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.
“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.