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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2521 Introduced in Senate (IS)]

<DOC>

115th CONGRESS
  2d Session
                                S. 2521

      To authorize the issuance of extreme risk protection orders.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             March 8, 2018

 Mr. Blumenthal (for himself and Mr. Graham) introduced the following 
    bill; which was read twice and 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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Extreme Risk Protection 
Order Act of 2018''.

SEC. 2. EXTREME RISK PROTECTION ORDERS.

    (a) In General.--Chapter 44 of title 18, United States Code, is 
amended by adding at the end the following:
``Sec. 932. Extreme risk protection orders
    ``(a) Definitions.--In this section--
            ``(1) the term `designated law enforcement officer' means a 
        law enforcement officer, designated by a United States marshal, 
        who agrees to receive firearms, ammunition, and permit, as 
        applicable, surrendered under subsection (f);
            ``(2) the term `Director' means the Director of the 
        Administrative Office of the United States Courts;
            ``(3) the term `ex parte extreme risk protection order' or 
        `ex parte order' means an extreme risk protection order issued 
        under subsection (c);
            ``(4) the term `extreme risk protection order' means an 
        order issued by a Federal court that enjoins an individual from 
        purchasing, possessing, or receiving, in or affecting 
        interstate and foreign commerce, a firearm or ammunition;
            ``(5) the term `family or household member', with respect 
        to a respondent, means any--
                    ``(A) parent, spouse, sibling, or child related by 
                blood, marriage, or adoption to the respondent;
                    ``(B) dating partner of the respondent;
                    ``(C) individual who has a child in common with the 
                respondent, regardless of whether the individual has--
                            ``(i) been married to the respondent; or
                            ``(ii) lived together with the respondent 
                        at any time;
                    ``(D) individual who resides or has resided with 
                the respondent during the past year;
                    ``(E) domestic partner of the respondent;
                    ``(F) individual who has a legal parent-child 
                relationship with the respondent, including a 
                stepparent-stepchild and grandparent-grandchild 
                relationship; and
                    ``(G) individual who is acting or has acted as the 
                legal guardian of the respondent;
            ``(6) the term `law enforcement officer' means any officer, 
        agent, or employee of the Federal Government or a State 
        government, unit of local government, or Indian tribe (as 
        defined in section 4 of the Indian Self-Determination and 
        Education Assistance Act (25 U.S.C. 5304)) authorized--
                    ``(A) by law or by a government agency to engage in 
                or supervise the prevention, detection, or 
                investigation of any violation of criminal law; or
                    ``(B) by law to supervise sentenced criminal 
                offenders;
            ``(7) the term `long-term extreme risk protection order' or 
        `long-term order' means an extreme risk protection order issued 
        under subsection (d);
            ``(8) the term `mental health agency' means an agency of a 
        State or local government or its contracted agency that is 
        responsible for mental health services or co-occurring mental 
        health and substance abuse services; and
            ``(9) the term `national instant criminal background check 
        system' means the national instant criminal background check 
        system established under section 103 of the Brady Handgun 
        Violence Prevention Act (34 U.S.C. 40901).
    ``(b) Petition.--
            ``(1) In general.--A family or household member of the 
        applicable individual, or a law enforcement officer, may submit 
        to an appropriate district court of the United States a 
        petition requesting that the court issue an ex parte extreme 
        risk protection order or long-term extreme risk protection 
        order with respect to an individual.
            ``(2) No fees.--A court may not charge a petitioner any fee 
        for filing a petition under paragraph (1).
            ``(3) Confidentiality.--A petitioner who is a law 
        enforcement officer may provide the identity of the 
        petitioner's sources, and any identifying information, to the 
        court under seal.
    ``(c) Ex Parte Orders.--
            ``(1) Timing.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), a court that receives a petition for 
                an ex parte order under subsection (b) shall grant or 
                deny the petition on the date on which the petition is 
                submitted.
                    ``(B) Late petitions.--If a court receives a 
                petition for an ex parte order submitted under 
                subsection (b) too late in the day to permit effective 
                review, the court shall grant or deny the petition on 
                the next day of judicial business at a time early 
                enough to permit the court to file an order with the 
                clerk of the court during that day.
            ``(2) Evidence required.--Before issuing an ex parte order, 
        a court shall require that the petitioner submit a signed 
        affidavit, sworn to before the court, that--
                    ``(A) explains why the petitioner believes that the 
                respondent poses a risk of imminent personal injury to 
                himself or herself, or another individual, by 
                purchasing, possessing, or receiving a firearm or 
                ammunition; and
                    ``(B) describes the interactions and conversations 
                of the petitioner with--
                            ``(i) the respondent; or
                            ``(ii) another individual, if the 
                        petitioner believes that information obtained 
                        from that individual is credible and reliable.
            ``(3) Standard for issuance of order.--A court may issue an 
        ex parte order only upon a finding of probable cause to believe 
        that--
                    ``(A) the respondent poses a risk of imminent 
                personal injury to himself or herself, or another 
                individual, by purchasing, possessing, or receiving a 
                firearm or ammunition; and
                    ``(B) the order is necessary to prevent the injury 
                described in subparagraph (A).
            ``(4) Duration.--An ex parte order shall expire on the 
