§ 131S — Extreme risk protection orders; hearing; issuance of order; surrender of license, identification card and firearms

Massachusetts § 131S

• Jurisdiction: Massachusetts
• Part I: ADMINISTRATION OF THE GOVERNMENT
• Title XX: PUBLIC SAFETY AND GOOD ORDER
• Ch. 140: LICENSES

Text

[ Text of section effective until October 2, 2024. For text effective October 2, 2024, see below.]Section 131S. (a) The court shall, within 10 days of receipt of a petition pursuant to section 131R, conduct a hearing on the petition. Upon receipt of the petition, the court shall issue a summons with the date, time and location of the hearing. The court shall direct a law enforcement officer to personally serve a copy of the petition and the summons on the respondent or, if personal service by a law enforcement officer is not possible, the court may, after a hearing, order that service be made by some other identified means reasonably calculated to reach the respondent. Service shall be made not less than 7 days prior to the hearing.(b) Notwithstanding the provisions of subsection (a), the court shall, within 2 days of receipt of a petition made pursuant to section 131R, conduct a hearing on the petition if the respondent files an affidavit that a firearm, rifle, shotgun, machine gun, weapon or ammunition is required in the performance of the respondent's employment.(c) If after the hearing pursuant to subsection (a) or subsection (b), the court finds by a preponderance of the evidence that the respondent poses a risk of causing bodily injury to self or others by having in the respondent's control, ownership or possession a firearm, rifle, shotgun, machine gun, weapon or ammunition, the court shall grant the petition. If the respondent does not appear at the hearing pursuant to subsection (a) or subsection (b), the court shall grant the petition upon a determination that the petitioner has demonstrated by a preponderance of the evidence that the respondent poses such a risk.(d) Upon granting a petition, the court shall issue an extreme risk protection order and shall order the respondent to surrender any licenses to carry firearms, firearms identification cards and all firearms, rifles, shotguns, machine guns, weapons and ammunition which the respondent then controls, owns or possesses, to the licensing authority of the municipality where the respondent resides. The court shall enter written findings as to the basis of its order within 24 hours of granting the order. The court may modify, suspend or terminate its order at any subsequent time upon motion by either party; provided, however, that due notice shall be given to the respondent and petitioner, and the court shall hold a hearing on said motion. When the petitioner's address is confidential to the respondent as provided in subsection (d) of section 131R and the respondent has filed a motion to modify the court's order, the court shall be responsible for notifying the petitioner. In no event shall the court disclose any such confidential address.Not less than 30 calendar days prior to the expiration of an extreme risk protection order, the court shall notify the petitioner at the best known address of the scheduled expiration of the order and that the petitioner may file a petition to renew the order pursuant to section 131R.(e) Upon issuing an extreme risk protection order the clerk-magistrate of the court shall transmit 2 certified copies of the order and 1 copy of the petition and summons forthwith to the licensing authority of the municipality where the respondent resides which, unless otherwise ordered by the court, shall serve a copy of the order and petition upon the respondent. Licensing authorities shall establish adequate procedures to ensure that, when effecting service upon a respondent, a law enforcement officer shall, to the extent practicable: (i) fully inform the respondent of the contents and terms of the order and the available penalties for any violation of an order; and (ii) provide the respondent with informational resources, including, but not limited to, a list of services relating to crisis intervention, mental health, substance use disorders and counseling, and a list of interpreters, as necessary, located within or near the court's jurisdiction. The chief justice of the trial court, in consultation with the executive office of public safety and security, and the department of mental health, shall annually update the informational resource guides required under this section.Each extreme risk protection order issued by the court shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.