Section 1 Short title
This Act may be cited as the “Protecting Our Communities and Rights Act of 2018”.
Protecting Our Communities and Rights Act of 2018
A BILL
To provide States with funding to establish new tools to prevent suicide and violence, and for other purposes.
Sec. 2 Definitions
In this Act—
the term family member means, with respect to an individual, a spouse, child, parent, sibling, grandchild, or grandparent of the individual, a person with whom the individual shares a child in common, the legal guardian of the individual, or a person who cohabits or has cohabited with the individual within the previous 12 months;
the term firearm has the meaning given the term in section 921 of title 18, United States Code;
the term extreme risk protection order means a written order, issued by a State court or signed by a magistrate prohibiting the respondent from purchasing, possessing, or receiving a firearm; and
the term law enforcement officer means a public servant authorized by State law or by a State government agency to engage in or supervise the prevention, detection, investigation, or prosecution of a criminal offense.
Sec. 3 National extreme risk protection order law
Enactment of extreme risk protection order law— In order to receive a grant under section 4, a State shall have in effect a law that authorizes the issuance of an extreme risk protection order in accordance with subsection (b).
Requirements for extreme risk protection orders— Legislation required under subsection (a) shall be subject to the following requirements:
Generalized concerns insufficient— A generalized concern related to any hazards posed by firearm ownership or use generally shall not constitute sufficient basis for the issuance or renewal of an extreme risk protection order under this section.
Application for preliminary ex parte extreme risk protection order— A family member or a law enforcement officer, whether acting on the officer’s own initiative or in response to a complaint the officer has substantiated through independent investigation, may submit an application to a State court for the issuance of a preliminary ex parte extreme risk protection order, on a form designed by the court, that—
describes the facts and circumstances necessitating that a preliminary ex parte extreme risk protection order be issued against the respondent;
is signed by the applicant, under oath; and
includes any additional information required by the State court or magistrate to demonstrate that the respondent poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person.
Standard for issuance of a preliminary ex parte order—
In general— A State court or magistrate may issue a preliminary ex parte extreme risk protection order upon finding by a preponderance of evidence that the respondent poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person. No such order shall remain in effect for more than 21 days unless the respondent is detained for or submits to an evaluation for commitment to a mental institution or for assisted outpatient treatment, in which case the preliminary order may be extended for the duration of any such commitment or treatment. Before issuing an order under this paragraph, the court or magistrate shall consider whether the respondent meets the applicable standard for involuntary observation, temporary commitment, or any other procedure that begins the State’s process for involuntary commitment or assisted outpatient treatment. If the court or magistrate determines that the respondent meets such standard, then, in addition to issuing a preliminary ex parte extreme risk protection order, the court or magistrate shall order the respondent to undergo a mental evaluation to determine the most appropriate treatment, including involuntary commitment or assisted outpatient treatment, and may issue an order requiring the respondent to undergo such treatment.
Application to be made under oath— A State court or magistrate shall, before issuing a preliminary ex parte extreme risk protection order—
examine under oath the individual who applied for the order under paragraph (2) and any witnesses the individual produces; or
require that the individual or any witness submit a signed affidavit, subject to the penalties of perjury, which describes the facts the applicant or witness believes establish the grounds of the application.
Limitation on firearm prohibitions based on ex parte proceedings— Any restriction imposed pursuant to a preliminary ex parte order, which is based on ex parte proceedings shall be limited to receiving firearms or transporting or carrying firearms in public.
Reporting of preliminary ex parte extreme risk protection order— The court shall notify the Department of Justice and comparable State agency of the issuance of the preliminary ex parte extreme risk protection order not later than 48 hours after issuing the order. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice and the comparable State agency.
Hearing on a permanent extreme risk protection order—
In general— Not later than 14 days after the date on which a court issues a preliminary ex parte extreme risk protection order, the issuing court, or another court in the same jurisdiction, shall hold a hearing to determine whether to issue a permanent extreme risk protection order and, if applicable, whether to continue procedures for involuntary commitment or assisted outpatient treatment. The respondent shall have the opportunity to appear with counsel, present opposing witnesses, and cross-examine the petitioner or any witnesses offered by the petitioner.
