PRINTER'S NO. 3529
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
2859
Session of
2022
INTRODUCED BY ZABEL, MADDEN, FREEMAN, KINSEY, T. DAVIS,
SCHLOSSBERG, GUENST, HOHENSTEIN, SAMUELSON, HILL-EVANS,
DELLOSO, SANCHEZ, HOWARD, FITZGERALD, KINKEAD, INNAMORATO AND
CIRESI, SEPTEMBER 29, 2022
REFERRED TO COMMITTEE ON JUDICIARY, SEPTEMBER 29, 2022
AN ACT
Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in firearms and other dangerous articles, further
providing for persons not to possess, use, manufacture,
control, sell or transfer firearms and for abandonment of
firearms, weapons or ammunition; in community and municipal
courts, further providing for masters; and providing for
extreme risk protection orders.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6105(a)(2)(ii), (a.1)(3) and (5), (c)(10)
and (f)(4)(i) of Title 18 of the Pennsylvania Consolidated
Statutes are amended and subsections (a.1) and (c) are amended
by adding paragraphs to read:
§ 6105. Persons not to possess, use, manufacture, control, sell
or transfer firearms.
(a) Offense defined.--
* * *
(2) * * *
(ii) This paragraph shall not apply to any person
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whose disability is imposed pursuant to subsection (c)(6)
or (10).
* * *
(a.1) Penalty.--
* * *
(2.1) A person who is the subject of an extreme risk
protection order issued under 42 Pa.C.S. Ch. 64A (relating to
extreme risk protection orders) commits a misdemeanor of the
second degree if the person intentionally or knowingly fails
to relinquish a firearm or firearms license as required by
the order.
(3) (i) A person commits a misdemeanor of the third
degree if [he] the person intentionally or knowingly
accepts possession of a firearm, other weapon or
ammunition from another person [he] who the person knows
is the subject of an active final protection from abuse
order issued pursuant to 23 Pa.C.S. § 6108 or an active
protection from abuse order issued pursuant to 23 Pa.C.S.
§ 6107(b), which order provided for the relinquishment of
the firearm, other weapon or ammunition during the period
of time the order is in effect[.] or intentionally or
knowingly accepts possession of a firearm or firearms
license from another person who the person knows is the
subject of an extreme risk protection order issued under
42 Pa.C.S. Ch. 64A.
(ii) This paragraph shall not apply to:
(A) a third party who accepts possession of a
firearm, other weapon or ammunition relinquished
pursuant to 23 Pa.C.S. § 6108.3; or
(B) a dealer licensed pursuant to section 6113
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(relating to licensing of dealers) or subsequent
purchaser from a dealer licensed pursuant to section
6113, who accepts possession of a firearm, other
weapon or ammunition relinquished pursuant to 23
Pa.C.S. § 6108.2 or 42 Pa.C.S. Ch. 64A.
* * *
(5) A person who has accepted possession of a firearm,
other weapon or ammunition pursuant to 23 Pa.C.S. § 6108.3 or
a firearm or firearms license under 42 Pa.C.S. Ch. 64A
commits a misdemeanor of the [first] second degree if [he]
the person intentionally or knowingly returns a firearm,
other weapon or ammunition to a defendant or intentionally or
knowingly allows a defendant to have access to the firearm,
other weapon or ammunition prior to [either] any of the
following:
(i) The sheriff accepts return of the safekeeping
permit issued to the party pursuant to 23 Pa.C.S. §
6108.3(d)(1)(i).
(ii) The issuance of a court order pursuant to
subsection (f)(2) or 23 Pa.C.S. § 6108.1(b) (relating to
return of relinquished firearms, other weapons and
ammunition and additional relief) which modifies a valid
protection from abuse order issued pursuant to 23 Pa.C.S.
§ 6108, which order provided for the relinquishment of
the firearm, other weapon or ammunition by allowing the
defendant to take possession of the firearm, other weapon
or ammunition that had previously been ordered
relinquished.
