SENATE BILL 259

53rd legislature - STATE OF NEW MEXICO - first session, 2017

INTRODUCED BY

Joseph Cervantes

AN ACT

RELATING TO DOMESTIC VIOLENCE; PROHIBITING A PERSON SUBJECT TO CERTAIN ORDERS OF PROTECTION FROM POSSESSING OR PURCHASING FIREARMS; PROVIDING PROCEDURES FOR RELINQUISHMENT AND RETURN OF FIREARMS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 40-13-2 NMSA 1978 (being Laws 1987, Chapter 286, Section 2, as amended) is amended to read:

     "40-13-2. DEFINITIONS.--As used in the Family Violence Protection Act:

          A. "authorized recipient" means a:

                (1) law enforcement agency;

                (2) federally licensed firearms dealer; or

                (3) neutral third party;

          [A.] B. "continuing personal relationship" means a dating or intimate relationship;

          [B.] C. "co-parents" means persons who have a child in common, regardless of whether they have been married or have lived together at any time;

          [C.] D. "court" means the district court of the judicial district where an alleged victim of domestic abuse resides or is found;

          [D.] E. "domestic abuse":

                (1) means an incident of stalking or sexual assault whether committed by a household member or not;

                (2) means an incident by a household member against another household member consisting of or resulting in:

                     (a) physical harm;

                     (b) severe emotional distress;

                     (c) bodily injury or assault;

                     (d) a threat causing imminent fear of bodily injury by any household member;

                     (e) criminal trespass;

                     (f) criminal damage to property;

                     (g) repeatedly driving by a residence or work place;

                     (h) telephone harassment;

                     (i) harassment; or

                     (j) harm or threatened harm to children as set forth in this paragraph; and

                (3) does not mean the use of force in self-defense or the defense of another;

          F. "federally licensed firearms dealer" means a licensed importer, licensed manufacturer or licensed dealer who is required to conduct national instant criminal background checks pursuant to 18 U.S.C. Section 922(t);

          G. "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by action of an explosion, the frame or receiver of any such weapon or any firearm muffler or firearm silencer;

          [E.] H. "household member" means a spouse, former spouse, parent, present or former stepparent, present or former parent in-law, grandparent, grandparent-in-law, child, stepchild, grandchild, co-parent of a child or a person with whom the petitioner has had a continuing personal relationship. Cohabitation is not necessary to be deemed a household member for purposes of this section;

          [F.] I. "mutual order of protection" means an order of protection that includes provisions that protect both parties; 

          J. "neutral third party" means person who has completed a background check, is not prohibited by federal or state law from purchasing or possessing a firearm and does not reside with a restrained party;

          [G.] K. "order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

          [H.] L. "protected party" means a person protected by an order of protection; and

          [I.] M. "restrained party" means a person who is restrained by an order of protection."

     SECTION 2. Section 40-13-5 NMSA 1978 (being Laws 1987, Chapter 286, Section 5, as amended) is amended to read:

     "40-13-5. ORDER OF PROTECTION--CONTENTS--REMEDIES--TITLE TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.--

          A. Upon finding that domestic abuse has occurred or upon stipulation of the parties, and unless the court makes a specific finding on the record that there is no credible threat to the safety of a household member or that there is a substantial and compelling reason not to enter an order of protection, the court shall enter an order of protection ordering the restrained party:

                (1) to refrain from abusing the protected party or any other household member; and

                (2) after the restrained party has received notice of the order and had an opportunity to be heard:

                     (a) to relinquish any firearm in the restrained party's possession to an authorized recipient; and

                     (b) to refrain from purchasing, receiving, possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.           B. In an order of protection entered pursuant to Subsection A of this section, the court shall specifically describe the acts the court has ordered the restrained party to do or refrain from doing. As a part of any order of protection, the court may:

                (1) grant sole possession of the residence or household to the protected party during the period the order of protection is effective or order the restrained party to provide temporary suitable alternative housing for the protected party and any children to whom the restrained party owes a legal obligation of support;

                (2) award temporary custody of any children involved when appropriate and provide for visitation rights, child support and temporary support for the protected party on a basis that gives primary consideration to the safety of the protected party and the children;

                (3) order that the restrained party shall not initiate contact with the protected party;

                (4) restrain a party from transferring, concealing, encumbering or otherwise disposing of the other party's property or the joint property of the parties except in the usual course of business or for the necessities of life and require the parties to account to the court for all such transferences, encumbrances and expenditures made after the order is served or communicated to the restrained party;

                (5) order the restrained party to reimburse the protected party or any other household member for expenses reasonably related to the occurrence of domestic abuse, including medical expenses, counseling expenses, the expense of seeking temporary shelter, expenses for the replacement or repair of damaged property or the expense of lost wages;

                (6) order the restrained party to participate in, at the restrained party's expense, professional counseling programs deemed appropriate by the court, including counseling programs for perpetrators of domestic abuse, alcohol abuse or abuse of controlled substances; and

                (7) order other injunctive relief as the court deems necessary for the protection of a party, including orders to law enforcement agencies as provided by this section.

