SENATE BILL 5
54th legislature - STATE OF NEW MEXICO - second session, 2020
INTRODUCED BY
Joseph Cervantes and Daymon Ely and Joy Garratt
AN ACT
RELATING TO DOMESTIC AFFAIRS; CREATING THE EXTREME RISK FIREARM PROTECTION ORDER ACT; PROVIDING FOR THE ISSUANCE OF COURT ORDERS TO REQUIRE THE RELINQUISHMENT OF FIREARMS FOR SOME PERIOD UNDER CERTAIN CIRCUMSTANCES; PROVIDING PENALTIES; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 14 of this act may be cited as the "Extreme Risk Firearm Protection Order Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Extreme Risk Firearm Protection Order Act:
A. "extreme risk firearm protection order" means an order issued by a court pursuant to the Extreme Risk Firearm Protection Order Act;
B. "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun;
C. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, a person who has a child in common with another person, regardless of whether they have been married or have lived together at any time, or a person with whom the petitioner has been in a dating or intimate relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;
D. "law enforcement officer" means a public official or public officer vested by law with a duty to maintain public order or to make arrests for crime, whether that duty extends to all crimes or is limited to specific crimes;
E. "petitioner" means a household member as defined in Subsection C of this section or law enforcement officer as defined in Subsection D of this section;
F. "respondent" means the person identified in an extreme risk firearm protection order petition, or subject to an extreme risk firearm protection order, issued pursuant to the Extreme Risk Firearm Protection Order Act;
G. "safety device" means a device that, when installed on a firearm, is designed to prevent the firearm from being operated without first deactivating the device; and
H. "secure gun storage" means a safe, gun safe, gun case, lock box or other device that is designed to, or can be used to, store a firearm and that is designed to be unlocked only by means of a key, a combination or other similar means.
SECTION 3. [NEW MATERIAL] PETITION FOR EXTREME RISK FIREARM PROTECTION ORDER--CONTENTS--STANDARD FORMS.--
A. A petitioner may seek an extreme risk firearm protection order by filing a petition in the district court of the judicial district where either the petitioner or respondent resides or is sheltered. Law enforcement agencies and the clerk of the court shall make available upon request standard simplified petition forms with instructions for completion approved by the administrative office of the courts.
B. A petition for an extreme risk firearm protection order shall be made under oath and shall be accompanied by a sworn affidavit setting out specific facts demonstrating the grounds for the order.
C. A petition for an extreme risk firearm protection order shall contain:
(1) the name and address of the petitioner; provided that upon the request of the petitioner, the address shall be redacted from the petition after being disclosed to the court;
(2) if known, the respondent's name and address;
(3) if known or suspected, a description of the number, types and locations of firearms or ammunition that the petitioner believes the respondent has custody of, controls, owns or possesses;
(4) a description of the relationship between the parties;
(5) if known, disclosure of whether there has been issued an extreme risk firearm protection order pursuant to the Extreme Risk Firearm Protection Order Act, an order of protection pursuant to the Family Violence Protection Act, a civil restraining order or a similar order under the laws of another state between the parties or against the respondent; and
(6) if known, disclosure of whether there is a pending lawsuit, complaint, petition or other action between the parties under the laws of this state.
D. The court shall not delay granting relief because of the existence of an order or legal action between the parties or the requirement to verify the terms of an existing order.
E. Health care information disclosed is confidential unless released:
(1) with the prior written consent of the person;
(2) pursuant to a court order;
(3) when necessary to provide treatment, payment and operations in accordance with the federal Health Insurance Portability and Accountability Act of 1996; or
(4) to law enforcement, when the information is necessary for law enforcement to fulfill the requirements of the Extreme Risk Firearm Protection Order Act.
F. Aggregate statistical data indicating the number of extreme risk firearm protection orders issued, renewed, denied, dissolved or terminated shall be kept by the district courts or court administrator and shall be available to the public upon request.
