    [Senate Hearing 117-783]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 117-783

                           STOP GUN VIOLENCE: EXTREME
                          RISK ORDER/``RED FLAG'' LAWS

    =======================================================================

                                    HEARING

                                   before the

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     OF THE

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 APRIL 28, 2021

                                   __________

                              Serial No. J-117-16

                                   __________

             Printed for the use of the Committee on the Judiciary

                      [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                            www.judiciary.senate.gov
                                www.govinfo.gov

                                   ______

                     U.S. GOVERNMENT PUBLISHING OFFICE

    54-243                    WASHINGTON : 2026

                           COMMITTEE ON THE JUDICIARY

                       RICHARD J. DURBIN, Illinois, Chair
    PATRICK J. LEAHY, Vermont            CHARLES E. GRASSLEY, Iowa, Ranking
    DIANNE FEINSTEIN, California             Member
    SHELDON WHITEHOUSE, Rhode Island     LINDSEY O. GRAHAM, South Carolina
    AMY KLOBUCHAR, Minnesota             JOHN CORNYN, Texas
    CHRISTOPHER A. COONS, Delaware       MICHAEL S. LEE, Utah
    RICHARD BLUMENTHAL, Connecticut      TED CRUZ, Texas
    MAZIE K. HIRONO, Hawaii              BEN SASSE, Nebraska
    CORY A. BOOKER, New Jersey           JOSH HAWLEY, Missouri
    ALEX PADILLA, California             TOM COTTON, Arkansas
    JON OSSOFF, Georgia                  JOHN KENNEDY, Louisiana
                                         THOM TILLIS, North Carolina
                                         MARSHA BLACKBURN, Tennessee
                 Joseph Zogby, Chief Counsel and Staff Director
          Kolan L. Davis, Republican Chief Counsel and Staff Director

                        SUBCOMMITTEE ON THE CONSTITUTION

                     RICHARD BLUMENTHAL, Connecticut, Chair
    DIANNE FEINSTEIN, California         TED CRUZ, Texas, Ranking Member
    SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
    JON OSSOFF, Georgia                  MICHAEL S. LEE, Utah
                                         BEN SASSE, Nebraska

               David Stoopler, Democratic Majority Chief Counsel
                Andrew Davis, Republican Minority Chief Counsel

                                C O N T E N T S

                                  ----------

                               OPENING STATEMENTS

                                                                       Page

    Blumenthal, Hon. Richard.........................................     1
    Cruz, Hon. Ted...................................................     5
    Durbin, Hon. Richard J...........................................     7
    Grassley, Hon. Charles E.........................................     4

                                   WITNESSES

    Bencomo, Vic.....................................................    10
        Prepared statement...........................................    76
    Goeser, Nikki....................................................    15
    Horwitz, Joshua..................................................    17
        Prepared statement...........................................    82
    Kopel, David B...................................................    11
        Prepared statement...........................................    40
    Wyatt, Kimberly..................................................    13
        Prepared statement...........................................    89

                                    APPENDIX

    Items submitted for the record...................................    39

                           STOP GUN VIOLENCE: EXTREME
                          RISK ORDER/``RED FLAG'' LAWS

                                  ----------

                           WEDNESDAY, APRIL 28, 2021

                                  United States Senate,
                              Subcommittee on the Constitution,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Subcommittee met, pursuant to notice, at 2:38 p.m., in
    Room 226, Dirksen Senate Office Building, Hon. Richard
    Blumenthal, Chair of the Subcommittee, presiding.
        Present: Senators Blumenthal [presiding],Whitehouse, Cruz,
    Cornyn, and Lee.
        Also present: Senators Durbin, Grassley and Graham.

             OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,

              A U.S. SENATOR FROM THE STATE OF CONNECTICUT

        Chair Blumenthal. I am going to call to order this first
    meeting of the Subcommittee on the Constitution and welcome my
    colleagues. Most especially, the Ranking Member on the
    Subcommittee, Senator Cruz, thank you so much for your
    cooperation in scheduling this first hearing, and I look
    forward to this kind of collaborative effort going forward.
        I know we have been joined by Senator Grassley, the Ranking
    Member of the Committee. I am going to turn to you after
    Senator Cruz, and I think we may be joined by Senator Durbin
    for some opening remarks as well.
        Last month, the Judiciary Committee held a very important
    hearing, as my colleagues know, on constitutional and common-
    sense steps to reduce the epidemic of gun violence in this
    country that has recently claimed so many lives in Atlanta,
    Boulder, Indianapolis, and elsewhere.
        Gun violence is a real problem. We all know it. But there
    are also real solutions, and I believe, strongly and
    passionately, that we have a path to put some of those
    solutions into law during this session, and I believe we can
    with bipartisan cooperation.
        I am not naive. I do not believe that all gun violence
    prevention proposals will be adopted by unanimous consent. But
    I hope this afternoon, at least, we can focus on one topic
    where there does appear to be at least some measure of common
    ground. Extreme risk orders, also known as ``risk warrants,''
    that is the name in Connecticut we have adopted, or ``red
    flag'' laws, whatever you call them, we know they save lives.
    We know that red flag/extreme risk orders save lives. They are
    practical and proven tools that allow law enforcement under
    some statutes and others, including family members, to keep
    guns out of the hands of individuals who possess and pose a
    danger to themselves or others. In other words, separate people
    from guns when they are in crisis.
        Firearms make dangerous decisions far more deadly and
    irreversible. Just to give you one example, among commonly used
    methods of self-harm, firearms are, by far, the most lethal.
    For people who seek to take their own lives, the fatality rate
    is approximately 85 percent with a firearm. It is 5 percent by
    any other method. Firearms are used in less than 6 percent of
    suicide attempts, but they account for more than half of the
    suicide deaths.
        In 1999, my home State of Connecticut became the first in
    the Nation to enact an extreme risk order. We call it a ``risk
    warrant.'' Studies have shown that in the first 14 years of
    Connecticut's law, for every 10 to 20 risk warrants issued, at
    least 1 suicide was prevented. In addition, many of those who
    tried to take their own lives were compelled or persuaded to
    seek help, professional help, that made a real difference in
    their lives.
        That is not some sort of abstract statistic. States across
    the country have used extreme risk or red flag statutes as
    critical suicide prevention tools. In Portland, Oregon, law
    enforcement was able to remove 10 firearms and bar future
    firearms purchases after a man called 911 and threatened to
    kill himself and his 3-year-old son with a gun because he was
    frustrated that he was not able to make a child support
    payment. The same is true probably in all of your States. I
    know you have heard these stories. I am not going to recount
    more, but I will put my full statement in the record. These
    laws don't just prevent suicide. They have also been used to
    stop mass shootings, homicide, terrorist threats, and hate
    crimes.
        Authorities in Florida used the State's extreme risk order
    law to remove an AR-15 from a high school student who had said
    he would kill himself and his ex-girlfriend if they didn't get
    back together--if she did not get back together with him.
        As my colleague Senator Graham has pointed out, the
    Parkland shooting resulted after the killer, in that instance,
    practically put an ad in the phone book saying he was going to
    shoot people, but authorities there could not stop him for lack
    of a red flag statute. After it happened, they adopted one in
    Florida.
        These laws are also bipartisan among the American public in
    State legislatures and in Congress. In fact, polling has found
    that 84 percent of Americans, including 78 percent of
    Republicans, support red flag laws. There are now 20
    jurisdictions, blue States and red States, with these critical
    tools in place, and others are on their way to passing and
    implementing the laws.
        President Biden has announced that the Justice Department
    will soon publish model legislation for States that will help
    them to adopt these statutes, and I have worked closely with
    not only my colleague Senator Graham, who has been very
    constructive, but also Senator Feinstein. Senators Rubio and
    Scott have introduced their own bill, and I look forward to
    making progress.
        Let me just touch on two points in conclusion.
        First, Indianapolis. The tragic events in Indianapolis show
    just how crucial effective implementation and enforcement is to
    the success of these efforts. Indiana has a strong red flag law
    named in honor of a police officer who was killed in the line
    of duty in a situation that might have been prevented had a red
    flag been in place at that time.
        Earlier this month, as we all know, a shooter killed eight
    people at a FedEx warehouse in Indianapolis. Several months
    prior, police had taken a shotgun from him after his mother
    reported that he might try to commit suicide by cop. Law
    enforcement knew he was dangerous. Prosecutors just didn't use
    Indiana's red flag law to bar that individual from purchasing
    new guns, and he did, in fact, purchase two semiautomatic
    rifles in the months that followed, which he used in that
    massacre.
        Some have said that Indianapolis shows red flag laws don't
    work, they ought to be scrapped. I think that point is
    ridiculous. There are 6 million car accidents in the United
    States every year. That does not mean we throw out seat belt
    requirements or speed limits. We insist on more effective
    enforcement of those laws that might have prevented those
    accidents or crashes or deaths.
        What the preventable loss of life in Indianapolis does
    prove is that even in jurisdictions where these laws exist,
    effective implementation is critical. We will hear today from
    witnesses who will tell us how Federal grants would support
    training for prosecutors and others to enhance those States'
    development and effective use and enforcement. All of us who
    have been in law enforcement know laws are dead letter unless
    they are implemented and enforced effectively, and our
    proposals on red flag statutes are designed to provide the
    resources, the training, procedures, other kinds of basic nuts-
    and-bolts steps that are important here.
        Due process. To those critics who raise the specter of due
    process concerns, let me just say extreme risk orders provide
    robust due process protections that comport with both the
    Constitution and the Supreme Court precedent governing due
    process considerations, and that is my goal, here and in
    whatever we do, formulating and passing red flag statutes, to
    provide models and require that those grants and resources
    provided to States are conditioned on due process protections.
        These orders are temporary. They are used only by judges.
    The judges have to take evidence. The determinations are based
    on those evidence. The evidence is submitted under penalty of
    perjury. When a temporary order is issued, but before it
    becomes permanent, the individual subject to it is provided
    with notice and an opportunity to both challenge the evidence
    against them and present evidence of their own. Once the order
    expires, the individual subject to it must have a firearm
    returned to them, so long as they are not otherwise prohibited
    from having it.
        So, I think we are in an era that feels very different
    about gun violence. I am hoping that we can reach bipartisan
    consensus. Gun violence isn't inevitable. Extreme risk order
    laws, red flag statutes, prove it. I again welcome my
    colleagues this afternoon and hope that we will indeed make
    progress.
        Thank you to all my colleagues. I turn to Senator Grassley.
    I understand he would like to be recognized because of time
    constraints, and I am happy to do so.

             OPENING STATEMENT OF HON. CHARLES E. GRASSLEY,

                 A U.S. SENATOR FROM THE STATE OF IOWA

        Senator Grassley. As Ranking Member of the Full Committee,
    I thought I ought to come and show my support for this hearing
    and the very important issue of crimes that are committed with
    individuals struggling with mental health issues.
        I was going to start out by talking about the Indianapolis
    situation, but Senator Blumenthal already covered that very
    well, so I will move on to the fact that earlier this month,
    tragedy struck when a 25-year-old man rammed his vehicle into
    the security barricade just mere steps from this chamber. As we
    all know, this man's actions tragically took the life of U.S.
    Capitol Police Officer Billy Evans. While the Capitol
    attacker's exact motive is unknown, social media profiles
    indicate the man was a follower of a group that reportedly
    holds racist, anti-Semitic, anti-LGBTQ+ beliefs.
        It is too early to tell if those beliefs motivated this man
    to commit the act of terrorism, but what is clear is the man
    was struggling with mental health issues.
        Today we are talking about red flag laws. I think that we
    should be looking into possible solutions for gun violence, so
    a hearing is the right thing to do, and so I thank you for
    having this hearing.
        I do think that red flag laws are generally a State rather
    than a Federal issue. I also want to state my strong beliefs
    that any State that does decide to enact red flag laws should
    do so with strong due process protections to safeguard an
    important constitutional right. I just heard what Senator
    Blumenthal said about those strong due process laws, and I just
    want to make sure that they are always followed.
        I also want to say that red flag laws are scarcely the only
    option for ensuring that persons with mental issues are
    prevented from engaging in violence or self-harm. I turn to
    some legislation I put in that has bipartisan support called
    the ``EAGLES Act of 2021.'' It's a commonsense piece of
    legislation building upon what the Secret Service successfully
    does over a period of decades. This bill carries the namesake
    of Parkland, Florida, Marjory Stoneman Douglas High School's
    mascot, the Eagles, and it is a tribute to the 17 Eagles who
    tragically lost their lives 3 years ago, at the hands of a
    fellow student who long struggled with severe behavioral
    problems and mental health problems. If he had been sent to get
    the help that he ought to have had, he would have been in the
    database and would not have been able to purchase a gun.
        This legislation helps proactively mitigate threats of
    violence in our country through, reauthorizing and expanding
    the U.S. Secret Service's National Threat Assessment Center,
    also known as ``NTAC.'' A family member, teacher, coach, fellow
    employee, or neighbor's ability to observe someone's behavior,
    home life circumstances, work factors, and other potential
    stressors, coupled with NTAC's threat assessment training, can
    prevent harmful outcomes from occurring. But in order for this
    to be effective, we need to increase NTAC's capacity to
    continue their research and threat assessment training.
        Just this week, the EAGLES Act got the resounding
    endorsement from the National Association of Attorneys General.
    Forty attorneys general from all over the United States believe
    that the NTAC's proactive approach is critical to violence
    prevention. We cannot afford to ignore their urgent pleas of
    assistance.
        I ask my colleagues, hopefully all of them, to support the
    EAGLES Act. The more research and threat assessment and
    training that can come from it, that we can provide, the more
    violence we can prevent.
        Thank you, Senator, for bearing with me.
        Chair Blumenthal. Thank you, thank you Senator Grassley,
    and thanks for your input. You know, we are really working, as
    Senator Graham and I have done for quite some time over the
    years, to adopt an approach that is as inclusive as possible,
    that is respectful of due process, and that meets all of the
    challenges that you have raised. Thank you for being here
    today.
        With your permission, Senator Cruz, I would like to turn to
    Senator Durbin if he--Senator Cruz.

