REFERENCE TITLE: mental health; injunction; firearm possession
State of Arizona
House of Representatives
First Regular Session
Representatives Friese: Alston, Engel, Gabaldón, Powers Hannley, Rios
amending title 12, chapter 10, article 1, Arizona Revised Statutes, by adding section 12‑1811; relating to injunctions.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Title 12, chapter 10, article 1, Arizona Revised Statutes, is amended by adding section 12-1811, to read:
12-1811. Mental health injunction against firearm possession; petition; grounds; enforcement; definition
A. An immediate family member or a peace officer may file a verified petition with a magistrate, justice of the peace or superior court judge for an injunction that prohibits a person from possessing, controlling, owning or receiving a firearm. Notwithstanding the location of the person, any court may issue or enforce a mental health injunction against firearm possession.
B. A mental health injunction against firearm possession may not be granted unless the party who requests the injunction files a written verified petition for the injunction.
C. The petition shall state all of the following:
1. The name of the petitioner. The petitioner's address shall be disclosed to the court for purposes of service. If the address of the petitioner is unknown to the defendant, the petitioner may request that the address be protected. On the petitioner's request, the address may not be listed on the petition. Whether or not the court issues a mental health injunction against firearm possession, the protected address shall be maintained in a separate document or automated database and is not subject to release or disclosure by the court or any form of public access except as ordered by the court.
2. The name and address of the defendant.
3. The number, types and locations of any firearms believed to be controlled or possessed by the defendant.
4. Whether the defendant:
(a) Suffers from a mental illness or disorder.
(b) Directed any recent threats or acts of violence toward another.
(c) Directed any recent threats or acts of violence toward himself.
(d) Was arrested for or convicted of a violent or dangerous offense or an offense involving domestic violence.
(e) Acquired firearms or other deadly weapons within the previous six months.
(f) Unlawfully and recklessly used, displayed or brandished a firearm.
D. A fee may not be charged for filing a petition under this section. Fees for service of process may be deferred or waived under any rule or law applicable to civil actions. The court shall advise the petitioner that the petitioner may be eligible for the deferral or waiver of these fees at the time the petitioner files a petition. The court may not require the petitioner to perform community restitution as a condition of the waiver or deferral of fees for service of process. A law enforcement agency or constable may not require the advance payment of fees for service of process of a mental health injunction against firearm possession. If the court does not waive the fees, the serving agency may assess the actual fees against the petitioner. The petitioner may request that an injunction that is issued by a municipal court be served by the police agency for that city or town if the defendant can be served within the city or town. If the defendant cannot be served within the city or town, the police agency in the city or town in which the defendant can be served may serve the injunction. The petitioner may request that an injunction that is issued by a justice of the peace shall be served by the constable for that jurisdiction if the defendant can be served within that jurisdiction. If the defendant cannot be served within that jurisdiction, the constable in the jurisdiction in which the defendant can be served shall serve the injunction. The petitioner may request that an injunction that is issued by a superior court judge or commissioner be served by the sheriff of the county. If the defendant cannot be served within that jurisdiction, the sheriff in the jurisdiction in which the defendant can be served may serve the injunction. The court shall provide, without charge, forms to assist parties without counsel.
E. The court shall review the petition, any other pleadings on file and any evidence offered by the petitioner, including any threats of harm to the petitioner or others by electronic contact or communication, to determine whether it should issue the injunction without a further hearing. Rules 65(a)(1) and 65(e) of the Arizona rules of civil procedure do not apply to injunctions that are requested pursuant to this section. If the court finds reasonable evidence that the defendant poses a significant danger of personal injury to himself or another person by possessing, controlling, owning or receiving a firearm or that good cause exists to believe that a mental health injunction against firearm possession is necessary to prevent personal injury from occurring to the defendant or another person, because less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the defendant, if the injunction is not granted before the defendant or the defendant's attorney can be heard in opposition and the court finds reasons supporting the petitioner's claim that notice should not be given, the court shall issue an injunction as provided for in subsection F of this section. If the court denies the requested relief, it may schedule a further hearing within ten days after the denial with reasonable notice to the defendant.
F. If the court finds that there is clear and convincing evidence to issue a mental health injunction against firearm possession the court shall issue an injunction that prohibits the defendant from possessing, controlling, owning or receiving a firearm.
G. At any time during the period that the injunction is in effect the defendant is entitled to one hearing on written request. A fee may not be charged for requesting a hearing. A hearing that is requested by the defendant must be held within ten days after the date requested unless the court finds compelling reasons to continue the hearing. The hearing must be held at the earliest possible time. An ex parte injunction that is issued under this section shall state on its face that the defendant is entitled to one hearing on written request and shall include the name and address of the judicial office where the request may be filed. After the hearing, the court may modify, quash or continue the mental health injunction against firearm possession.
H. A mental health injunction against firearm possession must include all of the following:
1. A statement of the grounds supporting the issuance of the injunction.
2. The address of the superior court for the county in which the enjoined party resides.
3. The following statement:
To the restrained person: This injunction will last for one year from the date that you are served. If you have not done so already, you must immediately surrender to the sheriff in your county all firearms that you own, control or possess. You may not own, purchase or have in your possession or control any firearms while this injunction is in effect. You have the right to request a hearing to terminate this injunction at any time during its effective period. You may seek the advice of an attorney as to any matter connected with the injunction.
