How one Republican lawmaker is trying to balance gun rights and due process in Pennsylvania

A woman holds a sign in favor of extreme risk protection orders at a gun control rally in the Capitol rotunda. (Capital-Star photo by Sarah Anne Hughes)

This week on the Capital-Star, we’re exploring the idea of due process and how it intersects with state government — from legislation to investigations into lawmakers. Have a thought? Let us know at [email protected].

State Rep. Todd Stephens had some unexpected guests last week.

The Montgomery County Republican was leaving his Capitol office when three attendees of Rep. Daryl Metcalfe’s annual pro-gun rally, which attracts hundreds of ardent Second Amendment supporters, walked in.

Stephens, a former federal gun crimes prosecutor, is the prime sponsor of a proposal state firearms groups are lining up to oppose — an extreme risk protection order law.

It would allow family or police to petition a judge to temporarily confiscate firearms from an individual deemed at risk of harming himself or others.

“I jokingly said, ‘Oh are you guys here to support my bill?’” Stephens recalled to the Capital-Star.

They were not. But Stephens invited them in to sit down and talk, even going line by line through his bill to dispel their fears about the proposal — and its implications for gun owners’ civil liberties.

How does it work?

Let’s say you have a family member going through a rough time. Maybe she just lost her job, or had a loved one die unexpectedly.

That family member starts saying that life doesn’t seem worth living. Perhaps she even went out and bought a gun, despite never expressing an interest in firearms before.

Under Stephens’ proposal, a family member could then ask a court to review a request to have her gun or guns taken away for between three months to a year.

This is called an extreme risk protection order, and it exists in 14 states. These proposals are also commonly called “red flag laws.”

Advocates for stricter gun laws point to positive outcomes in such states as Connecticut, where these orders prevented between 38 and 76 suicides over a 14-year span, according to one study.

In Pennsylvania, Stephens and other lawmakers have been trying to pass a red flag bill since 2017. But they’ve run into opposition from gun rights groups, who think the bill strips firearms owners of their day in court and doesn’t do enough to address mental health issues.

Last year, the Pennsylvania chapter of the American Civil Liberties Union also expressed concerns about the type of evidence that could be used in an extreme risk protection order hearing.

In Stephens’ current bill, a petitioner’s evidence can include a recent purchase of a gun, as well as suicidal threats, acts of violence, animal abuse, or “any additional information the court finds to be reliable.”

Police may also request a removal order themselves if a friend or someone unrelated to the individual asks law enforcement to intervene.

If a judge reviews the case and agrees with the evidence, she can either set a hearing to take place within 10 days, or issue an interim order for high-risk cases that goes into effect immediately. That temporary order could be in place for at most five days.

That provision especially worries people like Joshua Prince, a Pennsylvania attorney focused on gun laws.

A judge who’s only been shown a preponderance of evidence — or just a fraction of a percent more evidence for one side than against it — can order an individual to temporarily hand over his guns.

Under Stephens’ legislation, there’s a higher standard of evidence for a months-long ban on firearms ownership. But Prince contends the interim order would still violate an individual’s civil liberties.

He’s also troubled by a provision that allows the purchase of a gun to be used as evidence for an order.

“The exercise of a constitutional right is a basis for granting an [extreme risk protection] order that strips the individual of that same exact constitutional right,” Prince said. “And to me that’s absolutely obscene.”

A hearing must be held, with or without an interim order, within 10 days. The respondent has the right to an attorney, and if the order is granted, the judge must provide in writing his justification for the order. An individual may also petition to get her confiscated firearms back.

‘A win for gun owners’

In Pennsylvania, there’s already a way for courts to confiscate firearms from a person in crisis. But it’s strict and not designed to explicitly address firearm ownership.

By what’s known as a “302,” a person can be involuntarily committed by their family, a doctor, or law enforcement for mental health treatment.

There is also no ability to appeal the commitment, and by state and federal law, someone who’s been involuntarily committed can never own a gun again.

Looking at the process as a whole, Stephens said his bill takes a situation without any due process and adds it with a hearing in front of a judge.

“In some ways, people want it both ways. They say they want due process. Well, due process in America is judicial review in many instances,” Stephens said. “Well then when we give them judicial review, they say ‘Well, what if it’s a bad judge?’

“OK, what do you want? Do you want due process or not, because that’s what due process is in America.”

According to the State Police, there are 868,423 mental health records in Pennsylvania’s instant background check system that bar a person from owning a firearm. Multiple records can apply to a single person.

“Gun owners across Pennsylvania don’t realize that they can be disarmed for life without a judge ever saying a word,” Stephens said. “So when you compare [extreme risk protection orders] with what the status quo is, it’s a win for gun owners.”

