About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (May 8, 2019)

handle is hein.crs/govzpq0001 and id is 1 raw text is: Congressional Research Service ~Info rming te Veslat've debate since 1914 0 May 8, 2019 Firearm Red Flag Laws in the 116th Congress In the last year, federal and state legislators have shown increased interest in passing so-called red flag or extreme risk protection order firearm laws. In general, such laws permit courts to issue temporary orders barring particular persons from possessing guns based on some showing of imminent danger or a risk of misuse. Following the February 2018 shooting at Marjory Stoneman Douglas High School in Parkland, FL, states have increasingly considered and enacted red flag laws. Legislation has also been introduced in the 116th Congress that would supplement or incentivize these state laws, criminalize at the federal level violations of qualifying extreme risk protection orders, or both. The Senate Judiciary Committee held a hearing on the subject of red flag laws in March 2019. This In Focus provides an overview of the general features of red flag laws that have been enacted at the state level, briefly describes some of the red flag proposals in the 116th Congress, and notes the primary constitutional arguments that have been raised in favor of and in opposition to such laws. General Features of Red Flag Laws Red flag or extreme risk protection order laws generally provide procedures for certain persons to petition a court to order that firearms be temporarily taken or kept away from someone who poses a risk of committing gun violence. Currently, 15 states and the District of Columbia have passed some form of red flag law. These laws vary in the details, but common elements include the following: * Only specified persons may petition a court for an extreme risk protection order. Typically, qualified persons are limited to law enforcement officers and, in many cases, family or household members. * Both preliminary and final orders are available. A preliminary order may be entered ex parte, meaning that the person who is the subject of the order need not be given notice or appear. Such an order is typically of brief duration (anywhere from a few days to, at most, three weeks). After the person who is alleged to pose a risk of gun violence has been given notice and an opportunity to appear, a final order of longer duration may be entered. Final orders can last up to one year under most state provisions, with the opportunity for renewal. * Before an order can be entered, some factual showing must be made that the person for whom the order is sought poses a risk of using a firearm to harm himself or others, with the stringency of the requisite showing depending on whether an exparte or final order is requested. The standard of proof for many ex parte orders is reasonable or probable cause to believe the person poses an imminent risk. For final orders, clear and convincing evidence of a significant danger is often required. Upon entry and service of an order, the person who is the subject of the order must relinquish his or her firearms (if he or she possesses any) immediately or within a certain amount of time. In many states, a warrant will or can also be issued authorizing seizure by law enforcement. Proposals in the 1 16th Congress Legislation has been introduced in both houses that would, among other things, incentivize additional states to adopt red flag laws and/or criminalize possession of firearms by persons who are subject to extreme risk protection orders. Some of these measures are briefly described below. Incentivizing Adoption of State Legislation Though varying in the details, several bills-chiefly, H.R. 744, H.R. 1236, S. 7, and S. 506- would establish grant programs to aid in implementation of red flag laws, conditioning the receipt of such grants by states or Indian tribes on adoption of laws that meet certain requirements (e.g., standards of proof for extreme risk protection orders and time limits on such orders). Under H.R. 1236, S. 7, and S. 506, states and Indian tribes that have adopted qualifying laws would also be given affirmative preference in the award of other discretionary grants. S. 7 additionally would condition grant funding on a list of related requirements and prohibitions (e.g., requiring that ex parte orders be issued only on sworn affidavits or testimony). Further, the legislation would give states that have already enacted red flag laws that do not fully meet the requirements of the bill a one-year grace period during which they remain eligible to receive grant money so long as similar requirements are in place. Violations of Extreme Risk Protection Orders H.R. 744, H.R. 1236, H.R. 1745, S. 7, and S. 506 would amend Sections 922(d) and 922(g) of Title 18 of the U.S. Code. Section 922(g) currently criminalizes the possession, receipt, shipment, or transportation of firearms and ammunition by persons who fall into specific, risk-related categories (e.g., convicted felons). And Section 922(d), in current form, criminalizes the sale or disposal of firearms and ammunition to persons who fall into the same categories, provided that whoever sells or disposes of the firearms or ammunition knows or has reasonable cause to know of the disability. Generally, the five bills propose to add persons who are subject to extreme risk protection orders to the prohibited https:/crs repor.cong tess go

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most