[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 292 Introduced in Senate (IS)]
<DOC>
117th CONGRESS
1st Session
S. 292
To provide family members of an individual who they fear is a danger to
himself, herself, or others, or law enforcement, with new tools to
prevent gun violence.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 8, 2021
Mr. Rubio (for himself, Mr. Reed, Mr. King, and Mr. Scott of Florida)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide family members of an individual who they fear is a danger to
himself, herself, or others, or law enforcement, with new tools to
prevent gun violence.
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 and
Violence Prevention Act of 2021''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) each State and Indian Tribe should enact extreme risk
protection order legislation described in part OO of title I of
the Omnibus Crime Control and Safe Streets Act of 1968, as
added by section 3; and
(2) such extreme risk protection order legislation is an
important tool in the efforts of States and Indian Tribes to
ensure that firearms and ammunition are kept out of the hands
of individuals whom a court has determined to be a significant
danger to themselves or others.
SEC. 3. EXTREME RISK PROTECTION ORDER GRANT PROGRAM.
(a) In General.--Title I of the Omnibus Crime Control and Safe
Streets Act of 1968 (34 U.S.C. 10101 et seq.) is amended by adding at
the end the following:
``PART OO--EXTREME RISK PROTECTION ORDER GRANT PROGRAM
``SEC. 3051. DEFINITIONS.
``In this title--
``(1) the terms `ammunition' and `firearm' have the
meanings given those terms in section 921(a) of title 18,
United States Code;
``(2) the term `extreme risk protection order' means a
written order, issued by a State or Tribal court or signed by a
magistrate that, for a period not to exceed 12 months--
``(A) prohibits the individual named in the order
from having under the custody or control of the
individual, purchasing, possessing, or receiving any
firearms; and
``(B) requires a firearm be removed;
``(3) the term `family or household member' means, with
respect to a respondent, any--
``(A) individual related by blood, marriage, or
adoption to the respondent;
``(B) dating partner (as defined in section 2266 of
title 18, United States Code) 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) spouse or intimate partner (as defined in
section 2266 of title 18, United States Code) of the
respondent;
``(F) individual who has a biological or 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;
``(4) the term `Indian Tribe' has the meaning given the
term in section 4 of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 5304);
``(5) the term `petitioner' means the law enforcement
officer, or family or household member of an individual, who
submits a petition for an extreme risk protection order under
section 3052(b)(1);
``(6) the term `qualifying State or Tribal law' means a law
of a State or Indian Tribe that the Attorney General has
determined to be in compliance with the minimum requirements
described in section 3052;
``(7) the term `respondent' means an individual who is
named in a petition for an extreme risk protection order under
section 3052(b)(1);
``(8) 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; and
``(9) the term `temporary ex parte extreme risk protection
order' means a written order, issued by a State or Tribal court
or signed by a magistrate prohibiting a named individual from
possessing, purchasing, receiving, or transporting a firearm
during the period beginning on the date on which the order is
issued and ending on the date on which the hearing for the
extreme risk protection order is held.
``SEC. 3052. EXTREME RISK PROTECTION ORDER LEGISLATION.
``(a) Enactment of Extreme Risk Protection Order Legislation.--In
order to receive a grant under section 3053, a State or Indian Tribe
shall have in effect a qualifying State or Tribal law.
``(b) Minimum Requirements for Extreme Risk Protection Orders.--A
qualifying State or Tribal law shall impose the following minimum
requirements for the issuance of an extreme risk protection order:
``(1) Petition for extreme risk protection order.--
``(A) In general.--A law enforcement officer, or
family or household member of an individual, may submit
a petition to a State or Tribal court, on a form
designed by the courts administrator or similar office
of the State or Indian Tribe, that--
``(i) describes the facts and circumstances
necessitating that an extreme risk protection
order be issued against the respondent because
the respondent poses a significant danger of
causing personal injury to himself or herself
or others by--
``(I) having a firearm or
ammunition in his or her custody or
control; or
``(II) purchasing, possessing, or
receiving a firearm or ammunition;
``(ii) is accompanied by a sworn affidavit,
signed by the petitioner, stating the specific
facts that give rise to reasonable fear of
significant dangerous acts by the respondent;
``(iii) identifies the quantities, types,
and locations of all firearms and ammunition
the petitioner believes to be in the current
ownership, possession, custody, or control of
the respondent; and
``(iv) identifies whether there is a known
extreme risk protection order already in effect
against the respondent.