(f) Upon receipt of service of an extreme risk protection order, the licensing authority of the municipality where the respondent resides shall immediately suspend the respondent's license to carry firearms or a firearm identification card and shall immediately notify the respondent of said suspension.Upon receipt of service of an extreme risk protection order the respondent shall immediately surrender their license to carry firearms or a firearm identification card and all firearms, rifles, shotguns, machine guns, weapons or ammunition in their control, ownership or possession to the local licensing authority serving the order, in accordance with section 129D; provided, however, that nothing in this section or in said section 129D shall allow the respondent to: (i) transfer any firearms, rifles, shotguns, machine guns, weapons or ammunition required to be surrendered, or surrendered, by the respondent to anyone other than a licensed dealer; or (ii) maintain control, ownership or possession of any firearms, rifles, shotguns, machine guns, weapons or ammunition during the pendency of any appeal of an extreme risk protection order; provided, however, that while the surrender of ownership pursuant to an extreme risk protection order shall require the immediate surrender of any license to carry firearms or a firearm identification card and all firearms, rifles, shotguns, machine guns, weapons or ammunition in the respondent's control or possession, it shall not require the surrender of permanent ownership rights; and provided further that, notwithstanding section 129D, if the licensing authority cannot reasonably ascertain a lawful owner of firearms, rifles, shotguns, machine guns, weapons or ammunition surrendered pursuant to extreme risk protection order within 180 days of the expiration or termination of the extreme risk protection order, the licensing authority may, in its discretion, trade or dispose of surplus, donated, abandoned or junk firearms, rifles, shotguns, machine guns, weapons or ammunition to properly licensed distributors or firearms dealers and the proceeds of such sale or transfer shall be remitted or credited to the municipality in which the licensing authority presides to be used for violence reduction or suicide prevention. A violation of this subsection shall be punishable by a fine of not more than $5,000 or by imprisonment for not more than 21/2 years in a house of correction or by both such fine and imprisonment.(g) Upon receipt of a license to carry firearms or a firearm identification card and any firearms, rifles, shotguns, machine guns, weapons or ammunition surrendered by a respondent pursuant to subsection (f), the licensing authority taking possession of the license to carry firearms or a firearm identification card and firearms, rifles, shotguns, machine guns, weapons or ammunition shall issue a receipt identifying any license to carry firearms or a firearm identification card and all firearms, rifles, shotguns, machine guns, weapons or ammunition surrendered by the respondent and shall provide a copy of the receipt to the respondent. The licensing authority to which the respondent surrendered a license to carry firearms or a firearm identification card and all firearms, rifles, shotguns, machine guns, weapons or ammunition shall, within 48 hours of the surrender, file the receipt with the court.(h) If a person other than the respondent claims title to any firearms, rifles, shotguns, machine guns, weapons or ammunition required to be surrendered or surrendered, pursuant to this section, and is determined by the licensing authority to be the lawful owner of the firearms, rifles, shotguns, machine guns, weapons or ammunition, the firearms, rifles, shotguns, machine guns, weapons or ammunition shall be returned to the person; provided, however, that: (i) the firearms, rifles, shotguns, machine guns, weapons or ammunition are removed from the respondent's control, ownership or possession and the lawful owner agrees to store the firearms, rifles, shotguns, machine guns, weapons or ammunition in a manner such that the respondent does not have access to, or control of, the firearms, rifles, shotguns, machine guns, weapons or ammunition; and (ii) the firearms, rifles, shotguns, machine guns, weapons or ammunition are not otherwise unlawfully possessed by the owner. A violation of this subsection shall be punishable by a fine of not more than $5,000 or by imprisonment for not more than 21/2 years in a house of correction or by both such fine and imprisonment.(i) Upon the expiration or termination of an extreme risk protection order, a licensing authority holding any firearms, rifles, shotguns, machine guns, weapons or ammunition that have been surrendered pursuant to this section shall return any license to carry firearms or firearm identification card and all firearms, rifles, shotguns, machine guns, weapons or ammunition requested by a respondent only after the licensing authority of the municipality in which the respondent resides confirms that the respondent is suitable for a license to carry firearms or a firearm identification card and to control, own or possess firearms, rifles, shotguns, machine guns, weapons or ammunition under federal and state law.Not less than 7 days prior to expiration of an extreme risk protection order, a licensing authority holding any firearms, rifles, shotguns, machine guns, weapons or ammunition that have been surrendered pursuant to this section shall notify the petitioner of the expiration of the extreme risk protection order and the return of a license to carry firearms or firearm identification card and the return of any firearms, rifles, shotguns, machine guns, weapons or ammunition to the respondent.As soon as reasonably practicable after receiving notice of the termination of an extreme risk protection order by the court, a licensing authority holding any firearms, rifles, shotguns, machine guns, weapons or ammunition that have been surrendered pursuant to this section shall notify the petitioner of the termination of the extreme risk protection order and the return of a license to carry firearms or firearm identification card and the return of any firearms, rifles, shotguns, machine guns, weapons or ammunition to the respondent.