Should There Be a Federal ‘Red Flag Law’ to Allow Courts to Take Firearms Out of the Hands of Individuals Deemed an Imminent Threat? (H.R. 2377)
Do you support or oppose this bill?
Bill Status
- 6/9/22: The House passed this bill on a 224-202 vote.
What is H.R. 2377?
This bill — the Federal Extreme Risk Protection Order Act of 2021 — would implement a federal “red flag law” with procedures for federal courts to issue extreme risk protection orders (ERPOs) that prohibit a person deemed an imminent threat to themselves or others from purchasing, possessing, or receiving a firearm or ammunition. It would also establish a federal grant program to provide funding for states and localities to implement red flag laws. These red flag laws would effectively block the subject of an ERPO from purchasing a firearm and would allow law enforcement to legally seize their firearms for the duration of the order. A breakdown of its various provisions can be found below.
Under the federal red flag law, individuals who could petition a federal court to bar an individual from purchasing, possessing, or receiving a firearm include a family or household member or a law enforcement officer. A law enforcement officer could provide the identity of their sources for the petition to the court confidentially.
The federal court would require the petitioner to sign an affidavit explaining why the subject of the ERPO poses a threat to themselves or others and describing interactions that make that belief credible. An ERPO could be issued in an ex parte manner, meaning that the subject of the order wouldn’t have to be present at the initial hearing, and an ex parte ERPO would expire after 14 days.
To issue a long-term ERPO, the subject would have to be afforded the opportunity to appear in person to make their case at the hearing, where counsel could represent them. The petitioner would have to satisfy the burden of proof by proving all material facts and showing by clear and convincing evidence that the ERPO is necessary because the subject poses a risk of personal injury to themself or another individual. A long-term ERPO couldn’t be in effect for more than 180 days. Both the subject and petitioner would be notified 30 days prior to its expiration about procedures for the potential renewal or expiration of the ERPO.
The bill would impose a penalty on an individual who knowingly submits materially false information to the court in a petition for a federal ERPO. If a petition is deemed frivolous, unreasonable, or without foundation, the petitioner could be fined up to $5,000, imprisoned for up to 5 years, or both.
This bill would also establish federal grants to support the implementation of ERPOs at the state, local, and tribal levels. Individuals subject to a locally-imposed ERPO would also be covered by a federal firearm prohibition during the duration of the order. The Dept. of Justice’s Office of Community Oriented Policing Services would establish a grant program to assist states, localities, tribes, and other entities in implementing ERPO laws. The Federal Bureau of Investigation (FBI) would be required to compile and later destroy, records from federal, tribal, and state courts and other agencies that identify individuals who are subject to extreme risk protection orders.
Argument in favor
This bill would implement a much-needed federal “red flag law” to ensure that individuals who pose an imminent threat to themselves or others can be blocked from obtaining firearms or have their guns taken away temporarily if an extreme risk protection order is granted by courts. It would also provide federal grants to help states and localities implement red flag laws within those jurisdictions, ensure due process protections, and punish frivolous claims with fines and potential jail time.
Argument opposed
This bill doesn’t provide sufficient due process safeguards for individuals who are the subject of an extreme risk protection order because it would lower the “beyond a reasonable doubt” evidentiary standard. It also doesn’t provide the subject of a claim to recover attorney’s fees from a person who is deemed to have made a frivolous claim against them. Additionally, federal red flag law may be difficult for many Americans to utilize because federal courts may be hours away from where they live.
Impact
Individuals deemed a threat under a court-approved extreme risk protection order; family and household members and law enforcement officers who petition courts for ERPO; federal courts; states and localities; and the DOJ.
Cost
The CBO estimates that enacting this bill would cost $188 million over the 2022-2026 period, subject to appropriation.
Additional Info
In-Depth: This bill combines proposals offered by Reps. Lucy McBath (D-GA) and Salud Carbajal (D-CA) to enact a federal red flag law and provide federal grants for states and localities to do so, respectively. McBath said of her bill:
“Nearly nine years ago, I lost my son Jordan to gun violence. He was just 17 years old. I dreamed of one day seeing him walk across the stage at his high school graduation, or walk down the aisle at his wedding. I received the call that far too many families in our nation receive, and every day have felt a pain that will never fade. Far too many parents know exactly that pain. I turned that pain into action, calling for change to prevent another parent from losing their child to gun violence. It is our responsibility to prevent this suffering, to bring an end to this constant heartbreak. With this bill and its passage today, we act to help those in crisis. We act to empower law enforcement. We act to prevent the vigils for the loved ones we’ve lost.”
Carbajal said of the red flag law package that includes his bill:
“In so many school shootings, from Parkland to Sandy Hook and Columbine to last week’s tragedy in Uvalde, there have been stark warning signs that red flag laws could have helped intervene and prevent these unspeakable tragedies. These laws have been shown in my home state of California to take guns away from violent individuals, saving lives. These laws can prevent mass shootings, reduce suicides, disarm extremists, and protect our communities. That is why I have pushed for my bill to expand and improve use of these emergency measures—and am excited to see the House vote on it next week.”
