In-Depth: Rep. Salud Carbajal (D-CA) introduced this bill to encourage states to allow family members or law enforcement officials to petition a judge to temporarily remove firearms from an individual in crisis:
“I lost my older sister to suicide with a firearm at a young age. What I’ve learned since is that temporarily preventing people from having a gun while in a state of crisis, and giving our law enforcement the right tools to address dangerous behaviors, saves lives. On the anniversary of the horrific shooting at Stoneman Douglas High School, we are once again reminded that of our responsibility to act in Congress to help prevent the next mass shooting.”
Original cosponsor Rep. Ted Deutch (D-FL) adds that ERPOs work:
“As we’ve seen in Florida and other states, extreme risk protection orders work. This is an important live-saving tool to allow law enforcement officers to intervene before a dangerous person used their firearms against others. This is a sensible gun safety proposal with bipartisan support, and I hope we can move swiftly to pass it and help give every jurisdiction the tools needed to intervene and save lives.”
Senate sponsor Sen. Dianne Feinstein (D-CA) says:
“One common thread that runs through mass shootings in this country is that family and friends are often the first to be aware that perpetrators pose threats to themselves or others. The Parkland shooter had a history of making threatening statements, but police had no power to act. Families have little recourse if they want to ensure their loved ones don’t get their hands on guns that could be used to kill themselves or others. Our bill would help states establish a court process to allow that to happen. California, Maryland and Florida have already done so, and the federal government should support other states that want to follow their lead.”
After President Trump made an August 5, 2019 televised address regarding a pair of shootings that occurred on a single weekend in August 2019 and expressed support for ERPOs in his remarks, this bill’s cosponsors responded to the president’s address by calling for action to match his words. Rep. Deutch said:
“President Trump should match his words with action and support our bipartisan plan to promote state-level extreme risk protection orders. We can move quickly to pass this bill and empower more law enforcement agencies with life-saving tools to intervene when people may pose a threat to themselves or others. These policies have already saved lives in states across the country. What are we waiting for?”
Original cosponsor Rep. Don Beyer (D-VA) added:
“The horrific loss of life from mass shootings in El Paso, Dayton, and elsewhere require real action from our nation’s leaders. The President’s attempts to focus on mental health and ‘video games’ as causes of mass shootings are old NRA talking points designed to avoid the central issue of gun violence. I am also saddened but not surprised that the President took no responsibility for the ways in which his own rhetoric – repeatedly attacking immigrants and racial minorities – has empowered hateful extremists. If the President really wants to help, one obvious step would be to ask more Republicans in Congress to support the bipartisan Extreme Risk Protection Order Act, which would address both mass shootings and suicides in a way that would help save lives while also respecting Americans’ due process rights. Whether his words are meant in earnest or fleeting rhetoric, as was sadly the case after Parkland, my colleagues and I will redouble our efforts to advance this vital legislation in the House.”
Giffords, the gun violence organization founded by former Congresswoman Gabby Giffords and her husband Captain Mark Kelly, supports this legislation. Its Managing Director, Robin Lloyd, says:
“Americans are outraged that more than 100 Americans die every day from a gunshot. Leaders in state capitols have channeled that anger into action – passing innovative policy solutions like extreme risk laws that are saving lives. Last year alone, eight states — including several states with Republican governors — passed some form of extreme risk legislation into law. It’s time to bring this fight to Congress so more family members and law enforcement officials across the country have the power to help prevent someone they know who is experiencing a crisis from causing tragedy.”
Jeff Knox, director of The Firearms Coalition (a coalition of Second Amendment activists, clubs, and civil rights organizations that supports grassroots activists with education, current issues analysis, and a historical perspective of the gun rights movement), expressed opposition to ERPOs in a June 2018 op-ed in Ammoland:
“ERPO’s… [are] a bad move that will hurt gun owners and Second Amendment rights. The idea behind an ERPO is that if someone is acting crazy, a family member or police officer can file for one of these orders, and the dangerous person’s guns can be taken away from them. That appears reasonable and rational at first glance, but thinking things through, the idea goes from warm and fuzzy to a whole bunch of cold and prickly. The first problem with the ERPO idea is that it singles out gun ownership. No one likes to have a target drawn on their forehead, and that's exactly what an ERPO does to gun owners. It reinforces the mistaken notion that gun ownership is a problem in itself… The second problem with ERPO’s is that they skip right past due process and directly infringe on an enumerated right, often based on the say-so of a single individual… [Thirdly,] Read more: ERPO[s are] redundant… If a person is demonstrating unstable behavior that poses a threat to themselves or others, that person can be taken into custody for a temporary evaluation period. In custody, they not only do not have access to guns, they are also kept away from cars, household chemicals, matches, and sharp objects. If needed, a mentally unstable person can be committed indefinitely for psychiatric care. The commitment option is drastic, and all concerned are reticent to employ it in anything other than the most dire of circumstances. It is in fact this reticence which keeps these laws from being widely abused, because the laws themselves are generally written very broadly with little consideration for due process. But because judges take the issue of incarcerating a person against their will, very seriously, they are generally very cautious about employing this drastic measure. The same cannot be said about judges’ attitudes towards the right to arms. The Second Amendment has never been accorded the same respect and consideration by the courts that are given to other fundamental rights. Most judges would put less weight on suspending a person's Second Amendment rights than suspending their drivers license. Guns are being used as a scapegoat to avoid addressing the real problems with real solutions. Anyone who is a serious threat to himself needs treatment and close observation, not police demanding his firearms. If a person truly poses a serious threat to others, he needs to be isolated in a place where he can't hurt anyone, not have some of his property confiscated, then left to his own devices.”
