Committee tables Montana red-flag law proposal shortly after hearing

No opponents testified against House Bill 202 before it was tabled

By: - January 16, 2023 5:11 pm

Guns and laws (Photo illustration by Darrell Ehrlick of the Daily Montanan)

Erin Harris’s father, a veteran who developed dementia, would point his guns at “imaginary ghosts that were oftentimes innocent people,” she said.

He lined his floors and walls with ammunition, she told a House committee Friday as she testified in favor of a bill that would create “an extreme risk protection order” law in Montana.

“An extreme risk protection order would have given my family and I the opportunity to safely intercede and get professional medical help for our father,” Harris said.

She was one of five people who testified in favor of the bill. Proponents argued such a law could have prevented their family members from being killed or threatening to kill others, and they cited Montana’s high rates of homicide and suicide involving guns as reasons to support the measure.

No opponents testified, but Republicans grilled sponsor Rep. Ed Stafman, D-Bozeman, on the need for House Bill 202. Shortly after Stafman finished his closing remarks, Republicans on the House Judiciary Committee voted to table it.

Democrats voted no, but they also protested the move. They said though it was not in the written committee rules, committee members had an understanding that bills would not receive executive action until at least 24 hours after a hearing.

“There’s nothing in the minority we can do to stop this procedure,” said Rep. Tom France, D-Missoula, who said amendments were discussed. “But it’s not right for the Montana Legislature to rush these kinds of bills into the wastebasket.”

Stafman’s bill would allow a person’s partner or family member, or a law enforcement officer or agency, to seek an extreme risk protection order from a district court in either the Montana county in which they live or in the county in which the person the order would apply to lives.

“This bill is not about taking any guns from law-abiding citizens, but about empowering law enforcement to do their job and prevent tragedies,” Stafman told the committee. “It’s about children’s safety. It’s about domestic violence prevention. This is a pro-life bill.”

Those seeking the order would have to sign a petition alleging the person to whom the order would apply poses “a significant risk of causing personal injury to the respondent’s self or others” if they have access to a firearm, according to the bill’s language.

A court would hold a hearing to determine whether to approve the petition and have the person surrender their guns for as long as a year.

Stafman’s measure was modeled after similar laws from other states and came as a recommendation for states when Congress passed the bipartisan Safer Communities Act last year, he told the committee. The District of Columbia and 19 states led by both Republicans and Democrats have passed such laws, commonly referred to as “red flag laws.”

No testimony in opposition

Proponents lined up and shared stories about how such a law could have helped or saved the lives of loved ones.

Susan DeBree told the committee how her husband would have wanted such a law on the books during his time as a law enforcement officer, and about how one could have potentially saved her daughter, who was shot and killed by her partner.

“He should never have had a gun in his possession,” she said of her daughter’s partner. “A red flag law, or extreme risk law, like this could have helped prevent her death.”

Shani Henry, the co-chair of the Montana chapter of Moms Demand Action for Gun Safety, reiterated Montana’s high rates of suicide and gun violence deaths.

“It is truly a public health crisis, and it is a horrible, unacceptable tragedy,” she said.

Nicole Gomez told the committee her brother had at one time been suicidal and took his guns one day, promising to kill their father and himself. She said police told them they could not do anything unless he broke the law. And though he did not act on those threats, she and her family were “paralyzed with fear.”

“I never want to see another family experience that kind of helplessness,” she said.

Contentious questions before bill tabled

In addressing concerns voiced during questioning by Republican lawmakers, Stafman said he was open to amending the bill as introduced, especially in making it even more specific to Montana since he said it was drafted off national recommended legislation. 

He also told Rep. Braxton Mitchell, R-Columbia Falls, he was willing to consider amendments to increase the penalty for filing a false petition.

According to the Centers for Disease Control and Prevention, Montana had the nation’s 11th-highest firearm death rate per capita in the nation in 2020.

Stafman said Montana is third in the nation in suicides per capita and that 61% of them involved guns and that suicide is “probably a bigger problem” here than in other states.

He said multiple states had seen their firearm suicide rates drop after passing similar laws — which he said have support from more than three-quarters of Americans from all political leanings.

Committee Vice Chairman Rep. Brandon Ler, R-Sidney, pressed Stafman on the number of mass shootings that had taken place in Montana.

“In my view, one life lost that could have been prevented is too many,” Stafman told him in response to multiple questions.

