Extreme Risk Protection Order and Violence Prevention Act of 2019

II 116TH CONGRESS 1ST SESSION S. 7 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 JANUARY 3, 2019 Mr. RUBIO (for himself, Mr. REED, Mr. KING, and Ms. COLLINS) 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 2019’’. 5 SEC. 2. SENSE OF CONGRESS. 6 It is the sense of Congress that— 7 (1) each State and Indian tribe should enact ex- 8 treme risk protection order legislation described in 9 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 2 •S 7 IS part NN of title I of the Omnibus Crime Control 1 and Safe Streets Act of 1968, as added by section 2 3; and 3 (2) such extreme risk protection order legisla- 4 tion is an important tool in the efforts of States and 5 Indian tribes to ensure that firearms and ammuni- 6 tion are kept out of the hands of individuals whom 7 a court has determined to be a significant danger to 8 themselves or others. 9 SEC. 3. EXTREME RISK PROTECTION ORDER GRANT PRO- 10 GRAM. 11 (a) IN GENERAL.—Title I of the Omnibus Crime 12 Control and Safe Streets Act of 1968 (34 U.S.C. 10101 13 et seq.) is amended by adding at the end the following: 14 ‘‘PART NN—EXTREME RISK PROTECTION ORDER 15 GRANT PROGRAM 16 ‘‘SEC. 3041. DEFINITIONS. 17 ‘‘In this title— 18 ‘‘(1) the terms ‘ammunition’ and ‘firearm’ have 19 the meanings given those terms in section 921(a) of 20 title 18, United States Code; 21 ‘‘(2) the term ‘extreme risk protection order’ 22 means a written order, issued by a State or tribal 23 court or signed by a magistrate that, for a period 24 not to exceed 12 months— 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 3 •S 7 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 an individual, 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) an individual who resides or has re- 20 sided with the respondent during the past year; 21 ‘‘(E) a 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 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 4 •S 7 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) any individual who is acting or has 5 acted 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 3042(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 3042; 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 3042(b)(1); 22 ‘‘(8) the term ‘State’ means— 23 ‘‘(A) a State; 24 ‘‘(B) the District of Columbia; 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 5 •S 7 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 court or signed by a magistrate prohibiting a 7 named individual from possessing, purchasing, re- 8 ceiving, or transporting a firearm after the date on 9 which the order is issued until the date on which the 10 hearing for the extreme risk protection order is held. 11 ‘‘SEC. 3042. EXTREME RISK PROTECTION ORDER LEGISLA- 12 TION. 13 ‘‘(a) ENACTMENT OF EXTREME RISK PROTECTION 14 ORDER LEGISLATION.—In order to receive a grant under 15 section 3043, each State or Indian tribe shall have in ef- 16 fect a qualifying State or tribal law. 17 ‘‘(b) MINIMUM REQUIREMENTS FOR EXTREME RISK 18 PROTECTION ORDERS.—A qualifying State or tribal law 19 shall have in effect the following minimum requirements 20 for the issuance of an extreme risk protection order: 21 ‘‘(1) PETITION FOR EXTREME RISK PROTEC- 22 TION ORDER.— 23 ‘‘(A) IN GENERAL.