§ 50B-3.1. Surrender and disposal of firearms; violations; exemptions. - North Carolina Statutes

§ 50B‑3.1.  Surrenderand disposal of firearms; violations; exemptions.

(a)        Required Surrenderof Firearms. – Upon issuance of an emergency or ex parte order pursuant to thisChapter, the court shall order the defendant to surrender to the sheriff allfirearms, machine guns, ammunition, permits to purchase firearms, and permitsto carry concealed firearms that are in the care, custody, possession,ownership, or control of the defendant if the court finds any of the followingfactors:

(1)        The use or threateneduse of a deadly weapon by the defendant or a pattern of prior conduct involvingthe use or threatened use of violence with a firearm against persons.

(2)        Threats to seriouslyinjure or kill the aggrieved party or minor child by the defendant.

(3)        Threats to commitsuicide by the defendant.

(4)        Serious injuriesinflicted upon the aggrieved party or minor child by the defendant.

(b)        Ex Parte orEmergency Hearing. – The court shall inquire of the plaintiff, at the ex parteor emergency hearing, the presence of, ownership of, or otherwise access tofirearms by the defendant, as well as ammunition, permits to purchase firearms,and permits to carry concealed firearms, and include, whenever possible,identifying information regarding the description, number, and location offirearms, ammunition, and permits in the order.

(c)        Ten‑DayHearing. – The court, at the 10‑day hearing, shall inquire of thedefendant the presence of, ownership of, or otherwise access to firearms by thedefendant, as well as ammunition, permits to purchase firearms, and permits tocarry concealed firearms, and include, whenever possible, identifyinginformation regarding the description, number, and location of firearms,ammunition, and permits in the order.

(d)        Surrender. – Uponservice of the order, the defendant shall immediately surrender to the sheriffpossession of all firearms, machine guns, ammunition, permits to purchasefirearms, and permits to carry concealed firearms that are in the care,custody, possession, ownership, or control of the defendant. In the event thatweapons cannot be surrendered at the time the order is served, the defendantshall surrender the firearms, ammunitions, and permits to the sheriff within 24hours of service at a time and place specified by the sheriff. The sheriffshall store the firearms or contract with a licensed firearms dealer to providestorage.

(1)        If the court ordersthe defendant to surrender firearms, ammunition, and permits, the court shallinform the plaintiff and the defendant of the terms of the protective order andinclude these terms on the face of the order, including that the defendant isprohibited from owning, possessing, purchasing, or receiving or attempting toown, possess, purchase, or receive a firearm for so long as the protectiveorder or any successive protective order is in effect. The terms of the ordershall include instructions as to how the defendant may request retrieval of anyfirearms, ammunition, and permits surrendered to the sheriff when theprotective order is no longer in effect. The terms shall also include notice ofthe penalty for violation of G.S. 14‑269.8.

(2)        The sheriff maycharge the defendant a reasonable fee for the storage of any firearms andammunition taken pursuant to a protective order. The fees are payable to thesheriff. The sheriff shall transmit the proceeds of these fees to the countyfinance officer. The fees shall be used by the sheriff to pay the costs ofadministering this section and for other law enforcement purposes. The countyshall expend the restricted funds for these purposes only. The sheriff shallnot release firearms, ammunition, or permits without a court order granting therelease. The defendant must remit all fees owed prior to the authorized returnof any firearms, ammunition, or permits. The sheriff shall not incur any civilor criminal liability for alleged damage or deterioration due to storage ortransportation of any firearms or ammunition held pursuant to this section.

(e)        Retrieval. – If thecourt does not enter a protective order when the ex parte or emergency orderexpires, the defendant may retrieve any weapons surrendered to the sheriffunless the court finds that the defendant is precluded from owning orpossessing a firearm pursuant to State or federal law or final disposition ofany pending criminal charges committed against the person that is the subjectof the current protective order.

