within 14 days after receipt of a restraining order application. The bill advances the hearing date when the respondent is a peace officer subject to an ex parte order. In such a case, the court must hold a hearing within five days after it issues the ex parte order. (The bill does not specify how the court will know that the respondent is a peace officer.)
The bill reduces, from five to three, the number of days before a hearing date by which a respondent must receive notice of a hearing and any ex parte order.
Under the bill, a photographic copy, micrographic copy, or other electronic image that clearly and accurately copies the application, the applicant's affidavit, any ex parte order, and the hearing notice is allowed when effectuating service of a civil restraining order.
Second Hearing Date and Ex Parte Order Extension
Under current law, an ex parte order is in effect until the hearing date, 14 days from the date of the order. The bill requires the court, unless the applicant requests otherwise, to continue an ex parte order if (1) service has not been made on the respondent by the date of the hearing and (2) the applicant attends the hearing. The bill requires the court, under such circumstances, to (1) continue the hearing to a date necessary to achieve service on the respondent and (2) extend any ex parte order until such date, but not more than 14 days from the original hearing date.
Under the bill, the court must prepare a new hearing and notice order containing the new hearing date. The respondent must be served with the new hearing and notice order along with the original service documents by at least three days before the new hearing date. If service is not successful by the date of the second hearing, the ex parte order may not be continued.
Service by Police Officer
The bill limits service of process to police officers as the only authorized agents in cases where the court has issued an ex parte order on an application that indicates that the respondent (1) holds a gun permit, a handgun eligibility certificate, long gun eligibility certificate, or an ammunition certificate; or (2) possesses ammunition or one or more firearms. In such a case, the court must send, by fax or other means, the application, applicant's affidavit, ex parte order, and the hearing notice to the law enforcement agency for the town in which the respondent lives. The clerk must do so within two hours after the issuance of the ex parte order.
Under the bill, the law enforcement agency must receive all process directed to such agency, and a police officer from such agency must promptly serve process on the respondent in-hand and return service to the court.
As is required for other authorized agents under existing law, the bill requires a police officer to immediately notify (by fax or other means) the law enforcement agencies for the town in which the applicant and the respondent lives and the town where the applicant works of the date and time that service was made. Under the bill, police officers and other proper officers must, as soon as possible within two hours after serving a civil restraining order, enter the date, time, and method of service into the service tracking system. If service has not been effectuated prior to the date of the scheduled hearing, they must indicate in the system that service was unsuccessful.
Surrender of Firearms and Ammunition to the Police Officer
The bill requires the respondent to surrender all firearms and ammunition he or she owns or has in his or her control or possession to the police officer at the time the officer serves the order. If the firearms and ammunition cannot be surrendered at that time because they are not in the location where service is effectuated, the respondent must, within 24 hours after the time he or she is served, (1) transfer his or her firearms or ammunition to a federally licensed firearms dealer pursuant to a sale or (2) deliver or surrender such firearms and ammunition to the DESPP commissioner, the state police, or any municipal police department.
The bill specifies that when a police officer effectuates service, the information in the application or applicant's affidavit does not alone constitute grounds for an arrest for a family violence crime.
§ 1 — SERVICE TRACKING BY STATE MARSHALS
The bill requires a state marshal, when serving a civil restraining or protection order, to indicate whether or not he or she successfully served process. If service was successful, the marshal must also indicate the date, time, and place of service and whether service was made in-hand or to the last known address.
The bill allows state marshals to access the Judicial Branch's Internet-based service tracking system (see BACKGROUND). It requires them, as soon as possible within two hours after serving a civil restraining or protection order, to enter the date, time, and method of service into the system. If the person was not served before the date of the scheduled hearing, the marshal must indicate in the system that service was unsuccessful.
§§ 1 & 4 — MILEAGE EXPENSE FOR IN-HAND SERVICE OF PROCESS
By law, mileage expense for in-hand service of a civil restraining or protection order is computed for the round trip from the place where the authorized agent receives the process to the place of service and to the court where the service is to be returned. The bill increases the mileage expenses an authorized agent, except a police officer, may recover for service of a civil restraining order by allowing him or her to charge mileage for up to two round trips as may be reasonably necessary to serve process on the respondent, with any additional fees authorized by a court for good cause, provided the service is effectuated. This increase does not apply to the service of civil protection orders.
By law, an authorized agent's mileage fee is the same as that set by the Department of Administrative Services for state employees.
§§ 5 & 6 — JUDICIAL BRANCH'S COURT SPACE AND APPLICATION PROCESS
Civil Restraining Order
The bill requires the chief court administrator, where feasible, to allocate space for a meeting between a state marshal and a restraining order applicant in each Superior Court to which the service of a restraining order may be returned.
The bill also requires the chief court administrator to revise and simplify the process for filing a restraining order application. Under the bill, the chief court administrator must ensure that anyone seeking to apply for relief from abuse is given a one-page, plain language explanation of how to apply for a civil restraining order. By law, a person must be a family or household member to seek relief under a civil restraining order. A non–household or non-family member may only apply for a civil protection order.
The above provisions do not apply to civil protection order applicants or that application process.
Civil Restraining and Civil Protection Orders
Under the bill, the chief court administrator must also collect data annually on the:
1. number of restraining or protection orders issued,
2. method used when service of such orders was successfully made, and
3. number of orders that expired or were dismissed because the respondent could not be served.
§§ 2 & 7 — STATE MARSHAL COMMISSION REGULATIONS AND STUDY
Under current law, the state marshal commission (1) may adopt rules it deems necessary to conduct its internal affairs and (2) must adopt regulations regarding the application and investigation requirements for filling vacant state marshal positions.
