Jump to content
TedderVision
Sign in to follow this  
Calvin Ward

“Federal Extreme Risk Protection Order Act

Recommended Posts

Mr Ward, with thanks to Mr. Blumenthal (for himself and Mr. Graham) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To authorize the issuance of extreme risk protection orders.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Federal Extreme Risk Protection Order Act of 2018”.

SEC. 2. EXTREME RISK PROTECTION ORDERS.

(a) In General.—Chapter 44 of title 18, United States Code, is amended by adding at the end the following:

“§ 932. Extreme risk protection orders

“(a) Definitions.—In this section—

“(1) the term ‘designated law enforcement officer’ means a law enforcement officer, designated by a United States marshal, who agrees to receive firearms, ammunition, and permit, as applicable, surrendered under subsection (f);

“(2) the term ‘Director’ means the Director of the Administrative Office of the United States Courts;

“(3) the term ‘ex parte extreme risk protection order’ or ‘ex parte order’ means an extreme risk protection order issued under subsection (c);

“(4) the term ‘extreme risk protection order’ means an order issued by a Federal court that enjoins an individual from purchasing, possessing, or receiving, in or affecting interstate and foreign commerce, a firearm or ammunition;

“(5) the term ‘family or household member’, with respect to a respondent, means any—

“(A) parent, spouse, sibling, or child related by blood, marriage, or adoption to the respondent;

“(B) dating partner of the respondent;

“(C) individual who has a child in common with the respondent, regardless of whether the individual has—

“(i) been married to the respondent; or

“(ii) lived together with the respondent at any time;

“(D) individual who resides or has resided with the respondent during the past year;

“(E) domestic partner of the respondent;

“(F) individual who has a legal parent-child relationship with the respondent, including a stepparent-stepchild and grandparent-grandchild relationship; and

“(G) individual who is acting or has acted as the legal guardian of the respondent;

“(6) the term ‘law enforcement officer’ means any officer, agent, or employee of the Federal Government or a State government, unit of local government, or Indian tribe (as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304)) authorized—

“(A) by law or by a government agency to engage in or supervise the prevention, detection, or investigation of any violation of criminal law; or

“(B) by law to supervise sentenced criminal offenders;

“(7) the term ‘long-term extreme risk protection order’ or ‘long-term order’ means an extreme risk protection order issued under subsection (d);

“(8) the term ‘mental health agency’ means an agency of a State or local government or its contracted agency that is responsible for mental health services or co-occurring mental health and substance abuse services; and

“(9) the term ‘national instant criminal background check system’ means the national instant criminal background check system established under section 103 of the Brady Handgun Violence Prevention Act (34 U.S.C. 40901).

“(b) Petition.—

“(1) IN GENERAL.—A family or household member of the applicable individual, or a law enforcement officer, may submit to an appropriate district court of the United States a petition requesting that the court issue an ex parte extreme risk protection order or long-term extreme risk protection order with respect to an individual.

“(2) NO FEES.—A court may not charge a petitioner any fee for filing a petition under paragraph (1).

“(3) CONFIDENTIALITY.—A petitioner who is a law enforcement officer may provide the identity of the petitioner's sources, and any identifying information, to the court under seal.

“(c) Ex Parte Orders.—

“(1) TIMING.—

“(A) IN GENERAL.—Except as provided in subparagraph (B), a court that receives a petition for an ex parte order under subsection (b) shall grant or deny the petition on the date on which the petition is submitted.

“(B) LATE PETITIONS.—If a court receives a petition for an ex parte order submitted under subsection (b) too late in the day to permit effective review, the court shall grant or deny the petition on the next day of judicial business at a time early enough to permit the court to file an order with the clerk of the court during that day.

“(2) EVIDENCE REQUIRED.—Before issuing an ex parte order, a court shall require that the petitioner submit a signed affidavit, sworn to before the court, that—

“(A) explains why the petitioner believes 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; and

“(B) describes the interactions and conversations of the petitioner with—

“(i) the respondent; or

“(ii) another individual, if the petitioner believes that information obtained from that individual is credible and reliable.

“(3) STANDARD FOR ISSUANCE OF ORDER.—A court may issue an ex parte order only upon a finding of probable cause to believe that—

“(A) 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; and

“(B) the order is necessary to prevent the injury described in subparagraph (A).

