Extreme Risk Protection Order Expansion Act of 2023
This bill establishes grants to support the implementation of extreme risk protection order laws at the state and local levels, extends federal firearms restrictions to individuals who are subject to extreme risk protection orders, and expands related data collection. Extreme risk protection order laws, or red flag laws, generally allow certain individuals (e.g., law enforcement officers or family members) to petition a court for a temporary order that prohibits an at-risk individual from purchasing and possessing firearms.
Among its provisions, the bill
[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 247 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 247
To support State, Tribal, and local efforts to remove access to
firearms from individuals who are a danger to themselves or others
pursuant to court orders for this purpose.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 2, 2023
Mrs. Feinstein (for herself, Mr. Blumenthal, Mr. Kaine, Mr. Markey, Ms.
Warren, Mr. Brown, Mr. Padilla, Ms. Smith, Mr. Casey, Mr. Whitehouse,
Mr. Durbin, Mr. Cardin, Mr. Booker, Mr. Merkley, Mrs. Murray, Mr.
Wyden, and Ms. Klobuchar) introduced the following bill; which was read
twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To support State, Tribal, and local efforts to remove access to
firearms from individuals who are a danger to themselves or others
pursuant to court orders for this purpose.
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 ``Extreme Risk Protection Order
Expansion Act of 2023''.
SEC. 2. EXTREME RISK PROTECTION ORDER GRANT PROGRAM.
(a) Definitions.--In this section:
(1) Eligible entity.--The term ``eligible entity'' means--
(A) a State or Indian Tribe--
(i) that enacts legislation described in
subsection (c);
(ii) with respect to which the Attorney
General determines that the legislation
described in clause (i) complies with the
requirements under subsection (c)(1); and
(iii) that certifies to the Attorney
General that the State or Indian Tribe will,
with respect to a grant received under
subsection (b)--
(I) use the grant for the purposes
described in subsection (b)(2); and
(II) allocate not less than 25
percent and not more than 70 percent of
the amount received under the grant for
the development and dissemination of
training for law enforcement officers
in accordance with subsection (b)(4);
or
(B) a unit of local government or other public or
private entity that--
(i) is located in a State or in the
territory under the jurisdiction of an Indian
Tribe that meets the requirements described in
clauses (i) and (ii) of subparagraph (A); and
(ii) certifies to the Attorney General that
the unit of local government or entity will,
with respect to a grant received under
subsection (b)--
(I) use the grant for the purposes
described in subsection (b)(2); and
(II) allocate not less than 25
percent and not more than 70 percent of
the amount received under the grant for
the development and dissemination of
training for law enforcement officers
in accordance with subsection (b)(4).
(2) Extreme risk protection order.--The term ``extreme risk
protection order'' means a written order or warrant, issued by
a State or Tribal court or signed by a magistrate (or other
comparable judicial officer), the primary purpose of which is
to reduce the risk of firearm-related death or injury by doing
1 or more of the following:
(A) Prohibiting a named individual from having
under the custody or control of the individual, owning,
purchasing, possessing, or receiving a firearm.
(B) Having a firearm removed or requiring the
surrender of firearms from a named individual.
(3) Firearm.--The term ``firearm'' has the meaning given
the term in section 921 of title 18, United States Code.
(4) Indian tribe.--The term ``Indian Tribe'' has the
meaning given the term ``Indian tribe'' in section 1709 of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (34 U.S.C. 10389).
(5) Law enforcement officer.--The term ``law enforcement
officer'' means a public servant authorized by Federal, State,
local, or Tribal law or by an agency of the Federal Government
or of a State, local, or Tribal government to--
(A) engage in or supervise the prevention,
detection, investigation, or prosecution of an offense;
or
(B) supervise sentenced criminal offenders.
(6) Petitioner.--The term ``petitioner'' means an
individual authorized under State or Tribal law to petition for
an extreme risk protection order.
(7) Respondent.--The term ``respondent'' means an
individual named in the petition for an extreme risk protection
order or subject to an extreme risk protection order.
(8) State.--The term ``State'' means--
(A) a State;
(B) the District of Columbia;
(C) the Commonwealth of Puerto Rico; and
(D) any other territory or possession of the United
States.
(9) Unit of local government.--The term ``unit of local
government'' has the meaning given the term in section 901 of
title I of the Omnibus Crime Control and Safe Streets Act of
1968 (34 U.S.C. 10251).
(b) Grant Program Established.--
(1) In general.--The Attorney General shall establish a
program under which, from amounts made available to carry out
this section, the Attorney General may make grants to eligible
entities to assist in carrying out the provisions of the
legislation described in subsection (c).