                  OPENING STATEMENT OF HON. TED CRUZ,

                 A U.S. SENATOR FROM THE STATE OF TEXAS

        Senator Cruz. Thank you, Mr. Chairman.
        There is no one in this country who isn't fed up and
    furious when we hear that another monster has used a gun to
    take an innocent life. And there isn't a person in this country
    who is not heartbroken when they learn about another suicide.
    Every life is a gift from God, and every innocent life that is
    lost is unique and a tragedy.
        I can tell you in Texas, we have seen far too many mass
    murders at the hands of deranged and sick individuals. I was in
    Sante Fe the morning of that shooting. Santa Fe High School is
    less than an hour away from my house. I was in El Paso, at the
    Walmart, after another mass murder. I was in Midland-Odessa
    after yet another. I was in Dallas where five police officers
    were murdered by a deranged radical. I was in Sutherland
    Springs in that beautiful sanctuary where a monster murdered
    innocent women and children.
        I care deeply about stopping violent crime and gun crime in
    particular. I have spent much of my adult life in law
    enforcement trying to stop violent criminals who prey upon the
    innocent, and working to ensure that they receive the most
    stringent punishment.
        But one thing is abundantly clear. If the objective is to
    stop violent crime, restricting the rights of law-abiding
    citizens doesn't work. In fact, it typically makes crime worse,
    because when you disarm law-abiding citizens, you make them
    more likely to be victims.
        Two years ago, when we had a hearing on red flag laws in
    the Full Committee, I said, at the time, that those laws could
    potentially be part of the solution set at the State level. I
    still believe that. The States are laboratories of democracy.
    They are the proper place to debate the substance of red flag
    laws. We shouldn't be imposing a Federal standard or putting
    the Federal Government's very heavy thumb on the scale with
    coercive grant programs, especially when 19 States and the
    District of Columbia are already experimenting with these laws.
        But I also said and continue to believe, that even at the
    State level, laws must be narrowly targeted to those who pose
    an extreme risk, while simultaneously giving full force to the
    fundamental rights of all law-abiding Americans. Many of the
    State laws that have been implemented fall short of this
    standard in one or more ways, and none of the Democrats'
    current proposals come close to meeting it.
        Rather than taking a measured and respectful approach,
    radical gun control advocates see red flag laws as a way to
    open the door to comprehensive gun control. One of the drafters
    of Connecticut's red flag law, which we heard about earlier,
    the first in the country, admitted this last week on CNN,
    stating that these laws only work as part of comprehensive gun
    control legislation.
        The fact is, Democrats don't want Americans to own guns. In
    August 2019, a television interviewer asked then-candidate Joe
    Biden the following question: ``So, to gun owners out there who
    say, well, a Biden administration means they are going to come
    for my guns,'' Biden's response? ``Bingo.'' They are not hiding
    it.
        It is no surprise that this administration and that
    Democrats in Congress and anti-gun groups are all pushing red
    flag laws that will take guns from law-abiding Americans. In
    Connecticut, for example, 32 percent of confiscation orders are
    overturned when a judge finally hears both sides of the story,
    and this is after the Government has already seized the
    firearm. This means that one out of every three people who has
    his or her firearm seized by the Government under Connecticut's
    red flag law is an innocent, law-abiding citizen. That is an
    unacceptable rate of protecting constitutional rights.
        One reason that the error rate is so high is that most of
    these laws do not even purport to satisfy due process. Every
    red flag law currently in operation permits the Government to
    order the confiscation of firearms without notice to the
    individual and a hearing only to follow at some later time. Ex
    parte hearings may be necessary in some extreme cases, but they
    should not be the default standard.
        Moreover, in many States the word of a spurned romantic
    partner or disgruntled coworker is sufficient to meet the
    watered-down standard for unilateral, albeit temporary,
    deprivation of Second Amendment rights. Put simply, red flag
    laws empower the Government to take firearms first and ask
    questions later, often much, much later.
        No one would tolerate these procedures to deprive Americans
    of any of their other fundamental constitutional rights. But
    Democrats do not care that law-abiding Americans lose their
    rights under these laws because they do not believe in the
    Second Amendment and the right to self-defense.
        In a shockingly candid statement, President Biden's nominee
    to lead the ATF told one of the witnesses testifying today that
    it did not matter if a law-abiding citizen lost their rights
    due to red flag laws because the disarmed victims can just
    purchase a replica gun to scare criminals away. That is an
    answer that reveals a contempt for the Second Amendment right
    to keep and bear arms, and it is dangerous.
        The Second Amendment is not about hunting. It is not about
    recreational shooting. It is about the fundamental right to
    protect our lives, to protect our homes, to protect our
    families. It is about the right we have, if somebody comes into
    our home at night seeking to harm our children, to defend our
    children and to defend our lives.
        The red flag laws being pushed by Democrats and gun control
    activists are designed to deprive Americans of that fundamental
    right. And for what? As one of today's witnesses wrote in 2020,
    after reviewing all of the available literature, ``No
    research--no research has found any statistical reduction in
    crime, including mass shooting fatalities, from confiscation
    laws, and studies about suicide reduction show mixed results.''
    That is what the data show.
        We need to act, and we need to act forcefully, to stop gun
    crimes, and I have introduced legislation and fought for
    legislation to do that. But Federal red flag laws, I don't
    believe are the answer. We do not need to impose Connecticut's
    dismissive approach to Second Amendment rights on the entire
    country.
        Thank you.
        Chair Blumenthal. Thanks, Senator Cruz.
        Just before we go to Senator Durbin, I want to make the
    point, Senator Cruz. I can't speak for every Democrat. I can
    speak for myself. I am not against Americans owning guns. I am
    very much in favor of the law, as it is interpreted by the
    United States Supreme Court, that Americans have Second
    Amendment rights. I would oppose any law that took away Second
    Amendment rights. As we know, no right is absolute.
        And so far as the Connecticut study is concerned, we have
    been through this issue again and again and again. That 2014
    study reported, ``Judges ruled that the weapons needed to be
    held by the State 68 percent of the time.''
        In the remaining 32 percent of the cases, the guns were not
    given back to the individual. The orders were not overturned.
    In many of those cases, the guns were given to someone else so
    the State did not have to keep them, a family member or someone
    else. In only 10 percent of known cases, in risk warrants in
    Connecticut, were the guns actually returned to the
    individuals.
        Now we can debate the percentages one way or the other, but
    I just think we need to be very clear on the fact that these
    red flag statutes preserve constitutional rights, that
    misleading numbers and statistics can be cited. The plain fact
    is that they save lives.
        I am going to turn to the Chairman of our Committee.

              OPENING STATEMENT OF HON. RICHARD J. DURBIN,

               A U.S. SENATOR FROM THE STATE OF ILLINOIS

        Chair Durbin. Thank you, Mr. Chairman. Senator Blumenthal,
    I realize this is your first hearing as Chair of the
    Constitution Subcommittee, and I want to thank you for starting
    off this Congress with a series of hearings on critical topics,
    including the epidemic of gun violence, and it is truly an
    epidemic. In my home State of Illinois and the city of Chicago,
    which I am honored to represent, we have the equivalent of at
    least one mass shooting every weekend, when you put together
    the number of people who are injured and killed by gun every
    weekend in the city of Chicago.
        I always thought the problem with those numbers is they
    don't hit you in one big number. They just keep coming at you
    every single weekend. If it is a holiday weekend, it is even
    worse, dramatically worse.
        The stories in recent weeks of the profligate use of guns
    by those who think they can never have enough guns out in
    circulation, where children are being shot, a 2-year-old in a
    car on Lake Shore Drive, a 7-year-old at a McDonald's drive-in
    a week ago. It is just an out-of-control situation. The
    question is: When will it reach a point where we do something,
    do something effective?
        I thought the point had been reached on December 14, 2012.
    I believed that that was the moment when a gunman murdered 20
    children and 6 educators at Sandy Hook Elementary School in
    Newtown, Connecticut. I thought, ``That has got to be it.'' A
    roomful of little kids that looked just like my granddaughter,
    gunned down in the classroom, six educators. Finally, we are
    going to do something. Countries have responded to far fewer
    deaths by changing the whole approach to guns. But sadly, in
    the months after Sandy Hook, we held hearings; we voted on some
    gun safety reform. But even key reforms, not universally but
    just overwhelmingly supported, like universal background
    checks, were filibustered and failed.
        While Congress sits here again and fails to act every day,
    the deadly toll of gun violence grows, not just in Illinois and
    Chicago, but across this country. I am not giving up on
    commonsense reforms, and I know Senator Blumenthal is not
    either.
        I want to say one thing in prefacing my remarks. When we
    often speak about people who are mentally unstable who should
    not be owning firearms, I hope we quickly add, the vast
    majority of people dealing with mental illness are not violent
    people and they are not dangerous people, and we should not
    assume that they are. Many of them need treatment and help, and
    they can lead perfectly normal and safe lives for themselves
    and others. But there are exceptions, and many times, deadly
    exceptions.
        Look at what happened in Indianapolis just 2 weeks ago. A
    19-year-old gunman murdered eight people at the FedEx facility.
    It was horrific. In March 2020, last year, that gunman's mother
    had contacted the Indianapolis Metropolitan Police Department,
    to inform them that her son's recent firearm purchase concerned
    her because he had suggested he planned to threaten police with
    a firearm in order to provoke a shooting. The police department
    placed him on a temporary mental health hold and removed the
    shotgun from his possession. Prosecutors, for reasons I do not
    know, never filed an extreme risk protection order petition
    under Indiana's law. In July and September of 2020, the gunman
    was able to legally buy two semiautomatic rifles, which he used
    to commit this mass murder.
        Let me tell you my experiences in Illinois which believe
    some of the extreme statements that have been said about these
    laws.
        We have a firearm restraining order that took effect in
    2019. The law allows family members and law enforcement to
    petition a court to temporarily remove firearms from the
    possession of an individual who presents a significant risk to
    himself or others. According to information reported by the
    Illinois State Police, a firearm restraining order has been
    issued 59 times under this Illinois law. In 2 years, a State of
    12.7 million people, it has been used 59 times. We have 2.2
    million licensed gun owners in Illinois, so, clearly, this is a
    targeted intervention. This is not a broad, sweeping thing
    denying due process to legal gun owners.
        I have talked with law enforcement officials in Illinois
    who point out that it takes resources to carry out these
    orders. They need some help. I think this is a tool. It is not
    the overall answer, but it is an important tool. In some cases
    it can save lives. In Indianapolis, had it been used, I think
    it could have saved those eight lives. At least we know that
    possibility.
        I thank you for calling us together today to discuss this,
    and as I said at one point here, one bill is not going to solve
    gun violence in America. But shame on us if we reject a
    commonsense approach that most gun owners endorse as the only
    sensible way to take guns out of the hands of people who are
    dangerous.
        Chair Blumenthal. Thank you, Senator Durbin.
        I am going to introduce our witnesses and then, as is our
    practice here on the Judiciary Committee, swear them in.
        First, Vic Bencomo is a resident of Denver, Colorado, and
    the current president of Colorado Gun Owners for Safety, a
    chapter of Giffords Nationwide Gun Owners for Safety Coalition.
    Bencomo is a father and a proud veteran, having served for over
    20 years in the United States Navy. He is also a gun owner,
    hunter, and advocate for laws to prevent gun violence. He has
    previously testified before both the Colorado State Legislature
    and the United States House of Representatives' Gun Violence
    Prevention Task Force.
        David Kopel is a--the research director of the Independence
    Institute and associate policy analyst with the Cato Institute
    in Washington and adjunct professor of advanced constitutional
    law at the University of Denver's Sturm College of Law. Mr.
    Kopel writes on constitutional law, criminal justice, civil
    rights, firearms policy, international affairs, technology,
    politics, environmental policy, and the media. He is the author
    of 17 books, hundreds of newspaper and magazine articles, and
    over 100 scholarly journal articles. Before joining the
    Independence Institute, Mr. Kopel served as an assistant
    attorney general of the State of Colorado, and he is going to
    join us remotely.
        Kimberly Wyatt is senior deputy prosecuting attorney with
    the King County Prosecuting Attorney's Office. She has been
    with the office since 2001. She has worked on cases involving
    domestic violence, stalking, sexual assault, child abuse, and
    other crimes of violence. Most recently, she has been part of a
    newly formed Domestic Violence Regional Firearms Enforcement
    Unit. In this role, she advises law enforcement and families on
    all aspects of extreme risk protection orders, from
    investigations to court proceedings. Ms. Wyatt also works on
    firearm compliance cases and high-risk domestic violence
    firearms offenders.
        Ms. Nikki Goeser lives in Tennessee and is the executive
    director for the Crime Prevention Research Center. She became a
    Second Amendment activist and victim rights advocate after the
    brutal murder of her husband, Ben, by a man who had been
    stalking her. She is a graduate of the University of Tennessee
    at Knoxville, and she earned her degree in psychology.
        Joshua Horwitz is the executive director for the Coalition
    to Stop Gun Violence. He has spent nearly three decades working
    on gun violence prevention issues. In 2013, Mr. Horwitz helped
    found the Consortium for Risk-Based Firearm Policy. The
    consortium released a set of policy recommendations designed to
    promote policies that can prevent those at a heightened risk of
    violent behavior from possessing firearms. One of the
    consortium's recommendations was the basis for California's
    first-in-the-Nation gun violence restraining order, which
    passed in September 2014.
        I am going to ask all of you to please stand so that I can
    administer the oath. Do you swear that the testimony that you
    will give is the truth, the whole truth, so help you God?
        Mr. Bencomo. I do.
        Mr. Kopel. I do.
        Ms. Wyatt. I do.
        Ms. Goeser. I do.
        Mr. Horwitz. I do.
        [Witnesses are sworn in.]
        Chair Blumenthal. Thank you. Mr. Bencomo, we will start
    with you.

