Second Amendment Sanctuary Cities and Extreme Risk Protection Orders
The push to enact Second Amendment Sanctuary Cities is largely based on intentional disinformation being spread about Extreme Risk Protection Orders, also known as “red flag laws.” Currently, there is a great deal of confusion about both what a Second Amendment Sanctuary City resolution does and how, if they were to be passed, Extreme Risk Protection Orders would be implemented.
Extreme Risk Protection Orders, or ERPOs, empower families and law enforcement to prevent gun tragedies by allowing them to petition a court to temporarily remove guns from individuals at an elevated risk of endangering themselves or others.
They are modeled on well-established systems of Domestic Violence and Sexual Assault Protection Orders with careful considerations for due process and standards of evidence.
ERPOs allow immediate family members or members of law enforcement to petition a judge to temporarily remove firearms from a person who they believe to be an imminent risk to themselves or others.
The petition is a sworn affidavit. Filing a petition knowing the information in it is false or was filed with the intention to harass the respondent is a prosecutable offense. The judge will review the petition and consider the petitioners concerns before making a determination. The respondent will also have an opportunity to petition for termination of the order.
ERPOs are civil actions, not criminal. Once the order expires, the respondent will once again be legally allowed to possess firearms. An ERPO in no way permanently prohibits a person from legal purchase or ownership of firearms, unlike an adjudication of mental illness by a court, or an involuntary committal.
While ERPOs are often considered as a way to prevent mass shootings, they are also effective in reducing firearm suicides, an extremely serious problem in Tennessee where 1-2 people use a gun to take their own life every day. More Tennesseans used a gun to kill themselves in 2017 (the last year for which we have data) than in any previous year on record.
Under existing Tennessee law, if you believe your loved one is seriously considering harming themselves or someone else with a gun, there is currently no way for you to intervene to remove firearms from their possession. Even law enforcement is limited in these situations. In 2017, the Burnette Chapel Church of Christ shooter’s father contacted police, worried that his son was dangerous and in possession of firearms. The father wanted law enforcement to remove his son’s guns, fearful that he was contemplating killing himself with them.
Under state law, there was nothing that police could do. Not long after, the shooter entered the church and opened fire, killing one person and injuring seven others.
Extreme Risk Protection orders have the support of numerous stakeholders, including the Major Cities Police Chiefs Association, The American Bar Association, the American Medical Association, and Senators Lindsey Graham and Marco Rubio.
Sen. Graham has proposed legislation that would offer federal grants to states to help them enact and implement ERPOs.
Sen. Rubio has also proposed “red flag law” legislation.
District of Columbia v Heller, the landmark 2008 Supreme Court decision, determined that the Second Amendment confers an individual right to possess firearms unrelated to service in a well-regulated state militia. However, the majority opinion penned by Justice Antonin Scalia, also included language that the right is not unlimited and should not be understood as “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” and included language about laws that would deemed presumptively lawful. The Heller decision has been used to upheld numerous state gun laws in federal court.
These resolutions are also creating confusion in some counties where they have been passed, with officials reporting that some county residents now believe the resolutions nullify all gun laws pertaining to selling, buying, and possessing firearms. The reality is that the Supremacy Clause prohibits cities from refusing to enforce laws. The resolutions are symbolic only, but are in no way constitutional.
Simply put, cities cannot arbitrarily pick and choose what laws they enforce.
Unfortunately, the “Second Amendment Sanctuary City” movement is largely being used to spread false and deliberate disinformation about legislation that could save lives by preventing mass shootings, workplace shootings, and especially firearm suicides.
Click here to read the Extreme Risk Protection Order bill drafted by Representative Gloria Johnson and Senator Sara Kyle, and supported by Safe Tennessee.