``(B) Good faith notice.--A petitioner who submits
a petition under subparagraph (A) shall be required to
make a good faith effort to provide notice to other
family or household members of the respondent, or to
any other known third party, who may be at risk of
violence because of the submission of such petition.
``(2) Issuance of extreme risk protection orders.--
``(A) Hearing.--
``(i) In general.--Upon receipt of a
petition under paragraph (1), the court shall--
``(I) order a hearing to be held
not later than 14 days after the date
of such order; and
``(II) issue a notice of the
hearing ordered under subclause (I) to
the respondent.
``(ii) Telephone hearing.--A court may
conduct the hearing required under clause (i)
by telephone, pursuant to local court rules.
``(iii) Determination.--If the court finds
by clear and convincing evidence that the
respondent poses a significant danger of
causing personal injury to himself or herself
or others by having in his or her custody or
control, or by purchasing, possessing, or
receiving, a firearm or ammunition, the court
shall issue an extreme risk protection order
for a period the court determines is
appropriate, which may not exceed 12 months.
``(B) Consideration of evidence.--
``(i) In general.--In determining whether
to issue an extreme risk protection order, the
court--
``(I) may consider relevant
evidence, such as--
``(aa) a recent threat or
act of violence by the
respondent against himself or
herself or others;
``(bb) a threat or act of
violence by the respondent
against himself or herself or
others in the past 12 months;
``(cc) evidence that the
respondent has a serious mental
illness;
``(dd) an extreme risk
protection order previously
issued to the respondent or a
violation by the respondent of
a previously issued extreme
risk protection order;
``(ee) whether the
respondent has been convicted
of a crime of domestic violence
or other violence;
``(ff) whether the
respondent has used or
threatened to use weapons
against himself or herself or
others;
``(gg) the unlawful use of
a firearm by the respondent;
``(hh) the recurring use or
threat of use of physical force
by the respondent against
another person or the
respondent stalking another
person;
``(ii) corroborated
evidence of the abuse of
controlled substances or
alcohol by the respondent;
``(jj) relevant information
from family or household
members concerning the
respondent; and
``(kk) witness testimony
taken while the witness is
under oath relating to the
matter before the court; and
``(II) shall consider whether a
mental health evaluation or chemical
dependency evaluation is appropriate.
``(ii) Presentation of evidence.--Anyone
who offers evidence or recommendations relating
to the petition submitted under paragraph (1)
shall--
``(I) present the evidence or
recommendations in writing to the court
and submit a copy of such evidence or
recommendations to each party or the
attorney for a party; or
``(II) present the evidence under
oath at a hearing at which all parties
are present.
``(iii) Mental health and chemical
dependency evaluations.--If a court determines
that a mental health evaluation or chemical
dependency evaluation is appropriate under
clause (i)(II), the court may order the
appropriate evaluation.
``(C) Contents of order.--If a court issues an
extreme risk protection order, the order shall
contain--
``(i) a statement on the grounds supporting
the issuance of the order;
``(ii) the date on which the order was
issued;
``(iii) the date on which the order
expires;
``(iv) whether a mental health evaluation
or chemical dependency evaluation of the
respondent is required;
``(v) the address of the court in which a
responsive pleading may be filed;
``(vi) a description of the requirements
for surrender of all firearms and ammunition
owned by the respondent; and
``(vii) a clear statement of instruction on
surrendering to the appropriate local law
enforcement agency all firearms and ammunition
owned by the respondent or in the custody,
control, or possession of the respondent and
any license to carry a concealed weapon or
firearm issued pursuant to the laws of the
State or Indian Tribe, which shall include--
``(I) a clear statement that the
respondent may not, during the period
for which the order is in effect--
``(aa) have in the control
or custody of the respondent a
firearm or ammunition; or
``(bb) purchase, possess,
or receive, or attempt to
purchase, possess, or receive,
a firearm or ammunition; and
``(II) a clear description of the
right of the respondent to request not
less than 1 hearing to vacate the order
and, if the order is renewed, to
request a hearing to vacate such
renewal.
