Senate Bill 92
By: Senators Merritt of the 9th, Esteves of the 35th, Jones II of the 22nd, Halpern of the 39th,
Parent of the 44th and others
A BILL TO BE ENTITLED
AN ACT
To amend Article 4 Chapter 11 of Title 16 of the Official Code of Georgia Annotated,
relating to dangerous instrumentalities and practices, so as to enact the "Georgia Red Flag
Protective Order Act"; to provide definitions; to provide for risk protection order hearings
and issuance; to provide for temporary ex parte risk protection orders; to provide for service
of notice; to provide for the termination and extension of orders; to provide for surrender and
return of firearms, ammunition, and weapons carry licenses; to provide for the reporting of
orders; to provide for penalties and liability; to provide for instructional and informational
materials to be produced by the Administrative Office of the Courts; to provide for related
matters; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION 1.
Article 4 of Chapter 11 of Title 16 of the Official Code of Georgia Annotated, relating to
dangerous instrumentalities and practices, is amended by adding a new part to read as
follows:
<ins>"Part 3A
16-11-140.
This part shall be known and may be cited as the 'Georgia Red Flag Protective Order Act.'
16-11-141.
As used in this part, the term:
(1) 'Family or household member' means spouses, former spouses, persons related by
blood or marriage, persons who are presently residing together or who have resided
together in the past, and persons who are parents of a child in common regardless of
whether they have been married. With the exception of persons who have a child in
common, the family or household members must be currently residing or have in the past
resided together in the same dwelling house.
(2) 'Law enforcement agency' means any unit, organ, or department of this state, or a
subdivision or municipality thereof, whose primary functions include the enforcement of
criminal or traffic laws, the preservation of public order, the protection of life and
property, or the prevention, detection, or investigation of crime.
(3) 'Law enforcement officer' means any peace officer employed by a law enforcement
agency.
(4) 'Petitioner' means a family or household member or law enforcement officer who
petitions a court for a risk protection order under this part.
(5) 'Respondent' means the individual who is identified as the respondent in a petition
filed under this part.
(6) 'Risk protection order' means a temporary ex parte order or final order granted under
this part.
</ins>
<ins>16-11-142.
(a) When a petition for a risk protection order is created, the order shall:
(1) Identify the respondent by name and last known address;
(2) Allege that the respondent poses a significant danger of causing personal injury to
himself or herself or others by having a firearm or any ammunition in his or her custody
or control or by purchasing, possessing, or receiving a firearm or any ammunition;
(3) Be accompanied by an affidavit made under oath stating the specific statements,
actions, or facts that give rise to a reasonable fear of significant dangerous acts by the
respondent;
(4) Identify the quantities, types, and locations of all firearms and ammunition the
petitioner believes to be in the respondent's current ownership, possession, custody, or
control; and
(5) Identify whether there is a known existing protective order governing the respondent
under Code Section 16-5-94 or 19-13-4 or under any other applicable law.
(b) A petition for a risk protection order may be filed by a family or household member
of a respondent or by a law enforcement officer. Such petition shall be filed in the superior
court having jurisdiction over the geographical area of the petitioner's law enforcement
agency or wherein the respondent resides. Such petition for a risk protection order does
not require either party to be represented by an attorney.
(c) The petitioner shall make a good faith effort to provide notice to a family or household
member of the respondent and to any known third party who may be at risk of violence.
The notice shall state that the petitioner intends to petition the court for a risk protection
order or has already done so and shall include referrals to appropriate resources, including,
but not limited to, mental health, domestic violence, and counseling resources. The
petitioner shall attest in the petition to having provided such notice or shall attest to the
steps that will be taken to provide such notice.
</ins>
<ins>(d) The petitioner shall list the address of record on the petition as the address of the
appropriate law enforcement agency.
(e) The court shall not charge fees for filing or for service of process to a petitioner
seeking relief under this part and shall provide the necessary number of certified copies,
forms, and instructional brochures free of charge.
(f) A person shall not be required to post a bond to obtain relief in any proceeding under
this part.
(g) The superior courts of this state have jurisdiction over proceedings under this part.
16-11-143.
