City of Memphis Referendum Ordinance No. 5908 Question 3 of 3 - Extreme Risk Protection Orders Amendment

"This Amendment authorizes City ordinances that would allow a court to order immediate temporary and extended protection from a person ("Respondent") who is determined to be in possession or receipt of a firearm and will pose a significant danger or extreme risk of personal injury or death to another person or to himself or herself. Only specified persons may seek an extreme risk protection order ("Protection Orders") from a court, such as a law enforcement officer, a member of the family or household of Respondent, a dating or intimate partner of Respondent, a health care provider who has provided health services to Respondent, or an official of a school or school system in which Respondent is enrolled or has been enrolled within the preceding month. The Amendment would require any City ordinance to provide procedures for the application, issuance, content, duration, enforcement of Protection Orders and violations thereof, which provisions afford specified persons options for immediate protection for themselves, members of the public and/or the Respondent while preserving the due process rights of the Respondent. The Amendment also authorizes seizure of any firearms in possession of Respondent while any Protection Order is in effect." Shall the Charter of the City of Memphis be amended to read: Section 1. EXTREME RISK PROTECTION ORDERS A. Definitions 1. "Petitioner" means: (A) A law enforcement officer or agency, including an attorney for the state; (B) A member of the family of the respondent, which shall be understood to mean a parent, spouse, child, or sibling of the respondent; (C) A member of the household of the respondent; (D) A dating or intimate partner of the respondent; (E) A health care provider who has provided health services to the respondent; (F) An official of a school or school system in which the respondent is enrolled or has been enrolled within the preceding month; 2. "Respondent" means the person against whom an order under Section 2 or 3 has been sought or granted. B. Types of Orders 1. The petitioner may apply for an emergency ex parte order as provided in Section 2 or an order following a hearing as provided in Section 3. Section 2. EMERGENCY EX PARTE ORDER (a) Basis for Order. The court shall issue an emergency ex parte extreme risk protection order upon submission of an application by a petitioner, supported by an affidavit or sworn oral statement of the petitioner or other witness, that provides specific facts establishing probable cause that the respondent's possession or receipt of a firearm will pose a significant danger or extreme risk of personal injury or death to the respondent or another person. The court shall take up and decide such an application on the day it is submitted, or if review and decision of the application on the same day is not feasible, then as quickly as possible but in no case later than forty-eight hours. (b) Content of Order. An order issued under this section shall, (1) prohibit the respondent from possessing, using, purchasing, manufacturing, or otherwise receiving a firearm; (2) order the respondent to provisionally surrender any firearms in his or her possession or control, and any license or permit allowing the respondent to possess or acquire a firearm, to any law enforcement officer presenting the order or to a law enforcement agency as directed by the officer or the order; and (3) inform the respondent of the time and place of the hearing under Section 3 to determine whether he or she will be subject to a continuing prohibition on possessing and acquiring firearms. (c) Search and Seizure. (1) If the application and its supporting affidavit or statement establish probable cause that the respondent has access to a firearm, on his or her person or in an identified place, the court shall concurrently issue a warrant authorizing a law enforcement agency to search the person of the respondent and any such place for firearms and to seize any firearm therein to which the respondent would have access. (2) The court may subsequently issue additional search warrants of this nature based on probable cause that the respondent has retained, acquired, or gained access to firearm while an order under this section remains in effect. (3) If the owner of a firearm seized pursuant to this subsection is a person other than the respondent, the owner may secure the return of the firearm as provided in Section 3(c)(3). (d) Time for Service and Searches. The responsible law enforcement agency shall serve the order on the respondent and carry out any search authorized under subsection (c)(1), promptly following issuance of the order. If a search is authorized under subsection (c)(1), the agency may serve the order on the respondent concurrently with or after the execution of the search. SEC. 3. ORDER AFTER HEARING (a) Order After Hearing. Upon application for an extreme risk protection order, supported by an affidavit or sworn oral statement of the petitioner or other witness that provides specific facts giving rise to the concern about the significant danger or extreme risk described in Section 2, the court may issue an order under this section, which shall be effective for a period of one (1) year after a hearing. An order issued under this section shall, (1) prohibit the respondent from possessing, using, purchasing, or otherwise receiving a firearm; and (2) order the respondent to surrender any firearm in his or her possession or control, and any license or permit allowing the respondent to possess or acquire a firearm, to any law enforcement officer presenting the order or to a law enforcement agency as directed by the officer