Extreme Risk Protection Order Act of 2021
Bill: H.R.3480 | Sponsor: Rep. Carbajal, Salud O. (D-CA)
Policy area: Crime and Law Enforcement

Summary:
Extreme Risk Protection Order Act of 2021
This 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

To support State, Tribal, and local efforts to remove access to 
  firearms from individuals who are a danger to themselves or others 
               pursuant to court orders for this purpose.

    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 ``Extreme Risk Protection Order Act of 
2021''.

SEC. 2. EXTREME RISK PROTECTION ORDER GRANT PROGRAM.

    (a) Definitions.--In this section:
            (1) Eligible entity.--The term ``eligible entity'' means--
                    (A) a State or Indian Tribe--
                            (i) that enacts legislation described in 
                        subsection (c);
                            (ii) with respect to which the Attorney 
                        General determines that the legislation 
                        described in clause (i) complies with the 
                        requirements under subsection (c)(1); and
                            (iii) that certifies to the Attorney 
                        General that the State or Indian Tribe shall--
                                    (I) use the grant for the purposes 
                                described in subsection (b)(2); and
                                    (II) allocate not less than 25 
                                percent and not more than 70 percent of 
                                the amount received under a grant under 
                                subsection (b) for the development and 
                                dissemination of training for law 
                                enforcement officers in accordance with 
                                subsection (b)(4); 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 subsection (b)(2); and
                                    (II) allocate not less than 25 
                                percent and not more than 70 percent of 
                                the amount received under a grant under 
                                this section for the development and 
                                dissemination of training for law 
                                enforcement officers in accordance with 
                                subsection (b)(4).
            (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 
        1 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 
        title I of the Omnibus Crime Control and Safe Streets Act of 
        1968 (34 U.S.C. 10389).
            (5) Law enforcement officer.--The term ``law enforcement 
        officer'' means a public servant authorized by Federal, State, 
        local, or Tribal law or by a Federal, 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) Respondent.--The term ``respondent'' means an 
        individual named in the petition for an extreme risk protection 
        order or subject to an extreme risk protection order.
            (8) 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.
            (9) Unit of local government.--The term ``unit of local 
        government'' has the meaning given the term in section 901 of 
        title I of the Omnibus Crime Control and Safe Streets Act of 
        1968 (34 U.S.C. 10251).
    (b) Grant Program Established.--
            (1) 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 subsection (c).
            (2) Use of funds.--Funds awarded under this subsection may 
        be used by an applicant to--
                    (A) 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 enacted legislation 
                described in subsection (c);
                    (B) train judges, court personnel, health care and 
                legal professionals, 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;
                    (C) 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 enacted legislation described in subsection (c) in 
                a safe, equitable, and effective manner, including 
                through the removal and storage of firearms pursuant to 
                extreme risk protection orders under the enacted 
                legislation; and
                    (D) raise public awareness and understanding of the 
                enacted legislation described in subsection (c), 
                including through subgrants to community-based 
                organizations for the training of community members, so 
                that extreme risk protection orders may be issued in 
                appropriate situations to reduce the risk of firearms-
                related death and injury.
            (3) Application.--An eligible entity desiring a grant under 
        this subsection 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.
            (4) Training.--
                    (A) In general.--A recipient of a grant under this 
                subsection shall provide training to law enforcement 
                officers, including officers of relevant Federal, 
                State, local, and Tribal law enforcement agencies, in 
                the safe, impartial, effective, and equitable use and 
                administration of extreme risk protection orders, 
                including training to address--
                            (i) bias based on race and racism, 
                        ethnicity, gender, sexual orientation, gender 
                        identity, religion, language proficiency, and 
                        classism in the use and administration of 
                        extreme risk protection orders;
                            (ii) the appropriate use of 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 
                        extreme risk protection orders and the 
                        necessity of safety planning with the victim 
                        before a law enforcement officer petitions for 
                        and executes an extreme risk protection order, 
                        if applicable;
                            (iii) interacting with persons with a 
                        mental illness or emotional distress, including 
                        de-escalation and crisis intervention; and
                            (iv) best practices for referring persons 
                        subject to 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.
                    (B) Consultation with experts.--A recipient of a 
                grant under this subsection, in developing law 
                enforcement training required under subparagraph (A), 
                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)) organizations), social service 
                providers, suicide prevention advocates, violence 
                intervention specialists, and other community groups 
                working to reduce suicides and violence, including 
                domestic violence, within the State or the territory 
                under the jurisdiction of the Indian Tribe, as 
                applicable, that enacted the legislation described in 
                subsection (c) that enabled the grant recipient to be 
                an eligible entity.
            (5) Incentives.--For each of fiscal years 2022 through 
        2026, the Attorney General shall give affirmative preference in 
        awarding any discretionary grant awarded by the Office of 
        Community Oriented Policing Services to a State or Indian Tribe 
        that has enacted legislation described in subsection (c) or to 
        a unit of local government or other public or private entity 
        located in such a State or in the territory under the 
        jurisdiction of such an Indian Tribe.
            (6) Authorization of appropriations.--There are authorized 
        to be appropriated such sums as are necessary to carry out this 
        section.
    (c) Eligibility for Extreme Risk Protection Order Grant Program.--
            (1) Requirements.--Legislation described in this subsection 
        is legislation that establishes requirements that are 
        substantially similar to the following:
                    (A) 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--
                            (i) describes the facts and circumstances 
                        justifying that an extreme risk protection 
                        order be issued against the named individual; 
                        and
                            (ii) is signed by the applicant, under 
                        oath.
                    (B) Notice and due process.--The individual named 
                in an application for an extreme risk protection order 
                as described in subparagraph (A) shall be given written 
                notice of the application and an opportunity to be 
                heard on the matter in accordance with this paragraph.
                    (C) Issuance of extreme risk protection orders.--
                            (i) Hearing.--
                                    (I) In general.--Upon receipt of an 