(a)(1) Upon receipt of a petition, the court shall order a hearing to be held no later than
14 days after the date of the risk protection order and shall issue a notice of hearing to the
respondent for the same.
(2) The clerk of the court shall cause a copy of the petition and the notice of hearing to
be forwarded on or before the next business day to the appropriate law enforcement
agency for service upon the respondent as provided in Code Section 16-11-145.
(3) The court may, as provided in Code Section 16-11-144, issue a temporary ex parte
risk protection order pending the hearing ordered under this subsection. Such temporary
ex parte order shall be served concurrently with the petition and the notice of hearing as
provided in Code Section 16-11-145.
(b) Upon notice and a hearing on the matter, if the court finds by clear and convincing
evidence that the respondent poses a significant danger of causing personal injury to
himself or herself or others by having in his or her custody or control, or by purchasing,
possessing, or receiving, a firearm or any ammunition, the court shall issue a risk protection
order for a period of time that it deems appropriate, but not exceeding 12 months.
(c) In determining whether grounds for a risk protection order exist, the court may
consider any relevant evidence, including, but not limited to, any of the following:
</ins>
<ins>(1) A recent act or threat of violence by the respondent against himself or herself or
others, whether or not such act or threat of violence involved a firearm;
(2) An act or threat of violence by the respondent within the past 12 months, including,
but not limited to, acts or threats of violence by the respondent against himself or herself
or others;
(3) Evidence of the respondent being seriously mentally ill or having recurring mental
health issues;
(4) A violation by the respondent of an order issued pursuant to Code Section 16-5-94
or 19-13-4;
(5) A previous or existing risk protection order issued against the respondent;
(6) A violation of a previous or existing risk protection order issued against the
respondent;
(7) Whether the respondent, in this state or any other state, has been convicted of, had
adjudication withheld on, or has pled nolo contendere to a crime that constitutes family
violence as defined in Code Section 19-13-1;
(8) Whether the respondent has used, or has threatened to use, any weapons against
himself or herself or others;
(9) The unlawful or reckless use, display, or brandishing of a firearm by the respondent;
(10) The recurring use of, or threat to use, physical force by the respondent against
another person or the respondent's stalking of another person;
(11) Whether the respondent, in this state or any other state, has been arrested for, has
been convicted of, had adjudication withheld on, or has pled nolo contendere to a crime
involving an act or threat of violence;
(12) Corroborated evidence of the abuse of controlled substances or alcohol by the
respondent;
(13) Evidence of recent acquisition of firearms or ammunition by the respondent;
</ins>
<ins>(14) Any relevant information from family and household members concerning the
respondent; or
(15) Witness testimony, taken while the witness is under oath, relating to the matter
before the court.
(d) In a hearing under this part, the rules of evidence shall apply to the same extent as in
a family violence proceeding under Code Section 19-13-3.
(e) During a hearing under this part, the court shall consider whether a mental health
evaluation or chemical dependency evaluation is appropriate and, if such determination is
made, may order such evaluations, if appropriate.
(f) A risk protection order shall include all of the following:
(1) A statement of the grounds supporting the issuance of the order;
(2) The date the order was issued;
(3) The date the order ends;
(4) Whether a mental health evaluation or chemical dependency evaluation of the
respondent is required;
(5) The address of the court in which any responsive pleading may be filed;
(6) A description of the requirements for the surrender of all firearms and ammunition
that the respondent owns; and
(7) The following statement:
'To the subject of this protection order: This order is valid until the date noted above.
If you have not done so already, you shall surrender immediately to the (insert name of
local law enforcement agency) all firearms and ammunition that you own in your
custody, control, or possession and any weapons carry license or renewal license issued
to you under Code Section 16-11-129 of the Official Code of Georgia Annotated. You
may not have in your custody or control or purchase, possess, receive, or attempt to
purchase or receive a firearm or ammunition while this order is in effect. You have the
right to request one hearing to vacate this order, starting after the date of the issuance
</ins>
<ins>of this order, and to request another hearing after every extension of the order, if any.
You may seek the advice of an attorney as to any matter connected with this order.'
(g) If the court issues a risk protection order, the court shall inform the respondent that he
or she is entitled to request a hearing to vacate the order in the manner provided by Code
Section 16-11-146 and the court shall provide the respondent with a form to request a
hearing to vacate.
