Following the Parkland shooting, the National Rifle Association’s top lobbyist, Chris Cox, called on Congress to pass legislation that would provide federal grants to states that allow police to temporarily seize legally owned guns from people at risk of harming themselves or others.
Before this year, only five states had red flag laws in place, and the NRA had opposed their passage.
In the face of an unprecedented movement for stronger gun regulations after the shooting at Marjory Stoneman Douglas High School, the gun group appeared to soften its opposition. “We need to stop dangerous people before they act,” Cox said in the video statement. “There will always be evil in this world. That won’t change. But we can change our response.” It was a rare retreat.
But the NRA’s actions behind the scenes show that the group is still working to undermine and defeat state red flag bills, known alternatively as extreme risk protection orders (ERPO) or gun violence restraining orders (GVRO). In Pennsylvania, an ERPO proposal gained bipartisan backing this spring. An NRA regional lobbyist even had a hand in shaping the text of the bill. But as the measure moved forward, the group rallied its members against it, chilling the legislation’s prospects when lawmakers return from their summer recess.
The Pennsylvania bill was written by Todd Stephens, a GOP state representative from Montgomery County, in the Philadelphia suburbs. In an interview, Stephens said that he did not consider his membership in the typically NRA-aligned, pro-gun state Republican party an obstacle to pushing for the legislation.
“There’s some good data supporting these laws,” he explained, referring to studies that showed that similar policies in Connecticut and Indiana reduced suicide rates in those states. Politically, ERPOs seemed like a winning issue to him. “There’s widespread bipartisan support for this in my district.”
Red Flag Laws: Which States Have Gun Violence Restraining Orders?
Like red flag bills in states across the country, Stephens’s proposal would allow police and members of a gun owner’s family or household to seek a court order. The legislation laid out the factors a judge could consider when evaluating a petition, how the orders were to be carried out, and penalties for violations. Among the provisions in the original measure:
- As soon as as order was issued, police officers would get a warrant to search for and confiscate all of the subject’s guns.
- If a person subject to an order was caught in possession of guns, they would be guilty of a misdemeanor in the first degree and could face up to five years in jail and a $10,000 fine. The FBI’s National Instant Criminal Background Check System would consider this offense worthy of a lifetime prohibition on gun purchases.
Stephens filed his first version of the bill in April. On May 17, he says, the NRA sent him a three-page letter outlining 20 specific concerns with the legislation.
Some of the NRA’s demands were relatively minor and technical, like aligning the definition of firearm with other Pennsylvania laws and spelling out exactly how surrendered firearms were to be stored for the duration of the order.
Others were significant. As Stephens consulted over email and phone with Emily Elizer, the NRA’s new lobbyist for Pennsylvania, the mid-Atlantic, and Ohio, he watered down some of the bill’s provisions at her behest.
The changes were reflected in a revised bill submitted on June 19. Among the biggest changes:
- Gun removal orders could not be renewed more than twice.
- Police would not automatically get a search warrant to confiscate guns as soon as an order was issued, and could only pursue that option if they had probable cause to believe the subject had not voluntarily surrendered all firearms.
- The penalty for violating an order was reduced from a misdemeanor in the first degree, which carries a potential five-year prison sentence and $10,000 fine, to a misdemeanor in the second degree, which carries a two-year sentence and $5,000 fine.
- A person found guilty of violating an order would be barred from purchasing weapons for five years after a conviction, instead of a lifetime ban.
- The standard of evidence for issuing an immediate order was raised from “probable cause” to a “preponderance of evidence.”
- A gun owner would have his or her concealed carry licenses temporarily suspended, and would not have to reapply after an order is vacated.
There was only one major demand from the NRA that Stephens didn’t accommodate in some form. The gun group wanted to strip out ex parte proceedings, during which judges can approve orders to remove firearms before a later hearing where the gun owner can contest claims about his or her behavior. Stephens kept that in because he wanted the legislation to address dangers like personal threats and suicide, where lost time could lead to death.
Despite Stephens’s efforts to placate the NRA, the gun group turned on him. The day after Stephens filed his revised bill, the group sent its Pennsylvania members an alert, urging them to ask their representatives not to pass the proposal. According to the NRA, under HB 2227, gun owners would be afforded “little or no due process,” and would shoulder the burden of having “to prove the false nature of the petition to have their firearms returned.”
Neither Elizer nor the NRA responded to phone calls and emails seeking comment.
One veteran Pennsylvania Republican said he found it surprising that the gun group would turn its back on a legislator with whom it had crafted legislation. In 1995, Representative Bob Godshall worked with the NRA and the State Police to write a portion of the state’s concealed carry law that revoked gun rights for people involuntarily committed to psychiatric care. It was criticized by grass-roots gun activists.
The NRA “said it was the right thing to do. They stood arm in arm with me then. I’m surprised they wouldn’t do the same thing now,” Godshall said in a phone interview.
“I was disappointed with the NRA’s final position,” Stephens said. As he sees it, if his bill were to become law, it would increase due process protections for Pennsylvania gun owners. Currently, if a police officer or family member is concerned that a gun owner may hurt themselves or others, their only options are to pursue criminal charges or a psychiatric commitment.
“Right now, you can be involuntarily committed without going before a judge or having the opportunity to cross examine witnesses,” Stephens said. “My bill doesn’t require you to be taken away from your family for a five-day mental health evaluation, and you don’t lose your gun rights for life,” as one would if a judge declared a gun owner mentally unfit to possess firearms.
Stephens said he remains in contact with the gun group, and still hopes to get them on board. He said he does not know when or if his party’s leadership will bring the bill to a floor vote, however.
Correction: An earlier version of this post mischaracterized portions of HB 2227 regarding warrants to confiscate firearms. It stated that the bill initially allowed police to get such an order when they had probable cause to believe a subject of an ERPO had not voluntarily turned over all weapons, and that an amendment removed this authority completely. The post has been updated to reflect the correct contents of the bill.