Federal Extreme Risk Protection Order Act of 2021
Floor Speech
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Mr. NADLER. Madam Speaker, pursuant to House Resolution 1153, I call up the bill (H.R. 2377) to authorize the issuance of extreme risk protection orders, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
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Mr. NADLER. 2377.
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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Madam Speaker, over the past several weeks, we have watched in horror as gun violence has touched communities across the country and dozens of people, young and old, have lost their lives. The details of each case may differ, each tragic in its own way, but there is one theme that comes up most often; someone deeply troubled, experiencing some sort of crisis, had easy access to firearms. And all too often, the warning signs were clear, but nothing was done to keep guns out of their hands before it was too late.
H.R. 2377, the Federal Extreme Risk Protection Order Act, provides a sensible means by which someone who is exhibiting dangerous behavior can be prevented from possessing or purchasing firearms before tragedy strikes.
This legislation, introduced by Representative Lucy McBath, authorizes Federal courts to issue an extreme risk protection order, or ERPO, temporarily removing firearms from a person in crisis and preventing them from purchasing firearms. This only occurs after the court determines that there is evidence demonstrating that the person poses an imminent danger of injuring himself, herself, or others.
The bill also includes legislation by Representative Salud Carbajal, which provides funding to States to enact ERPO statutes of their own.
We know that extreme risk laws save lives. We have witnessed their effectiveness in State after State, beginning in 2016, when California passed the first such law. Since then, 18 other States and the District of Columbia have enacted similar laws.
An analysis of the first 3 years of California's extreme risk law found that these orders were used for 58 mass shooting threats, including six in which a minor threatened to target a school.
These orders were also used in response to 82 threats of suicide, and they worked. No suicides occurred among individuals who were subject to the orders.
Federal courts have long been bastions of due process and, accordingly, this legislation includes strong due process provisions that strike the appropriate balance between protecting the rights of the gun owner and ensuring community safety. Every court that has reviewed laws similar to this bill has found that the procedural safeguards are sufficient.
And as then-Seventh Circuit Judge Amy Coney Barrett wrote, ``History is consistent with common sense: It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.''
Madam Speaker, the Constitution does not require us to wait until lives are lost.
As we address the scourge of gun violence, a blight that killed 45,000 Americans in 2020 alone, let us remember that there are no perfect solutions. We are painfully aware that we cannot do enough to save every life, and there is no one answer that will solve this problem.
But we do know that taking guns out of the hands of people who pose a danger to themselves or others would save countless lives. This legislation would take meaningful steps to prevent gun violence tragedies in our communities while, at the same time, protecting the due process of rights of those individuals in crisis.
I thank Representatives McBath and Carbajal for their leadership on this issue. I urge all Members to support the bill, and I reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I yield 5 minutes to the gentlewoman from Georgia (Mrs. McBath), the sponsor of the bill.
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Mr. NADLER. Madam Speaker, I yield the gentlewoman an extra 30 seconds.
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Mr. NADLER. Madam Speaker, I include in the Record a June 7, 2022, Washington Post article titled ``No, red-flag gun laws don't violate due process rights.'' [From the Washington Post] No, Red-Flag Gun Laws Don't Violate Due Process Rights such laws, also known as `extreme-risk protection orders,' are popular and are embraced by some republican politicians. but some gun-rights activists say they violate the fifth and fourteenth amendments. (Perspective by Joseph Blocher and Jake Charles, June 7, 2022)
``Red flag'' laws, which allow guns to be temporarily taken from people who pose a risk of harm to themselves or others, are one of the few gun-safety regulations that currently have bipartisan support. ``Tm generally inclined to think some kind of red-flag law is a good idea,'' Sen. Roy Blunt (R-Mo.) said last week, after the school shooting in Uvalde, Texas. Key senators have told reporters it's possible an agreement could be reached this week on legislation that would include a provision incentivizing more states to pass such laws.
There is strong popular support for red-flag laws--also known as extreme-risk laws--in both parties, and more than a dozen states have adopted them in the past few years alone (bringing the total to 19 plus the District of Columbia). Social science research suggests that they work, most strikingly in preventing gun suicides.
So what prevents their wider adoption, including at the federal level? Some gun-rights advocates and their allies in Congress say they violate the due process clauses of the Fifth and Fourteenth Amendments. ``Depriving citizens of Life, Liberty, or Property, without Due Process, is a clear violation of our Constitution,'' Rep. Thomas Massie (R-Ky.) tweeted last week. ``Every member of Congress swears an oath to `support and defend' the Constitution. Voting for, or introducing, Red Flag Laws is a blatant violation of that oath.''
But such criticisms are off base. Politicians considering red-flag laws, whether in Congress or state legislatures, should do so based on an accurate understanding of what the Constitution requires. It indeed guarantees ``due process of law'' whenever the government seeks to deprive a person of ``life, liberty, or property.'' But the basic design of existing extreme-risk laws is fully consistent with constitutional commands, as we showed in a recent law review article.