        earlier of--
                    ``(A) the date that is 14 days after the date of 
                issuance; or
                    ``(B) the date on which the court determines 
                whether to issue a long-term order with respect to the 
                respondent.
    ``(d) Long-Term Orders.--
            ``(1) Hearing required.--If a court receives a petition for 
        an extreme risk protection order for a respondent under 
        subsection (b), the court shall hold a hearing to determine 
        whether to issue a long-term order with respect to the 
        respondent either--
                    ``(A)(i) except as provided in clause (ii), not 
                later than 72 hours after the court issues an ex parte 
                order with respect to the respondent; or
                    ``(ii) if the court issues an ex parte order with 
                respect to the respondent but the order is not served 
                on the respondent within 72 hours of the issuance, not 
                later than 72 hours after the order is served on the 
                respondent; or
                    ``(B) if the respondent waives the right to a 
                hearing under subparagraph (A) or the court does not 
                issue an ex parte order, not later than 14 days after 
                the date on which the court receives the petition.
            ``(2) Notice and opportunity to be heard.--
                    ``(A) In general.--The court shall provide the 
                respondent with notice and the opportunity to be heard 
                at a hearing under this subsection, sufficient to 
                protect the due process rights of the respondent.
                    ``(B) Right to counsel.--
                            ``(i) In general.--At a hearing under this 
                        subsection, the respondent may be represented 
                        by counsel who is--
                                    ``(I) chosen by the respondent; and
                                    ``(II) authorized to practice at 
                                such a hearing.
                            ``(ii) Court-provided counsel.--If the 
                        respondent is financially unable to obtain 
                        representation by counsel, the court, at the 
                        request of the respondent, shall ensure to the 
                        extent practicable that the respondent is 
                        represented by an attorney for the Legal 
                        Services Corporation with respect to the 
                        petition.
            ``(3) Burden of proof; standard.--At a hearing under this 
        subsection, the petitioner--
                    ``(A) shall have the burden of proving all material 
                facts; and
                    ``(B) shall be required to demonstrate, by clear 
                and convincing evidence, that--
                            ``(i) the respondent poses a risk of 
                        personal injury to himself or herself, or 
                        another individual, during the period to be 
                        covered by the proposed extreme risk protection 
                        order, by purchasing, possessing, or receiving 
                        a firearm or ammunition; and
                            ``(ii) the order is necessary to prevent 
                        the injury described in clause (i).
            ``(4) Issuance.--Upon a showing of clear and convincing 
        evidence under paragraph (3), the court shall issue a long-term 
        order with respect to the respondent that shall be in effect 
        for a period of not more than 180 days.
            ``(5) Denial.--If the court finds that there is not clear 
        and convincing evidence to support the issuance of a long-term 
        order, the court shall dissolve any ex parte order then in 
        effect with respect to the respondent.
            ``(6) Renewal.--
                    ``(A) Notice of scheduled expiration.--Thirty days 
                before the date on which a long-term order is scheduled 
                to expire, the court that issued the order shall--
                            ``(i) notify the petitioner and the 
                        respondent that the order is scheduled to 
                        expire; and
                            ``(ii) advise the petitioner and the 
                        respondent of the procedures for seeking a 
                        renewal of the order under this paragraph.
                    ``(B) Petition.--If a family or household member of 
                the respondent, or a law enforcement officer, believes 
                that the conditions under paragraph (3)(B) continue to 
                apply with respect to a respondent who is subject to a 
                long-term order, the family or household member or law 
                enforcement officer may submit to the court that issued 
                the order a petition for a renewal of the order.
                    ``(C) Hearing.--A court that receives a petition 
                submitted under subparagraph (B) shall hold a hearing 
                to determine whether to issue a renewed long-term order 
                with respect to the respondent.
                    ``(D) Applicable procedures.--The requirements 
                under paragraphs (2) through (5) shall apply to the 
                consideration of a petition for a renewed long-term 
                order submitted under subparagraph (B) of this 
                paragraph.
                    ``(E) Issuance.--Upon a showing by clear and 
                convincing evidence that the conditions under paragraph 
                (3)(B) continue to apply with respect to the 
                respondent, the court shall issue a renewed long-term 
                order with respect to the respondent.
    ``(e) Factors To Consider.--In determining whether to issue an 
extreme risk protection order, a court--
            ``(1) shall consider factors including--
                    ``(A) recent threats or acts of violence by the 
                respondent directed toward other individuals;
                    ``(B) recent threats or acts of violence by the 
                respondent directed toward himself or herself;
                    ``(C) recent acts of cruelty to animals by the 
                respondent; and
                    ``(D) evidence of--
                            ``(i) recent criminal offenses by the 
                        respondent that involve controlled substances 
                        or alcohol; or
                            ``(ii) ongoing abuse of controlled 
                        substances or alcohol by the respondent; and
            ``(2) may consider other factors, including--
                    ``(A) the reckless use, display, or brandishing of 
                a firearm by the respondent;
                    ``(B) a history of violence or attempted violence 
