[House Report 109-596]
[From the U.S. Government Publishing Office]
109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-596
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DISASTER RECOVERY PERSONAL PROTECTION ACT OF 2006
_______
July 25, 2006.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Young of Alaska, from the Committee on Transportation and
Infrastructure, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany H.R. 5013]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 5013) to amend the Robert T.
Stafford Disaster Relief and Emergency Assistance Act to
prohibit the confiscation of firearms during certain national
emergencies, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
Purpose of the Legislation
The purpose of H.R. 5013 is to amend the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (Stafford Act) to
prohibit the confiscation of lawfully possessed firearms by an
individual operating under the color of Federal law while
acting in support of relief from a major disaster or emergency,
unless the confiscation is otherwise permitted by law.
Background and Need for the Legislation
In the wake Hurricane Katrina, State and local law
enforcement and public safety service organizations were
overwhelmed. As a result, many citizens felt threatened. Many
of these citizens lawfully kept firearms for the safety of
themselves, their loved ones; their businesses, and their
property. Some of these firearms were confiscated. H.R. 5013
prohibits the confiscation of lawfully possessed firearms by an
individual operating under the color of Federal law while
acting in support of relief from a major disaster or emergency,
unless the confiscation is otherwise permitted by law.
Summary of the Legislation
Section 1. Short title; Table of contents
This section provides that the short title for this
legislation is the Disaster Recovery Personal Protection Act of
2006.
Section 2. Findings
This section contains a number of congressional findings.
Section 3. Prohibition on confiscation of firearms during certain
national emergencies
This section amends the Stafford Act to prohibit federal
employees, any entities (including state and local governments)
receiving federal funds, and other relief workers from
confiscating, requiring the registration of, or prohibiting
possession of firearms during a disaster or an emergency if
those firearms are legally possessed under federal or state
laws. The bill also provides for a private right of action for
restitution from an individual violating this section and for
the return of the firearm confiscated in violation of this
section.
Legislative History and Committee Consideration
On March 28, 2006, Mr. Jindal introduced H.R. 5013, the
Disaster Recovery Personal Protection Act of 2006, which was
referred to the Committee on Transportation and Infrastructure.
On May 17, 2006, the Full Committee met in open session and
considered H.R. 5013. A manager's amendment to ensure that
federal officials may seize firearms if they are possessed in
violation of federal, state, or local law during a major
disaster or emergency was offered by Mr. Shuster and withdrawn.
A motion by Mr. Shuster to approve and favorably report to the
House H.R. 5013 was agreed to by voice vote by the Full
Committee, with a quorum present. There were no recorded votes
taken during Committee consideration of H.R. 5013.
Rollcall Votes
Clause 3(b) of rule XIII of the House of Representatives
requires each committee report to include the total number of
votes cast for and against on each rollcall vote on a motion to
report and on any amendment offered to the measure or matter,
and the names of those members voting for and against. There
were no recorded votes taken in connection with ordering H.R.
5013 favorably reported House.
Committee Oversight Findings
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
Cost of Legislation
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
Compliance With House Rule XIII
1. With respect to the requirement of clause 3(c)(2) of
rule XIII of the Rules of the House of Representatives, and
308(a) of the Congressional Budget Act of 1974, the Committee
references the report of the Congressional Budget Office
included below.
2. With respect to the requirement of clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, the
Committee advises that H.R. 5013 contains no measure that
authorizes funding, so no statement of general performance and
objectives for which any measure authorizes funding is
required.
3. With respect to the requirement of clause 3(c)(3) of
rule XIII of the Rules of the House of Representatives and
section 402 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for H.R.
5013 from the Director of the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 8, 2006.
Hon. Don Young,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 5013, the Disaster
Recovery Personal Protection Act of 2006.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Matthew
Pickford (federal costs), and Melissa Merrell (for the state
and local impact).