                  STATEMENT OF VIC BENCOMO, PRESIDENT,

               GIFFORDS GUN OWNERS FOR SAFETY COALITION,

                   COLORADO CHAPTER, DENVER, COLORADO

        Mr. Bencomo. Good afternoon. Thank you, Chairman Blumenthal
    and Members of the Committee, for this opportunity to testify
    today. My name is Vic Bencomo. I am a parent, gun owner,
    hunter, and a proud Colorado resident for over 30 years.
        As a retired combat veteran with 21 years of service in the
    United States Navy, I know what it means to be a patriot. I
    have seen the carnage of war and personally know the emotional
    and physical scars that it leaves.
        I am the president for the Colorado Chapter of Giffords Gun
    Owners for Safety. We are a national organization of gun owners
    who support responsible gun ownership and commonsense gun laws.
    We proudly support the Second Amendment, but we can no longer
    ignore that our country is in the midst of an epidemic. The
    daily threat of gun violence is a shocking reality in countless
    communities across the country, especially in our veterans'
    community. As a veteran, I am witnessing my fellow
    servicemembers take their lives at a tragic rate. More than 17
    veterans die by suicide daily nationwide. That is over 6,400
    veteran suicides a year. In comparison, that is more than all
    the servicemembers killed in action during the last 18 years of
    Operation Iraqi Freedom.
        Tragically, Colorado's veteran suicide rate is above the
    national average. Out of the 173 veterans who died by suicide
    in our State in 2018, 112 of them used a firearm. As we know,
    firearms are the most lethal means used in suicides and account
    for nearly 70 percent of the veterans' deaths.
        Our veterans are a segment of the population that is
    uniquely positioned to own firearms. When faced with a crisis
    such as suicide, they often choose the most convenient and
    lethal form, which is a firearm.
        On more than one occasion, I have received a call from a
    wife, a concerned family member, or even a veteran who is
    displaying suicidal tendencies. Generally, veterans do not seek
    medical help. Not knowing where else to turn, the family often
    calls the police. However, law enforcements do have their
    limitations. Instead, I was the one that answered the call that
    night. I was the one that drove to their house. I was the one
    who convinced him to seek help. I was the one who took them to
    the hospital. I was the one who took possession of their
    firearms. I was the one who agreed to take custody of them once
    they were released from the hospital. But sadly, for 6,400
    veterans that committed suicide last year, they did not have
    someone like me to help them.
        Temporarily keeping the guns out of the hands of people who
    have been found, by a court, to pose a significant risk to
    themselves and others is not an infringement on their Second
    Amendment rights. It is an opportunity for a pause, which we
    have seen save lives in Colorado.
        In 2019, I testified in front of the Colorado State
    Legislature to support House Bill 1177. The bill passed, and
    Colorado became the 17th State with an extreme risk law. As of
    April 2020, 19 additional States, including the District of
    Columbia, have enacted similar legislation.
        Admittedly, the path to passing an extreme risk law in
    Colorado was not an easy one. There were many opponents of gun
    safety who raised unfounded fears that such a law would lead to
    mass confiscations of weapons from law-abiding gun owners, or
    that the law could be weaponized and used to retaliate against
    others. But after a year of the law being in place, it has been
    proven to be effective without infringing on the Second
    Amendment right.
        In 2020, Colorado had 112 petitions filed by law
    enforcement and family members. It is important to note that
    only approximately 40 petitions filed resulted in issuing a
    risk protection order. A notable petition was used to disarm a
    47-year-old veteran who threatened to shoot himself and police
    officers. Colorado has proven that this law works. It protects
    individuals' rights, doesn't allow a person's guns to be
    removed without real evidence, and if a person is a danger to
    themselves or others.
        As a veteran, I have a single request of the Senate: Please
    do everything in your power to save the lives of gun violence
    and save veterans from suicide. I urge this--I urge this
    Congress to support States' efforts to pass and implement risk
    protection orders.
        On behalf of the veteran community, I would like to thank
    Senator Blumenthal and Senator Feinstein for their courage and
    leadership on this issue.
        Thank you.
        [The prepared statement of Mr. Bencomo appears as a
    submission for the record.]
        Chair Blumenthal. Thank you, Mr. Bencomo.
        I am now going to call on Mr. Kopel, who will be joining us
    remotely.

                 STATEMENT OF DAVID B. KOPEL, RESEARCH

               DIRECTOR, INDEPENDENCE INSTITUTE, ADJUNCT

             SCHOLAR, CATO INSTITUTE, AND ADJUNCT PROFESSOR

              OF CONSTITUTIONAL LAW, UNIVERSITY OF DENVER,

                 STURM COLLEGE OF LAW, DENVER, COLORADO

        Mr. Kopel. Great. Thank you. Thank you, Mr. Chairman and
    Subcommittee Members. As you know, the United States Senate
    Subcommittee on the Constitution has jurisdiction over
    enforcement and protection of constitutional rights and
    statutory guarantees of civil rights and civil liberties. I
    agree with the American Civil Liberties Union that gun
    confiscation laws may ``be a reasonable way to further public
    safety. To be constitutional,'' the ACLU continues, ``they must
    at a minimum have clear, nondiscriminatory criteria for
    defining persons as dangerous and a fair process for those
    affected to object and be heard by a court.''
        Persons who are blase about due process in the firearms
    confiscation context should recognize that Fourth and Fifth
    Amendment loopholes created for one type special circumstance
    eventually become widespread and normal, for example, asset
    forfeiture without proof of guilt, wireless secret
    surveillance, and police militarization. Any procedure that
    forces a judge to hear only one side of the case necessarily
    can produce a high error rate, and, Senator Blumenthal, you are
    right and I will correct my written testimony about
    Connecticut. While we were waiting, I reviewed the study that I
    had cited, and you described it correctly and I had misread it.
    But as another study, also in my written testimony, points out,
    in Marion County, Indiana, when they studied what happened,
    when the due process hearing finally took place, 29 percent of
    orders were dismissed when the judge heard both sides of the
    case. In fact, in the large majority of cases where the
    respondent appeared, the confiscation order was reversed.
        People should not be subjected to confiscation for
    exercising First Amendment rights. For example, in Florida, an
    ex parte confiscation order was issued against a man because of
    a pair of social media posts. The first was a photo of a rifle
    that he had built at home, which is perfectly legal in every
    State, along with the caption, ``It is done. Hooray.'' The
    second post criticized teenage anti-gun activists for trying to
    take away people's rights.
        In Massachusetts, 84-year-old Stephen Nichols had served in
    the Korean War and for six decades as a police officer in the
    town of Tisbury, Massachusetts. In retirement, he worked as a
    school crossing guard. One day at a diner, he complained that
    the school's assigned police officer was often ``leaving his
    post'' to buy coffee. Mr. Nichols worried that a criminal might
    exploit the officer's frequent absences and ``shoot up the
    school.'' As a result, an ex parte confiscation order was
    issued against Mr. Nichols; his firearms license, which had
    first been issued in 1958, was confiscated, as were all his
    guns and ammunition. It took nearly half a year before his
    firearms license was restored, after Mr. Nichols filed suit.
        Under some circumstances--some confiscation laws, a
    petitioner does not--the accuser does not need to show up in
    court ever. Instead, he or she can testify by telephone. Thus,
    the judge is deprived of the ability to observe the accuser's
    demeanor, which is essential for a court to be able to make
    credibility judgments.
        As in other judicial proceedings, telephonic testimony
    should be allowed only when there is a specific showing of good
    cause in the individual case.
        Sometimes Government attorneys discourage people from
    having counsel, even at their own expense. My written testimony
    includes a former Connecticut prosecutor explaining how he
    talked respondents out of using lawyers, by warning them if
    they did, they would have to pay for an attorney if they did
    not go along with what the prosecutor wanted.
        Colorado has taken steps to prevent such abuse by making
    court-appointed counsel available to all respondents, whether
    or not they are indigent. Federal funding can encourage States
    to broaden the availability of court-appointed counsel.
        According to the U.S. Supreme Court, cross-examination ``is
    beyond any doubt the greatest legal engine ever invented for
    the discovery of truth.'' But under some statutes, the accuser
    and witnesses supporting the accuser never need testify and be
    subject to cross-examination. Instead, accusations can simply
    be made by affidavit. That makes a sham of due process.
        No-knock raids should be the exception and not the norm. In
    Colorado, no-knocks require a judicial warrant issued at the
    request of a district attorney. But Colorado's new confiscation
    law was written to negate this requirement for gun confiscation
    orders.
        Violent no-knock raids, for any purpose, should only be
    allowed when authorized by a court, based on the specific
    circumstances of a case. Law enforcement officers should not
    routinely be put in the position of having to forcibly
    confiscate firearms based on a court order for which the
    accuser never appeared before a judge, and for which the
    accuser's claims were never verified or investigated by law
    enforcement.
        Finally, because perjury prosecutions are extremely rare,
    victims of intentionally false and malicious accusations should
    have a right to sue for damages. The U.S. Senate Subcommittee
    on the Constitution can properly exercise its jurisdiction by
    encouraging States to enact or improve statutes so they adhere
    to best practices.
        Thank you.
        [The prepared statement of Mr. Kopel appears as a
    submission for the record.]
        Chair Blumenthal. Thanks, Mr. Kopel.
        I would like to now ask Kimberly Wyatt to give her
    testimony. Again, I think it is by remote.

