OLR Bill Analysis
sHB 5054 (as amended by House "A")*
AN ACT PROTECTING VICTIMS OF DOMESTIC VIOLENCE.
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, among other things, the bill:
1. revises the civil restraining order application form to allow an applicant to indicate whether the respondent (accused) has a firearm eligibility or ammunition certificate;
2. reduces, from five to three, the number of days before a hearing date that process must be served;
3. requires a proper officer (i.e., person authorized to serve process), in certain circumstances, to request that a state or municipal police officer be present when service is executed; and
4. continues an ex parte order (i.e., an order issued without a hearing) beyond the initial hearing date under certain circumstances.
The bill also requires state marshals and other proper officers to enter specific service-related information in the Judicial Branch's Internet-based service tracking system (see BACKGROUND).
The bill requires the chief court administrator to (1) revise and simplify the restraining order application process; (2) allocate space in the court, where feasible, for meetings between state marshals and restraining order applicants; (3) annually collect civil restraining and protection order data, and (4) develop and make available to the public education material on risk warrants.
It requires, rather than allows, the state marshal commission to adopt rules to conduct its internal affairs.
The bill extends certain firearms and ammunition prohibitions to a person subject to an ex parte civil restraining or protection order issued in a case involving physical force. It expressly prohibits the Department of Emergency Services and Public Protection (DESPP) commissioner from issuing a gun permit or firearms eligibility certificate to anyone subject to such an order. It also requires the commissioner, upon the request of a person who was subject to such an order and verification of the order's expiration, to reinstate any gun or ammunition credential revoked as a result of such an order, if the person is otherwise eligible for the credential.
The bill makes a person ineligible to possess firearms or ammunition upon receipt of legal notice that he or she is subject to an 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, as is already the case for anyone subject to any other order of protection.
The bill also shortens, from two business days to 24 hours, the deadline by which a person who becomes subject to any type of order of protection in a case involving physical force must transfer, deliver, or surrender his or her firearms and ammunition. It requires this same transfer by people subject to an ex parte order with the same 24-hour deadline. It (1) gives people required to surrender their firearms or ammunition to law enforcement the option to surrender them to a municipal police department, instead of just the DESPP commissioner; (2) requires the DESPP commissioner to update the existing protocol to allow for such a surrender; (3) requires DESPP and law enforcement agencies, under certain circumstances, to return firearms and ammunition when an ex parte order expires; and (4) provides for the request and return of firearms and ammunition when an order expires or is rescinded.
It also makes technical and conforming changes.
*House Amendment “A” (1) removes the underlying bill's requirement that a restraining order application allow the applicant to indicate whether the respondent's job requires the ability to carry firearm, (2) reduces, from 14 days to seven days, the time within which a hearing must be held if a court issues an ex parte order, (3) requires that an ex parte order be served in hand whenever possible and allows the law enforcement agency to designate a police officer to be present when service is executed, (4) requires the chief court administrator to develop and make available educational material on risk warrants, and (5) establishes requirements for DESPP or the local police to return firearms and ammunition when an order expires or is rescinded.
EFFECTIVE DATE: October 1, 2016
§ 3 — CIVIL RESTRAINING ORDERS
Under current law, a civil restraining order application form must allow an applicant to indicate whether the respondent holds a gun permit or possesses firearms or ammunition. Under the bill, the form must also allow the applicant to indicate whether the respondent has a handgun or long gun eligibility certificate or an ammunition certificate.
Initial Hearing Date
Under current law, the court must hold a hearing within 14 days after receipt of a restraining order application. Under the bill, the court must order a hearing within seven days after the issuance of an ex parte order if an application indicates that the respondent holds a gun permit, possesses firearms or ammunition, or has a handgun or long gun eligibility certificate or an ammunition certificate.
The bill reduces, from five to three, the number of days before a hearing date by which a respondent must be served notice of a hearing, the application and accompanying affidavits, and any ex parte order.
Ex Parte Order Extension
Under current law, an ex parte order is generally in effect until the hearing date. The bill requires the court to continue an ex parte order for up to 14 days from the original hearing date if the (1) respondent has not been served by the date of the hearing and (2) applicant requests the extension. The court must do so based on the information in the original application.
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 at least three days before the new hearing date.
Service of Process
If the court issues an ex parte order on an application that indicates that the respondent (1) holds a gun permit, a handgun or long gun eligibility certificate, or an ammunition certificate or (2) possesses ammunition or one or more firearms, the bill requires the proper officer, whenever possible, to provide in hand service and, prior to serving such order, to:
1. notify the law enforcement agency for the town in which the respondent will be served of the time and place of service;
2. send, or cause to be sent by fax or other means, a copy of the application, applicant's affidavit, ex parte order, and hearing notice to such law enforcement agency; and
3. request that a police officer from the appropriate law enforcement agency be present when service is executed.
Upon receipt of such a request, the bill allows the law enforcement agency to designate a police officer to be present when the proper officer serves process.
Under the bill, “law enforcement agency” means the State Police or any municipal police department.
§§ 3 & 6 — SERVICE TRACKING
The bill requires state marshals and other proper officers, as soon as possible but no more than two hours after serving a civil restraining or protection order, to enter the date, time, and method of service into the Judicial Branch's Internet-based service tracking system. If the respondent was not served before the date of the scheduled hearing, the officer must indicate in the system that service was unsuccessful.
§ 6 — COPY OF ORDER TO DESPP
Existing law requires the court to send, by fax or other means, a copy of any civil restraining or protection order (including ex parte orders) or the information in the order, within 48 hours of issuance, to the law enforcement agency or agencies for the towns where the applicant and respondent reside and where the applicant works. Under the bill, the court must also send such a copy or information to the DESPP commissioner immediately after issuing a civil protection order.