(iii) The expiration of an extreme risk protection
order or the issuance of a court order that terminates an
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extreme risk protection order under 42 Pa.C.S. Ch. 64A.
* * *
(c) Other persons.--In addition to any person who has been
convicted of any offense listed under subsection (b), the
following persons shall be subject to the prohibition of
subsection (a):
* * *
(10) A person who has been convicted of an offense under
subsection [(a.1)(2)] (a.1)(2.1) or (5). The prohibition
shall terminate five years after the date of conviction,
final release from confinement or final release from
supervision, whichever is later.
(11) A person who is the subject of an active extreme
risk protection order issued under 42 Pa.C.S. Ch. 64A.
* * *
(f) Other exemptions and proceedings.--
* * *
(4) (i) The owner of any seized or confiscated firearms
or of any firearms ordered relinquished under 23 Pa.C.S.
§ 6108 or 42 Pa.C.S. Ch. 64A shall be provided with a
signed and dated written receipt by the appropriate law
enforcement agency. This receipt shall include, but not
limited to, a detailed identifying description indicating
the serial number and condition of the firearm. In
addition, the appropriate law enforcement agency shall be
liable to the lawful owner of said confiscated, seized or
relinquished firearm for any loss, damage or substantial
decrease in value of said firearm that is a direct result
of a lack of reasonable care by the appropriate law
enforcement agency.
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* * *
Section 2. Section 6128(a) introductory paragraph of Title
18 is amended to read:
§ 6128. Abandonment of firearms, weapons or ammunition.
(a) General rule.--Firearms, weapons or ammunition which are
itemized on a list required under 23 Pa.C.S. § 6108(a)(7)(v)
(relating to relief) or the possession or acquisition of which
is prohibited under 42 Pa.C.S. Ch. 64A (relating to extreme risk
protection orders) or 18 U.S.C. § 922(g)(9) (relating to
unlawful acts) and relinquished into or otherwise coming into
the custody of a police department, Pennsylvania State Police,
coroner, medical examiner, district attorney, sheriff or
licensed dealer shall be deemed abandoned when:
* * *
Section 3. Section 1126 of Title 42 is amended to read:
§ 1126. Masters.
The President Judge of the Philadelphia Municipal Court may
appoint attorneys who are members of the Pennsylvania Bar to
serve as masters in proceedings under Chapter 64A (relating to
extreme risk protection orders) or 23 Pa.C.S. Ch. 61 (relating
to protection from abuse).
Section 4. Title 42 is amended by adding a chapter to read:
CHAPTER 64A
EXTREME RISK PROTECTION ORDERS
Sec.
64A01. Scope of chapter.
64A02. Definitions.
64A03. Preliminary matters.
64A04. Establishment.
64A05. Requirements.
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§ 64A01. Scope of chapter.
This chapter relates to extreme risk protection orders.
§ 64A02. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Court." A court of common pleas in this Commonwealth.
" Extreme risk protection order." A court order prohibiting
an individual from having in the individual's possession or
control, purchasing or receiving, or attempting to purchase or
receive, a firearm, based upon a finding that the individual
presents a substantial risk of suicide or of causing the death
of or serious bodily injury to another individual.
"Family or household member." Any of the following:
(1) A spouse.
(2) An individual who has been a spouse.
(3) An individual living as a spouse or who lived as a
spouse.
(4) A parent.
(5) A child.
(6) Any other individual related by consanguinity or
affinity.
(7) A current or former sexual or intimate partner.
(8) An individual who shares biological parenthood.
"Firearm." A weapon designed to or that may readily be
converted to expel a projectile by the action of an explosive or
the frame or receiver of the weapon.
"Firearms dealer." A person licensed to sell firearms under
18 Pa.C.S. § 6113 (relating to licensing of dealers).
"Firearms license." Any of the following:
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(1) A concealed carry license issued under 18 Pa.C.S. §
6109 (relating to licenses).
