Everytown Applauds as House Committee Passes ERPO Confiscation Bill

The Federal Extreme Risk Protection Order Act is heavily supported by Bloomberg’s Everytown for Gun Safety. (Photo: Everytown for Gun Safety)

The House Judiciary Committee this week approved the Federal Extreme Risk Protection Order Act of 2021.

Per the language of the bill, it would allow the federal government to execute an ex parte extreme risk protection order (ERPO) on persons accused of being a danger to themselves or others.

Ex parte means the respondent (or gun owner) is not given a heads-up about the petitioner’s accusations. Police and family members are empowered to be petitioners under the legislation.  

Guns are seized first by law enforcement, then a court date is set for the respondent to tell his or her side of the story before a federal judge.

The onus is on the accused to demonstrate at that hearing that he or she is not a danger to himself/herself or others.  The respondent is guilty and deprived of the right to keep and bear arms until proven innocent or until the ERPO expires.    

“So many shootings and suicides are slow-motion tragedies, and extreme risk protection orders are a common-sense way for law enforcement and loved ones to temporarily disarm someone who poses a danger to themselves or others,” said John Feinblatt, president of Everytown for Gun Safety in a press release.

“Rep. Lucy McBath knows the terrible pain of gun violence firsthand, and we are incredibly grateful for her leadership in Washington,” he added.

“Across the country, survivors, families, and advocates have demanded we do more to save American lives. These (extreme risk) laws keep firearms out of the hands of those that pose a danger to themselves or to others,” said Rep. Lucy McBath (D-GA), the bill’s sponsor. 

Exclusive: ‘Sending People Home To Die,’ The Truth About Red Flag Laws

“They have been passed by state legislatures controlled by Republicans and Democrats and they’ve been signed by governors of both parties,” she continued. “Every American deserves access to this life saving tool and that is what my bill provides.”

The notion that ERPOs “save lives” sounds great but the truth about their effectiveness is anything but clear.  

Rand Corp. economist Rosanna Smart examined various studies of red flag laws and found  “very inconclusive” evidence that they decrease overall firearm suicide or homicide rates.  

“I wouldn’t say it’s strongly one way or another,” Smart told KHN.org back in April.

What is clear about red flag laws is that they empower the government to confiscate firearms from individuals not convicted of any crime.  What’s also clear is that they do not provide for the seizure of other potentially dangerous items.  

Sharp objects, blunt instruments, and automobiles altogether, kill tens of thousands of people each year (more people than are killed with black rifles by at least an order of magnitude) but under a red flag law, a respondent’s access to these “weapons” remains unrestricted. 

So, even when they work as designed, truly dangerous people are not fully disarmed under an ERPO.  This, as GunsAmerica pointed out before, makes one wonder if these laws are more about grabbing guns than actually increasing public safety or neutralizing imminent threats to society.

ERPO laws also raise issues about one’s right to due process, as Mark Oliva told GunsAmerica via email.

“This proposed legislation is a dangerous attempt to deny law-abiding Americans their Due Process rights. Normally, to deny a fundamental civil liberty there must be a pre-deprivation hearing on notice and with an opportunity to participate, unless given the exigencies of the circumstances it is not feasible to hold a pre-deprivation hearing,” explained Oliva, the public affairs director for the National Shooting Sports Foundation, the firearms industry trade association.

“In that case, due process requires a prompt post-deprivation hearing, e.g. 24-72 hours. For example, when a person is arrested and in custody, he or she must be arraigned before a judge within 24-72 hours. It is unconstitutional and a violation of due process for one to be held in jail for a week or more before being arraigned before a judge,” he continued.

“This legislation would attempt to deprive an individual of their God-given rights for up to 180 days without having the opportunity to appear before a judge and would bar that individual from lawfully purchasing a firearm by having them listed as a prohibited individual under the FBI’s National Instant Criminal Background Check System (NICS). This is unacceptable and is why NSSF opposes this dangerous legislation,” Oliva concluded.

The bill will now head before the House floor for a vote before moving onto the Senate.

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About the author: S.H. Blannelberry is the News Editor of GunsAmerica.

{ 8 comments… add one }
  • Comanche October 29, 2021, 12:51 pm

    American politicians are worthless, lying pieces of human waste constantly passing ignorant, harmful legislation contrary to the “Constitution” and the “Bill of Rights” (stupid is as stupid does!!!%)

  • Ken October 29, 2021, 9:53 am

    I’ve been a criminal defense attorney for 42 years and have thousands of federal cases under my belt.

    First, it’s not an arraignment within 24 to 72 hours… it’s an “initial appearance”… but that is only in criminal proceedings. This would not be a criminal proceeding but rather a civil forfeiture proceeding with different and much longer time lines.

    Second, there is already a “state” proceeding by which someone fearing bodily injury to self or others can prevent someone from temporarily possessing firearms… it’s called “Order of Protection” and available in any county courthouse .

    I don’t think the proposed law would stand up to judicial scrutiny… the ends, the prevention of suicide or harm to others with firearms, are not reasonably related to the means… because the ends can be accomplished in many ways other than by using firearms.

    Logical conclusion of this proposed law: Lock up every teenager with a hoodie and a mask walking towards you.

    • S.H. Blannelberry October 29, 2021, 9:56 am

      Thx for the clarification and response!

  • SuperG October 29, 2021, 9:09 am

    It’s unconstitutional, so SCOTUS will strike it down. We used to have laws that forced the mentally ill into mandatory evaluations, but the police abused it, so it was taken away. I aw bring it back, but have every department maintain an on-call panel of three psychiatrists to make the determination, and indemnify them.

  • JT October 29, 2021, 9:07 am

    What enumerated power of the federal government does this fall under? I can’t find it in the Constitution. And don’t say “regulation of firearms” because this isn’t about firearms or interstate commerce, it’s about regulating people, the mental health or capacity of people, which is what these authoritarian power grabs are ultimately concerned with. The federal courts are not where such clearly local issues should be decided. Such issues belong to the states because they are not enumerated powers of the federal government, although we are so far removed from that standard that making such an argument seems hopeless. Don’t try to make the rest of the country look like New York or Kalifornia because if we wanted to live that way we’d move there, but we haven’t.

    Not only that but I’m not sure where in the Constitution the part about exceptions to Constitutional Due Process is located. Can someone help me out with that?

  • Bill Welton October 29, 2021, 9:01 am

    stupid law created by stupid people

  • Mark N. October 29, 2021, 1:16 am

    As it is, the federal courts are overburdened and overworked. I suspect that they really don’t want to have anything to do with these confiscation orders. In fact, I suspect federal cops don’t want to have anything to do with them either–the circumstances that call for an ERPO are not federal issues, they are local issues. When you call 911 you don’t get a fed, you get a local cop. Being a threat to one’s self or others is not a federal crime, and dealing with these issues does not call for a uniform federal rule.

    Does anybody ever think any more? I guess not when it comes to guns.

  • Ronnie Maeker October 28, 2021, 10:08 pm

    This would be “Guilty until proven innocent”…backwards thinking…

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