H-3375.1

HOUSE BILL 2196

ByRepresentatives Walsh and Young

AN ACT Relating to standards for issuance and enforcement of extreme risk protection orders; amending RCW 7.94.040, 7.94.050, and 7.94.080; adding a new section to chapter 7.94 RCW; and creating a new section.

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

Sec. 2. RCW 7.94.040 and 2019 c 246 s 3 are each amended to read as follows:

(1) Upon receipt of the petition, the court shall order a hearing to be held not later than fourteen days from the date of the order and issue a notice of hearing to the respondent for the same.

(a) The court may schedule a hearing by telephone pursuant to local court rule, to reasonably accommodate a disability, or in exceptional circumstances to protect a petitioner from potential harm. The court shall require assurances of the petitioner's identity before conducting a telephonic hearing.

(b) The court clerk shall cause a copy of the notice of hearing and petition to be forwarded on or before the next judicial day to the appropriate law enforcement agency for service upon the respondent.

(c) Personal service of the notice of hearing and petition shall be made upon the respondent by a law enforcement officer not less than five court days prior to the hearing. Service issued under this section takes precedence over the service of other documents, unless the other documents are of a similar emergency nature. If timely personal 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 or mail as provided in RCW 7.94.070. The court shall not require more than two attempts at obtaining personal service and shall permit service by publication or mail after two attempts at obtaining personal service unless the petitioner requests additional time to attempt personal service. If the court issues an order permitting service by publication or mail, the court shall set the hearing date not later than twenty-four days from the date the order issues.

(d) The court may, as provided in RCW 7.94.050, issue an ex parte extreme risk protection order pending the hearing ordered under this subsection (1). Such ex parte order must be served concurrently with the notice of hearing and petition.

(2) Upon hearing the matter, if the court finds by ((a preponderance of the))clear and convincing evidence that the respondent poses a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm, the court shall issue an extreme risk protection order for a period of one year.

(3) In determining whether grounds for an extreme risk protection order exist, the court may consider any relevant evidence including, but not limited to, any of the following:

(a) A recent act or threat of violence by the respondent against self or others, whether or not such violence or threat of violence involves a firearm;

(b) A pattern of acts or threats of violence by the respondent within the past twelve months including, but not limited to, acts or threats of violence by the respondent against self or others;

(c) Any behaviors that present an imminent threat of harm to self or others;

(d) A violation by the respondent of a protection order or a no-contact order issued under chapter 7.90, 7.92, 10.14, 9A.46, 10.99, 26.50, or 26.52 RCW;

(e) A previous or existing extreme risk protection order issued against the respondent;

(f) A violation of a previous or existing extreme risk protection order issued against the respondent;

(g) A conviction of the respondent for a crime that constitutes domestic violence as defined in RCW 10.99.020;

(h) A conviction of the respondent under RCW 9A.36.080;

(i) The respondent's ownership, access to, or intent to possess firearms;

(j) The unlawful or reckless use, display, or brandishing of a firearm by the respondent;

(k) The history of use, attempted use, or threatened use of physical force by the respondent against another person, or the respondent's history of stalking another person;

(l) Any prior arrest of the respondent for a felony offense or violent crime;

(m) Corroborated evidence of the abuse of controlled substances or alcohol by the respondent; and

(n) Evidence of recent acquisition of firearms by the respondent.

(4) The court may:

(a) Examine under oath the petitioner, the respondent, and any witnesses they may produce, or, in lieu of examination, consider sworn affidavits of the petitioner, the respondent, and any witnesses they may produce; and

(b) Ensure that a reasonable search has been conducted for criminal history records related to the respondent.

(5) In a hearing under this chapter, the rules of evidence apply to the same extent as in a domestic violence protection order proceeding under chapter 26.50 RCW.

(6) During the hearing, the court shall consider whether a behavioral health evaluation is appropriate, and may order such evaluation if appropriate.

(7) An extreme risk protection order must include:

(a) A statement of the grounds supporting the issuance of the order;

(b) The date and time the order was issued;

(c) The date and time the order expires;

(d) Whether a behavioral health evaluation of the respondent is required;

(e) The address of the court in which any responsive pleading should be filed;

(f) A description of the requirements for relinquishment of firearms under RCW 7.94.090; and

(g) The following statement: "To the subject of this protection order: This order will last until the date and time noted above. If you have not done so already, you must surrender to the (insert name of local law enforcement agency) all firearms in your custody, control, or possession and any concealed pistol license issued to you under RCW 9.41.070 immediately. You may not have in your custody or control, purchase, possess, receive, or attempt to purchase or receive, a firearm while this order is in effect. You have the right to request one hearing to terminate this order every twelve-month period that this order is in effect, starting from the date of this order and continuing through any renewals. You may seek the advice of an attorney as to any matter connected with this order."

(8) When the court issues an extreme risk protection order, the court shall inform the respondent that he or she is entitled to request termination of the order in the manner prescribed by RCW 7.94.080. The court shall provide the respondent with a form to request a termination hearing.

(9) If the court declines to issue an extreme risk protection order, the court shall state the particular reasons for the court's denial.