or the order. (b) Basis for order. The court shall issue such an order based on a preponderance of the evidence that the respondent's possession or receipt of a firearm will pose a significant danger or extreme risk of personal injury or death to the respondent or another person. In determining the satisfaction of this requirement, the court shall consider all relevant facts and circumstances after reviewing the petitioner's application and conducting the hearing described in Section 2(d). The court may order a psychological evaluation of the respondent, including voluntary or involuntary commitment of the respondent for purposes of such an evaluation, to the extent authorized by other law. (c) Search and Seizure. (1) If the evidence presented at the hearing establishes probable cause that the respondent has access to a firearm, on his or her person or in an identified place, the court shall concurrently issue a warrant authorizing a law enforcement agency to search the person of the respondent and any such place for firearms and to seize any firearm therein to which the respondent would have access. (2) The court may subsequently issue additional search warrants of this nature based on probable cause that the respondent has retained, acquired, or gained access to a firearm while an order under this section remains in effect. (3) If the owner of a firearm seized pursuant to this subsection is a person other than the respondent, the owner may secure the prompt return of the firearm by providing an affidavit to the law enforcement agency affirming his or her ownership of the firearm and providing assurance that he or she will safeguard the firearm against access by the respondent. The law enforcement agency shall return the firearm to the owner upon its confirmation, including by a check of the National Instant Criminal Background Check System and the applicable state firearm background check system, that the owner is not legally disqualified from possessing or receiving the firearm. (d) Time for Hearings and Service. (1) A hearing under this section shall be held within three (3) days of the filing of the application, or within one (1) day of the issuance of an emergency ex parte order under Section 2, if such an order is issued. The responsible law enforcement agency shall serve notice of the hearing on the respondent promptly after the filing of the application or issuance of an emergency ex parte order, but notice may be provided by publication or mailing if the respondent cannot be personally served within the specified period. The respondent shall be entitled to one continuance of up to two (2) days on request, and the court may thereafter grant an additional continuance or continuances for good cause. Any emergency ex parte order under Section 2 shall remain in effect until the hearing is held. The court may temporarily extend the emergency order at the hearing, pending a decision on a final order. (2) The responsible law enforcement agency shall serve an order issued under this section on the respondent and carry out any search authorized under subsection (c)(1), promptly following issuance of the order. If a search is authorized under subsection (c)(1), the agency may serve the order on the respondent concurrently with or after the execution of the search. (e) Termination and Renewal of Orders. (1) A respondent may file a motion to terminate an order under Section 3 one time during the effective period of that order. The respondent shall have the burden of proving, by the same standard of proof required for issuance of such an order, that he or she does not pose a significant danger or extreme risk of personal injury or death to himself or herself or another. (2) The petitioner may seek renewals of an order under this section for an additional six (6) months at any time preceding its expiration. Renewals after the initial order shall be granted subject to the same standards and requirements as an initial order. The preceding order shall remain in effect until the renewal hearing is held and the court grants or denies a renewed order. (3) If the respondent fails to appear at, or cannot be personally served in relation to, any hearing or renewal hearing under this section, the default does not affect the court's authority to issue an order or entitle the respondent to challenge the order prior to its expiration. The order will lapse after one (1) year if no eligible petitioner seeks its renewal. SEC. 4. ENTRY INTO BACKGROUND CHECK SYSTEMS The court shall forward any order issued under Section 2 or 3 to an appropriate law enforcement agency on the day it is issued. Upon receipt of an order under Section 3, the law enforcement agency shall make the order available to the National Instant Criminal Background Check System and any state system used to identify persons who are prohibited from possessing firearms. SEC. 5. VIOLATIONS The following persons shall be in violation of the City Code of Ordinances: (1) FILER OF FALSE OR HARASSING APPLICATION. – Any person filing an application under Section 2 or 3 containing information that he or she knows to be materially false, or for the purpose of harassing the respondent. (2) RESPONDENT NOT COMPLYING WITH ORDER. – Any person who knowingly violates an order under Section 2 or 3, including by possessing or acquiring a firearm in violation of the order or failing to surrender a firearm as required by the order. (3) PROVIDER OF PROHIBITED ACCESS TO RESPONDENT. – Any person who knowingly provides the subject of an order under Section 2 or 3 access to a firearm, in violation of an assurance the person has provided in an affidavit under Section 2(c)(3) or 3(c)(3) that he or she will safeguard the firearm against access by the respondent.