Changes have arrived to a redesigned Causes: Check out new.causes.com!

Bills
| 6.9.22

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

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:

Summary by Eric Revell

(Photo Credit: iStock.com / Evgen_Prozhyrko)