                by the respondent against other individuals; and
                    ``(C) prior involuntary confinement of the 
                respondent in a hospital for individuals with 
                psychiatric disabilities.
    ``(f) Relinquishment of Firearms and Ammunition.--
            ``(1) Order of surrender.--Upon issuance of an ex parte 
        order or long-term order, the court shall order the respondent 
        to surrender all firearms and ammunition that the respondent 
        possesses or owns, in or affecting interstate commerce, as well 
        as any permit authorizing the respondent to purchase or possess 
        firearms (including a concealed carry permit), to--
                    ``(A) the United States Marshals Service; or
                    ``(B) a designated law enforcement officer.
            ``(2) Surrender and removal.--
                    ``(A) Manner of service.--
                            ``(i) Personal service.--Except as provided 
                        in clause (ii), a United States marshal or 
                        designated law enforcement officer shall serve 
                        an extreme risk protection order on a 
                        respondent by handing the order to the 
                        respondent.
                            ``(ii) Alternative service.--If the 
                        respondent cannot reasonably be located for 
                        service as described in clause (i), an extreme 
                        risk protection order may be served on the 
                        respondent in any manner authorized under the 
                        Federal Rules of Civil Procedure.
                    ``(B) Removal.--Except as provided in subparagraph 
                (C), a United States marshal or designated law 
                enforcement officer serving an extreme risk protection 
                order personally on the respondent shall--
                            ``(i) request that all firearms and 
                        ammunition, in or affecting interstate 
                        commerce, as well as any permit authorizing the 
                        respondent to purchase or possess firearms 
                        (including a concealed carry permit), that the 
                        respondent possesses or owns--
                                    ``(I) be immediately surrendered to 
                                the United States marshal or designated 
                                law enforcement officer; or
                                    ``(II) at the option of the 
                                respondent, be immediately surrendered 
                                and sold to a federally licensed 
                                firearms dealer; and
                            ``(ii) take possession of all firearms and 
                        ammunition described in clause (i) that are not 
                        sold under subclause (II) of that clause, as 
                        well as any permit described in that clause, 
                        that are--
                                    ``(I) surrendered;
                                    ``(II) in plain sight; or
                                    ``(III) discovered pursuant to a 
                                lawful search.
                    ``(C) Alternative surrender.--If a United States 
                marshal or designated law enforcement officer is not 
                able to personally serve an extreme risk protection 
                order under subparagraph (A)(i), or is not reasonably 
                able to take custody of the firearms, ammunition, and 
                permits under subparagraph (B), the respondent shall 
                surrender the firearms, ammunition, and permits in a 
                safe manner to the control of a United States marshal 
                or designated law enforcement officer not later than 48 
                hours after being served with the order.
            ``(3) Receipt.--
                    ``(A) Issuance.--At the time of surrender or 
                removal under paragraph (2), a United States marshal or 
                designated law enforcement officer taking possession of 
                a firearm, ammunition, or a permit pursuant to an 
                extreme risk protection order shall--
                            ``(i) issue a receipt identifying all 
                        firearms, ammunition, and permits that have 
                        been surrendered or removed; and
                            ``(ii) provide a copy of the receipt issued 
                        under clause (i) to the respondent.
                    ``(B) Filing.--Not later than 72 hours after 
                service of an order under paragraph (2)(A), the United 
                States marshal who served the order or designated 
                another law enforcement officer to do so shall--
                            ``(i) file the original receipt issued 
                        under subparagraph (A) of this paragraph with 
                        the court that issued the extreme risk 
                        protection order; and
                            ``(ii) ensure that the United States 
                        Marshals Service retains a copy of the receipt.
                    ``(C) Designated law enforcement officer.--If a 
                designated law enforcement officer issues a receipt 
                under subparagraph (A), the officer shall submit the 
                original receipt and a copy of the receipt to the 
                appropriate United States marshal to enable the United 
                States marshal to comply with subparagraph (B).
            ``(4) Forfeiture.--If a respondent knowingly attempts, in 
        violation of an extreme risk protection order, to access a 
        firearm, ammunition, or a permit that was surrendered or 
        removed under this subsection, the firearm, ammunition, or 
        permit shall be subject to seizure and forfeiture under section 
        924(d).
    ``(g) Return of Firearms and Ammunition.--
            ``(1) Notice.--If an extreme risk protection order is 
        dissolved, or expires and is not renewed, the court that issued 
        the order shall order the United States Marshals Service to--
                    ``(A) confirm, through the national instant 
                criminal background check system and any other relevant 
                law enforcement databases, that the respondent may 
                lawfully own and possess firearms and ammunition; and
                    ``(B)(i) if the respondent may lawfully own and 
                possess firearms and ammunition, notify the respondent 
                that the respondent may retrieve each firearm, 
                ammunition, or permit surrendered by or removed from 
                the respondent under subsection (f); or
                    ``(ii) if the respondent may not lawfully own or 