                  STATEMENT OF KIMBERLY WYATT, SENIOR

                DEPUTY PROSECUTING ATTORNEY, KING COUNTY

           PROSECUTING ATTORNEY'S OFFICE, SEATTLE, WASHINGTON

        Ms. Wyatt. Yes, good afternoon, Chairman Blumenthal,
    Ranking Member Cruz, and distinguished Members of the Senate
    Judiciary Committee.
        My name is Kimberly Wyatt, and I am a senior deputy
    prosecuting attorney from King County, Washington. I am
    grateful for the opportunity to testify and share with you the
    importance of having an extreme risk protection order law, in
    our State, known as ``ERPO,'' and how this law has worked over
    the past years. You will hear about the need for ERPO
    implementation, the benefits of increased coordination with
    local and Federal law enforcement, and real-life applications
    of how ERPO has been used to save lives.
        As our Nation faces the most recent tragedies and senseless
    losses of life in Indianapolis, Boulder, Atlanta, and many
    others, our Nation grieves, as it all too frequently does in
    the aftermath of mass shootings. I am here today, speaking from
    experience, to say we have an opportunity to get ahead and
    create a viable path forward. It is time for us to act and lean
    into the tools that can make a difference in curbing firearm
    violence, and one of those tools is extreme risk protection
    orders.
        Extreme risk protection orders are a critical tool to
    intervene to prevent a firearm-related tragedy from occurring.
    Countless reports published by the U.S. Secret Service and many
    others have found that people who intend to do harm to
    themselves or others often share that information in one form
    or another. Being alert to this information is the key to
    saving lives. Extreme risk protection orders and how our unit
    was formed, the Regional Domestic Violence Firearms Enforcement
    Unit, has helped intervene and disrupt several potential
    suicides, mass shootings, and other threats to the community.
        Extreme risk protection orders allow family members and law
    enforcement who have seen those warning signs to come
    immediately before the court and petition for a temporary order
    that prevents the at-risk individual from purchasing and
    possessing firearms. Intervening at the time of the warning
    signs and threats can make the difference between life and
    death. ERPOs also have due process built in, as a judge oversee
    each phase.
        As we have learned locally, ERPO laws do not implement
    themselves. We quickly realized the need for ERPO education.
    Having a law alone is insufficient. It is critically important
    that law enforcement and other system partners and community
    members are aware that ERPO is a tool, specifically a tool to
    prevent suicides, threats to others--including threats of mass
    violence. Equally essential is the need for the public to know
    that if their loved one is in crisis, there is a tool perhaps
    that they could use. Having a designated ERPO prosecutor and
    advocate to help assist families to educate and to guide
    through that--the process of petitioning for an ERPO in real
    time has proved to be a successful model. Federal funding is
    needed to provide States a model policy to adopt ERPOs.
        To understand how ERPO has worked in my jurisdiction, I
    want to give a very brief context of where I am from in King
    County. King County, Washington, has a population of
    approximately 2.2 million people and is comprised of more than
    30 different law enforcement agencies. The county has densely
    populated areas like Seattle, but also many urban, suburban and
    rural areas. In 2020, our unit assisted with 79 ERPO petitions.
    The numbers do not tell the stories alone. We need to look at
    the facts of several of the cases that we assisted on.
        In one suicide prevention case, a father reached out to our
    unit, expressing concerns that his son was actively suicidal,
    had access to firearms, and had a significant substance abuse
    issue. An ERPO was filed to temporarily remove the firearms
    from the home. The father testified at the hearing and told the
    court that he ``believes in the law of commonsense,'' and that
    the ERPO, this law of commonsense, was needed to protect his
    son and family.
        We have also worked in coordination with Federal partners
    on several ERPOs, including one where a Federal employee made
    threats of mass violence toward his employer after he was
    placed on leave. The employee made threats that included a
    reference to a ``massive massacre in the Federal workplace''
    and stated he had nothing to live for and it was going to be
    ``a blood bath.'' Our unit was contacted to assist with the
    ERPO, and while Federal law enforcement was investigating the
    threats, a temporary ERPO was obtained. In coordination with
    law enforcement, the respondent was served, and the firearm
    parts that the respondent had purchased were intercepted by law
    enforcement before he could carry out his plot.
        In another case in cooperation with Federal and local law
    enforcement, an ERPO was filed against a self-admitted member
    of a neo-Nazi group known for promoting and advocating and
    advancing a violent ideology.
        The respondent was organizing hate camps that included
    firearms training, access to firearms while promoting threats
    of mass violence--including threats to kill members of the
    Jewish community. A temporary ERPO was served, and numerous
    firearms were recovered, including ghost guns.
        Every example above illustrates the importance of acting
    when behaviors suggest that someone might be a danger to
    themselves or others. In so many situations, we do not get a
    second chance to intervene. Extreme risk protection orders save
    lives. I know this firsthand. Every State in the Nation
    deserves to have this lifesaving legislation.
        Thank you.
        [The prepared statement of Ms. Wyatt appears as a
    submission for the record.]
        Chair Blumenthal. Thanks, Ms. Wyatt.
        I would like to introduce Nikki Goeser, and as you begin,
    let me just speak, I am sure, on behalf of the entire Committee
    to say how deeply our hearts go out to you on your loss, and we
    really appreciate your being here today.

                  STATEMENT OF NIKKI GOESER, EXECUTIVE

                  DIRECTOR, CRIME PREVENTION RESEARCH

                      CENTER, NASHVILLE, TENNESSEE

        Ms. Goeser. Thank you, Mr. Chairman. Can you hear me okay?
        Chair Blumenthal. We can hear you.
        Ms. Goeser. Thank you, Mr. Chairman and Members of the
    Committee. I am here speaking as a victim of a violent crime. I
    would like to give you some insight on how red flag laws can
    have devastating, unintended consequences for many Americans.
        In 2009, my husband, Ben, was shot seven times and killed
    in front of me by a man who I had just realized, that very
    night was stalking me. This occurred in a gun-free zone. I
    asked management to please remove the man from the
    establishment because I realized I was being stalked. There was
    no confrontation or words exchanged with my stalker. When
    management approached him and asked him to leave, he pulled a
    handgun, came up behind Ben, shot him in the head, and then
    stood over Ben and continued to fire six more rounds into him.
        My stalker was in complete control. He was the only one
    with a gun. Because of the law, I had to leave my legal,
    permitted firearm that I normally carried for self-defense,
    locked inside my vehicle that night. I obeyed that gun control
    law; my stalker did not.
        When police searched his vehicle at the crime scene, they
    found two more guns, ammunition, a baseball bat, binoculars,
    gloves, rope, and a knife. Ben's murderer has been sending me
    twisted love letters for years from prison, to traumatize me
    even further. Much to my dismay, he is set to be released early
    for ``good behavior'' in just 7 more years. I have very real
    fears about what he will do once released. This horrifying
    experience will be with me for the rest of my life.
        The days, months, and years that followed were very
    difficult. Depression, nightmares, grief, trauma, loss, concern
    for my safety were all things I dealt with and had to work
    through. Put yourself in my shoes. How would you feel?
        I remember thinking at the time that if I just happened to
    pass away in my sleep, I would be okay with that, because I did
    not know how I could face another day. I was never suicidal,
    but you can see where someone may misinterpret that. If red
    flag laws had been in place in my State of Tennessee, even
    those with the best of intentions could have had an exaggerated
    concern and assume they were acting in my best interest by
    having my guns taken from me. It would be devastating for a
    victim like me to be unable to protect myself after this
    stalker violated me in such a horrific and life-altering way.
    If he comes after me someday, my gun may be the only thing that
    could save my life.
        Red flag laws have a real chilling effect and can cause
    victims to fear losing their rights if they seek help by
    talking with friends, family, or psychologists. Rights should
    never be taken from people without due process first. Mental
    health experts should absolutely be involved in that due
    process.
        Under red flag laws, the burden of hiring an attorney and
    paying thousands of dollars for representation would be on the
    person flagged. Who knows how long it could take in court and
    how much money it would cost to regain my safety? The process
    is unfair and burdensome.
        It is not only victims who can be impacted by these laws.
    Anyone who has dealt with traumatic events can be affected--
    police, first responders, nurses, doctors, military, et cetera.
    Research varies. There are indications that red flag laws range
    from having no significant effect on homicides and suicides to
    an increase.
        I learned, during the murder trial, that there were signs
    my stalker was a danger to others years before he crossed our
    path. His co-workers, friends, and family knew of these signs.
    I do not know if those in my stalker's life ever reported him
    to police, but if they did, just as with Nikolas Cruz, who did
    the Parkland attack, they did not act.
        Ben's murderer threatened to kill his own secretary at his
    job in Florida. My stalker's father said at trial that it
    ``scared the stew'' out of her. He fired a shotgun out of anger
    at innocent hunters who were near his property. At this point,
    he should have been arrested, charged, and convicted. That,
    alone, would have prohibited him from possessing and purchasing
    firearms. But for some reason, that never happened. These are
    just a few examples of many. He had no criminal record and no
    mental illness on record, but he certainly should have. Somehow
    he fell through the cracks.
        The people in his life back then could have ``Baker Acted''
    him. That is where they put you on a 72-hour hold; you have a
    mental evaluation; the judge looks at evidence; and there is a
    whole range of options. They can, you know, do the outpatient
    treatment, removal of guns, or involuntary commitment.
        I just feel that if someone is, indeed, a real danger to
    themself or others, simply taking away their guns is not a
    serious response. Red flag laws are overwhelmingly used because
    of fears of suicide. There are other ways to commit suicide
    that have similar high success rates.
        In conclusion, I believe the focus should be on mental
    health services and facilities in this country. Focus on
    education for the public, training for law enforcement, judges,
    and prosecutors on enforcement of existing laws like the Baker
    Act and those similar laws across the Nation already. And
    please, do not forget compassion for good people going through
    a difficult time.
        Thank you so much.
        [The prepared statement of Ms. Goeser appears as a
    submission for the record.]
        Chair Blumenthal. Thank you, Ms. Goeser. Mr. Horwitz.

                      STATEMENT OF JOSHUA HORWITZ,

                    EXECUTIVE DIRECTOR, COALITION TO

                   STOP GUN VIOLENCE, WASHINGTON, DC.