(h) If the court denies the petitioner's request for a risk protection order, the court shall
state the particular reasons for the denial.
16-11-144.
(a) A petitioner may request that a temporary ex parte risk protection order be issued
before a hearing for a risk protection order, without notice to the respondent, by including
in the petition detailed allegations based on personal knowledge that the respondent poses
a significant danger of causing personal injury to himself or herself or others in the near
future by having in his or her custody or control, or by purchasing, possessing, or receiving,
a firearm or ammunition.
(b) In considering whether to issue a temporary ex parte risk protection order under this
part, the court shall consider all relevant evidence, including the evidence described in
subsection (c) of Code Section 16-11-143.
(c) After a request under subsection (a) of this Code section, if the court finds there is
reasonable cause to believe that the respondent poses a significant danger of causing
personal injury to himself or herself or others in the near future by having in his or her
custody or control, or by purchasing, possessing, or receiving, a firearm or ammunition, the
court shall issue a temporary ex parte risk protection order.
(d) The court shall hold a hearing on the temporary ex parte risk protection order within
two business days of the date the petition is filed.
(e) A temporary ex parte risk protection order shall include all of the following:
</ins>
<ins>(1) A statement of the grounds asserted for the order;
(2) The date the order was issued;
(3) The address of the court in which any responsive pleading may be filed;
(4) The date and time of the scheduled hearing;
(5) A description of the requirements for the surrender of all firearms and ammunition
that the respondent owns or controls; and
(6) The following statement:
'To the subject of this protection order: This order is valid until the date noted above.
You are required to surrender all firearms and ammunition that you own in your
custody, control, or possession. You may not have in your custody or control or
purchase, possess, receive, or attempt to purchase or receive a firearm or ammunition
while this order is in effect. You shall surrender immediately to the (insert name of
local law enforcement agency) all firearms and ammunition in your custody, control,
or possession and any weapons carry license or renewal license issued to you under
Code Section 16-11-129 of the Official Code of Georgia Annotated. A hearing will be
held on the date and at the time noted above to determine if a risk protection order
should be issued. Failure to appear at that hearing may result in a court issuing an order
against you which is valid for one year. You may seek the advice of an attorney as to
any matter connected with this order.'
(f) A temporary ex parte risk protection order ends upon the hearing on the risk protection
order.
(g) A temporary ex parte risk protection order shall be served by a law enforcement officer
in the same manner as provided for in Code Section 16-11-145 for service of the petition
and notice of hearing and shall be served concurrently with the petition and notice of
hearing.
(h) If the court denies the petitioner's request for a temporary ex parte risk protection order,
the court shall state the particular reasons for the denial.
</ins>
<ins>16-11-145.
(a) The clerk of the court shall provide for personal service of the petition, notice of
hearing, and temporary ex parte risk protection order or risk protection order, as applicable,
upon the respondent. Service under this part shall take precedence over the service of other
documents, unless such documents are of a similar emergency nature.
(b) All orders issued, changed, continued, extended, or vacated after the original service
of documents specified in subsection (a) of this Code section shall be certified by the clerk
of the court and delivered to the parties at the time of the entry of the order. The parties
may acknowledge receipt of such order in writing on the face of the original order. If a
party fails or refuses to acknowledge receipt of a certified copy of an order, the clerk shall
note on the original order that service was effected. If delivery at the hearing is not
possible, the clerk shall mail certified copies of the order to the parties at the last known
address of each party.
16-11-146.
(a)(1) The respondent may submit one written request for a hearing to vacate a risk
protection order issued under this part, starting after the date of the issuance of the order,
and may request another hearing after every extension of the order, if any.
(2) Upon receipt of the request for a hearing to vacate a risk protection order, the court
shall set a date for a hearing. Notice of the request shall be served on the petitioner in
accordance with Code Section 16-11-145. The hearing shall occur no sooner than 14
days and no later than 30 days after the date of service of the request upon the petitioner.
(3) The respondent shall have the burden of proving by clear and convincing evidence
that the respondent does not pose a significant danger of causing personal injury to
himself or herself or others by having in his or her custody or control or by purchasing,
possessing, or receiving a firearm or ammunition. The court may consider any relevant
</ins>
<ins>evidence, including evidence of the considerations as provided in subsection (c) of Code
Section 16-11-143.
