Democrats And Some House Republicans Supported Unconstitutional Extreme Risk Protection Order (ERPO) Bill

As many of you are aware, I have frequently written about the issues presented with Extreme Risk Protection Orders (ERPOs) or otherwise referred to as red flag orders. Most recently, in 2019, when Republican Leadership was pushing SB 90 and HB 1075, I wrote an article – PA Republican Leadership Is Pushing Legislators to Enact Extreme Risk Protection Order (ERPO) Bills – extensively detailing those bills. And nothing has changed from those bills in relation currently pending HB 1018, which was recently passed by the House with all Democrats (except for House Member Frank Burns) and putative Republicans Joe Hogan and K.C. Tomlinson voting in favor. As a result, HB 1018 is now in the Senate and has been referred to the Senate Judiciary Committee.

But what are all the issues with HB 1018?

Let’s start with the obvious purpose of issuing an extreme risk protection order. As HB 1018 applies to individuals who are deemed an “extreme risk” but only seeks to divest individuals of the firearms, it seems clear that the bill is designed as gun confiscation bill. One wonders, if the individual constitutes an “extreme risk” to himself or others, why wouldn’t the person simply be committed to a hospital under the Mental Health and Procedures Act? Why isn’t he/she being detained at a hospital, jail or other facility? Why isn’t he/she divested of other objects, which can cause serious bodily injury or death to multiple others, such as cars, planes, gasoline, knives…etc? The answer seems explicitly clear when one also reviews the bases for issuance of an ERPO.

Bases for an ERPO

Under HB 1018 the “[r]ecent acquisition or attempted acquisition of a firearm” is a basis for issuance of an ERPO. That’s right, the exercise of a constitutional right is, in and of itself, a basis for stripping the individual of that constitutional right. You can’t make this stuff up, folks.

Moreover, the “[u]nlawful or reckless use, display or brandishing of a firearm” is a basis for issuance of an ERPO, even though, the PA Supreme Court in Commonwealth v. Hicks already held that it is lawful to open carry a firearm in every part of the Commonwealth without a license to carry firearms, with the exception of Philadelphia, where one must have a license to carry firearms, in order to open carry. So just what is the unlawful or reckless display of a firearm? Moreover, Pennsylvania law does not have a brandishing statute. What does brandishing even mean in this context? It would seem that these bills attempt to provide a basis for individuals to be stripped of their constitutional rights by merely open carrying a firearm.

Also, “[c]ruelty to animals” is a basis, which now incorporates leaving your dog in a vehicle, with the air conditioning running, based on the law passed in 2018. Moreover, because an individual goes to a pigeon shoot or out hunting, because someone doesn’t agree with such, it would seem that they can have an ERPO placed against that person….but this is all about extreme risk individuals, right?

And then there is on of my favorites, “[a]ny additional information the court finds to be reliable.” What exactly does this basis exclude? It would seem that someone speaking out against his/her Government can be deemed an “extreme risk,” especially since those who want to enact these draconian bills won’t let constitutional rights get in the way. I mean, as discussed above, the mere exercise of your constitutional right to keep and bear arms is a basis to deprive you of that right, so we might as well utilize the First Amendment, as well, as a basis for issuance of an ERPO.

Legal Standard and Process for Issuance of an ERPO

You’re provided due process, right? Not in relation to an “interim extreme risk protection order,” which, interestingly, had its name changed from prior year proposals (HB 2227), where it was identified as an “ex parte extreme risk protection order.” I wonder why that happened…clearly, they changed it because now interim orders are not to be issued ex parte, right? Wrong. The same exact unconstitutional provision as offered in HB 2227, is offered in HB 1018, but without identifying in the name that they’re issued ex parte, because that’ll make it easier for everyone to get behind…but no one is trying to deceive anyone, right?

What about the legal standard? For an interim order, in violation of the U.S. Supreme Court’s decision in Addington v. Texas, it is issued based merely on the preponderance of the evidence – meaning that the individual seeking the ERPO, without you being able to respond to the allegations or even know that the allegations are being made against you, only needs to show by 50.0000000000000000001% a likely basis that could have occurred in the prior 12 months. But, remember, this is to protect YOU, not a gun confiscation bill….

