HB 87 — DOMESTIC VIOLENCE & FIREARM POSSESSION

the frame or receiver of any e e 17 such weapon;

e e n d 18m "Firearm": includes any handgun, rifle or shotgun." = = l ] 19 SECTION 2.

Sectionb 40-13-2e NMSAd 1978s (beingº Lawso 1987,t n = .211034.4 s k m e - 4 - e a ln e d r ie 20l Chapteru 286,[ SectionA 2,d as"Firearm" amended)includes isany amendedhandgun, torifle read:or shotgun." SECTION 2.

tSection e40-13-2 aNMSA t1978 "40-13-2.(being Laws 1987, Chapter 286, Section 2, as amended) is amended to read:

DEFINITIONS.--As"40-13-2. used in the Family Violence m m 21 e d r e 22 Protection Act:

cDEFINITIONS.--As eused rin cthe 23Family A.Violence Protection Act:

"continuingA. personal relationship" means a e a n b 24 dating or intimate relationship;

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

"co-parents"B. means persons who have a child in .211034.4 - 4 - common, regardless of whether they have been married or have lived together at any time;

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

h (2) means an incident by a household member g o t hr against another household member consisting of or resulting in:

g e i k (a) physical harm;

h r i s (b) severe emotional distress;

h , t, (c) bodily injury or assault;

e u g e b l e e h (d) a threat causing imminent fear of n d d i = = o h bodily injury by any household member;

l ] b ,d i a º e (e) criminal trespass;

er i = r t e 17w d m a n o (f) criminal damage to property;

e e n d 18m (g): repeatedly driving by a residence or = = l ] 19 work place;

b e d s º o t n = .211034.4 s k m e - 5 - e a ln e d r ie 20l (h)u telephone[ harassment;A d (g) repeatedly driving by a residence or work place;

t(h) etelephone a t (i) harassment;

m(i) mharassment; 21 e d r e 22 (j) strangulation;

c(j) estrangulation; r c 23 (k) suffocation;

or(k) esuffocation; a n b 24 (l) harm or threatened harm to children u [ as set forth in this paragraph;

andor .211034.4(l) -harm 5or -threatened (3)harm doesto notchildren meanas theset useforth of force in self-this defenseparagraph; or the defense of another;

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

the frame or receiver of any 6 such weapon;

"household member" means a spouse, former h spouse, parent, present or former stepparent, present or former g o t hr [parent in-law ] parent-in-law, grandparent, grandparent-in-law, g e i k child, stepchild, grandchild, co-parent of a child or a person h r i s with whom the petitioner has had a continuing personal h , t, relationship.

Cohabitation is not necessary to be deemed a e u g e b l e e h household member for purposes of this section;

n d d i = = o h G.

"law enforcement officer" means a public l ] b ,d i a º e official or public officer vested by law with a duty to er ei 17= maintainr publict order or to make arrests for crime, whether e ew n d 18m thata dutyn extendso tomaintain allpublic crimesorder or is limited to specificmake =arrests =for lcrime, ]whether 19d crimes;m :

b e d s º o t n = .211034.4 s k m e - 6 - e a ln e d r ie 20l [F.]u H.[ A d that duty extends to all crimes or is limited to specific crimes;

"mutual[F.] orderH. of protection" means an order t e a t of protection that includes provisions that protect both m m 21 e d r e 22 parties;

c"mutual eorder rof cprotection" 23means [G.]an I.order of protection that includes provisions that protect both parties;

"order[G. of protection" means an injunction e a n b 24 or a restraining or other court order granted for the u [ protection of a victim of domestic abuse;

.211034.4] -I. 6 - [H.] J.

"order of protection" means an injunction or a restraining or other court order granted for the protection of a victim of domestic abuse;

[H.

] J.

[I.][I. K.

] K.

[J.

"strangulation" has the same meaning as set [J.forth in Section 30-3-11 NMSA 1978;

forthand in[K. Section 30-3-11 NMSA 1978;

and] [K.] M.

"suffocation" has the same meaning as set forth in Section 30-3-11 NMSA 1978." h SECTION 3.

Section 40-13-5 NMSA 1978 (being Laws 1987, g o t hr Chapter 286, Section 5, as amended) is amended to read:

g e i k "40-13-5.

ORDER OF PROTECTION--CONTENTS--REMEDIES--TITLE h r i s TO PROPERTY NOT AFFECTED--MUTUAL ORDER OF PROTECTION.-- h , t, A.

