I 118TH CONGRESS 1ST SESSION H. R. 3018 To authorize the issuance of extreme risk protection orders. IN THE HOUSE OF REPRESENTATIVES APRIL 28, 2023 Mrs. MCBATH (for herself and Mr. CARBAJAL) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To authorize the issuance of extreme risk protection orders. 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 ‘‘Federal Extreme Risk 4 Protection Order Act of 2023’’. 5 SEC. 2. FEDERAL EXTREME RISK PROTECTION ORDERS. 6 (a) IN GENERAL.—Chapter 44 of title 18, United 7 States Code, is amended by adding at the end the fol- 8 lowing: 9 ‘‘§ 935. Extreme risk protection orders 10 ‘‘(a) DEFINITIONS.—In this section— 11 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 3018 IH ‘‘(1) the term ‘court’ means a district court of 1 the United States; 2 ‘‘(2) the term ‘designated law enforcement offi- 3 cer’ means a law enforcement officer, designated by 4 a United States marshal, who agrees to receive fire- 5 arms, ammunition, and permits, as applicable, sur- 6 rendered under subsection (f); 7 ‘‘(3) the term ‘Director’ means the Director of 8 the Administrative Office of the United States 9 Courts; 10 ‘‘(4) the term ‘ex parte Federal extreme risk 11 protection order’ or ‘ex parte Federal order’ means 12 a Federal extreme risk protection order issued under 13 subsection (c); 14 ‘‘(5) the term ‘Federal extreme risk protection 15 order’ means an order issued by a Federal court 16 that enjoins an individual from purchasing, pos- 17 sessing, or receiving, in or affecting interstate and 18 foreign commerce, a firearm or ammunition; 19 ‘‘(6) the term ‘family or household member’, 20 with respect to a Federal order respondent, means 21 any— 22 ‘‘(A) parent, spouse, sibling, or child re- 23 lated by blood, marriage, or adoption to the re- 24 spondent; 25 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 3018 IH ‘‘(B) dating partner of the respondent; 1 ‘‘(C) individual who has a child in common 2 with the respondent, regardless of whether the 3 individual has— 4 ‘‘(i) been married to the respondent; 5 or 6 ‘‘(ii) lived together with the respond- 7 ent at any time; 8 ‘‘(D) individual who resides or has resided 9 with the respondent during the past year; 10 ‘‘(E) domestic partner of the respondent; 11 ‘‘(F) individual who has a legal parent- 12 child relationship with the respondent, including 13 a stepparent-stepchild and grandparent-grand- 14 child relationship; and 15 ‘‘(G) individual who is acting or has acted 16 as the legal guardian of the respondent; 17 ‘‘(7) the term ‘Federal order petitioner’ means 18 an individual authorized to petition for an ex parte 19 or long-term Federal extreme risk protection order 20 under subsection (b)(1); 21 ‘‘(8) the term ‘Federal order respondent’ means 22 an individual named in the petition for an ex parte 23 or long-term Federal extreme risk protection order 24 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 3018 IH or subject to an ex parte or long-term Federal ex- 1 treme risk protection order; 2 ‘‘(9) the term ‘long-term Federal extreme risk 3 protection order’ or ‘long-term Federal order’ means 4 a Federal extreme risk protection order issued under 5 subsection (d); 6 ‘‘(10) the term ‘mental health agency’ means 7 an agency of a State, Tribal, or local government or 8 its contracted agency that is responsible for mental 9 health services or co-occurring mental health and 10 substance abuse services; and 11 ‘‘(11) the term ‘national instant criminal back- 12 ground check system’ means the national instant 13 criminal background check system established under 14 section 103 of the Brady Handgun Violence Preven- 15 tion Act (34 U.S.C. 40901). 16 ‘‘(b) PETITION.— 17 ‘‘(1) IN GENERAL.—A family or household 18 member of the applicable individual, or a law en- 19 forcement officer, may submit to an appropriate dis- 20 trict court of the United States a petition requesting 21 that the court issue an ex parte Federal extreme 22 risk protection order or long-term Federal extreme 23 risk protection order with respect to an individual. 24 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 3018 IH ‘‘(2) NO FEES.—A court or law enforcement 1 agency may not charge a petitioner or respondent 2 any fee for— 3 ‘‘(A) filing, issuing, serving, or reporting 4 an extreme risk protection order; 5 ‘‘(B) a petition for an extreme risk protec- 6 tion order or any pleading, subpoena, warrant, 7 or motion in connection with an extreme risk 8 protection order; or 9 ‘‘(C) any order or order to show cause nec- 10 essary to obtain or give effect to this section. 