In the states where they exist, here's how red-flag laws work: A limited set of people--law enforcement officers, family or household members, and sometimes others--can petition a judge to issue an ``extreme-risk protection order'' (ERPO) requiring a person to temporarily surrender his or her firearms and refrain from acquiring new ones. Depending on the state, the burden of proof the petitioner must meet (to establish that the gun owner indeed presents a risk) varies from ``probable cause'' to ``clear and convincing'' evidence. If the petition is successful, the court can enter a short-term emergency ERPO, usually lasting two weeks or less. In many cases, that's all that is needed-- the crisis can be averted. A longer-term ERPO can only be entered after a full hearing at which the petitioner again bears the burden of proof, usually at a higher threshold, and at which the gun owner can contest the order.
If there is a constitutional flaw in this basic structure, it has apparently escaped notice of the entire United States judiciary: Courts have unanimously rejected Second Amendment and due process challenges to ERPO laws, and for good reason.
Perhaps surprisingly, the Second Amendment has not been the focus of the constitutional complaints. That's because even ardent Second Amendment defenders like Justice Amy Coney Barrett recognize that ``legislatures have the power to prohibit dangerous people from possessing guns''--as Barrett wrote in 2019 case, when she was a judge on the U.S. Court of Appeals for the Seventh Circuit. Courts reviewing extreme- risk laws have upheld them on that very basis. In 2016, for example, a Connecticut appellate court relied on U.S. Supreme Court precedent in holding that Connecticut's statute ``does not implicate the second amendment, as it does not restrict the right oflawabiding, responsible citizens to use arms in defense of their homes.''
The crux of the political debate has therefore focused on due process--although due-process challenges to red-flag laws have fared no better. Nor should they have. A prime complaint about red-flag laws is that they allow an order to issue before the gun owner has an opportunity to contest the evidence, but the Supreme Court has long recognized that there are ``extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event,'' as Justice John Marshall Harlan II wrote in a 1971 case. Examples include restraining orders filed by one domestic partner against another, civil commitments for mental illness and the temporary removal of children from parental custody in emergency situations (for instance, when there are credible allegations of abuse). In situations like these, delaying urgent action until after a full hearing can lead to catastrophic outcomes.
Given that the Constitution allows emergency action to temporarily remove a person's child before a full hearing, it's hard to argue that it prohibits emergency action to temporarily remove a person's guns. Quite simply, the Constitution does not require society to wait until the trigger is pulled.
Though they vary in their particulars, existing extreme- risk laws contain several important procedural safeguards that the Supreme Court has recognized help to forestall abuse and ensure due process. They impose the burden on the petitioner to convince an independent third party; they guarantee active judicial oversight and provide a prompt hearing focusing on the degree of risk; and many states provide specific criminal penalties for filing false or harassing extreme-risk petitions (in addition to existing punishments for perjury).
Understanding constitutional requirements is important not only for lawyers and judges, but for those debating gun regulation in public discourse. Time and again, arguments based on misunderstandings of the Constitution have been used to derail reasonable gun regulation. After Sandy Hook, for example, an overwhelming majority of Americans wanted to expand the existing system of background checks for gun sales. Of the minority opposed--some strongly so--the most common reason was that doing so would violate the Second Amendment, yet that position has no support in legal doctrine.
We should not once again make the mistake of blaming the Constitution for inaction on gun laws. The structure of extreme-risk laws is entirely consistent with not only the Second Amendment but also the consitutional guarantee of due process.
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Mr. NADLER. Madam Speaker, I want to excoriate as absolute nonsense, pernicious nonsense, what we just heard from Mr. Johnson, from Mrs. Lesko, and what I presume we will hear for the rest of the debate on this bill.
Red flag laws are in effect in 19 States and the District of Columbia. Every court that has considered them has found them constitutional. Every court has said that they meet the requirements of procedural due process--every single court.
Madam Speaker, I yield 1 minute to the gentlewoman from California (Ms. Pelosi), the Speaker of the House.
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Mr. NADLER. Madam Speaker, I yield myself such time as I may consume.
Republican speakers obviously have more regard for their politics and for the National Rifle Association than they do for the lives of our children. We see that every moment here, when they keep repeating the words that this is unconstitutional, when courts in 18 States and the District of Columbia have found them constitutional, and Supreme Court Justice Amy Coney Barrett, on the 7th Circuit, said: History is consistent with common sense. It demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.
So I don't think we should hear lectures on Democrats don't care about due process. We do. We also care about children's lives.
Madam Speaker, I yield 2 minutes to the gentleman from Rhode Island (Mr. Cicilline), a member of the Judiciary Committee.
