Oregon Bulletin
March 1, 2011
Rule
Caption: Establishes Procedures for
Requesting/Conducting a Gun Relief Hearing for Persons with a Mental Health
Disability.
Adm.
Order No.: PSRB 1-2011
Filed with Sec. of
State: 2-2-2011
Certified to be
Effective: 2-15-11
Notice Publication
Date: 11-1-2010
Rules Adopted: 859-300-0001, 859-300-0010, 859-300-0020, 859-300-0030,
859-300-0040, 859-300-0050, 859-300-0060, 859-300-0070, 859-300-0080,
859-300-0090, 859-300-0100, 859-300-0110, 859-300-0120, 859-300-0130,
859-300-0140, 859-300-0150, 859-300-0160, 859-300-0170, 859-300-0180,
859-300-0190, 859-300-0200, 859-300-0210, 859-300-0220, 859-300-0230
Rules Repealed: 859-300-0001(T), 859-300-0010(T), 859-300-0020(T),
859-300-0030(T), 859-300-0040(T), 859-300-0050(T), 859-300-0060(T),
859-300-0070(T), 859-300-0080(T), 859-300-0090(T), 859-300-0100(T),
859-300-0110(T), 859-300-0120(T), 859-300-0130(T), 859-300-0140(T),
859-300-0150(T), 859-300-0160(T), 859-300-0170(T), 859-300-0180(T),
859-300-0190(T), 859-300-0200(T), 859-300-0210(T), 859-300-0220(T),
859-300-0230(T)
Subject: (1) Adopting rules for the newly created Gun Relief
Program regarding Petitions for Relief for individuals who are barred from
firearms possession due to a state mental health determination and who wish to
petition the Psychiatric Security Review Board to restore firearm privileges.
The rules include procedures for the Board to process and adjudicate these
“Petitions for Relief”.
(2) Repealing
duplicative temporary rules OAR 859-300-0001, 859-300-0010, 859-300-0020,
859-300-0030, 859-300-0040, 859-300-0050, 859-300-0060, 859-300-0070,
859-300-0080, 859-300-0090, 859-300-0100, 859-300-0110, 859-300-0120,
859-300-0130, 859-300-0140, 859-300-0150, 859-300-0160, 859-300-0170,
859-300-0180, 859-300-0190, 859-300-0200, 859-300-0210, 859-300-0220,
859-300-0230.
Rules Coordinator: Mary Claire Buckley—(503) 229-5596
859-300-0001
Determination of Sufficient
Funding
(1) The Psychiatric Security Review Board has
determined that it has received sufficient legislative appropriation or other
funding to carry out the provisions of Section One of Oregon Laws 2009, Chapter
826.
(2) The Psychiatric Security Review Board has
determined that it has received sufficient legislative appropriation or other
funding to carry out the provisions of Section Five of Oregon Laws 2009, Chapter
826.
Stat. Auth.: ORS 161.387(1); OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1); OL 2009, Ch. 826 (HB 2853)
Hist.: PSRB 1-2010(Temp), f.
8-19-10, cert. ef. 8-23-10 thru 2-18-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0010
Rulemaking Procedure; Notice
Prior to the adoption, amendment or repeal of any rule
related to the gun relief program, the Psychiatric Security Review Board shall
give notice of the intended action:
(1) In the Secretary of State’s Bulletin referred to in
ORS 183.360 at least 21 days before the effective date of the rule.
(2) By mailing a copy of the notice to persons on the
PSRB’s mailing list established pursuant to ORS 183.335(8) at least 28 days
before the effective date of the rule.
(3) By mailing or furnishing a copy of the notice to:
(a) The Associated Press;
(b) Department of Human Services/Oregon Health
Authority;
(c) American Civil Liberties Union of Oregon;
(d) Oregon District Attorneys Association;
(e) Oregon Criminal Defense Lawyers Association;
(f) Attorney General, including the Victim Advocate;
(g) Friends of Forensics;
(h) Disability Rights Oregon;
(i) Capitol Press Room;
(j) National Rifle Association, Oregon Consultant;
(k) Oregon Firearms Federation;
(L) Oregon Judicial Department;
(m) Attorneys for Adult and Juvenile Indigent Clients
(n) Oregon State Police;
(o) Oregon Psychiatric Association;
(p) Oregon Psychological Association;
(q) Oregon State Sheriff’s Association;
(r) Oregon Association Chiefs of Police; and
(s) Designated legislators in accordance with ORS
183.335(15)
Stat. Auth.: ORS 161.387(1),
183.335(1), (8), OL 2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), 183.335(1), (8), OL 2009, Ch. 826 (HB 2853)
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0020
Cost of Administrative Rules
State employees may receive a printed copy of Oregon
Administrative Rules on request at no cost. Any person not employed by the
State of Oregon shall pay $0.25 per page for a printed copy of the Gun Relief
Program Administrative Rules. Oregon Administrative Rules are available
electronically at no charge from the Internet Web site of the Oregon Secretary
of State.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0030
Definitions
(1) “Dangerous”. A person is dangerous if the person is
a threat to himself or others or is likely to inflict harm to self or others.