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
H.R. 5013--Disaster Recovery Personal Protection Act of 2006
H.R. 5013 would amend the Robert T. Stafford Disaster
Relief and Emergency Assistance Act to prohibit federal
employees, any entities (including state and local governments)
that receive federal assistance, and other relief workers from
confiscating, requiring the registration of, or prohibiting
possession of firearms during a disaster or an emergency if
those firearms are legally possessed under current federal or
state laws. CBO estimates that implementing H.R. 5013 would
have no significant impact on the federal budget. Enacting H.R.
5013 would not affect direct spending or revenues.
H.R. 5013 contains an intergovernmental mandate as defined
in the Unfunded Mandates Reform Act (UMRA) because it would
preempt, during a major disaster or an emergency, some local
gun-control ordinances that are more strict than state or
federal law. Individuals would be able to possess firearms that
are legal under state and federal law even though such
possession would otherwise be prohibited under local
ordinances. CBO estimates that local governments would incur no
direct cost as a result of that preemption; therefore, the
annual threshold established in UMRA would not be exceeded ($64
million in 2006, adjusted annually for inflation). The bill
contains no private-sector mandates as defined in UMRA.
This bill also would impose new restrictions on state and
local governments that receive federal assistance. It would
prohibit those governments from confiscating firearms,
requiring registration of firearms, or in any way regulating
the possession of firearms during a major disaster or an
emergency if those firearms are legally possessed under state
or federal law. This prohibition would prevent state and local
governments from issuing emergency regulations, such as banning
firearms in shelters or evacuation vehicles, unless there is an
explicit state law prohibiting such possession.
The CBO staff contacts for this estimate are Matthew
Pickford (for federal costs) and Melissa Merrell (for the state
and local impact). This estimate was approved by Robert A.
Sunshine. Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause (3)(d)(1) of rule XIII of the Rules of
the House of Representatives, committee reports on a bill or
joint resolution of a public character shall include a
statement citing the specific powers granted to the Congress in
the Constitution to enact the measure. The Committee on
Transportation and Infrastructure finds that Congress has the
authority to enact this measure pursuant to its powers granted
under article I, section 8 of the Constitution.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act. (Public Law 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local or
tribal law. H.R. 5013 contains an intergovernmental mandate as
defined in the Unfunded Mandates Reform Act (UMRA) because it
would preempt, during a major disaster or an emergency, some
local gun-control ordinances that are more strict than state or
federal law. Individuals would be able to possess firearms that
are legal under state and federal law even though such
possession would otherwise be prohibited under local
ordinances. The Congressional Budget Office estimates that
local governments would incur no direct cost as a result of
that preemption; therefore, the annual threshold established in
UMRA would not be exceeded. The bill contains no private-sector
mandates as defined in UMRA.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Applicability to the Legislative Branch
The Committee find that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act. (Public Law
104-1).
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
ROBERT T. STAFFORD DISASTER RELIEF AND EMERGENCY ASSISTANCE ACT
* * * * * * *
TITLE VII--MISCELLANEOUS
* * * * * * *
SEC. 706. FIREARMS POLICIES.
(a) Prohibition on Confiscation of Firearms.--No officer or
employee of the United States (including any member of the
uniformed services), or person operating pursuant to or under
color of Federal law, or receiving Federal funds, or under
control of any Federal official, or providing services to such
an officer, employee, or other person, while acting in support
of relief from a major disaster or emergency, may--
(1) temporarily or permanently seize, or authorize
seizure of, any firearm the possession of which is not
prohibited under Federal or State law, other than for
forfeiture in compliance with Federal law or as
evidence in a criminal investigation;
(2) require registration of any firearm for which
registration is not required by Federal or State law;
(3) prohibit possession of any firearm, or promulgate
any rule, regulation, or order prohibiting possession
of any firearm, in any place or by any person where
such possession is not otherwise prohibited by Federal
or State law; or
(4) prohibit the carrying of firearms by any person
otherwise authorized to carry firearms under Federal or
State law, solely because such person is operating
under the direction, control, or supervision of a
Federal agency in support of relief from a major
disaster or emergency.
