7 LONG TITLE
8 General Description:
9 This bill creates the Extreme Risk Protective Order Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ enacts the Extreme Risk Protective Order Act;
13 ▸ defines terms;
14 ▸ enables a family member or law enforcement to ask a court to restrain a person from
15 possessing any firearms or ammunition for a specified length of time;
16 ▸ requires the courts to develop and adopt uniform forms for all courts;
17 ▸ requires that the court consider whether the respondent:
18 • has made recent threats or acted violently;
19 • violated a recent protective order;
20 • has demonstrated a pattern of violent acts or threats within the past 12 months;
21 • is dangerous; or
22 • has attempted or threatened self-harm;
23 ▸ allows a court to issue a search warrant if a respondent refuses to surrender firearms
24 and ammunition upon service of an order;
25 ▸ requires the courts to report the respondent's information to the Bureau of Criminal
26 Identification upon issuance, and to remove the information upon expiration;
27 ▸ allows the respondent to surrender firearms and ammunition to a law enforcement
28 agency or a federal firearms licensee;
29 ▸ provides for disposal if the firearms and ammunition are not reclaimed upon
31 ▸ requires the director of POST to create and implement training and materials; and
32 ▸ requires the courts to create and distribute an annual report on extreme risk
33 protective orders.
34 Money Appropriated in this Bill:
36 Other Special Clauses:
37 This bill provides a special effective date.
38 Utah Code Sections Affected:
40 53-10-208.1, as last amended by Laws of Utah 2019, Chapters 33 and 365
42 78B-7-601, Utah Code Annotated 1953
43 78B-7-602, Utah Code Annotated 1953
44 78B-7-603, Utah Code Annotated 1953
45 78B-7-604, Utah Code Annotated 1953
46 78B-7-605, Utah Code Annotated 1953
47 78B-7-606, Utah Code Annotated 1953
48 78B-7-607, Utah Code Annotated 1953
49 78B-7-608, Utah Code Annotated 1953
50 78B-7-609, Utah Code Annotated 1953
51 78B-7-610, Utah Code Annotated 1953
52 78B-7-611, Utah Code Annotated 1953
54 Be it enacted by the Legislature of the state of Utah:
55 Section 1. Section 53-10-208.1 is amended to read:
56 53-10-208.1. Magistrates and court clerks to supply information.
57 (1) Every magistrate or clerk of a court responsible for court records in this state shall,
58 within 30 days of the disposition and on forms and in the manner provided by the division,
59 furnish the division with information pertaining to:
60 (a) all dispositions of criminal matters, including:
61 (i) guilty pleas;
62 (ii) convictions;
63 (iii) dismissals;
64 (iv) acquittals;
65 (v) pleas held in abeyance;
66 (vi) judgments of not guilty by reason of insanity[
67 (vii) judgments of guilty with a mental illness;
68 (viii) finding of mental incompetence to stand trial; and
69 (ix) probations granted;
70 (b) orders of civil commitment under the terms of Section 62A-15-631;
71 (c) the issuance, recall, cancellation, or modification of all warrants of arrest or
72 commitment as described in Rule 6, Utah Rules of Criminal Procedure and Section 78B-6-303,
73 within one day of the action and in a manner provided by the division; and
74 (d) protective orders issued after notice and hearing, pursuant to:
75 (i) Title 77, Chapter 36, Cohabitant Abuse Procedures Act;
76 (ii) Title 78B, Chapter 7, Part 1, Cohabitant Abuse Act;
77 (iii) Title 78B, Chapter 7, Part 4, Dating Violence Protection Act; [
78 (iv) Title 78B, Chapter 7, Part 5, Sexual Violence Protection Act[
79 (v) Title 78B, Chapter 7, Part 6, Extreme Risk Protective Order Act.
80 (2) The court in the county where a determination or finding was made shall transmit a
81 record of the determination or finding to the bureau no later than 48 hours after the
82 determination is made, excluding Saturdays, Sundays, and legal holidays, if an individual is:
83 (a) adjudicated as a mental defective; or
84 (b) involuntarily committed to a mental institution in accordance with Subsection
86 (3) The record described in Subsection (2) shall include:
87 (a) an agency record identifier;
88 (b) the individual's name, sex, race, and date of birth; and
89 (c) the individual's social security number, government issued driver license or
90 identification number, alien registration number, government passport number, state
91 identification number, or FBI number.