What Happens if an Interim (Ex Parte) ERPO is Issued?

If an interim (ex parte) ERPO is issued, you’ll have an entire 24 hours to turn in your firearms and firearm licenses…but, HB 1018 also directs the sheriff or law enforcement officer serving the ERPO to coerce you into turning them over immediately. Specifically, the bills provide:

A law enforcement officer or sheriff serving an extreme risk protection order shall request that all firearms and any firearms license in the respondent’s possession or control be immediately relinquished into the custody of the law enforcement officer or sheriff.

And what exactly constitute “firearm licenses?”

A concealed carry license issued under 18 Pa.C.S. § 6109 (relating to licenses), safekeeping license issued under 23 Pa.C.S. § 6108.3 (relating to relinquishment to third party for safekeeping), hunting license required under 34 Pa.C.S. § 2701 (relating to license requirements) or any similar license issued pursuant to the laws of another state.

So anyone subjected to an ERPO will also be precluded from hunting, even though, one can, depending on the time of year and type of game, hunt with bows, cross-bows, compound-bows, and pellet guns. Maybe they’ll add fishing licenses to the definition to make sure all bases are covered…

But don’t worry, you’ll get a hearing in 10 days, where you’ll likely need to spend thousands of dollars hiring competent counsel and obtaining a psychological evaluation to combat the allegations levied against you. Of course, competent attorneys aren’t generally waiting for the phone to ring and psychological testing is not something that occurs in an hour. So, in all reality, you’ll likely be requesting a continuance, so that you have time to prepare a proper defense – to allegations that may be a year old, but you currently pose an extreme risk, right?

What Happens if a Final ERPO is Issued?

In all likelihood, regardless of the duration of the ERPO (which can be anywhere from 3 months to 12 months), you will be prohibited for life from being able to purchase and possess firearms and ammunition, pursuant to 18 U.S.C. § 922(g)(4).

Specifically, Section 922(g)(4) provides:

It shall be unlawful for any person…who has been adjudicated as a mental defective or who has been committed to a mental institution…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce

So why is that at issue? Due to the definition of adjudicated as a mental defective in 27 C.F.R. §  478.11, which provides:

(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease:

(1) Is a danger to himself or to others; or

(2) Lacks the mental capacity to contract or manage his own affairs.

(b) The term shall include—

(1) A finding of insanity by a court in a criminal case; and

(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code of Military Justice, 10 U.S.C. 850a, 876b.

Since under HB 1018, an interim and final ERPO may only issue where the individual presents a “substantial risk of suicide or of causing the death, or serious bodily injury to, another person,” these court orders would seemingly trigger the prohibition of Section 922(g)(4). While federal law generally requires due process before stripping an individual of his/her right to keep and bear arms, since in this situation, it is not explicitly stated (since the U.S. Congress could not envision a court issuing such a determination ex parte), it is possible that an individual may perpetually lose his/her Second Amendment rights, as a result of an interim ex parte ERPO order being issued, based solely on a preponderance of the evidence of one exercising his/her right to keep and bear arms. Let that sink in for a minute…

Better yet, even if an ERPO is vacated or terminates, there is no provision for Pennsylvania State Police to remove it as a prohibitor from the Pennsylvania instant Check System database.

But these aren’t gun confiscation bills…

And while I have approximately 10 pages of issues and concerns over HB 1018 (which is far too much to review in a blog article), it also bears noting that a key protection that was provided in HB 2227 has been removed from these proposals. Unlike with HB 2227, all ERPO information would be disclosable pursuant to the PA Right to Know Law and that includes the listing of the firearms seized by make, model and serial number.

What Can You Do?

First and foremost, contact Senate Judiciary Chairwoman, Senator Lisa Baker and ask that she not bring any anti-Second Amendment bills up for a vote and that in the event any hearings are scheduled relative to any such bills, that I (Joshua Prince) be provided an opportunity to testify regarding them. You can reach her at 717-787-7428 or lbaker@pasen.gov. Second, contact your Pennsylvania Senator and DEMAND that they vote NO on any ERPO bill. If you don’t know who your Senator is, you can find him/her here.

---

If you or someone you know has been the victim of an unlawful or unconstitutional taking of of your firearms or ammunition, contact FICG today to discuss your options.