“(4) DURATION.—An ex parte order shall expire on the earlier of—

“(A) the date that is 14 days after the date of issuance; or

“(B) the date on which the court determines whether to issue a long-term order with respect to the respondent.

“(d) Long-Term Orders.—

“(1) HEARING REQUIRED.—If a court receives a petition for an extreme risk protection order for a respondent under subsection (b), the court shall hold a hearing to determine whether to issue a long-term order with respect to the respondent either—

“(A) (i) except as provided in clause (ii), not later than 72 hours after the court issues an ex parte order with respect to the respondent; or

“(ii) if the court issues an ex parte order with respect to the respondent but the order is not served on the respondent within 72 hours of the issuance, not later than 72 hours after the order is served on the respondent; or

“(B) if the respondent waives the right to a hearing under subparagraph (A) or the court does not issue an ex parte order, not later than 14 days after the date on which the court receives the petition.

“(2) NOTICE AND OPPORTUNITY TO BE HEARD.—

“(A) IN GENERAL.—The court shall provide the respondent with notice and the opportunity to be heard at a hearing under this subsection, sufficient to protect the due process rights of the respondent.

“(B) RIGHT TO COUNSEL.—

“(i) IN GENERAL.—At a hearing under this subsection, the respondent may be represented by counsel who is—

“(I) chosen by the respondent; and

“(II) authorized to practice at such a hearing.

“(ii) COURT-PROVIDED COUNSEL.—If the respondent is financially unable to obtain representation by counsel, the court, at the request of the respondent, shall ensure to the extent practicable that the respondent is represented by an attorney for the Legal Services Corporation with respect to the petition.

“(3) BURDEN OF PROOF; STANDARD.—At a hearing under this subsection, the petitioner—

“(A) shall have the burden of proving all material facts; and

“(B) shall be required to demonstrate, by clear and convincing evidence, that—

“(i) the respondent poses a risk of personal injury to himself or herself, or another individual, during the period to be covered by the proposed extreme risk protection order, by purchasing, possessing, or receiving a firearm or ammunition; and

“(ii) the order is necessary to prevent the injury described in clause (i).

“(4) ISSUANCE.—Upon a showing of clear and convincing evidence under paragraph (3), the court shall issue a long-term order with respect to the respondent that shall be in effect for a period of not more than 180 days.

“(5) DENIAL.—If the court finds that there is not clear and convincing evidence to support the issuance of a long-term order, the court shall dissolve any ex parte order then in effect with respect to the respondent.

“(6) RENEWAL.—

“(A) NOTICE OF SCHEDULED EXPIRATION.—Thirty days before the date on which a long-term order is scheduled to expire, the court that issued the order shall—

“(i) notify the petitioner and the respondent that the order is scheduled to expire; and

“(ii) advise the petitioner and the respondent of the procedures for seeking a renewal of the order under this paragraph.

“(B) PETITION.—If a family or household member of the respondent, or a law enforcement officer, believes that the conditions under paragraph (3)(B) continue to apply with respect to a respondent who is subject to a long-term order, the family or household member or law enforcement officer may submit to the court that issued the order a petition for a renewal of the order.

“(C) HEARING.—A court that receives a petition submitted under subparagraph (B) shall hold a hearing to determine whether to issue a renewed long-term order with respect to the respondent.

“(D) APPLICABLE PROCEDURES.—The requirements under paragraphs (2) through (5) shall apply to the consideration of a petition for a renewed long-term order submitted under subparagraph (B) of this paragraph.

“(E) ISSUANCE.—Upon a showing by clear and convincing evidence that the conditions under paragraph (3)(B) continue to apply with respect to the respondent, the court shall issue a renewed long-term order with respect to the respondent.

“(e) Factors To Consider.—In determining whether to issue an extreme risk protection order, a court—

“(1) shall consider factors including—

“(A) recent threats or acts of violence by the respondent directed toward other individuals;

“(B) recent threats or acts of violence by the respondent directed toward himself or herself;

“(C) recent acts of cruelty to animals by the respondent; and

“(D) evidence of—

“(i) recent criminal offenses by the respondent that involve controlled substances or alcohol; or

“(ii) ongoing abuse of controlled substances or alcohol by the respondent; and

“(2) may consider other factors, including—

“(A) the reckless use, display, or brandishing of a firearm by the respondent;

“(B) a history of violence or attempted violence by the respondent against other individuals; and

“(C) prior involuntary confinement of the respondent in a hospital for individuals with psychiatric disabilities.