                possess firearms and ammunition, notify the respondent 
                that each firearm, ammunition, or permit surrendered by 
                or removed from the respondent under subsection (f) 
                will be returned only when the respondent demonstrates 
                to the United States Marshals Service that the 
                respondent may lawfully own and possess firearms and 
                ammunition.
            ``(2) Return.--If an extreme risk protection order is 
        dissolved, or expires and is not renewed, and the United States 
        Marshals Service confirms under paragraph (1)(A) that the 
        respondent may lawfully own and possess firearms and 
        ammunition, the court that issued the order shall order the 
        entity that possesses each firearm, ammunition, or permit 
        surrendered by or removed from the respondent under subsection 
        (f) to return those items to the respondent.
    ``(h) Return of Firearms and Ammunition Improperly Received.--If a 
court, in a hearing under subsection (d), determines that a firearm or 
ammunition surrendered by or removed from a respondent under subsection 
(f) is owned by an individual other than the respondent, the court may 
order the United States marshal or designated law enforcement officer 
in possession of the firearm or ammunition to transfer the firearm or 
ammunition to that individual if--
            ``(1) the individual may lawfully own and possess firearms 
        and ammunition; and
            ``(2) the individual will not provide the respondent with 
        access to the firearm or ammunition.
    ``(i) Penalty for False Reporting or Frivolous Petitions.--An 
individual who knowingly submits materially false information to the 
court in a petition for an extreme risk protection order under this 
section, or who knowingly files such a petition that is frivolous, 
unreasonable, or without foundation, shall be fined not less than 
$1,000, in addition to any other penalty authorized by law, as the 
court deems necessary to deter such abuse of process.
    ``(j) Model Policy.--
            ``(1) In general.--The Director shall draft a model policy 
        to maximize the accessibility of extreme risk protection 
        orders.
            ``(2) Contents.--In drafting the model policy under 
        paragraph (1), the Director shall--
                    ``(A) ensure that State and local law enforcement 
                officers and members of the public without legal 
                training are able to easily file petitions for extreme 
                risk protection orders;
                    ``(B) prescribe outreach efforts by employees of 
                the district courts of the United States to familiarize 
                relevant law enforcement officers and the public with 
                the procedures for filing petitions, either--
                            ``(i) through direct outreach; or
                            ``(ii) in coordination with--
                                    ``(I) relevant officials in the 
                                executive or legislative branch of the 
                                Federal Government; or
                                    ``(II) with State and local 
                                officials;
                    ``(C) prescribe policies for allowing the filing of 
                petitions and prompt adjudication of petitions on 
                weekends and outside of normal court hours;
                    ``(D) prescribe policies for coordinating with law 
                enforcement agencies to ensure the safe, timely, and 
                effective service of extreme risk protection orders and 
                relinquishment of firearms, ammunition, and permits, as 
                applicable; and
                    ``(E) identify governmental and non-governmental 
                resources and partners to help officials of the 
                district courts of the United States coordinate with 
                civil society organizations to ensure the safe and 
                effective implementation of this section.
    ``(k) Reporting.--
            ``(1) Individual reports.--
                    ``(A) In general.--Not later than 2 court days 
                after the date on which a court issues or dissolves an 
                extreme risk protection order under this section or an 
                extreme risk protection order expires without being 
                renewed, the court shall notify--
                            ``(i) the Attorney General;
                            ``(ii) each relevant mental health agency 
                        in the State in which the order is issued; and
                            ``(iii) State and local law enforcement 
                        officials in the jurisdiction in which the 
                        order is issued, including the national instant 
                        criminal background check system single point 
                        of contact for the State of residence of the 
                        respondent, where applicable.
                    ``(B) Format.--A court shall submit a notice under 
                subparagraph (A) in an electronic format, in a manner 
                prescribed by the Attorney General.
                    ``(C) Update of databases.--As soon as practicable 
                and not later than 5 days after receiving a notice 
                under subparagraph (A), the Attorney General shall 
                update the background check databases of the Attorney 
                General to reflect the prohibitions articulated in the 
                applicable extreme risk protection order.
            ``(2) Annual reports.--Not later than 1 year after the date 
        of enactment of the Federal Extreme Risk Protection Order Act 
        of 2018, and annually thereafter, the Director shall submit to 
        the Committee on the Judiciary of the Senate and the Committee 
        on the Judiciary of the House of Representatives a report that 
        includes, with respect to the preceding year--
                    ``(A) the number of petitions for ex parte orders 
                filed, as well as the number of such orders issued and 
                the number denied;
                    ``(B) the number of petitions for long-term orders 
                filed, as well as the number of such orders issued and 
                the number denied;
                    ``(C) the number of petitions for renewals of long-
                term orders filed, as well as the number of such orders 
                issued and the number denied; and
                    ``(D) the number of cases in which a court has 
                issued a penalty for false reporting or frivolous 
                petitions.''.
    (b) Technical and Conforming Amendments.--
            (1) Table of sections.--The table of sections for chapter 
        44 of title 18, United States Code, is amended by adding at the 
        end the following:

