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 17 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.’”