92 Section 2. Section 78B-7-601 is enacted to read:
94 78B-7-601. Title.
95 This part is known as the "Extreme Risk Protective Order Act."
96 Section 3. Section 78B-7-602 is enacted to read:
97 78B-7-602. Definitions.
98 As used in this part:
99 (1) "Bureau" means the Bureau of Criminal Identification created in Section
101 (2) "Dangerous" means a respondent:
102 (a) presents an imminent risk of serious personal injury to himself, herself, or to others;
104 (b) may present a risk of serious personal injury to him or herself or to another
105 individual in the near future and is the subject of relevant personal knowledge that would give
106 rise to a reasonable belief that the respondent has a propensity for violent conduct.
107 (3) "Ex parte extreme risk protective order" or "ex parte order" means an order by a
108 district court in response to a filing by a petitioner that the respondent has not had the
109 opportunity to respond to, and requires the respondent to surrender his or her firearms and
110 ammunition to the law enforcement officer who serves the order pending a hearing.
111 (4) "Extreme risk protective order" means an order that is in place for one year from
112 the date of issuance that prohibits the respondent from purchasing or possessing firearms, and
113 is issued by a district court after a hearing where the respondent had an opportunity to be heard
114 and a finding was made that the respondent is dangerous.
115 (5) "Family member" means a parent, step-parent, sibling, step-sibling, spouse, child,
116 or stepchild of the respondent.
117 (6) "Federal Firearm Licensee" means a person who is licensed under 18 U.S.C. Sec.
119 (7) "Firearm" means the same as that term is defined in Section 76-10-501.
120 (8) "Law Enforcement Officer" means only those officers described in Subsections
121 53-13-103(1)(b)(i) and (ii).
122 (9) "Recent" means within the previous 12 months.
123 Section 4. Section 78B-7-603 is enacted to read:
124 78B-7-603. Extreme risk protective order -- Affidavit -- Filing -- Court to develop,
125 adopt, and provide forms.
126 (1) Any family member of the respondent, individual who has resided with the
127 respondent within the previous six months, or a law enforcement officer may seek an extreme
128 risk protective order from the district court in the county where the respondent resides
129 restraining the respondent from possessing any firearms.
130 (2) The request shall consist of a written affidavit on a form provided by the court in
131 the county where the respondent resides. The Administrative Office of the Courts shall develop
132 and adopt uniform forms in accordance with the provisions of this chapter to be distributed to
133 all courts within the state.
134 (a) The offices of the court clerk shall provide nonlegal assistance to persons filing
135 under this part.
136 (b) Forms provided by the court to file for an extreme risk protective order shall
137 include a statement informing the petitioner that knowing falsification of any statement or
138 information provided for the purpose of obtaining an ex parte order is a third degree felony.
139 (3) The affidavit shall include, if known, any information the petitioner has regarding
140 firearms the respondent may possess, including types, number, and location.
141 (4) No charges may be imposed by a court clerk, constable, or law enforcement agency
143 (a) filing a petition under this part;
144 (b) obtaining an extreme risk protective order or an ex parte order; or
145 (c) obtaining copies, either certified or not certified, necessary for service or delivery to
146 law enforcement officials.
147 (5) A petitioner may petition the court for an ex parte extreme risk protective order. In
148 determining if a respondent is dangerous, the court shall consider whether:
149 (a) there has been a recent threat of violence, or act of violence, by the respondent
150 toward himself, herself, or others, including the transmission of threats through electronic or
151 digital means;
152 (b) the respondent is a restricted person in accordance with Section 76-10-503;
153 (c) the respondent is dangerous;
154 (d) the respondent recently violated a protective order issued in accordance with any
155 other part of this chapter; or
156 (e) there has been a recent pattern of violent acts or threats by the respondent and other
157 less restrictive alternatives either have been tried and found to be ineffective or are inadequate
158 or inappropriate for the circumstances of the respondent.
