BILL REQ. #:  H-3811.3 

Read first time 01/20/2004.   Referred to Committee on Judiciary.

     AN ACT Relating to firearms and domestic violence; and amending RCW 9.41.800, 10.99.040, 10.99.045, 26.50.060, and 26.50.070.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

Sec. 1   RCW 9.41.800 and 2002 c 302 s 704 are each amended to read as follows:
     (1) Any court when entering an order authorized under RCW 9A.46.080, 10.14.080, ((10.99.040, 10.99.045,)) 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, ((26.50.070,)) or 26.26.590 shall, upon a showing by clear and convincing evidence, that a party has: Used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or previously committed any offense that makes him or her ineligible to possess a firearm under the provisions of RCW 9.41.040:
     (a) Require the party to surrender any firearm or other dangerous weapon;
     (b) Require the party to surrender any concealed pistol license issued under RCW 9.41.070;
     (c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon;
     (d) Prohibit the party from obtaining or possessing a concealed pistol license.
     (2) Any court when entering an order authorized under RCW 9A.46.080, 10.14.080, ((10.99.040, 10.99.045,)) 26.09.050, 26.09.060, 26.10.040, 26.10.115, 26.26.130, 26.50.060, ((26.50.070,)) or 26.26.590 may, upon a showing by a preponderance of the evidence but not by clear and convincing evidence, that a party has: Used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or previously committed any offense that makes him or her ineligible to possess a pistol under the provisions of RCW 9.41.040:
     (a) Require the party to surrender any firearm or other dangerous weapon;
     (b) Require the party to surrender a concealed pistol license issued under RCW 9.41.070;
     (c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon;
     (d) Prohibit the party from obtaining or possessing a concealed pistol license.
     (3) The court may order temporary surrender of a firearm or other dangerous weapon without notice to the other party if it finds, on the basis of the moving affidavit or other evidence, that irreparable injury could result if an order is not issued until the time for response has elapsed.
     (4) In addition to the provisions of subsections (1), (2), and (3) of this section, the court may enter an order requiring a party to comply with the provisions in subsection (1) of this section if it finds that the possession of a firearm or other dangerous weapon by any party presents a serious and imminent threat to public health or safety, or to the health or safety of any individual.
     (5) The requirements of subsections (1), (2), and (4) of this section may be for a period of time less than the duration of the order.
     (6) When entering an order authorized under RCW 10.99.040, 10.99.045, or 26.50.070, the court must:
     (a) Require the party to surrender any firearm or other dangerous weapon;
     (b) Require the party to surrender a concealed pistol license issued under RCW 9.41.070;
     (c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon; and
     (d) Prohibit the party from obtaining or possessing a concealed pistol license.
     (7) When entering an order authorized under RCW 26.50.060, if a party has committed an act of domestic violence, unless that party shows by clear and convincing evidence they do not pose a threat to public health or safety, or to the health or safety of any individual, the court must:
     (a) Require the party to surrender any firearm or other dangerous weapon;
     (b) Require the party to surrender a concealed pistol license issued under RCW 9.41.070;
     (c) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon; and
     (d) Prohibit the party from obtaining or possessing a concealed pistol license.
     (8) The court may require the party to surrender any firearm or other dangerous weapon in his or her immediate possession or control or subject to his or her immediate possession or control to the sheriff of the county having jurisdiction of the proceeding, the chief of police of the municipality having jurisdiction, or to the restrained or enjoined party's counsel or to any person designated by the court.
     (9) All law enforcement agencies must accept weapons surrendered under an order authorized by this section, RCW 10.99.040, 10.99.045, 26.50.060, or 26.50.070, and must beginning January 1, 2005, have in place rules or policies regarding how to accept, seize, and store weapons subject to an order of surrender.