(4) If the court finds after the hearing that the respondent has met his or her burden of
proof, the court shall vacate the risk protection order.
(5) The law enforcement agency holding any firearm, ammunition, or weapons carry
license that has been surrendered pursuant to this part shall be notified of the court order
to vacate the risk protection order.
(b) The court shall notify the petitioner of the impending end of a risk protection order.
Notice shall be received by the petitioner at least 30 days before the date such order ends.
(c)(1) The petitioner may, by motion, request an extension of a risk protection order at
any time within 30 days before the end of the order.
(2) Upon receipt of the motion to extend, the court shall order that a hearing be held no
later than 14 days after the date the order for a hearing is issued and shall schedule such
hearing. The respondent shall be personally served in the manner provided by Code
Section 16-11-145.
(3) In determining whether to extend a risk protection order issued under this part, the
court may consider all relevant evidence, including evidence of the considerations as
provided in subsection (c) of Code Section 16-11-143.
(4) If the court finds by clear and convincing evidence that the requirements for issuance
of a risk protection order as provided in Code Section 16-11-143 continue to be met, the
court shall extend the order. However, if, after notice, the motion for extension is
uncontested and no modification of the risk protection order is sought, the risk protection
order may be extended on the basis of a motion or affidavit stating that there has been no
material change in relevant circumstances since entry of the risk protection order and
stating the reason for the requested extension.
</ins>
<ins>(5) The court may extend a risk protection order for a period of time that it deems
appropriate, but not exceeding 12 months, subject to an order to vacate as provided in
subsection (a) of this Code section or to another extension order by the court.
16-11-147.
(a) Upon issuance of a risk protection order or temporary ex parte risk protection order
under this part, the court shall order the respondent to surrender to the local law
enforcement agency all firearms and ammunition owned by the respondent in the
respondent's custody, control, or possession, except as provided in Code Section
16-11-149, and any weapons carry license or renewal license issued under Code Section
16-11-129 held by the respondent.
(b) The law enforcement officer serving a risk protection order under this part, including
a temporary ex parte risk protection order, shall request that the respondent immediately
surrender all firearms and ammunition owned by the respondent in his or her custody,
control, or possession and any weapons carry license or renewal license issued under Code
Section 16-11-129 held by the respondent. The law enforcement officer shall take
possession of such firearms, ammunition, and weapons carry license or renewal license so
surrendered. If personal service by a law enforcement officer is not possible or is not
required because the respondent was present at the risk protection order hearing, the
respondent shall surrender any firearms and ammunition owned by the respondent, and any
weapons carry license or renewal license issued under Code Section 16-11-129 held by the
respondent, in a safe manner to the control of the local law enforcement agency
immediately after being served with the order by service or immediately after the hearing
at which the respondent was present. Notwithstanding Code Sections 17-5-20, 17-5-21,
and 17-5-24, a law enforcement officer may seek a search warrant from a court of
competent jurisdiction to conduct a search for firearms or ammunition owned by the
respondent if the officer has probable cause to believe that there are firearms or
</ins>
<ins>ammunition owned by the respondent in the respondent's custody, control, or possession
which have not been surrendered.
(c) At the time of surrender, a law enforcement officer taking possession of any firearm
or ammunition owned by the respondent, or any weapons carry license or renewal license
issued under Code Section 16-11-129 held by the respondent, shall issue a receipt
identifying all firearms surrendered, the quantity and type of ammunition surrendered, and
any license surrendered and shall provide a copy of the receipt to the respondent. Within
72 hours after service of the order, the law enforcement officer serving the order shall file
the original receipt with the court and shall ensure that his or her law enforcement agency
retains a copy of the receipt.
(d) Notwithstanding Code Sections 17-5-20 and 17-5-21, upon the sworn statement or
testimony of any person alleging that the respondent has failed to comply with the
surrender of firearms or ammunition owned by the respondent, as required by an order
issued under this part, the court shall determine whether probable cause exists to believe
that the respondent has failed to surrender all firearms or ammunition owned by the
respondent in the respondent's custody, control, or possession. If the court finds that
probable cause exists, the court shall issue a warrant describing the firearms or ammunition
owned by the respondent and authorizing a search of the locations where such firearms or
ammunition are reasonably believed to be found and the seizure of any firearms or
ammunition owned by the respondent discovered pursuant to such search.