(2) “Gun Relief Panel” or “Panel”. A three member panel
from either the Adult or Juvenile Panel who hears and considers petitions for
relief from either a federal ban on transporting, shipping, possessing, or
receiving a firearm that occurs as a result of a mental health determination,
or a state ban on possessing or purchasing a firearm under ORS 166.250(1)(c)(D)
or (E), or 166.470(1)(e) or (f).
(3) “Mental Health Determination”. Any of the following
adjudicated mental health findings by a State of Oregon Court:
(a) A finding by a court that a person lacks fitness to
proceed under ORS 161.370;
(b) A finding that a person is guilty except for
insanity of a crime under ORS 161.295 or responsible except for insanity of an
act under ORS 419C.411 or any determination by the Psychiatric Security Review
Board thereafter; or
(c) A commitment by a court to the Oregon Health
Authority or Department of Human Services, or an adjudication by a court that a
person is mentally ill or mentally retarded, under ORS 426.130 or ORS 427.290.
(4) “NICS”. The National Instant Criminal Background
Check System maintained by the Federal Bureau of Investigations (FBI) pursuant
to the Brady Handgun Violence Prevention Act of 1993 (Pub. L. 103-159, 107
Stat. 1536).
(5) “PSRB” or “Board”. The Oregon Psychiatric Security
Review Board, including the members of both the Adult and Juvenile Panels.
(6) “Party”. Includes the Department of Human
Services/Oregon Health Authority, petitioner and district attorney from the
county where the mental health determination was adjudicated.
(7) “Petitioner”. Any person who petitions for relief from
either a federal prohibition from transporting, shipping, possessing, or
receiving a firearm due to a mental health determination or a state prohibition
on purchasing or possessing a firearm under ORS 166.250(1)(c)(D) or (E), or
166.470(1)(e) or (f).
(8) “Public Interest”. The interest in protecting
society from harm and an individual from self-harm. “Public interest” also
includes reducing the impact of crime on victims’ lives. “Public interest” does
not include generalized fear of crime and fear of people with mental illness.
(9) “Relief Hearing”. A hearing for petitioners who
request relief under Oregon Laws 2009, Chapter 826 from a federal ban on
transporting, shipping, possessing, or receiving a firearm that occurs as a
result of a mental health determination, or a state ban on possessing or
purchasing a firearm under ORS 166.250(1)(c)(D) or (E), or 166.470(1)(e) or
(f).
(10) “Victim”. The person or persons who have suffered
financial, social, psychological or physical harm as a result of a crime and
includes, in the case of a homicide or abuse of corpse in any degree, a member
of the immediate family of the decedent and, in the case of a minor victim, the
legal guardian of the minor. In no event shall the petitioner be considered a
victim.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0040
Background and Purpose of Gun
Relief Program
(1) The federal Brady Handgun Violence Prevention Act
of 1993 (“Brady Act”) prohibits any person from selling or otherwise disposing
of any firearm or ammunition to any person who has been involuntarily
“committed to a mental institution” (18 U.S.C. Section 922 (d)(4)), or a person
that has a mental health determination, and further prohibits any person who
has been involuntarily “committed to a mental institution”, or a person that
has a mental health determination, from shipping or transporting in interstate
or foreign commerce, or possessing in or affecting commerce, any firearm or
ammunition; or receiving any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce (18 U.S.C. Section 922 (g)(4)).
(2) Oregon Laws 2009, Ch. 826 (HB 2853) requires the
PSRB, the Judicial Department, and Oregon Health Authority to locate and
transmit the names of people that have a mental health determination to the
Department of State Police for inclusion in NICS for the purpose of responding
to the NICS queries regarding attempts to purchase or otherwise take possession
of firearms, as defined in 18 U.S.C. 921(a)(3).