``(D) Denial of extreme risk protection order.--If
a court declines to issue an extreme risk protection
order for which the court receives a petition under
paragraph (1), the court shall issue a written
statement describing the specific reasons for declining
to issue such order.
``(3) Temporary ex parte extreme risk protection order.--
``(A) In general.--Upon receipt of a petition under
paragraph (1), the court may issue a temporary ex parte
extreme risk protection order before conducting the
hearing required under paragraph (2), if--
``(i) a request for a temporary ex parte
extreme risk protection order is included in
the petition and includes detailed allegations
based on personal knowledge that the respondent
poses a significant danger of causing personal
injury to himself or herself or others in the
near future by having in his or her custody or
control, or by purchasing, possessing, or
receiving, a firearm or ammunition; and
``(ii) the court finds there is probable
cause to believe that the respondent poses a
significant danger of causing personal injury
to himself or herself or others in the near
future by having in his or her custody or
control, or by purchasing, possessing, or
receiving, a firearm or ammunition.
``(B) Requirements.--In determining whether to
issue a temporary ex parte extreme risk protection
order, the court shall--
``(i) conduct a hearing, either in person
or by telephone, pursuant to local court rules,
on the date on which the petition is filed or
on the business day immediately following such
date; and
``(ii) consider all relevant evidence, such
as--
``(I) a recent threat or act of
violence by the respondent against
himself or herself or others;
``(II) a threat or act of violence
by the respondent against himself or
herself or others in the past 12
months;
``(III) evidence that the
respondent has a serious mental
illness;
``(IV) an extreme risk protection
order previously issued to the
respondent or a violation by the
respondent of a previously issued
extreme risk protection order;
``(V) whether the respondent has
been convicted of a crime of domestic
violence or other violence;
``(VI) whether the respondent has
used or threatened to use weapons
against himself or herself or others;
``(VII) the unlawful use of a
firearm by the respondent;
``(VIII) the recurring use or
threat of use of physical force by the
respondent against another person or
the respondent stalking another person;
``(IX) corroborated evidence of the
abuse of controlled substances or
alcohol by the respondent;
``(X) relevant information from
family or household members concerning
the respondent; and
``(XI) witness testimony taken
while the witness is under oath
relating to the matter before the
court.
``(C) Notice.--If a court issues a temporary ex
parte extreme risk protection order, the court shall
provide notice of the temporary ex parte firearm
violence order to the respondent concurrently with the
notice of hearing required under paragraph
(2)(A)(i)(II).
``(D) Contents of order.--If a court issues a
temporary ex parte extreme risk protection order, the
order shall include, at a minimum--
``(i) a statement for the grounds of the
order;
``(ii) the date on which the order was
issued;
``(iii) the date and time of the hearing on
the extreme risk protection order;
``(iv) the address of the court in which a
responsive pleading may be filed;
``(v) a clear description of the
requirements and process for surrender of
firearms and ammunition; and
``(vi) a clear statement outlining the
prohibitions and rights of the respondent under
the order, including--
``(I) a clear statement that the
respondent may consult an attorney; and
``(II) a clear statement that
failure of the respondent to appear at
the hearing described in clause (iii)
may result in an extreme risk
protection order being issued for a
period not to exceed 12 months.
``(4) Termination and extension of extreme risk protection
orders.--
``(A) Hearing to vacate order.--
``(i) In general.--A respondent may request
not less than 1 hearing to vacate an extreme
risk protection order issued against the
respondent.
