PA 16-34—sHB 5054

Judiciary Committee

AN ACT PROTECTING VICTIMS OF DOMESTIC VIOLENCE

SUMMARY: This act makes changes in various laws that relate to restraining and civil protection orders (see BACKGROUND), service of process, the state marshal commission, and firearms and ammunition possession.

With regard to the service of civil restraining orders, the act, among other things:

1. revises the civil restraining order application form to allow the inclusion of information on 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 when process must be served;

3. in certain circumstances, requires a proper officer (i. e. , person authorized to serve process) to request the presence of a state or municipal police officer 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 act 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 educational material on risk warrants.

The act extends certain firearms and ammunition prohibitions to people 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. The act makes a person ineligible to possess firearms or ammunition on receiving legal notice that he or she is subject to an ex parte order and makes it a class C felony (see Table on Penalties) for such a person to violate firearms or ammunition transfer, delivery, or surrender requirements, as is already the case for anyone subject to any other order of protection.

The act also requires the commissioner, at the request of a person who was subject to such an order and on verification of the order's expiration, to reinstate any gun or ammunition credential revoked as a result of the order, if the person is otherwise eligible for the credential.

The act 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 imposes the same 24-hour deadline on such transfers by people subject to an ex parte order. 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 protocol to allow for such a surrender; (3) requires DESPP and law enforcement agencies, in 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.

The act 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). And it requires, rather than allows, the state marshal commission to adopt rules to conduct its internal affairs.

It also makes technical and conforming changes.

EFFECTIVE DATE: October 1, 2016

3 — CIVIL RESTRAINING ORDERS

Application

The act expands the type of gun-related information that may be included in an application for a civil restraining order. Under prior law, the form had to allow the applicant to indicate only whether the respondent held a gun permit or possessed firearms or ammunition. Under the act, 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 existing law, the court must hold a hearing within 14 days after receiving a restraining order application. Under the act, the court must order a hearing within seven days after issuing 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 act reduces, from five to three, the number of days before a hearing by which a respondent must be served notice of the hearing, the application and accompanying affidavits, and any ex parte order.

Ex Parte Order Extension

The act sets conditions under which the court can continue an ex parte order. Under existing law, an ex parte order is generally in effect until the hearing date. The act requires the court to continue the 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 act, 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

The act requires the officer responsible for serving an ex parte order to take certain steps when the court issues an ex parte order if the application 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. In such a case, the proper officer must, whenever possible, provide in-hand service and, before serving the order:

1. notify the law enforcement agency of 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 the law enforcement agency; and

3. request the presence of a police officer from the appropriate law enforcement agency when service is executed.

The act allows the law enforcement agency (State Police or any municipal department), on receiving such a request, to designate a police officer to be present when the proper officer serves process.

3 & 6 — SERVICE TRACKING

The act 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 is 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

By law, the court must send, by fax or other means, a copy of any civil restraining or protection order (including an ex parte order) or the information in the order, within 48 hours of its issuance, to the law enforcement agency or agencies for the towns where the applicant and respondent reside and where the applicant works. Under the act, 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 act requires the chief court administrator (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 act also requires the administrator to revise and simplify the process for filing a civil restraining order application. Under the act, the administrator must ensure that anyone seeking to apply for relief from abuse receives a one-page, plain language explanation of how to apply for a restraining order. By law, an applicant for such an order must be a family or household member. A non–household or non-family member may only apply for a civil protection order.

Civil Restraining and Civil Protection Orders

Under the act, the 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 was successful,

4. number of requests that a police officer be present when service of process for a restraining order is executed, and

5. number of orders that expired or were dismissed because the respondent could not be served.

The act also requires the 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. (A risk warrant is a warrant to search a specific person, place, or thing to seize any firearms and ammunitions. ) The administrator must make this educational material available to the public.

2 — STATE MARSHAL COMMISSION RULES

The act requires, rather than allows, the state marshal commission to adopt rules it deems necessary to conduct its internal affairs. Under the act, 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 act, in the same type of case, the respondent becomes ineligible to possess firearms and ammunition when he or she receives notice of an ex parte order.

7, 15 & 16 — TRANSFER, DELIVERY, OR SURRENDER OF FIREARMS AND AMMUNITION

Time Frame for Transfer, Delivery, or Surrender ( 7)

The act 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 after becoming subject to a civil restraining order, civil protection order, criminal protective order, or foreign order of protection involving force. Under prior law, the deadline was within two business days after the person became ineligible. Under the act, the deadline is within 24 hours of becoming ineligible.

The act also extends its gun-related surrender requirements to people subject to an ex parte order.

Delivery or Surrender to Police Department ( 7)

The act 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 commissioner. It requires the police department, as is already the case for the commissioner, to exercise due care when receiving and holding the weapons.

The act removes prior law's option that allowed anyone subject to such an order to transfer ammunition to another person eligible to possess it.

By 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 conduct the transfer within 10 days of receiving the request (except in a case involving a protection order, in which case weapons may only be transferred to a federally licensed dealer pursuant to a sale). The act makes a conforming change 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 has not been transferred after one year. Under the act, this also applies to police departments to which weapons are delivered or surrendered.

Return of Firearms and Ammunition ( 7)

Under the act, 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 commissioner or department.

Within five business days after receiving the request, the act requires the commissioner or department to review the request. They must make any firearm or ammunition available for retrieval if they confirm that the order expired or was rescinded and that the requestor (1) is not otherwise disqualified from possessing the firearm or ammunition and (2) was legally entitled to possess the firearm or ammunition when it was delivered or surrendered.

Violations ( 7, 15 & 16)

By law, 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 act 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 — ISSUING, REVOKING, AND REINSTATING GUN AND AMMUNITION CREDENTIALS

The act 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 act, 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 DESPP verifies the expiration.

17 — PROTOCOL FOR GUN AND AMMUNITION TRANSFER, DELIVERY, OR SURRENDER

Existing 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 act requires the commissioner to update the protocol to apply its provisions.

BACKGROUND

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 U. S. C. 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. It uses a 24-hour, toll-free voice recognition system that marshals can access by cell phone. 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.

OLR Tracking: MK; JR; PF; bs