(2) A safekeeping license issued under 23 Pa.C.S. §
6108.3 (relating to relinquishment to third party for
safekeeping).
(3) A hunting license required under 34 Pa.C.S. § 2701
(relating to license requirements).
(4) Any similar license issued in accordance with the
laws of another state.
"Hearing officer." Any of the following:
(1) A magisterial district judge.
(2) A judge of the Philadelphia Municipal Court.
(3) An arraignment court magistrate appointed under
section 1123 (relating to jurisdiction and venue).
(4) A master appointed under section 1126 (relating to
masters).
(5) A master for emergency relief.
"Law enforcement officer." An officer of the United States,
of another state or political subdivision thereof or of the
Commonwealth or political subdivision thereof who is empowered
by law to conduct investigations of or to make an arrest for an
offense enumerated in this chapter or an equivalent crime in
another jurisdiction and an attorney authorized by law to
prosecute or participate in the prosecution of the offense.
§ 64A03. Preliminary matters.
(a) Standing.--A law enforcement officer or a family or
household member of an individual believed to present a risk of
suicide or of causing the death of or extreme bodily injury to
another individual may file a petition requesting that the court
issue an extreme risk protection order or renew an existing
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extreme risk protection order.
(b) Filing fee.--No filing fee may be charged for a petition
under this chapter.
(c) Effect of service.--An extreme risk protection order is
effective at the time of service.
(d) Other persons.--Nothing in this section shall be
construed to prohibit a county from allowing other persons from
requesting that the court issue an extreme risk protection order
or renew an existing extreme risk protection order.
§ 64A04. Establishment.
(a) Local rules.-- A county may establish an extreme risk
protection order and may adopt local rules for the
administration of extreme risk protection orders and interim
extreme risk protection orders. The local rules may not be
inconsistent with this chapter.
(b) Program coordinator.--The Supreme Court of Pennsylvania
may appoint a Statewide extreme risk protection order program
coordinator. The program coordinator may:
(1) Encourage and assist in the establishment of an
extreme risk protection order program in each county.
(2) Identify sources of funding for extreme risk
protection order programs.
(3) Provide coordination and technical assistance for
extreme risk protection order programs.
(4) Develop model guidelines for the administration of
extreme risk protection order programs.
(5) Establish procedures for monitoring extreme risk
protection order programs to evaluate the effectiveness of
the programs.
(c) Advisory committee.--The Supreme Court of Pennsylvania
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may establish an interdisciplinary and interbranch advisory
committee to advise and assist the Statewide extreme risk
protection order program coordinator in monitoring and
administrating extreme risk protection order programs and court
procedures under this chapter on a Statewide basis.
§ 64A05. Requirements.
(a) Due process.--Each extreme risk protection order program
must:
(1) Prevent a violation or infringement of the
Constitution of the United States, including the Bill of
Rights and the substantive and procedural due process rights
guaranteed under the Fifth and Fourteenth Amendments to the
Constitution of the United States, as applied to the states,
and the Constitution of Pennsylvania, and as interpreted by
United States courts, including the Supreme Court of the
United States , and Pennsylvania courts .
(2) Include, at the appropriate phase to prevent a
violation of constitutional rights, at a minimum:
(i) Proper notice.
(ii) The right to an in-person hearing.
(iii) An unbiased adjudicator.
(iv) The right to know opposing evidence.
(v) The right to present evidence.
(vi) The right to confront adverse witnesses.
(b) Representation.--A respondent under this chapter shall
have the right to be represented by counsel. If the respondent
cannot afford an attorney and meets the income guidelines
applicable to representation by a public defender in a criminal
case, the court shall appoint counsel upon the request of the
respondent.
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(c) Evidentiary standards and proof.--
(1) Each extreme risk protection order program must
include pre-deprivation and post-deprivation heightened
evidentiary standards and proof, which are:
(i) Not less than the protections afforded to a
similarly situated litigant in Federal court or
promulgated by Pennsylvania's evidentiary body.