``(ii) Hearing.--Not later than 30 days
after the date on which a petitioner is
notified of the request of the respondent to
vacate an extreme risk protection order, the
court shall conduct a hearing on the request.
``(iii) Determination.--
``(I) In general.--The court shall
vacate an extreme risk protection order
if the respondent demonstrates by clear
and convincing evidence that the
respondent does not pose a significant
danger of causing personal injury to
himself or herself or others by having
in his or her custody or control, or by
purchasing, possessing, or receiving, a
firearm or ammunition.
``(II) Considerations.--In making a
determination under this subparagraph,
the court may consider relevant
evidence, such as--
``(aa) a recent threat or
act of violence by the
respondent against himself or
herself or others;
``(bb) a threat or act of
violence by the respondent
against himself or herself or
others in the past 12 months;
``(cc) evidence that the
respondent has a serious mental
illness;
``(dd) an extreme risk
protection order previously
issued to the respondent or a
violation by the respondent of
a previously issued extreme
risk protection order;
``(ee) whether the
respondent has been convicted
of a crime of domestic violence
or other violence;
``(ff) whether the
respondent has used or
threatened to use weapons
against himself or herself or
others;
``(gg) the unlawful use of
a firearm by the respondent;
``(hh) the recurring use or
threat of use of physical force
by the respondent against
another person or the
respondent stalking another
person;
``(ii) corroborated
evidence of the abuse of
controlled substances or
alcohol by the respondent;
``(jj) relevant information
from family or household
members concerning the
respondent; and
``(kk) witness testimony
taken while the witness is
under oath relating to the
matter before the court.
``(iv) Notice to law enforcement
officials.--If a court vacates an extreme risk
protection order under this subparagraph, the
court shall provide notice to the relevant law
enforcement agency of such determination and
the law enforcement agency shall promptly
return any surrendered firearms and ammunition
to the respondent.
``(B) Extension of order.--
``(i) Notice to petitioner.--Not later than
30 days before the date on which an extreme
risk protection order is set to expire, the
court shall provide notice to the petitioner of
such expiration date.
``(ii) Request for extension.--During the
30-day period preceding the expiration date
described in clause (i), a petitioner may
submit a request to extend the extreme risk
protection order.
``(iii) Hearing.--Upon receipt of a request
for an extension under clause (ii), the court
shall schedule, provide notice for, and conduct
a hearing in accordance with the requirements
described in paragraph (2)(A).
``(iv) Determination.--If a court finds
that there is clear and convincing evidence
that the respondent poses a significant danger
of causing personal injury to himself or
herself or others by having in his or her
custody or control, or by purchasing,
possessing, or receiving, a firearm or
ammunition, the court shall extend the extreme
risk protection order for a period the court
determines is appropriate, which may not exceed
12 months.
``(5) Authority to submit petition.--For purposes of this
subsection, a qualifying State or Tribal law shall be
considered to have met the minimum requirement described in
paragraph (1)(A) if, under the qualifying State or Tribal law,
only a law enforcement officer is authorized to submit a
petition for an extreme risk protection order.
``(c) Minimum Requirements for Surrender of Firearms and
Ammunition.--A qualifying State or Tribal law shall have in effect the
following minimum requirements for the surrender of firearms and
ammunition:
``(1) Surrender of firearms and ammunition.--Upon issuance
of a temporary ex parte extreme risk protection order or
extreme risk protection order as described in subsection (b), a
respondent shall surrender all firearms and ammunition in the
custody or control of the respondent to the appropriate local
law enforcement agency, as determined by the State or Indian
Tribe.
``(2) Receipt for surrendered firearms and ammunition.--The
local law enforcement agency that takes custody of any firearms
or ammunition surrendered under paragraph (1) shall--
``(A) issue to the respondent a receipt identifying
all firearms and ammunition that have been surrendered;
and
``(B) not later than 72 hours after taking custody
of the firearms and ammunition, file a copy of such
receipt with the court.