          [B.] C. The order of protection shall contain a notice that violation of any provision of the order constitutes contempt of court and may result in a fine or imprisonment or both. The court shall notify the relevant district attorney of a violation of an order of protection.

          [C.] D. If the order of protection supersedes or alters prior orders of the court pertaining to domestic matters between the parties, the order shall say so on its face. If an action relating to child custody or child support is pending or has concluded with entry of an order at the time the petition for an order of protection was filed, the court may enter an initial order of protection, but the portion of the order dealing with child custody or child support will then be transferred to the court that has or continues to have jurisdiction over the pending or prior custody or support action.

          [D.] E. A mutual order of protection shall be issued only in cases where both parties have petitioned the court and the court makes detailed findings of fact indicating that both parties acted primarily as aggressors and that neither party acted primarily in self-defense.

          [E. No] F. Notwithstanding provisions of the Family Violence Protection Act that require a restrained party to relinquish a firearm, an order issued [under the Family Violence Protection] pursuant to that act shall not affect title to any property or allow a party to transfer, conceal, encumber or otherwise dispose of another party's property or the joint or community property of the parties.

          [F.] G. Either party may request a review hearing to amend an order of protection. An order of protection involving child custody or support may be modified without proof of a substantial or material change of circumstances.

          [G.] H. An order of protection shall not be issued unless a petition or a counter petition has been filed."

     SECTION 3. A new section of the Family Violence Protection Act is enacted to read:

     "[NEW MATERIAL] REMOVAL OF FIREARMS--PENALTY.--

          A. Relinquishment of a firearm ordered pursuant to Section 40-13-5 NMSA 1978 shall occur by the restrained party surrendering any firearm in the restrained party's possession in a safe manner to an authorized recipient on or before the business day following service of the order of protection.

          B. A neutral third party who takes possession of a relinquished firearm shall, on the business day following the relinquishment, take the firearm to a law enforcement agency or a federally licensed firearms dealer and request that the agency or dealer use the national crime information center database to verify in writing that the neutral third party may lawfully take possession of the firearm. The restrained party shall, on or before the business day following the issuance of verification to the neutral third party, file the verification with the court that issued the order of protection. Failure to file the verification shall constitute a violation of the order of protection.

          C. A law enforcement officer or federally licensed firearms dealer that takes possession of a relinquished firearm shall issue a receipt to the restrained party at the time of relinquishment. The restrained party shall, on or before the business day following the relinquishment, file the receipt for the relinquished firearm with the court that issued the order of protection. Failure to file the receipt shall constitute a violation of the order of protection.

          D. A restrained party shall file a declaration of non-surrender with the court that issued the order of protection if the restrained party does not have a firearm in the restrained party's possession.

          E. An authorized recipient is immune from civil or criminal liability for any damage or deterioration of a relinquished firearm stored or transported pursuant to this section. This subsection shall not apply if the damage or deterioration occurred as a result of recklessness, gross negligence or intentional misconduct by the authorized recipient.

          F. If a restrained party declines to relinquish a firearm based on the assertion of the right against self- incrimination as provided by the fifth amendment to the United States constitution and Article 2, Section 15 of the constitution of New Mexico, the court may grant use immunity for the act of relinquishing a firearm pursuant to this section.

          G. Upon expiration or termination of an order of protection:

                (1) if the firearm was relinquished to a neutral third party, the formerly restrained party and the neutral third party shall report together with the relinquished firearm to the law enforcement agency that served the order of protection and the agency shall:

                     (a) determine whether the formerly restrained party is prohibited by federal or state law from purchasing or possessing a firearm;

                     (b) using the national crime information center database, determine whether the formerly restrained party may lawfully take possession of the firearm; and

                     (c) inform the neutral third party that the relinquished firearm may lawfully be returned to the formerly restrained party, or if the formerly restrained party may not lawfully take possession of it, the agency shall take possession of the firearm; and

                (2) if the firearm was relinquished to a law enforcement agency or a federally licensed firearms dealer, the agency or dealer shall:

                     (a) determine whether the formerly restrained party is prohibited by federal or state law from purchasing or possessing a firearm;

                     (b) using the national crime information center database, determine whether the formerly restrained party may lawfully take possession of the firearm; and

                     (c) return the firearm to the formerly restrained party if that person may lawfully possess the firearm, or if the formerly restrained party may not lawfully take possession of it, the agency or dealer shall retain possession of the firearm. A federally licensed firearms dealer that retains a firearm that may not be returned to a formerly restrained party shall deliver that firearm to the law enforcement agency that served the order of protection on the formerly restrained party on or before the business day following the dealer's determination that the firearm could not be returned.

          H. If a law enforcement agency or a federally licensed firearms dealer determines, pursuant to Subsection

G of this section, that a formerly restrained party is prohibited by federal or state law from possessing a firearm, the formerly restrained party shall be afforded an opportunity to sell the firearm through a federally licensed firearms dealer.

          I. If a firearm that was relinquished was stolen from the authorized recipient to whom it was relinquished, upon recovery, the authorized recipient shall follow the procedures in Subsection G of this section."

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