G. Remedies granted pursuant to the Extreme Risk Firearm Protection Order Act are in addition to and shall not limit other civil or criminal remedies available to the parties.
SECTION 4. [NEW MATERIAL] FORBEARANCE OF COSTS ASSOCIATED WITH EXTREME RISK FIREARM PROTECTION ORDERS.--A petitioner for an extreme risk firearm protection order shall not be required to bear the cost of:
A. the filing, issuance or service of a petition for an extreme risk firearm protection order;
B. the filing, issuance or service of a warrant;
C. the filing, issuance or service of a witness subpoena;
D. service of an extreme risk firearm protection order issued pursuant to the Extreme Risk Firearm Protection Order Act;
E. obtaining law enforcement reports or photographs or copies of photographs relating to the allegations in the petition; or
F. any cost associated with the confiscation, storage or destruction of a firearm confiscated pursuant to the Extreme Risk Firearm Protection Order Act.
SECTION 5. [NEW MATERIAL] EMERGENCY EXTREME RISK FIREARM PROTECTION ORDERS.--
A. A district court shall issue an emergency extreme risk firearm protection order when a law enforcement officer states in writing to the court, in person or through reliable electronic means, the need for an emergency extreme risk firearm protection order if the court finds that there is probable cause to believe that the respondent poses an immediate danger of causing personal injury to self or others by having custody, control or possession of a firearm or ammunition. The statement shall include the location and telephone number of the respondent, if known.
B. A law enforcement officer who receives a written emergency extreme risk firearm protection order from the court, whether in person or through reliable electronic means, shall:
(1) if possible, immediately serve a signed copy of the order on the respondent and complete the appropriate affidavit of service; and
(2) after service, provide the original proof of service to the court by the close of business on the next business day.
C. A district judge shall be available as determined by each judicial district to hear petitions for an emergency extreme risk firearm protection order.
D. An emergency extreme risk firearm protection order shall expire fifteen days after issuance. The court shall conduct a hearing within fifteen days of the issuance of an emergency extreme risk firearm protection order to determine if a one-year extreme risk firearm protection order shall be issued pursuant to Section 7 of the Extreme Risk Firearm Protection Order Act. A respondent may seek an extension of the hearing date at any time before the hearing; provided that the emergency extreme risk firearm protection order shall automatically be extended for any extension of time granted the respondent.
E. An emergency extreme risk firearm protection order issued by a court pursuant to this section shall include:
(1) a statement that the respondent shall not have custody or control of, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while the order is in effect;
(2) a description of the requirements for relinquishment of firearms and ammunition under Section 10 of the Extreme Risk Firearm Protection Order Act;
(3) a statement of the grounds asserted for the order;
(4) notice of the hearing required under the Extreme Risk Firearm Protection Order Act to determine whether the court will issue a one-year extreme risk firearm protection order, including the address of the court and the date and time when the hearing is scheduled;
(5) a statement that at the hearing the court may extend the order for one year;
(6) a statement that the respondent may seek the advice of an attorney as to matters connected with the order and that the attorney should be consulted promptly to properly assist the respondent; and
(7) a statement that any violation of the order is a misdemeanor punishable pursuant to Section 31-19-1 NMSA 1978.
F. An emergency extreme risk firearm protection order shall be personally served on the respondent by a law enforcement officer. If a law enforcement officer cannot personally serve the order, then a law enforcement officer may serve the order in any manner directed by the court issuing the order.
SECTION 6. [NEW MATERIAL] EX PARTE TEMPORARY EXTREME RISK FIREARM PROTECTION ORDERS.--
A. A petitioner requesting an ex parte temporary extreme risk firearm protection order shall, in the petition for a one-year extreme risk firearm protection order, include a sworn statement with detailed allegations based on personal knowledge that the respondent poses an immediate danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing or receiving a firearm or ammunition.
B. A district court shall immediately issue an ex parte temporary extreme risk firearm protection order if the court finds that there is probable cause to believe that the respondent poses an immediate danger of causing personal injury to self or others by having custody, control or possession of a firearm or ammunition.
