115th CONGRESS 1st Session |
To provide family members of an individual who they fear is a danger to himself, herself, or others, and law enforcement, with new tools to prevent gun violence.
May 24, 2017
Mrs. Feinstein (for herself, Mrs. Gillibrand, Mr. Markey, and Mr. Blumenthal) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To provide family members of an individual who they fear is a danger to himself, herself, or others, and law enforcement, with new tools to prevent gun violence.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
This Act may be cited as the “Gun Violence Prevention Order Act of 2017”.
In this Act—
(1) the term “family or household member” means, with respect to an individual, any—
(A) individual related by blood, marriage, or adoption to the respondent;
(B) dating partner of the respondent;
(C) individual who has a child in common with the respondent, regardless of whether the individual has—
(i) been married to the respondent; or
(ii) lived together with the respondent at any time;
(D) an individual who resides or has resided with the respondent during the past year;
(E) domestic partner of the respondent;
(F) individual who has a biological or legal parent-child relationship with the respondent, including a stepparent-stepchild and grandparent-grandchild relationship; and
(G) any individual who is acting or has acted as the legal guardian of the respondent;
(2) the term “firearm” has the meaning given the term in section 921 of title 18, United States Code;
(3) the term “gun violence prevention order” means a written order, issued by a State court or signed by a magistrate (or other comparable judicial officer)—
(A) prohibiting a named individual from having under the custody or control of the individual, owning, purchasing, possessing, or receiving any firearms; or
(B) having a firearm removed;
(4) the term “gun violence prevention warrant” means a written order, issued by a State court or signed by a magistrate (or other comparable judicial officer), regarding an individual who is subject to a gun violence prevention order and who is known to own or possess one or more firearms, that directs a law enforcement officer to temporarily remov and retain any firearm in the possession of the individual;
(5) the term “law enforcement officer” means a public servant authorized by State law or by a State government agency to engage in or supervise the prevention, detection, investigation, or prosecution of an offense; and
(6) the term “wellness check” means a visit conducted by a law enforcement officer to the residence of an individual for the purpose of assessing whether the individual poses a danger to the individual or others due to a mental, behavioral, or physical condition.
SEC. 3. National gun violence prevention order and warrant law.
(a) Enactment of gun violence prevention order law.—In order to receive a grant under section 4, on the date that is 3 years after the date of enactment of this Act, each State shall have in effect legislation that—
(1) authorizes a gun violence prevention order and gun violence prevention warrant in accordance with subsection (b); and
(2) requires each law enforcement agency of the State to comply with subsection (c).
(b) Requirements for gun violence prevention orders and warrants.—Legislation required under subsection (a) shall be subject to the following requirements:
(1) APPLICATION FOR GUN VIOLENCE PREVENTION ORDER.—A family or household member of an individual, or a law enforcement officer, may submit an application to a State court, on a form designed by the court, that—
(A) describes the facts and circumstances necessitating that a gun violence prevention order be issued against the named individual;
(B) is signed by the applicant, under oath; and
(C) includes any additional information required by the State court or magistrate (or other comparable judicial officer) to demonstrate that possession of a firearm by the named individual poses a substantial risk or a higher standard of risk of personal injury to the named individual or others.
(2) EXAMINATION OF APPLICANT AND WITNESSES.—A State court or magistrate (or other comparable judicial officer) shall, before issuing a gun violence prevention order—
(A) examine under oath, the individual who applied for the order under paragraph (1) and any witnesses the individual produces; and
(B) (i) require that the individual or any witness submit a signed affidavit, which describes the facts the applicant or witness believes establish the grounds of the application; or
(ii) take an oral statement from the individual or witness under oath.
(3) STANDARD FOR ISSUANCE OF ORDER.—
(A) IN GENERAL.—A State court or magistrate (or other comparable judicial officer) may issue a gun violence prevention order upon a finding that there is a reasonable suspicion that possession of a firearm by the named individual poses a significant risk of personal injury to the named individual or others.
(i) IN GENERAL.—The court shall notify the Department of Justice and comparable State agency of the gun violence prevention order not later than 2 court days after issuing the order. The court shall also notify the Department of Justice and comparable State agency of any order restoring the ability of the individual to own or possess firearms not later than 2 court days after issuing the order to restore the individual’s right to own or possess any type of firearms that may be lawfully owned and possessed. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice and the comparable State agency.
(ii) UPDATE OF DATABASES.—As soon as practicable after receiving a notification under clause (i), the Department of Justice and comparable State agency shall update the background check databases of the Department and agency, respectively, to reflect the prohibitions articulated in the gun violence prevention order.
(4) ISSUANCE OF GUN VIOLENCE PREVENTION WARRANT.—
(A) IN GENERAL.—After issuing a gun violence prevention order, a State court or magistrate (or other comparable judicial officer) shall, upon a finding of probable cause to believe that the named individual subject to the order has a firearm in his custody or control, issue a gun violence prevention warrant ordering the temporary seizure of all firearms specified in the warrant.