        Mr. Horwitz. Good afternoon, Chairman Blumenthal, Ranking
    Member Cruz, and distinguished Members of the Committee. Thank
    you for giving me the opportunity to testify on the importance
    of extreme risk laws, and their value in preventing gun
    violence. My name is Josh Horwitz, and I am the executive
    director at the Coalition to Stop Gun Violence. We develop and
    advocate for evidence-based solutions to reduce gun injury and
    death in all of its forms.
        Ms. Goeser, I am so sorry for your loss. Like you and like
    so many others, I came to the gun violence prevention movement
    because of my own personal loss. Thirty-two years ago, a dear
    friend of mine took her own life using a newly purchased
    firearm in a moment of hopelessness. Back then, I did not have
    the knowledge or the tools to intervene effectively. I
    desperately wish that I could go back in time. But I can't, and
    I can't bring my friend back. What I can do is what I am doing
    right now: encouraging policymakers like you to use your power
    to support life-saving policies like extreme risk laws so that
    no other families or friends have to experience this type of
    heartbreak.
        Gun violence in our country remains persistently high,
    taking nearly 40,000 lives each year. Sixty percent of those
    deaths are suicide. Although no single intervention will serve
    as a panacea to the epidemic of gun violence, extreme risk
    laws, which help prevent lethal violence before it occurs, have
    the potential to save many lives and are gaining traction
    throughout the country. Enacted in blue and red States alike,
    and endorsed by both the Trump and Biden administrations, this
    policy provides a clear opportunity to find common ground in
    stemming this ongoing nationwide tragedy.
        In the months that followed the Sandy Hook shooting, the
    national dialogue around preventing gun violence was focused on
    mental illness. To determine whether this approach would be
    effective, I convened a group of the Nation's leading
    researchers to identify risk factors for violence, and to
    formulate evidence-based policy recommendations. When reviewing
    this research, this group, who became known as the Consortium
    for Risk-Based Firearm Policy, concluded that firearm
    prohibitions based only on mental illness diagnosis are not
    supported by research evidence and are harmfully stigmatizing.
        Instead, we identified behavioral risk factors for violence
    that are supported by research, including violent behavior,
    threats of violence, and risky alcohol use.
        We know that in many high-profile shootings and firearm
    suicides, family members were often the first to know their
    loved ones were in crisis. Unfortunately, there were few tools
    for family members and law enforcement to use during these
    moments.
        To address this gap, the consortium developed the modern-
    day extreme risk protection order, based on long-standing
    domestic violence restraining orders found in every State as
    well as the established risk-based firearm removal laws in
    Connecticut and Indiana. Today a total of 19 States and DC have
    extreme risk laws on the books.
        There are usually two types of extreme risk protection
    orders: temporary ex parte orders and final orders. These
    processes have been found to be constitutional by courts across
    the country. In some cases, the temporary order, which
    typically lasts 14 days, provides enough time to mitigate risk,
    and it becomes unnecessary to go for a final order.
    Importantly, both temporary and final orders, which typically
    last up to 1 year, are civil and not criminal. They are time-
    limited and ensure processes are in place for returning the
    respondent's firearms at the conclusion of the orders.
        Multiple studies of extreme risk laws have found that they
    are especially effective in preventing suicides, and new
    research suggests that they may help prevent mass violence as
    well, including school violence.
        However, extreme risk laws can reach their full potential
    only if they are implemented effectively and fairly. I have met
    with people around the country, hosting forums about extreme
    risk laws and learning from stakeholders putting them into
    practice. The use of those laws vary not only between States,
    but between cities and counties, too. These variations are
    typically a function of training and staff.
        Although extreme risk laws are a State-level policy, the
    Federal Government can play an important role by supplying
    resources to advance State implementation efforts. By
    supporting local jurisdictions to train law enforcement
    officers, judges, and clerks, the Federal Government can help
    to assure safe and equitable application of extreme risk laws,
    access to services for respondents, and proper reporting of
    records to the NICS system.
        Unfortunately, this month's mass shooting at the
    Indianapolis FedEx warehouse highlights the devastating effect
    of a failure to implement an extreme risk statute. Had an
    extreme risk order been obtained, eight families might not be
    grieving right now. We cannot allow these cases to fall through
    the cracks for lack of resources and training. Too many lives
    are at stake.
        Gun violence is preventable. While I am sure that every
    Member of this Committee does not agree with every nuance of
    every extreme risk law, I hope that we can agree that
    temporarily removing firearms from a person at high risk of
    violence is the right thing to do, and that we can do it in a
    way that enhances community safety while respecting
    constitutional rights.
        Thank you for this opportunity to testify. I look forward
    to your questions.
        [The prepared statement of Mr. Horwitz appears as a
    submission for the record.]
        Chair Blumenthal. Thank you very much, Mr. Horwitz.
        I am going to begin with some questions. We are actually, I
    believe, in the middle of a vote, and so we may kind of tag-
    team. We may have to take a recess briefly. But I will begin
    the questioning.
        Let me ask you, Mr. Horwitz, I don't know of any red flag
    or extreme risk law that has been struck down by any court
    across the country.
        Mr. Horwitz. You are correct.
        Chair Blumenthal. Why would you say that is, given all of
    the hullabaloo that we have heard about due process and
    constitutional rights?
        Mr. Horwitz. I would say that is because it is built on the
    same process as a domestic violence restraining order, which
    has been found again to be constitutional. It's a very similar
    situation. Instead of, for instance, you know, a spouse worried
    about the risk to them from another spouse, for instance, what
    happens in the situation where the spouse is a danger to
    themselves, right? It's the same risk, the firearm is in play,
    the same risk factors, the threats of violence. Judges have a
    good sense of how that works, and it is the same standard from
    State to State. I really think we built it on this domestic
    violence restraining order process, well established, all 50
    States, courts know how to use it. I think that is why they
    have been found to be constitutional.
        Chair Blumenthal. I have heard the argument made that red
    flag laws are unnecessary because we have domestic violence
    protections. Is that true?
        Mr. Horwitz. I think, you know, especially in the case of
    risk to self, I mean, that is a big issue where, you know, a
    domestic violence restraining order, you cannot--it's not
    available for someone who is at suicide--risk of suicide.
        Additionally, when your there--think about it is broader--
    you know, here law enforcement can go and use a civil order in
    many situations. It is broader than a DV law, but built on the
    same process with the same protections.
        Chair Blumenthal. In fact, the target of a shooter may not
    be somebody at home. It could be a school. It could be someone
    at work. It could be a stranger who is stalked. It could be
    anyone.
        Mr. Horwitz. Right. When you look at the examples, you
    often see that the person who is at risk may not be in any
    relationship at all to the shooter. This gives that opportunity
    for law enforcement to intervene, and it gives them clear legal
    authority to intervene, which is very important.
        Chair Blumenthal. The claim has been made that the process
    for regaining a firearm is costly, it's burdensome. Is that
    customarily----
        Mr. Horwitz. When the order expires, the firearms get
    returned. The same this works--this is, again, a civil not
    criminal process. These are quick processes. Typically in the
    United States, we do not--you know, lawyers are not provided
    for protective orders, the same as DV laws.
        Chair Blumenthal. If the firearm is retained, the burden is
    on the prosecutor, or the official who wants it to be retained,
    to prove that there is some danger, some severe risk, and it is
    called ``extreme risk'' for a reason. There is extreme risk,
    and the burden is to present evidence, not just make the claim,
    correct?
        Mr. Horwitz. It is two stages. You have temporary, where
    you have to make the claim, and what we call ``permanent,''
    although it is for a year, where you have to make that claim
    and you have to prove it twice in most cases. Oftentimes the
    burden of proof is higher the second time around.
        Chair Blumenthal. In fact, the burden is always on the
    prosecutor, and it often is----
        Mr. Horwitz. So just----
        Chair Blumenthal [continuing]. Higher.
        Mr. Horwitz. I am sorry.
        Chair Blumenthal. Let me just ask Ms. Wyatt, because you
    have a unit consisting of law enforcement, prosecutors, a court
    advocate, a problem solver, a court coordinator, a paralegal, a
    data technician, and a program manager who all assess the
    danger before you even go to get a warrant that separates
    someone from a firearm. You are extremely cautious and
    demanding of yourselves before you exercise that power. Is that
    correct?
        Ms. Wyatt. That is correct, and we are carefully vetting
    those cases, typically with law enforcement as well. And so, we
    are going through to make sure, one, ethically, legally it
    meets the standard for an extreme risk protection order in our
    State, so we are going to have to petition the court to be able
    to prove that that individual is a significant danger to
    themselves or others. Then there is a series of factors that we
    are basing that off of, and that typically involves a threat of
    self-harm or threats to others. You are absolutely right that
    there are many different layers built into the process, and as
    you can see, we have a population of 2.2 million people, and we
    filed last year--or assisted filing with law enforcement and
    families--79 ERPOs. I believe that is less than 0.002 percent
    of the population. We are very specific and targeted about our
    program.
        Chair Blumenthal. It takes resources to run that kind of
    unit, and that is exactly the kind of resources and support we
    would try to provide through this legislation for State
    statutes. Again, we are not talking about a Federal mandate. It
    is State statutes that would be supported and encouraged and
    incentivized.
        Mr. Bencomo, let me just finish with a quick question to
    you. In your experience, I think that a very substantial
    proportion of victims of suicide are, in fact, veterans. Why is
    that?
        Mr. Bencomo. There is--this is a personal thought, that
    there is a stigma within the veterans community to seek mental
    health. We are trained warriors for this country. We are
    strong, we are patriotic, we have a job to do. At times, we
    cannot allow some of our personal emotions to get in the way,
    and that carries on once we leave service. It is a very strong
    and power defense for us, and that is probably one of the
    reasons why many of us will not seek mental health when we are
    asked to or need to.
        Chair Blumenthal. Often the effect of going to court in a
    red flag case has the effect of persuading a veteran to seek
    help. Is that correct?
        Mr. Bencomo. I would say if they were required by the
    court, then, yes, they would have to--by the nature of the
    case, would have to then seek some type of mental counseling.
        Chair Blumenthal. Thank you. Senator Cruz.
        Senator Cruz. Thank you, Mr. Chairman, and I will note, Mr.
    Chairman, I was remiss at the outset of this hearing in not
    congratulating you on being Chairman of this Committee. I had
    the pleasure of being Chairman of this Committee--Subcommittee
    for the past couple of Congresses, and it is a terrific
    Committee with, I think, the best jurisdiction in the entire
    Senate. I look forward to serving with you as Ranking Member on
    the Committee.
        Chair Blumenthal. Thank you.
        Senator Cruz. Mr. Kopel, the last time you and I spoke, I
    asked you what the minimum protections that an extreme risk law
    should have to ensure that it comports with due process. You
    responded that laws should not allow ex parte proceedings
    except on a finding of necessity, that laws should use a clear
    and convincing standard throughout, and that respondents should
    have a right to counsel and the right to cross-examination.
        Do any of the laws currently on the books meet all of these
    criteria?
        Mr. Kopel. Not in--there is no one State that has all of--
    State that has all of them. In several States, you can pick
    things from several States that are good on a particular item,
    but no State law has the full scope of what I would say is fair
    for due process. As Senator Blumenthal and Mr. Horwitz
    discussed, there have not been very many constitutional
    challenges on this, but the ones that have, have been not very
    successful, have failed, and partly because they were very
    broad kind of facial attacks.
        The bigger picture is courts are not always our leaders in
    protecting due process. Civil asset forfeiture, I think, is now
    something that people say went way too far and has been
    performed by statute. But judicially, there was very little
    that ever got done about that, and most of the challenges
    failed. There is the, kind of, most minimal level of due
    process the courts will enforce, and then there can be higher,
    better standards that legislatures insist on.
        Senator Cruz. President Biden instructed the Department of
    Justice to develop a model red flag law for the States. The
    last time you were here, we discussed the fact that Giffords, a
    progressive gun control organization, blocked the drafting of a
    model red flag law by the Uniform Law Commission because they
    insisted on their own more extreme model. I am concerned that
    the Department of Justice will put out a model law that is,
    more or less, the same as Giffords' extreme model.
        Can you tell us, in your judgment, what that model looks
    like, and why it is so extreme?
        Mr. Kopel. It is a model that, on the one hand, doesn't
    view the temporary, whether for 2 weeks or even a mistaken
    thing for much longer, deprivation of the right to arms as a
    significant harm. Its premise is somewhat unbalanced in how it
    weighs things. It is--ultimately it's something that is based
    on one side of the issue, you know, which is understandable.
    You know, that is the faction that won the election and
    controls the Presidency. What was going on in the Uniform Law
    Commission was to take into account both points of view. For
    example, one group in the Commission was the International
    Association of Chiefs of Police, which is a very--has been for
    decades a very pro-gun control organization. On the other hand
    was the National Sheriffs Association, which is definitely not
    absolutist against gun control but is more typically skeptical.
        If you had both of those perspectives, I think that would
    lead to a more balanced, fair, and accurate process, because I
    think we--there is agreement that there are some people from
    whom guns should be taken away for public safety, and also
    there has to be recognition that sometimes mistakes happen and
    people are improperly deprived, and we want to get a process
    that has the highest possible feasible level of accuracy.
        Senator Cruz. President Biden has nominated David Chipman,
    who is a senior policy adviser for Giffords, to be the Director
    of the ATF. I understand that you have a bit of history with
    Mr. Chipman regarding red flag laws and that he seemed not to
    have great concern about law-abiding citizens having their
    right to self-defense stripped away. Could you give us some
    background on what happened with Mr. Chipman?
        Mr. Kopel. Sure. He was on the Commission, a member of the
    study--Uniform Law Commissioners' study committee with me. As