(3) Oregon Laws 2009, Ch. 826 requires the PSRB to
administer a “relief from disabilities” process for persons who are
disqualified from transporting, shipping, possessing, or receiving a firearm
under federal and certain state laws. If relief is granted, and a petitioner
was barred from transporting, shipping, possessing, or receiving a firearm under
federal law, the record of relief will be transmitted to the Oregon State
Police, who in turn will transmit the record of relief to the federal
government for inclusion in the NICS database. If relief is granted, and a
petitioner was barred from purchasing or possessing a firearm under either ORS
166.250(1)(c)(D) or (E), or 166.470(1)(e) or (f), the record of relief will be
transmitted to the Oregon State Police for inclusion and maintenance in its
state databases. The purpose of these administrative rules is to establish the
required administrative “relief” process for petitioners to request relief from
their respective mental health firearm disqualifiers.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0050
Petition for Relief
(1) An individual who is barred from transporting,
shipping, possessing, or receiving a firearm under federal law due to a State
of Oregon mental health determination may petition for relief of the firearm
bar to the PSRB for the limited purpose of having his or her federal gun rights
restored as it pertains only to the mental health determination firearm
disqualification.
(2) An individual who is barred from possessing or
purchasing a firearm under ORS 166.250(1)(c)(D) or (E), or 166.470(1)(e) or
(f), may petition for relief of the firearm bar to the PSRB for the purpose of
having his or her state gun rights restored as it pertains only to the firearm
disqualification as a result of either a commitment to the Oregon Health
Authority or the Department of Human Services under ORS 426.130 or 427.290, or
an order of a court under ORS 426.130 after a finding of mental illness that
the petitioner is prohibited from purchasing or possessing a firearm as a
result of petitioner’s mental illness.
(3) A petition for relief shall be made on forms
developed by the PSRB, which shall be available on the PSRB’s public website,
e-mail, or through U.S. Mail. The petition for relief shall be submitted in its
entirety before a hearing will be scheduled. In addition to the forms provided,
the petitioner shall submit:
(a) A certified copy of all mental health records pertaining
to the disqualifying mental health determination;
(b) A certified copy of all court records related to
the circumstances surrounding the firearms disability. If the county courthouse
is unable to locate petitioner’s records, petitioner must obtain a letter from
the courthouse records department stating that it is unable to locate the court
records related to petitioner’s mental health determination;
(c) A certified copy of petitioner’s national criminal
history, including juvenile adjudications;
(d) An independent forensic mental health assessment
performed no more than 90 calendar days prior to submission of the petition for
relief to the PSRB. This assessment may not be performed by petitioner’s
current or previous mental health provider. The assessment shall be performed
by a licensed psychiatrist or psychologist. The assessment shall include, at a
minimum, an opinion and a basis for that opinion, of petitioner’s interpersonal
violence and self-harm risk.
(4) In addition to the required forms and documents in
subsection (3), the petitioner may submit additional information in support of
the petition for relief including, but not limited to:
(a) A certified copy of all mental health records
detailing the petitioner’s psychiatric history.
(b) A certified copy of medical records from all of the
petitioner’s current and former mental health treatment providers, including
alcohol/substance abuse providers if the petitioner is receiving or has
received such treatment. The records may also include a letter from
petitioner’s current treating mental health practitioner, if any. The letter
may contain the petitioner’s current medical health diagnosis, a list of
psychiatric medicines and dosage, if any, the petitioner is currently
prescribed, history of compliance with the medication, and any other
information the practitioner deems relevant to petitioner possessing a firearm.
(c) If petitioner is currently on probation/parole for
a criminal offense, a letter from the petitioner’s probation/parole officer providing
a history of petitioner’s compliance with terms of probation/parole and any
other relevant information he or she deems relevant to petitioner’s risk for
harm if granted a firearm.
(d) Written evidence of the petitioner’s reputation,
such as notarized letters of reference from current and past employers, family
members or personal friends or other character evidence.
(5) In addition to submitting a petition and required
documents to the PSRB, petitioner shall serve a copy of the petition and required
documents on the Department of Human Services/Oregon Health Authority and the
district attorney in the county in which the court made the mental health
determination.
(6) The petitioner shall ensure that all required
information accompanies the petition for relief at the time it is submitted to
the PSRB and served on the Department of Human Services/Oregon Health Authority
and the district attorney in the county in which the court made the mental
health determination.