159 (6) In determining whether grounds for an extreme risk protective order exist, the court
160 may also consider other evidence of an increased risk for violence, including evidence of any of
161 the following:
162 (a) the reckless use, display, or brandishing of a firearm by the respondent;
163 (b) the history of use, attempted use, or threatened use of physical force by the
164 respondent against another individual;
165 (c) an act or threat of violence against himself or herself;
166 (d) a prior arrest of the respondent for a violent felony offense or violent crime;
167 (e) evidence, including police reports and records of convictions, of either recent
168 criminal offenses by the respondent that involve controlled substances or alcohol or ongoing
169 abuse of controlled substances or alcohol by the respondent; and
170 (f) evidence of the recent acquisition of firearms or ammunition.
171 (7) The court shall make a concerted effort to set hearings in such a way that the
172 respondent is able to comply with the requirements of this chapter.
173 (8) Evidence that the respondent suffers from a mental illness may not be the sole
174 criteria for the issuance of an ex parte extreme risk protective order, however at any time
175 during the process and any subsequent hearings, the court may consider whether the respondent
176 suffers from a mental illness and, at its discretion, recommend an evaluation by a designated
177 examiner in accordance with Section 62A-15-631.
178 Section 5. Section 78B-7-604 is enacted to read:
179 78B-7-604. Ex parte order -- Court responsibilities -- Surrender of firearms --
180 Hearing -- Expiration.
181 (1) If the court determines by a preponderance of the evidence that the respondent is
182 dangerous, the court shall:
183 (a) issue an ex parte extreme risk protective order that includes:
184 (i) a statement of the grounds asserted for the order;
185 (ii) the date and time the order was issued;
186 (iii) the date and time the order expires;
187 (iv) the address of the court in which any responsive pleading should be filed;
188 (v) the date and time of the scheduled hearing;
189 (vi) a description of the requirements for surrender of firearms under Section
190 78B-7-604; and
191 (vii) the following statement:
192 "TO THE SUBJECT OF THIS PROTECTION ORDER: THIS ORDER IS VALID
193 UNTIL THE DATE AND TIME NOTED ABOVE. YOU ARE REQUIRED TO
194 SURRENDER ALL FIREARMS IN YOUR CUSTODY, CONTROL, OR POSSESSION.
195 YOU MAY NOT HAVE IN YOUR CUSTODY OR CONTROL, PURCHASE, POSSESS,
196 RECEIVE, OR ATTEMPT TO PURCHASE OR RECEIVE, A FIREARM WHILE THIS
197 ORDER IS IN EFFECT. YOU MUST SURRENDER TO (INSERT NAME OF LOCAL LAW
198 ENFORCEMENT AGENCY) OR, WITHIN 24 HOURS, TO A FEDERALLY LICENSED
199 FIREARMS DEALER ALL FIREARMS IN YOUR CUSTODY OR UNDER YOUR
200 CONTROL. A HEARING WILL BE HELD ON THE DATE AND AT THE TIME NOTED
201 ABOVE TO DETERMINE IF AN EXTREME RISK PROTECTIVE ORDER SHOULD BE
202 ISSUED. FAILURE TO APPEAR AT THAT HEARING MAY RESULT IN THE COURT
203 ISSUING AN ORDER AGAINST YOU THAT IS VALID FOR ONE YEAR. YOU MAY
204 SEEK THE ADVICE OF AN ATTORNEY AS TO ANY MATTER CONNECTED WITH
205 THIS ORDER."; and
206 (b) set a hearing date within 14 days of the date of the ex parte order.
207 (2) Upon the issuance of the ex parte extreme risk protective order in Subsection (1),
208 the petitioner shall deliver a copy of the ex parte order to the law enforcement agency with
209 jurisdiction over the area in which the respondent resides. The local law enforcement agency
210 shall serve a copy of the ex parte order upon the respondent.
211 (3) The ex parte extreme risk protective order shall order the respondent to surrender
212 all firearms and ammunition to the law enforcement officer serving the order at the time of
213 service or to a federal firearms licensee within 24 hours.