The National Rifle Association (NRA) signaled some openness to ERPOs immediately after the Parkland shooting, but reversed course and was opposed ERPOs as of January 2019. The NRA argues that ERPOs could threaten due process rights because those whose guns are confiscated don’t have a chance to argue their cases in court before their guns’ seizure. The NRA also expresses concerns about people with grudges filing false reports.
ERPOs are subject to judicial oversight and aren’t always granted. For example, in Maryland in March 2019, judges granted 258 petitions — slightly more than half of those sought. 146 petitions were denied, and 102 were dismissed as no longer necessary.
Additionally, filing a false ERPO is a crime in all states with such laws, and lying during the hearing process would be perjury. Montgomery County, Maryland Sheriff Darren Popkin says he finds that many petitioners use ERPOs to help troubled people they care about, rather than to settle a grudge or even to protect themselves. In his state, 60% of ERPO petitions are filed by family members or mental health providers. As evidence of ERPOs’ importance, Popkin notes petitioners’ gratitude: “I’ve received phone calls back from some petitioners in the case, and the petitioners have told me they are very grateful. It saved their loved one’s life.”
This legislation passed the House Judiciary Committee by a 22-16 vote with the support of 197 bipartisan House cosponsors, including 195 Democrats and two Republicans. Its Senate companion, sponsored by Sen. Dianne Feinstein (D-CA), has 28 Senate cosponsors, including 26 Democrats and two Independents.
The House Judiciary Committee was originally scheduled to end its recess early to vote on this and two other gun control bills (the Keep Americans Safe Act and Disarm Hate Act) on September 4, 2019. However, those plans were called off due to Hurricane Dorian preventing the attendance of several members whose districts would be impacted by the storm.
It also supported by a number of gun control advocacy organizations, including Giffords, Newtown Action Alliance, Everytown for Gun Safety, March for Our Lives, the Brady Campaign to Prevent Gun Violence, Sandy Hook Promise, and the Coalition Against Gun Violence.
Of Note: 13 states currently have ERPO laws in place. Two states — California and Florida — established their ERPO laws after high-profile shootings:in California’s case, it was the 2014 shooting in Isla Vista near the University of California, Santa Barbara and in Florida’s case, it was the Parkland shooting at Marjory Stoneman Douglas High School.
In an analysis of Connecticut’s ERPO law, Duke University’s Dr. Jeffrey Swanson and a team of nine other researchers found that in the 14 years after the law’s implementation in 1999 (Connecticut was the first state to enact an ERPO law), the law saved up to 100 lives from suicide alone by temporarily removing weapons from 762 at-risk individuals (people are more likely to die by suicide if they have easy access to firearms and 85% of suicide attempts involving firearms are fatal).. Additionally, nearly a third of respondents received critical mental health and substance abuse treatment as a result of the intervention.
However, some contend that it’s still too early to fully measure ERPOs’ effectiveness. April Zeoli, a public health criminologist at Michigan State University who recently began a study of ERPO laws in Florida, Oregon, and Vermont, says, “We don’t have empirical evidence of extreme risk protection orders’ impact on future violence.” However, she adds that the logic behind ERPOs is sound. She explains that, like domestic violence orders, ERPOs will become more effective as they become more common:
“The fact that [ERPOs] are modeled after domestic violence restraining orders gives us good reason to think they will reduce gun violence. When domestic violence restraining orders first hit the scene almost 30 years ago, no one knew about them. But now everyone knows what they are.”
Summary by Lorelei Yang
(Photo Credit: iStockphoto.com / FluxFactory)