Warning: This is an official court order. If you disobey this order, you may be arrested and prosecuted for the crime of interfering with judicial proceedings and any other crime you may have committed in disobeying this order.
I. If the injunction is served by a peace officer, the peace officer shall request that the defendant surrender each firearm described in the petition. If the defendant refuses, the peace officer shall notify the court and request a search warrant for the location of the firearm that is described in the petition. a peace officer shall transfer a firearm that is recovered to the sheriff in the jurisdiction in which the defendant was served.
J. Within twenty‑four hours after the injunction is issued the petition and injunction shall be provided to the sheriff of the county in which the order was issued, along with proof of service, if any. If the defendant has been served, the sheriff shall determine if the defendant has surrendered the firearm described in the petition. If the firearm has not been surrendered, the sheriff shall notify the court and request a search warrant for the location of the firearm that is described in the petition.
K. Whether the firearm is surrendered or recovered by a search warrant, the sheriff shall provide the defendant with a receipt for each firearm, including a description of the firearm and the serial number. The sheriff shall file a copy of the receipt with the court.
L. A copy of the petition and the injunction shall be served on the defendant within one year after the date the injunction is signed. An injunction that is not served on the defendant within one year expires. The injunction is effective on service of a copy of the injunction and petition and expires one year after service on the defendant. A modified injunction is effective on service and expires one year after service of the initial injunction and petition.
M. On the expiration or termination of a mental health injunction against firearm possession, the defendant may apply to the sheriff for the return of all firearms surrendered or recovered. Unless the defendant is a prohibited possessor under state or federal law, or a verified petition for renewal has been filed, all firearms shall be returned to the defendant.
N. A family member or peace officer may file a verified petition for renewal of a mental health injunction against firearm possession. Proceedings for the renewal of a mental health injunction against firearm possession shall be conducted pursuant to subsections C, D, E, and F of this section.
O. A supplemental information form that is used by the court or a law enforcement agency solely for service of process on the defendant and that contains information provided by the petitioner is confidential.
P. Each affidavit, acceptance or return of service shall be promptly filed with the clerk of the issuing court. This filing shall be completed in person, shall be made by fax or electronically, or shall be postmarked, if sent by mail, not later than the end of the seventh court business day after the date of service. If the filing is made by fax or electronically, the original affidavit, acceptance or return of service shall be promptly filed with the court. Within twenty-four hours after the affidavit, acceptance or return of service has been filed, excluding weekends and holidays, the court from which the injunction or any modified injunction was issued shall forward to the sheriff in the county in which the court is located a copy of the injunction and a copy of the affidavit or certificate of service of process or acceptance of service. On receiving these copies, the sheriff shall register the mental health injunction against firearm ownership. Registration of an injunction means that a copy of the injunction and a copy of the affidavit or certificate of service of process or acceptance of service have been received by the sheriff's office. The sheriff shall maintain a central repository for injunctions so that the existence and validity of the injunction can be easily verified. The effectiveness of the injunction does not depend on the injunction's registration, and for enforcement purposes a copy of an injunction, whether or not registered, is presumed to be a valid existing order of the court for a period of one year after the date of service of the injunction on the defendant.
Q. A peace officer, with or without a warrant, may arrest a person if the peace officer has probable cause to believe that the person has violated section 13-2810 by disobeying or resisting an injunction that is issued in any jurisdiction in this state pursuant to this section, whether or not the violation occurred in the presence of the officer. A criminal violation of an injunction issued pursuant to this section shall be referred to an appropriate law enforcement agency. The law enforcement agency shall request that a prosecutorial agency file the appropriate charges. A violation of a mental health injunction against firearm possession may not be adjudicated by a municipal or justice court unless a complaint has been filed or other legal process has been requested by the prosecuting agency. The provisions for release under section 13-3883, subsection A, paragraph 4 and section 13-3903 do not apply to an arrest made pursuant to this section.
R. A person who is arrested pursuant to subsection Q of this section may be released from custody in accordance with the Arizona rules of criminal procedure or any other applicable statute. An order for release, with or without an appearance bond, shall include pretrial release conditions that are necessary for the protection of the person and the public and may provide for any additional conditions that the court deems appropriate including participation in mental health screenings, evaluation or treatment. The agency with custody of the person shall make reasonable efforts to contact the petitioner, if known to the custodial agency.
S. The remedies provided in this section for enforcement of the orders of the court are in addition to any other civil and criminal remedies available.
T. A peace officer who makes an arrest or conducts a search pursuant to this section is not civilly or criminally liable for the arrest if the officer acts on probable cause and without malice.
U. Mental health injunction against firearm possession orders, including the expiration or termination of the orders, shall be forwarded to the department of public safety.
V. For the purposes of this section, "immediate family member" means a spouse, parent, child, guardian or sibling or any other person who regularly resides in the person's household or resided in the person's household within the past six months.