                                application described in subparagraph 
                                (A) or request of an individual named 
                                in such an application, the court shall 
                                order a hearing to be held within a 
                                reasonable time, and not later than 30 
                                days after the date of the application 
                                or request.
                                    (II) Determination.--If the court 
                                finds at the hearing ordered under 
                                subclause (I), by a preponderance of 
                                the evidence or according to a higher 
                                evidentiary standard established by the 
                                State or Indian Tribe, that the 
                                respondent poses a danger of causing 
                                harm to self or others by having access 
                                to a firearm, the court may issue an 
                                extreme risk protection order.
                            (ii) Duration of extreme risk protection 
                        order.--An extreme risk protection order shall 
                        be in effect--
                                    (I) until an order terminating or 
                                superseding the extreme risk protection 
                                order is issued; or
                                    (II) for a set period of time.
                    (D) Ex parte extreme risk protection orders.--
                            (i) In general.--Upon receipt of an 
                        application described in subparagraph (A), the 
                        court may issue an ex parte extreme risk 
                        protection order, if--
                                    (I) the application for an extreme 
                                risk protection order alleges that the 
                                respondent poses a danger of causing 
                                harm to self or others by having access 
                                to a firearm; and
                                    (II) the court finds there is 
                                reasonable cause to believe, or makes a 
                                finding according to a higher 
                                evidentiary standard established by the 
                                State or Indian Tribe, that the 
                                respondent poses a danger of causing 
                                harm to self or others by having access 
                                to a firearm.
                            (ii) Duration of ex parte extreme risk 
                        protection order.--An ex parte extreme risk 
                        protection order shall remain in effect only 
                        until the hearing required under subparagraph 
                        (C)(i).
                    (E) Storage of removed firearms.--
                            (i) Availability for return.--All firearms 
                        removed or surrendered pursuant to an extreme 
                        risk protection order shall only be available 
                        for return to the named individual when the 
                        individual has regained eligibility under 
                        Federal and State law, and, where applicable, 
                        Tribal law to possess firearms.
                            (ii) Consent required for disposal or 
                        destruction.--Firearms owned by a named 
                        individual may not be disposed of or destroyed 
                        during the period of the extreme risk 
                        protection order without the consent of the 
                        named individual.
                    (F) Notification.--
                            (i) In general.--
                                    (I) Requirement.--A State or Tribal 
                                court that issues an extreme risk 
                                protection order shall notify the 
                                Attorney General or the comparable 
                                State or Tribal agency, as applicable, 
                                of the order as soon as practicable or 
                                within a designated period of time.
                                    (II) Form and manner.--A State or 
                                Tribal court shall submit a 
                                notification under subclause (I) in an 
                                electronic format, in a manner 
                                prescribed by the Attorney General or 
                                the comparable State or Tribal agency.
                            (ii) Update of databases.--As soon as 
                        practicable or within the time period 
                        designated by State or Tribal law after 
                        receiving a notification under clause (i), the 
                        Attorney General or the comparable State or 
                        Tribal agency shall ensure that the extreme 
                        risk protection order is reflected in the 
                        National Instant Criminal Background Check 
                        System.
            (2) Additional provisions.--Legislation described in this 
        subsection may--
                    (A) provide procedures for the termination of an 
                extreme risk protection order;
                    (B) provide procedures for the renewal of an 
                extreme risk protection order;
                    (C) establish burdens and standards of proof for 
                issuance of orders described in paragraph (1) that are 
                substantially similar to or higher than the burdens and 
                standards of proof set forth in that paragraph;
                    (D) limit the individuals who may submit an 
                application described in paragraph (1), provided that, 
                at a minimum, law enforcement officers are authorized 
                to do so; and
                    (E) include any other authorizations or 
                requirements that the State or Tribal authorities 
                determine appropriate.
            (3) Annual report.--Not later than 1 year after the date on 
        which an eligible entity receives a grant under subsection (b), 
        and annually thereafter for the duration of the grant period, 
        the entity shall submit to the Attorney General a report that 
        includes, with respect to the preceding year--
                    (A) the number of petitions for ex parte extreme 
                risk protection orders filed, as well as the number of 
                such orders issued and the number denied, disaggregated 
                by--
                            (i) the jurisdiction;
                            (ii) the individual authorized under State 
                        or Tribal law to petition for an extreme risk 
                        protection order, including the relationship of 
                        the individual to the respondent; and
                            (iii) the alleged danger posed by the 
                        respondent, including whether the danger 
                        involved a risk of suicide, unintentional 
                        injury, domestic violence, or other 
                        interpersonal violence;
                    (B) the number of petitions for extreme risk 
                protection orders filed, as well as the number of such 
                orders issued and the number denied, disaggregated by--
                            (i) the jurisdiction;
                            (ii) the individual authorized under State 
                        or Tribal law to petition for an extreme risk 
                        protection order, including the relationship of 
                        the individual to the respondent; and
                            (iii) the alleged danger posed by the 
                        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 extreme 
                risk protection orders filed, as well as the number of 
                such orders issued and the number denied;
                    (D) the number of cases in which a court imposed a 
                penalty for false reporting or frivolous petitions;
                    (E) demographic data of petitioners, including 
                race, ethnicity, national origin, sex, gender, age, 
                disability, and English language proficiency, if 
                available;
                    (F) demographic data of respondents, including 
                race, ethnicity, national origin, sex, gender, age, 
                disability, and English language proficiency, if 
                available; and
                    (G) the number of firearms removed, if available.

