txt

HB 62: "An Act relating to gun violence protective orders; relating to the crime of violating a protective order; relating to a central registry for protective orders; requiring physicians, psychologists, psychological associates, social workers, marital and family therapists, and licensed professional counselors to report annually threats of gun violence; relating to the powers of district judges and magistrates; amending Rules 4 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of Administration; and providing for an effective date."

00                              HOUSE BILL NO. 62                                                                          
01 "An Act relating to gun violence protective orders; relating to the crime of violating a                                
02 protective order; relating to a central registry for protective orders; requiring                                       
03 physicians, psychologists, psychological associates, social workers, marital and family                                 
04 therapists, and licensed professional counselors to report annually threats of gun                                      
05 violence; relating to the powers of district judges and magistrates; amending Rules 4                                   
06 and 65, Alaska Rules of Civil Procedure, and Rule 9, Alaska Rules of Administration;                                    
07 and providing for an effective date."                                                                                   
08 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
09    * Section 1. AS 11.56.740(a) is amended to read:                                                                   
10            (a)  A person commits the crime of violating a protective order if the person is                             
11       subject to a protective order                                                                                     
12                 (1)  issued, filed, or recognized under AS 18.66 and containing a                                       
13       provision listed in AS 18.66.100(c)(1) - (7) and knowingly commits or attempts to                                 
01       commit an act with reckless disregard that the act violates or would violate a provision                          
02       of the protective order;                                                                                          
03                 (2)  issued or recognized under AS 18.65.850, 18.65.855, 18.65.860, or                                  
04       18.65.867 and knowingly commits or attempts to commit an act that violates or would                               
05       violate a provision listed in AS 18.65.850(c)(1) - (3); or                                                        
06                 (3)  issued under AS 13.26.450 - 13.26.460 and knowingly commits or                                     
07       attempts to commit an act with reckless disregard that the act violates or would violate                          
08       a provision of the protective order; or                                                                       
09                 (4)  issued under AS 18.65.815 - 18.65.825 and knowingly commits                                    
10 or attempts to commit an act that violates or would violate a provision listed in                                   
11       AS 18.65.815(c).                                                                                              
12    * Sec. 2. AS 11.56.740(c) is amended to read:                                                                      
13 (c)  In this section, "protective order" means an order issued, filed, or                                               
14 recognized under AS 13.26.450 - 13.26.460, AS 18.65.815 - 18.65.825, 18.65.850 -                                    
15       18.65.870 [AS 18.65.850 - 18.65.870], or AS 18.66.100 - 18.66.180.                                            
16    * Sec. 3. AS 18.65.530(a) is amended to read:                                                                      
17 (a)  Except as provided in (b) or (c) of this section, a peace officer, with or                                         
18 without a warrant, shall arrest a person if the officer has probable cause to believe the                               
19 person has, either in or outside the presence of the officer, within the previous 12                                    
20       hours,                                                                                                            
21 (1)  committed domestic violence, except an offense under                                                               
22       AS 11.41.100 - 11.41.130, whether the crime is a felony or a misdemeanor;                                         
23 (2)  committed the crime of violating a protective order in violation of                                                
24       AS 11.56.740(a)(1), [OR] (2), or (4);                                                                     
25 (3)  violated a condition of release imposed under AS 12.30.016(e) or                                                   
26       (f) or 12.30.027.                                                                                                 
27    * Sec. 4. AS 18.65.540(a) is amended to read:                                                                      
28 (a)  The Department of Public Safety shall maintain a central registry of                                               
29 protective orders issued by or filed with a court of this state under AS 13.26.450 -                                    
30 13.26.460, AS 18.65.815 - 18.65.825, 18.65.850 - 18.65.870 [AS 18.65.850 -                                          
31 18.65.870], or AS 18.66.100 - 18.66.180. The registry must include, for each                                            
01 protective order, the names of the petitioner and respondent, their dates of birth, and                                 
02 the conditions and duration of the order. The registry shall retain a record of the                                     
