ACTION ALERT: "Red Flag" bill (HB 1302), the so-called "Extreme Risk Protection Orders" bill. UPDATED

UPDATED: 

Well, HB 1302, the so-called Extreme  Risk Protection Orders bill, has emerged from the Senate Judicial Proceedings Committee and quickly passed the Senate.  The vote in the Senate was 31-13.  Up front, we wish to thank the tireless efforts of Senator Hough, Senator Ready, Senator Cassilly and Chairman Zirkin in the Committee to remake this bill from the House version. And because of their efforts, the resulting bill is certainly a big improvement over the bill that was passed by the House. To their great credit, Senators Hough, Ready, Cassilly and Senator Linda Norman (who is new to the Committee, having just been appointed to the seat filled by her late husband) voted against this bill in Committee. That is because these Senators realized that the bill is still a legal abomination. Even under the JPR amendments, the bill still makes gun owners a unique class in the law, e.g., a person who can be proceeded against and whose property can be seized simply because of his or her status as a gun owner.

Specifically, new Section 5-602 of the Public Safety Article in the bill provides:
(A) (1) A PETITION FOR AN EXTREME RISK PROTECTIVE ORDER SHALL:
* * *

(II) INCLUDE ANY INFORMATION KNOWN TO THE PETITIONER THAT THE RESPONDENT POSES AN IMMEDIATE AND PRESENT DANGER OF CAUSING PERSONAL INJURY TO THE RESPONDENT, THE PETITIONER, OR ANOTHER BY POSSESSING A FIREARM;

Similarly, under new Section 5-603, a court may issue such an interim and temporary order only upon finding that "THERE ARE REASONABLE GROUNDS TO BELIEVE THAT THE RESPONDENT POSES AN IMMEDIATE AND PRESENT DANGER OF CAUSING PERSONAL INJURY TO THE RESPONDENT, THE PETITIONER, OR ANOTHER BY POSSESSING A FIREARM." Under new section 5-605, a final order, good for a year (or a 1.5 years if extended), may be entered "IF THE JUDGE FINDS BY CLEAR AND CONVINCING EVIDENCE THAT THE RESPONDENT POSES A DANGER OF CAUSING PERSONAL INJURY TO THE RESPONDENT, THE PETITIONER, OR ANOTHER BY POSSESSING A FIREARM."

Plainly, a person who is dangerous or who "POSES AN IMMEDIATE AND PRESENT DANGER" but who does NOT possess guns is NOT covered by this bill. So gun owners are the new "suspect class" in the law, except that they are a targeted class rather than a class protected under the 14th Amendment. I know of no other circumstance in which the exercise of a constitutional right (the Second Amendment right of the law-abiding citizen to own a firearm) serves as a basis for singling out that class of persons for special, oppressive treatment under the law.  Because firearm ownership by law-abiding citizens is a fundamental right under the Supreme Court's decisions in Heller and McDonald, the state bears a special burden under the Equal Protection Clause of the 14th Amendment to justify any classification that singles out gun owners for special treatment. 

Indeed, the bill fails basic equal protection principles, regardless of the Second Amendment.  The bill identifies as a class persons who may "POSE AN IMMEDIATE AND PRESENT DANGER" to himself or others.  Any such person is a legitimate concern.  Yet, this bill singles out for seizure of personal property and threat of criminal sanctions only gun owners who may pose such a danger.  The bill leaves unaddressed all other persons who may pose such dangers, no matter how imminent or severe the danger and no matter how deadly the other types of potential weapons that these other persons may possess or construct. The law is clear that “[w]hen the law lays an unequal hand on those who have committed intrinsically the same quality of offense and sterilizes one and not the other, it has made as an invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment.”  Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).  That the bill authorizes seizures of property protected by an enumerated Amendment of the Bill of Rights makes it even worse.

Instead, the General Assembly has created the truly terrifying spectre of heavily armed SWAT teams showing up, without warning or notice, on the doorsteps of gun owners with ex parte seizure orders in hand.  The potential for tragedy is obvious. You can be certain that this legislation, if it becomes law, will be abused by persons with animus toward a particular gun owner or toward gun owners in general. What's next, legislation that provides that a "Scarlet G" shall be branded on the forehead of every gun owner? Let the harassment and debasement begin. Gun owners will now have to consider whether they should go underground and be silent about possessing firearms for fear of being subjected to this harassment. And I can't blame them. It is just one more step in pursuit of the gun grabbers' attack on the rights preserved by the Second Amendment.  This time they are violating the Equal Protection Clause and chilling the exercise of First Amendment rights as well. 

I am totally disgusted.

It gets worse.  

In issuing the final order, the bill, as it emerged from JPR, originally stated:
(2) IN DETERMINING WHETHER TO ENTER A FINAL EXTREME RISK PROTECTIVE ORDER UNDER THIS SECTION, THE JUDGE SHALL CONSIDER:

(I) ALL RELEVANT EVIDENCE PRESENTED BY THE PETITIONER; AND (II) THE AMOUNT OF TIME THAT HAS ELAPSED SINCE ANY OF THE EVENTS DESCRIBED IN THE PETITION.  

However, the Chairman of the Committee presented an amendment on the floor of the Senate that added "AND RESPONDENT" so the judge now must consider the evidence presented by both the petitioner AND the respondent in the final order hearing.  Hurrah for that change.

Unfortunately, the Chairman did not ask for amendment to the temporary order section.  That section still provides:

(2) IN DETERMINING WHETHER TO ENTER A TEMPORARY EXTREME RISK PROTECTIVE ORDER UNDER THIS SECTION, THE JUDGE SHALL CONSIDER:
(I) ALL RELEVANT EVIDENCE PRESENTED BY THE PETITIONER; AND (II) THE AMOUNT OF TIME THAT HAS ELAPSED SINCE ANY OF THE EVENTS DESCRIBED IN THE PETITION.

This failure to change the temporary order section is inexplicable, as a respondent served with an interim order gets notice of a temporary order hearing and may appear at the temporary order hearing.  If the gun owner appears, he or she should be entitled to present evidence and have that evidence considered.  Yet, as this language is currently written, it is unclear if the respondent may actually present evidence prior to the entry of the temporary order and, if allowed to do so, whether the court is even obligated to consider it.  That is a fundamental denial of due process.  So add the Due Process Clause of the 14th Amendment to the list of constitutional provisions this bill violates. 

The version of HB 1302 that passed the Senate is far different than the monstrosity that passed the House. This bill cannot become law unless the same language is passed by both Houses. On Saturday, April 7, the House refused to accede to the Senate amendments and appointed as the House Conference Committee Delegates Dumais, Morhaim and Corderman. The three Senate Conference Committee members will be appointed on Monday, April 9. If the bill emerges from Conference (it takes the agreement and a majority vote of 4 to emerge), the bill will come around once again for an up or down vote in each chamber. We are asking all our members and subscribers to contact their legislators and ask for a *no* vote on this legislation if it emerges from a conference.  You can obtain their contact information HERE.  Failing that, we are asking everyone to contact Gov. Hogan and ask for a veto. His contact information is HERE.  Folks should understand that, under the Maryland Constitution, a veto of this bill cannot be overridden, either in this Session of the General Assembly (it is too late in the Session) or in the next Session (because there is an election before the next Session).  The only way that this General Assembly can override a veto is to convene a special session after sine die on April 9.  

Mark W. Pennak, President, Maryland Shall Issue