11 ‘‘(3) CONFIDENTIALITY.—A Federal order peti- 12 tioner who is a law enforcement officer may provide 13 the identity of the petitioner’s sources, and any iden- 14 tifying information, to the court under seal. 15 ‘‘(c) EX PARTE ORDERS.— 16 ‘‘(1) TIMING.— 17 ‘‘(A) IN GENERAL.—Except as provided in 18 subparagraph (B), a court that receives a peti- 19 tion for an ex parte Federal order under sub- 20 section (b) shall grant or deny the petition on 21 the date on which the petition is submitted. 22 ‘‘(B) LATE PETITIONS.—If a court receives 23 a petition for an ex parte Federal order sub- 24 mitted under subsection (b) too late in the day 25 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 3018 IH to permit effective review, the court shall grant 1 or deny the petition on the next day of judicial 2 business at a time early enough to permit the 3 court to file an order with the clerk of the court 4 during that day. 5 ‘‘(2) EVIDENCE REQUIRED.—Before issuing an 6 ex parte Federal order, a court shall require that the 7 petitioner for such order submit a signed affidavit, 8 sworn to before the court, that— 9 ‘‘(A) explains why such petitioner believes 10 that the Federal order respondent poses a risk 11 of imminent personal injury to self or another 12 individual, by purchasing, possessing, or receiv- 13 ing a firearm or ammunition; and 14 ‘‘(B) describes the interactions and con- 15 versations of the petitioner with— 16 ‘‘(i) the respondent; or 17 ‘‘(ii) another individual, if such peti- 18 tioner believes that information obtained 19 from that individual is credible and reli- 20 able. 21 ‘‘(3) STANDARD FOR ISSUANCE OF ORDER.—A 22 court may issue an ex parte Federal order only upon 23 a finding of probable cause to believe that— 24 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 3018 IH ‘‘(A) the Federal order respondent poses a 1 risk of imminent personal injury to self or an- 2 other individual, by purchasing, possessing, or 3 receiving a firearm or ammunition; and 4 ‘‘(B) the order is necessary to prevent the 5 injury described in subparagraph (A). 6 ‘‘(4) DURATION.—An ex parte Federal order 7 shall expire on the earlier of— 8 ‘‘(A) the date that is 14 days after the 9 date of issuance; or 10 ‘‘(B) the date on which the court deter- 11 mines whether to issue a long-term Federal 12 order with respect to the respondent. 13 ‘‘(d) LONG-TERM FEDERAL ORDERS.— 14 ‘‘(1) HEARING REQUIRED.—If a court receives 15 a petition for a long-term Federal extreme risk pro- 16 tection order for a respondent under subsection (b), 17 the court shall hold a hearing to determine whether 18 to issue a long-term Federal order with respect to 19 the respondent either— 20 ‘‘(A)(i) if the court issues an ex parte 21 order with respect to the respondent, not later 22 than 72 hours after the ex parte order is served 23 on the respondent; or 24 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 3018 IH ‘‘(ii) if the respondent waives the right to 1 a hearing within the 72-hour period under 2 clause (i), or the court does not issue an ex 3 parte order, within 14 days after the date on 4 which the court receives the petition; or 5 ‘‘(B) in no event later than 14 days after 6 the date on which the court receives the peti- 7 tion. 8 ‘‘(2) NOTICE AND OPPORTUNITY TO BE 9 HEARD.— 10 ‘‘(A) IN GENERAL.—The court shall pro- 11 vide the Federal order respondent with notice 12 and the opportunity to be heard at a hearing 13 under this subsection, sufficient to protect the 14 due process rights of the respondent. 15 ‘‘(B) RIGHT TO COUNSEL.— 16 ‘‘(i) IN GENERAL.—At a hearing 17 under this subsection, the Federal order 18 respondent may be represented by counsel 19 who is— 20 ‘‘(I) chosen by the respondent; 21 and 22 ‘‘(II) authorized to practice at 23 such a hearing. 24 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 3018 IH ‘‘(ii) COURT-PROVIDED COUNSEL.—If 1 the Federal order respondent is financially 2 unable to obtain representation by counsel, 3 the court, at the request of the respondent, 4 shall ensure, to the extent practicable, that 5 the respondent is represented by an attor- 6 ney with respect to the petition. 7 ‘‘(3) BURDEN OF PROOF; STANDARD.