Rep. Jed Hinkle, R-Belgrade, questioned Stafman and a representative for the Montana Coalition Against Domestic and Sexual Violence about choking being a major problem in relationships.

“What I’m trying to establish here is there are other acts that a person can commit that take a person’s life or put another person in danger,” he said. He asked Stafman if someone who had threatened to choke their partner should “be handcuffed for a period of time so they can’t choke the person.”

“This bill is not going to solve every single violent act. It’s not intended to,” Stafman retorted. “It’s designed to go after the most prevalent act that results in the most death, overwhelmingly. And I don’t think we ought to make the perfect the enemy of the good.”

Committee Chair Rep. Amy Regier, R-Kalispell, and Hinkle asked about why a person could have their guns taken without proof they had broken a law. Stafman said there are several other instances, like civil commitments for mentally ill people who are threats to themselves or others, in which they can have restrictions placed upon them.

“It’s a false thing to focus on about whether they’ve broken the law,” Stafman said. “This is a safety law that’s designed to promote public safety, to save lives.”

Shortly after Stafman’s closing remarks on the bill, which was the last heard in the committee that day, Ler motioned to table the measure, calling it a “non-debatable motion.”

Committee Vice Chair Laurie Bishop, D-Livingston, said the committee had an understanding that it would not take executive action to move or table bills with less than 24 hours’ notice.

But Regier said “there’s nothing set in stone that says we can’t,” citing the rules the committee adopted.

“I’m glad it’s on full display,” Bishop said.

And Hinkle said the reason for voting for the bill to be tabled was because House leadership had asked its members to try to get bills “out even sooner” to keep them going to the floor.

“I know that (the) tentative agreement doesn’t hold for every situation,” he said.

After the hearing, two other Democratic members of the committee, Rep. Donavon Hawk, D-Butte, and Rep. Zooey Zephyr, D-Missoula, said they believed the bill’s tabling was a way of skirting the jobs all lawmakers were elected to perform.

“We’re here to hear bills on their merits and debate those merits as legislators on behalf of our constituents and the people of Montana,” Zephyr said.

“So much for freedom when you can’t sit here and have a good discussion on stuff,” Hawk said.

How the process would work

The petitioner would have to sign a sworn affidavit detailing exact actions or statements made by the person “that give rise to a reasonable fear of future acts of violence” as to why an order should be granted.

The evidence could include, according to the bill:

  • Recent acts or threats of violence
  • A pattern of acts or threats of violence over the past year
  • Serious mental health issues
  • Any violations of other protection orders
  • Previous or existing Extreme Risk Protection Orderss against the person
  • Violation of any ERPOs
  • Domestic violence convictions
  • The person’s ownership of, or access to, firearms
  • Reckless use or brandishing of firearms
  • Prior felony or violent-crime arrests
  • Prior stalking or physical threats by the person
  • Evidence of recent firearm acquisition
  • Corroborated evidence of drug or alcohol abuse

The requester of the order would also have to identify the number, types and locations of any firearms they believe would be in the person’s possession. If law enforcement is requesting the order, they would have to “make a good faith effort” to give notice to that person’s family member, partner, or anyone else who might be “at risk of violence,” according to the bill.

Once a court receives a petition, it would have to hold a hearing on the matter within 14 days.

But the court could also issue an ex parte order before the hearing occurs if the petition contains information showing the person could harm someone else or themself if the court “does not act immediately. In that case, the hearing would be held on the day, or within 48 hours, of when the petition was filed.

If an order is granted, it would be in effect for a year. But the person under the order can request one hearing each year to terminate the order.

Law enforcement officers would be tasked with getting in touch with the person to whom the order applies and getting them to surrender their weapons, according to the bill. If the person does not agree to surrender them, law enforcement could obtain a warrant to obtain the firearms.

The person who had the order granted against them would bear the burden of proving they no longer pose a significant risk to themselves or others by possessing a firearm before the order is terminated. Within 60 days of the order’s expiration date, a partner, family member, law enforcement agency or officer could request it be renewed.

A person who files a false petition would face a misdemeanor charge punishable by a fine of up to $500 and up to six months in jail. A person under an ERPO would commit a felony if they gain possession of another firearm, which would be punishable by up to 10 years in prison and a fine of up to $50,000.

“One of the things about all these bills is that they provide for very, very robust due process protections,” Stafman said.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.