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Title II — Extreme Risk Protection Orders

S. 4271 · 116th Congress · Jul 22, 2020 · Lineage

II Extreme Risk Protection Orders

201. Definitions

In this title:
(1)
Eligible entity— The term eligible entity means—
(A)
a State or Indian Tribe—
(i)
that enacts legislation described in section 203;
(ii)
with respect to which the Attorney General determines that the legislation described in clause (i) complies with the requirements of section 203; and
(iii)
that certifies to the Attorney General that the State or Indian Tribe shall—
(I)
use the grant for the purposes described in section 202(b); and
(II)
allocate not less than 25 percent of the amount received under a grant under section 202 for training for law enforcement officers; or
(B)
a unit of local government or other public or private entity that—
(i)
is located in a State or in the territory under the jurisdiction of an Indian Tribe that meets the requirements described in clauses (i) and (ii) of subparagraph (A); and
(ii)
certifies to the Attorney General that the unit of local government or entity shall—
(I)
use the grant for the purposes described in section 202(b); and
(II)
allocate not less than 25 percent of the amount received under a grant under section 202 for training for law enforcement officers.
(2)
Extreme risk protection order— The term extreme risk protection order means a written order or warrant, issued by a State or Tribal court or signed by a magistrate (or other comparable judicial officer), the primary purpose of which is to reduce the risk of firearm-related death or injury by doing one or more of the following:
(A)
Prohibiting a named individual from having under the custody or control of the individual, owning, purchasing, possessing, or receiving a firearm.
(B)
Having a firearm removed or requiring the surrender of firearms from a named individual.
(3)
Firearm— The term firearm has the meaning given the term in section 921 of title 18, United States Code.
(4)
Indian tribe— The term Indian Tribe has the meaning given the term Indian tribe in section 1709 of the Public Safety and Community Policing Act of 1994 (34 U.S.C. 10389).
(5)
Law enforcement officer— The term law enforcement officer means a public servant authorized by State, local, or Tribal law or by a State, local, or Tribal government agency to—
(A)
engage in or supervise the prevention, detection, investigation, or prosecution of an offense; or
(B)
supervise sentenced criminal offenders.
(6)
Petitioner— The term petitioner means an individual authorized under State or Tribal law to petition for an extreme risk protection order.
(7)
State— The term State means—
(A)
a State;
(B)
the District of Columbia;
(C)
the Commonwealth of Puerto Rico; and
(D)
any other territory or possession of the United States.
(8)
Unit of local government— The term unit of local government has the meaning given the term in section 901 of the Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C. 10251).

202. Extreme risk protection grant program

(a)
In general— The Director of the Office of Community Oriented Policing Services of the Department of Justice shall establish a program under which, from amounts made available to carry out this section, the Director may make grants to eligible entities to assist in carrying out the provisions of the legislation described in section 203.
(b)
Use of funds— Funds awarded under this section may be used by an applicant to—
(1)
enhance the capacity of law enforcement agencies and the courts of a State, unit of local government, or Indian Tribe by providing personnel, training, technical assistance, data collection, and other resources to carry out legislation described in section 203;
(2)
train judges, court personnel, and law enforcement officers to more accurately identify individuals whose access to firearms poses a danger of causing harm to themselves or others by increasing the risk of firearms suicide or interpersonal violence;
(3)
develop and implement law enforcement and court protocols, forms, and orders so that law enforcement agencies and the courts may carry out the provisions of the legislation described in section 203 in a safe and effective manner, including through the removal and storage of firearms pursuant to extreme risk protection orders under the legislation; and
(4)
raise public awareness and understanding of the legislation described in section 203 so that extreme risk protection orders may be issued in appropriate situations to reduce the risk of firearms-related death and injury.
(c)
Application— An eligible entity desiring a grant under this section shall submit to the Attorney General an application at such time, in such manner, and containing or accompanied by such information as the Attorney General may reasonably require.
(d)
Incentives— For each of fiscal years 2020 through 2024, the Attorney General shall give affirmative preference in awarding any discretionary grant awarded by the Bureau of Justice Assistance to a State or Indian Tribe that has enacted legislation described in section 203.
(e)
Authorization of appropriations— There are authorized to be appropriated such sums as are necessary to carry out this section.