``(3) Issuance of warrant.--If a court receives sworn
testimony from an individual alleging that not all firearms
required to be surrendered by a respondent under a temporary ex
parte extreme risk protection order or extreme risk protection
order have been surrendered, the court shall issue a warrant
for the seizure of the remaining firearms or ammunition if the
court determines that probable cause exists to believe the
respondent has failed to surrender any firearms or ammunition.
``(d) Other Requirements.--A qualifying State or Tribal law shall--
``(1) make clear accommodations for the case in which an
individual other than the respondent claims title to any
firearms or ammunition required to be surrendered under a
temporary ex parte extreme risk protection order or extreme
risk protection order;
``(2) have clear instruction about the immediate return of
firearms to a respondent upon the expiration of a temporary ex
parte extreme risk protection order or extreme risk protection
order;
``(3) provide clear instructions for the reporting of a
temporary ex parte extreme risk protection order or extreme
risk protection order to the appropriate Federal, State, and
Tribal databases;
``(4) establish a felony criminal offense for knowingly
making a false statement under oath in a hearing relating to a
temporary ex parte extreme risk protection order or extreme
risk protection order regarding any material matter;
``(5) establish a felony criminal offense for an individual
to receive or possess a firearm or ammunition with knowledge
that the individual is subject to a temporary ex parte extreme
risk protection order or extreme risk protection order;
``(6) a clear statement that use of the authority in the
qualifying State or Tribal law does not affect the ability of a
law enforcement officer to use any other lawful authority to
effect the surrender of a firearm, ammunition, or concealed
carry permit; and
``(7) clear direction for State or Tribal courts to
implement the procedures described in this section.
``(e) Additional Authority.--A qualifying State or Tribal law may
provide for--
``(1) notice and hearing requirements in addition to the
requirements described in this section;
``(2) a timely background check under Federal and State law
before a law enforcement agency returns any surrendered
firearms and ammunition to a respondent after the expiration of
a temporary ex parte extreme risk protection order or extreme
risk protection order;
``(3) a requirement that family or household members of a
respondent be notified before a law enforcement agency returns
any surrendered firearms and ammunition to the respondent; and
``(4) an option for a respondent to elect to transfer all
firearms and ammunition owned by the respondent that have been
ordered to be surrendered or seized to another individual who
is willing to receive them, if the individual--
``(A) is eligible at the time of transfer to own or
possess such firearms and ammunition under Federal and
State law, and a background check is conducted;
``(B) attests that the individual will store the
firearms or ammunition in a manner so that the
respondent does not have access; and
``(C) attests that the individual will not transfer
the firearms or ammunition back to the respondent until
after the date on which the order expires or is
vacated.
``(f) Limitations.--A qualifying State or Tribal law may not--
``(1) at any point require or allow for the surrender of
any firearm or ammunition without the issuance of a court
order;
``(2) provide for the issuance of a temporary ex parte
extreme risk protection order or extreme risk protection order
without sworn affidavits or testimony;
``(3) establish criminal penalties for false allegations or
false testimony in connection with a temporary ex parte extreme
risk protection order or extreme risk protection order that are
less than a felony under State or Tribal law;
``(4) allow for witness testimony in connection with a
temporary ex parte extreme risk protection order or extreme
risk protection order that is not sworn or under oath;
``(5) prohibit or otherwise discourage the respondent from
consulting or retaining an attorney;
``(6) allow a law enforcement officer or other custodian of
a firearm or any ammunition surrendered pursuant to a court
order under the qualifying State or Tribal law to destroy,
disable, sell, assert ownership over, dispose of, use or
otherwise employ, harm, or dispense with the firearm or
ammunition; or
``(7) allow for the ordering of a sequential series of ex
parte extreme risk protection orders against a respondent based
on the same evidence used to order the initial ex parte extreme
risk protection order against the respondent.
``(g) Rule of Construction.--Nothing in subsection (f)(1) shall be
construed to limit or have an effect on any Federal, State, or Tribal
law other than a qualifying State or Tribal law.