House Judiciary Committee Ranking Member Jim Jordan (R-OH) expressed opposition to this bill in its committee report, writing:
“H.R. 2377, the Federal Extreme Risk Protection Order Act of 2021, is an undeniable infringement on an individual’s due process and Second Amendment rights. This bill authorizes federal courts to issue ex parte orders that would require law enforcement to seize firearms and ammunition from an individual without the individual being afforded notice or an opportunity to be heard. An ex parte order may be issued “upon a finding of probable cause that the respondent poses a risk of imminent personal injury to himself or herself, or another individual, by purchasing, possessing, or receiving a firearm or ammunition.” Probable cause is an incredibly low standard to deprive individuals of their constitutional rights without an allegation of criminal activity or giving the individual an opportunity to be heard. This legislation creates a process that is ripe for abuse and destroys the presumption of innocence that is the bedrock of our criminal justice system. It does away with the notion that an individual is innocent until proven guilty and replaces it, for anyone subject to an extreme risk protection order, with the standard of guilty until proven innocent. Proponents of this legislation would be wise to remember what Benjamin Franklin once said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
House Rules Committee Ranking Member Tom Cole (R-OK) expressed opposition to this bill when it moved through his committee, saying:
“Many states have enacted red flag laws in recent years, and it should remain up to the states to do so if they can do so in a way that protects due process rights and the Second Amendment rights of law-abiding citizens. It should not be for Washington to impose such laws on states that neither want nor need them. Unfortunately, H.R. 2377 does just that. Not only does it impose a one-size-fits-all regime on everyone, but my Republican colleagues on the Judiciary Committee have expressed concerns that the bill provides insufficient due process protections for respondents. As such, the bill may violate the due process protections contained in the Fifth and Fourteenth Amendments. There are insufficient mechanisms to protect respondents from unscrupulous individuals seeking to harass otherwise responsible gun owners. This is particularly concerning given the significant legal bills that may result from defending against frivolous applications.”
This legislation passed the House Judiciary Committee in October 2021 on a party-line vote of 24-18, with Democrats in favor and Republicans opposed.
Tell your reps how to vote on this bill!
Media:
- Sponsoring Rep. Lucy McBath (D-GA) Press Release
- Sponsoring Rep. Salud Carbajal (D-CA) Press Release
- CBO Cost Estimate
- House Rules Committee Report
- Causes (Red Flag Laws)
- Rep. Tom Cole (R-OK) Rules Committee Remarks (Opposed)
- Bill Text
Summary by Eric Revell
(Photo Credit: iStock.com / Evgen_Prozhyrko)
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So let's get this straight. Black men with no visible weapon get no due process; just pulled over, frisked, and arrested and/or beaten or killed.
But dangerous young men who might commit a mass shooting get due process?
That's a good start. But we need much more than that.
it seems like this topic has come up recently, but my view is that making it a crime to be in a high risk category for committing a crime is an extremely bad prescient. Or evil government would only abuse and increase this power.
additionally it is a smoke screen. Since the powers that be have no intention of passing meaningful gun controls they will do this so that they can say they have done something.
The root problem is that the evil republican redneck/ hillbillies need to be disarmed. Until that happens no other measures really matter.
And i say disarmed but i mean disarmed and re-educated, but that is a different topic
Republicans are the 21st century's Vichy Americans.
They are to democracy what the Confederacy was to the union.
They are the anti-Democracy enemies to all of us.
#RepublicanFascists
https://m.dailykos.com/stories/2022/6/9/2103155/-Endorsed-by-Elise-Stefanik-Paladino-says-We-need-somebody-inspirational-like-Hitler
Need more than this. Assault rifles are made for war but looks like the US may be in a war!!! Guns do kill people! Until more is done to prevent mass shootings, the blood of US citizens is on our hands. Lawmakers need to earn the title of honorable and know what it means.
There are insufficient safeguards in place to allow for due process, expedient processing, and efficient return of property. Red flag laws must include concrete provisions for ensuring that those accused of being a danger to others have the opportunity to plead their case, face their accusers, and receive reparations in the case of being falsely accused.
This is a state matter.
We need a “red flag” but don't let guns be sold if there is a “red flag” and make gun sellers be punished if they sell a gun that is used in a crime.
"Individuals deemed a threat." A phrase loaded with possibilities, both pro and con. Who determines 'deemed a threat'? What is the threat criteria? Who can report a 'deemed' threat? To what Law Enforcement Agency will the accusations be reported? Where is the "due process of law"? Does this Bill represent suspension of Habeas Corpus? Too, too many questions to support this kind of legislation. Better we should declare minimum age of 21 for semi and automatic weapons in conjunction with unsealing juvenile records of convicted violence after age 12 in background checks for any gun purchase.