03       protective order after it has expired.                                                                            
04    * Sec. 5. AS 18.65.540(b) is amended to read:                                                                      
05 (b)  A peace officer receiving a protective order from a court under                                                    
06 AS 13.26.450, 13.26.455, AS 18.65.815, 18.65.820, 18.65.850, 18.65.855                                              
07 [AS 18.65.850 - 18.65.855], or AS 18.66.100 - 18.66.180, a modified order issued                                        
08 under AS 13.26.460, AS 18.65.825, 18.65.860 [AS 18.65.860], or AS 18.66.120, or an                                  
09 order dismissing a protective order shall take reasonable steps to ensure that the order,                               
10 modified order, or dismissal is entered into the central registry within 24 hours after                                 
11       being received.                                                                                                   
12    * Sec. 6. AS 18.65 is amended by adding new sections to article 11 to read:                                        
13 Sec. 18.65.815. Gun violence protective orders. (a) A peace officer who                                               
14 reasonably believes that a person is a danger to self or others by possessing, owning,                                  
15 purchasing, or receiving a firearm may file a petition in the district or superior court                                
16 for a protective order against the person. The petition must include a description of the                               
17 number, types, and locations of any firearms or ammunition the peace officer believes                                   
18       are owned or possessed by the respondent and the basis for the petition.                                          
19 (b)  When a peace officer files a petition for a protective order, the court shall                                      
20 schedule a hearing and provide at least 10 days' notice to the respondent of the hearing                                
21 and of the respondent's right to appear and be heard, either in person or through an                                    
22 attorney. If the court finds by clear and convincing evidence that the respondent is a                                  
23 danger to self or others by possessing, owning, purchasing, or receiving a firearm,                                     
24 regardless of whether the respondent appears at the hearing, the court may order the                                    
25 relief available under (c) of this section. The provisions of a protective order issued                                 
26       under this section are effective for six months unless earlier dissolved by the court.                            
27 (c)  A protective order issued under this section shall prohibit the respondent                                         
28 from possessing, owning, purchasing, receiving, or attempting to purchase or receive a                                  
29       firearm or ammunition.                                                                                            
30            (d)  If the court issues a protective order under this section, the court shall                              
31 (1)  make reasonable efforts to ensure that the order is understood by                                                  
01       the petitioner and by the respondent, if present;                                                                 
02                 (2)  have the order delivered to the appropriate local law enforcement                                  
03       agency for expedited service;                                                                                     
04                 (3)  direct the respondent to surrender to the appropriate law                                          
05       enforcement agency or sell to a firearms dealer all firearms and ammunition that the                              
06       respondent possesses or owns within 24 hours after receiving the order.                                           
07 Sec. 18.65.820. Ex parte and emergency gun violence protective orders. (a)                                            
08 A peace officer who reasonably believes that a person is a danger to self or others may                                 
09 file a petition under AS 18.65.815 and request an ex parte gun violence protective                                      
10 order. If the court finds that the petition establishes by a preponderance of the                                       
11 evidence that the respondent poses a significant danger of injury to self or others by                                  
12 possessing, owning, purchasing, or receiving a firearm, that less restrictive alternatives                              
13 have been tried and were ineffective, and that the peace officer has certified to the                                   
14 court in writing the efforts, if any, that have been made to provide notice to the                                      
15 respondent, the court shall ex parte and without notice to the respondent issue a                                       
16 protective order. Before issuing the protective order, the court shall examine on oath                                  
17 the petitioner and any witnesses the petitioner produces. The court may require the                                     
18 petitioner and any witnesses to submit a written affidavit signed under oath instead of                                 
19 examining the petitioner and witnesses. An ex parte protective order issued under this                                  
20 subsection shall prohibit the respondent from possessing, owning, purchasing, or                                        
21 receiving a firearm or ammunition. An ex parte protective order expires 20 days after                                   
22 the order is issued unless dissolved earlier by the court at the request of either the                                  
