Extreme Risk Protection Order and Violence Prevention Act of 2021

II 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 enforce- ment, with new tools to prevent gun violence. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Extreme Risk Protec- 4 tion Order and Violence Prevention Act of 2021’’. 5 SEC. 2. SENSE OF CONGRESS. 6 It is the sense of Congress that— 7 (1) each State and Indian Tribe should enact 8 extreme risk protection order legislation described in 9 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 292 IS part OO of title I of the Omnibus Crime Control and 1 Safe Streets Act of 1968, as added by section 3; and 2 (2) such extreme risk protection order legisla- 3 tion is an important tool in the efforts of States and 4 Indian Tribes to ensure that firearms and ammuni- 5 tion are kept out of the hands of individuals whom 6 a court has determined to be a significant danger to 7 themselves or others. 8 SEC. 3. EXTREME RISK PROTECTION ORDER GRANT PRO- 9 GRAM. 10 (a) IN GENERAL.—Title I of the Omnibus Crime 11 Control and Safe Streets Act of 1968 (34 U.S.C. 10101 12 et seq.) is amended by adding at the end the following: 13 ‘‘PART OO—EXTREME RISK PROTECTION ORDER 14 GRANT PROGRAM 15 ‘‘SEC. 3051. DEFINITIONS. 16 ‘‘In this title— 17 ‘‘(1) the terms ‘ammunition’ and ‘firearm’ have 18 the meanings given those terms in section 921(a) of 19 title 18, United States Code; 20 ‘‘(2) the term ‘extreme risk protection order’ 21 means a written order, issued by a State or Tribal 22 court or signed by a magistrate that, for a period 23 not to exceed 12 months— 24 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 292 IS ‘‘(A) prohibits the individual named in the 1 order from having under the custody or control 2 of the individual, purchasing, possessing, or re- 3 ceiving any firearms; and 4 ‘‘(B) requires a firearm be removed; 5 ‘‘(3) the term ‘family or household member’ 6 means, with respect to a respondent, any— 7 ‘‘(A) individual related by blood, marriage, 8 or adoption to the respondent; 9 ‘‘(B) dating partner (as defined in section 10 2266 of title 18, United States Code) of the re- 11 spondent; 12 ‘‘(C) individual who has a child in common 13 with the respondent, regardless of whether the 14 individual has— 15 ‘‘(i) been married to the respondent; 16 or 17 ‘‘(ii) lived together with the respond- 18 ent at any time; 19 ‘‘(D) individual who resides or has resided 20 with the respondent during the past year; 21 ‘‘(E) spouse or intimate partner (as de- 22 fined in section 2266 of title 18, United States 23 Code) of the respondent; 24 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 292 IS ‘‘(F) individual who has a biological or 1 legal parent-child relationship with the respond- 2 ent, including a stepparent-stepchild and grand- 3 parent-grandchild relationship; and 4 ‘‘(G) individual who is acting or has acted 5 as the legal guardian of the respondent; 6 ‘‘(4) the term ‘Indian Tribe’ has the meaning 7 given the term in section 4 of the Indian Self-Deter- 8 mination and Education Assistance Act (25 U.S.C. 9 5304); 10 ‘‘(5) the term ‘petitioner’ means the law en- 11 forcement officer, or family or household member of 12 an individual, who submits a petition for an extreme 13 risk protection order under section 3052(b)(1); 14 ‘‘(6) the term ‘qualifying State or Tribal law’ 15 means a law of a State or Indian Tribe that the At- 16 torney General has determined to be in compliance 17 with the minimum requirements described in section 18 3052; 19 ‘‘(7) the term ‘respondent’ means an individual 20 who is named in a petition for an extreme risk pro- 21 tection order under section 3052(b)(1); 22 ‘‘(8) the term ‘State’ means— 23 ‘‘(A) a State; 24 ‘‘(B) the District of Columbia; 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 292 IS ‘‘(C) the Commonwealth of Puerto Rico; 1 and 2 ‘‘(D) any other territory or possession of 3 the United States; and 4 ‘‘(9) the term ‘temporary ex parte extreme risk 5 protection order’ means a written order, issued by a 6 State or Tribal court or signed by a magistrate pro- 7 hibiting a named individual from possessing, pur- 8 chasing, receiving, or transporting a firearm during 9 the period beginning on the date on which the order 10 is issued and ending on the date on which the hear- 11 ing for the extreme risk protection order is held. 12 ‘‘SEC. 3052. EXTREME RISK PROTECTION ORDER LEGISLA- 13 TION. 14 ‘‘(a) ENACTMENT OF EXTREME RISK PROTECTION 15 ORDER LEGISLATION.