Federal Extreme Risk Protection Order Act of 2021

To authorize the issuance of extreme risk protection orders. 1. Short title This Act may be cited as the Federal Extreme Risk Protection Order Act of 2021 2. Federal extreme risk protection orders (a) In general Chapter 44 932. Extreme risk protection orders (a) Definitions In this section— (1) the term court (2) the term designated law enforcement officer (3) the term Director (4) the term ex parte Federal extreme risk protection order ex parte Federal order (5) the term Federal extreme risk protection order (6) the term family or household member (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; (7) the term Federal order petitioner (8) the term Federal order respondent (9) the term long-term Federal extreme risk protection order long-term Federal order (10) the term mental health agency (11) the term national instant criminal background check system 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 Federal extreme risk protection order or long-term Federal extreme risk protection order with respect to an individual. (2) No fees A court or law enforcement agency may not charge a petitioner or respondent any fee for— (A) filing, issuing, serving, or reporting an extreme risk protection order; (B) a petition for an extreme risk protection order or any pleading, subpoena, warrant, or motion in connection with an extreme risk protection order; or (C) any order or order to show cause necessary to obtain or give effect to this section. (3) Confidentiality A Federal order 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 Federal 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 Federal 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 Federal order, a court shall require that the petitioner for such order submit a signed affidavit, sworn to before the court, that— (A) explains why such petitioner believes that the Federal order respondent poses a risk of imminent personal injury to self 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 such 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 Federal order only upon a finding of probable cause to believe that— (A) the Federal order respondent poses a risk of imminent personal injury to self 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 Federal 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 Federal order with respect to the respondent. (d) Long-term Federal orders (1) Hearing required If a court receives a petition for a long-term Federal extreme risk protection order for a respondent under subsection (b), the court shall hold a hearing to determine whether to issue a long-term Federal order with respect to the respondent either— (A) (i) if the court issues an ex parte order with respect to the respondent, not later than 72 hours after the ex parte order is served on the respondent; or (ii) if the respondent waives the right to a hearing within the 72-hour period under clause (i), or the court does not issue an ex parte order, within 14 days after the date on which the court receives the petition; or (B) in no event 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 Federal order 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 Federal order 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 Federal order 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 with respect to the petition. (3) Burden of proof; standard At a hearing under this subsection, the Federal order 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 to such order poses a risk of personal injury to self or another individual, during the period to be covered by the proposed Federal 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 Federal 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 Federal order, the court shall dissolve any ex parte Federal 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 Federal order is scheduled to expire, the court that issued the order shall— (i) notify the petitioner and the respondent to such order 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 Federal order 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 Federal 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 Federal 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 Federal 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 Federal order with respect to the respondent. (e) Factors to consider In determining whether to issue a Federal extreme risk protection order, a court— (1) shall consider factors including— (A) a recent threat or act of violence by the respondent directed toward another individual; (B) a recent threat or act of violence by the respondent directed toward self; (C) a recent act of cruelty to an animal by the respondent; and (D) evidence of ongoing abuse of a controlled substance or alcohol by the respondent that has led to a threat or act of violence directed to self or another individual; 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 another individual; and (C) evidence of an explicit or implicit threat made by the person through any medium that demonstrate that the person poses a risk of personal injury to self or another individual. (f) Relinquishment of firearms and ammunition (1) Order of surrender Upon issuance of an ex parte Federal order or long-term Federal order, the court shall order the respondent to such order 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 a Federal extreme risk protection order on a respondent by handing the order to the respondent to such order. (ii) Alternative service If the respondent cannot reasonably be located for service as described in clause (i), a Federal 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 a Federal 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 a Federal 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 a Federal 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 to such order. (B) Filing Not later than 72 hours after issuance of a receipt under subparagraph (A), the United States marshal who issued the receipt 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 Federal 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 a Federal 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 a Federal 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 to such order 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 a Federal 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 a Federal 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 more than $5,000, or imprisoned not more than 5 years, or both, except to the extent that a greater sentence is otherwise provided by any other provision of 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 Federal extreme risk protection orders. (2) Contents In drafting the model policy under paragraph (1), the Director shall— (A) ensure that State, Tribal, and local law enforcement officers and members of the public without legal training are able to easily file petitions for Federal 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 relevant State, Tribal, 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 Federal 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 a Federal extreme risk protection order under this section or a Federal 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 Federal 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 2021, 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 Federal orders filed, as well as the number of such orders issued and the number denied, disaggregated by— (i) the jurisdiction; (ii) whether the individual authorized under subsection (b) to petition for a Federal extreme risk protection order is a law enforcement officer, or a family or household member, and in the case of a family or household member, which of subparagraphs (A) through (G) of subsection (a)(6) describes the relationship; and (iii) the alleged danger posed by the Federal order respondent, including whether the danger involved a risk of suicide, unintentional injury, domestic violence, or other interpersonal violence; (B) the number of petitions for long-term Federal orders filed, as well as the number of such orders issued and the number denied, disaggregated by— (i) the jurisdiction; (ii) whether the individual authorized under subsection (b) to petition for a Federal extreme risk protection order is a law enforcement officer, or a family or household member, and in the case of a family or household member, which of subparagraphs (A) through (G) of subsection (a)(6) describes the relationship; and (iii) the alleged danger posed by the Federal order respondent, including whether the danger involved a risk of suicide, unintentional injury, domestic violence, or other interpersonal violence; (C) the number of petitions for renewals of long-term Federal orders filed, as well as the number of such orders issued and the number denied; (D) the number of cases in which a court has issued a penalty for false reporting or frivolous petitions; (E) demographic data of Federal order petitioners, including race, ethnicity, national origin, sex, gender, age, disability, average annual income, and English language proficiency, if available; (F) demographic data of Federal order respondents, including race, ethnicity, national origin, sex, gender, age, disability, average annual income, and English language proficiency, if available; and (G) the total number of firearms removed pursuant to Federal extreme risk protection orders, and, if available, the number of firearms removed pursuant to each such order. (l) Training for Federal law enforcement officers (1) Training requirements The head of each Federal law enforcement agency shall require each Federal law enforcement officer employed by the agency to complete training in the safe, impartial, effective, and equitable use and administration of Federal extreme risk protection orders, including training to address— (A) bias based on race and racism, ethnicity, gender, sexual orientation, gender identity, religion, language proficiency, mental health condition, disability, and classism in the use and administration of Federal extreme risk protection orders; (B) the appropriate use of Federal extreme risk protection orders in cases of domestic violence, including the applicability of other policies and protocols to address domestic violence in situations that may also involve Federal extreme risk protection orders and the necessity of safety planning with the victim before law enforcement petitions for and executes a Federal extreme risk protection order, if applicable; (C) interacting with persons with mental, behavioral, or physical disabilities, or emotional distress, including de-escalation techniques and crisis intervention; (D) training on community relations; and (E) best practices for referring persons subject to Federal extreme risk protection orders and associated victims of violence to social service providers that may be available in the jurisdiction and appropriate for those individuals, including health care, mental health, substance abuse, and legal services, employment and vocational services, housing assistance, case management, and veterans and disability benefits. (2) Training development Federal law enforcement agencies developing law enforcement training required under this section shall seek advice from domestic violence service providers (including culturally specific (as defined in section 40002 of the Violence Against Women Act of 1994 ( 34 U.S.C. 12291 (m) Rule of construction Nothing in this section or shall be construed to alter the requirements of subsections (d)(8) or (g)(8) of section 922, related to domestic violence protective orders. . (b) Technical and conforming amendments (1) Table of sections The table of sections for chapter 44 932. 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 (B) in subparagraph (F), by striking the period at the end and inserting ; and (C) by adding at the end the following: (G) any attempt to violate a Federal extreme risk protection order issued under section 932. . 3. Federal firearms prohibition Section 922 of title 18, United States Code, is amended— (1) in subsection (d)— (A) in paragraph (8)(B)(ii), by striking or (B) in paragraph (9), by striking the period at the end and inserting ; or (C) by inserting after paragraph (9) the following: (10) is subject to a court order that— (A) (i) was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate; or (ii) in the case of an ex parte order, relative to which notice and opportunity to be heard are provided— (I) within the time required by Federal, State, Tribal, or territorial law; and (II) in any event within a reasonable time after the order is issued, sufficient to protect the due process rights of the person; (B) prevents such person from possessing or receiving firearm; and (C) includes a finding that such person poses a danger of harm to self or others. ; and (2) in subsection (g)— (A) in paragraph (8)(C)(ii), by striking or (B) in paragraph (9), by striking the comma at the end and inserting ; or (C) by inserting after paragraph (9) the following: (10) is subject to a court order that— (A) (i) was issued after a hearing of which the person received actual notice, and at which the person had an opportunity to participate; or (ii) in the case of an ex parte order, relative to which notice and opportunity to be heard are provided— (I) within the time required by Federal, State, Tribal, or territorial law; and (II) in any event within a reasonable time after the order is issued, sufficient to protect the due process rights of the person; (B) prevents such a person from possessing or receiving firearms; and (C) includes a finding that such person poses a danger of harm to self or others, . 4. 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. 5. Effective date This Act and the amendments made by this Act shall take effect on the date that is 180 days after the date of enactment of this Act. 6. Preemption Nothing in this Act or an amendment made by this Act shall be construed to preempt any State law or policy. June 3, 2022 Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Summary: Federal Extreme Risk Protection Order Act of 2022 This bill authorizes and establishes procedures for federal courts to issue federal extreme risk protection orders. Additionally, the bill establishes grants to support the implementation of extreme risk protection order laws at the state and local levels, extends federal firearms restrictions to individuals who are subject to extreme risk protection orders, and expands related data collection. Extreme risk protection order laws, or red flag laws, generally allow certain individuals (e.g., law enforcement officers or family members) to petition a court for a temporary order that prohibits an at-risk individual from purchasing and possessing firearms. Among its provisions, the bill authorizes a family or household member, or a law enforcement officer, to petition for a federal extreme risk protection order with respect to an individual who poses a risk to themselves or others; directs the Department of Justice to establish a grant program to help states, local governments, Indian tribes, and other entities implement extreme risk protection order laws; extends federal restrictions on the receipt, possession, shipment, and transportation of firearms and ammunition to individuals who are subject to extreme risk protection orders; and requires the Federal Bureau of Investigation to compile records from federal, tribal, and state courts and other agencies that identify individuals who are subject to extreme risk protection orders.