Session of 2023
HOUSE BILL No. 2245
By Representatives Ballard, Amyx, Featherston, Haswood, Highberger, Martinez,
Meyer,
1-31
AN ACT concerning firearms; creating the gun violence restraining order
act; authorizing the issuance of protective orders prohibiting the
acquisition and possession of firearms by certain individuals.
Be it enacted by the Legislature of the State of Kansas:
Section 1. (a) Sections 1 through 8, and amendments thereto, shall be
known and may be cited as the gun violence restraining order act.
(b) As used in the gun violence restraining order act:
(1) "Dating relationship" means a relationship that consists of
frequent, intimate associations primarily characterized by the expectation
of affectional involvement. "Dating relationship" does not include a casual
relationship or an ordinary fraternization between two individuals in a
business or social context.
(2) "Defendant" means the person against whom a gun violence
restraining order is requested in an action under section 2, and
amendments thereto.
(3) "Family member" means an individual who is related to the
defendant as any of the following: A parent, son or daughter, sibling,
grandparent, grandchild, uncle, aunt or first cousin.
(4) "Federal law enforcement officer" means an officer or agent
employed by a law enforcement agency of the United States government
whose primary responsibility is the enforcement of laws of the United
States.
(5) "Gun violence restraining order" means an order issued by a court
under section 4, and amendments thereto.
(6) "Plaintiff" means the individual who requests a gun violence
restraining order in an action under section 2, and amendments thereto.
(7) "Restrained individual" means the individual against whom a gun
restraining order has been issued and is in effect.
Sec. 2. (a) Any of the following individuals may file an action with
the district court requesting the court to enter a gun violence restraining
order pursuant to the gun violence restraining order act:
(1) The spouse of the defendant;
(2) a former spouse of the defendant;
(3) an individual who has a child in common with the defendant;
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(4) an individual who has or has had a dating relationship with the
defendant;
(5) an individual who resides or has resided in the same household
with the individual;
(6) a family member; or
(7) another individual who has a close relationship with the
defendant.
If the plaintiff files a complaint under this paragraph, the plaintiff shall
state in the complaint sufficient facts to allow the court to determine
whether the individual has a close relationship with the defendant.
(b) An individual who files an action under this section shall do so by
filing a summons and complaint on forms approved by the judicial
council. The complaint shall state facts that demonstrate that the issuance
of a gun violence restraining order is necessary because the defendant
poses a significant risk of personal injury to self or others by possessing a
firearm.
(c) If the plaintiff knows that the defendant is issued a license to carry
a concealed weapon and is required to carry a weapon as a condition of
such plaintiff's employment, the plaintiff shall state such condition of
employment in the complaint.
(d) If the plaintiff requests the court to issue an order seizing firearms
owned by the defendant, the plaintiff shall identify the firearms that the
plaintiff knows are in the possession of the defendant.
Sec. 3. (a) In an action under section 2, and amendments thereto, the
court may issue a gun violence restraining order if the court determines
that there is reasonable cause to believe that the defendant poses a
significant risk of personal injury to self or others by possessing a firearm.
In determining whether reasonable cause exists, the court shall consider all
of the following:
(1) Testimony, documents, or other evidence offered in support of the
request for the gun violence restraining order;
(2) whether the defendant has previously inflicted or threatened to
inflict personal injury on self or others; and
(3) any other facts that the court believes are relevant.
(b) If the plaintiff in an action filed under section 2, and amendments
thereto, is not an individual described in section (2)(a)(1) through (6), and
amendments thereto, the court shall not issue the gun violence restraining
order unless the court determines that the plaintiff has a close enough
relationship with the defendant to justify the issuance of the order.
(c) The court in an action under section 2, and amendments thereto,
may issue a gun violence restraining order without written or oral notice to
the defendant if the court determines that clear and convincing evidence
has been submitted under oath or affirmation that irreparable injury will
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result from the delay required to effectuate notice or that the notice will
itself precipitate adverse action before a gun violence restraining order can
be issued.
(d) A restrained individual under an order issued under subsection (c)
may file a motion to modify or rescind the order and request a hearing.
The motion to modify or rescind the order must be filed within 14 days
after the order is served on the restrained individual or after the restrained
individual receives actual notice of the order, unless good cause is shown
for filing the motion after the 14 days have elapsed.
(e) The court shall conduct a hearing on a motion under subsection
(d) within 14 days after the motion is filed. If the restrained individual is
an individual described in section 2(d), and amendments thereto, the court
shall conduct a hearing on a motion under subsection (d) within five days
after the motion is filed.
Sec. 4. (a) If the court determines under section 3, and amendments
thereto, that a gun violence restraining order is to be issued, the court shall
include all of the following provisions in the order:
(1) That the restrained individual shall not purchase or possess a
firearm;
(2) a statement that the restrained individual may file a motion to
modify or rescind the order and request a hearing within 14 days after the
restrained individual is served with or receives actual notice of the order
and that motion forms and filing instructions are available from the clerk
of the court, if such order is issued under section 3, and amendments
thereto;
(3) a statement that violation of the order will subject the restrained
individual to immediate arrest and the civil and criminal contempt powers
of the court; and
(4) an expiration date that is not more than one year from the date of
issuance.