    you mentioned, I brought up the problem of we want to make sure
    we do not disarm innocent people, even on a temporary basis,
    because that creates danger for them, and then his response
    was, ``Well, people can just buy a replica gun,'' and maybe if
    they are a great actor they can scare people away with a
    replica gun, but that is not really an effective alternative to
    an actual firearm for lawful self-defense.
        In another part of the discussion, I said--I brought up the
    point about no-knocks, and in general, we--of course, no-knocks
    are necessary in some situations, but we want to have them used
    when they are necessary, and not just routinely. We have seen
    lots of situations, outside of red flags, where no-knocks just
    get carried out kind of in a reckless way because the local
    SWAT team does not have anything else to do that day.
        Mr. Chipman's response was, ``Do not tell the police how to
    do their job.'' I guess as a constitutional law professor--and
    my dad was in the State legislature as a Democratic liberal
    representative from northeast Denver for 22 years--we tell
    police how to do their jobs all the time. That is what the
    Fourth Amendment to the Constitution does, the Fifth Amendment
    does that, and so do all kinds of statutes we have in this
    country.
        Senator Cruz. Thank you, Mr. Kopel.
        A final question, Ms. Goeser. Thank you for appearing
    today. Thank you for telling the story of the horrific murder
    of your husband, and thank you for using the pain and horror of
    that crime, using it to try to protect others who might be
    victims of violent crime in the future. Your husband was
    murdered in a gun-free zone, and you followed the law. You did
    not have your firearm. You were not able to protect yourself or
    protect him. That is a familiar pattern with gun control
    efforts, and many of the mass murders we have seen have
    occurred, similarly, in so-called gun-free zones.
        Are you concerned that the same will be true with red flag
    laws, that law-abiding citizens could have their firearms
    confiscated, particularly when they are vulnerable to
    criminals, but the criminals will refuse to turn over their
    weapons, and the result will be other potential victims of
    crime being left vulnerable to violence?
        Ms. Goeser. Yes, absolutely. I am very concerned about
    that. Of course, there are people who can abuse red flag laws.
    You know, there are people that can abuse existing laws, too,
    but, you know, at least with the Baker Act--different States
    call it different things, but we pretty much have an option
    that is the Baker Act. They call it different things in
    different States, but it exists all over the Nation. Every
    State has a similar law to the Baker Act, and they offer
    protections. You know, I don't have $10,000 in my savings
    account to cover legal fees if someone flagged me for some
    reason. You know, it is pretty scary that someone could knock
    on your door, law enforcement knock on your door at 5 a.m. and
    say, ``Hey, we are taking your guns,'' and you have no idea
    why. You don't know why, what is going on. I need to be able to
    protect myself. I just think due process is so important.
    Mental health experts should always be involved. That should be
    mandatory. If we are talking about mental health, mental health
    experts should absolutely be involved in that due process. And
    I believe due process needs to come first.
        Look, if someone is truly dangerous, if they are truly
    dangerous, they need to be confined to a mental health
    facility. I mean, so you take someone's gun away. They are
    still dangerous. That is how I feel.
        Senator Cruz. Thank you.
        Chair Blumenthal. Thanks, Senator Cruz. Senator Whitehouse.
        Senator Whitehouse. Thank you, Senator Blumenthal, for this
    hearing and for your long-long-time passion and leadership for
    protecting our people from the scourge of gun violence.
        Mr. Horwitz, we passed a red flag law in Rhode Island. It
    went into effect in June of 2018, and the last report I have
    ends with that as of November 2019. In that period, State and
    local police in Rhode Island invoked that law 33 times. In one
    of our municipalities, Cranston, police petitioned for red flag
    orders eight times, just in one city. In one case, police
    seized weapons and obtained an order to help a worker who had
    made comments he had a desire to kill certain coworkers and had
    boasted about his firearms.
        Is that experience in Rhode Island consistent with what you
    see around the country in terms of the laws being made
    effective?
        Mr. Horwitz. I think it is. I mean, I think we are seeing
    it used very judiciously. I think we are not seeing, you know,
    millions of these being done. I think, you know, in Virginia,
    where I am very familiar, I think there is under 70 or so in
    the first year. I think it's very consistent with what we are
    seeing around the country.
        You know, California, in the first couple years, saw under
    400 in such a big State, but they are very important. They are
    based on someone's--you know, on the risk of individuals, and I
    think that is why you don't--they are not used for mass--like
    for lots of people across a wide spectrum. They are
    individualized attempts to identify people who are at a risk,
    an elevated risk of violence, and I think that is why they are
    important, that is why they are constitutional, and that is why
    they are effective.
        Senator Whitehouse. Ms. Wyatt, those of us who have sat in
    a prosecutor's chair and had to make the decisions that you
    have to make are familiar with a whole variety of legal
    procedures that help protect people from threats of violence,
    whether it is restraining orders, protective orders. They are
    particularly common in the domestic violence arena. In your
    view, are the protections involved in the red flag laws
    consistent with those for other types of safety orders that law
    enforcement commonly obtains?
        Ms. Wyatt. Thank you for the question. Yes, you are exactly
    correct in that extreme risk protection orders follow the
    process similar to domestic violence protection orders or
    sexual assault or anti-harassment orders, meaning that each
    phase comes before a judicial officer. A family member cannot
    walk down the street and get an ERPO on their own, nor can law
    enforcement. They have to sign and fill out a detailed
    petition, sign under penalty of perjury, and then it is
    submitted to the court, just like any other civil order would
    be, and the court is making a determination if there--in our
    State if there is reasonable cause that the individual is a
    significant danger to themselves or others. There is a similar
    process with other civil protection orders as well, and then
    the individual subject to the order has to be served, because
    that individual needs a chance to be able to come to court, to
    have their own witnesses, to be able to tell the court either
    they are in favor of the order or they are going to challenge
    that order. Each phase and each step involves judicial
    oversight.
        Senator Whitehouse. In particular, Ms. Wyatt, do you think
    just as a matter of good practice it would be advisable to have
    domestic violence victims or those who have a restraining order
    protecting them from another individual be advised when that
    individual, their assailant or the threat to them, acquires or
    tries to acquire a weapon, a firearm specifically?
        Ms. Wyatt. Yes, and our unit specifically addresses not
    only extreme risk protection orders, but, of course, also
    domestic violence protection orders. Because the lethality is
    so high at the moment that those victims are petitioning for
    separation or petitioning the court for a domestic violence
    protection order, it is critically important that we follow up
    and enforce court orders when they are ordered to surrender
    weapons, like in our domestic violence cases or ERPO. Our own
    State has a system set up to notify if somebody is subject to
    an order and somebody attempts to purchase or we get
    notification from our State patrol, and it goes to local law
    enforcement as well as our unit, and then we have victim
    advocates that are reaching out to the victims as well, to make
    sure that they know that there was either an attempted purchase
    or if a firearm was actually delivered, then we are going to be
    following up with local and Federal authorities if we believe
    that firearm was given to somebody who should not have it.
        Senator Whitehouse. If I could ask one more question of Mr.
    Bencomo.
        Chair Blumenthal. Sure.
        Senator Whitehouse. I think it's human experience that
    powerful emotions can pass through human beings--anger, rage,
    jealousy--and that the decision-making during that period, when
    you are in the grip of a fierce emotion, can be compromised,
    and that people act out in unfortunate ways in that moment, and
    make decisions, sometimes, that have irrevocable consequences
    for the rest of their lives.
        Given that aspect of human nature, is it conceivable that
    the subject of a restraining order, the person who is told they
    have to take a pause on having their firearm, is actually the
    real beneficiary of that restraint?
        Mr. Bencomo. A simple response would be yes.
        Senator Whitehouse. Yes. It just seems that way. You lose
    your access to your firearm for a week or two, and you are
    spared a lifetime of guilt and remorse, and the horrible memory
    of having acted on something when you were in a fit of emotion.
    It seems that way to me, anyway. Thank you.
        Mr. Bencomo. Thank you.
        Chair Blumenthal. Thanks, Senator Whitehouse.
        I am going to call on Senator Lee. I am going to vote. If I
    am not back by the time he is finished with his questioning, he
    is going to call a brief recess. I will be back, and we can
    resume then. Thanks, Senator Lee.
        Senator Lee [presiding]. Thanks so much, Mr. Chairman. I
    really appreciate you accommodating me in that regard.
        Thanks to each of you for being here today. You know, the
    Second Amendment guarantees our right to keep and bear arms.
    This was a right that our Founding Fathers deemed fundamental,
    so much so that they added it to the text of the original
    Constitution, and it's not only the Second Amendment that is at
    stake when we talk about things like this. There is also the
    concept of due process.
        The Fifth Amendment's Due Process Clause, of course,
    provides that no person shall be deprived of life, liberty, or
    property without due process of law. That requirement is, of
    course, made applicable to the States through the 14th
    Amendment.
        You see, our freedom isn't free. Whenever Government acts,
    it does so, inevitably, at the expense of individual liberty.
    That is where Government has to get its power. We need
    Government, and just the same we need Government to respect
    boundaries on its own authority.
        I certainly agree that we should take steps, wherever
    possible, to make sure that people who shouldn't have guns
    don't have them, in particular, those who are legally
    prohibited from having them, because they were adjudicated as
    mentally unfit to do so, or they have been convicted of a
    crime. These restrictions are consistent with our system of
    laws, and they can be applied in a manner that does not offend
    our constitutional rights.
        Ms. Goeser, I am very touched by your testimony. As I read
    through your written testimony, I could not help but notice
    that, as you were talking about difficult things and the
    difficult circumstance in which you had to witness your own
    husband's murder, even while you had a firearm and had access
    to it, but you chose to comply with the law, your assailant did
    not. I think you summarized it extremely well with just a few
    words: ``I obeyed that gun control law; my stalker did not.''
        I do not think I have found any one sentence that better
    summarizes the need to respect the Second Amendment, the need
    to protect due process, and also the dilemma that we face and
    that we have to take into account whenever we choose to enact
    laws infringing upon those rights.
        It sounds to me like you would likely agree with the
    proposition that it is not a cost-free action for the
    Government to take, that in the name of protecting people from
    the horrors of gun violence, Government can also inflict
    violence. Would you care to elaborate on that based on your
    experience?
        Ms. Goeser. I think that there are some laws that are
    created that just--they have unintended consequences. I think
    some of these gun control laws were created thinking that, you
    know, we are going to protect people. Unfortunately, it can
    make some people out there vulnerable, so that they cannot
    protect themselves and their loved ones. You know, I do not
    want dangerous people to have access to guns, but you know
    what? I do not want them to have access to a vehicle or a knife
    or a baseball bat or a pressure cooker. I mean, if they are
    truly dangerous--of course, I want everyone to have due
    process. I believe murderers deserve due process, and victims
    as well. That is what is so great about our country, that we do
    have due process and we do have a Constitution. I do not want
    to live anywhere else. I love America, and I love that about
    America.
        Senator Lee. Yet it is sometimes suggested, and we have
    heard it suggested even just in the last few moments, that the
    worst that can happen if you take somebody's gun away without
    due process is that they have to go without it for a few days,
    or for a couple of weeks. Yet your circumstances would seem to
    suggest that that is not true, that that is not the full extent
    of the downside of that, that there is more cost. Sometimes,
    that cost is borne not just in an inconvenience, but in someone
    being left vulnerable.
        Ms. Goeser. Yes, absolutely. In my case it would have
    compounded the problem. Of course, I was depressed. Who
    wouldn't be? Of course, I had nightmares. Who wouldn't after
    going through that? To take away my basic human right of self-
    defense on top of all of that would just be devastating for
    someone like me.
        Senator Lee. Sometimes people will argue due process is
    great and everything, but with respect to the bad folks, we
    cannot give them due process. Isn't that the problem with due
    process itself? I mean, if we are going to respect due process,
    aren't we agreeing, up front, that due process needs to be up
    front? It is not really due process if it is only after the
    fact. Is that right?
        Ms. Goeser. That is right. I understand it can be very
    scary. I mean, I get it. I get it. I am a victim of a violent
    crime. But like I said, if you truly believe that someone is a
    danger, they should be confined to a mental facility. They
    should have due process, and that is why I support the Baker
    Act and similar laws that already exist all across the Nation.
    Every State has a similar law to that, because it includes due
    process. Your legal fees are covered. They are not under red
    flag laws. You know, I do not have $10,000 to cover legal fees.
    It can be very, very expensive. With the Baker Act and similar
    laws, mental health experts are involved. That is not always
    the case with red flag laws, and I think that is very important
    that mental health experts be involved in that due process.
        Senator Lee. Mr. Kopel, does lack of notice and due process
    that sometimes might go along with gun confiscation orders,
    doesn't this have some potential to increase the risk of harm,
    both to law enforcement officers executing the orders and to
    those who are subject to those orders?
        Mr. Kopel. Sure. I mean, imagine a situation where
    officers--there is an ex parte order that has been issued, and,
    you know, maybe it is on weak evidence and the guy is really
    not dangerous, but the confiscation order is served by the
    police showing up at somebody's house at 5 o'clock in the
    morning. You know, normally a homeowner might think it was a
    burglary and--because he has no idea that anybody is coming to
    take his guns. There is also a broader problem in the--how it
    erodes trust between law enforcement and the public, and this
    was talked about in one of the Connecticut studies that is
    quoted in my written testimony.
        When you have somebody whose guns are taken away and
    confiscated, the police show up, you know, never heard of
    anything going on against me, but now here is a cop coming to
    take my guns, as the--some Connecticut State Police officers
    have reported, these are often the guys who think of themselves
