Title: Protecting Our Communities and Rights Act of 2019
Policy area: Crime and Law Enforcement

Summary:
Protecting Our Communities and Rights Act of 2019
This bill authorizes grants for states to implement extreme risk protection order laws (also known as red flag laws). An extreme risk protection order law permits a state court to issue an order that prohibits an individual from purchasing, possessing, or receiving a firearm.
Additionally, persons subject to extreme risk protection orders constitute a new category of prohibited persons (i.e., persons barred from receiving, possessing, shipping, or transporting a firearm or ammunition).

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 744 Introduced in House (IH)]

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116th CONGRESS
  1st Session
                                H. R. 744

   To provide States with funding to establish new tools to prevent 
             suicide and violence, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            January 24, 2019

 Mr. Katko (for himself, Mr. Peterson, Mr. Curtis, Mr. Rodney Davis of 
 Illinois, Mr. Cuellar, and Mr. Diaz-Balart) introduced the following 
       bill; which was referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To provide States with funding to establish new tools to prevent 
             suicide and violence, and for other purposes.

    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 ``Protecting Our Communities and 
Rights Act of 2019''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``family member'' means, with respect to an 
        individual, a spouse, child, parent, sibling, grandchild, or 
        grandparent of the individual, a person with whom the 
        individual shares a child in common, the legal guardian of the 
        individual, or a person who cohabits or has cohabited with the 
        individual within the previous 12 months;
            (2) the term ``firearm'' has the meaning given the term in 
        section 921 of title 18, United States Code;
            (3) the term ``extreme risk protection order'' means a 
        written order, issued by a State court or signed by a 
        magistrate prohibiting the respondent from purchasing, 
        possessing, or receiving a firearm; and
            (4) the term ``law enforcement officer'' means a public 
        servant authorized by State law or by a State government agency 
        to engage in or supervise the prevention, detection, 
        investigation, or prosecution of a criminal offense.

SEC. 3. NATIONAL EXTREME RISK PROTECTION ORDER LAW.