(j) A respondent who has surrendered a license to carry firearms or firearm identification card and all firearms, rifles, shotguns, machine guns, weapons or ammunition to a licensing authority and who does not wish to have the license to carry firearms or firearm identification card or firearms, rifles, shotguns, machine guns, weapons or ammunition returned or who is no longer eligible to control, own or possess firearms, rifles, shotguns, machine guns, weapons or ammunition pursuant to this chapter or federal law, may sell or transfer title of the firearms, rifles, shotguns, machine guns, weapons or ammunition to a licensed firearms dealer; provided, however, that the respondent shall not take physical possession of the firearms, rifles, shotguns, machine guns, weapons or ammunition. The licensing authority may transfer possession of the firearms, rifles, shotguns, machine guns, weapons or ammunition to a licensed dealer upon the dealer providing the licensing authority with written proof of the sale or transfer of title of the firearms, rifles, shotguns, machine guns, weapons or ammunition from the respondent to the dealer.(k) If the licensing authority cannot reasonably ascertain the lawful owner of any firearms, rifles, shotguns, machine guns, weapons or ammunition surrendered pursuant to this section within 180 days of the expiration or termination of the order to surrender the firearms, rifles, shotguns, machine guns, weapons or ammunition the licensing authority may dispose of the firearms, rifles, shotguns, machine guns, weapons or ammunition pursuant to section 129D.Chapter 140: Section 131S. Extreme risk protection orders; hearing; issuance of order; surrender of license, identification card and firearms; expiration of order; return of license to carry firearms or firearm identification card and all firearms or ammunition; disposal of firearms or ammunition[ Text of section as amended by 2024, 135, Sec. 79 effective October 2, 2024. For text effective until October 2, 2024, see above.]Section 131S. (a) The court shall, within 10 days of receipt of a petition pursuant to section 131R, conduct a hearing on the petition. Upon receipt of the petition, the court shall issue a summons with the date, time and location of the hearing. The court shall direct a law enforcement officer to personally serve a copy of the petition and the summons on the respondent or, if personal service by a law enforcement officer is not possible, the court may, after a hearing, order that service be made by some other identified means reasonably calculated to reach the respondent. Service shall be made not less than 7 days prior to the hearing.(b) Notwithstanding subsection (a), the court shall, within 2 days of receipt of a petition made pursuant to section 131R, conduct a hearing on the petition if the respondent files an affidavit that a firearm or ammunition is required in the performance of the respondent's employment.(c)(1) If after the hearing pursuant to subsection (a) or subsection (b), the court finds by a preponderance of the evidence that the respondent poses a risk of causing bodily injury to self or others by having in the respondent's control, ownership or possession a firearm or ammunition, the court shall grant the petition. If the respondent does not appear at the hearing pursuant to subsection (a) or subsection (b), the court shall grant the petition upon a determination that the petitioner has demonstrated by a preponderance of the evidence that the respondent poses such a risk.(2) Upon granting a petition, the court shall issue an extreme risk protection order and shall order the respondent to surrender any licenses to carry firearms, firearms identification cards and all firearms and ammunition that the respondent then controls, owns or possesses to the licensing authority of the municipality where the respondent resides. The court shall enter written findings as to the basis of its order within 24 hours of granting the order. The court may modify, suspend or terminate its order at any subsequent time upon motion by either party; provided, however, that due notice shall be given to the respondent and petitioner, and the court shall hold a hearing on said motion. When the petitioner's address is confidential to the respondent as provided in subsection (d) of section 131R and the respondent has filed a motion to modify the court's order, the court shall be responsible for notifying the petitioner. In no event shall the court disclose any such confidential address.(3) Not less than 30 calendar days prior to the expiration of an extreme risk protection order, the court shall notify the petitioner at the best-known address of the scheduled expiration of the order and that the petitioner may file a petition to renew the order pursuant to section 131R.