Offenses Against Public Order
Petition for ex parte order
- issuance and service of order
- request for hearing
(1)A law enforcement officer or a family or household member of a person may file a petition requesting that the court issue an extreme risk protection order enjoining the person from having in the person’s custody or control, owning, purchasing, possessing or receiving, or attempting to purchase or receive, a deadly weapon.
(2)An extreme risk protection order petition shall be heard by the court and issued or denied on the same day the petition is submitted to the court or on the judicial business day immediately following the day the petition is filed.
(3)The petition for an extreme risk protection order must be supported by a written affidavit signed by the petitioner under oath, or an oral statement taken under oath by the petitioner or any other witness the petitioner may produce.
(4)In determining whether to issue an extreme risk protection order, the court shall consider the following:
(a)A history of suicide threats or attempts or acts of violence by the respondent directed against another person;
(b)A history of use, attempted use or threatened use of physical force by the respondent against another person;
(c)A previous conviction for:
(A)A misdemeanor involving violence as defined in ORS 166.470 (Limitations and conditions for sales of firearms);
(B)A stalking offense under ORS 163.732 (Stalking) or 163.750 (Violating a court’s stalking protective order), or a similar offense in another jurisdiction;
(C)An offense constituting domestic violence as defined in ORS 135.230 (Definitions for ORS 135.230 to 135.290);
(D)Driving under the influence of intoxicants under ORS 813.010 (Driving under the influence of intoxicants) or 813.011 (Felony driving under the influence of intoxicants); or
(E)An offense involving cruelty or abuse of animals;
(d)Evidence of recent unlawful use of controlled substances;
(e)Previous unlawful and reckless use, display or brandishing of a deadly weapon by the respondent;
(f)A previous violation by the respondent of a court order issued pursuant to ORS 107.716 (Hearing) or 107.718 (Restraining order);
(g)Evidence of an acquisition or attempted acquisition within the previous 180 days by the respondent of a deadly weapon; and
(h)Any additional information the court finds to be reliable, including a statement by the respondent.
(5)(a) The petitioner has the burden of proof at the ex parte hearing.
(b)The petitioner may appear in person or by electronic video transmission.
(c)The court may continue a hearing under this section upon a showing of good cause.
(6)(a) The court shall issue an extreme risk protection order if the court finds by clear and convincing evidence, based on the petition and supporting documentation and after considering a statement by the respondent, if provided, that the respondent presents a risk in the near future, including an imminent risk, of suicide or of causing physical injury to another person. The court may not include in the findings any mental health diagnosis or any connection between the risk presented by the respondent and mental illness.
(b)Upon making the findings described in paragraph (a) of this subsection, the court shall issue an extreme risk protection order prohibiting the respondent from having in the respondent’s custody or control, owning, purchasing, possessing or receiving, or attempting to purchase or receive, a deadly weapon.
(7)An extreme risk protection order issued under this section must include:
(a)A statement of the evidence and the court’s findings supporting issuance of the order;
(b)The date and time the order was issued;
(c)A description of the manner in which the respondent may request a hearing described in subsection (9) of this section;
(d)The address of the court to which a request for a hearing must be sent;
(e)A description of the requirements for surrender of deadly weapons in the respondent’s possession under ORS 166.537 (Surrender of deadly weapons pursuant to order); and
(f)A statement in substantially the following form:
(8)(a) The respondent shall be personally served with both a copy of the extreme risk protection order and a hearing request form described in subsection (9) of this section.
(b)Whenever an extreme risk protective order is served on a respondent, the person serving the order shall immediately deliver to the county sheriff a true copy of proof of service, on which it is stated that personal service of the order was made on the respondent, and a copy of the order. Proof of service may be made by affidavit or by declaration under penalty of perjury in the form required by ORCP 1 E.
(c)If the person serving the order cannot complete service within 10 days, the person shall notify the petitioner, at the address provided by the petitioner, that the documents have not been served. If the petitioner does not respond within 10 days, the person shall hold the order and petition for future service and file a return to the clerk of the court showing that service was not completed.
(d)Upon receipt of a copy of the order and notice of completion of service by a member of a law enforcement agency, the county sheriff shall immediately enter the order into the Law Enforcement Data System maintained by the Department of State Police and request that the order be entered into the databases of the National Crime Information Center of the United States Department of Justice. If the order was served on the respondent by a person other than a member of a law enforcement agency, the county sheriff shall enter the order into the Law Enforcement Data System, and shall request that the information be entered into the databases of the National Crime Information Center, upon receipt of a true copy of proof of service. The sheriff shall provide the petitioner with a true copy of the proof of service. Entry into the Law Enforcement Data System constitutes notice to all law enforcement agencies of the existence of the order. Law enforcement agencies shall establish procedures adequate to ensure that an officer at the scene of an alleged violation of the order may be informed of the existence and terms of the order. The order is fully enforceable in any county in this state.
(9)(a) Within 30 days after an extreme risk protection order is served on the respondent under this section, the respondent may request a court hearing using a form prescribed by the State Court Administrator.
(b)If the respondent requests a hearing under paragraph (a) of this subsection, the clerk of the court shall notify the petitioner and the respondent of the date and time of the hearing and shall supply the petitioner with a copy of the respondent’s request for a hearing. The petitioner and the respondent shall give to the clerk of the court information sufficient to allow such notification.
(c)The hearing shall occur within 21 days of the date of the respondent’s request for a hearing.
(10)If the respondent fails to request a hearing within 30 days after an extreme risk protection order is served, the protection order is confirmed by operation of law and is effective for a period of one year from the date the original order was issued or until the order is terminated, whichever is sooner.
(11)A filing fee, service fee or hearing fee may not be charged for proceedings under this section or ORS 166.530 (Hearing on order) or 166.533 (Hearing to terminate order).
(12)If the court declines to issue an extreme risk protection order under this section, the court shall state with particularity the reasons for the denial on the record. [2017 c.737 §2]
Law Review Citations
51 OLR 427-637 (1972); 69 OLR 169 (1990)