214 (4) The law enforcement officer shall provide the respondent with:
215 (a) a receipt listing all firearms and ammunition received from the respondent; and
216 (b) an information sheet containing:
217 (i) the issuance and expiration dates of the ex parte extreme risk protective order;
218 (ii) notice of the date, time, and court in which the hearing on the order will be held;
219 (iii) a statement that it is a third degree felony to refuse to surrender all firearms and
220 ammunition to the law enforcement officer serving the order;
221 (iv) a statement that it is a third degree felony to possess, purchase, or receive a firearm
222 or ammunition while the order is in effect;
223 (v) a statement that failure to appear at the hearing may result in the court making the
224 ex parte order a permanent extreme risk protective order which would be in effect for up to a
225 year; and
226 (vi) the process for reclaiming the respondent's firearms and ammunition.
227 (5) The law enforcement officer shall file the return of service and a copy of the receipt
228 for any firearms received with the court within 48 hours, not including Saturdays, Sundays, and
229 legal holidays.
230 (6) (a) At the hearing, the court shall determine by clear and convincing evidence
231 whether the respondent is dangerous and:
232 (i) issue an extreme risk protective order for not less than one year;
233 (ii) extend the ex parte extreme risk protective order up to 20 days and set another
234 hearing; or
235 (iii) if the court determines that the respondent is not dangerous, vacate the ex parte
236 extreme risk protective order.
237 (b) If the court vacates the ex parte order under Subsection (6)(a)(iii), the law
238 enforcement agency shall return the respondent's firearms and ammunition in accordance with
239 Subsection 78B-7-608(2).
240 (c) If the extension in Subsection (6)(a)(ii) is because the respondent was not present,
241 and the respondent fails to show for the second hearing, the court shall issue an extreme risk
242 protective order with an expiration date of one year from the date of issuance.
243 (7) The extreme risk protective order shall include:
244 (a) a statement of the grounds supporting the issuance of the order;
245 (b) the date and time the order was issued;
246 (c) the date and time the order expires;
247 (d) the address of the court in which any responsive pleading should be filed;
248 (e) a description of the requirements for relinquishment of firearms under section
249 78B-7-604 of this part; and
250 (f) the following statement:
251 "TO THE SUBJECT OF THIS PROTECTION ORDER: THIS ORDER WILL LAST
252 UNTIL THE DATE AND TIME NOTED ABOVE. IF YOU HAVE NOT DONE SO
253 ALREADY, YOU MUST SURRENDER TO THE (NAME OF LOCAL LAW
254 ENFORCEMENT AGENCY) OR A FEDERALLY LICENSED FIREARMS DEALER ALL
255 FIREARMS IN YOUR CUSTODY, CONTROL, OR POSSESSION IMMEDIATELY. YOU
256 MAY NOT HAVE IN YOUR CUSTODY OR CONTROL, PURCHASE, POSSESS,
257 RECEIVE, OR ATTEMPT TO PURCHASE OR RECEIVE, A FIREARM WHILE THIS
258 ORDER IS IN EFFECT. YOU HAVE THE RIGHT TO REQUEST ONE HEARING TO
259 TERMINATE THIS ORDER DURING THE TIME PERIOD THAT THIS ORDER IS IN
260 EFFECT, STARTING FROM THE DATE OF THIS ORDER AND CONTINUING
261 THROUGH ANY RENEWALS. YOU MAY SEEK THE ADVICE OF AN ATTORNEY AS
262 TO ANY MATTER CONNECTED WITH THIS ORDER."
263 (8) (a) If a law enforcement officer has probable cause to believe, based on the officer's
264 experience and training, that removing firearms and ammunition from the respondent at the
265 time the law enforcement officer is serving the ex parte order would increase the risk of
266 substantial danger to the respondent, law enforcement officers, or others, the law enforcement
267 officer may exercise the discretion to only serve the ex parte extreme risk protective order, as
268 permitted by policies and procedures established by the officer's law enforcement agency and
269 any applicable federal or state statute.