(b) Private Rights of Action.--
(1) In general.--Any individual aggrieved by a
violation of this section may seek relief in an action
at law, suit in equity, or other proper proceeding for
redress against any person who subjects such
individual, or causes such individual to be subjected,
to the deprivation of any of the rights, privileges, or
immunities secured by this section.
(2) Remedies.--In addition to any existing remedy in
law or equity, under any law, an individual aggrieved
by the seizure or confiscation of a firearm in
violation of this section may bring an action for
return of such firearm in the United States district
court in the district in which that individual resides
or in which such firearm may be found.
(3) Attorney fees.--In any action or proceeding to
enforce this section, the court shall award the
prevailing party, other than the United States, a
reasonable attorney's fee as part of the costs.
* * * * * * *
ADDITIONAL VIEWS
The Committee on Transportation and Infrastructure has a
strong tradition of bipartisanship and it is not often that the
Minority feels compelled to file separate views to the
Committee's report on a bill. However, because of the
seriousness of the issue and the potential that this bill, as
currently drafted, will jeopardize safety of federal and state
emergency responders, we feel compelled to do so in this
instance.
H.R. 5013 was scheduled for markup at the Full Committee
without the benefit of any hearings on the bill or a markup by
the Subcommittee on Economic Development, Public Buildings, and
Emergency Management. As a result, there has been no real
debate on the bill and no opportunity for Members to determine
the true intent of the bill and discuss possible unintended
consequences of its language.
The issue of which powers police and federal law
enforcement will have to disarm citizens in a disaster is far-
reaching and deserves more thoughtful consideration by this
Committee. In serious emergencies there will be instances in
which the officials in charge must make difficult decisions,
such as allocating limited supplies of food and water, or
medical services, and keeping evacuations orderly. Some of
these decisions may displease citizens, and if these citizens
are armed, an explosive confrontation could result.
We recognize the need for law-abiding citizens to be able
to protect themselves against criminals breaking into their
homes, particularly when law enforcement is unable to protect
its citizens after a catastrophic disaster. And although we are
told that this is the intent of the bill, the actual language
of the bill appears to go much further and, as currently
drafted, would seemingly prohibit federal or state officials
from asking a person to surrender his or her firearm in the
event of a natural disaster or terrorist attack even when
public safety would require such action.
For example, under the bill as reported, a Coast Guard
officer would be prohibited from requiring persons boarding a
Coast Guard rescue helicopter or boat to surrender their
firearms before they board. Although the Coast Guard's Air
Operations Manual specifically bans passengers from carrying
weapons on helicopters or vessels, federal laws do not include
this specific prohibition.
If a Coast Guard officer required passengers to surrender
weapons as required by the Coast Guard's Air Operations Manual
(chapter 4, section R.4), that officer will violate section 3
of the bill (``sec. 706(a)(1)'') because he is temporarily
seizing a ``firearm the possession of which is not prohibited
under Federal or State law''. The officer also will likely
violate the subsection of section 3 (``sec. 706(a)(3)'') that
prohibits an officer from ``prohibiting possession of any
firearm, in any place or by any person where such possession is
not otherwise prohibited by Federal or State law''.
If the Coast Guard officer did in fact insist that a person
surrender his weapon before boarding a rescue helicopter or
boat, subsection 3 (``sec. 706(b)'') of the bill would give the
rescued individual the right to sue that Coast Guard officer.
Subsection 3 creates a private right of action against any
person who, whether knowingly or mistakenly, violates the bill.
That officer, who is serving his country and may be risking his
own life to save the life of another, could be sued for his
actions. Under the bill, he would be personally liable for
damages and attorneys' fees. He could lose his savings and
could put the financial welfare of his family in jeopardy
simply for doing his job. We do not believe that federal or
state officials should have to take that chance.