``932. Extreme risk protection orders.''.
            (2) Forfeiture.--Section 924(d)(3) of title 18, United 
        States Code, is amended--
                    (A) in subparagraph (E), by striking ``and'' at the 
                end;
                    (B) in subparagraph (F), by striking the period at 
                the end and inserting ``; and''; and
                    (C) by adding at the end the following:
                    ``(G) any attempt to violate an extreme risk 
                protection order issued under section 932.''.

SEC. 3. BRADY ACT PROHIBITORS.

    Section 922 of title 18, United States Code, is amended--
            (1) in subsection (d)--
                    (A) in paragraph (8), 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 the 
        person from purchasing, possessing, or receiving a firearm or 
        ammunition.''; and
            (2) in subsection (g)--
                    (A) in paragraph (8), 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) who is subject to a court order that prohibits the 
        person from purchasing, possessing, or receiving a firearm or 
        ammunition,''.

SEC. 4. SEVERABILITY.

    If any provision of this Act or any amendment made by this Act, or 
any application of such provision or amendment to any person or 
circumstance, is held to be invalid, the remainder of the provisions of 
this Act and the amendments made by this Act and the application of the 
provision or amendment to any other person or circumstance shall not be 
affected.

SEC. 5. PREEMPTION.

    Nothing in this Act or an amendment made by this Act shall be 
construed to preempt any State law or policy.
                                 <all>
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