Earlier this week, the Senate State Affairs Committee heard a bill by Chairman Hughs that would make it a crime in Texas to enforce an Extreme Risk Protective Order (ERPO), more commonly referred to as a red flag law. Currently, Texas does not have a red flag law, yet proponents of Senate Bill 1362 seek to not only preemptively prohibit Texas from passing one, but also make it a crime to enforce an ERPO from other states. The implications of such a law are troubling. Several Texas Impact partners testified against it.
What are Extreme Risk Protective Orders (ERPOs)?
ERPOs are civil court orders that temporarily prohibit possession of and enforce the surrender of firearms from individuals who are deemed a danger to themselves and others. They are currently law in 21 states (including Florida) and the District of Columbia, with slight variations in implementation. You can see a state-by-state breakdown here.
ERPOs in structure are based on domestic violence protection orders, which are implemented in all 50 states. Often they consist of two terms—one shorter term order usually between a week and a month, and a longer term that can last for a year in some circumstances. ERPOs have gained popularity in the gun violence prevention movement as a tool with the potential to limit domestic abusers, prevent suicide, and prevent mass shootings.
Several studies in Connecticut connected ERPOs with a decrease in gun suicides, with one study showing a 13.7% decrease. Other states have shown a majority of ERPOs to be petitioned in response to threats of mass violence many of which named K-12 schools as their targets. Each of these enforced ERPOs potentially prevented a mass tragedy.
Senate Bill 1362 would make it a state jail felony for any local or state government body to enforce an ERPO, whether it originates from the federal government (there is no federal red flag law at this time) or another state. The author of the bill and its proponents argue that ERPOs violate due process and infringe upon 2nd Amendment rights.
However, ERPO laws funded by the Bipartisan Safer Communities Act are required to include a number of due process protections including an in-person hearing, known opposing evidence, present evidence, heightened evidentiary standards and proof which mean not less than the protections afforded to a similarly situated litigant, among other requirements. ERPO programs not funded by the Bipartisan Safer Communities Act include similar protections.
Essentially, ERPOs cannot be enforced without evidence, provide an opportunity for the accused to repeal the order, and provide plenty of rigorous standards that hold up to legal precedent. The removal of firearms from individuals deemed dangerous to society is also not new. Certain domestic abusers and felons have been prohibited from purchasing or possessing firearms for years.
The effects of Senate Bill 1362 could lead to Texas becoming a safe haven for individuals with ERPOs against them. That means people deemed to be too dangerous by a court to possess firearms could cross the border into Texas and legally obtain a gun. The results of which could be deadly.
Luckily, Senate Bill 1362 is not law yet. It still has to be voted out of the Senate State Affairs Committee, pass the Senate, and then do the same process in the House. There is still time to advocate. Follow us to do just that.
Memorials at University of the Incarnate Word
Memorials at Shepherd of the Hills Presbyterian Church in Austin
Moms Demand Action Houston making memorials
