[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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