Notice— A court may not issue a permanent extreme risk protection order unless the respondent receives actual notice of the hearing under subparagraph (A).
Burden of proof— At any hearing conducted under subparagraph (A), the State or petitioner shall have the burden of establishing by clear and convincing evidence that the respondent poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person.
Requirements upon issuance of a permanent order— If the court finds by clear and convincing evidence that the respondent poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person, the following shall apply:
The respondent shall be prohibited from possessing or receiving, or attempting to possess or receive, a firearm for a period not to exceed 1 year.
If the court determines that there is probable cause to believe that the respondent possesses a firearm when the order is issued, the court shall issue a warrant ordering the seizure of such firearm and shall further order the firearm to be retained pursuant to paragraph (7) for the duration of the permanent extreme risk protection order.
Seizure and temporary retention of firearms—
In general— In the case that a law enforcement officer takes possession of a firearm pursuant to a warrant issued pursuant to paragraph (6)(D)(ii), the law enforcement officer shall provide to the individual from whom the firearm was taken a receipt, which includes the make, model, caliber, finish, and serial number of any such firearm. In the case that an individual is not present at the time of the seizure, the law enforcement officer shall post the receipt at the location from which the firearm was seized.
Custody of seized firearms— A firearm seized pursuant to paragraph (6)(D)(ii) shall, for the duration of the permanent extreme risk protection order, be retained by the law enforcement agency that seized the firearm, or by a third party not prohibited from possessing or receiving a firearm, as specified by the court that issued the permanent extreme risk protection order.
Limitation on seizure of firearms— In the case that the location to be searched during the execution of a warrant to enforce a permanent extreme risk protection order is occupied by multiple parties, and a law enforcement officer executing the search determines that a firearm that is located during the search is owned by an individual other than the respondent named in the warrant, the firearm may not be seized if—
the firearm will be stored in a manner that ensures that the respondent named in the warrant does not have access to or control of the firearm; and
there is no probable cause to believe that the owner of the firearm does not lawfully possess the firearm.
Gun safe— In the case that the location to be searched during the execution of a warrant issued pursuant to paragraph (6)(D)(ii) is occupied by multiple parties, and a law enforcement officer executing the search locates a gun safe, which the officer determines is owned by an individual other than the individual named in the warrant, the contents of the gun safe shall not be searched except in the owner’s presence and with the owner’s consent.
Return of firearm to rightful owner— In the case that any individual who is not subject to an extreme risk protection order can demonstrate title to a firearm seized pursuant to a warrant issued pursuant to paragraph (6)(D)(ii), the firearm shall be returned to the lawful owner as soon as possible and without an additional order of a court.
Petition for rescission of a permanent extreme risk protection order— An individual subject to a permanent extreme risk protection order may at any time during the effective period of the order file one petition with the issuing court to rescind the permanent extreme risk protection order. The court shall hold a hearing on the petition within 14 days and grant the petition if the individual proves by a preponderance of evidence that his or her possession of a firearm does not pose an imminent, particularized, and substantial risk of death or serious bodily injury to the individual or another person.
Return of firearms to individual subject to an extreme risk protection order— Any firearms seized pursuant to a warrant issued pursuant to paragraph (6)(D)(ii) shall be returned to the respondent within 5 business days of the expiration or rescission of the order. Notwithstanding any other provision of law, the court may require that the respondent submit to an inquiry through the national instant criminal background check system as a condition of receiving the firearm.
Renewing an extreme risk protection order— A family member or law enforcement officer may petition the court that issued a permanent extreme risk protection order to renew the order for a period not to exceed 1 year. The requirements and proceedings for renewal of an extreme risk protection order shall be the same as for the issuance of a permanent extreme risk protection order under paragraph (6). A permanent extreme risk protection order may not be renewed more than 2 times.
