Texans are paying for so-called “Red Flag” gun confiscation orders in New York. North Carolinians are bankrolling Extreme Risk Protective Orders (ERPOs) in New Jersey. Louisianans are footing the bill for gun confiscation orders in Maryland.
Thanks to the 2022 federal gun control omnibus bill, titled the Bipartisan Safer Communities Act (BSCA), taxpayers in pro-gun jurisdictions are now financing anti-gun jurisdictions’ efforts to strip Second Amendment rights without due process.
The BSCA, in part, provided grant funding through the Department of Justice’s Byrne State Crisis Intervention Program (SCIP) for states to implement their ERPO laws – also known as “Red Flag” or gun confiscation orders. Currently, nineteen states and Washington, D.C., have red flag laws on their books – while a host of pro-gun states, citing due process concerns, have outright rejected the concept entirely.
Firearm owners oppose ERPOs because they provide a mechanism to strip law-abiding Americans of their Second Amendment rights in a civil procedure without adequate due process of law. These laws typically permit the government to seize a person’s firearms and extinguish their Second Amendment rights ex parte meaning the confiscation order is issued without prior notice and a hearing for the person to rebut the allegations against them. The first time a person finds out that they are the subject of such an order may be when law enforcement shows up at their front door to confiscate their firearms. And even if the person later has an opportunity to tell his or her side of the story at a hearing, the damage to the person’s rights and reputation is done the moment the guns are removed.
Additionally, the evidentiary standards for the issuance of these orders are typically weak. Unlike a criminal trial, someone seeking a gun confiscation order need not prove that the subject of the order is dangerous beyond a reasonable doubt. For instance, in New York the court need only find that there is “probable cause” to consider the person a danger and issue a confiscation order. In Colorado, some ERPO hearings can even be held over the phone.
During the BSCA negotiations, some supporters of the bill contended that in order to be eligible for the grant funding, state ERPO programs would be required to meet “strict” due process requirements. The text of the legislation included the following language limiting ERPO program eligibility:
(iv) extreme risk protection order programs, which must include, at a minimum--
(I) pre-deprivation and post-deprivation due process rights that prevent any violation or infringement of the Constitution of the United States, including but not limited to the Bill of Rights, and the substantive or procedural due process rights guaranteed under the Fifth and Fourteenth Amendments to the Constitution of the United States, as applied to the States, and as interpreted by State courts and United States courts (including the Supreme Court of the United States). Such programs must include, at the appropriate phase to prevent any violation of constitutional rights, at minimum, notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses;
Whatever the intent or actual value of the abovementioned language, the Biden Administration has a penchant for abusing federal statute and a Merrick Garland-run DOJ can’t be expected to interpret ambiguous language in good faith. And as evidenced by the DOJ’s grant awards below, the DOJ appears to take the position that the existing state ERPO laws meet the BSCA’s due process requirements, rendering this language effectively null. Note that despite the language requiring pre-deprivation due process, grants are being given to states with ex parte ERPOs.
The following are a select list of DOJ SCIP grant awards for state ERPO implementation, along with links to description for the award.
Colorado’s anticipated funding strategy for Byrne SCIP funds is to support implementation of, training on, and communication, education, and public awareness about its ERPO program. Colorado is considering passing through a portion of the "state share" of Byrne SCIP funding to its new Office of Gun Violence Prevention and to the Office of the Attorney General to supplement current and support new statewide gun violence reduction programs/initiatives specific to the state’s ERPO program.
On June 25, 2022, President Biden signed the Bipartisan Safer Communities Act of 2022 into law to reduce gun violence, fund state red flag laws, and enhance the power of extreme risk protection orders (ERPO). As authorized by the Bipartisan Safer Communities Act of 2022, the U. S. Department of Justice (US DOJ), released funds to state in the form of the Byrne State Crisis Intervention Program (Byrne SCIP). Byrne SCIP funds the creation and/or implementation of extreme risk protection order (ERPO) programs, state crisis intervention court proceedings, and related gun violence reduction programs/initiatives.
The Executive Office of the Governor of Delaware – Criminal Justice Council (CJC) is the State Administering Agency. Delaware will utilize grant funds to implement, expand, and improve the awareness, understanding and utilization of the Extreme Risk Protection Order law and operate a statewide gun violence reduction program. This project aims to fully implement, expand, and improve the awareness, understanding and utilization of ERPO laws.
The project will select local stakeholders (sites) to support and expand extreme risk protective order programs, specialized crisis intervention court programs, behavioral health violence deflection programs, and coordinate efforts with law enforcement to safely secure, track, and return relinquished guns.
Based on an analysis of violent crime by firearm and related data and a review of the first three years of implementation of New York’s Extreme Risk Prevention Order law, New York State may utilize the federal fiscal year (FFY) 2022 and 2023 Byrne SCIP funds to support the following priorities:
Extreme Risk Protection Order (ERPO) Support…
The New Jersey Office of the Attorney General (NJOAG) proposes to enhance the New Jersey Extreme Risk Protective Order Act of 2018 (ERPO Act). This Act allows a petitioner to apply for an ERPO against someone who poses a danger of causing bodily harm to self or others by possessing or purchasing a firearm. It expands those who may petition to include family members and law enforcement officers. Subsequent NJOAG and New Jersey Judiciary directives promulgated implementation of ERPOs for law enforcement personnel and court staffs.
Rhode Island will form a Crisis Intervention Policy Board as part of the already existing Criminal Justice Policy Board, which consists over approximately twenty-five people including various judges, the Attorney General, law enforcement, and the director of the State’s mental health agency. The board will seek to increase awareness of extreme risk protection orders and increase training of various members of the criminal justice community to increase access to these orders for those in need.
DCJS will seek applications for Byrne SCIP-funded projects to provide training focused on a variety of topics related generally to gun violence reduction within the realm of crisis intervention and the continued implementation of substantial risk orders in Virginia.