(f)         Motion for Return.– The defendant may request the return of any firearms, ammunition, or permitssurrendered by filing a motion with the court at the expiration of the currentorder or final disposition of any pending criminal charges committed againstthe person that is the subject of the current protective order and not laterthan 90 days after the expiration of the current order or final disposition ofany pending criminal charges committed against the person that is the subjectof the current protective order. Upon receipt of the motion, the court shallschedule a hearing and provide written notice to the plaintiff who shall havethe right to appear and be heard and to the sheriff who has control of thefirearms, ammunition, or permits. The court shall determine whether thedefendant is subject to any State or federal law or court order that precludesthe defendant from owning or possessing a firearm. The inquiry shall include:

(1)        Whether theprotective order has been renewed.

(2)        Whether thedefendant is subject to any other protective orders.

(3)        Whether thedefendant is disqualified from owning or possessing a firearm pursuant to 18U.S.C. § 922 or any State law.

(4)        Whether thedefendant has any pending criminal charges, in either State or federal court,committed against the person that is the subject of the current protectiveorder.

The court shall deny the returnof firearms, ammunition, or permits if the court finds that the defendant isprecluded from owning or possessing a firearm pursuant to State or federal lawor if the defendant has any pending criminal charges, in either State orfederal court, committed against the person that is the subject of the currentprotective order until the final disposition of those charges.

(g)        Motion for Returnby Third‑Party Owner. – A third‑party owner of firearms,ammunition, or permits who is otherwise eligible to possess such items may filea motion requesting the return to said third party of any such items in thepossession of the sheriff seized as a result of the entry of a domesticviolence protective order. The motion must be filed not later than 30 daysafter the seizure of the items by the sheriff. Upon receipt of the thirdparty's motion, the court shall schedule a hearing and provide written noticeto all parties and the sheriff. The court shall order return of the items tothe third party unless the court determines that the third party isdisqualified from owning or possessing said items pursuant to State or federallaw. If the court denies the return of said items to the third party, the itemsshall be disposed of by the sheriff as provided in subsection (h) of thissection.

(h)        Disposal ofFirearms. – If the defendant does not file a motion requesting the return ofany firearms, ammunition, or permits surrendered within the time periodprescribed by this section, if the court determines that the defendant isprecluded from regaining possession of any firearms, ammunition, or permitssurrendered, or if the defendant or third‑party owner fails to remit allfees owed for the storage of the firearms or ammunition within 30 days of theentry of the order granting the return of the firearms, ammunition, or permits,the sheriff who has control of the firearms, ammunition, or permits shall givenotice to the defendant, and the sheriff shall apply to the court for an orderof disposition of the firearms, ammunition, or permits. The judge, after ahearing, may order the disposition of the firearms, ammunition, or permits inone or more of the ways authorized by law, including subdivision (4), (4b),(5), or (6) of G.S. 14‑269.1. If a sale by the sheriff does occur, anyproceeds from the sale after deducting any costs associated with the sale, andin accordance with all applicable State and federal law, shall be provided tothe defendant, if requested by the defendant by motion made before the hearingor at the hearing and if ordered by the judge.

(i)         It is unlawful forany person subject to a protective order prohibiting the possession or purchaseof firearms to:

(1)        Fail to surrenderall firearms, ammunition, permits to purchase firearms, and permits to carryconcealed firearms to the sheriff as ordered by the court;

(2)        Fail to disclose allinformation pertaining to the possession of firearms, ammunition, and permitsto purchase and permits to carry concealed firearms as requested by the court;or

(3)        Provide falseinformation to the court pertaining to any of these items.

(j)         Violations. – Inaccordance with G.S. 14‑269.8, it is unlawful for any person to own,possess, purchase, or receive or attempt to own, possess, purchase, or receivea firearm, as defined in G.S. 14‑409.39(2), machine gun, ammunition, orpermits to purchase or carry concealed firearms if ordered by the court for solong as that protective order or any successive protective order enteredagainst that person pursuant to this Chapter is in effect. Any defendantviolating the provisions of this section shall be guilty of a Class H felony.

(k)        Official UseExemption. – This section shall not prohibit law enforcement officers andmembers of any branch of the United States armed forces, not otherwiseprohibited under federal law, from possessing or using firearms for officialuse only.

(l)         Nothing in thissection is intended to limit the discretion of the court in granting additionalrelief as provided in other sections of this Chapter. (2003‑410, s. 1; 2004‑203,s. 34(a); 2005‑287, s. 4; 2005‑423, ss. 2, 3.)