    (a) Enactment of Extreme Risk Protection Order Law.--In order to 
receive a grant under section 4, a State shall have in effect a law 
that authorizes the issuance of an extreme risk protection order in 
accordance with subsection (b).
    (b) Requirements for Extreme Risk Protection Orders.--Legislation 
required under subsection (a) shall be subject to the following 
requirements:
            (1) Generalized concerns insufficient.--A generalized 
        concern related to any hazards posed by firearm ownership or 
        use generally shall not constitute sufficient basis for the 
        issuance or renewal of an extreme risk protection order under 
        this section.
            (2) Application for preliminary ex parte extreme risk 
        protection order.--A family member or a law enforcement 
        officer, whether acting on the officer's own initiative or in 
        response to a complaint the officer has substantiated through 
        independent investigation, may submit an application to a State 
        court for the issuance of a preliminary ex parte extreme risk 
        protection order, on a form designed by the court, that--
                    (A) describes the facts and circumstances 
                necessitating that a preliminary ex parte extreme risk 
                protection order be issued against the respondent;
                    (B) is signed by the applicant, under oath; and
                    (C) includes any additional information required by 
                the State court or magistrate to demonstrate that the 
                respondent poses an imminent, particularized, and 
                substantial risk of unlawfully using a firearm to cause 
                death or serious physical injury to himself or herself 
                or to another person.
            (3) Standard for issuance of a preliminary ex parte 
        order.--
                    (A) In general.--A State court or magistrate may 
                issue a preliminary ex parte extreme risk protection 
                order upon finding by a preponderance of evidence that 
                the respondent poses an imminent, particularized, and 
                substantial risk of unlawfully using a firearm to cause 
                death or serious physical injury to himself or herself 
                or to another person. No such order shall remain in 
                effect for more than 21 days unless the respondent is 
                detained for or submits to an evaluation for commitment 
                to a mental institution or for assisted outpatient 
                treatment, in which case the preliminary order may be 
                extended for the duration of any such commitment or 
                treatment. Before issuing an order under this 
                paragraph, the court or magistrate shall consider 
                whether the respondent meets the applicable standard 
                for involuntary observation, temporary commitment, or 
                any other procedure that begins the State's process for 
                involuntary commitment or assisted outpatient 
                treatment. If the court or magistrate determines that 
                the respondent meets such standard, then, in addition 
                to issuing a preliminary ex parte extreme risk 
                protection order, the court or magistrate shall order 
                the respondent to undergo a mental evaluation to 
                determine the most appropriate treatment, including 
                involuntary commitment or assisted outpatient 
                treatment, and may issue an order requiring the 
                respondent to undergo such treatment.
                    (B) Application to be made under oath.--A State 
                court or magistrate shall, before issuing a preliminary 
                ex parte extreme risk protection order--
                            (i) examine under oath the individual who 
                        applied for the order under paragraph (2) and 
                        any witnesses the individual produces; or
                            (ii) require that the individual or any 
                        witness submit a signed affidavit, subject to 
                        the penalties of perjury, which describes the 
                        facts the applicant or witness believes 
                        establish the grounds of the application.
            (4) Limitation on firearm prohibitions based on ex parte 
        proceedings.--Any restriction imposed pursuant to a preliminary 
        ex parte order, which is based on ex parte proceedings shall be 
        limited to receiving firearms or transporting or carrying 
        firearms in public.
            (5) Reporting of preliminary ex parte extreme risk 
        protection order.--The court shall notify the Department of 
        Justice and comparable State agency of the issuance of the 
        preliminary ex parte extreme risk protection order not later 
        than 48 hours after issuing the order. Such notice shall be 
        submitted in an electronic format, in a manner prescribed by 
        the Department of Justice and the comparable State agency.
            (6) Hearing on a permanent extreme risk protection order.--
                    (A) In general.--Not later than 14 days after the 
                date on which a court issues a preliminary ex parte 
                extreme risk protection order, the issuing court, or 
                another court in the same jurisdiction, shall hold a 
                hearing to determine whether to issue a permanent 
                extreme risk protection order and, if applicable, 
                whether to continue procedures for involuntary 
                commitment or assisted outpatient treatment. The 
                respondent shall have the opportunity to appear with 
                counsel, present opposing witnesses, and cross-examine 
                the petitioner or any witnesses offered by the 
                petitioner.
                    (B) Notice.--A court may not issue a permanent 
                extreme risk protection order unless the respondent 
                receives actual notice of the hearing under 
                subparagraph (A).
                    (C) Burden of proof.--At any hearing conducted 
                under subparagraph (A), the State or petitioner shall 
                have the burden of establishing by clear and convincing 
                evidence that the respondent poses an imminent, 
                particularized, and substantial risk of unlawfully 
                using a firearm to cause death or serious physical 
                injury to himself or herself or to another person.
                    (D) Requirements upon issuance of a permanent 
                order.--If the court finds by clear and convincing 
                evidence that the respondent poses an imminent, 
                particularized, and substantial risk of unlawfully 
                using a firearm to cause death or serious physical 
                injury to himself or herself or to another person, the 
                following shall apply:
                            (i) The respondent shall be prohibited from 
                        possessing or receiving, or attempting to 
                        possess or receive, a firearm for a period not 
                        to exceed 1 year.
                            (ii) If the court determines that there is 
                        probable cause to believe that the respondent 
                        possesses a firearm when the order is issued, 
                        the court shall issue a warrant ordering the 