C. If an ex parte temporary extreme risk firearm protection order is granted, the court shall:
(1) cause the ex parte temporary extreme risk firearm protection order along with notice of a hearing to be served immediately on the respondent;
(2) cause a notice of hearing for a one-year extreme risk firearm protection order to be served immediately on the respondent; and
(3) conduct a hearing within fifteen days of the issuance of the ex parte temporary extreme risk firearm protection order to determine if a one-year extreme risk firearm protection order shall be issued pursuant to Section 7 of the Extreme Risk Firearm Protection Order Act. A respondent may seek an extension of the hearing date at any time before the hearing; provided that the ex parte temporary extreme risk firearm protection order shall automatically be extended for any extension of time granted the respondent.
D. If an ex parte temporary extreme risk firearm protection order is not granted, the court shall serve notice to appear upon the parties and hold a hearing on the petition for an extreme risk firearm protection order pursuant to Section 7 of the Extreme Risk Firearm Protection Order Act within ten days of the denial of the ex parte temporary extreme risk firearm protection order; provided that if notice of hearing cannot be served within seventy-two hours of issuance, the emergency extreme risk firearm protection order will be automatically extended for seventy-two hours. A petitioner may seek an extension of time before the hearing.
E. The court shall consider petitions for ex parte temporary extreme risk firearm protection orders on the same day the petition is submitted to the court, unless the petition is filed too late in the day to permit effective review, in which case the order shall be issued or denied before the end of the next business day.
F. An ex parte temporary extreme risk firearm protection order issued by the court shall include:
(1) a statement that the respondent shall not have custody or control of, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while the order is in effect;
(2) a description of the requirements for relinquishment of firearms and ammunition under the Extreme Risk Firearm Protection Order Act;
(3) a statement of the grounds asserted for the order;
(4) notice of the hearing required under the Extreme Risk Firearm Protection Order Act to determine whether the court will issue a one-year extreme risk firearm protection order, including the address of the court and the date and time when the hearing is scheduled;
(5) a statement that at the hearing the court may extend the order for one year;
(6) a statement that the respondent may seek the advice of an attorney as to matters connected with the order and the attorney should be consulted promptly to properly assist the respondent; and
(7) a statement that any violation of the order is a misdemeanor punishable pursuant to Section 31-19-1 NMSA 1978.
G. An ex parte temporary extreme risk firearm protection order shall be personally served on the respondent by a law enforcement officer. If a law enforcement officer cannot personally serve the order, then a law enforcement officer may serve the order in any manner directed by the court issuing the order.
SECTION 7. [NEW MATERIAL] ONE-YEAR EXTREME RISK FIREARM PROTECTION ORDERS.--
A. A petitioner requesting a one-year extreme risk firearm protection order shall include in the petition detailed allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to self or others by having in the respondent's custody or control, purchasing, possessing or receiving a firearm or ammunition.
B. Before issuing a one-year extreme risk firearm protection order, the court shall ensure that reasonable efforts have been made to conduct a search through existing databases available to the court for:
(1) criminal history records related to the respondent; and
(2) civil orders of protection or restraining orders related to the respondent.
C. In determining whether to issue a one-year extreme risk firearm protection order under this section, the court shall consider all relevant information presented by the petitioner and shall also consider other relevant information, including information relating to any:
(1) act or threat of violence against one's self or another, whether or not involving a firearm;
(2) unlawful, reckless or negligent use, display, storage, possession or brandishing of a firearm;
(3) violation of an order of protection issued pursuant to the Family Violence Protection Act, a civil harassment restraining order or a similar law in another state;
(4) misuse of controlled substances or alcohol or any arrest for a criminal offense that involves controlled substances or alcohol; or
(5) the recent acquisition of a firearm, ammunition or other deadly weapon.