“(f) Relinquishment Of Firearms And Ammunition.—

“(1) ORDER OF SURRENDER.—Upon issuance of an ex parte order or long-term order, the court shall order the respondent to surrender all firearms and ammunition that the respondent possesses or owns, in or affecting interstate commerce, as well as any permit authorizing the respondent to purchase or possess firearms (including a concealed carry permit), to—

“(A) the United States Marshals Service; or

“(B) a designated law enforcement officer.

“(2) SURRENDER AND REMOVAL.—

“(A) MANNER OF SERVICE.—

“(i) PERSONAL SERVICE.—Except as provided in clause (ii), a United States marshal or designated law enforcement officer shall serve an extreme risk protection order on a respondent by handing the order to the respondent.

“(ii) ALTERNATIVE SERVICE.—If the respondent cannot reasonably be located for service as described in clause (i), an extreme risk protection order may be served on the respondent in any manner authorized under the Federal Rules of Civil Procedure.

“(B) REMOVAL.—Except as provided in subparagraph (C), a United States marshal or designated law enforcement officer serving an extreme risk protection order personally on the respondent shall—

“(i) request that all firearms and ammunition, in or affecting interstate commerce, as well as any permit authorizing the respondent to purchase or possess firearms (including a concealed carry permit), that the respondent possesses or owns—

“(I) be immediately surrendered to the United States marshal or designated law enforcement officer; or

“(II) at the option of the respondent, be immediately surrendered and sold to a federally licensed firearms dealer; and

“(ii) take possession of all firearms and ammunition described in clause (i) that are not sold under subclause (II) of that clause, as well as any permit described in that clause, that are—

“(I) surrendered;

“(II) in plain sight; or

“(III) discovered pursuant to a lawful search.

“(C) ALTERNATIVE SURRENDER.—If a United States marshal or designated law enforcement officer is not able to personally serve an extreme risk protection order under subparagraph (A)(i), or is not reasonably able to take custody of the firearms, ammunition, and permits under subparagraph (B), the respondent shall surrender the firearms, ammunition, and permits in a safe manner to the control of a United States marshal or designated law enforcement officer not later than 48 hours after being served with the order.

“(3) RECEIPT.—

“(A) ISSUANCE.—At the time of surrender or removal under paragraph (2), a United States marshal or designated law enforcement officer taking possession of a firearm, ammunition, or a permit pursuant to an extreme risk protection order shall—

“(i) issue a receipt identifying all firearms, ammunition, and permits that have been surrendered or removed; and

“(ii) provide a copy of the receipt issued under clause (i) to the respondent.

“(B) FILING.—Not later than 72 hours after service of an order under paragraph (2)(A), the United States marshal who served the order or designated another law enforcement officer to do so shall—

“(i) file the original receipt issued under subparagraph (A) of this paragraph with the court that issued the extreme risk protection order; and

“(ii) ensure that the United States Marshals Service retains a copy of the receipt.

“(C) DESIGNATED LAW ENFORCEMENT OFFICER.—If a designated law enforcement officer issues a receipt under subparagraph (A), the officer shall submit the original receipt and a copy of the receipt to the appropriate United States marshal to enable the United States marshal to comply with subparagraph (B).

“(4) FORFEITURE.—If a respondent knowingly attempts, in violation of an extreme risk protection order, to access a firearm, ammunition, or a permit that was surrendered or removed under this subsection, the firearm, ammunition, or permit shall be subject to seizure and forfeiture under section 924(d).

“(g) Return Of Firearms And Ammunition.—

“(1) NOTICE.—If an extreme risk protection order is dissolved, or expires and is not renewed, the court that issued the order shall order the United States Marshals Service to—

“(A) confirm, through the national instant criminal background check system and any other relevant law enforcement databases, that the respondent may lawfully own and possess firearms and ammunition; and

“(B) (i) if the respondent may lawfully own and possess firearms and ammunition, notify the respondent that the respondent may retrieve each firearm, ammunition, or permit surrendered by or removed from the respondent under subsection (f); or

“(ii) if the respondent may not lawfully own or possess firearms and ammunition, notify the respondent that each firearm, ammunition, or permit surrendered by or removed from the respondent under subsection (f) will be returned only when the respondent demonstrates to the United States Marshals Service that the respondent may lawfully own and possess firearms and ammunition.

