Representative David Linsky of Natick has filed H.3081 “An Act Establishing Extreme Risk Prevention Orders” (ERPO).
This legislation originates from, and is being pushed nationally by Mike Bloomberg’s newest astro turf group, the Alliance for Gun Responsibility Foundation. Currently they have filed the same legislation in twenty states, including Massachusetts.
This legislation should be of great concern for all law-abiding residents in Massachusetts and across the country. It is a direct assault on numerous rights, including due process, fair trial, and of course, the right to keep and bear arms.
The sole focus of this legislation is suppressing Second Amendment rights.
We can all agree that there are dangerous people in our society. They can range from violent criminals, to terrorists on U. S. soil, to folks who are in dire need of mental health care. They have access to free society for different reasons, and it seems that our legislature is, once again, refusing to address real solutions which limit said access. GOAL has consistently stated that our government needs to take up these real issues and stop using lawful gun owners as a scapegoat. Unfortunately this isn’t happening, as we are once again facing more “empty promise” legislation, like Linsky’s H.3081.
Similar legislation has been passed recently by the California state legislature and, as mentioned above, accomplished through a ballot initiative in Washington State. Bloomberg’s group is choosing their targets wisely, pushing it through in “friendly” states and moving on. The legislation filed here in Massachusetts, H.3081, An Act Establishing Extreme Risk Protective Orders parallels the current state 209A protective order process with some very notable differences.
The first big difference, the ERPO greatly expands a 209A protective order in that it allows a broad range of people to file on behalf of others. This includes social workers, healthcare workers, police, district attorneys, and more.
Keep in mind that supporters are calling the legislation an “Extreme Risk” bill. With this in mind we have to ask, if a person is too dangerous for a normal 209A protection order, why is the solution paperwork that only focuses on guns?
The bill actually contains a process for the court to check if the “dangerous person” already has a 209A against them. This makes absolutely no sense, if a person is subject to a 209A they are already prohibited at both the state and federal level from possessing firearms. In addition, if the person who has the 209A filed against them legally owns guns in MA, those guns are seized, if the person is illegally in possession of guns, they are arrested. So where’s the need?
One of the startling things about the bill is what it doesn’t do. Everything in this bill is one hundred percent designed to suppress Second Amendment civil rights, that’s it. If there were a legitimate purpose behind the legislation, would there not be more to it? If people that become the subject of a ERPO are indeed an extreme risk, shouldn’t there be more?
For instance, is medical intervention involved if it is determined it is needed? There is no provision in the legislation for this. If a person is determined by the courts to be an “extreme danger”, can they work around children? Can they practice medicine as a nurse or doctor? Can they drive commercial vehicles like gasoline tanker trucks, or any sort of motor vehicle? Can they work as law enforcement? Should they be held for a dangerousness hearing? What if the person is not a citizen, what happens then? Remember, according to Linsky there is a need to address these people. According to him they are extreme public safety risks!
The bottom line is that this bill is yet another empty shell that only attacks our civil rights, offers no real solutions and solves no real problems. If the backers of this legislation were at all serious about the real issues at hand they would be asking our government to do their job when it comes to mental health and crime!
Here is a quick summary of the proposed ERPO legislation:
What is an “Extreme Risk Protection Order” (ERPO)?
Basically, it is a court order banning the exercising of your Second Amendment civil rights in any fashion for one year.
Who can ask for a ERPO?
- A broad definition of a family or household member that includes:
a. are or were married to one another;
b. are or were residing together in the same household;
c. are or were related by blood or marriage;
d. having a child in common regardless of whether they have ever married or lived together; or
e. are or have been in a substantive dating or engagement relationship.
- Healthcare Provider (Includes licensed social worker.)
- Law Enforcement Officer
- District Attorney
When does an ERPO take effect?
The ERPO shall be issued or denied on the same day it is submitted to the court. If the court rules that a ERPO is needed the court may grant it without notice to the defendant, but then must hold a hearing in ten days.
What evidence does a ERPO petition need?
Regardless of who it comes from, the petition for a ERPO basically has to include “allegations” (not proof) that a person poses a significant danger of causing physical harm to themselves, the petitioner, or others by having in his or her custody or control, owning, purchasing, possessing, or receiving a firearm or ammunition.
What Factors are involved in determining if a ERPO should be issued?
Most of the language in the proposed law relies on whether a defendant is a threat because they possess firearms or ammunition. It is not clear that a ERPO can be issued if the defendant does not possess firearms or ammunition or at least access to them in some manner.
The law also requires a judge to search the statewide domestic violence record keeping system.
A check shall be made of the defendant’s firearm ownership records and criminal history records. A court may consider all evidence that the petitioner and/or witnesses produces including, but not limited to:
- Unlawful, reckless or negligent use, display, storage, possession or brandishing of a firearm;
- Acts or threats of violence against oneself or another, whether or not this violence involves a firearm;
- Violation of a protective order issued pursuant to chapter 209A or a similar law in another state;
- Abuse of controlled substances or alcohol or any criminal offense that involves controlled substances or alcohol; or
- The recent acquisition of firearms, ammunition, or other deadly weapons.
What happens if an ERPO is granted?
- The defendant’s Second Amendment Civil Rights are revoked for one year.
- The National Instant Criminal Background Check System (NICS) will be notified.
- All firearms and ammunition must be surrendered within 8 hours of being served.
- If another person claims ownership it may be returned after a determination is made by law enforcement. (It is not clear if this can be done prior to the expiration of the ERPO.)
- It would appear that all property must be held by law enforcement with no ability to transfer it to another licensed person.
- There does not seem to be any other requirements such as no contact with the petitioner.
Can an ERPO be appealed if granted by a court?
Yes, but only once during the term of the order.
Can an ERPO be renewed?
Yes, within 30 of the expiration of a ERPO the petitioner can ask that it be renewed.
What is the penalty for violating an ERPO?
Any violation of an order issued pursuant to this section shall be punishable by a fine of not more than $5,000, or by imprisonment for not more than 2 ½ years in a house of correction, or by both such fine and imprisonment.
There is also an additional penalty for knowingly possessing, receiving, etc. firearms or ammunition while under an ERPO of $1,000 fine and 2 ½ years in jail. The additional penalty also includes a 5-year revocation of your Second Amendment Civil Rights.
There will also likely be penalties for unlawful possession of firearms and ammunition under the normal criminal laws.
What happens if an ERPO expires without being renewed, do I get my rights and property back?
- Thirty days before an ERPO is set to expire all parties will be notified by law enforcement.
- If an ERPO is terminated, the owner “may” request the return of their property.
- If an ERPO is terminated, NICS will be notified.
- Property may be returned only after a background check is done and rights have been restored.
- If the defendant no longer wants their property or is no longer eligible, they may only sell or transfer to a licensed firearm retailer.
- If another person claims ownership it may be returned after a determination is made by law enforcement.
- If the licensing authority cannot ascertain the owner after 180 days of the expiration of the ERPO, the property may be sold and the proceeds retained by the town.
Are there penalties for someone who lies or uses an ERPO petition to harass me?
Yes. Any person who files a petition for an extreme risk protective order, knowing the information in the petition to be materially false or with intent to harass the respondent, shall be punished by a fine of no more than $1,000 or by imprisonment for no more than 2 ½ years in the house of corrections.