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the distinguished gentleman from Tennessee (Mr. Cohen), a member of the Judiciary Committee.
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Mr. NADLER. Madam Speaker, I yield 1 minute to the gentlewoman from Pennsylvania (Ms. Dean), a member of the Judiciary Committee.
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Mr. NADLER. Madam Speaker, I yield 2 minutes to the distinguished gentleman from California (Mr. Thompson), chairman of the Gun Violence Prevention Task Force.
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Mr. NADLER. Madam Speaker, I yield 1 minute to the distinguished gentleman from Virginia (Mr. Beyer).
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Mr. NADLER. Madam Speaker, I yield 1 minute to the distinguished gentleman from Texas (Mr. Green).
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Mr. NADLER. Madam Speaker, may I inquire how much time remains on each side?
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Mr. NADLER. Madam Speaker, I yield 1 minute to the distinguished gentlewoman from Michigan (Mrs. Lawrence).
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Mr. NADLER. Madam Speaker, I yield 3 minutes to the distinguished gentlewoman from Texas (Ms. Jackson Lee), a member of the Judiciary Committee.
Ms. JACKSON LEE. Madam Speaker, I thank the chairman for yielding, and let me personally on this floor--I have said it many times--offer my sympathy to Lucy McBath for the pain that she continues to live with for the loss of her son.
Let me say to my friends, your arguments could not be more absurd. Over these last 2 days, I have heard welfare state; I am a person of faith as all who profess such, challenging whether or not we have faith; speaking about the absurdity of not understanding the Constitution; disrespecting the democratic system that we have; that there will be an outrageous attack on individuals with the red flag laws.
You are just simply wrong. My plea is to the American people because you can force people who masquerade as believing that it is a shame for children to die, but yet do nothing. This is the side of doing absolutely nothing but casting aspersions and challenging what is right.
Red flag laws are right. Why? Indiana passed it in 2005, and in years since, the State's firearms suicide rate has gone down 7.5 percent. They work. A little boy, 16 years old, in New York was getting ready to shoot up his students, had shotguns at home. An order was put forward, and he admitted that not having the guns in the home was helpful and the order helped him.
Is there no desire to do something in the name of those who died wrongly in Buffalo? Is there no desire?
Are you not in any way aware of Zaire, a mother's child trying to work in a job and was severely injured?
Are you not aware of Amerie, 10 years old, who died and bled out as she called 911?
Madam Speaker, I include in the Record two lists of victims from the Uvalde school shooting and the Buffalo supermarket shooting. the 21 victims of the uvalde school shooting
Makenna Lee Elrod, 10;
Layla Salazar, 11;
Maranda Mathis, 11;
Nevaeh Bravo, 10;
Jose Manuel Flores Jr., 10; Xavier Lopez, 10;
Tess Marie Mata, 10;
Rojelio Torres, 10;
Eliahna ``Ellie'' Amyah Garcia, 9;
Eliahna A. Torres, 10;
Annabell Guadalupe Rodriguez, 10;
Jackie Cazares, 9;
Uziyah Garcia;, 9;
Jayce Carmelo Luevanos, 10;
Maite Yuleana Rodriguez, 10;
Jailah Nicole Silguero, 10 ;
Irma Garcia, 48;
Eva Mireles, 44;
Amerie Jo Garza, 10;
Alexandria ``Lexi'' Aniyah Rubio, 10; and
Alithia Ramirez, 10. the 10 people killed in buffalo, ny
Roberta A. Drury of Buffalo, N.Y., age 32;
Margus D. Morrison of Buffalo, N.Y., age 52;
Andre Mackneil of Auburn, N.Y., age 53;
Aaron Salter of Lockport, N.Y, age 55;
Geraldine Talley of Buffalo, N.Y., age 62;
Celestine Chaney of Buffalo, N.Y., age 65;
Heyward Patterson of Buffalo, N.Y., age 67;
Katherine Massey of Buffalo, N.Y., age 72;
Pearl Young of Buffalo, N.Y., age 77; and
Ruth Whitfield of Buffalo, N.Y., age 86.
Ms. JACKSON LEE. Are you not aware that 80 percent of people considering suicide give some sign of their plans, and nearly 80 percent of perpetrators of mass violence in public places make explicit threats?
Red flag laws are crucial to saving lives.
Yes, the FBI didn't act in Parkland, but a red flag law that was implemented by a Republican Governor could have been effective. There would have been another tool.
The Constitution, for some people, they can't seem to read it clearly. The Second Amendment says to create a militia, but Justice Scalia, who is idolized by the right, made it very clear that the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever.
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Mr. NADLER. Madam Speaker, I yield the gentlewoman an additional 30 seconds.
Ms. JACKSON LEE. Madam Speaker, let me say this: Do you want guns in the hands of dangerous people?
I don't want Republicans shot. That was a dangerous person.