Sec. 2   RCW 10.99.040 and 2000 c 119 s 18 are each amended to read as follows:
     (1) Because of the serious nature of domestic violence, the court in domestic violence actions:
     (a) Shall not dismiss any charge or delay disposition because of concurrent dissolution or other civil proceedings;
     (b) Shall not require proof that either party is seeking a dissolution of marriage prior to instigation of criminal proceedings;
     (c) Shall waive any requirement that the victim's location be disclosed to any person, other than the attorney of a criminal defendant, upon a showing that there is a possibility of further violence: PROVIDED, That the court may order a criminal defense attorney not to disclose to his or her client the victim's location; and
     (d) Shall identify by any reasonable means on docket sheets those criminal actions arising from acts of domestic violence.
     (2)(a) Because of the likelihood of repeated violence directed at those who have been victims of domestic violence in the past, when any person charged with or arrested for a crime involving domestic violence is released from custody before arraignment or trial on bail or personal recognizance, the court authorizing the release shall determine whether that person should be prohibited from having any contact with the victim, may prohibit that person from having any contact with the victim, and must:
     (i) Require the party to surrender any firearm or other dangerous weapon;
     (ii) Require the party to surrender a concealed pistol license issued under RCW 9.41.070;
     (iii) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon; and
     (iv) Prohibit the party from obtaining or possessing a concealed pistol license. ((The jurisdiction authorizing the release shall determine whether that person should be prohibited from having any contact with the victim.))
     (b) If there is no outstanding restraining or protective order prohibiting that person from having contact with the victim, the court authorizing release may issue, by telephone, a no-contact order prohibiting the person charged or arrested from having contact with the victim or from knowingly coming within, or knowingly remaining within, a specified distance of a location and must:
     (i) Require the party to surrender any firearm or other dangerous weapon;
     (ii) Require the party to surrender a concealed pistol license issued under RCW 9.41.070;
     (iii) Prohibit the party from obtaining or possessing a firearm or other dangerous weapon; and
     (iv) Prohibit the party from obtaining or possessing a concealed pistol license.
     (((b) In issuing the order, the court shall consider the provisions of RCW 9.41.800.))
     (c) The no-contact order and order regarding firearms or other dangerous weapons shall also be issued in writing as soon as possible.
     (3)(a) At the time of arraignment the court shall determine whether a no-contact order shall be issued or extended. The no-contact order shall terminate if the defendant is acquitted or the charges are dismissed. If a no-contact order is issued or extended, the court may also include in the conditions of release a requirement that the defendant submit to electronic monitoring. If electronic monitoring is ordered, the court shall specify who shall provide the monitoring services, and the terms under which the monitoring shall be performed. Upon conviction, the court may require as a condition of the sentence that the defendant reimburse the providing agency for the costs of the electronic monitoring.
     (b) An order regarding firearms or other dangerous weapons remains in effect until the defendant is acquitted or the charges are dismissed.
     (4)(a) Willful violation of a ((court)) no-contact order issued under subsection (2) or (3) of this section is punishable under RCW 26.50.110.
     (b) A violation of an order regarding firearms or other dangerous weapons is punishable under chapter 9.41 RCW.
     (c) The written order releasing the person charged or arrested shall contain the court's directives and shall bear the legend: "Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest; any assault, drive-by shooting, or reckless endangerment that is a violation of this order is a felony. You can be arrested even if any person protected by the order invites or allows you to violate the order's prohibitions. You have the sole responsibility to avoid or refrain from violating the order's provisions. Only the court can change the order."
     (((c))) (d) A certified copy of the order shall be provided to the victim.
     (5) If a no-contact order has been issued prior to charging, that order shall expire at arraignment or within seventy-two hours if charges are not filed. Such orders need not be entered into the computer-based criminal intelligence information system in this state which is used by law enforcement agencies to list outstanding warrants.
     (6) Whenever ((a no-contact)) an order is issued, modified, or terminated under subsection (2) or (3) of this section, the clerk of the court shall forward a copy of the order on or before the next judicial day to the appropriate law enforcement agency specified in the order. Upon receipt of the copy of the order the law enforcement agency shall enter the order for one year or until the expiration date specified on the order into any computer-based criminal intelligence information system available in this state used by law enforcement agencies to list outstanding warrants. Entry into the computer-based criminal intelligence information system constitutes notice to all law enforcement agencies of the existence of the order. The order is fully enforceable in any jurisdiction in the state. Upon receipt of notice that an order has been terminated under subsection (3) of this section, the law enforcement agency shall remove the order from the computer-based criminal intelligence information system.