(ii) Sufficient to ensure the full protections of
the Constitution of the United States, including the Bill
of Rights and the substantive and procedural due process
rights guaranteed under the Fifth and Fourteenth
Amendments to the Constitution of the United States, as
applied to the states, and as interpreted by Pennsylvania
courts and United States courts, including the Supreme
Court of the United States.
(2) The heightened evidentiary standards and proof under
each extreme risk protection order program must, at all
appropriate phases to prevent a violation of any
constitutional right, at a minimum, prevent reliance upon
evidence that is unsworn or unaffirmed, irrelevant, based on
inadmissible hearsay, unreliable, vague, speculative or
lacking a foundation.
(d) Penalties for abuse of program.--Each extreme risk
protection order program must include penalties for abuse of the
extreme risk protection order program, including false reporting
and false swearing.
(e) Relinquishment.--
(1) An extreme risk protection order or an interim
extreme risk protection order shall require the
relinquishment of all firearms and firearms licenses owned by
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the respondent or in the respondent's possession or control
within 24 hours following service of the order, except for
cause shown, in which case the court or hearing officer
issuing the order shall specify the time for relinquishment
of any or all of the respondent's firearms.
(2) A law enforcement officer or sheriff serving an
extreme risk protection order shall request that all firearms
and any firearms license in the respondent's possession or
control be immediately relinquished into the custody of the
law enforcement officer or sheriff. A law enforcement officer
taking custody of a firearm or firearms license under this
subsection shall transfer the firearm or firearms license to
the sheriff or to a firearms dealer for safekeeping.
(f) Return to respondent.--
(1) I f, following a hearing, a court vacates an interim
extreme risk protection order, the court shall order the
return of all relinquished firearms and firearms licenses to
the respondent following the confirmation that the person
requesting return of the firearms is legally eligible to
possess firearms under Federal and State law, by conducting a
background check as soon as possible, but not later than the
end of the next business day after the day on which the
person makes the request.
(2) Upon termination or expiration of an extreme risk
protection order, the respondent may request that the sheriff
or firearms dealer in possession of a relinquished firearm or
firearms license return the firearm or firearms license. The
sheriff or firearms dealer shall return the firearm or
firearms license to the respondent as soon as possible
following the confirmation that the person requesting return
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of the firearm is legally eligible to possess firearms under
Federal and State law, by conducting a background check as
soon as possible, but not later than the end of the next
business day after the day on which the person makes the
request.
(g) Content of orders.--
(1) An extreme risk protection order must include at
least:
(i) The date and time that the order was issued.
(ii) Notice of the right to petition the court for a
termination of the order.
(iii) Instructions for relinquishment of:
(A) a firearm that the respondent owns or that
is in the respondent's possession or control; and
(B) a firearms license that is issued to the
respondent.
(iv) Notice of the provisions of 18 Pa.C.S. § 6128
(relating to abandonment of firearms, weapons or
ammunition).
(v) Notice of the penalties for violating the order.
(vi) Notice of the right to appeal to the Superior
Court within 30 days of the issuance of the order.
(2) An interim extreme risk protection order must
include at least:
(i) The date and time that the order was issued.
(ii) Instructions for relinquishment of:
(A) a firearm that the respondent owns or that
is in the respondent's possession or control; and
(B) a firearms license that is issued to the
respondent.
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(iii) Notice of the provisions of 18 Pa.C.S. § 6128.
(iv) Notice of the penalties for violating the
order.
(v) If the order was issued by a court and a hearing
is scheduled:
(A) Notice of the time, date and location of the
hearing.
(B) Notice of the right to request a continuance
and instructions on requesting a continuance or
waiving the hearing.
(C) Notice of the fact that, at the hearing, or
if the hearing is waived, the court may extend the
order for up to one year.
(D) Notice of the right to an attorney under
this section.
Section 5. This act shall take effect in 60 days.
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