                        seizure of such firearm and shall further order 
                        the firearm to be retained pursuant to 
                        paragraph (7) for the duration of the permanent 
                        extreme risk protection order.
            (7) Seizure and temporary retention of firearms.--
                    (A) In general.--In the case that a law enforcement 
                officer takes possession of a firearm pursuant to a 
                warrant issued pursuant to paragraph (6)(D)(ii), the 
                law enforcement officer shall provide to the individual 
                from whom the firearm was taken a receipt, which 
                includes the make, model, caliber, finish, and serial 
                number of any such firearm. In the case that an 
                individual is not present at the time of the seizure, 
                the law enforcement officer shall post the receipt at 
                the location from which the firearm was seized.
                    (B) Custody of seized firearms.--A firearm seized 
                pursuant to paragraph (6)(D)(ii) shall, for the 
                duration of the permanent extreme risk protection 
                order, be retained by the law enforcement agency that 
                seized the firearm, or by a third party not prohibited 
                from possessing or receiving a firearm, as specified by 
                the court that issued the permanent extreme risk 
                protection order.
                    (C) Limitation on seizure of firearms.--In the case 
                that the location to be searched during the execution 
                of a warrant to enforce a permanent extreme risk 
                protection order is occupied by multiple parties, and a 
                law enforcement officer executing the search determines 
                that a firearm that is located during the search is 
                owned by an individual other than the respondent named 
                in the warrant, the firearm may not be seized if--
                            (i) the firearm will be stored in a manner 
                        that ensures that the respondent named in the 
                        warrant does not have access to or control of 
                        the firearm; and
                            (ii) there is no probable cause to believe 
                        that the owner of the firearm does not lawfully 
                        possess the firearm.
                    (D) Gun safe.--In the case that the location to be 
                searched during the execution of a warrant issued 
                pursuant to paragraph (6)(D)(ii) is occupied by 
                multiple parties, and a law enforcement officer 
                executing the search locates a gun safe, which the 
                officer determines is owned by an individual other than 
                the individual named in the warrant, the contents of 
                the gun safe shall not be searched except in the 
                owner's presence and with the owner's consent.
                    (E) Return of firearm to rightful owner.--In the 
                case that any individual who is not subject to an 
                extreme risk protection order can demonstrate title to 
                a firearm seized pursuant to a warrant issued pursuant 
                to paragraph (6)(D)(ii), the firearm shall be returned 
                to the lawful owner as soon as possible and without an 
                additional order of a court.
            (8) Petition for rescission of a permanent extreme risk 
        protection order.--An individual subject to a permanent extreme 
        risk protection order may at any time during the effective 
        period of the order file one petition with the issuing court to 
        rescind the permanent extreme risk protection order. The court 
        shall hold a hearing on the petition within 14 days and grant 
        the petition if the individual proves by a preponderance of 
        evidence that his or her possession of a firearm does not pose 
        an imminent, particularized, and substantial risk of death or 
        serious bodily injury to the individual or another person.
            (9) Return of firearms to individual subject to an extreme 
        risk protection order.--Any firearms seized pursuant to a 
        warrant issued pursuant to paragraph (6)(D)(ii) shall be 
        returned to the respondent within 5 business days of the 
        expiration or rescission of the order. Notwithstanding any 
        other provision of law, the court may require that the 
        respondent submit to an inquiry through the national instant 
        criminal background check system as a condition of receiving 
        the firearm.
            (10) Renewing an extreme risk protection order.--A family 
        member or law enforcement officer may petition the court that 
        issued a permanent extreme risk protection order to renew the 
        order for a period not to exceed 1 year. The requirements and 
        proceedings for renewal of an extreme risk protection order 
        shall be the same as for the issuance of a permanent extreme 
        risk protection order under paragraph (6). A permanent extreme 
        risk protection order may not be renewed more than 2 times.
            (11) Notification.--
                    (A) In general.--Except as provided in paragraph 
                (5), the court shall notify the Department of Justice 
                and comparable State agency of the issuance or renewal 
                of an extreme risk protection order not later than 5 
                court days after issuing or renewing the order. The 
                court shall also notify the Department of Justice and 
                comparable State agency of the rescission or expiration 
                of an extreme risk protection order not later than 5 
                court days after such rescission or expiration. Such 
                notice shall be submitted in an electronic format, in a 
                manner prescribed by the Department of Justice and the 
                comparable State agency.
                    (B) Update of databases.--As soon as practicable 
                after receiving a notification under paragraph (5) or 
                subparagraph (A), but in no case later than 48 hours, 
                the Department of Justice and comparable State agency 
                shall update the background check databases of the 
                Department and agency, respectively, to reflect--
                            (i) the issuance or renewal of the extreme 
                        risk protection order; or
                            (ii) the rescission or expiration of an 
                        extreme risk protection order.
    (c) Confidentiality Protections.--All information provided to the 
Department of Justice and comparable State agency pursuant to 
legislation described under this section shall be kept confidential, 
separate, and apart from all other records maintained by the Department 
of Justice and the comparable State agency.
    (d) Rule of Construction.--The use of terms in a State law that 
differ from the terms used in this section, or the definitions in 
section 2, shall not affect the availability of funds to a State under 
this section, provided that the State otherwise complies with the 
substantive requirements of this section. A State may not receive funds 
under this section if does not meet the substantive requirements of 
this section, including required findings, evidentiary standards, 
burdens of proof, limitations on duration and renewal of orders, and 
rules governing the return of firearms.