—In order to receive a grant under 16 section 3053, a State or Indian Tribe shall have in effect 17 a qualifying State or Tribal law. 18 ‘‘(b) MINIMUM REQUIREMENTS FOR EXTREME RISK 19 PROTECTION ORDERS.—A qualifying State or Tribal law 20 shall impose the following minimum requirements for the 21 issuance of an extreme risk protection order: 22 ‘‘(1) PETITION FOR EXTREME RISK PROTEC- 23 TION ORDER.— 24 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 292 IS ‘‘(A) IN GENERAL.—A law enforcement of- 1 ficer, or family or household member of an indi- 2 vidual, may submit a petition to a State or 3 Tribal court, on a form designed by the courts 4 administrator or similar office of the State or 5 Indian Tribe, that— 6 ‘‘(i) describes the facts and cir- 7 cumstances necessitating that an extreme 8 risk protection order be issued against the 9 respondent because the respondent poses a 10 significant danger of causing personal in- 11 jury to himself or herself or others by— 12 ‘‘(I) having a firearm or ammuni- 13 tion in his or her custody or control; 14 or 15 ‘‘(II) purchasing, possessing, or 16 receiving a firearm or ammunition; 17 ‘‘(ii) is accompanied by a sworn affi- 18 davit, signed by the petitioner, stating the 19 specific facts that give rise to reasonable 20 fear of significant dangerous acts by the 21 respondent; 22 ‘‘(iii) identifies the quantities, types, 23 and locations of all firearms and ammuni- 24 tion the petitioner believes to be in the cur- 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 292 IS rent ownership, possession, custody, or 1 control of the respondent; and 2 ‘‘(iv) identifies whether there is a 3 known extreme risk protection order al- 4 ready in effect against the respondent. 5 ‘‘(B) GOOD FAITH NOTICE.—A petitioner 6 who submits a petition under subparagraph (A) 7 shall be required to make a good faith effort to 8 provide notice to other family or household 9 members of the respondent, or to any other 10 known third party, who may be at risk of vio- 11 lence because of the submission of such peti- 12 tion. 13 ‘‘(2) ISSUANCE OF EXTREME RISK PROTECTION 14 ORDERS.— 15 ‘‘(A) HEARING.— 16 ‘‘(i) IN GENERAL.—Upon receipt of a 17 petition under paragraph (1), the court 18 shall— 19 ‘‘(I) order a hearing to be held 20 not later than 14 days after the date 21 of such order; and 22 ‘‘(II) issue a notice of the hear- 23 ing ordered under subclause (I) to the 24 respondent. 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 292 IS ‘‘(ii) TELEPHONE HEARING.—A court 1 may conduct the hearing required under 2 clause (i) by telephone, pursuant to local 3 court rules. 4 ‘‘(iii) DETERMINATION.—If the court 5 finds by clear and convincing evidence that 6 the respondent poses a significant danger 7 of causing personal injury to himself or 8 herself or others by having in his or her 9 custody or control, or by purchasing, pos- 10 sessing, or receiving, a firearm or ammuni- 11 tion, the court shall issue an extreme risk 12 protection order for a period the court de- 13 termines is appropriate, which may not ex- 14 ceed 12 months. 15 ‘‘(B) CONSIDERATION OF EVIDENCE.— 16 ‘‘(i) IN GENERAL.—In determining 17 whether to issue an extreme risk protection 18 order, the court— 19 ‘‘(I) may consider relevant evi- 20 dence, such as— 21 ‘‘(aa) a recent threat or act 22 of violence by the respondent 23 against himself or herself or oth- 24 ers; 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 292 IS ‘‘(bb) a threat or act of vio- 1 lence by the respondent against 2 himself or herself or others in the 3 past 12 months; 4 ‘‘(cc) evidence that the re- 5 spondent has a serious mental ill- 6 ness; 7 ‘‘(dd) an extreme risk pro- 8 tection order previously issued to 9 the respondent or a violation by 10 the respondent of a previously 11 issued extreme risk protection 12 order; 13 ‘‘(ee) whether the respond- 14 ent has been convicted of a crime 15 of domestic violence or other vio- 16 lence; 17 ‘‘(ff) whether the respondent 18 has used or threatened to use 19 weapons against himself or her- 20 self or others; 21 ‘‘(gg) the unlawful use of a 22 firearm by the respondent; 23 ‘‘(hh) the recurring use or 24 threat of use of physical force by 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 292 IS the respondent against another 1 person or the respondent stalking 2 another person; 3 ‘‘(ii) corroborated evidence 4 of the abuse of controlled sub- 5 stances or alcohol by the re- 6 spondent; 7 ‘‘(jj) relevant information 8 from family or household mem- 9 bers concerning the respondent; 10 and 11 ‘‘(kk) witness testimony 12 taken while the witness is under 13 oath relating to the matter before 14 the court; and 15 ‘‘(II) shall consider whether a 16 mental health evaluation or chemical 17 dependency evaluation is appropriate. 