Upon finding that domestic abuse has occurred or e u g e b l e e h upon stipulation of the parties, the court shall enter an order n d d i = = o h of protection ordering the restrained party to:

l ] b ,d i a º e (1) refrain from abusing the protected party er i = r t e 17w d m a n o or any other household member;

e e n d 18m (2): relinquish any firearm owned by the = = l ] 19 restrained party or in the restrained party's possession, care, a l r i 20 custody or control to a law enforcement officer or law t e a t enforcement agency while the order of protection is in effect;

mb e d s º o t n = .211034.4 s k m 21e - 7 - e a n e d r e 22l andu c[ eA rd c(2) 23relinquish (3)any refrainfirearm fromowned purchasing,by receiving,the erestrained aparty nor bin 24the possessingrestrained party's possession, care, custody or attemptingcontrol to purchase,a receivelaw orenforcement possessofficer anyor ulaw [enforcement firearmagency while the order of protection is in effect.effect;

.211034.4and -(3) 7refrain -from B.purchasing, receiving, possessing or attempting to purchase, receive or possess any firearm while the order of protection is in effect.

B.

(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 h provide temporary suitable alternative housing for the u » r protected party and any children to whom the restrained party t h g e l i owes a legal obligation of support;

h r i s (2) award temporary custody of any children h , e h involved when appropriate and provide for visitation rights, t u g e b l e e , gh child support and temporary support for the protected party on n d d i = = o h a basis that gives primary consideration to the safety of the l ] b ,d i a º r protected party and the children;

e r = t e 17w d m a n o (3) order that the restrained party shall not e e n d 18m initiate: contact with the protected party;

=b = l ] 19 (4) restrain a party from transferring, a l r ie 20 concealing, encumbering or otherwise disposing of the other t eº ao t party'sn property= or.211034.4 thes jointk property of the parties except in m m 21 e d- r8 e- 22 the usual course of business or for the necessities of life and c e r c 23 require the parties to account to the court for all such e a n be 24d transferences,r encumbrancese andl expenditures made after the u [ orderA isd servedinitiate orcontact communicatedwith to the restrainedprotected party;

.211034.4(4) -restrain 8a -party (5)from ordertransferring, theconcealing, restrainedencumbering partyor tootherwise reimbursedisposing of the protectedother partyparty's property or anythe otherjoint householdproperty memberof forthe expensesparties reasonablyexcept relatedin to the occurrenceusual course of domesticbusiness abuse,or includingfor medicalthe expenses,necessities counselingof expenses,life and require the expenseparties ofto seekingaccount temporaryto shelter,the expensescourt for theall replacementsuch ortransferences, repairencumbrances ofand damagedexpenditures propertymade orafter the expenseorder ofis lostserved wages;or communicated to the restrained party;

(6)(5) order the restrained party to participatereimburse in,the atprotected theparty restrainedor party'sany expense,other professionalhousehold counselingmember programsfor deemedexpenses appropriatereasonably byrelated to the court,occurrence of domestic abuse, including medical expenses, counseling programsexpenses, forthe perpetratorsexpense of domesticseeking abuse,temporary alcoholshelter, abuseexpenses for the replacement or abuserepair of controlleddamaged substances;property or the expense of lost wages;

and(6) (7) order otherthe injunctiverestrained reliefparty asto participate in, at the courtrestrained deemsparty's necessaryexpense, forprofessional counseling h programs deemed appropriate by the protectioncourt, including counseling u » r programs for perpetrators of adomestic party,abuse, includingalcohol ordersabuse toor lawt enforcementh agenciesg ase providedl byi thisabuse section.of controlled substances;

[B.and h r i s (7) order other injunctive relief as the court h , e h deems necessary for the protection of a party, including orders t u g e b l e e , gh to law enforcement agencies as provided by this section.

The order of protection shall contain a notice that violation of any provision of the order constitutes e e 17 contempt of court and may result in a fine or imprisonment or e e n d 18d both.]i = = lo ]h 19[B. C.

The order of protection shall contain notice a notice l r] b ,d i 20a º r that violation of any provision of the order ofconstitutes protectione isr a= t e w d m a tn crimeo pursuantcontempt toof federalcourt and statemay law.result in a fine or imprisonment or d m :

mb r e t º o t n = .211034.4 s k m 21e - 9 - e a n e d r e 22l [C.]u D.[ A d both.] C.

IfThe the order of protection supersedesshall orcontain cnotice ethat rviolation cof 23any altersprovision prior orders of the courtorder pertainingof toprotection domesticis matters e a ncrime bpursuant 24to betweenfederal theand parties,state thelaw. order shall say so on its face.

If[C.] anD. u [ action relating to child custody or child support is pending or .211034.4 - 9 - 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.

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.

A mutual order of protection shall be h issued only in cases where both parties have petitioned the u » r court and the court makes detailed findings of fact indicating t h g e l i that both parties acted primarily as aggressors and that h r i s neither party acted primarily in self-defense.

h , e h [E.] F.