The bill further authorizes the commission to adopt regulations that provide for:
1. consistent and reliable access to a state marshal for civil restraining order applicants (but not for civil protection order applicants),
2. services to people with limited English proficiency or who are deaf or hearing impaired, and
3. service of process using a clear and accurate copy of the original document.
The bill requires the state marshal commission to study its "marshal of the day" practice, used for the collection, dissemination, and service of restraining and protective orders. The study must at least examine (1) whether the practice promotes efficient and timely service of restraining and protective orders and (2) the applicants' wait times. By February 1, 2016, the commission must report the study's results to the Judiciary Committee.
§ 8 — ELIGIBILITY TO POSSESS FIREARMS AND AMMUNITION
Under existing law, a person is ineligible to possess firearms and ammunition when the court issues a civil restraining or protection order against him or her after notice and a hearing in a case involving the use, attempted use, or threatened use of physical force against another person.
Under the bill, in the same type of case, if the court issues an ex parte order, the person subject to the order (respondent) becomes ineligible to possess firearms and ammunition when he or she receives notice of the order.
§§ 8-11 — TRANSFER, DELIVERY, OR SURRENDER OF FIREARMS AND AMMUNITION
§ 8 —Time Frame to Transfer, Deliver, or Surrender
The bill shortens the time period within which a person must transfer, deliver, or surrender his or her firearms and ammunition if he or she becomes ineligible to possess them as a result of a civil restraining order, civil protection order, criminal protective order, or foreign order of protection. It also sets the shortened deadline for ex parte orders.
Under current law, the deadline is within two business days after the person becomes ineligible. Under the bill, the deadline is within 24 hours of becoming ineligible, including after receiving notice of an ex parte order.
§ 8 — Delivery or Surrender to Police Departments
The bill adds the municipal police department, instead of just the State Police, as an option to receive the delivery or surrender of firearms and ammunition by those who are required to do so.
It requires such police department, as is currently the case for the DESPP commissioner, to exercise due care when receiving and holding the weapons.
Under existing law, a person or his or her legal representative may, up to one year after delivery or surrender of his or her firearms or ammunition to DESPP, ask the commissioner to transfer them to an eligible person. By law the commissioner must do so within 10 days of receipt of the request (except in a case involving a protection order, weapons may only be transferred to a federally licensed dealer pursuant to a sale). Under the bill, the same may be asked of police departments.
By law, the commissioner must destroy any firearms or ammunition that have not been transferred by the end of one year. Under the bill, this also applies to police departments to which weapons are delivered or surrendered.
§ 8 — Violation
Under the bill, a person who is ineligible as a result of an ex parte order who violates the transfer, delivery, or surrender requirement is guilty of criminal possession of a firearm, as is the case under existing law for violators subject to other orders of protection.
By law, criminal possession of a firearm is a class C felony, punishable by up to 10 years in prison, a fine of up to $10,000, or both.
§ 11 — Protocol for Gun and Ammunition Transfer, Delivery, or Surrender
The law requires the DESPP commissioner, in conjunction with the chief state's attorney and the Connecticut Police Chiefs Association, to develop a protocol to ensure that people who become ineligible to possess firearms transfer, deliver, or surrender them as appropriate. Under the bill, the commissioner must update the protocol to (1) apply to a person who becomes ineligible to possess firearms due to the issuance of an ex parte order and (2) allow for the delivery and surrender of firearms and ammunition to municipal police.
§§ 12–15 — REINSTATEMENT OF GUN AND AMMUNITION CREDENTIALS
The bill requires DESPP to reinstate any gun permit, handgun eligibility certificate, long gun eligibility certificate, or ammunition certificate it revoked based on an ex parte order, if the order expires and
1. the respondent, who is not otherwise disqualified, notifies the department and
2. DESPP verifies the expiration.
Orders of Protection
Civil Restraining Order. A family or household member may apply for a civil restraining order for relief from physical abuse, stalking, or a pattern of threatening from another family or household member (CGS § 46b-15).
Civil Protection Order. A victim of sexual abuse, sexual assault, or stalking may apply for a civil protection order if he or she is not eligible for the restraining order described above (CGS § 46b-16a).
Criminal Protective Orders. Courts may issue a (1) protective order after a person is arrested for certain crimes or (2) standing criminal protective order after a person is convicted of certain crimes. The statutes governing these orders do not require a victim to apply for the order (CGS §§ 54-1k and 53a-40e).
Foreign Order of Protection. A foreign order of protection is an injunctive or other court order to prevent violence, threatening acts, or harassment against; contact or communication with; or physical proximity to another person issued by another state; the District of Columbia; a U. S. commonwealth, territory, or possession; or an Indian tribe in response to a complaint, petition, or motion filed by or on behalf of a person seeking protection (CGS § 46b-15a and 18 USC § 2266(5)).
Judicial Branch's Service Tracking System
The Judicial Branch's Protective Order Registry's tracking component enables state marshals to record the service of process in civil restraining order cases. This component uses an around-the-clock, toll-free voice recognition system that marshals can access by cell phone, and the system updates state and national protection order files and faxes a notice of service to corresponding police departments, as soon as service information is recorded.
Marshal of the Day Practice
Under the “marshal of the day” practice, the state marshal commission assigns a state marshal responsible for service of process of restraining orders to each Judicial District for every court day.
sHB 6848, reported favorably by the Judiciary Committee, contains provisions related to ex parte orders and eligibility to possess firearms and ammunition.
sHB 7004, reported favorably by the Judiciary Committee, contains provisions related to the service of restraining orders.
Joint Favorable Substitute