Prince, who has done work for Firearm Owners Against Crime, a state gun-rights group, isn’t alone in his concerns. When Stephens put forth a similar proposal last year, the state chapter of the American Civil Liberties Union came out opposed.

But after a number of revisions — including tighter legal definitions and changes to evidentiary standards — the ACLU moved from opposed to neutral, confident that the bill “does not run afoul of civil liberties protections for respondents,” according to a legislative memo.

“In general, the way our laws operate the onus is on the state to provide the highest amount of evidence to take something away even if it’s temporary,” Elizabeth Randol, legislative director for the state ACLU, said.

Stephens said he’s spent a lot of time taking in concerns from gun owners and other interested parties to perfect the language. He cited the inclusion of both criminal and civil penalties for an individual who lies or misuses an extreme risk protection order to take away someone’s guns.

Prince is still unhappy that the bill seemingly addresses guns only — and not mental health problems.

But Stephens pointed to another new provision that allows judges to order mental evaluations or other help as necessary.

Going forward, Stephens said he is still listening for edits and is trying to sit down with individual lawmakers one by one.

“As I meet with people, and walk through this process, their apprehension about the bill wanes dramatically,” he said. “I’m not saying they all come around and say, ‘Oh, I’m going to sign on.’ … But most of them walk away, saying, ‘You know what? I get it, and I do see how it’s better than what we’ve got currently.’”

7 COMMENTS

  1. Mental health is the avenue to gun control..
    American Psychiatric Asso says Half of Americans are mentally ill..
    After crafting by politicians and Media all will be crazy except for the media/politicians..
    300 million prescriptions for psychiatric drugs were written in 2009 alone..
    Your children on medication for ADHD?
    Single woman with children diagnosed with depression?
    be careful what you ask for

  2. Red Flag Laws Mean Red Flag Rising.. Trump Opens Door For Gun Confiscation In America
    Really? We are going to let the government tell us who is crazy? Folks, this is a HUGE step on the slippery slope toward totalitarianism. Allowing the government to decide who is mentally unfit to own a firearm without due process is patently Stalinesque. Face it: In the states that pass these “red flag” laws, police can confiscate the guns of anyone they want. Period. Constitutional due process is absolutely dead in those states. And if the federal government passes a national version of a “red flag” law, constitutional due process is dead in America. Disingenuous politicians, both Republican and Democrat, who pass these Orwellian backdoor gun control laws (which is exactly what “red flag” laws are all about) are only using Marxist-style incrementalism to further destroy the Second Amendment—along with the rest of our Constitution. Rightly are these tyrannical laws called “red flag” laws, because that is exactly what they are.

  3. The Heller and McDonald precedents have ruled that bearing arms is an individual, FUNDAMENTAL right and its constitutional protection has been incorporated to bind the states. That status demands full due process before being suspended or denied.

    Unless you enshrine full due process guarantees in the text of the law itself, it will be unacceptable.

    Due process as applied to fundamental rights means an adversarial hearing wherein the respondent can face his/her accusers, cross examine witnesses, and present witnesses and evidence on his/her behalf, and the threshhold to suspend the right must be “clear and convincing evidence”, not the present “preponderance of evidence”.

    The problem with these laws is that they use ex parte hearings where the respondent isn’t even notified that one is taking place. That is an egregious circumvention of the commands in the 4th, 5th, 6th and 14th Amendments, and when such seizure orders are executed it is usually at 5am by a dynamic entry team. The potential for catastrophe permeates the entire exercise.

    You can’t take his liberty (i.e. his natural right to bear arms) or his property (i.e. his firearms) without first having an adversarial hearing and getting a probable cause ruling based upon all the evidence.

  4. seems there were other commenters that posted but no longer posted..
    ———————————————————————–
    Communist Goals – 1963 Congressional Record..
    38. Transfer some of the powers of arrest from the police to social agencies. Treat all behavioral problems as psychiatric disorders which no one but psychiatrists can understand [or treat].
    39. Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.
    —————————————————————————————–
    Mental health as a weapon against the people is communist in origin..
    Dominate the psychiatric profession and use mental health laws as a means of gaining coercive control over those who oppose Communist goals.
    Deceptive Transformation: The Truth of Soviet Influence in America and Gun Control…The idea of using mental health as a weapon against the people is communist in origin, and the social sciences, or the studying of human behavior has its roots in early twentieth century Russia when Ivan Pavlov developed his “classical conditioning” theories.

  5. Any lawmakers who don’t have the basic understanding of what IS and what IS NOT constitutional should be removed. It’s not acceptable to willfully ignore any laws restricting rights of citizens that they have to spend their own money and time to repeal. This man and others just like him are clearly bought. Find out who owns them and prosecute BOTH

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