H. B. 4422
(By Delegates Miley, Brown, Ferro,
Longstreth, Moore and Ross)
(By request of the West Virginia Supreme Court of Appeals)
[Introduced February 10, 2010; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §61-7-7 of the Code of West Virginia,
1931, as amended, relating to clarifying that an individual is
prohibited from possessing firearms and ammunition when a
protective order is issued and served; and authorizing the
enforcement of firearms prohibition after the emergency
protective order is issued.
Be it enacted by the Legislature of West Virginia:
That §61-7-7 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
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 may
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 by a magistrate,
family court judge or circuit court judge and the person
has been
served or received actual notice
and at which such person had an
opportunity to participate of the issuance of a protective order
and has been given a reasonable opportunity to comply with the
order as provided in section one thousand three, article twenty-seven chapter forty-eight of this code;
(B) Restrains
such the person from harassing, stalking or
threatening an intimate partner of
such the person or child of
such
the 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 the person represents a
credible threat to the physical safety of
such the intimate partner
or child; or
(ii) By its terms explicitly prohibits the use, attempted use
or threatened use of physical force against
such the 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 is guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than $100 nor more than $1,000 or confined
in
the county jail for not less than ninety days nor more than one
year, or both
fine and confined.
(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
is guilty of a felony and, upon conviction thereof, shall be
confined imprisoned in a state correctional facility for not more
than five years or fined not more than $5,000, or both
imprisoned
and fined. The provisions of subsection (c) of this section
shall
do 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 the 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 resolve a conflict in
criminal statutes. Last year, the Legislature passed House Bill
No. 2739 which authorized law-enforcement officers to seize any
weapons in the respondent's possession at the time the officer
serves the respondent with the order. Further, House Bill No. 2739
made the possession of a firearm by a respondent a criminal offense
after an emergency protective order issued and before a hearing.
This bill clarifies that law-enforcement may remove weapons
possessed after service or notice but before an actual hearing.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.