(2) Use of funds.--Funds awarded under this subsection may
be used by an applicant to--
(A) enhance the capacity of law enforcement
agencies and the courts of a State, unit of local
government, or Indian Tribe by providing personnel,
training, technical assistance, data collection, and
other resources to carry out enacted legislation
described in subsection (c);
(B) train judges, court personnel, health care and
legal professionals, and law enforcement officers to
more accurately identify individuals whose access to
firearms poses a danger of causing harm to themselves
or others by increasing the risk of firearms suicide or
interpersonal violence;
(C) develop and implement law enforcement and court
protocols, forms, and orders so that law enforcement
agencies and the courts may carry out the provisions of
the enacted legislation described in subsection (c) in
a safe, equitable, and effective manner, including
through the removal and storage of firearms pursuant to
extreme risk protection orders under the enacted
legislation; and
(D) raise public awareness and understanding of the
enacted legislation described in subsection (c),
including through subgrants to community-based
organizations for the training of community members, so
that extreme risk protection orders may be issued in
appropriate situations to reduce the risk of firearms-
related death and injury.
(3) Application.--An eligible entity desiring a grant under
this subsection shall submit to the Attorney General an
application at such time, in such manner, and containing or
accompanied by such information as the Attorney General may
reasonably require.
(4) Training.--
(A) In general.--A recipient of a grant under this
subsection shall provide training to law enforcement
officers, including officers of relevant Federal,
State, local, and Tribal law enforcement agencies, in
the safe, impartial, effective, and equitable use and
administration of extreme risk protection orders,
including training to address--
(i) bias based on race and racism,
ethnicity, gender, sexual orientation, gender
identity, religion, language proficiency,
mental health condition, disability, and
classism in the use and administration of
extreme risk protection orders;
(ii) the appropriate use of extreme risk
protection orders in cases of domestic
violence, including the applicability of other
policies and protocols to address domestic
violence in situations that may also involve
extreme risk protection orders and the
necessity of safety planning with the victim
before a law enforcement officer petitions for
and executes an extreme risk protection order,
if applicable;
(iii) interacting with persons with a
mental illness or emotional distress, including
de-escalation and crisis intervention; and
(iv) best practices for referring persons
subject to extreme risk protection orders and
associated victims of violence to social
service providers that may be available in the
jurisdiction and appropriate for those
individuals, including health care, mental
health, substance abuse, and legal services,
employment and vocational services, housing
assistance, case management, and veterans and
disability benefits.
(B) Consultation with experts.--A recipient of a
grant under this subsection, in developing law
enforcement training required under subparagraph (A),
shall seek advice from domestic violence service
providers (including culturally specific (as defined in
section 40002 of the Violence Against Women Act of 1994
(34 U.S.C. 12291)) organizations), social service
providers, suicide prevention advocates, violence
intervention specialists, law enforcement agencies,
mental health disability experts, and other community
groups working to reduce suicides and violence,
including domestic violence, within the State or the
territory under the jurisdiction of the Indian Tribe,
as applicable, that enacted the legislation described
in subsection (c) that enabled the grant recipient to
be an eligible entity.
(5) Authorization of appropriations.--There are authorized
to be appropriated such sums as are necessary to carry out this
subsection.
(c) Eligibility for Extreme Risk Protection Order Grant Program.--
(1) Requirements.--Legislation described in this subsection
is legislation that establishes requirements that are
substantially similar to the following:
(A) Petition for extreme risk protection order.--A
petitioner, including a law enforcement officer, may
submit a petition to a State or Tribal court, on a form
designed by the court or a State or Tribal agency,
that--
(i) describes the facts and circumstances
justifying that an extreme risk protection
order be issued against the named individual;
and
(ii) is signed by the applicant, under
oath.
(B) Notice and due process.--The individual named
in a petition for an extreme risk protection order as
described in subparagraph (A) shall be given written
notice of the petition and an opportunity to be heard
on the matter in accordance with this paragraph.
(C) Issuance of extreme risk protection orders.--
(i) Hearing.--
(I) In general.--Upon receipt of a
petition described in subparagraph (A)
or request of an individual named in
such a petition, the court shall order
a hearing to be held within a
reasonable time, and not later than 30
days after the date of the petition or
request.
(II) Determination.--If the court
finds at the hearing ordered under
subclause (I), by a preponderance of
the evidence or according to a higher
evidentiary standard established by the
State or Indian Tribe, that the
respondent poses a danger of causing
harm to self or others by having access
to a firearm, the court may issue an
extreme risk protection order.