SEC. 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'' 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, the primary purpose of 
        which is to reduce the risk of firearm-related death or injury 
        by prohibiting such person from having under the person's 
        custody or control, owning, purchasing, possessing, or 
        receiving any firearms, 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 self or others by having 
                access to a firearm.''; and
            (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, the primary purpose of 
        which is to reduce the risk of firearm-related death or injury 
        by prohibiting such person from having under the person's 
        custody or control, owning, purchasing, possessing, or 
        receiving any firearms, 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 self or others by having 
                access to a firearm,''.

SEC. 4. IDENTIFICATION RECORDS.

     Section 534 of title 28, United States Code, is amended--
            (1) in subsection (a)--
                    (A) in paragraph (3), by striking ``and'' at the 
                end;
                    (B) by redesignating paragraph (4) as paragraph 
                (5); and
                    (C) by inserting after paragraph (3) the following:
            ``(4)(A) subject to subparagraph (B), acquire, collect, 
        classify, and preserve records from Federal, Tribal, and State 
        courts and other agencies identifying individuals subject to 
        extreme risk protection orders, as defined in section 2(a) of 
        the Extreme Risk Protection Order Act of 2021; and
            ``(B) destroy each record acquired or collected under 
        subparagraph (A) when the applicable extreme risk protection 
        order expires or is terminated or dissolved; and'';
            (2) in subsection (b), by striking ``(a)(4)'' and inserting 
        ``(a)(5)''; and
            (3) by adding at the end the following:
    ``(g) Extreme Risk Protection Orders in National Crime Information 
Databases.--A Federal, Tribal, or State criminal justice agency or 
criminal or civil court may--
            ``(1) include extreme risk protection orders, as defined in 
        section 2 of the Extreme Risk Protection Order Act of 2021, in 
        national crime information databases, as that term is defined 
        in subsection (f)(3) of this section; and
            ``(2) have access to information regarding extreme risk 
        protection orders through the national crime information 
        databases.''.

SEC. 5. 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)''.

SEC. 6. FULL FAITH AND CREDIT.

    (a) Definitions.--In this section, the terms ``extreme risk 
protection order'', ``Indian Tribe'', and ``State'' have the meanings 
given those terms in section 2(a).
    (b) Full Faith and Credit Required.--Any extreme risk protection 
order issued under a State or Tribal law enacted in accordance with 
this Act shall be accorded the same full faith and credit by the court 
of another State or Indian Tribe (referred to in this subsection as 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 Indian Tribe.
    (c) Applicability to Protection Orders.--
            (1) In general.--Subsection (b) shall apply to a protection 
        order issued by a State or Tribal court if--
                    (A) the court has jurisdiction over the parties and 
                matter under the law of the State or Indian Tribe; and
                    (B) reasonable notice and opportunity to be heard 
                is given to the person against whom the order is sought 
                sufficient to protect that person's right to due 
                process.
            (2) Ex parte protection orders.--For purposes of paragraph 
        (1)(B), in the case of an ex parte protection order, notice and 
        opportunity to be heard shall be provided within the time 
        required by State or Tribal law, and in any event within a 
        reasonable time after the order is issued, sufficient to 
        protect the due process rights of the respondent.
    (d) Tribal Court Jurisdiction.--For purposes of this section, a 
court of an Indian Tribe shall have full civil jurisdiction to issue 
and enforce a protection order involving any person, including the 
authority to enforce any order through civil contempt proceedings, to 
exclude violators from Indian land, and to use other appropriate 
mechanisms, in matters arising anywhere in the Indian country (as 
defined in section 1151 of title 18, United States Code) of the Indian 
Tribe or otherwise within the authority of the Indian Tribe.

SEC. 7. 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.
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