23 petitioner or the respondent after notice and, if requested, a hearing. If the court issues                             
24 an ex parte protective order, the court shall have the order delivered to the appropriate                               
25       law enforcement agency for expedited service.                                                                     
26 (b)  A peace officer may request an emergency gun violence protective order                                             
27 from a judicial officer. A peace officer may make the request orally, either in person                                  
28 or by telephone, or by submitting a sworn written statement. If the court finds by a                                    
29 preponderance of the evidence that the respondent poses an immediate danger of                                          
30 injury to self or others by possessing, owning, purchasing, or receiving a firearm and                                  
31 that less restrictive alternatives have been tried and were ineffective, the court ex parte                             
01 shall issue an emergency protective order. An emergency protective order shall                                          
02 prohibit the respondent from possessing, owning, purchasing, or receiving a firearm or                                  
03 ammunition. An emergency protective order expires 72 hours after it is issued unless                                    
04 dissolved earlier by the court at the request of the petitioner. A peace officer who                                    
05       obtains an emergency protective order under this subsection shall                                                 
06                 (1)  place the provisions of an oral order in writing on a form provided                                
07       by the court and file the written order with the issuing court by the end of the judicial                         
08       day after the order is issued; and                                                                                
09                 (2)  immediately serve a copy of the order on the respondent.                                           
10 Sec. 18.65.825. Modification of gun violence protective order. (a) A peace                                            
11 officer or the respondent may request modification of a gun violence protective order                                   
12       issued under AS 18.65.815 or 18.65.820(a). If a request is made for modification of                               
13 (1)  a protective order, after notice and hearing under AS 18.65.815, the                                               
14 court shall schedule a hearing within 20 days after the date the request is made, except                                
15 that, if the court finds that the request is meritless on its face, the court may deny the                              
16       request without a hearing; or                                                                                     
17 (2)  an ex parte protective order under AS 18.65.820(a), the court shall                                                
18 schedule a hearing on three days' notice or on shorter notice as the court may                                          
19       prescribe.                                                                                                        
20 (b)  If the court modifies a protective order under this section, the court shall                                       
21       issue a modified order and shall                                                                                  
22 (1)  make reasonable efforts to ensure that the order is understood by                                                  
23       the respondent, if present at the hearing; and                                                                    
24 (2)  have the order delivered to the appropriate local law enforcement                                                  
25       agency for expedited service.                                                                                     
26 Sec. 18.65.830. Surrender of firearms and ammunition. (a) When a court                                                
27 issues a gun violence protective order under AS 18.65.815 - 18.65.825, the court shall                                  
28 order the respondent to surrender to the appropriate local law enforcement agency or                                    
29 to sell to a firearms dealer all firearms and ammunition that the respondent possesses,                                 
30 owns, or has within the respondent's custody or control within 24 hours after receiving                                 
31       the protective order.                                                                                             
01            (b)  Within 48 hours after receiving notice of the protective order, the                                     
02       respondent shall file with the                                                                                    
03                 (1)  court an original receipt showing that all firearms and ammunition                                 
04       have been surrendered to the local law enforcement agency or sold to a firearms                                   
05       dealer; and                                                                                                       
06                 (2)  local law enforcement agency that served the protective order a                                    
07       copy of the receipt under (1) of this subsection.                                                                 
08            (c)  A law enforcement agency shall retain any firearms or ammunition                                        
09       surrendered to the law enforcement agency under this section until the expiration of                              
10 the gun violence protective order. When the protective order expires, the law                                           
11       enforcement agency shall return the firearms or ammunition to the respondent.                                     