“(2) RETURN.—If an extreme risk protection order is dissolved, or expires and is not renewed, and the United States Marshals Service confirms under paragraph (1)(A) that the respondent may lawfully own and possess firearms and ammunition, the court that issued the order shall order the entity that possesses each firearm, ammunition, or permit surrendered by or removed from the respondent under subsection (f) to return those items to the respondent.

“(h) Return Of Firearms And Ammunition Improperly Received.—If a court, in a hearing under subsection (d), determines that a firearm or ammunition surrendered by or removed from a respondent under subsection (f) is owned by an individual other than the respondent, the court may order the United States marshal or designated law enforcement officer in possession of the firearm or ammunition to transfer the firearm or ammunition to that individual if—

“(1) the individual may lawfully own and possess firearms and ammunition; and

“(2) the individual will not provide the respondent with access to the firearm or ammunition.

“(i) Penalty For False Reporting Or Frivolous Petitions.—An individual who knowingly submits materially false information to the court in a petition for an extreme risk protection order under this section, or who knowingly files such a petition that is frivolous, unreasonable, or without foundation, shall be fined not less than $1,000, in addition to any other penalty authorized by law, as the court deems necessary to deter such abuse of process.

“(j) Model Policy.—

“(1) IN GENERAL.—The Director shall draft a model policy to maximize the accessibility of extreme risk protection orders.

“(2) CONTENTS.—In drafting the model policy under paragraph (1), the Director shall—

“(A) ensure that State and local law enforcement officers and members of the public without legal training are able to easily file petitions for extreme risk protection orders;

“(B) prescribe outreach efforts by employees of the district courts of the United States to familiarize relevant law enforcement officers and the public with the procedures for filing petitions, either—

“(i) through direct outreach; or

“(ii) in coordination with—

“(I) relevant officials in the executive or legislative branch of the Federal Government; or

“(II) with State and local officials;

“(C) prescribe policies for allowing the filing of petitions and prompt adjudication of petitions on weekends and outside of normal court hours;

“(D) prescribe policies for coordinating with law enforcement agencies to ensure the safe, timely, and effective service of extreme risk protection orders and relinquishment of firearms, ammunition, and permits, as applicable; and

“(E) identify governmental and non-governmental resources and partners to help officials of the district courts of the United States coordinate with civil society organizations to ensure the safe and effective implementation of this section.

“(k) Reporting.—

“(1) INDIVIDUAL REPORTS.—

“(A) IN GENERAL.—Not later than 2 court days after the date on which a court issues or dissolves an extreme risk protection order under this section or an extreme risk protection order expires without being renewed, the court shall notify—

“(i) the Attorney General;

“(ii) each relevant mental health agency in the State in which the order is issued; and

“(iii) State and local law enforcement officials in the jurisdiction in which the order is issued, including the national instant criminal background check system single point of contact for the State of residence of the respondent, where applicable.

“(B) FORMAT.—A court shall submit a notice under subparagraph (A) in an electronic format, in a manner prescribed by the Attorney General.

“(C) UPDATE OF DATABASES.—As soon as practicable and not later than 5 days after receiving a notice under subparagraph (A), the Attorney General shall update the background check databases of the Attorney General to reflect the prohibitions articulated in the applicable extreme risk protection order.

“(2) ANNUAL REPORTS.—Not later than 1 year after the date of enactment of the Federal Extreme Risk Protection Order Act of 2018, and annually thereafter, the Director shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that includes, with respect to the preceding year—

“(A) the number of petitions for ex parte orders filed, as well as the number of such orders issued and the number denied;

“(B) the number of petitions for long-term orders filed, as well as the number of such orders issued and the number denied;

“(C) the number of petitions for renewals of long-term orders filed, as well as the number of such orders issued and the number denied; and

“(D) the number of cases in which a court has issued a penalty for false reporting or frivolous petitions.”.

(b) Technical And Conforming Amendments.—

(1) TABLE OF SECTIONS.—The table of sections for chapter 44 of title 18, United States Code, is amended by adding at the end the following:


“932. Extreme risk protection orders.”.

(2) FORFEITURE.—Section 924(d)(3) of title 18, United States Code, is amended—

(A) in subparagraph (E), by striking “and” at the end;

(B) in subparagraph (F), by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following:

“(G) any attempt to violate an extreme risk protection order issued under section 932.”.