SEC. 4. PAUSE FOR SAFETY GRANT PROGRAM.

    (a) In General.--The Director of the Office of Community Oriented 
Policing Services of the Department of Justice may make grants to an 
eligible State to assist the State in carrying out the provisions of 
the State legislation described in section 3.
    (b) Eligible State.--A State shall be eligible to receive grants 
under this section beginning on the date on which--
            (1) the State enacts legislation described in section 3; 
        and
            (2) the Attorney General determines that the legislation of 
        the State described in paragraph (1) complies with the 
        requirements of section 3.
    (c) Use of Funds.--Funds awarded under this section may be used by 
a State to assist law enforcement agencies or the courts of the State 
in carrying out the provisions of the State legislation described in 
section 3.
    (d) Application.--A State seeking a grant under this section shall 
submit to the Director of the Office of Community Oriented Policing 
Services an application at such time, in such manner, and containing 
such information, as the Director may reasonably require.
    (e) Authorization of Appropriations.--There is authorized to be 
appropriated such sums as may be necessary to carry out this section.

SEC. 5. 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) who is subject to a court order that--
                    ``(A) was issued after a hearing of which such 
                person received actual notice, and at which such person 
                had an opportunity to participate;
                    ``(B) restrains such person from possessing a 
                firearm;
                    ``(C) includes a finding by clear and convincing 
                evidence that such person poses an imminent, 
                particularized, and substantial risk of unlawfully 
                using a firearm to cause death or serious physical 
                injury to himself or herself or to another person; and
                    ``(D) was initiated by a family member or law 
                enforcement officer (as such terms are defined under 
                section 2 of the Protecting Our Communities and Rights 
                Act of 2019).''; 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) who is subject to a court order that--
                    ``(A) was issued after a hearing of which such 
                person received actual notice, and at which such person 
                had an opportunity to participate;
                    ``(B) restrains such person from possessing a 
                firearm;
                    ``(C) includes a finding by clear and convincing 
                evidence that such person poses an imminent, 
                particularized, and substantial risk of unlawfully 
                using a firearm to cause death or serious physical 
                injury to himself or herself or to another person; and
                    ``(D) was initiated by a family member or law 
                enforcement officer (as such terms are defined under 
                section 2 of the Protecting Our Communities and Rights 
                Act of 2019),''.

SEC. 6. SEVERABILITY; NONPREEMPTION OF STATE AUTHORITY.

    (a) 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.
    (b) Nonpreemption.--Nothing in this Act, or an amendment made by 
this Act, shall be construed to--
            (1) limit the ability of a State to enact legislation with 
        additional due process protections or additional rights for a 
        respondent or subject of an extreme risk protection order; or
            (2) supersede or contradict any State authority or law 
        established or enacted before or after the date of enactment of 
        this Act relating to the emergency removal of firearms from 
        individuals determined to be an imminent danger to themselves 
        or others.
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