Do you want guns in the hands of gang members? Do you want us to continue like all of these school shootings in the State of Texas?
Let us realize where your heart is and ensure that the mentally ill are not the persons that are the ones that are most dangerous, but it is dangerous people who need red flag laws.
Maybe we need to sit down in the name of John Lewis, who said: Where is your heart, and where is your soul?
We need to pass this red flag law and all of our gun safety laws, and the Senate should pass it as well.
Madam Speaker, I rise in support of H.R. 2377, the ``Federal Extreme Risk Protection Order Act of 2021,'' of which I am a cosponsor.
In recent weeks, we have mourned the loss of life resulting from an ever-increasing number of mass shootings that have shocked the conscience of our nation.
We have a duty to do all we can to prevent gun violence and end the bloodshed. Expanding the availability of extreme risk protection orders is one step we must take because access to firearms can be the difference between life or death--for one person or many.
These laws have proven to be effective, particularly in reducing suicides, which involve firearms more than 50 percent of the time.
We know that suicides are often times an impulsive action. Extreme risk protection orders can generate time and space between the impulse and someone's access o firearms.
Recognizing that up to 80 percent of people considering suicide give some sign of their plans and nearly 80 percent of perpetrators of mass violence in public places make explicit threats or behave in a manner indicative of their intent to carry out an attack, it is clear these orders can help save lives.
Yet under federal law, a person suffering from mental illness is generally not prohibited from purchasing or possessing a firearm unless certain statutory circumstances occur.
Similarly, a person who has committed a violent act towards others is generally not prohibited from accessing firearms under federal law unless they are the subject of a domestic violence restraining order, have been convicted of a felony, or have been convicted of a domestic violence misdemeanor.
In many instances of gun violence, family and friends noticed warning signs that their loved ones were a significant risk of harm or injury to themselves or others.
For example, more than a month before the Parkland shooting, someone close to the shooter provided information to the FBI's tip line about his gun ownership, desire to kill people, erratic behavior, and disturbing social media posts, as well as the possibility he might commit a school shooting. But there was nothing to prohibit him from possessing firearms.
Extreme risk protection laws empower those close to people at risk of committing irreversible, hateful acts upon themselves or others to intervene before tragedy strikes.
Instead of focusing primarily on those who suffer from mental illness--the majority of whom are not violent--these laws focus on preventing access to firearms by people who exhibit dangerous behaviors.
While some states have enacted these laws, including Florida following the Parkland shooting, many have not. That is why we need H.R. 2377. Everyone deserves to be safe from gun violence.
This bill would provide nationwide access to extreme risk protection orders through federal courts, improve implementation of existing state extreme risk laws, and through grant funding, encourage more states to adopt such laws.
It would also ensure law enforcement is trained in the use of extreme risk protection orders, including crisis intervention and making referrals to social service providers.
When a concerned loved one can demonstrate that an individual presents a serious threat of injury to themselves or others, they should have an opportunity to request an order, allowing a judge to weigh the evidence and issue an order when appropriate.
This bill would also provide important due process protections including notice, an opportunity to be heard at a hearing within 72 hours after an order is issued if there is a request for a long-term extreme risk protection order, and a right to counsel.
If an order is dissolved or expires any firearms would have to be returned.
And the bill would establish a penalty for anyone who files a false or frivolous petition.
I recently read that 44 percent of Republicans believe mass shootings are ``something we have to accept as part of a free society,'' and I simply cannot and will not accept that.
We must never concede defeat to the epidemic of gun violence. Instead, we must continue to encourage and support the implementation of evidence-based solutions like extreme risk protection orders.
I would like to thank Representative Lucy McBath and Salud Carbajal for their dedication to this issue and this bill.
I urge my colleagues to support this critical legislation that will make our communities safer, whether in our homes or on our streets.
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Mr. NADLER. Madam Speaker, I am prepared to close, and I reserve the balance of my time.
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Mr. NADLER. Madam Speaker, I yield myself the balance of my time.
Madam Speaker, extreme risk laws save lives, it is that simple. Ultimately, that is what this debate should be about--saving lives. This legislation strikes a proper balance between protecting the due process rights of people in crisis and preventing tragedy by ensuring that those who pose an imminent danger to themselves or others do not have access to firearms.
Madam Speaker, this debate has been surreal. Every court that has considered the question has concluded that red flag laws afford proper due process and are constitutional. We already know that extreme risk laws work, but less than half the States have those laws in effect.
Madam Speaker, let us pass this legislation today, so we can bring access to this life-savings tool nationwide. We know it is not enough. We know we need all the provisions of the bill we passed yesterday, and we should bring back the assault weapons ban. But what we cannot do should not block us from doing what we can do. We can save thousands of lives annually, so let us begin.
Madam Speaker, I urge all Members to support this bill, and I yield back the balance of my time.
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