2009 Legislative Changes 2009 Legislative Changes ConcerningConcerning

Protective Orders and Protective Orders and FirearmsFirearms

Effective October 1, 2009Effective October 1, 2009FVC--1

IntroductionIntroduction Changes in the Law.Changes in the Law.

6 changes in the law concerning protective orders, 2 6 changes in the law concerning protective orders, 2 related to firearms.related to firearms.

Guidelines and Training.Guidelines and Training.

Guidelines and training session by FVC task force to help Guidelines and training session by FVC task force to help agencies develop procedures.agencies develop procedures.

Purpose of the Training and Materials.Purpose of the Training and Materials. To help agencies and officers understand the changes in To help agencies and officers understand the changes in

order to implement procedures and to enforce the new order to implement procedures and to enforce the new laws.laws.

FVC--2

Changes in the LawChanges in the Law

Final Protective Orders (FPO) andFinal Protective Orders (FPO) andSurrender of FirearmsSurrender of Firearms

All respondents subject to a FPO are required to (1) All respondents subject to a FPO are required to (1) surrender all firearms in their possession to a law surrender all firearms in their possession to a law enforcement agencyenforcement agency and (2) refrain from possessing all and (2) refrain from possessing all firearms. firearms.

The surrender provision automatically applies to ALL FPOs. The surrender provision automatically applies to ALL FPOs. Box #12 ordering surrender is pre-checked.Box #12 ordering surrender is pre-checked.

The prohibition on possession of firearms is an addition to The prohibition on possession of firearms is an addition to the statute to clarify that the respondent shall not be in the statute to clarify that the respondent shall not be in possession of any firearms as long as the protective order possession of any firearms as long as the protective order is in effect.is in effect.

Summary:Summary: The judge is now REQUIRED to order surrender The judge is now REQUIRED to order surrender of all firearms in all FPOs and the respondent shall not of all firearms in all FPOs and the respondent shall not possess any firearm.possess any firearm.

FL, § 4-506 (E)FVC--3

Changes in the LawChanges in the LawTemporary Protective Orders (TPO) and Temporary Protective Orders (TPO) and

Surrender of FirearmsSurrender of Firearms In some cases of TPOs, respondents are In some cases of TPOs, respondents are

required to (1) surrender all firearms in their required to (1) surrender all firearms in their possession to a law enforcement agency and (2) possession to a law enforcement agency and (2) refrain from possessing all firearms.refrain from possessing all firearms.

A judge may now order the surrender of all A judge may now order the surrender of all firearms, under certain circumstances, by a firearms, under certain circumstances, by a respondent to a TPO. It is a discretionary option respondent to a TPO. It is a discretionary option for a judge, not mandatory as for FPOs.for a judge, not mandatory as for FPOs.

Summary:Summary: The surrender and refrain provisions The surrender and refrain provisions now may extend to TPOs; they previously now may extend to TPOs; they previously applied only to FPOs.applied only to FPOs.

FL, § 4-505 (a) (2) (viii) FVC--4

Changes in the LawChanges in the LawExtended Duration of TPOsExtended Duration of TPOs

The judge may now extend the The judge may now extend the duration of a TPO by up to 6 months duration of a TPO by up to 6 months to effectuate service.to effectuate service.

Previously, a TPO could be extended Previously, a TPO could be extended from 7 days to up to 30 days.from 7 days to up to 30 days.

FL, § 4-505 (c) (2)FVC--5

Changes in the LawChanges in the LawExtended Duration of Certain FPOsExtended Duration of Certain FPOs

A Final Protective Order may be A Final Protective Order may be effective for up to one year, with a effective for up to one year, with a provision to extend it up to 6 provision to extend it up to 6 additional months.additional months.

The existing duration remains The existing duration remains unchanged. However, under certain unchanged. However, under certain circumstances, a judge may issue a circumstances, a judge may issue a FPO for up to 2 years.FPO for up to 2 years.FL, § 4-506 (b) (2)

(iii) FVC--6

Changes in the LawChanges in the LawReturn of Children to the Custodial ParentReturn of Children to the Custodial Parent

The current “reasonable and necessary force” The current “reasonable and necessary force” provision now extends to both Interim and provision now extends to both Interim and TPOs, in addition to FPOs.TPOs, in addition to FPOs.

