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In a compromise, Democrats backed off on using funds only to encourage states to pass red flag laws that enable authorities to seize guns from people considered threatening, opening millions in federal incentive funding for "crisis intervention" as well.
To reach a bipartisan deal on a gun bill, Senate Democrats agreed to send states $750 million in federal funding while backing off their initial insistence the money be used only as an incentive to pass so-called red flag laws. Majority Leader Chuck Schumer predicted Wednesday the bill pass the Senate this week.
The proposal would let states get money whether or not they have laws that allow courts to order guns be seized from those deemed to be a danger to themselves or others. Such laws are strongly opposed by gun rights groups and many Republicans.
That states do not have to pass red flag laws in order to be eligible for funding is “very important” to Republicans, said Sen. Chris Murphy of Connecticut, the Democrats’ lead negotiator in the talks.
Democratic negotiators agreed to let states use the money for what Sen. John Cornyn of Texas, the Republicans’ chief negotiator, called “crisis intervention.” Cornyn, on the Senate floor Tuesday, said states could fund mental health courts where judges can order people to seek treatment.
Still, the bill won’t get many more states to enact red flag, or “extreme risk,” laws, some experts say.
With the flexibility, there is “probably not much of an incentive for states” that don’t want to pass red flag laws anyway, said Jacob Charles, executive director of the Duke Center for Firearms Law, in an email Wednesday.
A Compromise for Democrats
Senate Democratic leaders on Wednesday acknowledged the bill is a compromise. Schumer, of New York, said pushing for more would have led nowhere.
“After the shootings, we had a choice,” Schumer said at his weekly press conference, talking about the recent mass killings. “We could succumb to gridlock and hold a vote on a bill with many things we wanted but had no hope of getting passed, or we could try and find a bipartisan path forward.”
Though Democrats wanted money to incentivize states to pass red flag laws, it’s unclear if Republican governors would go along. Several Republican governors, including Nebraska’s Pete Ricketts, Ohio’s Mike DeWine and South Dakota’s Kristi Noem, have expressed opposition to such laws, saying that seizing guns – usually before gun owners have a chance to defend themselves in court – violates Second Amendment rights.
Rather, Cornyn said the bill gives states discretion on how to tackle gun owners deemed to be dangerous.
The money will be available to states “whether you provided a red flag program or not,” he said. “This grant program will give every state funding … to stop individuals in crisis from reaching the point of violence or self harm.”
The bill cleared a procedural vote Tuesday night, setting up a final vote as soon as Thursday. The House could vote on the measure Friday before Congress leaves for its two-week July 4th break.
The deal did get a boost, however, when Senate Minority Leader Mitch McConnell of Kentucky said he backed the proposal. Senate Majority Leader Chuck Schumer of New York also backed the compromise, and said he would push the Senate to vote on the measure before it leaves for its two week recess on Friday.
Murphy, the Connecticut Democrat, expressed hope that it will pass.
“I believe that this week we will pass legislation that will become the most significant piece of anti-gun legislation Congress will have passed in 30 years,” he said. “This is a breakthrough, and more importantly, it is a bipartisan breakthrough.”
But Murphy also acknowledged the measure, which also includes $250 million in funding to states for community-based mental health services, expands background checks for those younger than 21, and adds romantic partners to laws prohibiting those convicted of domestic violence from purchasing firearms, is a compromise. The measure falls short of stronger restrictions passed by the Democratic-controlled House.
“It will be too little for many. It’ll be too much for others,” Murphy said. “But it isn’t a box-checking exercise. This bill is not window dressing. This bill is going to save lives. This bill is going to save thousands of lives.”
Cornyn, who was booed at a Texas Republican convention this weekend over participating in the talks, also said that states with red flag laws would have to have “robust due process” requirements in order to be eligible for funding.
According to the bill, state red flag laws would have to include such protections as a right for gun owners to have a hearing in person “at the appropriate phase to prevent any violation of constitutional rights” and “heightened evidentiary standards and proof.”
However, Charles said that the 19 states and the District of Columbia that have passed red flag laws objectionable to gun rights advocates could qualify for funding because there has been legal precedent that its constitutional for the court to act without a full hearing in situations like removing children from parents “where there are circumstances that make such quick action necessary.”
Mike Hammond, legal counsel for the gun rights group Gun Owners of America, also agreed that the states that have allow guns to be seized before a hearing would likely qualify for funding because the bill also talks about protecting “pre-deprivation rights,” which could refer not to when the guns are taken away but at a hearing “days or weeks after” the seizure.
Some States Still Oppose Red Flag Laws
Negotiations last week were bogged down by opposition from Republicans and gun rights groups sending money to states to pass red flag laws they saw as trampling on the rights of gun owners.
The laws allow courts to order guns to be seized by police through what are known as ex parte hearings that do not require gun owners to be involved or even sometimes know about.
According to an American Journal of Preventive Medicine study, states have set different standards for how long gun owners have to wait before they can make their case in court.
The District of Columbia, for example, requires the courts to decide whether guns should be taken away on the same day, or on the next business day, after law enforcement, a mental health professional, a family member or someone dating a person asks for guns to be seized.
However, the courts do have to hold a full hearing to let the gun owner argue to get their guns back within 10 days of when a petition is filed to take away the firearms for an additional year.
"You'd think when there is evidence of a serious threat you'd want law enforcement to be able to do something before something horrible happens," Nico Bocour, government affairs director for the gun control group, Giffords, told Route Fifty.
But gun rights advocates and some Republican senators oppose providing incentives to states to pass a policy they believe tramples on the due process rights of gun owners.
“I think all of the [red flag] laws have the same fundamental problem. You can go to a judge with an unsubstantiated complaint and get an ex parte order,” said Hammond.
Charles, of the Duke Center for Firearms Law, said that the requirements in the proposed bill may allow states to continue to have leeway in deciding how high a standard to set for seizing a person’s guns, because the proposal requires the standard to be the same as a “similarly situated person.”
Kery Murakami is a senior reporter for Route Fifty.
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