[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2377 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 2377
To authorize the issuance of extreme risk protection orders.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 8, 2021
Mrs. McBath (for herself, Mr. Nadler, Mr. Thompson of California, Ms.
Jackson Lee, Ms. Bass, Mr. Johnson of Georgia, Mr. Cicilline, Mr. Lieu,
Mr. Raskin, Ms. Dean, Ms. Garcia of Texas, Mr. Neguse, Mrs. Beatty, Ms.
Clark of Massachusetts, Mr. Evans, Mrs. Carolyn B. Maloney of New York,
Ms. Moore of Wisconsin, Mr. Danny K. Davis of Illinois, Mr. DeSaulnier,
Ms. Wilson of Florida, Mr. Gallego, Mr. Schneider, Mrs. Trahan, Mrs.
Watson Coleman, Ms. Houlahan, Ms. Newman, Miss Rice of New York, Ms.
Adams, Mr. Ruppersberger, Mr. Pascrell, Mr. Cooper, Mr. Auchincloss,
Mr. Carson, Mr. Garcia of Illinois, Mr. Brown, Ms. Pressley, Mr. Meeks,
Mrs. Demings, Mr. Schrader, Mr. Crow, Mr. Beyer, Mr. Crist, and Ms.
Sherrill) introduced the following bill; which was 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 2021''.
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:
``Sec. 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 2021, 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.
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