HB1312: HB1312 Desai Safety Act; enact

26 LC 63 0080 House Bill 1312 By: Representatives Santos of the 117th and Crawford of the 89th A BILL TO BE ENTITLED AN ACT To amend Part 3 of Article 4 of Chapter 11 of Title 16 and Title 19 of the Official Code of1 Georgia Annotated, relating to carrying and possession of firearms and domestic relations,2 respectively, so as to prohibit persons subject to a protective order for family violence or3 dating violence from possessing a firearm or ammunition; to provide for penalties; to require4 reporting by the court issuing such prohibition; to require the surrender or transfer of firearms5 or ammunition in such person's possession; to provide for petitions for return of firearms or6 ammunition and restoration of rights; to provide for the adoption of procedures; to provide7 for applicability; to provide for definitions; to provide for a short title; to provide for related8 matters; to repeal conflicting laws; and for other purposes.9 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:10 SECTION 1.11 This Act shall be known and may be cited as the "Desai Safety Act."12 H. B. 1312 - 1 - 26 LC 63 0080 SECTION 2.13 Part 3 of Article 4 of Chapter 11 of Title 16 of the Official C ode of Georgia Annotated,14 relating to carrying and possession of firearms, is amended in Code Section 16-11-131,15 relating to possession of firearms by convicted felons and firs t offender probationers, by16 revising subsections (a) through (c) and adding a new subsection to read as follows:17 "(a) As used in this Code section, the term:18 (1) 'Ammunition' means cartridges, primers, bullets, or other projectiles or components19 designed or intended for use in any firearm.20 (2) 'Antique firearm' means:21 (A) Any firearm manufactured on or before 1898, including, but not limited to, any22 firearm with a matchlock, flintlock, percussion cap, or similar type of ignition system;23 (B) Any replica of any firearm described in subparagraph (A) of this paragraph if such24 replica:25 (i) Is not designed or redesigned for using rimfire or conventional center-fire fixed26 ammunition; or27 (ii) Uses rimfire or conventional center-fire fixed ammunition which is no longer28 manufactured in the United States and which is not readily avai lable through the29 ordinary channels of commercial trade; or30 (C) Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol which31 is designed to use black powder, or a black powder substitute, and which cannot use32 fixed ammunition. Such term shall not include a weapon which incorporates a firearm33 frame or receiver, a firearm which is converted into a muzzle-l oading firearm, or a34 muzzle-loading firearm which can be readily converted to fire f ixed ammunition by35 replacing the barrel, bolt, breechblock, or any combination thereof.36 (1)(3) 'Felony' means any offense punishable by imprisonment for a term of one year or37 more and includes conviction by a court-martial under the Unifo rm Code of Military38 H. B. 1312 - 2 - 26 LC 63 0080 Justice for an offense which would constitute a felony under th e laws of the United39 States.40 (2)(4) 'Firearm' includes any handgun, rifle, shotgun, or other weapon which will or can41 be converted to expel a projectile by the action of an explosive or electrical charge. Such42 term shall not include an antique firearm.43 (5) 'Protected person' means an individual with whom contact is restricted and who is:44 (A) A victim of family violence as such term is set forth in Code Section 19-13-1; or45 (B) A victim of dating violence as such term is set forth in Code Section 19-13A-1.46 (6) 'Protective order' means:47 (A) Any temporary protective order or permanent protective order issued pursuant to48 Chapter 13 of Title 19, provided that such order was issued after the restrained person49 received notice of the proceedings and an opportunity to be heard; or50 (B) Any temporary protective order or permanent protective order issued pursuant to51 Chapter 13A of Title 19, provided that such order was issued after the restrained person52 received notice of the proceedings and an opportunity to be heard.53 (b) Any person who is on probation as a felony first offender pursuant to Article 3 of54 Chapter 8 of Title 42, who is on probation and was sentenced fo r a felony under55 subsection (a) or (c) of Code Section 16-13-2, or who has been convicted of a felony by56 a court of this state or any other state; by a court of the Uni ted States including its57 territories, possessions, and dominions; or by a court of any f oreign nation and who58 receives, possesses, or transports a firearm commits a felony a nd, upon conviction59 thereof, shall be imprisoned for not less than one year nor more than ten years; provided,60 however, that upon a second or subsequent conviction, such person shall be imprisoned61 for not less than five nor more than ten years; provided, furth er, that if the felony for62 which the person is on probation or has been previously convict ed is a forcible felony,63 then upon conviction of receiving, possessing, or transporting a firearm, such person shall64 be imprisoned for a period of five years.65 H. B. 1312 - 3 - 26 LC 63 0080 (b.1) Any person who is prohibited by this Code section from possessing a firearm because66 of conviction of a forcible felony or because of being on proba tion as a first offender or67 under conditional discharge for a forcible felony and who attempts to purchase or obtain68 transfer of a firearm shall be guilty of a felony and upon conviction shall be punished by69 imprisonment for not less than one year nor more than five years; provided, however, that70 upon a second or subsequent conviction, such person shall be punished by imprisonment71 for not less than five nor more than ten years.72 (b.2)(1) Any person who receives, possesses, transports, or at tempts to purchase or73 obtain a firearm or ammunition while being subject to a protect ive order commits a74 felony and, upon conviction thereof, shall be punished by a fin e of not more than75 $10,000.00 or imprisonment for not less than one year nor more than five years, or both.76 (2) Any person who knowingly provides false information to a court or law enforcement77 officer with the intent to evade the requirements of this subse ction shall be guilty of a78 misdemeanor.79 (3) A person subject to