Notification—
In general— Except as provided in paragraph (5), the court shall notify the Department of Justice and comparable State agency of the issuance or renewal of an extreme risk protection order not later than 5 court days after issuing or renewing the order. The court shall also notify the Department of Justice and comparable State agency of the rescission or expiration of an extreme risk protection order not later than 5 court days after such rescission or expiration. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice and the comparable State agency.
Update of databases— As soon as practicable after receiving a notification under paragraph (5) or subparagraph (A), but in no case later than 48 hours, the Department of Justice and comparable State agency shall update the background check databases of the Department and agency, respectively, to reflect—
the issuance or renewal of the extreme risk protection order; or
the rescission or expiration of an extreme risk protection order.
Confidentiality protections— All information provided to the Department of Justice and comparable State agency pursuant to legislation described under this section shall be kept confidential, separate, and apart from all other records maintained by the Department of Justice and the comparable State agency.
Rule of construction— The use of terms in a State law that differ from the terms used in this section, or the definitions in section 2, shall not affect the availability of funds to a State under this section, provided that the State otherwise complies with the substantive requirements of this section. A State may not receive funds under this section if does not meet the substantive requirements of this section, including required findings, evidentiary standards, burdens of proof, limitations on duration and renewal of orders, and rules governing the return of firearms.
Sec. 4 Pause for safety grant program
In general— The Director of the Office of Community Oriented Policing Services of the Department of Justice may make grants to an eligible State to assist the State in carrying out the provisions of the State legislation described in section 3.
Eligible state— A State shall be eligible to receive grants under this section beginning on the date on which—
the State enacts legislation described in section 3; and
the Attorney General determines that the legislation of the State described in paragraph (1) complies with the requirements of section 3.
Use of funds— Funds awarded under this section may be used by a State to assist law enforcement agencies or the courts of the State in carrying out the provisions of the State legislation described in section 3.
Application— A State seeking a grant under this section shall submit to the Director of the Office of Community Oriented Policing Services an application at such time, in such manner, and containing such information, as the Director may reasonably require.
Authorization of appropriations— There is authorized to be appropriated such sums as may be necessary to carry out this section.
Sec. 5 Federal firearms prohibition
Section 922 of title 18, United States Code, is amended—
in subsection (d)—
in paragraph (8)(B)(ii), by striking “or” at the end;
in paragraph (9), by striking the period at the end and inserting “; or”; and
by inserting after paragraph (9) the following:
“(10) who is subject to a court order that—
“(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
“(B) restrains such person from possessing a firearm;
“(C) includes a finding by clear and convincing evidence that such person poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person; and
“(D) was initiated by a family member or law enforcement officer (as such terms are defined under section 2 of the Protecting Our Communities and Rights Act of 2018).”
in subsection (g)—
in paragraph (8)(C)(ii), by striking “or” at the end;
in paragraph (9), by striking the comma at the end and inserting “; or”; and
by inserting after paragraph (9) the following:
“(10) who is subject to a court order that—
“(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
“(B) restrains such person from possessing a firearm;
“(C) includes a finding by clear and convincing evidence that such person poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person; and
“(D) was initiated by a family member or law enforcement officer (as such terms are defined under section 2 of the Protecting Our Communities and Rights Act of 2018),”
Sec. 6 Severability; nonpreemption of State authority
Severability— If any provision of this Act, or an amendment made by this Act, or the application of such provision to any person or circumstance, is held to be invalid, the remainder of this Act, or an amendment made by this Act, or the application of such provision to other persons or circumstances, shall not be affected.
Nonpreemption— Nothing in this Act, or an amendment made by this Act, shall be construed to—
limit the ability of a State to enact legislation with additional due process protections or additional rights for a respondent or subject of an extreme risk protection order; or
supersede or contradict any State authority or law established or enacted before or after the date of enactment of this Act relating to the emergency removal of firearms from individuals determined to be an imminent danger to themselves or others.