Revision: Jan. 21, 2010, midnight
HB 527 – AS INTRODUCED
2005 SESSION
05/10
HOUSE BILL 527
AN ACT relative to protective orders and possession of firearms.
SPONSORS: Rep. Kennedy, Merr 4
COMMITTEE: Criminal Justice and Public Safety
This bill:
I. Prohibits the court in domestic violence cases from confiscating the defendant’s firearms and other deadly weapons without clear and convincing evidence that failure to do so places the plaintiff in immediate physical danger.
II. Requires a finding of abuse based on clear and convincing evidence before granting relief under RSA 173-B:5.
III. Provides that a temporary hearing on a domestic violence petition shall not serve as the final hearing.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
05-0779
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Five
AN ACT relative to protective orders and possession of firearms.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Protection from Domestic Violence; Temporary Relief; Ex Parte Hearing Shall Not Constitute Final Hearing; Reference to Confiscation of Firearms Deleted. Amend the introductory paragraph of RSA 173-B:4, I to read as follows:
I. Upon a showing of an immediate and present danger of abuse, the court may enter temporary orders to protect the plaintiff with or without actual notice to defendant. The court may issue such temporary orders by telephone or facsimile. Such telephonically issued orders shall be made by a district or superior court judge to a law enforcement officer, shall be valid in any jurisdiction in the state, and shall be effective until the close of the next regular court business day. Such orders shall be returnable to the district court where the plaintiff resides or to which the plaintiff has fled, unless otherwise ordered by the issuing justice. If non-telephonic temporary orders are made ex parte, the party against whom such relief is issued may file a written request with the clerk of the court and request a hearing on such orders. Such hearing shall be held no less than 3 business days and no more than 5 business days after the request is received by the clerk. Such hearings [may] shall not constitute the final hearing described in RSA 173-B:3, VII. [Such temporary relief may direct the defendant to relinquish to a peace officer any and all firearms and ammunition in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant for the duration of the protective order. Other] Temporary relief may include:
2 Temporary Hearing; Clear and Convincing Evidence Required Prior to Confiscation of Weapons. Amend RSA 173-B:4, I(a)(9) to read as follows:
(9) Directing the defendant to relinquish to the peace officer[, in addition to the relief specified in RSA 173-B:4, I,] any and all deadly weapons, including all firearms and ammunition, specified in the protective order that are in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant, for the duration of the protective order, but only after allowing the defendant to exercise his or her right to a hearing and upon a finding by clear and convincing evidence that failure to relinquish the weapons places the plaintiff in immediate physical danger.
3 Temporary Relief; Confiscation for Duration of Order. Amend RSA 173-B:4, II to read as follows:
II. The defendant may be prohibited from purchasing, receiving, or possessing any deadly weapons and any and all firearms and ammunition for the duration of the order upon a finding by clear and convincing evidence that failure to do so places the plaintiff in immediate physical danger. The court may subsequently issue a search warrant authorizing the peace officer to seize any deadly weapons specified in the protective order and any and all firearms and ammunition, if there is probable cause to believe such firearms and ammunition and specified deadly weapons are kept on the premises or curtilage of the defendant and if the court has reason to believe that all such firearms and ammunition and specified deadly weapons have not been relinquished by the defendant.
4 Relief; Clear and Convincing Evidence Required for Finding of Abuse and Prior to Confiscation of Firearms. Amend the introductory paragraph of RSA 173-B:5, I to read as follows:
I. A finding of abuse shall mean the defendant represents a credible threat to the safety of the plaintiff. Upon a showing of abuse of the plaintiff by [a preponderance of the evidence] clear and convincing evidence, the court shall grant such relief as is necessary to bring about a cessation of abuse. Such relief shall direct the defendant to relinquish to the peace officer any and all firearms and ammunition in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant for the duration of the protective order upon a finding by clear and convincing evidence that failure to do so places the plaintiff in immediate physical danger. Other relief may include:
5 Relief; Clear and Convincing Evidence Required Prior to Confiscation of Weapons. Amend RSA 173-B:5, I(a)(6) to read as follows:
(6) Directing the defendant to relinquish to the peace officer, in addition to the relief specified in RSA 173-B:5, I, any and all deadly weapons specified in the protective order that are in the control, ownership, or possession of the defendant, or any other person on behalf of the defendant but only upon a finding by clear and convincing evidence that failure to do so places the plaintiff in immediate physical danger.
6 Relief; Clear and Convincing Evidence Required Prior to Possession of Firearms or Other Deadly Weapons For Duration of Order . Amend RSA 173-B:5, II to read as follows:
II. The defendant shall be prohibited from purchasing, receiving, or possessing any deadly weapons and any and all firearms and ammunition for the duration of the order but only upon a finding by clear and convincing evidence that failure to do so places the plaintiff in immediate physical danger. The court may subsequently issue a search warrant authorizing a peace officer to seize any deadly weapons specified in the protective order and any and all firearms and ammunition, if there is probable cause to believe such firearms and ammunition and specified deadly weapons are kept on the premises or curtilage of the defendant but only upon a finding by clear and convincing evidence that failure to do so places the plaintiff in immediate physical danger.
7 Relief; Time Period for Return of Confiscated Firearms and Deadly Weapons. Amend the introductory paragraph of RSA 173-B:5, X(a) to read as follows:
(a) Within 15 days prior to the expiration of the protective orders, the defendant may request, by motion to the court, the return of any and all firearms and ammunition and specified deadly weapons held by the law enforcement agency while the protective order was in effect. Upon receipt of such a motion, the court shall schedule a hearing no later than [15] 5 days after the expiration of the order. The court shall provide written notice to the plaintiff who shall have the right to appear and be heard, and to the law enforcement agency which has control of the firearms, ammunition, and specified deadly weapons. The scope of the hearing shall be limited to:
8 Relief; Time Period for Return of Confiscated Firearms and Deadly Weapons. Amend RSA 173-B:5, X(b) to read as follows:
(b) If the court finds that the defendant is not subject to any state or federal law or court order precluding the ownership or possession of firearms, or if the court denies the plaintiff’s request to extend the protective order, the court shall issue a written order directing the law enforcement agency to return the requested firearms, ammunition, or deadly weapon to the defendant within 3 business days of the order.
9 Effective Date. This act shall take effect January 1, 2006.