Since Interim Protective Orders are included, Since Interim Protective Orders are included, this means that commissioners may also this means that commissioners may also order the return of a child to the custodial order the return of a child to the custodial parent.parent.

See 84 Opinions of the Attorney General 105 See 84 Opinions of the Attorney General 105 (1999) concerning the use of reasonable and (1999) concerning the use of reasonable and necessary force.necessary force. FL, § 4-504.1 (D) & §4-505 (a) (3)

FVC--7

Changes in the LawChanges in the LawNotification of Service of Protective OrdersNotification of Service of Protective Orders

In effect 1-1-10 if funding is received…In effect 1-1-10 if funding is received… A law enforcement officer shall, within two A law enforcement officer shall, within two

hours after service of an IPO or TPO, hours after service of an IPO or TPO, electronically notify DPSCS of the service. electronically notify DPSCS of the service.

DPSCS notifies requesting petitioner of IPO DPSCS notifies requesting petitioner of IPO and TPO service within 1 hour after officer and TPO service within 1 hour after officer notifies DPSCS, and within 1 hour after notifies DPSCS, and within 1 hour after knowledge of FPO service.knowledge of FPO service.

FL, §4-504.1 (f) (3), FL, §4-505 (b) (1) (II), and FL, §4-504 (D).

FVC--8

Procedures and IssuesProcedures and IssuesDefinition and Aspects of Firearms Related to Definition and Aspects of Firearms Related to

Protective OrdersProtective Orders ““Firearms” is defined in Firearms” is defined in PS, §5-101 (h) (1 & 2)PS, §5-101 (h) (1 & 2)..

RRifles and shotguns are included.ifles and shotguns are included. Whenever a firearm is ordered surrendered:Whenever a firearm is ordered surrendered:

ALLALL firearms must be surrendered; no exceptions for firearms must be surrendered; no exceptions for unregulated firearms.unregulated firearms.

NONO firearm shall be possessed; no exceptions. firearm shall be possessed; no exceptions. Law enforcement officers are Law enforcement officers are NOT EXEMPTNOT EXEMPT. All . All

firearms, including service weapon, shall be surrendered.firearms, including service weapon, shall be surrendered.FVC--9

Procedures and IssuesProcedures and IssuesApplicability of Firearms to TPOsApplicability of Firearms to TPOs

If box #7 on the TPO is checked, the respondent If box #7 on the TPO is checked, the respondent may NOT legally possess any firearms. The may NOT legally possess any firearms. The respondent is restricted by FL, §4-505 (a) (2) (viii) respondent is restricted by FL, §4-505 (a) (2) (viii) that directs the respondent to surrender any that directs the respondent to surrender any firearm he/she possesses and to refrain from firearm he/she possesses and to refrain from possessing any firearm.possessing any firearm.

If box #7 on the TPO is not checked, the If box #7 on the TPO is not checked, the respondent is not restricted. The respondent may respondent is not restricted. The respondent may be in possession of any firearm he/she is legally be in possession of any firearm he/she is legally entitled to possess. entitled to possess.

FVC--10

Procedures and IssuesProcedures and IssuesService Packet: Notice LetterService Packet: Notice Letter

FL, §4-506.1 (A) provides that a law enforcement officer must give the FL, §4-506.1 (A) provides that a law enforcement officer must give the “…respondent information on the process for retaking possession of “…respondent information on the process for retaking possession of the firearm….” To accomplish this…the firearm….” To accomplish this…

The service packet for all TPOs where box #7 is checked and all FPOs The service packet for all TPOs where box #7 is checked and all FPOs will contain a new item: a letter from the court to the respondent will contain a new item: a letter from the court to the respondent concerning the surrender and retaking of his/her firearms.concerning the surrender and retaking of his/her firearms.