D. If the court finds by a preponderance of the evidence at the hearing that the respondent poses a significant danger of personal injury to self or others by having custody or control, purchasing, possessing or receiving a firearm or ammunition, the court shall issue a one-year extreme risk firearm protection order.
E. The court shall dissolve any emergency or ex parte temporary extreme risk firearm protection order in effect against the respondent when the court grants or denies a one-year extreme risk firearm protection order.
F. A one-year extreme risk firearm protection order shall include:
(1) a statement that the respondent shall not have custody or control of, purchase, possess or receive or attempt to purchase or receive a firearm or ammunition while the order is in effect;
(2) a description of the requirements for relinquishment of firearms and ammunition under the Extreme Risk Firearm Protection Order Act;
(3) a statement of the grounds for the order;
(4) the date and time the order expires;
(5) the address of the court that issued the order;
(6) a statement that the respondent shall have the right to request one hearing to terminate the order at any time during its effective period;
(7) a statement that the respondent may seek the advice of an attorney as to any matter connected with the order; and
(8) a statement that violation of any provision of the order is a misdemeanor punishable pursuant to Section 31-19-1 NMSA 1978.
G. If the respondent fails to appear at the hearing, a one-year extreme risk firearm protection order issued pursuant to this section shall be personally served on the respondent by a law enforcement officer. If a law enforcement officer cannot personally serve the order, then a law enforcement officer may serve the order in any manner directed by the court issuing the order.
SECTION 8. [NEW MATERIAL] TERMINATION OF ONE-YEAR EXTREME RISK FIREARM PROTECTION ORDERS.--
A. A respondent to a one-year extreme risk firearm protection order issued under Section 7 of the Extreme Risk Firearm Protection Order Act may submit one written request for a hearing to terminate the order at any time during the effective period of the order.
B. Upon receipt of the request for termination, the court shall set a date for a hearing. Notice of the request shall be served on the petitioner. The hearing shall occur no sooner than fourteen days and no later than thirty days from the date of service of the request upon the petitioner.
C. The respondent seeking termination of the one-year extreme risk firearm protection order shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a significant danger of causing personal injury to self or others by having custody or control of, purchasing, possessing or receiving a firearm or ammunition.
D. If the court grants the respondent's request, the court shall terminate the order.
SECTION 9. [NEW MATERIAL] EXTENSION OF ONE-YEAR EXTREME RISK FIREARM PROTECTION ORDERS.--
A. A petitioner may request extension of a one-year extreme risk firearm protection order at any time within the three months before the expiration of the order.
B. Upon receipt of the request for extension, the court shall set a date for a hearing. Notice of the request shall be served on the respondent. If a petition to extend an order is filed within fourteen days prior to the expiration of a one-year extreme risk firearm protection order, the court shall set a hearing to occur as soon as is practicable. If the court is unable to set a hearing on the petition to extend the extreme risk firearm protection order before the expiration of the one-year order, the court may extend the one-year order for thirty days or until the date of the hearing, whichever occurs first.
C. A court may, after notice and hearing, extend a one-year extreme risk firearm protection order if the court finds by a preponderance of the evidence that the respondent continues to pose a significant danger of causing personal injury to self or others by having in custody or control, purchasing, possessing or receiving a firearm or ammunition.
D. In determining whether to extend a one-year extreme risk firearm protection order issued under this section, the court shall consider all relevant information presented by the petitioner and may also consider other relevant information, including information related to the facts identified in Subsection C of Section 7 of the Extreme Risk Firearm Protection Order Act.
E. A one-year extreme risk firearm protection order extended pursuant to this section shall expire one year from the date of the order granting the extension, subject to termination by further order of the court at a hearing held pursuant to Subsection B of this section.
SECTION 10. [NEW MATERIAL] RELINQUISHMENT OF FIREARMS AND AMMUNITION.--
A. Upon issuance of any extreme risk firearm protection order and a finding of probable cause that the respondent has custody or control of, owns or possesses a firearm or ammunition, the court shall issue, and there shall be executed, a search warrant describing the firearm or ammunition and authorizing a search of the location where the firearm or ammunition is reasonably believed to be and authorizing the seizure of any firearm or ammunition discovered pursuant to the search.