SEC. 3. BRADY ACT PROHIBITORS.

Section 922 of title 18, United States Code, is amended—

(1) in subsection (d)—

(A) in paragraph (8), by striking “or” at the end;

(B) in paragraph (9), by striking the period at the end and inserting “; or”; and

(C) by inserting after paragraph (9) the following:

“(10) is subject to a court order that prohibits the person from purchasing, possessing, or receiving a firearm or ammunition.”; and

(2) in subsection (g)—

(A) in paragraph (8), by striking “or” at the end;

(B) in paragraph (9), by striking the comma at the end and inserting “; or”; and

(C) by inserting after paragraph (9) the following:

“(10) who is subject to a court order that prohibits the person from purchasing, possessing, or receiving a firearm or ammunition,”.

SEC. 4. SEVERABILITY.

If any provision of this Act or any amendment made by this Act, or any application of such provision or amendment to any person or circumstance, is held to be invalid, the remainder of the provisions of this Act and the amendments made by this Act and the application of the provision or amendment to any other person or circumstance shall not be affected.

SEC. 5. PREEMPTION.

Nothing in this Act or an amendment made by this Act shall be construed to preempt any State law or policy.

 

PES: Authorizes the following

 

An “extreme risk protection order” is defined as an order issued by a federal court that prevents an individual from purchasing, possessing, receiving, or affecting interstate or foreign commerce a firearm or ammunition. “Family or household member” is defined broadly and includes: individuals related by blood, marriage, or adoption, dating partner, individual with a child in common, individual who resides or has resided with individual in past year, domestic partner, person acting or has acted as legal guardian, person who has a legal parent-child relationship, including step-parents and grandparents. “Law enforcement officer” includes any federal, state, local or Indian Tribe agents.

Any of the above persons (“petitioner”) can petition a federal court for an ERPO and may not be charged a fee. Petitioning law enforcement officers may provide the identity of their sources under court seal to maintain privacy. Ex parte orders are to be processed the same day or early the next judicial business day and may not last more than 14 days. They require a signed affidavit from the petitioner and a finding by the court of probable cause that the subject of the order (“respondent”) poses a risk of imminent personal injury to self or others by having access to a firearm or ammo. For a long-term order, a hearing must be held within 3 days days of issuance of the ex parte order, or within 3 days of service on the respondent, or if right to a hearing is waived, within 14 days of the petition filing. If respondent is financially unable to obtain counsel, the court may provide counsel through the Legal Services Corporation. The petitioner must prove all material facts, and demonstrate with clear and convincing evidence that respondent poses a risk of imminent personal injury to self or others by having access to a firearm or ammo and the ERPO is necessary to prevent injury.

The ERPO may last up to 180 days and can be renewed via a new hearing where the same petitioner demonstrates with clear and convincing evidence that the same conditions continue to exist. The bill outlines factors the court may consider. All firearms, ammo & permits must be immediately removed by a U.S. Marshall (USM) or designated law enforcement officer upon service of the ERPO, or if not practicable then, surrendered within 48 hours of service of the ERPO. The respondent may also immediately transfer or sell firearms or ammo to a federally licensed firearms dealer. If the respondent attempts to access firearms or ammo in violation of the ERPO, they will be seized and forfeited. Firearms and ammo may be returned at expiration of the ERPO only after the USM first performs a NICS check. If, through a hearing, a court determines that surrendered/removed firearms or ammo are not owned by respondent, they may be transferred to the owner if they are lawfully allowed to possess and do not provide access to respondent. A person that files a frivolous ERPO petition or provides materially false information will be subject to a minimum $1,000 fine, in addition to other applicable legal penalties. Within 2 days of issuance or dissolving of an ERPO, the court will notify: U.S. Department of Justice (DOJ), applicable state mental health agencies, and applicable state & local law enforcement agencies; and DOJ must update background check databases within 5 days. Finally, the Administrative Office of the U.S. Courts shall create model policy guidelines; and annual reports to Congress that present: number of ex parte orders filed/issued/denied, number of long-term orders filed/issued/denied, number of renewal petitions filed/issued/denied, and number of cases a court issued a penalty for false reporting or frivolous petitions.

Edited by Calvin Ward

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Sign in to follow this  

  • Recently Browsing   0 members

    No registered users viewing this page.

×
×
  • Create New...