§§ 4 & 5 — COURT SPACE, APPLICATION PROCESS, AND EDUCATIONAL MATERIAL
Civil Restraining Order
The bill requires the chief court administrator, where feasible, to allocate space for a meeting between state marshals and restraining order applicants 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 civil 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 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.
Civil Restraining and Civil Protection Orders
Under the bill, the chief court administrator must also collect data annually on the:
1. number of restraining and protection orders issued,
2. number of these orders that applicants did not pick up from the court,
3. method used when service of these orders was successful,
4. number of requests for a police officer to be present when service of process for restraining orders are executed, and
5. number of orders that expired or were dismissed because the respondent could not be served.
The bill also requires the chief court administrator to develop educational materials on the risk warrant process relating to someone who poses a risk of imminent personal injury to himself, herself, or others. The chief court administrator must make this educational material available to the public. (A risk warrant is a warrant to search a specific person, place, or thing to seize any firearms and ammunitions.)
§ 2 — STATE MARSHAL COMMISSION RULES
The bill requires, rather than allows, the state marshal commission to adopt rules it deems necessary to conduct its internal affairs. Under the bill, this includes rules that provide for:
1. timely, 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.
§ 7 — 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 respondent becomes ineligible to possess firearms and ammunition when he or she receives notice of the order.
§§ 7, 15 & 16 — TRANSFER, DELIVERY, OR SURRENDER OF FIREARMS AND AMMUNITION
Time Frame to Transfer, Deliver, or Surrender (§ 7)
The bill shortens the deadline by 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 becoming subject to a civil restraining order, civil protection order, criminal protective order, or foreign order of protection involving force. It extends these requirements to ex parte orders (i.e., those issued without a prior hearing).
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.
Delivery or Surrender to Police Department (§ 7)
The bill gives people who must surrender their firearms or ammunition the option of surrendering them to a municipal police department on the DESPP commissioner's behalf, instead of just to the DESPP commissioner. It requires the police department, as is currently the case for the DESPP commissioner, to exercise due care when receiving and holding the weapons.
For anyone subject to such an order, the bill removes the existing option of transferring ammunition to any other eligible person.
Under existing law, a person or his or her legal representative may, up to one year after delivering or surrendering his or her firearms or ammunition to DESPP, ask the commissioner to transfer them to an eligible person. The commissioner must do so within 10 days of receiving the request (except in a case involving a protection order, in which weapons may only be transferred to a federally licensed dealer pursuant to a sale). The bill makes a conforming change by allowing the person or legal representative to request the police department to make such a transfer.
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.
Return of Firearms and Ammunition (§ 7)
Under the bill, a person subject to a restraining order, protective order, foreign order of protection, or civil protection order who has delivered or surrendered any pistol, revolver, or other firearm or ammunition to the DESPP commissioner or a local police department, may request the return of the firearm or ammunition when such an order expires or is rescinded. The person making the request must provide notification of the order's expiration or rescission to the DESPP commissioner or the local police department.
Within five business days after receiving the request, the bill requires the DESPP commissioner or the local police department to review the request and make any firearm or ammunition available for retrieval if the commissioner or the local police department confirms that the order expired or was rescinded and that the person (1) is not otherwise disqualified from possessing the firearm or ammunition and (2) was legally entitled to possess such firearm or ammunition at the time of delivery or surrender to the commissioner or local police department.
Violation (§§ 7, 15 & 16)
Currently, a person subject to an order of protection who violates the firearms and ammunition transfer, delivery, or surrender requirement is guilty of criminal possession of a firearm or ammunition as applicable. The bill extends these penalties to people who commit such violations while subject to an ex parte order.
By law, criminal possession of a firearm or ammunition is a class C felony, punishable by up to 10 years in prison with a two-year mandatory minimum.
§§ 8-14 — ISSUE, REVOCATION, AND REINSTATEMENT OF GUN AND AMMUNITION CREDENTIALS
The bill expressly states that the DESPP commissioner must not issue a gun permit, handgun eligibility certificate, or long gun eligibility certificate to anyone subject to an ex parte order issued in a case involving the use, attempted use, or threatened use of physical force against another person. By law, the commissioner may revoke a permit or certificate for any event that would have disqualified the holder from being issued such a credential.
Under the bill, DESPP must reinstate a gun or ammunition credential it revoked based on an ex parte order, if the order expires and the respondent, who is not otherwise disqualified, notifies DESPP and it verifies the expiration.
§ 17 — 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. The bill requires the commissioner to update the protocol to appropriately apply to the bill's provisions.
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 independently issue, on behalf of a victim, 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 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 from (1) violence, threatening acts, or harassment or (2) contact, communication with, or physical proximity to, another person (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.
sSB 429, reported favorably by the Judiciary Committee, revises the civil restraining order application form to allow an applicant to indicate whether the respondent has a firearm eligibility or ammunition certificate. It allows such an applicant to request that a police officer, rather than a state marshal or other proper officer, serve process on the respondent.
sHB 5597, reported favorably by the Judiciary Committee, revises the civil restraining order application form to allow the applicant to state whether the accused has a firearm eligibility or ammunition certificate. The application form must also allow the applicant to state whether he or she has probable cause to believe that the accused poses a risk of imminent personal injury to the applicant. If this is the case, the bill requires the court to notify the office of the state's attorney for the judicial district in which the application was filed, to begin a risk warrant proceeding (i.e., a warrant to search a specific person, place, or thing to seize any firearms and ammunitions).
sHB 5623, reported favorably by the Judiciary Committee, contains identical provisions to this bill related to orders of protection, service of process, and firearms and ammunition possession.