B. A law enforcement officer serving any extreme risk firearm protection order shall request that all firearms and ammunition in the respondent's custody or control or that the respondent possesses or owns be immediately relinquished. The law enforcement officer shall take possession of all firearms and ammunition that are relinquished, in plain sight or discovered pursuant to a lawful search.
C. A law enforcement officer taking possession of firearms or ammunition pursuant to an extreme risk firearm protection order shall give to the respondent a copy of the inventory of firearms and ammunition taken. Within seventy-two hours of serving the respondent with the order, the law enforcement officer serving the order shall file the original inventory with the court that issued the extreme risk firearm protection order and shall ensure that the law enforcement agency retains a copy of the inventory.
D. When a court receives information that gives it probable cause to believe a respondent has custody or control of, owns or possesses firearms or ammunition that the respondent failed to relinquish pursuant to this section, or who has received or purchased a firearm or ammunition while subject to an extreme risk firearm protection order, shall issue, and there shall be executed, a search warrant describing the firearm or ammunition and authorizing a search of the location where the firearm or ammunition is reasonably believed to be and authorizing the seizure of any firearm or ammunition discovered pursuant to the search.
E. A law enforcement agency may not charge the respondent any fee for storing a firearm or ammunition relinquished pursuant to this section for the duration of the extreme risk firearm protection order and any additional periods necessary to comply with the requirements of the Extreme Risk Firearm Protection Order Act or as directed by the court.
F. Evidence establishing ownership or possession of a firearm relinquished or seized pursuant to this section shall not be admissible as evidence in any unrelated criminal proceeding.
SECTION 11. [NEW MATERIAL] RETURN AND DISPOSAL OF FIREARMS AND AMMUNITION.--
A. Thirty days prior to the expiration of a one-year extreme risk firearm protection order, the law enforcement agency holding a firearm or ammunition relinquished pursuant to the order shall notify the petitioner at the last address provided to the court of the date that the order will expire. The notice shall advise the petitioner of the procedures for seeking an extension of the order pursuant to Section 9 of the Extreme Risk Firearm Protection Order Act.
B. The law enforcement agency shall make a
firearm and ammunition available within thirty days of receipt of a request from a respondent who is then currently eligible to own and possess a firearm.
C. A respondent who has relinquished a firearm or ammunition to a law enforcement agency pursuant to the Extreme Risk Firearm Protection Order Act and who does not wish the firearm or ammunition returned or who is no longer eligible to own or possess a firearm or ammunition may sell or transfer the firearm or ammunition to a licensed firearms dealer. The law enforcement agency shall not release the firearm or ammunition to a licensed firearms dealer until:
(1) the licensed firearms dealer has displayed proof that the respondent has transferred the firearm or ammunition to the dealer; and
(2) the law enforcement agency has verified the transfer with the respondent.
D. If a person other than the respondent claims ownership of a firearm or ammunition relinquished pursuant to the Extreme Risk Firearm Protection Order Act and the law enforcement agency determines that the person is the lawful owner of the firearm or ammunition, the firearm or ammunition shall be released to that person.
E. A law enforcement agency holding a firearm or ammunition relinquished pursuant to the Extreme Risk Firearm Protection Order Act may dispose of the firearm or ammunition six months from the date of proper notice to the respondent of the intent to dispose of the firearm or ammunition unless the firearm or ammunition is claimed by the lawful owner. If the firearm or ammunition remains unclaimed after six months from the date of notice, no party may assert ownership and the law enforcement agency may dispose of the firearm or ammunition.
F. For the purposes of this section:
(1) "dispose" means to destroy a firearm or ammunition or to sell or transfer the firearm or ammunition to a licensed firearms dealer; and
(2) "licensed firearms dealer" means a person licensed pursuant to 18 U.S.C. Section 921, et seq.