    as the most pro-cop. You know, they are the ones who were on
    ``Back the Blue,'' on the side of law enforcement, understand
    it is a tough job. Then all of a sudden the guys they thought
    were their friends are there to take away their property, when
    it is a complete surprise to the person, and then maybe a few
    weeks later the person hires a lawyer, goes into court, they
    get their guns back. But in the meantime, it has been a very
    humiliating process for the wrongly accused individual. Law
    enforcement, whom I have often represented in amicus briefs in
    courts and elsewhere, are so dependent on the cooperation and
    good will of the public. You know, that is the American model.
    We are not policing from above like in some other less free
    countries.
        When these are done wrongfully, they really break that
    relationship and bond between the public and law enforcement
    that is necessary to successful law enforcement and public
    safety.
        Senator Lee. Mr. Kopel, there are a number of us, myself
    included, who have formed sort of a bipartisan coalition
    raising concerns in a related area of civil asset forfeiture,
    where in areas outside of firearms, we have raised concerns
    with law enforcement being able to take people's property first
    and then ask questions later, to take first and then provide
    some sort of process later.
        Due process, of course, has a higher expectation than that,
    does it not? Do you see the--tell me what you think about the
    parallel between this and that. In other words, if one is
    concerned about the potential for abuse, and the actuality of
    abuse, in the civil asset forfeiture arena, how could one not
    see something similar when it extends to the Second Amendment?
        Mr. Kopel. It is the same kind--a similar kind of
    situation, and both have good intentions of trying to deal with
    a serious problem. Here gun crime and civil asset forfeiture,
    it had always existed in kind of a minor way, but it really got
    ramped up in a huge way in the 1970s and 1980s because of the
    drug war. Of course, drug abuse can be very harmful not only to
    an individual but to society more broadly, and so the idea was,
    well, we need these tools to fight the drug lords and all this.
    What happened was there were a lot of people whose property got
    taken who were not Colombian drug lords or anything like that,
    and it was widely abused, and, sadly, the courts in their view
    of what the minimum--what the Constitution requires as a
    minimum for due process generally said that is fine. I would
    urge especially this Committee, of all Committees in the United
    States, which is charged with defending the Constitution, that
    one of the reasons courts often defer to legislative judgments
    is they presume, just like Chief Justice Marshall said in
    McCulloch v. Maryland, that the legislature itself already
    seriously thought about constitutional rights and values. I
    think legislators can and should go above whatever minimal
    level the judiciary will enforce in terms of the protection of
    people's procedural rights.
        Senator Lee. Insofar as we are talking about due process
    that is freestanding here, which I think we have agreed that
    there is, certainly a right does not lose protection by
    becoming a hybrid right. In other words, if you already have a
    freestanding, independent due process right protected by the
    Fifth Amendment or the 14th Amendment's Due Process Clause, you
    certainly do not see that, any justification for diluting that
    right, merely because you have added the Second Amendment into
    the equation by virtue of its involvement in the firearms
    arena.
        Mr. Kopel. Right. Yes, at least as a policy matter, you
    would think due process would be all the stronger there. Of
    course, the analogy is, I am sure you know, in the first
    Supreme Court's free exercise of religion jurisprudence,
    sometimes that free exercise of religion gets stronger
    protection when it is a hybrid in conjunction with the exercise
    of some other right.
        Senator Lee. Right, right. I have never quite understood
    the hybrid rights doctrine in the First Amendment context
    beyond what you just described, which is that it certainly does
    not get weaker when you compound one right with another. I
    would maintain that is no less true here.
        Consistent with the directive I was given from the Chairman
    when he left to go vote, I hereby recess this hearing of the
    Subcommittee subject to the call of the Chair, who will be back
    momentarily. Thank you.
        [Whereupon the hearing was recessed and reconvened.]
        Chair Blumenthal. We are back. We are going to be joined
    shortly by Senator Graham and Senator Cruz at least, and
    perhaps others. I will yield to Senator Graham when he arrives,
    but I have a few questions in the meantime.
        First, let me ask the panel, because I was not here,
    whether everyone got a chance to respond to Senator Lee's
    questions or if there is anything else you would like to say
    while we are waiting for others to come back. Mr. Horwitz?
        Mr. Horwitz. If I were available, I think it is important
    to make the case that in these situations I am--we were talking
    about a lot about civil asset forfeiture. I am not an expert in
    that law at all, so I cannot claim to that. I do know that the
    due process protections in ERPO laws are very similar to other
    civil orders, especially domestic violence orders, but also in
    cases--some cases of civil commitment, as well as in child
    endangerment situations where there is an urgency to act. So, I
    don't know that the analogy is exactly perfect for civil asset
    forfeiture, because so I think what we are talking about here
    is danger to persons. I think the analogy is a little
    different. When you think about due process protections that
    have been upheld, you can see that in numerous--numerous other
    fields, the type of arrangement that is built here is available
    in other fields, and so I think we tried to build this with
    that in mind.
        I--one of the things you think about Indiana's original
    law, you know, in that law, firearm removal has been upheld
    even without a hearing, a temporary hearing to begin with. When
    we built sort of what we see--Indiana and Connecticut were the
    first, and as we built the laws moving forward, we wanted to
    add that hearing at the beginning, so that no firearm was ever
    removed without a judge looking at least as the ex parte--
    looking at the evidence.
        I think there is more protection here than people--than
    some folks have looked at through this, and I think it is in
    line with what we have seen in long-standing domestic violence
    protection orders.
        Chair Blumenthal. As I mentioned, I will yield to Senator
    Graham whenever he is ready to go.
        Senator Graham. Thank you, Mr. Chairman. Yes, thank you
    very much. Very good hearing. Appreciate it.
        Mr. Kopel, is that right? Are you still with us?
        Mr. Kopel. Yes, I hope so.
        Senator Graham. Okay. I enjoyed our last engagement where
    we were trying to find a way, on the front end and the back end
    to give adequate due process, but also address the problem. I
    think Indiana's situation is a good one. Ms.--Goeser? Is that
    right?
        Ms. Goeser. Goeser.
        Senator Graham. Your story made me think about, you know,
    we want to make sure we are thinking this thing through and not
    go too far with it. But I have just come to believe, Mr.
    Chairman, like you have, that States who have adopted these
    laws probably are on the right track. The Cruz situation in
    Parkland, 30 visits by the police, every warning sign known to
    mankind, and they were powerless. Governor Scott, working with
    the State House, passed a Florida version of the red flag laws.
    Indiana was one of the first ones to do this, and the situation
    for the young man who had the shotgun taken because of his
    mental health status, but there was no implementation, is
    something that I am sure we do not want to have happen again.
        Mr. Kopel, when it comes time to write a grant program,
    let's say, incentivizing States to go down this road on the due
    process front, you are advocating that there be a civil cause
    of action, in case somebody is accused wrongfully or
    maliciously, that they can actually have recourse against their
    accuser. Is that right?
        Mr. Kopel. Yes. Not a mistaken accusation because everybody
    makes mistakes, including me, as we discussed earlier in this
    hearing, but a knowing false and malicious accusation.
        Senator Graham. Got you. I talked with the Chairman about
    that. That makes sense to me that if somebody is trying to ruin
    your life and accuse you of something you are not, then you
    will have redress. I like that. The ex parte nature of the
    hearing, the initial determination by the judge to act, what
    kind of standard would you suggest we create there?
        Mr. Kopel. I would say start with the Federal Rules of
    Civil Procedure, which generally disfavor ex parte decisions
    but allow a judge to issue orders ex parte on a guided set of
    facts and findings about necessity. Particularly, why is the
    other person not here in court? Why didn't this person have
    notice? Sometimes, the person seeking a temporary restraining
    order can give a good answer to that, and sometimes not. I am
    sure----
        Senator Graham. The preference would be in live testimony
    so the judge could ask questions, but what standard would you
    impose?
        Mr. Kopel. The same as Federal Rule of Civil Procedure 59.
        Senator Graham. Okay. All right.
        Mr. Kopel. On which I am not an expert.
        Senator Graham. No, I got you, but you have got to pick a
    standard. That seems to be a good one to me. The time period
    between the initial determination and a full-blown hearing,
    what would you recommend?
        Mr. Kopel. I would suggest we talk to prosecutors,
    including some of the witnesses here who have experience with
    this, and say, What is a realistic time period? On the one
    hand, we want to be expeditious. On the other hand, maybe there
    is some time needed to get evidence.
        Senator Graham. Okay. All right. Based on your research, of
    the existing State laws, which one do you think has done the
    best job of threading this needle, and why? Which ones do you
    have the most concern about, and why?
        Mr. Kopel. Vermont may be best overall, although
    Connecticut has some good features in it, too, especially the
    requirement that law enforcement investigate the situation on
    their own before filing a request for a petition.
        Colorado, with its providing for defenders, defense lawyers
    in this case, I think is a very strong model and not only helps
    the individual but I think also may function as a deterrent to
    potential abuses. On the other side, I would say Massachusetts
    has some of the weakest standards for due process.
        In New Jersey, actually once you have got--the person
    actually gets an in-person hearing and there is a confiscation
    order, it has the effect of being permanent, preventing the
    person from ever owning a gun again unless they come back into
    court and prove that they are not a danger. I think the model
    Mr. Horwitz's organization has talked about where the order
    automatically terminates after a certain period of time--it can
    be renewed upon further proof about the individual at that new
    time--is the better way to go.
        Senator Graham. Okay. We will just sum it up here. I do not
    want to go over. Basically you believe the most
    constitutionally sound way to do this would be not a Federal
    law, but some grant program that would emphasize adequate and
    robust due process. Is that fair to say?
        Mr. Kopel. Yes, and I think that the States and localities
    have the resources to do this in a way that the Federal
    Marshals and others just do not have the manpower for, among
    other reasons.
        Senator Graham. Thank you.
        Chair Blumenthal. Thanks, Senator Graham.
        Senator Cruz, did you have other questions?
        Senator Cruz. No.
        Chair Blumenthal. Mr. Bencomo, you are a gun owner
    yourself. I am going to assume you are a law-abiding one. Has
    Colorado's law been tied to mass confiscation of firearms from
    gun owners like yourself?
        Mr. Bencomo. First of all, I am definitely a responsible
    gun owner, so thank you. From what we know from today,
    obviously I am not a scholar or a lawyer or an attorney, we
    have not seen mass confiscations.
        One area that we could do an improvement, I was glad to
    hear that we hit the high marks on a good--that we are a good
    role model. Not only do we have defense lawyers, I would love
    to see Federal funding so that we can assure that there are
    PSAs, public safety announcements, and education for additional
    responsible gun owners of Colorado.
        Chair Blumenthal. Are you familiar with instances where it
    has been used to retaliate against people or, vindictively, by
    family members or business associates against each other?
        Mr. Bencomo. I am not.
        Chair Blumenthal. It has been about a year since Colorado's
    law has been in effect, correct?
        Mr. Bencomo. That is correct.
        Chair Blumenthal. Notwithstanding that some counties have
    declared themselves to be Second Amendment sanctuaries and some
    sheriffs have announced plans to block the law from being used,
    I understand quite a few have reversed their opposition after
    seeing how the law is actually put into effect. Is that
    correct?
        Mr. Bencomo. That is correct, and those citations are
    listed in my written testimony. I would not be able to speak to
    them today, but they are listed.
        Chair Blumenthal. I thank you for coming here and talking
    about how it has saved veterans' lives, because they are at
    risk of suicide, and this law obviously has worked effectively
    to protect them.
        Mr. Horwitz, Mr. Kopel referred to your statute as one that
    seems to have been framed to meet the due process standard, and
    that it is based on the best examples of laws throughout the
    country. He alluded to the resources necessary to implement
    such a law. Would a law from Congress that provided those
    resources and training encourage States to adopt the best kind
    of standards as you have advocated?
        Mr. Horwitz. I think the Federal Government could do a lot
    to encourage the proper standards for these laws. I do think we
    have seen--and Kim Wyatt is the best example of what her unit
    does, but where there is robust funding, you will see all sorts
    of services for getting these done--but also for the
    respondents and the petitioners. What you do not see is that,
    for instance, outside of King County where Ms. Wyatt works, the
    implementation is really different. What we are seeking is
    those Federal resources to make sure that the same processes
    that we have seen work in Washington--King County--can go in
    every county that needs this.
        I will say that suicide--and, you know, from my testimony
    you know that I care a lot about this. Some of the highest
    suicide rates are in rural counties who are least able to
    afford the types of training, the types of investments that
    other counties have done. I think as a suicide prevention tool,
    I think the Federal Government has a big role to play in
    providing that technical assistance, that training, and the
    resources to really develop a process so things do not fall
    through the cracks. There are also the types of services that
    would make this really work.
        Chair Blumenthal. We have been talking a little bit about
    the protective orders, domestic violence protective orders.
    They impose restraints on constitutional rights, do they not?
        Mr. Horwitz. They certainly do, well beyond what an extreme
    risk protection order does. Domestic violence restraining
    orders can often keep you from your bank account, from your
    kids, from your home, and in some States even on a temporary
    basis your firearm. What we are talking about here is just one
    slice of that, but based on the same standard, it is a very
    surgical type of tool here, and that is the point of this. I
    was glad to see Mr. Kopel talking about ways that we could
    agree on this, because I do think we can do that. I think we
    can get there. I think we can make this tool safe to use around
    the country. I think we can meet, come to the middle, and find
    agreement and make sure that we are saving lives.
        Chair Blumenthal. I was encouraged as well, quite honestly,
    by his statement to that effect, and I thank him for his
    testimony today but also his candor in describing what he knows
    and what he does not know, because not all of us are experts on
    all the facets of these laws. But just from a constitutional