—At a 8 hearing under this subsection, the Federal order pe- 9 titioner— 10 ‘‘(A) shall have the burden of proving all 11 material facts; and 12 ‘‘(B) shall be required to demonstrate, by 13 clear and convincing evidence, that— 14 ‘‘(i) the respondent to such order 15 poses a risk of personal injury to self or 16 another individual, during the period to be 17 covered by the proposed Federal extreme 18 risk protection order, by purchasing, pos- 19 sessing, or receiving a firearm or ammuni- 20 tion; and 21 ‘‘(ii) the order is necessary to prevent 22 the injury described in clause (i). 23 ‘‘(4) ISSUANCE.—Upon a showing of clear and 24 convincing evidence under paragraph (3), the court 25 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 3018 IH shall issue a long-term Federal order with respect to 1 the respondent that shall be in effect for a period of 2 not more than 180 days. 3 ‘‘(5) DENIAL.—If the court finds that there is 4 not clear and convincing evidence to support the 5 issuance of a long-term Federal order, the court 6 shall dissolve any ex parte Federal order then in ef- 7 fect with respect to the respondent. 8 ‘‘(6) RENEWAL.— 9 ‘‘(A) NOTICE OF SCHEDULED EXPIRA- 10 TION.—Thirty days before the date on which a 11 long-term Federal order is scheduled to expire, 12 the court that issued the order shall— 13 ‘‘(i) notify the petitioner and the re- 14 spondent to such order that the order is 15 scheduled to expire; and 16 ‘‘(ii) advise the petitioner and the re- 17 spondent of the procedures for seeking a 18 renewal of the order under this paragraph. 19 ‘‘(B) PETITION.—If a family or household 20 member of the Federal order respondent, or a 21 law enforcement officer, believes that the condi- 22 tions under paragraph (3)(B) continue to apply 23 with respect to a respondent who is subject to 24 a long-term Federal order, the family or house- 25 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 3018 IH hold member or law enforcement officer may 1 submit to the court that issued the order a peti- 2 tion for a renewal of the order. 3 ‘‘(C) HEARING.—A court that receives a 4 petition submitted under subparagraph (B) 5 shall hold a hearing to determine whether to 6 issue a renewed long-term Federal order with 7 respect to the respondent. 8 ‘‘(D) APPLICABLE PROCEDURES.—The re- 9 quirements under paragraphs (2) through (5) 10 shall apply to the consideration of a petition for 11 a renewed long-term Federal order submitted 12 under subparagraph (B) of this paragraph. 13 ‘‘(E) ISSUANCE.—Upon a showing by clear 14 and convincing evidence that the conditions 15 under paragraph (3)(B) continue to apply with 16 respect to the respondent, the court shall issue 17 a renewed long-term Federal order with respect 18 to the respondent. 19 ‘‘(e) FACTORS TO CONSIDER.—In determining 20 whether to issue a Federal extreme risk protection order, 21 a court— 22 ‘‘(1) shall consider factors including— 23 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 3018 IH ‘‘(A) a recent threat or act of violence by 1 the respondent directed toward another indi- 2 vidual; 3 ‘‘(B) a recent threat or act of violence by 4 the respondent directed toward self; 5 ‘‘(C) a recent act of cruelty to an animal 6 by the respondent; and 7 ‘‘(D) evidence of ongoing abuse of a con- 8 trolled substance or alcohol by the respondent 9 that has led to a threat or act of violence di- 10 rected to self or another individual; and 11 ‘‘(2) may consider other factors, including— 12 ‘‘(A) the reckless use, display, or bran- 13 dishing of a firearm by the respondent; 14 ‘‘(B) a history of violence or attempted vio- 15 lence by the respondent against another indi- 16 vidual; and 17 ‘‘(C) evidence of an explicit or implicit 18 threat made by the person through any medium 19 that demonstrate that the person poses a risk 20 of personal injury to self or another individual. 21 ‘‘(f) RELINQUISHMENT OF FIREARMS AND AMMUNI- 22 TION.— 23 ‘‘(1) ORDER OF SURRENDER.—Upon issuance 24 of an ex parte Federal order or long-term Federal 25 VerDate Sep 11 2014 04:27 May 16, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3018.IH H3018 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •HR 3018 IH order, the court shall order the respondent to such 1 order to surrender all firearms and ammunition that 2 the respondent possesses or owns, in or affecting 3 interstate commerce, as well as any permit author- 4 izing the respondent to purchase or possess firearms 5 (including a concealed carry permit), to— 6 ‘‘(A) the United States Marshals Service; 7 or 8 ‘‘(B) a designated law enforcement officer. 9 ‘‘(2) SURRENDER AND REMOVAL.— 10 ‘‘( [Text truncated for display. 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