SENATE BILL 328

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Joseph Cervantes and Deborah A. Armstrong and

 Antoinette Sedillo Lopez

AN ACT

RELATING TO DOMESTIC VIOLENCE; PROHIBITING A PERSON SUBJECT TO CERTAIN ORDERS OF PROTECTION FROM POSSESSING OR PURCHASING FIREARMS; PROVIDING PROCEDURES FOR DELIVERY OF FIREARMS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 40-13-2 NMSA 1978 (being Laws 1987, Chapter 286, Section 2, as amended) is amended to read:

     "40-13-2. DEFINITIONS.--As used in the Family Violence Protection Act:

          A. "continuing personal relationship" means a dating or intimate relationship;

          B. "co-parents" means persons who have a child in common, regardless of whether they have been married or have lived together at any time;

          C. "court" means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;

          D. "domestic abuse":

                (1) means an incident of stalking or sexual assault whether committed by a household member or not;

                (2) means an incident by a household member against another household member consisting of or resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) bodily injury or assault;

                     (d) a threat causing imminent fear of bodily injury by any household member;

                     (e) criminal trespass;

                     (f) criminal damage to property;

                     (g) repeatedly driving by a residence or work place;

                     (h) telephone harassment;

                     (i) harassment;

                     (j) strangulation;

                     (k) suffocation; or

                     (l) harm or threatened harm to children as set forth in this paragraph; and

                (3) does not mean the use of force in self-defense or the defense of another;

          E. "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by action of an explosion and the frame or receiver of any such weapon;

          [E.] F. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former [parent in-law] parent-in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;

          [F.] G. "mutual order of protection" means an order of protection that includes provisions that protect both parties;

          [G.] H. "order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

          [H.] I. "protected party" means a person protected by an order of protection;

          [I.] J. "restrained party" means a person who is restrained by an order of protection;

          [J.] K. "strangulation" has the same meaning as set forth in Section 30-3-11 NMSA 1978; and

          [K.] L. "suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978."

     SECTION 2. Section 40-13-5 NMSA 1978 (being Laws 1987, Chapter 286, Section 5, as amended) is amended to read:

     "40-13-5. ORDER OF PROTECTION--CONTENTS--REMEDIES--TITLE TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.--

          A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, the court shall enter an order of protection ordering the restrained party:

                (1) to refrain from abusing the protected party or any other household member; and

                (2) if the order is issued pursuant to this section and if the court determines that the restrained party presents a credible threat to the physical safety of the household member after the restrained party has received notice and had an opportunity to be heard or by stipulation of the parties, to:

                     (a) deliver any firearm in the restrained party's possession, care, custody or control while the order of protection is in effect; and

                     (b) refrain from purchasing, receiving, or possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.

          B. If the court finds that it is reasonably necessary for the restrained party to retain, purchase or possess a firearm as a condition of the restrained party's employment, the court may enter an order of protection that includes only the provision in Paragraph (1) of Subsection A of this section and may impose any restrictions reasonably calculated to protect the protected party.

          C. In an order of protection entered pursuant to Subsection A of this section, the court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:

                (1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;

                (2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;

                (3) order that the restrained party shall not initiate contact with the protected party;

                (4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party's property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;

                (5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;

                (6) order the restrained party to participate in, at the restrained party's expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and

                (7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.

          [B.] D. The order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both.

          [C.] E. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action.

          [D.] F. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

          [E. No] G. An order issued under the Family Violence Protection Act shall not affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party's property or the joint or community property of the parties.

          [F.] H. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.

          [G.] I. An order of protection shall not be issued unless a petition or a counter petition has been filed."

     SECTION 3. A new section of the Family Violence Protection Act is enacted to read:

     "[NEW MATERIAL] DELIVERY OF FIREARMS--PENALTY.--

          A. A delivery of firearms ordered pursuant to Section 40-13-5 NMSA 1978 shall occur by the restrained party delivering any firearm in the restrained party's immediate possession, care, custody or control to a third party who is not prohibited from possessing a firearm by state or federal law on or before the business day following the day on which the restrained party is served with the order of protection. To deliver the firearm, the restrained party may:

                (1) sell or deliver the firearm to a federally licensed firearms dealer;

                (2) arrange for the storage of the firearm by a law enforcement agency; or

                (3) sell or otherwise deliver the firearm in accordance with federal and state law to a party who may legally possess the firearm and who does not reside in the same household as the restrained party.

          B. An individual or entity who receives a firearm pursuant to Subsection A of this section shall issue a receipt that indicates the date and time of the delivery to the person delivering the firearm at the time of delivery. A restrained party shall file a copy of a receipt issued pursuant to this subsection with the court that issued the order of protection within three business days of the day the receipt was issued to the restrained party. If the restrained party willfully fails to file the receipt, that failure shall constitute a violation of the order of protection.

          C. The provisions of Subsection A of this section shall not be interpreted to require a:

                (1) federally licensed firearms dealer to purchase or accept possession of a firearm from a restrained party; or

                (2) law enforcement agency to store a firearm or ammunition for a restrained party; provided that, if the agency elects to store a firearm for a restrained party, the agency may charge a fee for storing the firearm.

          D. A person who is prohibited by state or federal law from possessing a firearm and who, in good faith, delivers a firearm in accordance with this section shall not be arrested, charged, prosecuted or otherwise penalized for possessing a firearm if the evidence for the alleged violation of federal or state law for possessing the firearm was gained as a result of the person's delivery of the firearm in accordance with this section."

- 9 -