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Extreme Risk Protection Orders: Implementation in a Social Justice Context

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Extreme Risk Protection Orders: Implementation in a Social Justice Context Extreme Risk Protection Orders: Implementation in a Social Justice Context Northeastern University School of Law Legal Skills in Social Context In Conjunction with Stop Handgun Violence Spring 2020 LAW OFFICE 9 Hailah Alturaigi, Aidan Cullinane, Taylor Dial, Mary Lemay, Mia Lin, Cecilia MacArthur, Alexandre Miranda, Lindsay Mitnik, Nicholas Nava, Kyla Portnoy, Alexander Reganata, Megan Riley, Rajinder Saini, Abigail Swanson LEGAL SKILLS IN SOCIAL CONTEXT PROFESSORS Professor Deborah Johnson and Professor Carol Mallory LAWYERING FELLOWS Shannon Mathew and Morgan O’Grady ACKNOWLEDGEMENTS Law Office 9 would like to thank all those who took the time to support us in the development of the project. Without the support of our professors, Deborah Johnson and Carol Mallory, and Lawyering Fellows, Shannon Mathew and Morgan O’Grady, our vision of this project would not have come to fruition. We would also like to thank our Teaching Assistants, Alicia Chouinard, Samarah Greene, Natalia Peña, and William Strehlow, for all their help with the editing of this paper and citations. We would like to thank our partner, Stop Handgun Violence, and their representative, Zoe Grover, for allowing us to collaborate on this project and for being a source of guidance throughout the process of its creation. Additionally, we are thankful to Jack McDevitt and Sarah Peck for providing useful resources through which we were better able to understand the issues at hand. Finally, we would also like to express our sincerest gratitude to various leaders of different communities who took the time to speak with us, provide resources, and share their story. This is including, but not limited to, Judge Anne Levison (ret.), Renee Hopkins, Nicholas J. Xenakis, Adelyn Allchin, Gretta Gordy Gardner, Shannon Frattaroli, Inspector Rebecca Gallagher, Dave Thomas, Gretta Carter-Willis, and Kevin Chinn. i Table of Contents EXECUTIVE SUMMARY .......................................................................................................... v INTRODUCTION ........................................................................................................................ 1 THE GUN VIOLENCE LANDSCAPE WITHIN THE UNITED STATES ........................... 3 SOCIAL IMPLICATIONS .......................................................................................................... 6 I. Mental Health .............................................................................................................................. 6 a. Suicide Prevention .......................................................................................................................................6 b. Media Stigmatization ..................................................................................................................................9 II. Marginalized Communities ...................................................................................................... 16 a. Race ............................................................................................................................................................16 b. Religion .......................................................................................................................................................19 c. Sexuality and Gender Identification ........................................................................................................20 d. Socioeconomic Status ................................................................................................................................21 III. Intimate Partner Violence ........................................................................................................ 22 IV. Social Implications Conclusion ................................................................................................ 27 LOGISTICAL IMPLEMENTATION ...................................................................................... 29 I. Petitions ..................................................................................................................................... 30 a. Who Can Petition ......................................................................................................................................30 b. Against Whom an ERPO Can Be Filed ...................................................................................................32 c. Filing an ERPO With the Court ...............................................................................................................36 d. Ex Parte Orders .........................................................................................................................................38 II. Seizure ........................................................................................................................................ 40 a. Storage Options / Transfer to Another Party .........................................................................................42 III. Hearings, Final Orders, ReneWal, and Termination ............................................................. 44 a. Final Order Hearings ................................................................................................................................45 b. Final Orders ...............................................................................................................................................47 c. Early Termination .....................................................................................................................................48 d. Renewal ......................................................................................................................................................49 IV. Return of Firearms ................................................................................................................... 50 V. Legal Consequences .................................................................................................................. 51 a. Law Enforcement Immunities and “Good Faith” ..................................................................................51 b. Penalties for ‘Bad Faith’ Petitioners .......................................................................................................53 c. Criminal Penalties .....................................................................................................................................53 d. Background Check Systems .....................................................................................................................54 e. Implementation ..........................................................................................................................................56 VI. Federal ERPO Bills ................................................................................................................... 65 a. S.506 (H.R. 1236) – Extreme Risk Protection Order Act of 2019 .........................................................67 b. S.7 - Extreme Risk Protection Order and Violence Prevention Act of 2019 .......................................68 c. H.R. 744 – Protecting Our Communities and Rights Act of 2019 ........................................................69 d. H.R. 2786 – Jake Laird Act of 2019 .........................................................................................................70 ii LEGAL ISSUES .......................................................................................................................... 71 I. Procedural and Evidentiary Issues ......................................................................................... 72 a. Remedies for Procedural Failures ...........................................................................................................72 II. Right to Bear Arms ................................................................................................................... 74 a. What is Found to Infringe on an Individual’s Rights? ..........................................................................75 III. Unreasonable Search and Seizure ........................................................................................... 79 a. Search and Seizure in Relation to ERPOs ..............................................................................................79 b. Potential Search and Seizure Challenges ................................................................................................81 IV. Due Process ................................................................................................................................ 83 a. Procedural Due Process ............................................................................................................................84 b. Substantive Due Process ...........................................................................................................................86 c. Void for Vagueness ....................................................................................................................................87 V. Freedom of Speech .................................................................................................................... 88 VI. Full Faith and Credit ................................................................................................................ 91 BEST PRACTICES ...................................................................................................................
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