12 (d)  A respondent who has surrendered firearms or ammunition to a law                                                   
13 enforcement agency and does not want the firearms or ammunition returned may sell                                       
14       or transfer title of the firearms or ammunition to a firearms dealer.                                             
15 (e)  A person other than the respondent who claims title to any firearms or                                             
16 ammunition surrendered under a protective order issued under AS 18.65.815 -                                             
17 18.65.825 may petition the court to have the firearms or ammunition returned to the                                     
18       person.                                                                                                           
19 Sec. 18.65.835. Service of process; forms for petitions and orders; fees;                                             
20 warnings; notification; and pending civil or criminal actions. (a) Service of                                         
21 process of an order issued by the court under AS 18.65.815 - 18.65.825 shall be as                                      
22 provided in AS 18.66.160 for service of process of domestic violence protective                                         
23       orders.                                                                                                           
24 (b)  The Alaska Court System shall prepare forms for petitions and protective                                           
25 orders and instructions for their use by a peace officer seeking a protective order under                               
26 AS 18.65.815 - 18.65.825. The forms must conform to the Alaska Rules of Civil                                           
27 Procedure, except that information on the forms may be filled in by legible                                             
28 handwriting. Filing fees may not be charged in an action seeking only the relief                                        
29 provided in AS 18.65.815 - 18.65.845. Each protective order form must contain the                                       
30       following statements in boldface type:                                                                            
31 (1)  "Violation of this order may be a misdemeanor, punishable by up                                                    
01       to one year of incarceration and a fine of up to $10,000"; and                                                    
02 (2)  "To the restrained person: this order will last until the date and time                                            
03 noted above. You are required to surrender all firearms and ammunition that you own                                     
04 or possess in accordance with AS 18.65.830, and you may not have in your custody or                                     
05 control, own, purchase, possess, receive, or attempt to purchase or receive, a firearm                                  
06 or ammunition while this order is in effect. You may seek the advice of an attorney as                                  
07 to any matter connected with the order. The attorney should be consulted promptly so                                    
08       that the attorney may assist you in any matter connected with the order."                                         
09 (c)  In addition to other information required, a petition for a protective order                                       
10 must include a statement of pending civil and criminal actions involving the                                            
11 respondent, if known. While a protective order is in effect or a petition for a protective                              
12 order is pending, both the petitioner and respondent have a continuing duty to inform                                   
13       the court of pending civil and criminal actions involving the respondent, if known.                               
14 Sec. 18.65.840. Notification of law enforcement agencies. When a court                                                
15 issues or accepts for filing a protective order under AS 18.65.815 - 18.65.825, the                                     
16 court shall send a copy of the order to the appropriate local law enforcement agency.                                   
17 Each law enforcement agency shall establish procedures to inform peace officers of                                      
18 protective orders. Peace officers shall use every reasonable means to enforce a                                         
19       protective order issued or filed under AS 18.65.815 - 18.65.825.                                                  
20 Sec. 18.65.845. Health care providers; duty to report serious threats of                                              
21 gun violence. Annually, a health care provider shall report to the Department of                                      
22 Health and Social Services any serious threat conveyed to the health care provider                                      
23 during the year of gun violence against a reasonably identifiable victim. The health                                    
24 care provider may not include any personally identifiable information in the report and                                 
25 shall make the report on or before December 31 of each year. The Department of                                          
26 Health and Social Services shall summarize the reports received under this section in                                   
27 an annual report and submit the report on or before January 31 to the senate secretary                                  
28 and the chief clerk of the house of representatives and notify the legislature that the                                 
29 report is available. The Department of Health and Social Services may not include any                                   
30 personally identifiable information in the report. In this section, "health care provider"                              
31 means a physician, psychologist, psychological associate, social worker, marital and                                    
01       family therapist, or licensed professional counselor.                                                             
02    * Sec. 7. AS 18.65.835(b), enacted by sec. 6 of this Act, is amended to read:                                      
03 (b)  The Alaska Court System shall prepare forms for petitions and protective                                           
04 orders and instructions for their use by a peace officer seeking a protective order under                               
05 AS 18.65.815 - 18.65.825. The forms must conform to the Alaska Rules of Civil                                           
06 Procedure, except that information on the forms may be filled in by legible                                             
07 handwriting. Filing fees may not be charged in an action seeking only the relief                                        
08 provided in AS 18.65.815 - 18.65.830 [AS 18.65.815 - 18.65.845]. Each protective                                    
09       order form must contain the following statements in boldface type:                                                
10 (1)  "Violation of this order may be a misdemeanor, punishable by up                                                    
11       to one year of incarceration and a fine of up to $10,000"; and                                                    
