BILL REQ. #:  H-1648.2 

READ FIRST TIME 02/22/13.   

     AN ACT Relating to firearms laws concerning persons subject to no-contact orders, protection orders, and restraining orders; amending RCW 9.41.040 and 9.41.800; adding new sections to chapter 9.41 RCW; prescribing penalties; and providing an effective date.

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

Sec. 1   RCW 9.41.040 and 2011 c 193 s 1 are each amended to read as follows:
     (1)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the first degree, if the person owns, has in his or her possession, or has in his or her control any firearm after having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any serious offense as defined in this chapter.
     (b) Unlawful possession of a firearm in the first degree is a class B felony punishable according to chapter 9A.20 RCW.
     (2)(a) A person, whether an adult or juvenile, is guilty of the crime of unlawful possession of a firearm in the second degree, if the person does not qualify under subsection (1) of this section for the crime of unlawful possession of a firearm in the first degree and the person owns, has in his or her possession, or has in his or her control any firearm:
     (i) After having previously been convicted or found not guilty by reason of insanity in this state or elsewhere of any felony not specifically listed as prohibiting firearm possession under subsection (1) of this section, or any of the following crimes when committed by one family or household member against another, committed on or after July 1, 1993: Assault in the fourth degree, coercion, stalking, reckless endangerment, criminal trespass in the first degree, or violation of the provisions of a protection order or no-contact order restraining the person or excluding the person from a residence (RCW 26.50.060, 26.50.070, 26.50.130, or 10.99.040);
     (ii) During any period of time that the person is subject to a court order issued under chapter 7.90, 9A.46, 10.14, 10.99, 26.09, 26.10, 26.26, or 26.50 RCW that:
     (A) Was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate; and
     (B)(I) Includes a finding that the person represents a credible threat to the physical safety of an intimate partner of the person or the child of an intimate partner of the person; or (II) by its terms, restrains the person from causing physical harm or bodily injury to, assaulting, sexually assaulting, molesting, harassing, threatening, or stalking an intimate partner of the person or the child of an intimate partner of the person;
     (iii) After having previously been involuntarily committed for mental health treatment under RCW 71.05.240, 71.05.320, 71.34.740, 71.34.750, chapter 10.77 RCW, or equivalent statutes of another jurisdiction, unless his or her right to possess a firearm has been restored as provided in RCW 9.41.047;
     (((iii))) (iv) If the person is under eighteen years of age, except as provided in RCW 9.41.042; and/or
     (((iv))) (v) If the person is free on bond or personal recognizance pending trial, appeal, or sentencing for a serious offense as defined in RCW 9.41.010.
     (b) Unlawful possession of a firearm in the second degree is a class C felony punishable according to chapter 9A.20 RCW.
     (3) Notwithstanding RCW 9.41.047 or any other provisions of law, as used in this chapter, a person has been "convicted", whether in an adult court or adjudicated in a juvenile court, at such time as a plea of guilty has been accepted, or a verdict of guilty has been filed, notwithstanding the pendency of any future proceedings including but not limited to sentencing or disposition, post-trial or post-factfinding motions, and appeals. Conviction includes a dismissal entered after a period of probation, suspension or deferral of sentence, and also includes equivalent dispositions by courts in jurisdictions other than Washington state. A person shall not be precluded from possession of a firearm if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted or the conviction or disposition has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. Where no record of the court's disposition of the charges can be found, there shall be a rebuttable presumption that the person was not convicted of the charge.
     (4)(a) Notwithstanding subsection (1) or (2) of this section, a person convicted or found not guilty by reason of insanity of an offense prohibiting the possession of a firearm under this section other than murder, manslaughter, robbery, rape, indecent liberties, arson, assault, kidnapping, extortion, burglary, or violations with respect to controlled substances under RCW 69.50.401 and 69.50.410, who received a probationary sentence under RCW 9.95.200, and who received a dismissal of the charge under RCW 9.95.240, shall not be precluded from possession of a firearm as a result of the conviction or finding of not guilty by reason of insanity. Notwithstanding any other provisions of this section, if a person is prohibited from possession of a firearm under subsection (1) or (2) of this section and has not previously been convicted or found not guilty by reason of insanity of a sex offense prohibiting firearm ownership under subsection (1) or (2) of this section and/or any felony defined under any law as a class A felony or with a maximum sentence of at least twenty years, or both, the individual may petition a court of record to have his or her right to possess a firearm restored:
     (i) Under RCW 9.41.047; and/or
     (ii)(A) If the conviction or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525; or
     (B) If the conviction or finding of not guilty by reason of insanity was for a nonfelony offense, after three or more consecutive years in the community without being convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a firearm counted as part of the offender score under RCW 9.94A.525 and the individual has completed all conditions of the sentence.
     (b) An individual may petition a court of record to have his or her right to possess a firearm restored under (a) of this subsection (4) only at:
     (i) The court of record that ordered the petitioner's prohibition on possession of a firearm; or
     (ii) The superior court in the county in which the petitioner resides.
     (5) In addition to any other penalty provided for by law, if a person under the age of eighteen years is found by a court to have possessed a firearm in a vehicle in violation of subsection (1) or (2) of this section or to have committed an offense while armed with a firearm during which offense a motor vehicle served an integral function, the court shall notify the department of licensing within twenty-four hours and the person's privilege to drive shall be revoked under RCW 46.20.265.
     (6) Nothing in chapter 129, Laws of 1995 shall ever be construed or interpreted as preventing an offender from being charged and subsequently convicted for the separate felony crimes of theft of a firearm or possession of a stolen firearm, or both, in addition to being charged and subsequently convicted under this section for unlawful possession of a firearm in the first or second degree. Notwithstanding any other law, if the offender is convicted under this section for unlawful possession of a firearm in the first or second degree and for the felony crimes of theft of a firearm or possession of a stolen firearm, or both, then the offender shall serve consecutive sentences for each of the felony crimes of conviction listed in this subsection.
     (7) Each firearm unlawfully possessed under this section shall be a separate offense.
     (8) For purposes of this section, "intimate partner" includes: A spouse, a domestic partner, a former spouse, a former domestic partner, a person with whom the restrained person has a child in common, or a person with whom the restrained person has cohabitated or is cohabitating as part of a dating relationship.