Sec. 3   RCW 10.99.045 and 2000 c 119 s 19 are each amended to read as follows:
     (1) A defendant arrested for an offense involving domestic violence as defined by RCW 10.99.020 shall be required to appear in person before a magistrate within one judicial day after the arrest.
     (2) A defendant who is charged by citation, complaint, or information with an offense involving domestic violence as defined by RCW 10.99.020 and not arrested shall appear in court for arraignment in person as soon as practicable, but in no event later than fourteen days after the next day on which court is in session following the issuance of the citation or the filing of the complaint or information.
     (3) At the time of the appearances provided in subsection (1) or (2) of this section, the court shall determine the necessity of imposing a no-contact order or other conditions of pretrial release according to the procedures established by court rule for a preliminary appearance or an arraignment. The court ((may)) must include in the order any conditions ((authorized)) required under RCW 9.41.800 and 10.99.040.
     (4) Appearances required pursuant to this section are mandatory and cannot be waived.
     (5) The no-contact order shall be issued and entered with the appropriate law enforcement agency pursuant to the procedures outlined in RCW 10.99.040 (2) and (((4))) (6).

Sec. 4   RCW 26.50.060 and 2000 c 119 s 15 are each amended to read as follows:
     (1) Upon notice and after hearing, the court may provide relief as follows:
     (a) Restrain the respondent from committing acts of domestic violence and, if the court finds the respondent has committed acts of domestic violence, the court must (i) require the respondent to surrender any firearm or other dangerous weapon, (ii) require the respondent to surrender a concealed pistol license issued under RCW 9.41.070, (iii) prohibit the respondent from obtaining or possessing a firearm or other dangerous weapon, and (iv) prohibit the respondent from obtaining or possessing a concealed pistol license;
     (b) Exclude the respondent from the dwelling that the parties share, from the residence, workplace, or school of the petitioner, or from the day care or school of a child;
     (c) Prohibit the respondent from knowingly coming within, or knowingly remaining within, a specified distance from a specified location;
     (d) On the same basis as is provided in chapter 26.09 RCW, the court shall make residential provision with regard to minor children of the parties. However, parenting plans as specified in chapter 26.09 RCW shall not be required under this chapter;
     (e) Order the respondent to participate in a domestic violence perpetrator treatment program approved under RCW 26.50.150;
     (f) Order other relief as it deems necessary for the protection of the petitioner and other family or household members sought to be protected, including orders or directives to a peace officer, as allowed under this chapter;
     (g) Require the respondent to pay the administrative court costs and service fees, as established by the county or municipality incurring the expense and to reimburse the petitioner for costs incurred in bringing the action, including reasonable attorneys' fees;
     (h) Restrain the respondent from having any contact with the victim of domestic violence or the victim's children or members of the victim's household;
     (i) Require the respondent to submit to electronic monitoring. The order shall specify who shall provide the electronic monitoring services and the terms under which the monitoring must be performed. The order also may include a requirement that the respondent pay the costs of the monitoring. The court shall consider the ability of the respondent to pay for electronic monitoring;
     (j) Consider the provisions of RCW 9.41.800;
     (k) Order possession and use of essential personal effects. The court shall list the essential personal effects with sufficient specificity to make it clear which property is included; and
     (l) Order use of a vehicle.
     (2) If a protection order restrains the respondent from contacting the respondent's minor children the restraint shall be for a fixed period not to exceed one year. This limitation is not applicable to orders for protection issued under chapter 26.09, 26.10, or 26.26 RCW. With regard to other relief, if the petitioner has petitioned for relief on his or her own behalf or on behalf of the petitioner's family or household members or minor children, and the court finds that the respondent is likely to resume acts of domestic violence against the petitioner or the petitioner's family or household members or minor children when the order expires, the court may either grant relief for a fixed period or enter a permanent order of protection.
     If the petitioner has petitioned for relief on behalf of the respondent's minor children, the court shall advise the petitioner that if the petitioner wants to continue protection for a period beyond one year the petitioner may either petition for renewal pursuant to the provisions of this chapter or may seek relief pursuant to the provisions of chapter 26.09 or 26.26 RCW.
     (3) If the court grants an order for a fixed time period, the petitioner may apply for renewal of the order by filing a petition for renewal at any time within the three months before the order expires. The petition for renewal shall state the reasons why the petitioner seeks to renew the protection order. Upon receipt of the petition for renewal the court shall order a hearing which shall be not later than fourteen days from the date of the order. Except as provided in RCW 26.50.085, personal service shall be made on the respondent not less than five days before the hearing. If timely service cannot be made the court shall set a new hearing date and shall either require additional attempts at obtaining personal service or permit service by publication as provided in RCW 26.50.085 or by mail as provided in RCW 26.50.123. If the court permits service by publication or mail, the court shall set the new hearing date not later than twenty-four days from the date of the order. If the order expires because timely service cannot be made the court shall grant an ex parte order of protection as provided in RCW 26.50.070. The court shall grant the petition for renewal unless the respondent proves by a preponderance of the evidence that the respondent will not resume acts of domestic violence against the petitioner or the petitioner's children or family or household members when the order expires. The court may renew the protection order for another fixed time period or may enter a permanent order as provided in this section. The court may award court costs, service fees, and reasonable attorneys' fees as provided in subsection (1)(((f))) (g) of this section.
     (4) In providing relief under this chapter, the court may realign the designation of the parties as "petitioner" and "respondent" where the court finds that the original petitioner is the abuser and the original respondent is the victim of domestic violence and may issue an ex parte temporary order for protection in accordance with RCW 26.50.070 on behalf of the victim until the victim is able to prepare a petition for an order for protection in accordance with RCW 26.50.030.
     (5) Except as provided in subsection (4) of this section, no order for protection shall grant relief to any party except upon notice to the respondent and hearing pursuant to a petition or counter-petition filed and served by the party seeking relief in accordance with RCW 26.50.050.
     (6) The court order shall specify the date the order expires if any. The court order shall also state whether the court issued the protection order following personal service, service by publication, or service by mail and whether the court has approved service by publication or mail of an order issued under this section.
     (7) If the court declines to issue an order for protection or declines to renew an order for protection, the court shall state in writing on the order the particular reasons for the court's denial.