270 (b) If a law enforcement officer exercises discretion under this Subsection (8) and only
271 serves the ex parte extreme risk protective order, the law enforcement officer shall document in
272 the return of service the details and circumstances that led to the law enforcement officer's
274 (c) If a law enforcement officer exercises discretion under this Subsection (8), the law
275 enforcement officer and the law enforcement officer's employing agency is not liable in a civil
276 action for subsequent actions taken by the respondent or actions by law enforcement officers in
277 the course of reasonable efforts to serve the ex parte order or to remove firearms and
278 ammunition from the respondent.
279 Section 6. Section 78B-7-605 is enacted to read:
280 78B-7-605. Search warrant.
281 (1) A court that issued an ex parte extreme risk protective order may issue a search
282 warrant for any firearms or ammunition possessed, or within the custody or control of the
283 respondent if:
284 (a) the respondent has been lawfully served and failed to surrender all firearms and
285 ammunition required by the ex parte order; or
286 (b) the law enforcement officer exercised discretion under Subsection 78B-7-604(8)
287 and did not receive any firearms or ammunition.
288 (2) The search warrant shall:
289 (a) indicate the place or places to be searched; and
290 (b) limit the items to be retrieved to firearms and ammunition.
291 Section 7. Section 78B-7-606 is enacted to read:
292 78B-7-606. Petition to vacate -- Expiration.
293 (1) A respondent subject to an extreme risk protective order may petition the court to
294 vacate the extreme risk protective order not less than 180 days after issuance. Upon receipt of a
295 petition to vacate an extreme risk protective order, the court shall set a time and date for a
296 hearing and notify the original petitioner.
297 (2) In order to vacate an extreme risk protective order, the respondent shall prove by a
298 preponderance of the evidence that the respondent is no longer dangerous.
299 (3) If the court finds by a preponderance of the evidence that the respondent is no
300 longer dangerous, the court shall vacate the extreme risk protective order.
301 (4) If the court denies the respondent's petition, the respondent may not petition the
302 court to vacate the order again, unless the order is extended in accordance with Subsection (5).
303 (5) An extreme risk protective order shall expire not less than one year from the date
304 the extreme risk protective order was issued by the court unless the petitioner, within 60 days
305 of the expiration date of the extreme risk protective order, petitions the court to extend it.
306 (6) If the court extends the order, the court shall set a date on which the extended order
307 shall expire. The respondent may petition the court to vacate the order not less than 180 days
308 before the order is due to expire.
309 (7) Upon the vacation or expiration of an extreme risk protective order, the respondent
310 may reclaim any firearms surrendered to or seized by a law enforcement agency, unless the
311 respondent is no longer eligible to own or possess a firearm in accordance with Section
313 Section 8. Section 78B-7-607 is enacted to read:
314 78B-7-607. Court to provide information to the bureau.
315 Upon the issuance or expiration of an extreme risk protective order, the court shall
316 provide the respondent's information to the bureau.
317 Section 9. Section 78B-7-608 is enacted to read:
318 78B-7-608. Law enforcement agency responsibilities -- Federal firearms licensee
319 responsibilities -- Return of firearms.
320 (1) If a respondent surrenders firearms and ammunition to a local law enforcement
321 agency, the local law enforcement agency shall provide to the respondent:
322 (a) a receipt for all firearms and ammunition received that includes the following
324 (i) the case number and issue date of the ex parte extreme risk protective order;
325 (ii) type and description of each firearm; and
326 (iii) the number and type of rounds of ammunition received; and
327 (b) an information sheet explaining:
328 (i) the respondent's options for the storage or disposal of the firearms and ammunition;
330 (ii) when and how the respondent may reclaim the firearms from the local law
331 enforcement agency upon the expiration of the extreme risk protective order.
332 (2) Upon the expiration of an extreme risk protective order, the local law enforcement
333 agency storing the respondent's firearms and ammunition shall return the firearms and
334 ammunition to the respondent within 72 hours of the respondent's request, excluding Saturdays,
335 Sundays, and legal holidays. During the 72-hour period, the local law enforcement agency shall
336 verify that the respondent is not prohibited from owning or possessing a firearm under Section
338 (3) If the respondent is prohibited from owning or possessing a firearm or ammunition
339 under Section 76-10-503, the local law enforcement agency shall provide the respondent with a
340 list of choices that include:
341 (a) retention and disposal of the firearm and ammunition by the local law enforcement
342 agency in accordance with Section 24-3-103.5;
343 (b) transfer of the firearm and ammunition to another member of the respondent's
344 family with the understanding that the respondent may not have access to the firearm or
345 ammunition; or
346 (c) transfer of the firearm and ammunition to a federal firearms licensee dealer to be
347 sold on the respondent's behalf.