For God sakes, you people can't even get a bill started. You accuse and kill the talk before it can get any traction. Not that this is the subject but yes, no matter what color you are, if your stopped you have to comply. No matter who you are. I've seen white people who don't comply get treated the same as blacks. But of coarse we're not aloud to say that Right? So your issue is if your black your aloud to ignore being pulled over, pull a gun on an officer or just give them the finger and drive away even if you've done something wrong? I know things have been done with bad cops, but outside of trying to weed them out what do we do? Just let the criminals run free. Which is actually what's been happening anyway with the no bail laws. So I would like to know. Are the police not aloud to pull anyone over, black, white or purple and just let crime run ramped? What's the answer to all you smart guys who have all the mouth but no solutions?
Please pass this bill right away!
I'm afraid this would be a little too late. Also, people could make claims against someone just because... without warrant or due process.
These red flag laws are completely unconstitutional. How can you value due process and support this type of law?
Absolutely. At least take their weapons for a little while until they can be deemed safe to handle them. The right to bear arms is a great right that we should not take for granted. However, it appears the people who wrote the Constitution were talking about bearing arms to defend us from foreign enemies. I have no doubt they would have ever dreamed of adults shooting innocent children with miltary style weapons.
I fully support this Bill, because the Do Nothing Republicans in boith the House & Senate continue to support the NRA, because of the major donations given to these same Republicans. They value their Own Re-election over the Deaths caused by Guns. It is time the Do Nothing Republicans who have held our Country hostage for the last 12 yrs by Voting NO on all Gun Legislation, led by Moscow Mitch. Every Republican needs to be Voted Out & Replaced by Candidates who will honor the Requests of their Voters. It's time to clean house !
This has nothing to do with protecting kids and everything to do with protecting the government. As inflation gets worse and the government gets more and more tyranical, anyone who says anything against the government could be considered an Imminent Threat. Why did they literally have shooting classes at high schools back in the day and not have as many mass shootings? It's not like they didn't have just as many guns back then. If politicians were serious about finding a solution to the problem, they would ask themselves why and find reasonable solutions. Finally, I don't believe the sincerity of people who are ok with literally bombing and killing children in wars of aggression saying they want Americans to snitch on each other in order to protect children.
It's long overdue, but the tragedy of our nation is that we have sacrificed thousands to the myth that more guns make people safer. We need to return firearms to their original function- a weapon designed to kill, which must be respected as such with all due diligence and responsibility, and not as a lifestyle or a political statement. It's the fetishization of guns that has driven us to this sorry state.
While this bill doesn't do nearly enough to address the very real threat of gun violence from every gun owner in the US, I believe it is a good first step. I am very disappointed that the entire Utah delegation would rather do nothing than put into place common sense gun legislation, even going as far as to pass a bill that eliminates the requirement for a concealed carry permit earlier this year. It is now much easier to use a gun to murder people than to run a business in the state of Utah.
Sounds like since able gun legislation
Enough killing. Pass these common sense reforms. Do your job.
NO, I do not support communists changing anything much less gun laws. This is nothing but an effort to defeat the 2nd ammendment so the people are controlled. Let me educate you.. Stop letting the FBI push crazies and criminals into terroist acts - that would be a good start. The 2nd ammendment was not for hunting it was to keep government from becoming tyranical, i.e., in check.
That we will do.. You Democrats & Rino's just want to be rulers; sexualize our kids, spit on us etc.. It will never happen. I have thwarted two home invasions thus far and never fired a shot. Twice at least one of the perpertrators were caught and out on bail in hours. I have been lunged at with a 9 inch blade and grazed with a tire iron and both times had guns pointed at me. One illegal freshly from the border and the other a known criminal. Out on bail in hours.. I am still healing; but going to work each day.
Good work commies... Joyce - now you are talking about energy independence - garbage, what windmills everywhere???? What a hippocrit. Brown - you are simply full of BS and support commies for taking over the banking system.
Do the right thing to keep our nation safe and protect our children.
vote for legislation that requires background checks, takes guns away from those who are not responsible. Use your votes to represent what the majority of voters want. Tougher laws in place for gun responsibility and waiting times on being able to purchase. No assault rifles.
be brave and vote for our children safety
We can not be so willing to give up our Rights!! Chip away and Chip away. This Bill denied Due Process, it does not even Require Evidence, A Report from a Professional Mental Health Expert or anything else. This Must be STOPPED in the Senate!! It is Unconstitutional!! And it is Not the Gun that Kills!! People pull the trigger. And People Fail to act on the signs that a Potential Killer has issues that may result in Killing and/or Mass Killing. People close to these people like Classmates, Family, Friends, Teachers, Coaches and Doctors. That is where the help needs to be placed. People need to know How to handle a situation like this. Who to talk to, when, How and Why. Get that figured out and we will be much better off. Identify who needs help and help them. But, don't ignore Common Sense to do so. Respect everyones Rights and Dignity is not too much to expect. But we Must Expect to live in a Safe Society.
God Bless The USA and ALL USA Citizens.
It's a start.
As parents, experts advise us not to spank our children, especially when angry and let alone with anything that can cause physical harm. Parents should take a time out or count to 10. Imagine someone who's known to cause harm and is armed. Someone who cannot control his/her own temper is not likely able to control their trigger finger.