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REFERENCE TITLE: prohibited possessor; voluntary commitment; restoration |
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State of Arizona House of Representatives Fifty-first Legislature First Regular Session 2013
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HB 2377 |
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Introduced by Representative Campbell
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AN ACT
amending sections 13-925 and 13-3101, Arizona Revised Statutes; relating to weapons.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-925, Arizona Revised Statutes, is amended to read:
13-925. Restoration of right to possess a firearm; mentally ill persons; petition
A. A person may petition the court that entered an order, finding or adjudication that resulted in the person being a prohibited possessor as defined in section 13‑3101, subsection A, paragraph 7, subdivision (a) or subject to 18 United States Code section 922(d)(4) or (g)(4) or, if the person is a prohibited possessor under section 13‑3101, subsection A, paragraph 7, subdivision (f), the court where the person currently resides, to restore the person's right to possess a firearm.
B. The person or the person's guardian or attorney may file the petition. The petition shall be served on the attorney for the state who appeared in the underlying case, if applicable.
C. On the filing of the petition the court shall set a hearing. At the hearing, the person shall present psychological or psychiatric evidence in support of the petition. The state shall provide the court with the person's criminal history records, if any. The court shall receive evidence on and consider the following before granting or denying the petition:
1. The circumstances that resulted in the person being a prohibited possessor as defined in section 13‑3101, subsection A, paragraph 7, subdivision (a) or (f) or subject to 18 United States Code section 922(d)(4) or (g)(4).
2. The person's record, including the person's mental health record and criminal history record, if any.
3. The person's reputation based on character witness statements, testimony or other character evidence.
4. Whether the person is a danger to self or others, or is persistently, acutely or gravely disabled or whether the circumstances that led to the original order, adjudication or finding or the HOSPITALIZATION under section 36‑518 remain in effect.
5. Any change in the person's condition or circumstances that is relevant to the relief sought.
6. Any other evidence deemed admissible by the court.
D. The petitioner shall prove by clear and convincing evidence both of the following:
1. The petitioner is not likely to act in a manner that is dangerous to public safety.
2. Granting the requested relief is not contrary to the public interest.
E. At the conclusion of the hearing, the court shall issue findings of fact and conclusions of law.
F. If the court grants the petition for relief, the original order, finding or adjudication or the HOSPITALIZATION under section 36‑518 is deemed not to have occurred for the purposes of applying section 13‑3101, subsection A, paragraph 7, subdivision (a) or (f), Public Law 110-180, section 105(a) or 18 United States Code section 922(d)(4) or (g)(4) to that person.
G. The granting of a petition under this section only restores the person's right to possess a firearm and does not apply to and has no affect effect on any other rights or benefits the person receives.
H. The court shall promptly notify the department of public safety of an order granting a petition under this section. As soon thereafter as practicable the department shall update, correct, modify or remove the person's record in any database that the department maintains and makes available to the national instant criminal background check system consistent with the rules pertaining to the database. Within ten business days after receiving the notification from the court, the department shall notify the United States attorney general that the person no longer falls within the provisions of section 13‑3101, subsection A, paragraph 7, subdivision (a) or (f) or 18 United States Code section 922(d)(4) or (g)(4).
Sec. 2. Section 13-3101, Arizona Revised Statutes, is amended to read:
13-3101. Definitions
A. In this chapter, unless the context otherwise requires:
1. "Deadly weapon" means anything that is designed for lethal use. The term includes a firearm.
2. "Deface" means to remove, alter or destroy the manufacturer's serial number.
3. "Explosive" means any dynamite, nitroglycerine, black powder, or other similar explosive material, including plastic explosives. Explosive does not include ammunition or ammunition components such as primers, percussion caps, smokeless powder, black powder and black powder substitutes used for hand loading purposes.
4. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will expel, is designed to expel or may readily be converted to expel a projectile by the action of an explosive. Firearm does not include a firearm in permanently inoperable condition.
5. "Improvised explosive device" means a device that incorporates explosives or destructive, lethal, noxious, pyrotechnic or incendiary chemicals and that is designed to destroy, disfigure, terrify or harass.