(b) In the discretion of the court, a gun violence restraining order may
include an order to a law enforcement agency to seize firearms in the
possession of the restrained individual. An order issued under this
subsection shall specifically describe the firearms to be seized. The court
may also order that a law enforcement agency seizing firearms under this
subsection may seize any other firearms discovered that belong to or are in
the possession of the restrained individual.
(c) A gun violence restraining order is effective and enforceable
immediately after it is served on the restrained individual or after the
restrained individual receives actual notice of the order. The order may be
enforced anywhere in this state by a law enforcement agency that receives
a true copy of the order, is shown a copy of it or has verified its existence.
Sec. 5. A court that issues a gun violence restraining order shall do all
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of the following immediately after issuance and without requiring a proof
of service on the restrained individual:
(a) Provide a true copy of the order to the law enforcement agency
designated under section 4, and amendments thereto; and
(b) provide the plaintiff with at least two true copies of the order.
(c) If the restrained individual is identified in the complaint as an
individual described in section 2, and amendments thereto, notify the
individual's employer, if known, of the existence of the order.
Sec. 6. (a) A gun violence restraining order shall be served on the
restrained individual by any method. If the restrained individual has not
been served, a law enforcement officer or clerk of the court who knows
that the order exists may, at any time, serve the restrained individual with a
true copy of the order or advise the restrained individual of the existence
of the order, the specific conduct enjoined, the penalties for violating the
order and where the restrained individual may obtain a copy of the order.
(b) The person who serves a gun violence restraining order or gives
oral notice of the order shall file proof of service or proof of oral notice
with the clerk of the court that issued the order.
(c) The clerk of the court shall immediately notify the law
enforcement agency designated under section 4, and amendments thereto,
if either of the following occurs:
(1) The clerk of the court receives proof that the restrained individual
has been served; or
(2) the order is rescinded, modified or extended.
Sec. 7. (a) If a gun violence restraining order has not been served on
the restrained individual, a law enforcement agency or officer responding
to a call alleging a violation of the order shall serve the restrained
individual with a true copy of the order or advise the restrained individual
of the existence of the order, the specific conduct enjoined, the penalties
for violating the order and where the restrained individual may obtain a
copy of the order.
(b) Except as provided in subsection (c), the law enforcement officer
shall enforce the order and immediately enter or cause to be entered into
the law enforcement information network that the restrained individual has
actual notice of the order. The law enforcement officer also shall comply
with section 6, and amendments thereto.
(c) The law enforcement officer shall give the restrained individual an
opportunity to comply with the gun violence restraining order before the
law enforcement officer makes a custodial arrest for violation of the order.
The failure by the restrained individual to immediately comply with the
order is grounds for an immediate custodial arrest.
(d) The law enforcement agency ordered to seize a firearm under
section 4, and amendments thereto, may seize any firearm identified in the
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order from any place or from any individual who has possession of such
firearms.
(e) The law enforcement agency may also seize any other firearms
discovered that are owned by or in the possession of the restrained
individual if so provided in the gun violence restraining order, or if
allowed under other applicable law.
(f) A law enforcement officer who seizes any firearm under this
section shall give a receipt for the firearm to the individual from whom it
was taken, specifying the firearm in detail. If no individual is present at the
time of seizure, the officer shall leave the receipt in the place where such
officer found such firearms.
(g) The law enforcement agency that seizes a firearm under this
section shall retain the firearm subject to an order of the court that issued
the gun violence restraining order under which the firearm was seized. In
addition to any other order that the court determines is appropriate, the
court shall order that the firearm be returned to the restrained individual
when the restrained individual is no longer prohibited from owning a
firearm or that the firearm be transferred to a federally licensed firearm
dealer if the restrained individual sells or transfers ownership of the
firearm to such dealer.
(h) If the location to be searched during the seizure of a firearm under
this section is jointly occupied by multiple individuals, and a firearm is
located during the search, and it is determined that the firearm is owned by
an individual other than the restrained individual, the law enforcement
agency shall not seize the firearm if all of the following conditions are
satisfied:
(1) The firearm is stored so that the restrained individual does not
have access to or control of the firearm; and
(2) there is no evidence of unlawful possession of the firearm by the
owner.
(i) If the location to be searched during the seizure of a firearm under
this section is jointly occupied by multiple individuals, and a gun safe is
located at the location, and it is determined that the gun safe is owned by
an individual other than the restrained individual and a valid search
warrant has not been obtained, the law enforcement agency shall not
search the gun safe except in the owner's presence or with the owner's
consent.
(j) If any individual other than the restrained individual claims title to
a firearm seized under this section, the firearm shall be returned to the
claimant if the court determines that the claimant is the lawful owner.
Sec. 8. (a) The plaintiff may move the court to issue, or the court on
its own motion may issue, one or more extended gun violence restraining
orders, each effective for up to one year after the expiration of the
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preceding order. The court shall only issue an extended order if there is
probable cause to believe that the restrained individual continues to pose a
significant risk of personal injury to self or others by possessing a firearm.
The plaintiff or the court, as applicable, shall give the restrained individual
written notice of a hearing on a motion to extend the order.
(b) An individual who refuses or fails to comply with a gun violence
restraining order is subject to the criminal contempt powers of the court. A
plaintiff who knowingly makes a false statement to the court in the
complaint or in support of the complaint is subject to the contempt powers
of the court.
Sec. 9. This act shall take effect and be in force from and after its
publication in the Kansas register.
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