18 ‘‘(ii) PRESENTATION OF EVIDENCE.— 19 Anyone who offers evidence or rec- 20 ommendations relating to the petition sub- 21 mitted under paragraph (1) shall— 22 ‘‘(I) present the evidence or rec- 23 ommendations in writing to the court 24 and submit a copy of such evidence or 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 292 IS recommendations to each party or the 1 attorney for a party; or 2 ‘‘(II) present the evidence under 3 oath at a hearing at which all parties 4 are present. 5 ‘‘(iii) MENTAL HEALTH AND CHEM- 6 ICAL DEPENDENCY EVALUATIONS.—If a 7 court determines that a mental health eval- 8 uation or chemical dependency evaluation 9 is appropriate under clause (i)(II), the 10 court may order the appropriate evalua- 11 tion. 12 ‘‘(C) CONTENTS OF ORDER.—If a court 13 issues an extreme risk protection order, the 14 order shall contain— 15 ‘‘(i) a statement on the grounds sup- 16 porting the issuance of the order; 17 ‘‘(ii) the date on which the order was 18 issued; 19 ‘‘(iii) the date on which the order ex- 20 pires; 21 ‘‘(iv) whether a mental health evalua- 22 tion or chemical dependency evaluation of 23 the respondent is required; 24 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 292 IS ‘‘(v) the address of the court in which 1 a responsive pleading may be filed; 2 ‘‘(vi) a description of the requirements 3 for surrender of all firearms and ammuni- 4 tion owned by the respondent; and 5 ‘‘(vii) a clear statement of instruction 6 on surrendering to the appropriate local 7 law enforcement agency all firearms and 8 ammunition owned by the respondent or in 9 the custody, control, or possession of the 10 respondent and any license to carry a con- 11 cealed weapon or firearm issued pursuant 12 to the laws of the State or Indian Tribe, 13 which shall include— 14 ‘‘(I) a clear statement that the 15 respondent may not, during the period 16 for which the order is in effect— 17 ‘‘(aa) have in the control or 18 custody of the respondent a fire- 19 arm or ammunition; or 20 ‘‘(bb) purchase, possess, or 21 receive, or attempt to purchase, 22 possess, or receive, a firearm or 23 ammunition; and 24 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 292 IS ‘‘(II) a clear description of the 1 right of the respondent to request not 2 less than 1 hearing to vacate the 3 order and, if the order is renewed, to 4 request a hearing to vacate such re- 5 newal. 6 ‘‘(D) DENIAL OF EXTREME RISK PROTEC- 7 TION ORDER.—If a court declines to issue an 8 extreme risk protection order for which the 9 court receives a petition under paragraph (1), 10 the court shall issue a written statement de- 11 scribing the specific reasons for declining to 12 issue such order. 13 ‘‘(3) TEMPORARY EX PARTE EXTREME RISK 14 PROTECTION ORDER.— 15 ‘‘(A) IN GENERAL.—Upon receipt of a pe- 16 tition under paragraph (1), the court may issue 17 a temporary ex parte extreme risk protection 18 order before conducting the hearing required 19 under paragraph (2), if— 20 ‘‘(i) a request for a temporary ex 21 parte extreme risk protection order is in- 22 cluded in the petition and includes detailed 23 allegations based on personal knowledge 24 that the respondent poses a significant 25 VerDate Sep 11 2014 23:30 Feb 26, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S292.IS S292 pamtmann on DSKBC07HB2PROD with BILLS 14 •S 292 IS danger of causing personal injury to him- 1 self or herself or others in the near future 2 by having in his or her custody or control, 3 or by purchasing, possessing, or receiving, 4 a firearm or ammunition; and 5 ‘‘(ii) the court finds there is probable 6 cause to believe that the respondent poses 7 a s [Text truncated for display. 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