Extreme Risk Protection Order Act
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The Extreme Risk Protection Order Act is federal gun control legislation to support State, Tribal, and local efforts under "
red flag law In the United States, a red flag law is a gun violence prevention law that permits a state court to order the temporary removal of firearms from a person who they believe may present a danger to others or themselves. A judge makes the determina ...
s" to remove access to firearms from individuals who are considered a danger to themselves or others. Sen.
Richard Blumenthal Richard Blumenthal (; born February 13, 1946) is an American lawyer and politician who is the senior United States senator from Connecticut, a seat he has held since 2011. A member of the Democratic Party, he is one of the wealthiest members of ...
introduced such legislation in March 2018, in the
115th U.S. Congress The 115th United States Congress was a meeting of the legislative branch of the United States of America federal government, composed of the Senate and the House of Representatives. It met in Washington, D.C., from January 3, 2017, to January 3 ...
; and
Dianne Feinstein Dianne Goldman Berman Feinstein ( ; born Dianne Emiel Goldman; June 22, 1933) is an American politician who serves as the senior United States senator from California, a seat she has held since 1992. A member of the Democratic Party, she wa ...
introduced such legislation in February 2019, in the 116th U.S. Congress. The House version of her legislation was introduced by Rep.
Salud Carbajal Salud Ortiz Carbajal (; born November 18, 1964) is an American politician serving as the U.S. representative for California's 24th congressional district since 2017. He is a member of the Democratic Party, and his district covers Santa Maria, ...
and re-introduced on 14 February 2019, one year after the Stoneman Douglas High School shooting. Sen. Marco Rubio also introduced a similar bill, the Extreme Risk Protection Order and Violence Prevention Act, and Rep.
Lucy McBath Lucia Kay McBath ( née Holman; born June 1, 1960) is an American politician serving as the U.S. representative from Georgia's 6th congressional district. The district, once represented by Republican Speaker of the House Newt Gingrich, include ...
introduced a Federal Extreme Risk Protection Order Act which is identical to a bill introduced in the Senate by Blumenthal and Graham. The provisions of McBath's bill, creating a process for petitioning to U.S. District Courts, were incorporated as amendments to the bill that was reported out of the House committee.


Provisions

The Feinstein legislation states, "If the court finds by a
preponderance of the evidence In a legal dispute, one party has the burden of proof to show that they are correct, while the other party had no such burden and is presumed to be correct. The burden of proof requires a party to produce evidence to establish the truth of facts ...
that the respondent poses a danger of causing harm to himself, herself, or others by having access to a firearm, the court may issue an extreme risk protection order." Also, an ex parte extreme risk protection order can be issued if "the court finds there is
reasonable cause Reasonable suspicion is a legal standard of proof in United States law that is less than probable cause, the legal standard for arrests and warrants, but more than an "inchoate and unparticularized suspicion or 'hunch; it must be based on "speci ...
to believe that the respondent poses a danger of causing harm to himself, herself, or others in the near future by having access to a firearm." The legislation also amends 18 U.S. Code § 922(g) to make violation of such orders a federal felony. In order for a state to get grants under the Act, it has to enact a red flag law meeting certain requirements, such as allowing family members, rather than only police, to petition the courts. Rhode Island, for example, would be unable to get grants under the Act without strengthening its red flag law. A provision by Rep.
Ken Buck Kenneth Robert Buck (born February 16, 1959) is an American lawyer and politician who has represented Colorado's 4th congressional district in the United States House of Representatives since 2015. From March 30, 2019, to March 27, 2021, Buck s ...
(R) proposed "allow the issuance of a red flag order against anyone whose name appears in a gang database if there was probable cause to include that individual in the database". Rep.
Eric Swalwell Eric Michael Swalwell (born November 16, 1980) is an American lawyer and politician serving as the U.S. representative for California's 15th congressional district since 2013. His district covers most of eastern Alameda County and part of centr ...
(D) requested to add "individuals affiliated with white nationalism" to the amendment as a Red Flag Indicator in exchange for her support. Rep. Ken Buck agreed, with the stipulation that "any type of supremacy" should be included, and revised the provision accordingly. The amendment failed 11–21 on September 14, 2019.