No order issued under the Family Violence t u g e b l e e , gh Protection Act shall affect title to any property or allow a n d d i = = o h party to transfer, conceal, encumber or otherwise dispose of l ] b ,d i a º r another party's property or the joint or community property of e r = t e 17w d m a n o the parties.

e e n d 18m [F.]: G.

Eitherb partyr maye requestt aº reviewo hearingt =n = l.211034.4 ]s 19k tom amende an- order10 of- protection.e a n e d r e l u [ A d [F.] G.

AnEither orderparty of protection a l r i 20 involving child custody or support may berequest modified without t e a treview proofhearing ofto aamend substantialan ororder material change of circumstances.protection.

mAn morder 21of eprotection dinvolving rchild ecustody 22or [G.]support H.may be modified without proof of a substantial or material change of circumstances.

An[G.] orderH. of protection shall not be issued c e r c 23 unless a petition or a counter petition has been filed." e a n b 24 SECTION 4.

AAn neworder section of theprotection Familyshall Violencenot ube [issued Protectionunless Acta ispetition enactedor toa read:counter petition has been filed." SECTION 4.

.211034.4A -new 10section -of "[NEWthe MATERIAL]Family RELINQUISHMENTViolence OFProtection FIREARMS--PENALTY.--Act A.is enacted to read:

After"[NEW theMATERIAL court] hasRELINQUISHMENT issuedOF noticeFIREARMS--PENALTY.-- thatA. the restrained party is subject to the provisions of Paragraphs (2) and (3) of Subsection A of Section 40-13-5 NMSA 1978, the restrained party shall relinquish all firearms in the restrained party's immediate possession or control or subject to the restrained party's possession or control in a safe manner to a law enforcement officer or a law enforcement agency within forty-eight hours of issuance of the order.

B.After the court has issued notice that the restrained party is subject to the provisions of Paragraphs (2) and (3) of Subsection A of Section 40-13-5 NMSA 1978, the restrained party shall relinquish all firearms in the restrained party's immediate possession or control or subject to the restrained party's possession or control in a safe manner to a law enforcement officer or a law enforcement agency h within forty-eight hours of issuance of the order.

Ag lawo enforcementt officerhr orB. law enforcement agency shall take possession of all firearms subject to the order of protection that are relinquished by the restrained party or are in plain sight or are discovered pursuant to a lawful search.

C.A law enforcement officer or law enforcement g e i k agency shall take possession of all firearms subject to the h r i s order of protection that are relinquished by the restrained h , t, party or are in plain sight or are discovered pursuant to a e u g e b l e e h lawful search.

An lawd enforcementd officeri or= law= enforcemento agencyh thatC. takes temporary possession of a firearm pursuant to e e 17 this section shall:

eA law enforcement officer or law enforcement l ] b ,d i a º e nagency dthat 18takes (1)temporary preparepossession of a receiptfirearm identifyingpursuant allto firearmsr =i = lr ]t 19e thatw haved beenm relinquisheda orn taken;o this section shall:

ad lm r: i 20 (2) provide a copy of the receipt to the t e a t restrained party;

mb m 21 e d rs eº 22o (3)t providen a= copy.211034.4 ofs thek receiptm toe the- c11 - e ra cn 23e petitionerd withinr seventy-twoe hoursl ofu taking[ possessionA ofd the(1) eprepare a nreceipt bidentifying 24all firearm;firearms that have been relinquished or taken;

u(2) [provide (4)a filecopy of the original receipt withto the courtrestrained .211034.4party; - 11 - that issued the order of protection within seventy-two hours of taking possession of the firearm;

(3) provide a copy of the receipt to the petitioner within seventy-two hours of taking possession of the firearm;

(4) file the original receipt with the court that issued the order of protection within seventy-two hours of taking possession of the firearm;

A restrained party who does not own or have possession, control or custody of a firearm shall file a declaration of non-relinquishment with the court that issued the order of protection within HCPACº five daysdays»HCPAC h HCPACºseventy-two hours»HCPAC of the issuance of the order.

g o t hr E.

A court that has probable cause to believe that g e i k a restrained party has failed to relinquish a firearm in h r i s violation of an order of protection or received or purchased a h , t, firearm while subject to the order of protection shall issue a e u g e b l e e h search warrant pursuant to Rule 5-211 NMRA:

n d d i = = o h (1) describing the firearm;

l ] b ,d i a º e (2) authorizing a search of the location where er i = r t e 17w d m a n o the firearm is reasonably believed to be;

and e e n d 18m (3): authorizing the seizure of any firearm = = l ] 19 discovered pursuant to the search.

b e d s º o t n = .211034.4 s k m e - 12 - e a ln e d r ie 20l F.u [ A d (3) authorizing the seizure of any firearm discovered pursuant to the search.