348 (4) If the respondent chooses to surrender firearms and ammunition to a federal
349 firearms licensee for storage or disposal, the federal firearms licensee shall provide a receipt to
350 the respondent for all firearms and ammunition surrendered that includes:
351 (a) the date on which the firearms and ammunition were surrendered;
352 (b) an itemized listing of all firearms and ammunition surrendered;
353 (c) the case number and issue date of the ex parte extreme risk protective order;
354 (d) a statement indicating whether the surrendered items are to be stored or disposed
356 (e) a statement that if the respondent does not reclaim any firearm or ammunition, it
357 will be provided to a local law enforcement agency for disposal; and
358 (f) the respondent's signature acknowledging the accuracy of the receipt and that the
359 respondent received the original and a copy of the receipt.
360 (5) The respondent shall file the original receipt with the court within one business day
361 of surrendering all firearms and ammunition to a federal firearms licensee.
362 (6) Upon vacation or expiration of an extreme risk protective order, the federal
363 firearms licensee shall perform a background check before returning any firearms or
364 ammunition to the respondent.
365 (7) If the respondent is prohibited from possessing a firearm or ammunition, the federal
366 firearms licensee shall provide the respondent with the same choices for disposal as in
367 Subsection (3).
368 (8) If a respondent does not reclaim or attempt to reclaim a surrendered firearm or
369 ammunition under this section within 36 months of the extreme risk protective order's original
370 expiration date the local law enforcement agency shall dispose of the firearm and ammunition
371 in accordance with Section 24-3-103.5.
372 Section 10. Section 78B-7-609 is enacted to read:
373 78B-7-609. Development and distribution of training materials.
374 (1) The director of the Peace Officer Standards and Training Division shall develop
375 and distribute training materials to aid law enforcement officers in the execution of the
376 requirements of this part.
377 (2) Materials on de-escalation shall be included in all training materials.
378 Section 11. Section 78B-7-610 is enacted to read:
379 78B-7-610. Penalties.
380 (1) A petitioner who knowingly provides false information for the purpose of obtaining
381 an ex parte extreme risk protective order or extreme risk protective order is guilty of a third
382 degree felony.
383 (2) Any person who provides a firearm or ammunition to a respondent knowing that
384 the respondent is subject to an extreme risk protective order is guilty of a third degree felony.
385 (3) A respondent who possesses a firearm or ammunition while subject to an ex parte
386 extreme risk protective order or an extreme risk protective order is guilty of a third degree
388 Section 12. Section 78B-7-611 is enacted to read:
389 78B-7-611. Report.
390 (1) Not later than December 31, 2021, and each year thereafter, the Administrative
391 Office of the Courts shall provide a written report on extreme risk protective orders to the
393 (2) The report shall be provided to the chairs of the following committees:
394 (a) Law Enforcement and Criminal Justice Interim Committee;
395 (b) House Law Enforcement and Criminal Justice Standing Committee; and
396 (c) Senate Judiciary, Law Enforcement, and Criminal Justice Standing Committee.
397 (3) The report shall contain:
398 (a) the total number of ex parte extreme risk protective orders filed in that year;
399 (b) whether the petitioner was a law enforcement officer, family member, or a person
400 who resided with the respondent;
401 (c) how many ex parte extreme risk protective orders were granted and became
402 extreme risk protective orders;
403 (d) the number of ex parte extreme risk protective orders vacated;
404 (e) the number of ex parte extreme risk protective orders the court considered
406 (f) the duration of each extreme risk protective order; and
407 (g) the reasons given on each petition for an ex parte extreme risk protective order.
408 Section 13. Effective date.
409 This bill takes effect on July 1, 2020.