Congressional action

Feinstein and Blumenthal argued that federal legislation is needed because "there is still no nationwide tool that would allow law enforcement and the courts to prevent tragedies like
Isla Vista Isla Vista is an unincorporated community and census-designated place (CDP) in Santa Barbara County, California in the United States. As of 2020 census, the community had a population of 15,500. The majority of residents are college students at t ...
." Shortly after the
2019 El Paso shooting On August 3, 2019, a mass shooting occurred at a Walmart store in El Paso, Texas, United States. In the terrorist attack, a far-right individual killed 23 people and injured 23 others. The Federal Bureau of Investigation is investigating the sh ...
and
2019 Dayton shooting On August 4, 2019, 24-year-old Connor Betts shot and killed nine people, including his transgender brother, and wounded 17 others near the entrance of the Ned Peppers Bar in the Oregon District of Dayton, Ohio. Betts was fatally shot by respon ...
, Senate Judiciary Committee Chairman
Lindsey Graham Lindsey Olin Graham (born July 9, 1955) is an American lawyer and politician serving as the senior United States senator from South Carolina, a seat he has held since 2003. A member of the Republican Party, Graham chaired the Senate Committee on ...
announced his support for such legislation, stating that "grants will be given to law enforcement so they can hire and consult with mental health professionals to better determine which cases need to be acted upon." Feinstein and Rubio urged Graham to take up their bills. Blumenthal welcomed Republicans' openness to the plan as a "bipartisan breakthrough" and "major promising development." Such legislation is also supported by Democratic presidential candidate Pete Buttigieg. According to Senate Minority Leader
Charles Schumer Charles Ellis Schumer ( ; born November 23, 1950) is an American politician serving as Senate Majority Leader since January 20, 2021. A member of the Democratic Party, Schumer is in his fourth Senate term, having held his seat since 1999, and ...
, Democrats will try to require any red flag measure that comes to the Senate floor be paired with a vote on legislation establishing
universal background checks Proposals for universal background checks would require almost all firearms transactions in the United States to be recorded and go through the National Instant Criminal Background Check System (NICS), closing what is sometimes called the priv ...
. He noted that Republican bills being proposed do not require states to adopt red flag legislation. Schumer said that Democrats would not accept a half-measure, arguing, "The notion that passing a tepid version of an Extreme Risk Protection Order (E.R.P.O.) bill — alone — is close to getting the job done in addressing rampant gun violence in the U.S. is wrong and would be an ineffective cop-out." Senate Majority Leader Mitch McConnell said he expects background checks,
assault weapon In the United States, ''assault weapon'' is a controversial term used to define firearms with specified characteristics. The definition varies among regulating jurisdictions, but usually includes semi-automatic firearms with a detachable magaz ...
s and red flag laws to be part of September's Senate debate about measures aimed at addressing gun violence. He remarked, "What we can't do is fail to pass something." Sen.
John Barrasso John Anthony Barrasso III ( ; born July 21, 1952) is an American physician and politician serving as the senior United States senator from Wyoming, a seat he has held since 2007. A member of the Republican Party, he served in the Wyoming State ...
, the third-ranking Senate Republican, said he had "a lot of concerns" about red flag laws. On June 9, 2022, the House passed (Federal Extreme Risk Protection Order),a bill to nationalize red flag laws, which seek to keep guns away from individuals deemed a threat to themselves and others.


References

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External links


H.R.1236 - 116th Congress (2019-2020): Extreme Risk Protection Order Act of 2019S.506 - 116th Congress (2019-2020): Extreme Risk Protection Order Act of 2019
United States firearms law