—A law enforcement of- 24 ficer, or family or household member of an indi- 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 6 •S 7 IS vidual, may submit a petition to a State or trib- 1 al court, on a form designed by the courts ad- 2 ministrator of the State or similar office, that— 3 ‘‘(i) describes the facts and cir- 4 cumstances necessitating that an extreme 5 risk protection order be issued against the 6 respondent because the respondent poses a 7 significant danger of causing personal in- 8 jury to himself or herself or others by— 9 ‘‘(I) having a firearm or ammuni- 10 tion in his or her custody or control; 11 or 12 ‘‘(II) purchasing, possessing, or 13 receiving a firearm or ammunition; 14 ‘‘(ii) is accompanied by a sworn affi- 15 davit, signed by the petitioner, stating the 16 specific facts that give rise to reasonable 17 fear of significant dangerous acts by the 18 respondent; 19 ‘‘(iii) identifies the quantities, types, 20 and locations of all firearms and ammuni- 21 tion the petitioner believes to be in the cur- 22 rent ownership, possession, custody, or 23 control of the respondent; and 24 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 7 •S 7 IS ‘‘(iv) identifies whether there is a 1 known extreme risk protection order al- 2 ready in effect against the respondent. 3 ‘‘(B) GOOD FAITH NOTICE.—A petitioner 4 who submits a petition under subparagraph (A) 5 shall be required to make a good faith effort to 6 provide notice to other family or household 7 members of the respondent, or to any other 8 known third party, who may be at risk of vio- 9 lence because of the submission of such peti- 10 tion. 11 ‘‘(2) ISSUANCE OF EXTREME RISK PROTECTION 12 ORDERS.— 13 ‘‘(A) HEARING.— 14 ‘‘(i) IN GENERAL.—Upon receipt of a 15 petition under paragraph (1), the court 16 shall— 17 ‘‘(I) order a hearing to be held 18 not later than 14 days after the date 19 of such order; and 20 ‘‘(II) issue a notice of the hear- 21 ing ordered under subclause (I) to the 22 respondent. 23 ‘‘(ii) TELEPHONE HEARING.—A court 24 may conduct the hearing required under 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 8 •S 7 IS clause (i) by telephone, pursuant to local 1 court rules. 2 ‘‘(iii) DETERMINATION.—If the court 3 finds by clear and convincing evidence that 4 the respondent poses a significant danger 5 of causing personal injury to himself or 6 herself or others by having in his or her 7 custody or control, or by purchasing, pos- 8 sessing, or receiving, a firearm or ammuni- 9 tion, the court shall issue an extreme risk 10 protection order for a period the court de- 11 termines is appropriate, which may not ex- 12 ceed 12 months. 13 ‘‘(B) CONSIDERATION OF EVIDENCE.— 14 ‘‘(i) IN GENERAL.—In determining 15 whether to issue an extreme risk protection 16 order, the court— 17 ‘‘(I) may consider relevant evi- 18 dence, such as— 19 ‘‘(aa) a recent threat or act 20 of violence by the respondent 21 against himself or herself or oth- 22 ers; 23 ‘‘(bb) a threat or act of vio- 24 lence by the respondent against 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 9 •S 7 IS himself or herself or others in the 1 past 12 months; 2 ‘‘(cc) evidence of a serious 3 mental illness; 4 ‘‘(dd) a previously issued ex- 5 treme risk protection order or a 6 violation of a previously issued 7 extreme risk protection order; 8 ‘‘(ee) whether the respond- 9 ent has been convicted of a crime 10 of domestic violence or other vio- 11 lence; 12 ‘‘(ff) whether the respondent 13 has used or threatened to use 14 weapons against himself or her- 15 self or others; 16 ‘‘(gg) the unlawful use of a 17 firearm by the respondent; 18 ‘‘(hh) the recurring use or 19 threat of use of physical force 20 against another person or stalk- 21 ing another person; 22 ‘‘(ii) corroborated evidence 23 of the abuse of controlled sub- 24 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 10 •S 7 IS stances or alcohol by the re- 1 spondent; 2 ‘‘(jj) relevant information 3 from family or household mem- 4 bers concerning the respondent; 5 and 6 ‘‘(kk) witness testimony 7 taken while the witness is under 8 oath relating to the matter before 9 the court; and 10 ‘‘(II) shall consider whether a 11 mental health evaluation or chemical 12 dependency evaluation is appropriate. 13 ‘‘(ii) PRESENTATION OF EVIDENCE.