(ii) Duration of extreme risk protection
order.--An extreme risk protection order shall
be in effect--
(I) until an order terminating or
superseding the extreme risk protection
order is issued; or
(II) for a set period of time.
(D) Ex parte extreme risk protection orders.--
(i) In general.--Upon receipt of a petition
described in subparagraph (A), the court may
issue an ex parte extreme risk protection
order, if--
(I) the petition for an extreme
risk protection order alleges that the
respondent poses a danger of causing
harm to self or others by having access
to a firearm; and
(II) the court finds there is
probable cause to believe, or makes a
finding according to a higher
evidentiary standard established by the
State or Indian Tribe, that the
respondent poses a danger of causing
harm to self or others by having access
to a firearm.
(ii) Duration of ex parte extreme risk
protection order.--An ex parte extreme risk
protection order shall remain in effect only
until the hearing required under subparagraph
(C)(i).
(E) Storage of removed firearms.--
(i) Availability for return.--All firearms
removed or surrendered pursuant to an extreme
risk protection order shall only be available
for return to the named individual when the
individual has regained eligibility under
Federal and State law and, where applicable,
Tribal law to possess firearms.
(ii) Consent required for disposal or
destruction.--Firearms owned by a named
individual may not be disposed of or destroyed
during the period of the extreme risk
protection order without the consent of the
named individual.
(F) Notification.--
(i) In general.--
(I) Requirement.--A State or Tribal
court that issues an extreme risk
protection order shall notify the
Attorney General or the comparable
State or Tribal agency, as applicable,
of the order as soon as practicable or
within a designated period of time.
(II) Form and manner.--A State or
Tribal court shall submit a
notification under subclause (I) in an
electronic format, in a manner
prescribed by the Attorney General or
the comparable State or Tribal agency.
(ii) Update of databases.--As soon as
practicable or within the time period
designated by State or Tribal law after
receiving a notification under clause (i), the
Attorney General or the comparable State or
Tribal agency shall ensure that the extreme
risk protection order is reflected in the
National Instant Criminal Background Check
System.
(2) Additional provisions.--Legislation described in this
subsection may--
(A) provide procedures for the termination of an
extreme risk protection order;
(B) provide procedures for the renewal of an
extreme risk protection order;
(C) establish burdens and standards of proof for
issuance of orders described in paragraph (1) that are
substantially similar to or higher than the burdens and
standards of proof set forth in that paragraph;
(D) limit the individuals who may submit a petition
described in paragraph (1), provided that, at a
minimum, 1 or more law enforcement officers are
authorized to do so; and
(E) include any other authorizations or
requirements that the State or Tribal authorities
determine appropriate.
(3) Annual report.--Not later than 1 year after the date on
which an eligible entity receives a grant under subsection (b),
and annually thereafter for the duration of the grant period,
the entity shall submit to the Attorney General a report that
includes, with respect to the preceding year--
(A) the number of petitions for ex parte extreme
risk protection orders filed, as well as the number of
such orders issued and the number denied, disaggregated
by--
(i) the jurisdiction;
(ii) the individual authorized under State
or Tribal law to petition for an extreme risk
protection order, including the relationship of
the individual to the respondent; and
(iii) the alleged danger posed by the
respondent, including whether the danger
involved a risk of suicide, unintentional
injury, domestic violence, or other
interpersonal violence;
(B) the number of petitions for extreme risk
protection orders filed, as well as the number of such
orders issued and the number denied, disaggregated by--
(i) the jurisdiction;
(ii) the individual authorized under State
or Tribal law to petition for an extreme risk
protection order, including the relationship of
the individual to the respondent; and
(iii) the alleged danger posed by the
respondent, including whether the danger
involved a risk of suicide, unintentional
injury, domestic violence, or other
interpersonal violence;
(C) the number of petitions for renewals of extreme
risk protection orders filed, as well as the number of
such orders issued and the number denied;
(D) the number of cases in which a court imposed a
penalty for false reporting or frivolous petitions;
(E) demographic data of petitioners, including
race, ethnicity, national origin, sex, gender, age,
disability, and English language proficiency, if
available;
(F) demographic data of respondents, including
race, ethnicity, national origin, sex, gender, age,
disability, and English language proficiency, if
available; and
(G) the number of firearms removed, if available.
SEC. 3. FEDERAL FIREARMS PROHIBITION.