(7) Failure to provide truthful information in the
petition and application materials shall result in denial of the petition.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0060
Time Limits; Applying for Relief
Subject to OAR 859-300-0080(3), a petition for relief
may not be filed with the Board more than once every two years.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0070
Timing of Relief Hearing
(1) Following receipt of a completed Petition for
Relief and all required supporting documents, the Gun Relief Panel shall
conduct a relief hearing on the petition within a reasonable time.
(2) The Board will schedule relief hearings at least
one day per month unless the Panel determines that there is not sufficient
business before the Panel to warrant a hearing at the scheduled time.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0080
Notice of Relief Hearing/Request
for Continuance/Withdraw of Petition
(1) Following receipt of the petition, the Board shall
provide written notice of the relief hearing to the following persons or
agencies within a reasonable time:
(a) Attorney representing the petitioner, if any;
(b) District attorney in which the petitioner resides
and the district attorney in the county where petitioner’s mental health
determination was adjudicated;
(c) The victim, identified after a reasonable effort is
made, associated with the criminal offense that led to the mental health
determination, if the court or Panel finds that the victim requests
notification;
(d) Department of Human Services/Oregon Health
Authority;
(e) The sheriff of the county in which petitioner
resides and in the county where petitioner’s mental health determination was
adjudicated;
(f) The chief of police where petitioner resides and
where petitioner’s mental health determination was adjudicated, if applicable;
and
(g) Any other person requesting notification.
(2) Upon the request of any party or on its own motion,
the Board may, in its sole discretion, continue a relief hearing to allow the
Board or any party to further prepare or obtain additional information or
testimony.
(3) If a petitioner withdraws a petition for relief,
the notice of withdrawal shall be served in writing on the Board no later than
three weeks prior to the scheduled relief hearing date. A petitioner who timely
submits a notice of withdraw may re-submit the petition any time after
withdrawal.
(4) The Board shall issue a final order by default
denying the petition if a petitioner fails to timely serve the Board with a notice
of withdraw, or if the petitioner fails to appear at a relief hearing.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0090
Principal Issue Before The
Panel/Challenges to the Firearm Disqualification
(1) The sole issue at any Gun Relief hearing shall be
whether the petitioner has demonstrated that he or she will not be likely to
act in a manner that is dangerous to public safety and that granting the relief
would not be contrary to the public interest.
(2) Petitions asserting other grounds for relief,
including, but not limited to, erroneously entered mental health determination
disqualifications into the NICS database, shall not be heard by the PSRB.
Record correction challenges should be directed to the agency that submitted
petitioner’s name to the Oregon State Police for entry into the firearm
disqualification databases or the Oregon State Police Records Unit or the
Federal Bureau of Investigation, Criminal Justice Information Services Division
NICS Section.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0100
Quorum and Decisions of Panel
(1) The presence of at least three members of the same
Panel constitutes a quorum. Members of both the Juvenile Panel and the Adult
Panel may serve as the Gun Relief Panel. Three concurring votes (affirmative or
negative) are required to make a Panel decision. When three members cannot
agree on the decision, the hearing shall be continued for no longer than 60
days and the recording of the hearing and the exhibits shall be reviewed by the
remaining Panel member(s) and a decision by the majority of the members shall
be the finding and order of the Panel.
(2) At the outset of each relief hearing, the Panel
members shall select one member to be the presiding officer of the relief
hearing. The relief hearing shall be conducted by and under the control of the
presiding officer. The presiding officer shall designate the order of
presentation and questioning, determine the scope of questioning, and may set
time limits and terminate irrelevant questions and irrelevant or unresponsive
answers. The officer presiding at the hearing shall ensure that the record
developed at the hearing shows a full and fair inquiry into the facts necessary
for consideration of all issues properly before the presiding officer in the
case and the correct application of the law to those facts. The presiding
officer also may limit repetitious and cumulative evidence.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0110
Public Meetings Law
(1) All gun relief hearings shall be open to the public
in accordance with the Public Meetings Law.
(2) Deliberations of the Panel shall not be open to the
public. For the purposes of this subsection, the term “public” does not include
PSRB employees or staff.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0120
Records
(1) A record shall be kept of all gun relief hearings.
The hearing shall ensure that the record developed at the hearing shows a full
and fair inquiry into the facts necessary for consideration of all issues
properly before the presiding officer in the case and the correct application
of the law to those facts.