AnF. order of protection issued pursuant to t e a t Section 40-13-5 NMSA 1978 shall include:

mAn morder 21of eprotection dissued rpursuant eto 22Section (1)40-13-5 aNMSA statement1978 that the restrained party c e r c 23 shall notinclude: purchase, receive, transport, possess or have custody e a n b 24 or control of a firearm while the order of protection is in u [ effect;

.211034.4(1) -a 12statement -that (2)the arestrained descriptionparty shall not purchase, receive, transport, possess or have custody or control of thea requirementsfirearm forwhile the relinquishmentorder of firearmsprotection asis provided in thiseffect; section;

(2) a description of the requirements for the relinquishment of firearms as provided in this section;

or h (b) a declaration of non-relinquishment;

g o t hr (4) the expiration date of relinquishment;

g e i k (5) the address of the court that issued the h r i s order of protection;

and h , t, (6) a statement that violation of any e u g e b l e e h provision of the order of protection is a crime pursuant to n d d i = = o h federal and state law.

l ] b ,d i a º e G.

If the respondent is present at the hearing on er ei 17= ther ordert of protection, the court shall provide the respondent e ew n d 18m with a receiptn formo tothe identifyorder allof firearmsprotection, tothe becourt surrenderedshall =provide = l ] 19 or, if the respondent hasd nom firearms: to relinquish, a a l r i 20 declaration of non-relinquishment.

Theb courte shalld accepts theº o t n = .211034.4 s k m e - 13 - e a tn completede d r e l u [ A d with a receipt form fromto identify all firearms to be surrendered or, if the respondent forhas immediateno filing.firearms to relinquish, a declaration of non-relinquishment.

mThe mcourt 21shall eaccept dthe rcompleted eform 22from H.the respondent for immediate filing.

AH. law enforcement officer and law enforcement c e r c 23 agency shall be immune from civil or criminal liability for any e a n b 24 damage or deterioration of firearms stored or transported u [ pursuant to this section.

ThisA subsectionlaw shallenforcement notofficer applyand iflaw .211034.4enforcement -agency 13shall -be theimmune damagefrom civil or deteriorationcriminal wasliability thefor resultany ofdamage recklessness, gross negligence or intentionaldeterioration misconductof byfirearms thestored lawor enforcementtransported officerpursuant orto lawthis enforcementsection. agency.

This subsection shall not apply if the damage or deterioration was the result of recklessness, gross negligence or intentional misconduct by the law enforcement officer or law enforcement agency.

The local law enforcement agency shall make a firearm available within thirty days of receipt of a request h from a formerly restrained party who is then currently eligible u » r to own and possess a firearm.

t h g e l i K.

A formerly restrained party who has surrendered h r i s or had firearms taken by a law enforcement officer or law h , e h enforcement agency pursuant to this section who does not wish t u g e b l e e , gh the firearm returned or who is no longer eligible to possess a n d d i = = o h firearm may sell or transfer the firearm to a licensed firearms l ] b ,d i a º r dealer.

The law enforcement agency shall not release the e r = t e 17w d m a n o firearm to a licensed firearms dealer until:

e e n d 18m (1): the licensed firearms dealer has displayed = = l ] 19 proof that the formerly restrained party has transferred the a l r i 20 firearm to the dealer;

andb tr e a t (2)º theo lawt enforcementn agency= has.211034.4 verifieds mk m 21e - 14 - e a n e d r e 22l u [ A d (1) the transferlicensed withfirearms dealer has displayed proof that the formerly restrained party.party has transferred the firearm to the dealer;

cand e(2) rthe claw 23enforcement L.agency has verified the transfer with the formerly restrained party.

AL. law enforcement agency holding a firearm e a n b 24 relinquished pursuant to this section may dispose of the u [ firearm six months from the date of proper notice to the .211034.4 - 14 - formerly restrained party of the intent to dispose of the firearm, unless another person claiming to be the lawful owner presents written proof of ownership.

A law enforcement agency holding a firearm relinquished pursuant to this section may dispose of the firearm six months from the date of proper notice to the formerly restrained party of the intent to dispose of the firearm, unless another person claiming to be the lawful owner presents written proof of ownership.

h M.

This section shall not affect the ability of a u » r law enforcement officer to remove a firearm from a person t h g e l i pursuant to other lawful authority.

h r i s N.

The administrative office of the courts shall h , e h develop a standard receipt form and declaration of non- t u g e b l e e , gh relinquishment form for use under this section." n d d i = = o h SECTION 5.

EFFECTIVE DATE.--The effective date of the l ] b ,d i a º r provisions of this act is July 1, 2019.

e er 17 - 15 - e e n d 18 = = l ] 19 a l r i 20 t e aw td m m 21 e d r e 22 c e r c 23 e a n bo 24- u15 [- .211034.4d m :

b r e t º o t n = .211034.4 s k m e e a n e d r e l u [ A d