HOUSE BILL 193
55th legislature - STATE OF NEW MEXICO - first session, 2021
INTRODUCED BY
Daymon Ely and Joy Garratt
AN ACT
RELATING TO EXTREME RISK FIREARM PROTECTION ORDERS; ALLOWING CERTAIN LAW ENFORCEMENT OFFICERS TO CONSTITUTE A REPORTING PARTY PURSUANT TO THE EXTREME RISK FIREARM PROTECTION ORDER ACT; REQUIRING LAW ENFORCEMENT TO TAKE POSSESSION OF RELINQUISHED FIREARMS UNDER CERTAIN CIRCUMSTANCES; CHANGING REPORTING REQUIREMENTS; PROHIBITING USE IN CRIMINAL PROCEEDINGS OF CERTAIN EVIDENCE ESTABLISHING OWNERSHIP OR POSSESSION OF FIREARMS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 40-17-2 NMSA 1978 (being Laws 2020, Chapter 5, Section 2) is amended to read:
"40-17-2. DEFINITIONS.--As used in the Extreme Risk Firearm Protection Order Act:
A. "court" means the district court in the county in which the respondent resides;
B. "extreme risk firearm protection order" means either a temporary extreme risk firearm protection order or a one-year extreme risk firearm protection order granted pursuant to the Extreme Risk Firearm Protection Order Act;
C. "firearm" means any weapon that is designed to expel a projectile by an explosion or the frame or receiver of any such weapon;
D. "law enforcement agency" means the police department of any city or town, the sheriff's office of any county and the New Mexico state police [and a district attorney's office in the state and the office of the attorney general];
E. "law enforcement officer" means a public official or public officer vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of committing a crime, whether that duty extends to all crimes or is limited to specific crimes [and includes an attorney employed by a district attorney or the attorney general];
F. "one-year extreme risk firearm protection order" means an extreme risk firearm protection order granted for up to one year following a hearing pursuant to the provisions of Section [7 of the Extreme Risk Firearm Protection Order Act] 40-17-7 NMSA 1978;
G. "petitioner" means a law enforcement officer who files an extreme risk firearm protection order petition;
H. "reporting party" means a person who requests that a law enforcement officer file a petition for an extreme risk firearm protection order and includes a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, co-parent of a child, child, person with whom a respondent has or had a continuing personal relationship, employer [or], public or private school administrator or a law enforcement officer, absent receipt of credible information from a reporting party pursuant to Subsection D of Section 40-17-5 NMSA 1978, who personally has probable cause to believe that a respondent poses a significant danger of causing imminent personal injury to self or others by the respondent having custody or control of a firearm that the respondent purchased, possessed or received;
I. "respondent" means the person identified in or subject to an extreme risk firearm protection order petition; and
J. "temporary extreme risk firearm protection order" means an extreme risk firearm protection order issued prior to a hearing pursuant to the provisions of Section [6 of the Extreme Risk Firearm Protection Order Act] 40-17-6 NMSA 1978."
SECTION 2. Section 40-17-10 NMSA 1978 (being Laws 2020, Chapter 5, Section 10) is amended to read:
"40-17-10. RELINQUISHMENT OF FIREARMS.--
A. A respondent who receives a temporary or one-year extreme risk firearm protection order shall relinquish all firearms in the respondent's possession, custody or control or subject to the respondent's possession, custody or control in a safe manner to a law enforcement officer, a law enforcement agency or a federal firearms licensee within forty-eight hours of service of the order or sooner at the discretion of the court.
B. A law enforcement officer or law enforcement agency shall take possession of all firearms subject to the extreme risk firearm protection order that are relinquished by the respondent or are in plain sight or are discovered pursuant to a lawful search.