(2) All gun relief hearings, except Panel
deliberations, shall be recorded by manual or electronic means which can be
transcribed. No other record of Panel relief hearings shall be made. All documents
considered at relief hearings shall be included as exhibits and kept as part of
the record:
(a) Electronic recording capable of being transcribed
shall be kept by the Board for a minimum period of two years from the relief
hearing date;
(b) The gun relief hearings shall be transcribed from
the recording when an appeal is filed. Once transcribed, the transcript may be
substituted for the original record;
(c) Any material to which an objection is sustained
shall not be considered by the Panel. All objections and all rulings of the gun
relief panel on objections and motions shall be noted on the record; and
(d) The electronic recording or transcript of the
proceedings shall be made available at cost to a party to the proceedings upon
request.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0130
Public Records Law; Confidentiality
The parties shall have the right to review any records
to be considered at the relief hearing. All parties and their representative
attorneys shall sign confidentiality agreements, as necessary, prior to
inspecting or reviewing any records that are made confidential under either
state or federal law, including but not limited to medical records, drug and
alcohol records, and criminal history information records.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS 161.387(1),
OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0140
Evidence Considered; Admissibility
The Panel shall consider all evidence available to it
which is material, relevant and reliable. All evidence of a type commonly
relied upon by reasonably prudent persons in the conduct of their serious
affairs shall be admissible, including, but not limited to, the following:
(1) All materials or witness testimony submitted by
petitioner, including materials or testimony regarding petitioner’s reputation.
All witness names must be submitted to the Board at least 10 days prior to the
hearing.
(2) Information submitted by the district attorney,
Department of Human Services/Oregon Health Authority or interested persons,
including victims or elicited by the Panel in the course of hearing.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0150
Motion Practice
Any party bringing a motion before the Panel shall
submit five copies of the motion and memorandum of law to the Panel at least 10
days prior to the date of the hearing in which the motion will be heard.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0160
Independent Examination of
Petitioner
(1) The PSRB may require that the petitioner undergo an
independent forensic mental health assessment in addition to the one submitted
by petitioner. The assessment shall include at a minimum, an opinion and a
basis for that opinion, of petitioner’s interpersonal violence and self-harm
risk. The petitioner shall bear the costs of any independent evaluation and
assessment. Failure of petitioner to undergo an assessment ordered by the PSRB
will result in denial of the petition for relief.
(2) An attorney representing the state or county may
request that the Board require the petitioner to submit to a forensic mental
health assessment by a psychiatrist or psychologist. The party requesting this
assessment shall bear the costs of the assessment.
(a) The attorney for the state or county shall file a
written notice of intent to request an assessment within 10 days from receipt
of the petition for relief. The notice shall be served on the Board, petitioner
and Department of Human Services/Oregon Health Authority.
(b) The examination shall include an opinion, and a
basis for that opinion, as to whether or not the petitioner would be likely to
act in a manner dangerous to public safety if relief was granted, including an
evaluation of self-harm risk.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0170
Objections to Evidence
The presiding officer shall rule on questions of
evidence. All evidence shall be admitted unless the presiding officer
determines the evidence is not material, relevant or reliable.
(1) In determining whether the evidence is material,
relevant or reliable, the presiding officer shall consider the following:
(a) Whether the evidence is of a type commonly relied
upon by reasonably prudent persons in the conduct of their serious affairs;
(b) The age and source of the documents;
(c) The ability of the witness to have observed and had
personal knowledge of the incidents; and
(d) The credibility of the witness and whether the
witness has bias or interest in the matter.
(2) Hearsay evidence shall be admissible unless the
presiding officer determines that the hearsay evidence is not reliable based
upon the quantity and quality of supporting and opposing evidence and on the
entire circumstantial setting in which the hearsay evidence is offered. In
determining the admissibility of hearsay evidence, the presiding officer shall
consider the following factors, including, but not limited to:
(a) The alternative to relying on the hearsay evidence;
(b) The importance of the facts sought to be proved by
the hearsay statements to the outcome of the proceeding;
(c) The economy and necessity to the proceeding in
using the hearsay evidence;
(d) The ability of the party to cross-examine the
particular hearsay statements or evidence; and
(e) The consequences to either the party or the Panel
of admitting the hearsay evidence.
(3) A party may object to any evidence offered at the
relief hearing. The presiding officer shall rule on an objection in the
following manner:
(a) To sustain the objection and deny the admission and
consideration of the evidence on the grounds that it is not material, relevant
or reliable;
(b) To overrule the objection and admit the evidence
and in considering the weight given to that evidence, consider the reason for
the objection; or
(c) To grant a continuance for a period of time not to
exceed 60 days to allow a witness to appear or be subpoenaed to testify about
the evidence under consideration.