Sec. 5   RCW 26.50.070 and 2000 c 119 s 16 are each amended to read as follows:
     (1) Where an application under this section alleges that irreparable injury could result from domestic violence if an order is not issued immediately without prior notice to the respondent, the court may grant an ex parte temporary order for protection, pending a full hearing, and grant relief as the court deems proper, including an order:
     (a) Restraining any party from committing acts of domestic violence;
     (b) Restraining any party from going onto the grounds of or entering the dwelling that the parties share, from the residence, workplace, or school of the other, or from the day care or school of a child until further order of the court;
     (c) Prohibiting any party from knowingly coming within, or knowingly remaining within, a specified distance from a specified location;
     (d) Restraining any party from interfering with the other's custody of the minor children or from removing the children from the jurisdiction of the court;
     (e) Restraining any party from having any contact with the victim of domestic violence or the victim's children or members of the victim's household; and
     (f) Considering the provisions of RCW 9.41.800.
     (2) If there is reasonable cause to believe a party has committed or will commit domestic violence, the court must (a) require the respondent to surrender any firearm or other dangerous weapon, (b) require the respondent to surrender a concealed pistol license issued under RCW 9.41.070, (c) prohibit the respondent from obtaining or possessing a firearm or other dangerous weapon, and (d) prohibit the respondent from obtaining or possessing a concealed pistol license. An order regarding firearms or other dangerous weapons remains in effect until the party shows by clear and convincing evidence they do not pose a threat to public health or safety, or to the health or safety of any individual.
     (3) Irreparable injury under this section includes but is not limited to situations in which the respondent has recently threatened petitioner with bodily injury or has engaged in acts of domestic violence against the petitioner.
     (((3))) (4) The court shall hold an ex parte hearing in person or by telephone on the day the petition is filed or on the following judicial day.
     (((4))) (5) An ex parte temporary order for protection shall be effective for a fixed period not to exceed fourteen days or twenty-four days if the court has permitted service by publication under RCW 26.50.085 or by mail under RCW 26.50.123. The ex parte order may be reissued. A full hearing, as provided in this chapter, shall be set for not later than fourteen days from the issuance of the temporary order or not later than twenty-four days if service by publication or by mail is permitted. Except as provided in RCW 26.50.050, 26.50.085, and 26.50.123, the respondent shall be personally served with a copy of the ex parte order along with a copy of the petition and notice of the date set for the hearing.
     (((5))) (6) Any order issued under this section shall contain the date and time of issuance and the expiration date and shall be entered into a statewide judicial information system by the clerk of the court within one judicial day after issuance.
     (((6))) (7) If the court declines to issue an ex parte temporary order for protection the court shall state the particular reasons for the court's denial. The court's denial of a motion for an ex parte order of protection shall be filed with the court.