Sec. 3. RCW 7.94.050 and 2017 c 3 s 6 are each amended to read as follows:

(1) A petitioner may request that an ex parte extreme risk protection order be issued before a hearing for an extreme risk protection order, without notice to the respondent, by including in the petition detailed allegations based on personal knowledge that the respondent poses ((a significant danger of causing personal injury to self or others in the near future))an imminent, particularized, and substantial risk of causing death or serious physical injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm.

(2) In considering whether to issue an ex parte extreme risk protection order under this section, the court shall consider all relevant evidence, including the evidence described in RCW 7.94.040(3).

(3) If a court finds there is reasonable cause to believe that the respondent poses ((a significant danger of causing personal injury to self or others in the near future))an imminent, particularized, and substantial risk of causing death or serious physical injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm, the court shall issue an ex parte extreme risk protection order.

(4) The court shall hold an ex parte extreme risk protection order hearing in person or by telephone on the day the petition is filed or on the judicial day immediately following the day the petition is filed.

(5) In accordance with RCW 7.94.040(1), the court shall schedule a hearing within fourteen days of the issuance of an ex parte extreme risk protection order to determine if a one-year extreme risk protection order should be issued under this chapter.

(6) An ex parte extreme risk protection order shall include:

(a) A statement of the grounds asserted for the order;

(b) The date and time the order was issued;

(c) The date and time the order expires;

(d) The address of the court in which any responsive pleading should be filed;

(e) The date and time of the scheduled hearing;

(f) A description of the requirements for surrender of firearms under RCW 7.94.090; and

(g) The following statement: "To the subject of this protection order: This order is valid until the date and time noted above. You are required to surrender all firearms in your custody, control, or possession. You may not have in your custody or control, purchase, possess, receive, or attempt to purchase or receive, a firearm while this order is in effect. You must surrender to the (insert name of local law enforcement agency) all firearms in your custody, control, or possession and any concealed pistol license issued to you under RCW 9.41.070 immediately. A hearing will be held on the date and at the time noted above to determine if an extreme risk protection order should be issued. Failure to appear at that hearing may result in a court making an order against you that is valid for one year. You may seek the advice of an attorney as to any matter connected with this order."

(7) Any ex parte extreme risk protection order issued expires upon the hearing on the extreme risk protection order.

(8) An ex parte extreme risk protection order shall be served by a law enforcement officer in the same manner as provided for in RCW 7.94.040 for service of the notice of hearing and petition, and shall be served concurrently with the notice of hearing and petition.

(9) If the court declines to issue an ex parte extreme risk protection order, the court shall state the particular reasons for the court's denial.

Sec. 4. RCW 7.94.080 and 2017 c 3 s 9 are each amended to read as follows:

(1) The respondent may submit one written request for a hearing to terminate an extreme risk protection order issued under this chapter every twelve-month period that the order is in effect, starting from the date of the order and continuing through any renewals.

(a) Upon receipt of the request for a hearing to terminate an extreme risk protection order, the court shall set a date for a hearing. Notice of the request must be served on the petitioner in accordance with RCW 4.28.080. The hearing shall occur no sooner than fourteen days and no later than thirty days from the date of service of the request upon the petitioner.

(b) The respondent shall have the burden of proving by a preponderance of the evidence that the respondent does not pose a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm. The court may consider any relevant evidence, including evidence of the considerations listed in RCW 7.94.040(3).

(c) If the court finds after the hearing that the respondent has met his or her burden, the court shall terminate the order.

(2) The court must notify the petitioner of the impending expiration of an extreme risk protection order. Notice must be received by the petitioner one hundred five calendar days before the date the order expires.

(3) A family or household member of a respondent or a law enforcement officer or agency may by motion request a renewal of an extreme risk protection order at any time within one hundred five calendar days before the expiration of the order.

(a) Upon receipt of the motion to renew, the court shall order that a hearing be held not later than fourteen days from the date the order issues.

(i) The court may schedule a hearing by telephone in the manner prescribed by RCW 7.94.040(1)(a).

(ii) The respondent shall be personally served in the same manner prescribed by RCW 7.94.040(1) (b) and (c).

(b) In determining whether to renew an extreme risk protection order issued under this section, the court shall consider all relevant evidence presented by the petitioner and follow the same procedure as provided in RCW 7.94.040.

(c) If the court finds by ((a preponderance of the))clear and convincing evidence that the requirements for issuance of an extreme risk protection order as provided in RCW 7.94.040 continue to be met, the court shall renew the order. However, if, after notice, the motion for renewal is uncontested and the petitioner seeks no modification of the order, the order may be renewed on the basis of the petitioner's motion or affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested renewal.

(d) The renewal of an extreme risk protection order has a duration of one year, subject to termination as provided in subsection (1) of this section or further renewal by order of the court.

NEW SECTION.  Sec. 5. A new section is added to chapter 7.94 RCW to read as follows:

(1) No state agency, or state or local law enforcement agency, may use agency funds, facilities, property, equipment, or personnel to investigate, enforce, or assist in the investigation or enforcement of any extreme risk protection order issued under federal law against a resident of the state.

(2) For purposes of this section, "extreme risk protection order" means a civil order issued by a federal court, the primary purpose of which is to reduce the risk of firearm-related death or injury by doing one or more of the following: (a) Prohibiting a named individual from having under the custody or control of the individual, owning, purchasing, possessing, or receiving a firearm; or (b) having a firearm removed or requiring the surrender of firearms from a named individual.

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