Stat. Auth.: ORS 161.387(1), OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1), OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0180
Witnesses and Documents; Subpoena
(1) Witnesses or documents may be subpoenaed either by
a party or upon the Board’s own motion.
(2) A party may request the Board issue a subpoena upon
a proper showing of the general relevance and reasonable scope of the
documentary, physical, or witness evidence sought. The party requesting that a
subpoena be issued by the Board shall be responsible for all costs associated
with witness fees and service of the subpoena.
(3) Upon failure of any person, agency or facility to
comply with a subpoena issued by the Board, the petitioner, counsel, the Board,
or its designated representative may apply to the judge of a circuit court of
any county to compel obedience to the subpoena.
Stat. Auth.: ORS 183.445, 161.395,
161.387(1, OL 2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS 161.387(1),
OL 2009, Ch. 826 (HB 2853))
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0190
Testimony Given on Oath
The Panel shall take testimony of a witness upon oath
or affirmation of the witness administered by the presiding officer at the
relief hearing.
Stat. Auth.: ORS 161.387(1);
OL2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1); OL 2009, Ch. 826 (HB 2853)
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0200
Standard and Burden of Proof
(1) The standard of proof at the relief hearing shall
be whether petitioner has demonstrated by clear and convincing evidence that
the petitioner will not be likely to act in a manner that is dangerous to
public safety and that granting the relief would not be contrary to the public
interest.
(2) The burden of proof shall be on the petitioner.
Stat. Auth.: ORS 161.387(1); OL
2009, Ch. 826 (HB 2853)
Stats. Implemented: ORS
161.387(1); OL 2009, Ch. 826 (HB 2853)
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0210
Mandatory Personal Appearance
Personal appearance by petitioner is required at all
stages of a relief hearing. An appearance by an attorney or personal
representative on behalf of a petitioner shall not constitute personal
appearance.
Stat. Auth.: ORS 161, 183, 419C
Stats. Implemented: ORS
161.387(1), OL 2007, Ch.r 889 § 6 (SB 328)
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
859-300-0220
Decisions of the Panel; Final
Orders; Appeals
Within 30-days following the conclusion of the relief
hearing, or within 30-days of the scheduled date of a relief hearing in the
case of default, the Board shall issue a final order or final order by default
to the petitioner, the attorney representing the petitioner, the district
attorney representing the state, interested persons and the Department of Human
Services. Final orders and Final orders by default:
(1) Shall be in writing and signed by a panel member of
the relief hearing;
(2) Shall contain the findings of facts, conclusions of
law, and the reasons for the decision;
(3) If the relief is granted, shall contain a notice to
petitioner that substantially provides:
(a) In cases where a state mental health determination
resulted in a ban from transporting, shipping, possessing, or receiving a
firearm under federal law, the relief granted only removes the firearm
disability imposed under 18 U.S.C. §§ 922(d)(4) and (g)(4), and that the relief
granted does not otherwise qualify the petitioner to purchase or possess a
firearm, and does not fulfill the requirements of the background check pursuant
to the Brady Act (Pub. L. 103-159); or
(b) In cases where the petitioner was barred from
purchasing or possessing a firearm under either ORS 166.250(1)(c)(D) or (E), or
166.470(1)(e) or (f), the relief granted does not otherwise qualify the
petitioner to purchase or possess a firearm under state law; and
(4) Shall advise the petitioner of the right to appeal
an adverse decision to the circuit court of the county that originally made the
determination that led to the firearm prohibition and that the petitioner may
then take an appeal from the circuit court to the Court of Appeals in
accordance with ORS 183.500.
Stat. Auth.: ORS 161, 183, 419C
Stats. Implemented: ORS
161.387(1), OL 2007, Ch.r 889 § 6 (SB 328)
Hist.: PSRB 3-2010(Temp), f. 10-5-10,
cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef. 2-15-11
859-300-0230
Submission of Final Order of
Relief to Oregon State Police
No later than ten days after the date the Board issues
a written final order granting relief from the firearms prohibition, the PSRB
shall notify the Department of State Police to either transmit the record of
the relief granted by the Board to the federal government as required under
federal law, or to update or modify its state database(s), as provided by the
Department of State Police’s administrative rules.
Stat. Auth.: ORS 161, 183, 419C
Stats. Implemented: ORS
161.387(1), OL 2007, Ch.r 889 § 6 (SB 328)
Hist.: PSRB 3-2010(Temp), f.
10-5-10, cert. ef. 10-8-10 thru 4-6-11; PSRB 1-2011, f. 2-2-11, cert. ef.
2-15-11
Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.
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