``SEC. 3053. VIOLENCE PREVENTION GRANT PROGRAM.
``(a) In General.--The Assistant Attorney General shall make grants
to an eligible State or Indian Tribe to assist the State or Indian
Tribe in carrying out the provisions of a qualifying State or Tribal
law.
``(b) Eligible State or Indian Tribe.--
``(1) In general.--Except as provided in paragraph (2), a
State or Indian Tribe shall be eligible to receive grants under
this section on and after the date on which the Attorney
General determines that a law enacted by the State or Indian
Tribe is a qualifying State or Tribal law.
``(2) First year eligibility exception.--
``(A) In general.--A covered State or Indian Tribe
shall be eligible to receive a grant under this section
during the 1-year period beginning on the date of
enactment of this part.
``(B) Covered state or indian tribe.--In this
paragraph, the term `covered State or Indian Tribe'
means a State or Indian Tribe that, before the date of
enactment of this part, enacted legislation that--
``(i) authorizes the issuance of a gun
violence restraining order or extreme risk
protection order similar to a violence
prevention order described in this part; and
``(ii) requires a standard of proof for the
issuance of a gun violence restraining order or
extreme risk protection order described in
clause (i) that is substantially similar to the
standard of proof required under this part.
``(c) Use of Funds.--Funds awarded under this section may be used
by a State or Indian Tribe to assist law enforcement agencies or the
courts of the State or Indian Tribe in carrying out the provisions of
the qualifying State or Tribal law.
``(d) Application.--An eligible State or Indian Tribe desiring a
grant under this section shall submit to the Assistant Attorney General
an application at such time, in such manner, and containing or
accompanied by such information, as the Assistant Attorney General may
reasonably require.
``(e) Incentives.--For each of fiscal years 2021 through 2025, the
Attorney General shall give affirmative preference to all Bureau of
Justice Assistance discretionary grant applications of a State or
Indian Tribe that has enacted a qualifying State or Tribal law.
``SEC. 3054. FULL FAITH AND CREDIT.
``Any violence prevention order issued under a State or Tribal law
enacted in accordance with this part shall have the same full faith and
credit in every court within the United States as the order has by law
or usage in the courts of such State or Indian Tribe from which the
order is issued.''.
(b) Authorization of Appropriations.--Section 1001(a) of title I of
the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C.
10261(a)) is amended by adding at the end the following:
``(29) There are authorized to be appropriated to carry out part OO
$20,000,000 for each of fiscal years 2021 through 2025.''.
SEC. 4. FEDERAL FIREARMS PROHIBITION.
Section 922 of title 18, United States Code, is amended--
(1) in subsection (d)--
(A) in paragraph (8)(B)(ii), 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--
``(A) was issued after a hearing of which such
person received actual notice, and at which such person
had an opportunity to participate;
``(B) restrains such person from possessing and
purchasing a firearm; and
``(C) includes a finding that such person poses a
significant danger of causing personal injury to
himself or herself or other persons.''; 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) who 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) restrains such person from possessing and
purchasing a firearm; and
``(C) includes a finding that such person poses a
significant danger of causing personal injury to
himself or herself or other persons,''.
SEC. 5. SEVERABILITY; RULES OF CONSTRUCTION.
(a) Severability.--If any provision of this Act, or an amendment
made by this Act, or the application of such provision to any person or
circumstance, is held to be invalid, the remainder of this Act, or an
amendment made by this Act, or the application of such provision to
other persons or circumstances, shall not be affected.
(b) Rules of Construction.--Nothing in this Act, or an amendment
made by this Act, shall be construed to--
(1) limit the ability of a State or Indian Tribe to enact
legislation with additional due process protections, additional
rights for a respondent or subject of an extreme risk
protection order, or higher standards of proof; or
(2) supersede or contradict any State or Tribal law enacted
before or after the date of enactment of this Act relating to
the removal of firearms from individuals determined to be a
danger to themselves or others.
<all>