(B) REQUIREMENT.—Subject to paragraph (6), a gun violence prevention warrant issued under subparagraph (A) shall require that any firearm described in the warrant be taken from any place, or from any individual in whose possession, the firearm may be.
(5) SERVICE OF GUN VIOLENCE PREVENTION ORDER.—When serving a gun violence prevention order or warrant, a law enforcement officer or process server shall provide the individual with a form to request a hearing in accordance with paragraph (6)(F).
(6) TEMPORARY SEIZURE OF FIREARMS.—
(A) IN GENERAL.—When a law enforcement officer takes property under a gun violence prevention warrant or a gun violence prevention order, the law enforcement officer shall give a receipt for the property taken, specifying the property in detail, to the individual from whom it was taken. In the absence of a person, the law enforcement officer shall leave the receipt in the place where the law enforcement officer found the property, if such information is available.
(B) TEMPORARY CUSTODY OF REMOVED FIREARMS.—All firearms removed pursuant to a gun violence prevention warrant shall be retained by the law enforcement officer or the law enforcement agency in custody, subject to the order of the court that issued the warrant or to any other court in which an offense with respect to the firearm is triable.
(C) LIMITATION ON SEIZURE OF FIREARMS.—If the location to be searched during the execution of a gun violence prevention warrant is jointly occupied by multiple parties and a firearm is located during the execution of the seizure warrant, and it is determined that the firearm is owned by an individual other than the individual named in the gun violence prevention warrant, the firearm may not be removed if—
(i) the firearm is stored in a manner that the individual named in the gun violence prevention warrant does not have access to or control of the firearm; and
(ii) there is no evidence of unlawful possession of the firearm by the owner.
(D) GUN SAFE.—If the location to be searched during the execution of a gun violence prevention warrant is jointly occupied by multiple parties and a gun safe is located, and it is determined that the gun safe is owned by an individual other than the individual named in the gun violence prevention warrant, the contents of the gun safe shall not be searched except in the owner’s presence, or with the owner's consent, or unless a valid search warrant has been obtained.
(E) RETURN OF FIREARM TO RIGHTFUL OWNER.—If any individual who is not a named individual in a gun violence prevention warrant claims title to a firearm removed pursuant to a gun violence prevention warrant, the firearm shall be returned to the lawful owner not later than 30 days after the date on which the title is claimed.
(F) RIGHT TO REQUEST A HEARING.—A named individual may submit 1 written request at any time during the effective period of a gun violence prevention order issued against the individual for a hearing for an order allowing the individual to own, possess, purchase, or receive a firearm.
(7) HEARING ON GUN VIOLENCE PREVENTION ORDER AND GUN VIOLENCE PREVENTION WARRANT.—
(A) IN GENERAL.—Except as provided in subparagraph (E), not later than 30 days after the date on which a gun violence prevention order and, when applicable, a gun violence prevention warrant, is issued, the court that issued the order and, when applicable, the warrant, or another court in that same jurisdiction, shall hold a hearing to determine whether the individual who is the subject of the order may have under the custody or control of the individual, own, purchase, possess, or receive firearms and, when applicable, whether any removed firearms should be returned to the individual named in the warrant.
(B) NOTICE.—The individual named in a gun violence prevention order requested to be renewed under subparagraph (A) shall be given written notice and an opportunity to be heard on the matter.
(i) IN GENERAL.—Except as provided in clause (ii), at any hearing conducted under subparagraph (A), the State or petitioner shall have the burden of establishing probable or reasonable suspicion that the individual poses a significant risk of personal injury to the individual or others by owning or possessing the firearm.
(ii) HIGHER BURDEN OF PROOF.—A State may establish a burden of proof for hearings conducted under subparagraph (A) that is higher than the burden of proof required under clause (i).
(D) REQUIREMENTS UPON FINDING OF SIGNIFICANT RISK OR A HIGHER STANDARD OF RISK.—If the named individual is found at the hearing to pose a substantial risk or a higher standard of risk of personal injury to the named individual or others by owning or possessing a firearm, the following shall apply:
(i) The firearm or firearms removed pursuant to the warrant shall be retained by the law enforcement agency for a period not to exceed 3 years.
(ii) The named individual shall be prohibited from owning or possessing, purchasing or receiving, or attempting to purchase or receive a firearm for a period not to exceed 1 year, a violation of which shall be considered a misdemeanor offense.
(iii) The court shall notify the Department of Justice and comparable State agency of the gun violence prevention order not later than 10 court days after issuing the order. The court shall also notify the Department of Justice and comparable State agency of any order restoring the ability of the individual to own or possess firearms not later than 10 court days after issuing the order to restore the individual's right to own or possess any type of firearms that may be lawfully owned and possessed. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice and the comparable State agency.
(iv) As soon as practicable after receiving a notification under clause (iii), the Department of Justice and comparable State agency shall update the background check databases of the Department and agency, respectively, to reflect—
(I) the prohibitions articulated in the gun violence prevention order; or
(II) an order issued to restore an individual's right to own or possess a firearm.
