H.R.2377 Federal Red Flag law Proposed by Democrats in House

 From congress.gov

On April 8, 2021, Representative MCBath sponsored  H.R. 2377, a federal bill to authorize extreme risk prevention orders, or "red flag" law. 

Using the recent mass murders in Buffalo, New York and Uvalde, Texas, as an emotional springboard to push passage of the law, Nancy Pelosi has pushed through passage in the House of Representatives, today, 9 April, 2022. The vote was 224 to 202.  

The most recent and comprehensive study on the Red Flag law in California showed no measurable effect on assault or fatal violence against others or self, for an intensely covered four year period, 2016 to 2019.

The Congressional Budget Office description of the bill is sparse. From cbo.gov:

H.R. 2377 would allow family members and law enforcement officials to file petitions in federal courts requesting extreme risk protection orders (ERPOs) for the removal of firearms from people who are believed to present an extreme risk of harm to themselves or others. The bill would require the U.S. Marshals Service (USMS) to serve federal ERPOs, remove firearms if so ordered, and store firearms until a hearing can be held to determine whether the firearms should be returned to or kept from the respondent for a specific period.

 

The timing required is extremely fast, giving the judge little ability to determine how credible the alleged threats are. With the supposed dire consequences for failing to grant a petition, it seems very few would be denied. 

Ex parte means the accused is not present. From the bill:

 “(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 Federal order under subsection (b) shall grant or deny the petition on the date on which the petition is submitted.

(B) is for late submissions, which must be issued the next day.  The "evidence" includes "hearsay" evidence from third parties:

 “(2) EVIDENCE REQUIRED.—Before issuing an ex parte Federal order, a court shall require that the petitioner for such order submit a signed affidavit, sworn to before the court, that—

“(A) explains why such petitioner believes that the Federal order respondent poses a risk of imminent personal injury to self 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 such petitioner believes that information obtained from that individual is credible and reliable.

The "factors to consider" by the judge are problematic. Here is the list:

(e) Factors to consider.—In determining whether to issue a Federal extreme risk protection order, a court—

“(1) shall consider factors including—

“(A) a recent threat or act of violence by the respondent directed toward another individual;

“(B) a recent threat or act of violence by the respondent directed toward self;

“(C) a recent act of cruelty to an animal by the respondent;

and

“(D) evidence of ongoing abuse of a controlled substance or alcohol by the respondent that has led to a threat or act of violence directed to self or another individual;

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 another individual;

“(C) evidence of an explicit or implicit threat made by the person through any medium that demonstrate that the person poses a risk of personal injury to self or another individual.

The last case, (C) is particularly worrisome. 

How many people "talk big" on the Internet or on the telephone? The law is full of potential for abuse. A DC police officer, telling a judge about Internet correspondence in Idaho, might easily find a DC judge to "Red Flag" hundreds of people in Idaho, which he has never had personal interaction with. 

The judge only needs to find "probably cause". If the petition is granted (at this point there has been no evidence presented by the accused. They do not even know the procedure is ongoing.) 

Then all Firearms and ammunition and any permit, such as a concealed carry permit must be immediately surrendered to the US Marshals or to other law enforcement personnel authorized by the US Marshals, or sold through a Federal Firearms Dealer. 

There is no option to have a third party hold the firearms.  

The list of those who can ask for these orders is long, and includes large numbers of people who may have a reason to use them to extract revenge.  They include:

“(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;

The bill allows any law enforcement officer to file such an petition. The officer only needs to believe the information they received is "credible and reliable".  If the information is turns out to be false, there is no penalty for the person who filed the petition, if they reasonably believed the information received was "credible and reliable". 

The ex parte order does not require a hearing for the accused individual. A hearing must be held within 14 days, or when an ex parte order is petitioned to be made into a long term order, up to 180 days.  A hearing is required for a long term order.

The penalty for false or frivolous petitions exists, but accusations would be very difficult to prove.

“(i) Penalty for false reporting or frivolous petitions.—An individual who knowingly submits materially false information to the court in a petition for a Federal 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 more than $5,000, or imprisoned not more than 5 years, or both, except to the extent that a greater sentence is otherwise provided by any other provision of law, as the court deems necessary to deter such abuse of process.

 "Knowingly submits" and "materially false information" are open to interpretation. They may be difficult to prove.  If an email says: "Time to water the Liberty Tree", the phrase may be interpreted by some judges to meet all the requirements to issue one of these ex parte orders.

The person submitting the petition does not have to prove the target has any firearms, or what such firearms might be. 

If granted, the order requires surrender of all firearms and ammunition, immediately.  (Repetition intentional)

In this correspondent's view, the bill is blatantly unconstitutional under the Second Amendment, the Fourteenth Amendment, the Tenth Amendment, and, probably others. 

Several states have passed legislation specifically to prevent such abuse of federal power.

As of this writing, the bill passed the house mere hours ago. It seems unlikely to pass the Senate, where 60 votes would be needed to overcome the filibuster. 

There are squishy Republicans who might feel pressured enough by the Media to vote for this bill. The usual suspects would be:

 Senators Mitt Romney (R-UT), Susan Collins (R-ME), and Lisa Murkowski (R-AK).

Possible additions would be: 

 Bill Cassidy (R-LA), John Cornyn (R-TX), Lindsey Graham (R-SC)

However, Senator Murphy (D-CT) is quoted in CNN as being against a federal Red Flag law: 

 "I think there has been some lingering confusion," Murphy said. "Past proposals have suggested a federal red flag law. I've actually never thought that was a good idea. I don't think you want law enforcement to have to go into the federal courts to take, temporarily, firearms away from a dangerous individual. So we have to clean up some of the confusion around what we are proposing."

Analysis:

At this point, passage of either or both Second Amendment infringing bills (H.R. 7910 and H.R. 2377) passed by the House seem unlikely to pass in the Senate.  

With a budding totalitarian administration in the White House, what seems unlikely becomes more common every day. 

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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