SECTION 12. [NEW MATERIAL] REPORTING OF EXTREME RISK FIREARM PROTECTION ORDERS.--No later than one business day after a court issues, extends, dissolves or terminates an emergency, ex parte temporary or one-year extreme risk firearm protection order relating to an adult respondent, the administrative office of the courts or other authorized entity shall obtain and electronically transmit information from the court proceedings relating to the respondent's eligibility to receive or possess a firearm or ammunition to the federal bureau of investigation's national instant criminal background check system.
SECTION 13. [NEW MATERIAL] PENALTIES.--
A. A person who files a petition, provides information or otherwise participates in proceedings authorized by the Extreme Risk Firearm Protection Order Act shall be immune from civil or criminal liability if the person acted with reasonable care.
B. A person who has custody or control of, owns, purchases, possesses or receives a firearm or ammunition in violation of an extreme risk firearm protection order is guilty of a misdemeanor punishable pursuant to Section 31-19-1 NMSA 1978 and upon conviction shall be prohibited under state law from having custody or control of, owning, purchasing, possessing or receiving or attempting to purchase or receive a firearm or ammunition for a period of five years from the date of conviction.
SECTION 14. [NEW MATERIAL] SAFE STORAGE OF FIREARMS.--
A. A person who has custody of, controls or possesses a firearm and who resides with a respondent subject to an extreme risk firearm protection order issued under the Extreme Risk Firearm Protection Order Act or the laws of another state shall safely secure the firearm by:
(1) locking the firearm in a secure gun storage or rendering the firearm inoperable by the use of a safety device; or
(2) having the firearm on the person or in close proximity so that the firearm is readily accessible for use by the person and is not readily accessible by the respondent.
B. A person who violates this section is guilty of a misdemeanor.
SECTION 15. Section 29-19-4 NMSA 1978 (being Laws 2003, Chapter 255, Section 4, as amended) is amended to read:
"29-19-4. APPLICANT QUALIFICATIONS.--
A. The department shall issue a concealed handgun license to an applicant who:
(1) is a citizen of the United States;
(2) is a resident of New Mexico or is a member of the armed forces whose permanent duty station is located in New Mexico or is a dependent of such a member;
(3) is twenty-one years of age or older;
(4) is not a fugitive from justice;
(5) has not been convicted of a felony in New Mexico or any other state or pursuant to the laws of the United States or any other jurisdiction;
(6) is not currently under indictment for a felony criminal offense in New Mexico or any other state or pursuant to the laws of the United States or any other jurisdiction;
(7) is not otherwise prohibited by federal law or the law of any other jurisdiction from purchasing or possessing a firearm;
(8) has not been adjudicated mentally incompetent or committed to a mental institution;
(9) is not addicted to alcohol or controlled substances; [and]
(10) has satisfactorily completed a firearms training course approved by the department for the category and the largest caliber of handgun that the applicant wants to be licensed to carry as a concealed handgun; and
(11) is not subject to an extreme risk firearm protection order issued pursuant to the Extreme Risk Firearm Protection Order Act.
B. The department shall deny a concealed handgun license to an applicant who has:
(1) received a conditional discharge, a diversion or a deferment or has been convicted of, pled guilty to or entered a plea of nolo contendere to a misdemeanor offense involving a crime of violence within ten years immediately preceding the application;
(2) been convicted of a misdemeanor offense involving driving while under the influence of intoxicating liquor or drugs within five years immediately preceding the application for a concealed handgun license;
(3) been convicted of a misdemeanor offense involving the possession or abuse of a controlled substance within ten years immediately preceding the application; or
(4) been convicted of a misdemeanor offense involving assault, battery or battery against a household member.
C. Firearms training course instructors who are approved by the department shall not be required to complete a firearms training course pursuant to Paragraph (10) of Subsection A of this section."
SECTION 16. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2020.
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