Section 922 of title 18, United States Code, is amended--
(1) in subsection (d)--
(A) by redesignating paragraphs (10) and (11) as
paragraphs (11) and (12), respectively;
(B) by inserting after paragraph (9) the following:
``(10) is subject to a court order that--
``(A) was issued after a hearing of which such
person received actual notice, and at which such person
had an opportunity to participate;
``(B) prevents such person from possessing or
receiving firearms; and
``(C) includes a finding that such person poses a
danger of harm to self or others.''; and
(C) in paragraph (12), as so redesignated, by
striking ``(10)'' and inserting ``(11)''; and
(2) in subsection (g)--
(A) in paragraph (8)(C)(ii), 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) is subject to a court order that--
``(A) was issued after a hearing of which such
person received actual notice, and at which such person
had an opportunity to participate;
``(B) prevents such person from possessing or
receiving firearms; and
``(C) includes a finding that such person poses a
danger of harm to self or others,''.
SEC. 4. IDENTIFICATION RECORDS.
Section 534 of title 28, United States Code, is amended--
(1) in subsection (a)--
(A) by redesignating paragraphs (4) and (5) as
paragraphs (5) and (6), respectively; and
(B) by inserting after paragraph (3) the following:
``(4) acquire, collect, classify, and preserve records from
Federal, Tribal, and State courts and other agencies
identifying individuals subject to extreme risk protection
orders, as defined in section 2(a) of the Extreme Risk
Protection Order Expansion Act of 2023;'';
(2) in subsection (b)--
(A) by striking ``(a)(5)'' and inserting
``(a)(6)''; and
(B) by striking ``(a)(4)'' and inserting
``(a)(5)''; and
(3) by adding at the end the following:
``(g) Extreme Risk Protection Orders in National Crime Information
Databases.--A Federal, Tribal, or State criminal justice agency or
criminal or civil court may--
``(1) include extreme risk protection orders, as defined in
section 2(a) of the Extreme Risk Protection Order Expansion Act
of 2023, in national crime information databases, as that term
is defined in subsection (f)(3) of this section; and
``(2) have access to information regarding extreme risk
protection orders through the national crime information
databases.''.
SEC. 5. CONFORMING AMENDMENT.
Section 3(1) of the NICS Improvement Amendments Act of 2007 (34
U.S.C. 40903(1)) is amended by striking ``section 922(g)(8)'' and
inserting ``paragraph (8) or (10) of section 922(g)''.
SEC. 6. FULL FAITH AND CREDIT.
(a) Definitions.--In this section, the terms ``extreme risk
protection order'', ``Indian Tribe'', and ``State'' have the meanings
given those terms in section 2(a).
(b) Full Faith and Credit Required.--Any extreme risk protection
order issued under a State or Tribal law enacted in accordance with
this Act shall be accorded the same full faith and credit by the court
of another State or Indian Tribe (referred to in this subsection as the
``enforcing State or Indian Tribe'') and enforced by the court and law
enforcement personnel of the other State or Tribal government as if it
were the order of the enforcing State or Indian Tribe.
(c) Applicability to Extreme Risk Protection Orders.--
(1) In general.--Subsection (b) shall apply to an extreme
risk protection order issued by a State or Tribal court if--
(A) the court has jurisdiction over the parties and
matter under the law of the State or Indian Tribe; and
(B) reasonable notice and opportunity to be heard
is given to the person against whom the order is sought
sufficient to protect that person's right to due
process.
(2) Ex parte extreme risk protection orders.--For purposes
of paragraph (1)(B), in the case of an ex parte extreme risk
protection order, notice and opportunity to be heard shall be
provided within the time required by State or Tribal law, and
in any event within a reasonable time after the order is
issued, sufficient to protect the due process rights of the
respondent.
(d) Tribal Court Jurisdiction.--For purposes of this section, a
court of an Indian Tribe shall have full civil jurisdiction to issue
and enforce an extreme risk protection order involving any person,
including the authority to enforce any order through civil contempt
proceedings, to exclude violators from Indian land, and to use other
appropriate mechanisms, in matters arising anywhere in the Indian
country (as defined in section 1151 of title 18, United States Code) of
the Indian Tribe or otherwise within the authority of the Indian Tribe.
SEC. 7. SEVERABILITY.
If any provision of this Act or amendment made by this Act, or the
application of such provision or amendment to any person or
circumstance, is held to be invalid, the remaining provisions of this
Act and amendments made by this Act, or the application of such
provision or amendment to other persons or circumstances, shall not be
affected.
SEC. 8. EFFECTIVE DATE.
This Act and the amendments made by this Act shall take effect on
the date that is 180 days after the date of enactment of this Act.
<all>
Introduced in Senate
Read twice and referred to the Committee on the Judiciary. (Sponsor introductory remarks on measure: CR S235)
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