Sec. 2   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 7.90.090, 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 7.90.090, 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)) 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 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) Any court when entering an order under chapter 7.90, 9A.46, 10.14, 10.99, 26.09, 26.10, 26.26, or 26.50 RCW that:
     (a) Was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate; and
     (b)(i) Includes a finding that the person represents a credible threat to the physical safety of an intimate partner of the person as defined in RCW 9.41.040 or the child of an intimate partner of the person; or (ii) by its terms, restrains the party from causing physical harm or bodily injury to, assaulting, sexually assaulting, molesting, harassing, threatening, or stalking an intimate partner of the person as defined in RCW 9.41.040 or a child of an intimate partner of the person, shall:
     (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.
     (4) 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))) (5) In addition to the provisions of subsections (1), (2), and (((3))) (4) 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))) (6) The requirements of subsections (1), (2), and (((4))) (5) of this section may be for a period of time less than the duration of the order.
     (((6))) (7) 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.

NEW SECTION.  Sec. 3   A new section is added to chapter 9.41 RCW to read as follows:
     All law enforcement agencies must develop policies and procedures by January 1, 2014, regarding the acceptance, storage, and return of weapons required to be surrendered under RCW 9.41.800.

NEW SECTION.  Sec. 4   A new section is added to chapter 9.41 RCW to read as follows:
     By December 1, 2013, the administrative office of the courts shall develop a proof of surrender and receipt pattern form to be used to document that a respondent has complied with a requirement to surrender firearms, dangerous weapons, and his or her concealed pistol license, as ordered by a court under RCW 9.41.800. The administrative office of the courts must also develop a declaration of nonsurrender pattern form to document compliance when the respondent has no firearms, dangerous weapons, or concealed pistol license.

NEW SECTION.  Sec. 5   A new section is added to chapter 9.41 RCW to read as follows:
     A party ordered to surrender firearms, dangerous weapons, and his or her concealed pistol license under RCW 9.41.800 must file with the clerk of the court a proof of surrender and receipt form or a declaration of nonsurrender form within five judicial days of the entry of the order.

NEW SECTION.  Sec. 6   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 7   Section 5 of this act takes effect December 1, 2013.