(e) If a person other than the respondent claims title to any firearms or ammunition
surrendered pursuant to this part and he or she is determined by the law enforcement
agency to be the lawful owner of the firearm or ammunition, the firearm or ammunition
shall be returned to him or her if:
(1) The lawful owner agrees to store the firearm or ammunition in a manner such that the
respondent does not have access to or control of the firearm or ammunition; and
(2) The firearm or ammunition is not otherwise unlawfully possessed by the owner.
</ins>
<ins>(f) Upon the issuance of a risk protection order, the court shall order a new hearing date
and require the respondent to appear no later than three business days after the issuance of
the order. The court shall require proof that the respondent has surrendered any firearms
or ammunition owned by the respondent in the respondent's custody, control, or possession.
The court may cancel the hearing upon a satisfactory showing that the respondent is in
compliance with the risk protection order.
(g) All law enforcement agencies shall develop policies and procedures regarding the
acceptance, storage, and return of firearms, ammunition, or licenses required to be
surrendered under this part.
16-11-148.
(a) If a risk protection order is vacated or ends without extension, a law enforcement
agency holding a firearm or any ammunition owned by the respondent, or a weapons carry
license or renewal license issued under Code Section 16-11-129 held by the respondent,
that has been surrendered or seized pursuant to this part shall return such surrendered or
seized firearm, ammunition, or license as requested by a respondent only after confirming
through a background check that the respondent is currently eligible to own or possess
firearms and ammunition under federal and state law and after confirming with the court
that the risk protection order has been vacated or has ended without extension.
(b) A law enforcement agency shall provide notice to any family or household members
of the respondent before the return of any surrendered or seized firearm, ammunition, or
weapons carry license or renewal license to the respondent.
(c) Any firearm or ammunition surrendered by or seized from a respondent pursuant to
Code Section 16-11-147 which remains unclaimed by the lawful owner for one year after
an order to vacate the risk protection order or after the risk protection order ends without
extension shall be disposed of in accordance with Article 3 of Chapter 5 of Title 17.
</ins>
<ins>16-11-149.
A respondent may elect to transfer all firearms or ammunition owned by the respondent
that have been surrendered to or seized by a local law enforcement agency pursuant to
Code Section 16-11-147 to another person who is willing to receive the respondent's
firearms or ammunition. The law enforcement agency shall allow such a transfer only if
the chosen recipient:
(1) Currently is eligible to own or possess a firearm or ammunition under federal and
state law after confirmation through a background check;
(2) Attests to storing the firearms or ammunition in a manner such that the respondent
does not have access to or control of the firearms or ammunition until the risk protection
order against the respondent is vacated or ends without extension; and
(3) Attests not to transfer the firearms or ammunition back to the respondent until the
risk protection order against the respondent is vacated or ends without extension.
16-11-149.1.
(a) Upon receipt of the copy of the risk protection order, the law enforcement agency shall
enter the order into the records of the Georgia Crime Information Center and National
Crime Information Center. The risk protection order shall remain in each system for the
period stated in the order, and the law enforcement agency may only remove an order from
the systems if it has been vacated or has ended without extension. Entry of the risk
protection order into the records of the Georgia Crime Information Center and National
Crime Information Center constitutes notice to all law enforcement agencies of the
existence of the order which shall be fully enforceable in any county in this state.
(b) The issuing court shall, within three business days after issuance of a risk protection
order or temporary ex parte risk protection order, forward all available identifying
information concerning the respondent, along with the date of issuance of the order, to the
Georgia Crime Information Center. Upon receipt of such information, the Georgia Crime
</ins>
<ins>Information Center shall determine if the respondent has a weapons carry license or
firearm. If the respondent does have a weapons carry license or firearm, the Georgia Crime
Information Center shall immediately suspend the license.