The letter entitled “Temporary or Final Protective Order Notice: Illegal The letter entitled “Temporary or Final Protective Order Notice: Illegal Firearms Possession” describes to the respondent: Firearms Possession” describes to the respondent: (1) the requirements of the law,(1) the requirements of the law, (2) the process for surrendering the firearm,(2) the process for surrendering the firearm, (3) the process for retaking possession of the firearm, and(3) the process for retaking possession of the firearm, and (4) the circumstances that prohibit the respondent from retaking (4) the circumstances that prohibit the respondent from retaking possession. possession.

To satisfy this requirement of the law: at the time of service or at the To satisfy this requirement of the law: at the time of service or at the time of surrender of firearms the law enforcement officer should refer time of surrender of firearms the law enforcement officer should refer the respondent to the contents of the letter re: retaking possession the respondent to the contents of the letter re: retaking possession and advise the respondent to follow the procedures outlined. and advise the respondent to follow the procedures outlined. FVC--11

Procedures and IssuesProcedures and IssuesServing TPOs Serving TPOs (firearms involved)(firearms involved)

After serving the order and reading the surrender provision After serving the order and reading the surrender provision to the respondent:to the respondent: The serving officer should ask the respondent if he/she The serving officer should ask the respondent if he/she

possesses any firearms.possesses any firearms. If the respondent says no, the officer should advise the If the respondent says no, the officer should advise the

respondent that:respondent that: It is illegal to possess any firearm; It is illegal to possess any firearm; Any firearms in his/her possession must be Any firearms in his/her possession must be

surrendered immediately; surrendered immediately; Failure to surrender is a violation of the law; and Failure to surrender is a violation of the law; and Transfer of firearms to another is a violation of the Transfer of firearms to another is a violation of the

law.law.FVC--12

Procedures and IssuesProcedures and IssuesServing TPOs Serving TPOs (continued)(continued)

If MILES indicates the respondent has firearms, or the If MILES indicates the respondent has firearms, or the petitioner claims the respondent has, and investigation petitioner claims the respondent has, and investigation reveals the respondent does possess firearms, an arrest reveals the respondent does possess firearms, an arrest warrant should be sought.warrant should be sought.

If the respondent acknowledges possession of firearms, the If the respondent acknowledges possession of firearms, the serving officer should seek their surrender immediately on serving officer should seek their surrender immediately on the scene.the scene.

If the officer determines there is probable cause to believe If the officer determines there is probable cause to believe the respondent possesses firearms and is refusing to the respondent possesses firearms and is refusing to surrender them, the officer shall effect an on-scene arrest surrender them, the officer shall effect an on-scene arrest and may obtain a search warrant.and may obtain a search warrant.

FVC--13

Procedures and IssuesProcedures and IssuesTransportation and Storage of FirearmsTransportation and Storage of Firearms

FL, §4-506.1 (A) provides that a law enforcement officer FL, §4-506.1 (A) provides that a law enforcement officer shall “…transport and store the firearm in a protective shall “…transport and store the firearm in a protective case, if one is available, and in a manner intended to case, if one is available, and in a manner intended to prevent damage to the firearm during the time the prevent damage to the firearm during the time the protective order is in effect.”protective order is in effect.”

If the respondent requests that the firearms be transported If the respondent requests that the firearms be transported in a protective case and makes one available, the officer in a protective case and makes one available, the officer shall transport those firearms that fit in the case. shall transport those firearms that fit in the case.

The officer is not required to suggest the use of a The officer is not required to suggest the use of a protective case.protective case.

Other firearms that do not have a protective case provided Other firearms that do not have a protective case provided by the respondent shall be transported safely and carefully. by the respondent shall be transported safely and carefully.

It is the agency’s responsibility to maintain the integrity of It is the agency’s responsibility to maintain the integrity of stored firearms.stored firearms.

