Bipartisan Safer Communities Act: Funding State Crisis Intervention Programs, School Safety, Youth Mental Health Programs, & Enhancing Background Checks for Gun Buyers Under Age 21 (S. 2938)

Bill Status

• 6/23/22: The Senate passed this bill on a 65-33 vote.
• 6/24/22: The House passed this bill on a 234-193 vote.

What is S. 2938?

This bill — known as the Bipartisan Safer Communities Act — would implement several initiatives intended to reduce gun violence. It would provide funding for states to implement crisis intervention programs to take firearms out of the hands of those deemed a danger to themselves and others while protecting the owner’s due process rights; in addition to funding mental health initiatives in schools and with youth healthcare providers; enhancing background checks for gun buyers under the age of 21; protecting domestic violence victims; and more. A breakdown of its major provisions can be found below.

Support for State Crisis Intervention Orders: This section would provide $750 million in funding for a new program available to states for the creation and administration of laws intended to help ensure deadly weapons are kept out of the hands of individuals a court has determined to be a significant danger to themselves or others. Funding would also be available for other similar purposes such as mental health courts, drug courts, veterans courts, and extreme risk protection orders (ERPOs or “red flag” laws) that temporarily take firearms from individuals deemed a threat to themselves with sufficient due process protections.

Among the due process protections required for ERPOs and red flag laws include:

• Pre- and post-deprivation due process rights at an appropriate phase to prevent any violation of constitutional rights, notification of the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront witnesses.
• The right to be represented by counsel at no expense to the government. (Because ERPO orders would be adjudicated in civil, rather than criminal court, there isn’t a constitutional guarantee for the right of indigent defendants to have counsel provided by the government.)
• Pre- and post-deprivation heightened evidentiary standards and proof which are no less than the protections afforded to a similarly situated litigant in federal court or promulgated by the state’s evidentiary body, and are sufficient to ensure full constitutional protection.
• Penalties for abuse of the program.

Investment in Children and Family Mental Health Services: This section would expand mental health resources for children, youth, and families through a variety of initiatives, including:

• Certified Community Behavioral Health Clinic: The existing Medicaid CCBHC demonstration program would be expanded to all states to increase access to community based behavioral health services.
• School-Based Mental Health: This section would help states to implement, enhance, and expand school-based health programs under Medicaid through updated guidance, technical assistance, and state planning grants.
• Mental Health Coverage for Children: This section would improve oversight of states’ implementation of Medicaid’s Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit, the country’s gold standard in children’s health coverage, to strengthen children’s access to comprehensive mental health care services
• Telehealth Expansion for Children: The Centers for Medicare and Medicaid Services (CMS) would be required to provide guidance to states on how they can increase access to behavioral health services through telehealth under Medicaid and CHIP. 
• Teleconsults for Pediatricians and Mental Health Specialists: $80 million would be provided to support pediatric primary care providers to rapidly access mental health specialists’ expertise in guiding the treatment of their patients.
• Training for Pediatric Providers: $60 million would be appropriated over five years for training in mental health for primary care clinicians who treat children and youth.
• Community and First Responder Mental Health Training: $120 million would be appropriated over four years to prepare and train community members and first responders on how to appropriately and safely respond to individuals with mental disorders.
• Support for States to Expand Mental Health Services: $250 million would be provided for states, DC, and territories to enhance comprehensive community mental health services.
• Promoting Awareness Of & Access to Services for Mental Health: $240 million would be appropriated over four years for programs that increase awareness of mental health issues among school-aged youth, provide training for school personnel and other adults who interact with school-aged youth to detect and respond to mental health issues, and connect school-aged youth who may have behavioral health issues and their families to needed services. The total would include a set aside of $28 million for grants to support trauma care in school settings.
• Support After Traumatic Events: $40 million would be appropriated over four years to improve treatment and services for children, adolescents, and families who have experienced traumatic events. 
• National Suicide Prevention Lifeline/9-8-8: $150 million would be provided to support implementation of the 9-8-8 Suicide and Crisis Lifeline that provides 24/7, free and confidential support to people in suicidal crisis or emotional distress.