— 14 Anyone who offers evidence or recommen- 15 dations relating to the petition submitted 16 under paragraph (1) shall— 17 ‘‘(I) present the evidence or rec- 18 ommendations in writing to the court 19 and submit a copy of such evidence or 20 recommendations to each party or the 21 attorney for a party; or 22 ‘‘(II) present the evidence under 23 oath at a hearing at which all parties 24 are present. 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 11 •S 7 IS ‘‘(iii) MENTAL HEALTH AND CHEM- 1 ICAL DEPENDENCY EVALUATIONS.—If a 2 court determines that a mental health eval- 3 uation or chemical dependency evaluation 4 is appropriate under clause (i)(II), the 5 court may order the appropriate evalua- 6 tion. 7 ‘‘(C) CONTENTS OF ORDER.—If a court 8 issues an extreme risk protection order, the 9 order shall contain— 10 ‘‘(i) a statement on the grounds sup- 11 porting the issuance of the order; 12 ‘‘(ii) the date on which the order was 13 issued; 14 ‘‘(iii) the date on which the order ex- 15 pires; 16 ‘‘(iv) whether a mental health evalua- 17 tion or chemical dependency evaluation of 18 the respondent is required; 19 ‘‘(v) the address of the court in which 20 a responsive pleading may be filed; 21 ‘‘(vi) a description of the requirements 22 for surrender of all firearms and ammuni- 23 tion owned by the respondent; and 24 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 12 •S 7 IS ‘‘(vii) a clear statement of instruction 1 on surrendering to the appropriate local 2 law enforcement agency all firearms and 3 ammunition owned by the respondent or in 4 the custody, control, or possession of the 5 respondent and any license to carry a con- 6 cealed weapon or firearm issued pursuant 7 to the laws of the State or Indian tribe, 8 which shall include— 9 ‘‘(I) a clear statement that the 10 respondent may not, during the period 11 for which the order is in effect— 12 ‘‘(aa) have in the control or 13 custody of the respondent a fire- 14 arm or ammunition; or 15 ‘‘(bb) purchase, possess, or 16 receive, or attempt to do so, a 17 firearm or ammunition; and 18 ‘‘(II) a clear description of the 19 right of the respondent to request not 20 less than 1 hearing to vacate the 21 order and, if the order is renewed, to 22 request a hearing to vacate such re- 23 newal. 24 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 13 •S 7 IS ‘‘(D) DENIAL OF EXTREME RISK PROTEC- 1 TION ORDER.—If a court declines to issue an 2 extreme risk protection order applied for under 3 this paragraph, the court shall issue a written 4 statement describing the specific reasons for de- 5 clining to issue such order. 6 ‘‘(3) TEMPORARY EX PARTE EXTREME RISK 7 PROTECTION ORDER.— 8 ‘‘(A) IN GENERAL.—Upon receipt of a pe- 9 tition under paragraph (1), the court may issue 10 a temporary ex parte extreme risk protection 11 order before conducting the hearing required 12 under paragraph (2), if— 13 ‘‘(i) a request for a temporary ex 14 parte extreme risk protection order is in- 15 cluded in the petition and includes detailed 16 allegations based on personal knowledge 17 that the respondent poses a significant 18 danger of causing personal injury to him- 19 self or herself or others in the near future 20 by having in his or her custody or control, 21 or by purchasing, possessing, or receiving, 22 a firearm or ammunition; and 23 ‘‘(ii) the court finds there is probable 24 cause to believe that the respondent poses 25 VerDate Sep 11 2014 02:44 Jan 04, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S7.IS S7 kjohnson on DSK79L0C42 with BILLS 14 •S 7 IS a significant danger of causing personal in- 1 jury to himself or herself or others in the 2 near future by having in his or her custody 3 or control, or by purchasing, possessing, or 4 receiving, a firearm or ammunition. 5 ‘‘(B) REQUIREMENTS.—In determining 6 whether to issue a temporary ex parte extreme 7 risk protection order, the c [Text truncated for display. 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