(d)(1) If after the hearing pursuant to subsection (a) or subsection (b), the court has probable cause to believe that the respondent has access to a firearm or ammunition, on their person or in an identified place, and the respondent fails to surrender any firearms or ammunition within 24 hours of being served pursuant to subsection (e), the court shall issue a warrant identifying the property, naming or describing the person or place to be searched, and commanding the appropriate law enforcement agency to search the person of the respondent and any identified place and seize any firearm or ammunition found to which the respondent would have access.(2) The court may issue additional warrants to seize firearms or ammunition if the court determines there is probable cause to believe that the respondent has retained, acquired or gained access to a firearm or ammunition while an order under this section remains in effect.(3) Upon executing a warrant issued pursuant to this subsection or section 131T, the law enforcement agency conducting the search shall issue a receipt identifying any firearm or ammunition seized. The law enforcement agency shall provide a copy of the receipt to the respondent. The licensing authority shall then, within 48 hours of the search, return the warrant to the court with the original receipt. If the law enforcement agency executing the warrant and the licensing authority for the municipality where the respondent resides are different, the law enforcement agency shall remit to the licensing authority a copy of the receipt along with any seized items, and shall file with its warrant and receipt a certification signed by both the law enforcement agency and the licensing authority that the seized items were delivered to and accepted by the licensing authority. The licensing authority shall store the seized items with any items surrendered in accordance with subsection (f).(e) Upon issuing an extreme risk protection order the clerk-magistrate of the court shall transmit 2 certified copies of the order and 1 copy of the petition and summons forthwith to the licensing authority of the municipality where the respondent resides which, unless otherwise ordered by the court, shall serve a copy of the order and petition upon the respondent. If a warrant has been issued pursuant to subsection (d) or pursuant to subsection (b) of section 131T, the court shall submit 2 certified copies of the warrant, 1 copy of the petition and summons and 1 copy of the extreme risk protection order to the appropriate law enforcement agency for execution. Licensing authorities and law enforcement agencies shall establish adequate procedures to ensure that, when effecting service upon a respondent or executing a warrant, a law enforcement officer shall, to the extent practicable: (i) fully inform the respondent of the contents and terms of the order or warrant and the available penalties for any violation of an order; and (ii) provide the respondent with informational resources, including, but not limited to, a list of services relating to crisis intervention, mental health, substance use disorders and counseling, and a list of interpreters, as necessary, located within or near the court's jurisdiction. The chief justice of the trial court, in consultation with the executive office of public safety and security, and the department of mental health, shall annually update the informational resource guides required under this section.Each extreme risk protection order issued by the court shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.(f) Upon receipt of service of an extreme risk protection order, the licensing authority of the municipality where the respondent resides shall immediately suspend the respondent's license to carry firearms or a firearm identification card and immediately notify the respondent of said suspension and shall not issue any license to carry or firearm identification card to the respondent for the duration of the order.Upon receipt of service of an extreme risk protection order the respondent shall immediately surrender their license to carry firearms or a firearm identification card and all firearms or ammunition in their control, ownership or possession to the local licensing authority serving the order, in accordance with section 129D; provided, however, that nothing in this section or in section 129D shall allow the respondent to: (i) transfer any firearms or ammunition required to be surrendered, or surrendered, by the respondent to anyone other than a licensed dealer or the local licensing authority; or (ii) maintain control, ownership or possession of any firearms or ammunition during the pendency of any appeal of an extreme risk protection order; provided, however, that while the surrender of ownership pursuant to an extreme risk protection order shall require the immediate surrender of any license to carry firearms or a firearm identification card and all firearms or ammunition in the respondent's control or possession, it shall not require the surrender of permanent ownership rights; and provided further that, notwithstanding