Protections for Victims of Domestic Violence: This section would add convicted domestic violence abusers in dating relationships to the National Instant Criminal Background Check System (NICS). It would also create a process for removal from NICS for five years after the completion of the sentence that would only be available if there are no intervening prohibited crimes or other similar offenses.

For the purposes of evaluating cases of domestic violence, the bill would define “dating relationship” as a relationship between individuals who have or recently have had a continuing serious relationship of a romantic or intimate nature. That would be determined based on consideration of the length of the relationship, the nature of the relationship, and the frequency and type of interaction between the individuals involved in the relationship. A casual acquaintanceship or ordinary fraternization in a business or social context wouldn’t constitute a dating relationship.

Funding for School Safety Resources: This section would implement a number of provisions aimed at expanding resources available for mental health and supportive services in schools, in addition to school safety. Specifically, this section would address:

• School Safety: $300 million in funding would be provided through the STOP School Violence Act to institute safety measures in and around schools, support school violence prevention efforts, and provide training to school personnel and students. The SchoolSafety.gov clearinghouse, which provides evidence-based resources to improve school safety, would be codified. This section would also prohibit the use of funds under the Elementary and Secondary Education Act to train or equip any person with dangerous weapons in schools.
• School Based Mental Health Services and Staff: $500 million would be available under a grant program to increase the number of qualified mental health service providers offering school based mental health services to students in districts with demonstrated need.
• Training and Pipeline Development for School Based Mental Health Staff: $500 million would be available under a grant program to help train and diversify the pipeline of school counselors, school social workers, and school psychologists.
• Improving Conditions for Student Learning: $1 billion in funding would be available to support activities to improve conditions for student learning, including developing positive school climates through evidence-based practices.
• Out of School Program: $50 million in funding would be available under the 21st Century Community Learning Centers program, which funds extracurricular, after-school, and summer programs with a focus on new funding to target programs for older youth.

Under 21 Enhanced Review Process: This section would require an investigative period to review juvenile and mental health records, including checks with state databases and local law enforcement, for gun buyers under 21 years of age. 

NICS would have up to three business days to conduct the initial enhanced search. If that search reveals a possible disqualifying record, NICS would have an extended window of no more than 10 business days total to complete the investigation.

Additional funding would be provided for the FBI to administer the new process checks in NICS and grants to help states upgrade criminal and mental health records included in NICS.

Clarification of Definition of Federally Licensed Firearms Dealer: This section would clarify the definition of “federally licensed firearms dealer” to clear up which sellers need to register, conduct background checks, and keep appropriate records while also cracking down on criminals who illegally evade licensing requirements. 

The definition would be changed from applying to those who sell firearms “with the principal objective of livelihood and profit” to those who sell firearms “to predominantly earn a profit”. The clarification would mean that a person selling firearms is doing so primarily to make money would have to register, whereas a person who is liquidating or improving their personal firearms collection would not.

Penalties for Straw Purchasing: This section would create federal straw purchasing and trafficking criminal offenses, allowing prosecutors to target illegal gunrunners. Straw purchasing is a practice under which a person buys a firearm with the intent of transferring it to another person who they reasonably believe would otherwise be legally prohibited from purchasing a firearm (due to the inability to pass a background check because of a felony conviction, etc.). 

Violence Interruption Funding: This section would provide $250 million in funding for community-based violence prevention initiatives.

Argument in favor

This bipartisan bill would reform gun laws to help keep guns out of the hands of people deemed a threat to themselves and others while also ensuring due process rights are respected. It would also expand funding for youth mental health programs, enhance background checks for gun buyers under age 21, and protect victims of domestic violence. It may not have all the policies desired by either side of the aisle, but it’s a good-faith compromise that would improve public safety and is worthy of becoming law.