FVC--14

Procedures and IssuesProcedures and IssuesAgency Responsibility Upon Receipt of FPOAgency Responsibility Upon Receipt of FPO

Once the copy of the FPO is received by the law enforcement Once the copy of the FPO is received by the law enforcement agency, the agency should:agency, the agency should: Contact the respondent to arrange for the surrender of Contact the respondent to arrange for the surrender of

his/her firearms; his/her firearms; Although the respondent has already been served with the Although the respondent has already been served with the

FPO, provide the respondent with a copy of the order to FPO, provide the respondent with a copy of the order to ensure that the respondent is aware that he/she must ensure that the respondent is aware that he/she must surrender firearms; andsurrender firearms; and

Annotate the “Remarks” field of MILES/NCIC with “firearms Annotate the “Remarks” field of MILES/NCIC with “firearms surrender ordered”.surrender ordered”.

If the respondent fails to comply with the arrangement and If the respondent fails to comply with the arrangement and there is probable cause to believe the respondent possesses there is probable cause to believe the respondent possesses firearms, the agency shall arrest the respondent or, if an arrest firearms, the agency shall arrest the respondent or, if an arrest is not physically possible, should apply for an arrest warrant. is not physically possible, should apply for an arrest warrant.

FVC--15

Procedures and IssuesProcedures and IssuesSurrender of Firearms Policy and ProceduresSurrender of Firearms Policy and Procedures

Each agency that serves protective Each agency that serves protective orders as a primary responsibility will orders as a primary responsibility will establish its own policy and establish its own policy and procedures for how firearms will be procedures for how firearms will be surrendered. surrendered.

FVC--16

Procedures and IssuesProcedures and IssuesSurrender of Firearms to AgencySurrender of Firearms to Agency

Box #12 on the FPO and box #7 on the TPO have a line on which the Box #12 on the FPO and box #7 on the TPO have a line on which the judge enters the specific law enforcement agency to which a judge enters the specific law enforcement agency to which a respondent shall surrender firearms.respondent shall surrender firearms.

Generally, that is the sheriff’s office, but it varies from jurisdiction to Generally, that is the sheriff’s office, but it varies from jurisdiction to jurisdiction. Those agencies are designated as the agencies to which jurisdiction. Those agencies are designated as the agencies to which firearms will be surrendered. firearms will be surrendered.

The judge selects the agency to which firearms should to be The judge selects the agency to which firearms should to be surrendered. surrendered.

The judge is not bound to the list; he/she may also select an agency The judge is not bound to the list; he/she may also select an agency that is not listed as the serving agency. that is not listed as the serving agency.

If the respondent turns the firearms in to an agency other than the If the respondent turns the firearms in to an agency other than the designated agency, the receiving agency should not refer the designated agency, the receiving agency should not refer the respondent to the designated agency but should accept the firearms. respondent to the designated agency but should accept the firearms.

FVC--17

Procedures and IssuesProcedures and IssuesNotifying the CourtNotifying the Court

When a respondent surrenders firearms, the agency When a respondent surrenders firearms, the agency will: will: Document the surrender in its protective order file, Document the surrender in its protective order file,

andand Submit to the court a copy of the property inventory Submit to the court a copy of the property inventory

sheet orsheet or a form similar to the model entitled a form similar to the model entitled “Schedule of Firearms Surrendered or Seized–“Schedule of Firearms Surrendered or Seized–Temporary or Final Protective Order,” as a means of Temporary or Final Protective Order,” as a means of recording and notifying the court of the surrender of recording and notifying the court of the surrender of firearms. The model is attached to the Guidelines.firearms. The model is attached to the Guidelines.

FVC--18

Procedures and IssuesProcedures and IssuesNotifying the Court Notifying the Court (continued)(continued)

If firearms are confiscated by or surrendered to an agency If firearms are confiscated by or surrendered to an agency other than the one designated in the protective order: other than the one designated in the protective order: The receiving agency should take custody of those The receiving agency should take custody of those

firearms and immediately notify the agency to whom the firearms and immediately notify the agency to whom the firearms were supposed to have been turned in that the firearms were supposed to have been turned in that the firearms have been taken into custody.firearms have been taken into custody.

The receiving agency may take steps to transfer the The receiving agency may take steps to transfer the firearms to the designated agency if an arrangement firearms to the designated agency if an arrangement can be mutually agreed upon.can be mutually agreed upon.

With information from the original custody agency, the With information from the original custody agency, the designated agency will document the custody and notify designated agency will document the custody and notify the court.the court.