section 129D, if the licensing authority cannot reasonably ascertain a lawful owner of firearms or ammunition surrendered pursuant to extreme risk protection order within 180 days of the expiration or termination of the extreme risk protection order, the licensing authority may, in its discretion, trade or dispose of surplus, donated, abandoned or junk firearms or ammunition to properly licensed distributors or firearms dealers and the proceeds of such sale or transfer shall be remitted or credited to the municipality in which the licensing authority presides to be used for violence reduction or suicide prevention. A violation of this subsection shall be punishable by a fine of not more than $5,000 or by imprisonment for not more than 21/2 years in a house of correction or by both such fine and imprisonment.(g) Upon receipt of a license to carry firearms or a firearm identification card and any firearms or ammunition surrendered by a respondent pursuant to subsection (f) or seized pursuant to subsection (d), the licensing authority taking possession of the license to carry firearms or a firearm identification card and firearms or ammunition shall issue a receipt identifying any license to carry firearms or a firearm identification card and all firearms or ammunition surrendered or seized and shall provide a copy of the receipt to the respondent. The licensing authority shall, within 48 hours of the surrender or 48 hours of receipt of the seizure, file the receipt with the court.(h) If a person other than the respondent claims title to any firearms or ammunition required to be surrendered or seized pursuant to this section, and is determined by the licensing authority to be the lawful owner of the firearms or ammunition, the firearms or ammunition shall be returned to the person; provided, however, that: (i) the firearms or ammunition shall be removed from the respondent's control, ownership or possession and the lawful owner agrees to store the firearms or ammunition in a manner such that the respondent does not have access to, or control of, the firearms or ammunition; and (ii) the firearms or ammunition shall not be otherwise unlawfully possessed by the owner. A violation of this subsection shall be punishable by a fine of not more than $5,000 or by imprisonment for not more than 21/2 years in a house of correction or by both such fine and imprisonment.(i) Upon the expiration or termination of an extreme risk protection order, a licensing authority holding any firearms ammunition that have been surrendered or seized pursuant to this section shall return any license to carry firearms or firearm identification card and all firearms or ammunition requested by a respondent only after the licensing authority of the municipality in which the respondent resides confirms that the respondent is suitable for a license to carry firearms or a firearm identification card and to control, own or possess firearms or ammunition under federal and state law.Not less than 7 days prior to expiration of an extreme risk protection order, a licensing authority holding any firearms or ammunition that have been surrendered or seized pursuant to this section shall notify the petitioner of the expiration of the extreme risk protection order and the return of a license to carry firearms or firearm identification card and the return of any firearms or ammunition to the respondent.As soon as reasonably practicable after receiving notice of the termination of an extreme risk protection order by the court, a licensing authority holding any firearms or ammunition that have been surrendered or seized pursuant to this section shall notify the petitioner of the termination of the extreme risk protection order and the return of a license to carry firearms or firearm identification card and the return of any firearms or ammunition to the respondent.(j) A respondent who has surrendered a license to carry firearms or firearm identification card and all firearms or ammunition to a licensing authority, or who had any firearms or ammunition seized by a law enforcement agency, and who does not wish to have the license to carry firearms or firearm identification card or firearms or ammunition returned or who is no longer eligible to control, own or possess firearms or ammunition pursuant to this chapter or federal law, may sell or transfer title of the firearms or ammunition to a licensed firearms dealer, notwithstanding the limits on private firearm transfers in section 127B; provided, however, that the respondent shall not take physical possession of the firearms or ammunition. The licensing authority may transfer possession of the firearms or ammunition to a licensed dealer upon the dealer providing the licensing authority with written proof of the sale or transfer of title of the firearms or ammunition from the respondent to the dealer.(k) If the licensing authority cannot reasonably ascertain the lawful owner of any firearms or ammunition surrendered or seized pursuant to this section within 180 days of the expiration or termination of the order to surrender the firearms or ammunition the licensing authority may dispose of the firearms or ammunition pursuant to section 129D.