Argument opposed 

While the intent of this bill and the bipartisan effort in drafting it may be commendable, it’s not acceptable to advocates for either stronger gun control laws or broader gun rights. In the former case, this bill doesn’t go far enough in enacting new gun control policies that would do more to prevent gun violence, like banning assault weapons. In the latter case, the bill doesn’t do enough to ensure that due process rights are protected when legal action is initiated to take the firearm from a gun owner who’s allegedly a danger to themselves or others. 

Impact 

Gun owners, particularly those under the age of 21 or accused of being a danger to themselves or others; students; mental health professionals, healthcare providers, and educators; law enforcement; courts; and the DOJ.

Cost 

The CBO estimates that enacting this bill would cost $5.48 billion over the 2022-2027 period.

Additional Info

In-Depth: This bipartisan bill was drafted by a group of 20 senators, including 10 Democrats and 10 Republicans, that was led by Sens. Chris Murphy (D-CT) and John Cornyn (R-TX). Murphy offered the following statement on its introduction:

“For decades, the anti-gun violence movement has been met with obstacles and frustrations, and yet they’ve been tireless in their pursuit of change. Their advocacy has made this moment possible. This legislation will strengthen background checks and keep guns out of the hands of dangerous people. It also makes a historic investment in mental health and much-needed support services for students. This bill doesn’t include everything I want, but it will save countless lives and finally break a 30 year political logjam. I look forward to earning bipartisan support for this historic legislation among my Senate colleagues this week.”

Lead GOP cosponsor Sen. John Cornyn (R-TX) offered the following remarks about the bill’s due process protections:

“Unless a person is convicted of a crime or is adjudicated mentally ill, their ability to purchase a firearm will not be impacted by this legislation. What we're trying to do is prevent dangerous individuals from unleashing violence on their communities, and one way of achieving that goal is through more robust crisis intervention programs. One of the things that we've agreed upon is they have to have robust due process protections because we're talking about a constitutional right. So if the new law does not include due process protections, it will not be eligible for these grants, no matter what form that crisis intervention program takes."

The House Freedom Caucus, which has 44 Republican members in the House, released a statement opposing this bill which read in part:

“The House Freedom Caucus took an official position that it will oppose any legislation that implements, funds, or expands unconstitutional and ineffective red flag laws. The House Freedom Caucus opposes any legislation, including the Senate framework, that implements “red flag laws” and other unconstitutional gun control provisions. Red flag laws permit the preemptive seizure of firearms from Americans without due process by allowing any person to report a gunowner to law enforcement and petition for the confiscation of that individual’s firearms, even before the gun owner has an opportunity to defend themselves. As a result, experts have found that one-third of confiscation orders were wrongly used against innocent Americans, and it often takes a tremendous effort to overturn. These laws are ripe for abuse as they give government the power to decide who is deemed mentally fit to own a firearm based on the say-so of any accuser, and that should concern every American as some Democrats have already signaled their intention to use red flag laws to target gunowners based on their political beliefs. Furthermore, studies have found that states’ red flag laws have had no significant impact on murder and suicide rates, or the number of people killed in mass shootings.”

This bill has been endorsed by the Fraternal Order of Police, National Sheriffs’ Association, Major Cities Chiefs Association, National Network to End Domestic Violence, National District Attorneys Association, National Alliance on Mental Illness, National Domestic Violence Hotline, National Association of Police Organizations, National Association of School Psychologists & 99 Other Mental Health and Education Groups, along with numerous other education and healthcare groups and editorial boards, including the Wall Street Journal.

Tell your senators & rep how to vote on this bill!

Media:

• Sponsoring Sen. Chris Murphy (D-CT) Press Release
• Cosponsoring Sen. John Corny (R-TX) Press Release
• CBO Cost Estimate
• Causes
• Bill Text

Summary by Eric Revell

(Photo Credit: iStock.com / gesrey)