6. "Occupied structure" means any building, object, vehicle, watercraft, aircraft or place with sides and a floor that is separately securable from any other structure attached to it, that is used for lodging, business, transportation, recreation or storage and in which one or more human beings either are or are likely to be present or so near as to be in equivalent danger at the time the discharge of a firearm occurs. Occupied structure includes any dwelling house, whether occupied, unoccupied or vacant.
7. "Prohibited possessor" means any person:
(a) Who has been found to constitute a danger to self or to others or to be persistently or acutely disabled or gravely disabled pursuant to court order under section 36‑540, and whose right to possess a firearm has not been restored pursuant to section 13‑925.
(b) Who has been convicted within or without this state of a felony or who has been adjudicated delinquent for a felony and whose civil right to possess or carry a gun or firearm has not been restored.
(c) Who is at the time of possession serving a term of imprisonment in any correctional or detention facility.
(d) Who is at the time of possession serving a term of probation pursuant to a conviction for a domestic violence offense as defined in section 13‑3601 or a felony offense, parole, community supervision, work furlough, home arrest or release on any other basis or who is serving a term of probation or parole pursuant to the interstate compact under title 31, chapter 3, article 4.1.
(e) Who is an undocumented alien or a nonimmigrant alien traveling with or without documentation in this state for business or pleasure or who is studying in this state and who maintains a foreign residence abroad. This subdivision does not apply to:
(i) Nonimmigrant aliens who possess a valid hunting license or permit that is lawfully issued by a state in the United States.
(ii) Nonimmigrant aliens who enter the United States to participate in a competitive target shooting event or to display firearms at a sports or hunting trade show that is sponsored by a national, state or local firearms trade organization devoted to the competitive use or other sporting use of firearms.
(iii) Certain diplomats.
(iv) Officials of foreign governments or distinguished foreign visitors who are designated by the United States department of state.
(v) Persons who have received a waiver from the United States attorney general.
(f) Who has BEEN HOSPITALIZED FOR EVALUATION, CARE AND TREATMENT under section 36-518, and whose right to possess a firearm has not been restored pursuant to section 13‑925.
8. "Prohibited weapon":
(a) Includes the following:
(i) An item that is a bomb, grenade, rocket having a propellant charge of more than four ounces or mine and that is explosive, incendiary or poison gas.
(ii) A device that is designed, made or adapted to muffle the report of a firearm.
(iii) A firearm that is capable of shooting more than one shot automatically, without manual reloading, by a single function of the trigger.
(iv) A rifle with a barrel length of less than sixteen inches, or shotgun with a barrel length of less than eighteen inches, or any firearm that is made from a rifle or shotgun and that, as modified, has an overall length of less than twenty‑six inches.
(v) An instrument, including a nunchaku, that consists of two or more sticks, clubs, bars or rods to be used as handles, connected by a rope, cord, wire or chain, in the design of a weapon used in connection with the practice of a system of self‑defense.
(vi) A breakable container that contains a flammable liquid with a flash point of one hundred fifty degrees Fahrenheit or less and that has a wick or similar device capable of being ignited.
(vii) A chemical or combination of chemicals, compounds or materials, including dry ice, that is possessed or manufactured for the purpose of generating a gas to cause a mechanical failure, rupture or bursting or an explosion or detonation of the chemical or combination of chemicals, compounds or materials.
(viii) An improvised explosive device.
(ix) Any combination of parts or materials that is designed and intended for use in making or converting a device into an item set forth in item (i), (vi) or (viii) of this subdivision.
(b) Does not include:
(i) Any fireworks that are imported, distributed or used in compliance with state laws or local ordinances.
(ii) Any propellant, propellant actuated devices or propellant actuated industrial tools that are manufactured, imported or distributed for their intended purposes.
(iii) A device that is commercially manufactured primarily for the purpose of illumination.
9. "Trafficking" means to sell, transfer, distribute, dispense or otherwise dispose of a weapon or explosive to another person, or to buy, receive, possess or obtain control of a weapon or explosive, with the intent to sell, transfer, distribute, dispense or otherwise dispose of the weapon or explosive to another person.
B. The items set forth in subsection A, paragraph 8, subdivision (a), items (i), (ii), (iii) and (iv) of this section do not include any firearms or devices that are registered in the national firearms registry and transfer records of the United States treasury department or any firearm that has been classified as a curio or relic by the United States treasury department.