The Coast Guard officer is therefore faced with violating
this Act or the Coast Guard's Air Operations Manual--let alone
common sense. In its review of the bill, the Coast Guard stated
in an e-mail: ``From a CG [Coast Guard] perspective, this
proposal may undermine the authority of Captains of the Ports
to control the carriage of articles, including firearms, aboard
waterfront facilities, vessels, and security zones when deemed
necessary for security.'' An additional Coast Guard e-mail
summarized the Coast Guard's view of the bill: ``As written,
the Coast Guard would have serious concerns for both aircraft
and vessel crewmember safety.''
This Committee has jurisdiction over the Coast Guard and
has consistently fought to secure its best interests. In fact,
this is the first time that we can recall the Committee
favorably reporting legislation that threatened the safety and
security of Coast Guard personnel. It is regrettable that we
have reached that point.
As a further example, in the event of terrorist attack, the
bill would prohibit a police or military officer from ordering
all persons in the area of the attack to surrender their guns.
In that case, the officer may not have the time to determine
who is in lawful possession of the weapon, but for the safety
and security of the public, may simply issue a general
directive for everyone to surrender their weapons. This bill
would prohibit the officer from doing that. If the officer did
mistakenly disarm someone who was in legal possession of a
firearm, the officer could then be sued and be held personally
liable for damages--even if the officer later returned that
person's weapon.
In addition, the bill provides that no person may prohibit
the possession of any firearm in any place or by any person
where such possession is not otherwise prohibited by Federal,
State or local law. The bill appears intended to prohibit
authorities, in the event of a national emergency, from
requiring that people do not bring their weapons into a
shelter. Given the chaos that ensued in Katrina, does anyone
believe that the situation at the Superdome would have improved
if the evacuees were armed? Does anyone really believe that a
Catholic charity running a shelter should be prohibited from
ordering that rival gang members can not bring guns into the
church?
These examples are not idle speculation. Section 2 of the
bill contains a finding that appears to be directed at just
such circumstances. Paragraph 9 of that section addresses the
issue of people being prohibited from bringing guns into
emergency shelters after Hurricane Katrina. The bill concludes
that these people ``were treated as second-class citizens who
had forfeited their constitutional right to keep and bear
arms.'' We believe that there are often legitimate safety and
security concerns--both for those persons staffing the shelter
and for those persons taking refuge in the shelter--for
prohibiting firearms in an emergency shelter. A federal law
that would preempt state and local law on community security
issues across the board is at best misplaced and at worst
reckless.
Further, the bill provides that the individual--the FEMA
worker, the local sheriff, the Catholic Charity volunteer, and
the Coast Guard officer--are all personally liable if they
mistakenly interpret these ambiguous statutory authorities.
They can be sued and be required to pay damages and attorneys'
fees. We ask enough of the Coast Guard, law enforcement, and
volunteers during such disasters--we shouldn't ask them to be
lawyers too.
If the Committee had followed regular order and held
hearings on this bill prior to proceeding with a Full Committee
markup, we believe that many of these issues could have been
resolved with a bipartisan manager's amendment, as is the
tradition in this Committee. There is a way to strike the
proper balance: to ensure that people can protect themselves in
a time of emergency, but not give criminals free reign to
terrorize the law-abiding public. We would like to work with
the majority to craft language that would strike this balance,
and that would not, as we believe the bill currenty does,
threaten the safety and well-being of charitable volunteers and
federal and state officials. We appreciate the commitment that
Chairman Young and Subcommittee Chairman Shuster made at the
Committee markup to work together to make any necessary changes
to the bill before we move forward. By working together we can
take a more thoughtful approach to this important issue--an
approach that better balances the legitimate rights of citizens
to protect themselves with the needs of the Coast Guard and
other federal, state, and local officials to ensure the safety
and security of themselves and our citizens.
James L. Oberstar.
Jerrold Nadler.
Eleanor Holmes Norton.
Bob Filner.
Elijah E. Cummings.
Corrine Brown.
Earl Blumenauer.
Bill Pascrell, Jr.
Ellen O. Tauscher.
Timothy H. Bishop.
Russ Carnahan.
Julia Carson.
Allyson Y. Schwartz.