On Monday, hundreds of pro-gun protesters — many of whom were armed — gathered outside the City-County Building in Pittsburgh to loudly oppose bills inspired by a massacre at a synagogue just a few miles away.
State Rep. Aaron Bernstine, a Beaver County Republican, explained the proposals to the crowd. There’s legislation that would ban assault weapons, a phrase widely used to describe semi-automatic firearms but decried by Bernstine as a “made-up, unicorn, snowflake term.” There’s also a bill that would prohibit high-capacity magazines and bump stocks. A third proposal seemed to particularly incense Bernstine.
“Are we in favor — listen to this,” he said, incredulously, “are we in favor of allowing the confiscation of individual firearms without the due process of law?”
“No!” the crowd shouted back.
“Hey, mayor, listen up,” Bernstine said. “They said ‘no.'”
Bernstine was referring to extreme risk protection order legislation, or red flag laws, which allow courts to temporarily confiscate guns from a person believed to be an imminent danger to themselves or others. Eight states have passed laws that empower law enforcement, as well as family and household members, to petition for these orders. In Maryland, certain health-care workers also have that ability.
Proponents say red flag laws could prevent mass shootings like the one at Pittsburgh’s Tree of Life synagogue, and studies have shown this type of legislation is effective at preventing suicides by gun. Nearly 1,000 people in Pennsylvania died that way in 2016.
Pittsburgh’s red flag proposal may very well pass City Council, but whether it could successfully go into effect remains to be seen. State law preempts municipalities from regulating guns, instead leaving the job to the legislature. Mayor Bill Peduto and other local lawmakers know that, but say they are done waiting for Harrisburg to act.
In the General Assembly, where any legislation that restricts access to firearms faces an uphill battle, there’s bipartisan support for a red flag law. Last session, a bill introduced by State Rep. Todd Stephens, a Montgomery County Republican, was co-sponsored by 20 Democrats and 11 Republicans.
But Bernstine and other lawmakers who revere the Second Amendment aren’t alone in their opposition to a statewide red flag bill. In fact, this issue has created some strange bedfellows in Pennsylvania.
The NRA and ACLU on the same side?
Pittsburgh’s red flag proposal would give family and household members, as well as law enforcement, the right to petition for an extreme risk protection order. That would include not only blood relatives and spouses, but current and former sexual partners.
A judge would consider a person’s history of:
- Threats or acts or acts of violence, or attempted acts of violence
- Threats or acts of suicide or self-harm, or attempted acts of suicide or self-harm
- Domestic or intimidate partner violence
- Cruelty to animals
- Driving under the influence of alcohol or a controlled substance
- Violent or emotionally unstable conduct
A judge can also consider recent use of illegal drugs, the failure to take medication for a mental illness, and the purchase or attempted purchase of firearms within the past six months. The issuance of a temporary order, which does not require a hearing, would automatically give law enforcement a warrant to search a person’s home and seize firearms. A hearing would then be scheduled for no more than 10 days later, at which time a judge could issue another order for a year.
The proposal is almost identical to the one Stephens originally introduced in the General Assembly last session. That the NRA came out against Stephens’ legislation is unsurprising, but the Pennsylvania chapter of the American Civil Liberties Union also released a memo opposing the bill for several reasons including “an overly broad list of criteria,” vague definitions, and the lack of a provision to remove ERPOs (Extreme Risk Protection Orders) from federal and state background check databases.
“As well-intentioned as this legislation is, its breadth and its lenient standards for both petitioning for and granting an ERPO are cause for concern,” the memo states. “People not charged with a crime should not be subject to undue deprivations of liberty interests in the absence of a clear, compelling, and immediate showing of need.”
Liz Randol, ACLU-PA’s legislative director and the author of the memo, said the organization isn’t opposed on principle to the concept. The ACLU was neutral on a red flag bill introduced last year in Colorado, while it came out strongly against Rhode Island’s.
But as originally introduced, Stephens’ bill raised due process concerns by expanding the use of search and seizure without a hearing and set up the potential for overreach by law enforcement, Randol said. It also put the burden of proof on the subject of the order to prove “by clear and convincing evidence” that they’re no longer a danger.
Stephens’ bill was thoroughly amended in the Judiciary Committee. The Trace, a nonpartisan national news site that covers guns, characterized the amendments as Stephens watering down the bill at the behest of the NRA. But in truth, many of the NRA’s concerns were shared by the ACLU.
The amended bill does not give police an automatic search warrant, requires the risk be “imminent,” and reduced the criminal penalties for violating an order. But many of the ACLU’s concerns remained.
That became a moot point when Stephens’ bill failed to get a full House vote before the session ended in November. Now lawmakers who support red flag legislation will have to start all over again.
What comes next
There are two red flag proposals currently on the table in the state Senate, one introduced by Pittsburgh Democrat Wayne Fontana and the other by Republican Tom Killion of the Philadelphia suburbs. The text of neither bill has been released.
Killion said his legislation will be modeled off Stephens’ amended bill. While he hasn’t heard from the NRA yet, Killion said he worked with the group last session on his proposal to tighten requirements around the surrender of firearms by people suspected of domestic abuse.
“Out of the gate, the NRA was opposed,” Killion said. “A lot of my colleagues were opposed.”
But the NRA ended up coming out as neutral on the bill, and it passed the Senate unanimously. The language from Killion’s bill was folded into a House version, which was signed into law by Gov. Tom Wolf.
That’s the model Killion plans to use moving forward on his red flag bill. “I think this makes sense,” he said.
Stephens also plans to re-introduce his amended legislation, and should have a memo seeking co-sponsors out within the next few weeks. “I plan to aggressively pursue it this session,” he said. “As more gun owners understand the details of this bill and all the due process that it provides that’s absent in current law, more and more of them are embracing this concept.”
Notably, seven of the Republicans who co-sponsored Stephens’ legislation are gone, most of them defeated in the Democratic sweep of the Philadelphia suburbs. Stephens held on to his seat by less than 1,000 votes.
The Senate likewise saw the retirement or defeat of many moderate Republicans from the Philly suburbs, including criminal justice reform champion Stewart Greenleaf. The absence of those moderates, Killion said, means “a little more work for me.”