    standpoint, the restraints on liberty involved in domestic
    violence orders, in fact, they are called ``restraining
    orders'' because they restrict liberty. The civil commitment
    statute, which takes away----
        Mr. Horwitz. Right.
        Chair Blumenthal [continuing]. Somebody's liberty, there
    are all kinds of ways in which those fundamental liberties are
    impinged to keep society safe, and they establish procedures to
    do it so that those orders are fact-based, and a burden of
    showing those facts are put on the person who would seek to
    take away that liberty or any other rights. That basic concept
    is what we have here, and the idea that an order expires if it
    is unchallenged or unverified within a period of time and a
    firearm is then returned certainly is a source of protection,
    is it not?
        Mr. Horwitz. It is. As Mr. Kopel said, we really believe
    that at the end of the order, the firearm should be returned.
    It should not be a complicated process. There are options to
    renew, but at the same burden as the original. It doesn't--the
    burden should not shift from the petitioner in those
    circumstances. If there is a renewal petition made, it should
    again be on the petitioner to plead the elements of the
    statute.
        Chair Blumenthal. In a certain sense, we can actually not
    only encourage States to adopt these kinds of statutes, but
    also elevate the level, the quality of those statutes, if we
    offer incentives for them to do it in the form of grants and
    other support.
        Mr. Horwitz. Right. I mean, as Senator Cruz said, the
    States are all over--you know, are the laboratories of
    democracy, and there are different processes in different
    States, and I think you are starting to see some, you know,
    coalescing around some of the best practices there, and
    hopefully, the Federal funding can really improve that and make
    that--continue to make that process, that coalescing develop so
    that the law--we learn from what the best practices are, we
    learn from people like Kim Wyatt what really works, and that we
    end up developing a program that saves lives across the
    country.
        Chair Blumenthal. I think, Ms. Wyatt, I asked you earlier
    about the importance of resources to your unit, and you have a
    very well-staffed unit with experts and prosecutors and so
    forth, which has costs. Could you talk a little bit about the
    value that Federal resources would have to help you implement
    the best practices of that unit?
        Ms. Wyatt. Sure. Just to give a little context, you know,
    we are evolving as our unit has grown since January 2018. Last
    year, in 2020, we had 73 law enforcement petitions, ERPOs, and
    6 were from families. We realize on a daily basis the need to
    educate the public and educate the community, from faith
    leaders to school officials, therapists, medical providers, law
    enforcement throughout the whole State, and Federal authorities
    or Federal law enforcement as well. There is a need overall to
    educate the public because if you have a law and nobody knows
    about it, then it's not doing any of us any good. That would be
    the number one thing, is to get public education out. Then the
    second thing that I think is really critically important is to
    have funding for individuals who are implementing ERPO laws in
    their State, or to be able to create a model policy for law
    enforcement so law enforcement understands how we are supposed
    to serve these orders, which are very similar to other civil
    protection orders. Once we created a model policy and assisted
    law enforcement in our county, we had much more buy-in from our
    local law enforcement because it was this tangible, attainable
    task.
        I would suggest doing some of those things, but education
    is the number one thing. Then the second is to bring all the
    system players together, so that folks from the clerk's office
    where the orders will be filed to victim advocates who may be
    reaching out to families to also guide their loved one who is
    in crisis to get some resources, I think that is critically
    important. One area where we lack in our State is the need to
    have some money for individuals that are subject to the ERPO
    who need a behavioral health evaluation. Funding is needed to
    be able to guide those individuals to get that evaluation if it
    is court-ordered and to be able to get them some help once they
    have been subject to one of these orders. I think that is
    critically important.
        Chair Blumenthal. Thank you very much.
        I am going to yield to Senator Cruz. I have a few final
    questions, but in case he has to leave, I will yield.
        Senator Cruz. Thank you, Mr. Chairman. I have got a couple
    of questions. Let me start with Mr. Kopel.
        Mr. Kopel, since you testified 2 years ago, additional
    States have enacted red flag laws, and multiple States have
    amended their laws, and it seems that they have all amended
    them in the direction of providing less protection of due
    process and less protection of Second Amendment rights. For
    example, California amended its law to allow a disgruntled
    coworker to initiate the process for confiscating a fellow
    coworker's firearm.
        Do you agree that the trend is for these laws to get
    broader and broader and less and less protective of fundamental
    rights? If so, why do you think this is happening?
        Mr. Kopel. Because maybe it is the slippery slope that
    always happens on all kinds of laws. As people get it enacted
    in one way and say look at how narrow it is, and then when it
    is there, then they start thinking of ways how to broaden it
    further and further. Again, I think Connecticut has the right
    approach on saying anybody who has got a concern about someone
    else can come to a law enforcement officer, a peace officer, or
    a State's attorney and bring that problem forward. But they
    cannot--just because you had a fight with a guy at work, you
    cannot file a petition yourself against that individual. Law
    enforcement is supposed to do its own independent
    investigation, and that seems the best way to start off the
    process at the beginning with the higher quality of information
    to give to the judge.
        Senator Cruz. Thank you for that, and I think that is a
    very good point. As we discussed earlier, I am a strong
    believer in federalism, and right now 19 States and the
    District of Columbia have red flag laws, and there is not much
    quality evidence about their effectiveness or lack thereof,
    although there is some good evidence demonstrating that they
    have a very high error rate. Could you give a bit more color on
    what the evidence and the data shows about these laws?
        Mr. Kopel. For a lot of folks, the RAND Corporation's
    continuing project on assessing--doing a meta-study of all the
    social science on the gun issue has found some things,
    particular gun controls to be effective, and in their
    evaluation of this, their view was none of the studies that
    exist so far meet our standards for data quality and
    persuasiveness, so there is nothing there from RAND's point of
    view. But even beyond that, I do not know of any study that has
    ever said there is a statistically noticeable change in crime
    or mass shootings, along with other crimes.
        But I would also say that you do not have to--a law does
    not have to be proven to have a statistically significant
    effect to be beneficial. If you reduce homicide by half of a
    percent in a State, that may be, statisticians may not be able
    to see that and know that there is a cause and effect. But that
    is still a beneficial thing to do.
        The suicide data is mixed. One study said that it went
    down--firearm suicide declined in Indiana and was replaced by
    other methods. Another study found in Connecticut, actually,
    firearm suicide did decline, but deaths by other methods went
    up.
        On that, it is really important to know that there are lots
    of nearly as lethal substitutes for firearms, such as hanging,
    that have very high mortality rates as well. The theory that
    for every 10 or 20 of these confiscation orders that gets
    issued, 1 suicide was prevented, is really just a hypothetical
    extrapolation, and it makes the mistake of saying that every
    form of self-harm was a suicide attempt. You know, a teenage
    girl who cuts her arm is not trying to commit suicide. She is
    certainly indicating she has got a serious problem. That 10- or
    20-to-1 figure is not supportable because it assumes that every
    form of self-harm is an intentional suicide, which is
    definitely not true.
        Senator Cruz. Thank you.
        Ms. Goeser, in your opening testimony, you testified that
    red flag laws can have a chilling effect that can cause victims
    to fear losing their rights if they seek help by talking with
    friends or family or psychologists. Can you elaborate on that
    concern, please?
        Ms. Goeser. Sure. I think that when people fear that--you
    know, someone may be very, very, very depressed and still be
    concerned for their own safety, which I am sure to some people
    that does not make sense. But when people are concerned that
    they are going to lose their rights, they bottle up, like they
    are not going to want to share their feelings. I just think
    it's best that these people be able to get, you know, mental
    health help, and if they feel intimidated, if they feel like
    they might lose their rights, it can actually have the opposite
    effect from what you want.
        Senator Cruz. Advocates for red flag laws often focus on
    the benefit of removing a firearm from a potentially dangerous
    person, and there is no doubt that with someone with serious
    mental illness or an intent to do real harm, that that can be a
    very real benefit. But they also diminish the harm of removing
    a firearm from someone who might be a victim of violence, for
    whom that firearm might be the difference between surviving a
    violent attack and not surviving a violent attack. Do you agree
    with that?
        Ms. Goeser. Yes, I have got to tell you this: I think--and
    I have gotten to know a lot of victims. I actually brought my
    friend Amanda Collins-Johnson with me. She is sitting just
    behind me here. She was brutally raped on her college campus.
    It was, of course, a gun-free zone, and it was in the student
    parking garage. She had her permit to carry, but because she
    was obeying that gun control law, she left her gun at home. She
    wasn't allowed to have it on campus. That is where a serial
    rapist found her on her way to her car in the student parking
    garage, and he brutally raped her, right there in the garage. I
    have gotten to know a lot of other victims, and they all want
    the ability to protect themselves. We also fear that--you know,
    some of our attackers are going to be released. You know,
    people seem to think that if you do a horrible violent crime,
    that you are just going to be in prison forever. That is not
    true. Murderers, really horrible people that do very violent
    things, they are let out of prison every day in this country,
    unfortunately. That is very scary for us, and victims want to
    be able to protect themselves.
        Here is a scenario perhaps you have not thought of, which
    absolutely terrifies me. When my stalker, my husband's
    murderer, is released one day, what would prevent him from
    taking out a red flag on me to purposefully disarm me, so that
    he can harm me? That is terrifying. That is just something to
    think about.
        Senator Cruz. Thank you, Ms. Collins-Johnson, for having
    the courage to be here and allowing your story to be told. Ms.
    Goeser, thank you for speaking on her behalf, and on behalf of
    so many victims of violence.
        Ms. Goeser. Thank you.
        Chair Blumenthal. Thank you. Thank you, Senator Cruz.
        You know, I am struck, as we come to the end of this
    hearing, by the points of agreement, perhaps unintentional. Ms.
    Goeser, your point about people who have mental illness perhaps
    being reluctant to talk to friends or professionals is exactly
    the point that Senator Durbin made. I do not know whether you
    recall, but he said people should not be separated from
    firearms simply because they have a mental illness. It is
    dangerousness, it is risk, it is potential harm to others. That
    murderer would have no basis, none, for going to a judge and
    saying Nikki Goeser is dangerous, a risk of harm to anyone. On
    the contrary.
        Likewise, Senator Cruz and I are both federalists. I was a
    State attorney general for way longer than I have been a United
    States Senator. I believe in States' rights to enforce their
    own laws, indeed, to make their own laws, and that is the whole
    purpose of our proposed red flag statute, not only to encourage
    States to make their own laws, but to make them better, so when
    they do pass their laws, they look--thanks to Mr. Kopel for his
    compliment to Connecticut--more like Connecticut than, say, one
    of the other States that he found less protective of
    constitutional rights. If they are going to be laboratories of
    democracy, better to elevate the results of those laboratories
    than let them, kind of, muddle along and fail to protect the
    rights of American citizens.
        I think there is a lot here where we have common ground, as
    long as we do not become distracted. I understand your point
    about gun-free zones, about permitting the most heinous kind of
    law breakers, perhaps, to go free and threaten others. We ought
    to prevent that. But we are talking here about a more narrowly
    crafted law with a more narrow purpose that can be surrounded
    by all kinds of protections relating to what has to be proved
    in the way of factual evidence, the standard that has to be
    met, not just probable cause, the protections for individuals--
    you know, you could say that someone who is unable to afford an
    attorney has to be provided with one. I am just thinking out
    loud here. But my hope is that we can go forward and, sort of,
    focus on the common ground because if we do want States to be
    the laboratories of democracy, better to make them good
    laboratories and protective of constitutional rights than allow
    them to just go forward without encouragement to adopt higher
    standards.
        You know, I think Mr. Kopel has been very frank on the
    issue of whether there are authoritative studies. A lot of the
    evidence here is anecdotal. It relies on common sense, that if
    somebody says, ``I am going to shoot people in Parkland, I am
    going to kill students,'' and as Senator Graham has said, the
    shooter practically took out an ad in the newspaper and said,
    ``I am dangerous,'' that it makes sense to give the police--and
    I take his point about the police, which is in the Connecticut
    statute--the authority to make their case, maybe screened by a
    prosecutor, as happens in the State of Washington. We have
    heard Ms. Wyatt describe that procedure, with all kinds of
    protections and bells and whistles, rather than allowing that
    shooter to just go ahead. I think I am determined to try to
    seize that common ground and make the case that we can work
    together on these kinds of statutes.
        I am willing to hear from any of the witnesses who want to
    make any sort of final remarks, or Senator Cruz if he has
    anything. Mr. Horwitz?
        Mr. Horwitz. I just want to thank everybody from the
    Committee, Mr. Chairman, the Ranking Member, for giving us a
    fair undertaking. I really believe that we can reach an
    agreement here. I think it is important to save lives. I think
    we can protect due process, we can protect constitutional
    rights, and save lives. For everybody on this panel, I think we
    want to come together, and that is what we want to do, is save
    lives. I hope the Members of this Committee can hear what we
    have taken today, craft something that really works, and save
    lives. Thank you for this time. I'm deeply appreciative of
    being here today, and, for this very serious consideration.
        Chair Blumenthal. Thank you. Thank you to all the
    witnesses. Thanks to Senator Cruz and all the colleagues who
    appeared here.
        The record will remain open for 1 week, and anyone with
    questions can submit them. We appreciate your being here today.
    Thank you very much. Hearing is closed.
        [Gavel is tapped.]
        [Whereupon, at 5:04 p.m., the hearing was adjourned.]
        [Additional material submitted for the record follows.]

                                A P P E N D I X

    Miscellaneous submissions:

     National Coalition Against Domestic Violence Statement dated
        April 28, 2021................................................    93

     Sandy Hook Promise, Testimony of Nicole Hockley..................    98

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