[B.] C. A law enforcement officer, law enforcement agency or federal firearms licensee that takes temporary possession of a firearm pursuant to this section shall:
(1) prepare a receipt identifying all firearms that have been relinquished or taken;
(2) provide a copy of the receipt to the respondent;
(3) provide a copy of the receipt to the petitioner within seventy-two hours of taking possession of the firearms;
(4) file the original receipt with the court that issued the temporary or one-year extreme risk firearm protection order within seventy-two hours of taking possession of the firearms; and
(5) ensure that the law enforcement agency retains a copy of the receipt."
SECTION 3. Section 40-17-12 NMSA 1978 (being Laws 2020, Chapter 5, Section 12) is amended to read:
"40-17-12. EXTREME RISK FIREARM PROTECTION ORDER--REPORTING OF ORDERS--AVAILABILITY OF DATA.--
[A. The clerk of the court shall provide a copy of a one-year extreme risk firearm protection order or temporary extreme risk firearm protection order issued pursuant to the Extreme Risk Firearm Protection Order Act to any law enforcement agency designated to provide information to the national instant criminal background check system.]
A. No later than one business day after a court issues, extends, dissolves or terminates a one-year extreme risk firearm protection order, 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 pursuant to Section 34-9-19 NMSA 1978.
B. The clerk of the court shall forward a copy of any order issued, [renewed] extended, dissolved or terminated pursuant to the Extreme Risk Firearm Protection Order Act to the petitioner and to the [law enforcement agency specified in Subsection A of this section] federal bureau of investigation's national instant criminal background check system.
[C. Upon receipt of a copy of a one-year extreme risk firearm protection order or temporary extreme risk firearm protection order, the law enforcement agency specified in Subsection A of this section shall enter the order into:
(1) the national instant criminal background check system;
(2) all federal or state computer-based systems and databases used by law enforcement or others to identify prohibited purchasers of firearms; and
(3) all computer-based criminal intelligence information systems and databases available in this state used by law enforcement agencies.
D.] C. An extreme risk firearm protection order shall remain in each state system for the period stated in the order. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The extreme risk firearm protection order shall be fully enforceable in any county, city or town in the state.
[E. Upon the expiration of or upon receiving notice of the termination of an extreme risk firearm protection order issued pursuant to the Extreme Risk Firearm Protection Order Act, the law enforcement agency specified in Subsection A of this section shall promptly remove the order from any state computer-based system into which it was entered pursuant to Subsection C of this section and shall notify the national instant criminal background check system and all federal computer-based systems and databases used by law enforcement or others to identify prohibited purchasers of firearms.
F. Following the expiration or termination of an order issued pursuant to the Extreme Risk Firearm Protection Order Act and upon written request, the law enforcement agency specified in Subsection A of this section shall provide a sworn affidavit to the respondent affirming that the information contained within the order has been removed from all state databases and systems identified in Subsection C of this section and any other state databases into which information about the order was entered and that the law enforcement agency has notified the national instant criminal background check system and all federal computer-based systems and databases used by law enforcement or others to identify prohibited purchasers of firearms. The affidavit shall be provided to the respondent within five days of the receipt of the request.
G.] D. If any extreme risk firearm protection order is terminated before its expiration date, the clerk of the court shall forward a copy of the termination order to the office of the attorney general and the petitioner.
[H.] E. Aggregate statistical data indicating the number of extreme risk firearm protection orders issued, renewed, denied or terminated shall be maintained by the issuing court and the administrative office of the courts and shall be available to the public upon request."
SECTION 4. [NEW MATERIAL] PROHIBITING USE OF EVIDENCE IN CRIMINAL PROCEEDINGS.--Evidence establishing ownership or possession of a firearm presented in a hearing pursuant to the Extreme Risk Firearm Protection Order Act shall not be admissible as evidence in any criminal proceeding.
SECTION 5. [NEW MATERIAL] PROHIBITION ON OBTAINING NEW FIREARMS WHILE UNDER ORDER.--No petitioner subject to an extreme risk firearm protection order may purchase, trade for or otherwise obtain a firearm until the expiration of the order.
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