FVC--19

Procedures and IssuesProcedures and IssuesCircumstances for Retaking PossessionCircumstances for Retaking Possession

If the respondent seeks to retake If the respondent seeks to retake possession and is eligible to do so, possession and is eligible to do so, he/she may retake possession of the he/she may retake possession of the firearms at the expiration of a TPO or firearms at the expiration of a TPO or FPO, unlessFPO, unless: : the respondent is ordered to surrender the the respondent is ordered to surrender the

firearms in a FPO,firearms in a FPO, the FPO is extended, orthe FPO is extended, or the respondent is not otherwise legally the respondent is not otherwise legally

entitled to own or possess the firearm. entitled to own or possess the firearm. FVC--20

Procedures and IssuesProcedures and IssuesNotification to Retake PossessionNotification to Retake Possession

Except for the notification for Except for the notification for retaking possession given to the retaking possession given to the respondent at the time of surrender, respondent at the time of surrender, there is no specific requirement in there is no specific requirement in the surrender provision to notify the the surrender provision to notify the respondent after a TPO or FPO has respondent after a TPO or FPO has expired. Agencies should follow their expired. Agencies should follow their standard property procedures.standard property procedures.

FVC—21

Considerations About Enforcement Considerations About Enforcement Enforcement of the Surrender ProvisionEnforcement of the Surrender Provision

You have no discretionYou have no discretion about about whether or not to arrest a respondent whether or not to arrest a respondent if the surrender and possession if the surrender and possession condition is violated, and he/she is condition is violated, and he/she is present.present.

In cases where the respondent is not In cases where the respondent is not present, you should seek an arrest present, you should seek an arrest warrant.warrant.

FVC—22

Considerations About Enforcement Considerations About Enforcement ScenariosScenarios

1.1. If there is If there is no probable cause to believe that the no probable cause to believe that the respondent possesses firearmsrespondent possesses firearms or it becomes evident or it becomes evident that the respondent does not possess firearms and the that the respondent does not possess firearms and the order requires surrender, there is no probable cause to order requires surrender, there is no probable cause to believe that there is a violation and therefore arrest is not believe that there is a violation and therefore arrest is not authorized.authorized.

2.2. If the petitioner If the petitioner claims the respondent has not turned claims the respondent has not turned in any firearmsin any firearms (or has kept some of them) and they (or has kept some of them) and they are in the home and accessible to the victimare in the home and accessible to the victim, a law , a law enforcement officer could respond to the location with the enforcement officer could respond to the location with the petitioner and, if the petitioner has the legal authority to petitioner and, if the petitioner has the legal authority to consent to a search of the location, seize the firearms.consent to a search of the location, seize the firearms.

FVC—23

Considerations About Enforcement Considerations About Enforcement Scenarios Scenarios (continued)(continued)

3. If the victim claims the respondent has not turned in any firearms (or has kept some of them) and they are in the home but NOT accessible to the victim, or they are in another location, a law enforcement officer would have to determine whether the respondent had turned in any firearms and then conduct an investigation to determine whether there is probable cause to believe that the respondent has not complied with the order.

4. If the respondent fails to surrender firearms and there is probable cause to believe the respondent possesses firearms, and a reasonable amount of time has passed that would have enabled a respondent to “immediately” surrender his/her firearms, a law enforcement officer shall arrest the respondent or, if an arrest is not physically possible because the respondent is not present, the officer should apply for an arrest warrant. A search warrant may also be A search warrant may also be sought.sought.

FVC—24

Considerations About Enforcement Considerations About Enforcement Legal AdviceLegal Advice

The accompanying guide and The accompanying guide and training are intended as a training training are intended as a training tool and offer some procedural tool and offer some procedural recommendations. It is not intended recommendations. It is not intended to substitute for the advice of legal to substitute for the advice of legal counsel. Please use due care and counsel. Please use due care and consult state and local laws, legal consult state and local laws, legal advisor, State’s Attorney, and agency advisor, State’s Attorney, and agency policy and procedure.policy and procedure.

FVC—25