12 (2)  "To the restrained person: this order will last until the date and time                                            
13 noted above. You are required to surrender all firearms and ammunition that you own                                     
14 or possess in accordance with AS 18.65.830, and you may not have in your custody or                                     
15 control, own, purchase, possess, receive, or attempt to purchase or receive, a firearm                                  
16 or ammunition while this order is in effect. You may seek the advice of an attorney as                                  
17 to any matter connected with the order. The attorney should be consulted promptly so                                    
18       that the attorney may assist you in any matter connected with the order."                                         
19    * Sec. 8. AS 22.15.100 is amended to read:                                                                         
20 Sec. 22.15.100. Functions and powers of district judge and magistrate.                                                
21       Each district judge and magistrate has the power                                                                  
22 (1)  to issue writs of habeas corpus for the purpose of inquiring into the                                              
23 cause of restraint of liberty, returnable before a judge of the superior court, and the                                 
24 same proceedings shall be had on the writ as if it had been granted by the superior                                     
25       court judge under the laws of the state in those cases;                                                           
26                 (2)  of a notary public;                                                                                
27                 (3)  to solemnize marriages;                                                                            
28 (4)  to issue warrants of arrest, summons, and search warrants                                                          
29       according to manner and procedure prescribed by law and the supreme court;                                        
30 (5)  to act as an examining judge or magistrate in preliminary                                                          
31 examinations in criminal proceedings; to set, receive, and forfeit bail and to order the                                
01       release of defendants under bail;                                                                                 
02                 (6)  to act as a referee in matters and actions referred to the judge or                                
03       magistrate by the superior court, with all powers conferred on [UPON] referees by                             
04       laws;                                                                                                             
05                 (7)  of the superior court in all respects, including contempts,                                    
06       attendance of witnesses, and bench warrants;                                                                      
07 (8)  to order the temporary detention of a minor, or take other action                                                  
08 authorized by law or rules of procedure, in cases arising under AS 47.10 or AS 47.12,                                   
09 when the minor is in a condition or surrounding dangerous or injurious to the welfare                                   
10 of the minor or others that requires immediate action; the action may be continued in                                   
11 effect until reviewed by the superior court in accordance with rules of procedure                                       
12       governing these cases;                                                                                            
13                 (9)  to issue a protective order in cases involving                                                     
14 (A)  domestic violence as provided in AS 18.66.100 -                                                                    
15            18.66.180; [OR]                                                                                              
16 (B)  stalking or sexual assault as provided in AS 18.65.850 -                                                           
17            18.65.870; or                                                                                            
18                      (C)  gun violence as provided in AS 18.65.815 - 18.65.825;                                     
19 (10)  to review an administrative revocation of a person's driver's                                                     
20 license or nonresident privilege to drive, and an administrative refusal to issue an                                    
21 original license, when designated as a hearing officer by the commissioner of                                           
22 administration and with the consent of the administrative director of the Alaska Court                                  
23       System;                                                                                                           
24 (11)  to establish the fact of death or inquire into the death of a person                                              
25       in the manner prescribed under AS 09.55.020 - 09.55.069;                                                          
26 (12)  to issue an ex parte testing, examination, or screening order                                                     
27       according to the manner and procedure prescribed by AS 18.15.375.                                                 
28    * Sec. 9. AS 18.65.845 is repealed February 1, 2022.                                                               
29    * Sec. 10. The uncodified law of the State of Alaska is amended by adding a new section to                         
30 read:                                                                                                                   
31 INDIRECT COURT RULE AMENDMENTS. (a) AS 18.65.835, added by sec. 6 of                                                    
01 this Act, has the effect of amending Rule 4, Alaska Rules of Civil Procedure, and Rule 9,                               
02 Alaska Rules of Administration, relating to fees and service of process for a gun violence                              
03 protective order.                                                                                                       
04       (b)  The provisions of sec. 6 of this Act have the effect of amending Rule 65, Alaska                             
05 Rules of Civil Procedure, by changing the method for obtaining, and the timing of, temporary                            
06 restraining orders.                                                                                                     
07    * Sec. 11. The uncodified law of the State of Alaska is amended by adding a new section to                         
08 read:                                                                                                                   
09       CONDITIONAL EFFECT. AS 18.65.815 - 18.65.845, added by sec. 6 of this Act,                                        
10 take effect only if sec. 10 of this Act receives the two-thirds majority vote of each house                             
11 required by art. IV, sec. 15, Constitution of the State of Alaska.                                                      
12    * Sec. 12. Section 7 of this Act takes effect February 1, 2022.