203. National extreme risk protection order law

(a)
Requirements— Legislation described in this section is legislation that establishes requirements that are substantially similar to the following:
(1)
Application for extreme risk protection order— A petitioner, including a law enforcement officer, may submit an application to a State or Tribal court, on a form designed by the court or a State or Tribal agency, that—
(A)
describes the facts and circumstances justifying that an extreme risk protection order be issued against the named individual; and
(B)
is signed by the applicant, under oath.
(2)
Notice— The individual named in an application for an extreme risk protection order as described in paragraph (1) shall be given—
(A)
written notice of the application;
(B)
an opportunity to be heard on the matter in accordance with this section; and
(C)
an opportunity to voluntarily surrender any firearm in the possession of the individual.
(3)
Issuance of extreme risk protection orders—
(A)
Hearing—
(i)
In general— Upon receipt of an application described in paragraph (1), or request of an individual named in such application, the court shall order a hearing to be held not later than 30 days after the date of such application or request.
(ii)
Determination— After a hearing described in clause (i), if the court finds by a preponderance of the evidence that the respondent poses a danger of causing harm to himself or herself or to another individual by having access to a firearm, the court may issue an extreme risk protection order.
(B)
Length of extreme risk protection order— An extreme risk protection order shall be in effect until—
(i)
an order is entered terminating or superseding the extreme risk protection order; or
(ii)
the date, if any, specified in the extreme risk protection order.
(C)
Return of firearms— After a hearing conducted under this paragraph, if the Court finds that the respondent does not pose a substantial risk of personal injury to himself or herself or to another individual by having access to a firearm, the court shall order that each firearm surrendered, transferred, or removed under paragraph (5) shall be returned to the respondent.
(4)
Ex parte extreme risk protection orders—
(A)
In general— Upon receipt of an application described in paragraph (1), the court may issue an ex parte extreme risk protection order before conducting the hearing required under paragraph (3), if—
(i)
the application for an extreme risk protection order alleges that the respondent poses a danger of causing harm to himself, herself, or others in the near future by having access to a firearm; and
(ii)
the court finds there is reasonable cause to believe that the respondent poses a danger of causing harm to himself, herself, or others in the near future by having access to a firearm.
(B)
Length of ex parte extreme risk protection order— An ex parte extreme risk protection order shall be in effect for a period not to exceed 30 days, unless continued for good cause.
(5)
Surrender and removal of firearms—
(A)
In general— Upon receipt of notice under paragraph (1), the individual who is the subject of an extreme risk protection order application shall surrender to a law enforcement agency, or transfer to a third party, all firearms in the possession of the individual.
(B)
Removal— If an individual described in subparagraph (A) does not surrender or transfer all firearms in the possession of the individual, the firearms shall be removed by a law enforcement officer with appropriate jurisdiction.
(6)
Storage of removed firearms— All firearms removed by, or surrendered to, a law enforcement officer under paragraph (5) shall be retained by the law enforcement officer or appropriate law enforcement agency until the named individual regains his or her eligibility to possess firearms, except that the legislation may authorize a law enforcement agency to—
(A)
contract with a manufacturer, dealer, or importer licensed under chapter 44 of title 18, United States Code, for the secure storage of firearms; and
(B)
transfer the firearm upon proof that the named individual will no longer have access to the firearm.
(7)
Notification—
(A)
In general— A State or tribal court that issues an extreme risk protection order shall notify the Department of Justice or the comparable State or Tribal agency, as applicable, of the order as soon as practicable. Such notice shall be submitted in an electronic format, in a manner prescribed by the Department of Justice or the comparable State or Tribal agency.
(B)
Update of databases— As soon as practicable after receiving a notification under subparagraph (A), the Department of Justice or the comparable State or Tribal agency shall ensure the extreme risk protection order is reflected in the National Instant Criminal Background Check System.
(8)
Confidentiality protections— All personally identifiable information provided to the court, the Department of Justice, and comparable State or Tribal agencies shall be kept confidential, as required by the laws of the jurisdiction, except as necessary to carry out the legislation.
(b)
Additional authorities— Legislation described in this section may—
(1)
provide procedures for the termination of an extreme risk protection order;
(2)
provide procedures for the renewal of an extreme risk protection order;
(3)
establish burdens of proof for issuance of orders described in paragraphs (3) and (4) of subsection (a) that are higher than the burdens of proof required under those paragraphs;
(4)
limit the individuals who may submit an application described in subsection (a)(1), provided that, at a minimum, law enforcement officers are authorized to do so; and
(5)
include other authorizations or requirements that the State or Indian Tribe determines appropriate.

204. Federal firearms prohibition

(a)
In general— Section 922 of title 18, United States Code, is amended—
(1)
in subsection (d)—
(A)
in paragraph (8)(B)(ii), by striking “or” at the end;
(B)
in paragraph (9), by striking the period at the end and inserting “; or”; and
(C)
by inserting after paragraph (9) the following:

“(10) is subject to a court order that prohibits such person from having under his or her custody or control, owning, purchasing, possessing, or receiving any firearms, or requires the surrender or removal of firearms from the person, provided that the order—

“(A) is issued in a manner consistent with the due process rights of the person; and

“(B) is based on a finding that the person poses a danger of causing harm to himself, herself, or others by having access to a firearm.”

(2)
in subsection (g)—
(A)
in paragraph (8)(C)(ii), by striking “or” at the end;
(B)
in paragraph (9), by striking the comma at the end and inserting “; or”; and
(C)
by inserting after paragraph (9) the following:

“(10) is subject to a court order that prohibits such person from having under his or her custody or control, owning, purchasing, possessing, or receiving any firearms, or requires the surrender or removal of firearms from the person, provided that the order—

“(A) is issued in a manner consistent with the due process rights of the person; and

“(B) is based on a finding that the person poses a danger of causing harm to himself, herself, or others by having access to a firearm,”

(b)
Conforming amendment— Section 3(1) of the NICS Improvement Amendments Act of 2007 (34 U.S.C. 40903(1)) is amended by striking “section 922(g)(8)” and inserting “paragraph (8) or (10) of section 922(g)”.

205. Full faith and credit

Any extreme risk protection order issued under a State or Tribal law enacted in accordance with this title shall be accorded the same full faith and credit by the court of another State or Indian Tribe (the enforcing State or Indian Tribe) and enforced by the court and law enforcement personnel of the other State or Tribal government as if it were the order of the enforcing State or Tribe.