(E) RETURN OF FIREARMS.—If the court finds that the State has not met the required standard of proof, any firearm removed pursuant to the warrant shall be returned to the named individual in a timely manner.
(F) LIMITATION ON HEARING REQUIREMENT.—If an individual named in a gun violence prevention warrant is prohibited from owning or possessing a firearm for a period of 1 year or more by another provision of State or Federal law, a hearing pursuant to subparagraph (A) is not required and the court shall issue an order to hold the firearm until either the individual is no longer prohibited from owning a firearm or the individual sells or transfers ownership of the firearm to a licensed firearm dealer.
(8) RENEWING GUN VIOLENCE PREVENTION ORDER AND GUN VIOLENCE PREVENTION WARRANT.—
(A) IN GENERAL.—Except as provided in subparagraph (E), if a law enforcement agency, a law enforcement officer, or a family or household member, has probable cause to believe that an individual who is subject to a gun violence prevention order continues to pose a significant risk of personal injury to the named individual or others by possessing a firearm, the agency, law enforcement officer, or family or household member may initiate a request for a renewal of the order, on a form designed by the court, describing the facts and circumstances necessitating the request.
(B) NOTICE.—The individual named in the gun violence prevention order requested to be renewed under subparagraph (A) shall be given written notice and an opportunity to be heard on the matter.
(C) HEARING.—After notice is given under subparagraph (B), a hearing shall be held to determine if a request for renewal of the order shall be issued.
(D) ISSUANCE OF RENEWAL.—Except as provided in subparagraph (E), a State court may issue a renewal of a gun violence prevention order if there is probable cause to believe that the individual who is subject to the order continues to pose a significant risk of personal injury to the named individual or others by possessing a firearm.
(E) HIGHER BURDEN OF PROOF.—A State may establish a burden of proof for initiating a request for or issuing a renewal of a gun violence prevention order that is higher than the burden of proof required under subparagraph (A) or (D).
(i) IN GENERAL.—The court shall notify the Department of Justice and comparable State agency of a renewal of the gun violence prevention order not later than 2 court days after renewing the order. The court shall also notify the Department of Justice and comparable State agency of any order restoring the ability of the individual to own or possess firearms not later than 2 court days after issuing the order to restore the individual’s right to own or possess any type of firearms that may be lawfully owned and possessed. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice and the comparable State agency.
(ii) UPDATE OF DATABASES.—As soon as practicable after receiving a notification under clause (i), the Department of Justice and comparable State agency shall update the background check databases of the Department and agency, respectively, to reflect—
(I) the prohibitions articulated in the renewal of the gun violence prevention order; or
(II) an order issued to restore an individual's right to own or possess a firearm.
(c) Law enforcement check of State firearm database.—Each law enforcement agency of the State shall establish a procedure that requires a law enforcement officer to, in conjunction with performing a wellness check on an individual, check whether the individual is listed on any of the firearm and ammunition databases of the State or jurisdiction in which the individual resides.
(d) Confidentiality protections.—All information provided to the Department of Justice and comparable State agency pursuant to legislation required under subsection (a) shall be kept confidential, separate, and apart from all other records maintained by the Department of Justice and comparable State agency.
SEC. 4. Pause for Safety grant program.
(a) In general.—The Director of the Office of Community Oriented Policing Services of the Department of Justice may make grants to an eligible State to assist the State in carrying out the provisions of the State legislation described in section 3.
(b) Eligible State.—A State shall be eligible to receive grants under this section on and after the date on which—
(1) the State enacts legislation described in section 3; and
(2) the Attorney General determines that the legislation of the State described in paragraph (1) complies with the requirements of section 3.
(c) Use of funds.—Funds awarded under this section may be used by a State to assist law enforcement agencies or the courts of the State in carrying out the provisions of the State legislation described in section 3.
(d) Application.—An eligible State desiring a grant under this section shall submit to the Director of the Office of Community Oriented Policing Services an application at such time, in such manner, and containing or accompanied by such information, as the Director may reasonably require.
(e) Authorization of appropriations.—There are authorized to be appropriated such sums as are necessary to carry out this section.
SEC. 5. Federal firearms prohibition.
Section 922 of title 18, United States Code, is amended—
(A) in paragraph (8)(B)(ii), by striking “or” at the end;
(B) in paragraph (9), by striking the period at the end and inserting “; or”; and
(C) by inserting after paragraph (9) the following:
“(10) is subject to a court order that prohibits such person from having under the custody or control of the person, owning, purchasing, possessing, or receiving any firearms.”; and
(A) in paragraph (8)(C)(ii), by striking “or” at the end;
(B) in paragraph (9), by striking the comma at the end and inserting “; or”; and
(C) by inserting after paragraph (9) the following:
“(10) who is subject to a court order that prohibits such person from having under the custody or control of the person, owning, purchasing, possessing, or receiving any firearms,”.
SEC. 6. Full faith and credit.
Any gun violence prevention order issued under a State law enacted in accordance with this Act shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of such State from which they are issued.
If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this Act, or an amendment made by this Act, or the application of such provision to other persons or circumstances, shall not be affected.