H. B. 4042
(By Delegates Miley, Brown and Moore)
[Introduced January 12, 2012; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §48-27-209 of the Code of West Virginia, 1931, as amended, and to amend and reenact §61-7-7 of said code, all relating to domestic violence protective orders; redefining the term “protective order”; and clarifying when the enforcement of firearms possession prohibition can occur after a domestic violence protective order is issued.
Be it enacted by the Legislature of West Virginia:
That §48-27-209 of the Code of West Virginia, 1931, as amended, be amended and reenacted, and that §61-7-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 48. DOMESTIC RELATIONS.
ARTICLE 27. DOMESTIC RELATIONS.
§48-27-209. Protective order defined.
“Protective order” means an emergency protective order entered by a magistrate, family court judge or circuit court judge as a result of the emergency hearing or a final protective order entered by a family court judge or circuit court judge upon final hearing.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties.
(a) Except as provided in this section, no person shall possess a firearm, as such is defined in section two of this article, who:
(1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
(2) Is habitually addicted to alcohol;
(3) Is an unlawful user of or habitually addicted to any controlled substance;
(4) Has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution pursuant to the provisions of chapter twenty-seven of this code: Provided, That once an individual has been adjudicated as a mental defective or involuntarily committed to a mental institution, he or she shall be duly notified that they are to immediately surrender any firearms in their ownership or possession: Provided, however, That the mental hygiene commissioner or circuit judge shall first make a determination of the appropriate public or private individual or entity to act as conservator for the surrendered property;
(5) Is an alien illegally or unlawfully in the United States;
(6) Has been discharged from the Armed Forces under dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate an emergency hearing by a magistrate, family court judge or circuit court judge or a final hearing by a family court judge or circuit court judge and for which the person subject to the protective order received actual notice or service pursuant to section one thousand three, article twenty-seven, chapter forty-eight;
(B) Restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(8) Has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant’s child or ward or a member of the defendant’s household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one $100 nor more than one $1,000 or confined in jail for not less than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this section, any person:
(1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than $5,000, or both. The provisions of subsection (c) of this section shall not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law: Provided, That a person prohibited from possessing a firearm by the provisions of subdivision (4), subsection (a) of this section may petition to regain the ability to possess a firearm in accordance with the provisions of section five, article seven-a of this chapter.
NOTE: The purpose of this bill is to broaden the definition of protective order and to clarify the circumstances in which prohibitions against the possession of firearms can be enforced.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.