a protective order shall, within 48 hours of service of such order:80 (A) Surrender to the court, local law enforcement agency, or a federally licensed81 firearms dealer any firearms and ammunition in his or her possession;82 (B) Transfer any firearms and ammunition in his or her possession to a person who is83 not prohibited from possessing firearms under this article and who is not residing with84 the person subject to the protective order and who attests to such by oath or affidavit;85 or86 (C) Transfer any firearms and ammunition in his or her possess ion to a federally87 licensed firearms dealer for temporary storage.88 (4) If a person required to surrender or transfer a firearm or ammunition pursuant to this89 subsection fails to surrender or transfer such firearm or ammunition, a law enforcement90 officer shall be authorized to seize any firearms or ammunition located in plain view, if91 H. B. 1312 - 4 - 26 LC 63 0080 probable cause exists to believe the firearms or ammunition bel ong to the prohibited92 person.93 (5) A person who has surrendered firearms or ammunition under this subsection may94 petition the court for the return of such firearms or ammunitio n upon satisfactory95 demonstration that he or she is not otherwise prohibited from possessing firearms under96 state or federal law and that he or she is no longer subject to a protective order.97 (6)(A) When a person is subject to a protective order, the clerk of court shall report the98 existence of the order to the Georgia Crime Information Center and to the National99 Instant Criminal Background Check System.100 (B) The clerk of court shall adopt procedures consistent with state and federal101 requirements to submit accurate and timely records and to preserve the confidentiality102 of victims where required by law.103 (7) Law enforcement agencies shall be authorized to establish protocols consistent with104 this subsection to accept surrendered firearms and to document chain of custody.105 (8) Nothing in this subsection shall create a private right of action for enforcement by a106 private person against another person.107 (c) This Code section shall not apply to:108 (1) Any any person who has been pardoned for the felony by the President of the United109 States, the State Board of Pardons and Paroles, or the person o r agency empowered to110 grant pardons under the constitutions or laws of the several states or of a foreign nation111 and, by the terms of the pardon, has expressly been authorized to receive, possess, or112 transport a firearm;113 (2) The possession or acquisition of a firearm or ammunition by a person solely because114 he or she is a witness in a criminal proceeding, provided that the firearm or ammunition115 is held by law enforcement or an authorized third party pursuant to a court order;116 H. B. 1312 - 5 - 26 LC 63 0080 (3) The temporary transfer of a firearm to a federally licensed firearms dealer or other117 qualified person where such transfer is for the purpose of safe storage, repair, or disposal,118 and where the prohibited person does not retain possession or control of such firearm; or119 (4) Acts otherwise permitted by state or federal law for peace officers, corrections120 officers, or other persons authorized to possess firearms in th e performance of official121 duties."122 SECTION 3.123 Title 19 of the Official Code of Georgia Annotated, relating to domestic relations, is124 amended in Code Section 19-13-4, relating to family violence protective orders and consent125 agreements, by adding a new subsection to read as follows:126 "(a.1) A protective order issued pursuant to subsection (a) of this Code section that was127 granted after notice was provided to the respondent and after such respondent was given128 an opportunity to be heard on such issue shall prohibit such re spondent from receiving,129 possessing, or transporting a firearm or ammunition. Such order shall state on its face that130 the order creates a firearm prohibition and shall inform the restrained person about the duty131 to surrender or transfer firearms and ammunition, the timeframe for such surrender or132 transfer, and the penalty for failure to comply pursuant to Cod e Section 16-11-131. A133 respondent's right to receive, possess, or transport a firearm or ammunition shall be restored134 upon the cessation of the order issued pursuant to this Code section or, upon petition to the135 court, a finding by the court that the respondent no longer pos sesses a danger to public136 safety. Any restoration of such rights shall be reported by the clerk of court to the Georgia137 Crime Information Center and to the National Instant Criminal Background Check System,138 and any such restoration shall not remove any requirement relat ing to any reporting139 requirements under state or federal law."140 H. B. 1312 - 6 - 26 LC 63 0080 SECTION 4.141 Said title is further amended in Code Section 19-13A-4, relating to required findings of fact142 and authority of court, by adding a new subsection to read as follows:143 "(b.1) A protective order granted under this Code section after notice was provided to the144 respondent and after such respondent was given an opportunity to be heard on such issue145 shall prohibit such respondent from receiving, possessing, or t ransporting a firearm or146 ammunition. Such order shall state on its face that the order creates a firearm prohibition147 and shall inform the restrained person about the duty to surrender or transfer firearms and148 ammunition, the timeframe for such surrender or transfer, and t he penalty for failure to149 comply pursuant to Code Section 16-11-131. A respondent's right to receive, possess, or150 transport a firearm or ammunition shall be restored upon the cessation of the order issued151 pursuant to this Code section or, upon petition to the court, a finding by the court that the152 respondent no longer possesses a danger to public safety. Any restoration of such rights153 shall be reported by the clerk of court to the Georgia Crime Information Center and to the154 National Instant Criminal Background Check System, and any such restoration shall not155 remove any requirement relating to any reporting requirements under state or federal law."156 SECTION 5.157 All laws and parts of laws in conflict with this Act are repealed.158 H. B. 1312 - 7 -