(c) If a risk protection order is vacated before its end date, the clerk of the court shall, on
the day of the order to vacate, forward a copy of the order to vacate to the Georgia Crime
Information Center and the appropriate law enforcement agency specified in the order to
vacate. Upon receipt of the order to vacate, the law enforcement agency shall promptly
remove the risk protection order from any computer based system in which it was entered
pursuant to subsection (a) of this Code section.
16-11-149.2.
(a) A person who makes a false statement, which he or she does not believe to be true,
under oath in a hearing under this part in regard to any material matter commits a
misdemeanor of a high and aggravated nature, punishable as provided in Code Section
17-10-4.
(b) A person who has in his or her custody or control a firearm or any ammunition or who
purchases, possesses, or receives a firearm or any ammunition with knowledge that he or
she is prohibited from doing so by a risk protection order or temporary ex parte risk
protection order issued under this part commits a misdemeanor of a high and aggravated
nature, punishable as provided in Code Section 17-10-4.
16-11-149.3.
This part shall not be construed to affect the ability of a law enforcement officer to conduct
any search and seizure for firearms or ammunition pursuant to other lawful authority.
</ins>
<ins>16-11-149.4.
Except as provided in Code Section 16-11-148 or 16-11-149.2, this part shall not impose
criminal or civil liability on any person or entity for acts or omissions related to obtaining
a risk protection order or temporary ex parte risk protection order, including, but not
limited to, providing notice to the respondent, a family or household member of the
respondent, and any known third party who may be at risk of violence, or failing to provide
such notice, or reporting, declining to report, investigating, declining to investigate, filing,
or declining to file a petition under this part.
16-11-149.5.
(a)(1) The Administrative Office of the Courts shall develop and prepare instructions and
informational brochures, standard petition and risk protection order forms, and a court
staff handbook on the risk protection order process. The standard petition and order
forms shall be used after January 1, 2025, for all petitions filed and risk protection orders
issued pursuant to this part. The office shall determine the significant
non-English-speaking or limited English-speaking populations in this state and prepare
the instructions and informational brochures and standard petition and risk protection
order forms in such languages. The instructions, brochures, forms, and handbook shall
be prepared in consultation with interested persons, including representatives of gun
violence prevention groups, judges, and law enforcement personnel. Materials shall be
based on best practices and shall be available online to the public.
(2) The instructions shall be designed to assist petitioners in completing the petition and
shall include a sample of completed forms for a standard petition and risk protection
order.
(3) The instructions and standard petition shall include a means for the petitioner to
identify, with only layman's knowledge, the firearms or ammunition the respondent may
own, possess, receive, or have in his or her custody or control. The instructions shall
</ins>
<ins>provide pictures of the types of firearms and ammunition that the petitioner may choose
from to identify the relevant firearms or ammunition or shall provide an equivalent means
to allow petitioners to identify firearms or ammunition without requiring specific or
technical knowledge regarding the firearms or ammunition.
(4) The informational brochure shall describe the use of and the process for obtaining,
extending, and vacating a risk protection order under this part and shall provide relevant
forms.
(5) The risk protection order form shall include, in a conspicuous location, notice of
criminal penalties resulting from violation of the order and the following statement: 'You
have the sole responsibility to avoid or refrain from violating this order's provisions.
Only the court can change the order and only upon written request.'
(6) The court staff handbook shall allow for the addition of a community resource list by
the clerk of the court.
(b) Any clerk of the court may create a community resource list of crisis intervention,
mental health, substance abuse, interpreter, counseling, and other relevant resources
serving the county in which the court is located. The court may make the community
resource list available as part of or in addition to the informational brochures described in
subsection (a) of this Code section.
(c) The Administrative Office of the Courts shall distribute a master copy of the petition
and risk protection order forms, instructions, and informational brochures to the clerks of
court. Distribution of all documents shall, at a minimum, be in an electronic format or in
formats accessible to all courts and clerks of court in this state.
(d) Within 90 days after receipt of the master copy from the Administrative Office of the
Courts, the court shall make available the standardized forms, instructions, and
informational brochures required by this Code section.
</ins>
<ins>(e) The Administrative Office of the Courts shall update the instructions, brochures,
standard petition and risk protection order forms, and court staff handbook as necessary,
including when changes in the law make an update necessary."
</ins> SECTION 2.
All laws and parts of laws in conflict with this Act are repealed.