The following is the report I delivered on the House Floor in support of H.230, an act relating to mechanisms to reduce suicide.
Your House Judiciary Committee focused on three main issues when we considered H.230.
First, we considered issues related to criminal offenses. We asked the following: Were the elements of the offenses in the bill clearly defined and consistent with current law? Were the penalties associated with the offenses consistent with current penalties? What issues might arise with respect to the enforceability of the offenses?
Second, we considered court process. This was a particular focus when we looked at the bill’s proposed changes to Vermont’s red flag law – a law that currently allows a State’s Attorney or the Attorney General to obtain an Extreme Risk Protection Order.
Third, our main concern was the constitutionality of the provisions. We analyzed whether the provisions would run afoul of the Second Amendment of the U.S. Constitution or of Article 16 of the Vermont Constitution.
As to the benefits of H.230 in addressing suicide prevention, we defer to the Committee on Health Care, although some of our witnesses discussed that issue. We did consider how the provisions would otherwise impact public safety, an issue within the Judiciary Committee’s jurisdiction.
Before reviewing the details of the Judiciary Committee’s strike all amendment to H.230, I will first provide a background for our analysis of the law’s constitutionality. I will describe the current state of the law related to the Second Amendment to the U.S. Constitution.
That amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
In the 2008 case District of Columbia v. Heller, the U.S. Supreme Court held for the first time that the Second Amendment protects an “individual right to possess and carry” firearms for the purpose of self defense. However, the Court did not indicate how the lower courts should evaluate firearms regulations going forward. Post-Heller, courts generally analyzed firearms regulations under one of two standards — intermediate scrutiny (where a law must be substantially related to an important state interest) or strict scrutiny (where a law must be narrowly tailored to serve a compelling state interest). These tests required balancing the state’s professed need for the regulation against the state’s encroachment on the right to possess and carry firearms. These are known as “means-ends” tests.
When the Judiciary Committee had considered firearm violence prevention measures in the past, we applied this means-ends balancing test. We balanced important or compelling state interests against any restrictions to the right to keep and bear arms, and we would seek to narrowly tailor the measures to maintain a proper balance.
But the Supreme Court recently discarded that test in the Second Amendment context. Last year in the case New York State Rifle & Pistol Association v. Bruen, the Supreme Court changed the legal analysis that is required to evaluate firearms laws under the Second Amendment. The Court expressly rejected any type of means-end balancing test, and instead said that going forward the test would be the following: (May I quote from the Bruen decision?)
“When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.”
Since issuance of the Bruen opinion, courts have been using and will continue to use this test to review laws implicating the Second Amendment. And so far, the courts have come to divergent conclusions on how to apply the Bruen test.
The overarching question for courts and for us in applying the Bruen test is: What types of regulations may be permitted under the Bruen test? It is unclear if the 6 member Bruen majority even agrees on the answer to that question. Two justices who wrote a separate opinion in Bruen might join the three dissenting justices to uphold some firearms regulations that others in the majority would strike down. Justice Kavanaugh wrote a concurring opinion joined by Chief Justice Roberts emphasizing that a key holding of the Court’s earlier decision in Heller was still good law. Justice Kavanaugh explained: (May I quote from the Bruen Concurrence?)
Properly interpreted, the Second Amendment allows a “variety” of gun regulations.
As Justice Scalia wrote in his opinion for the Court in Heller, . . . ‘Like most rights, the right secured by the Second Amendment is not unlimited. . . the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose…. [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]
At least five of the current justices, then, could vote to uphold a relatively broad spectrum of firearms regulations.
In the Judiciary Committee, we heard from witnesses who testified that they believe the provisions in H.230 are constitutional and from others who believe that they are unconstitutional. Ultimately, as our legislative counsel testified, courts will have the final say on whether the provisions are constitutional. At this time, it is not clear how the courts binding on Vermont will rule on such firearms regulations. And it may not be clear for a while.
It is more clear that H.230 is constitutional under Article 16 of the Vermont Constitution. In the 2021 opinion State of Vermont v. Misch, the Vermont Supreme Courtset forth a standard called the reasonable-regulation test for evaluating challenges under Article 16. Under that test, the Vermont Court will uphold a statute implicating the right to bear arms provided it is a reasonable exercise of the state’s power to protect the public safety and welfare. The provisions of H.230 would protect the public safety and welfare of Vermonters and should be deemed constitutional under Article 16.
The Vermont Attorney General testified that she acknowledged that there were concerns about the constitutionality of any gun legislation in light of the Bruen decision. But the Attorney General concluded that her office believes H.230 is constitutional and urged the legislature to pass the bill.
I have no reason to disagree with the Attorney General. Indeed, we heard strong testimony that the provisions in H.230 for safe storage, improving accessibility to our red flag law, and implementing a waiting period are constitutional, both under the Second Amendment and Article 16 of the Vermont Constitution. Courts will have the final say, but we believe they should find such provisions to be constitutional.
Now, turning to the Judiciary Committee’s strike all amendment, found on today’s calendar at page 974.
Based on testimony and documents from the Department of State’s Attorneys, the strike all amendment adds five findings. Finding number 8 provides recent information about the effectiveness of our red flag law. Findings 9 through 12 address certain issues related to public safety. Findings 9 and 10 note that firearms purchased in Vermont and transferred out of state contribute to violent crime in other states. Finding 11 notes that firearms are often acquired in Vermont through straw purchases, where someone buys a gun for another person who is not legally allowed to own one, such as felons. Waiting periods are shown to deter straw purchases. Finding number 12 notes that research has shown that waiting period laws can reduce gun homicides.
Turning to section 2 of the bill, which involves secure firearms storage. The amendment grammatically changes subdivision (a)(1) for clarity.
Subsection (2) was revised to address a vagueness concern. The bill as passed by Health Care stated that “This subsection shall not apply if the firearm is carried by or under the control of the owner or another lawfully authorized user.” The term “under the control of” was deemed vague so we replaced that language to “within such close proximity that it can be readily retrieved and used by the owner or another authorized user.”
Skipping to the definitions section on page 977 of today’s calendar, the strike all amendment adds a definition at subdivision (e)(1) of authorized user.
Back to page 976. Subdivisions (3)(A) and (B) in the bill as passed by Health Care were listed as exceptions to subsection (a). The Judiciary Committee felt that rather than exceptions to the requirements for secure storage in subsection (a), these were more properly considered as actions that should not give rise to a violation of the secure storage requirement. This is admittedly a bit of a nuanced change.
Moving on to subdivision (b)(1), which the Judiciary Committee has struck. This provision would have imposed a fine on the owner of a premises for failing to properly secure firearms, whether or not the firearms were ultimately accessed and misused. This provision probably raised the most concern in testimony and the committee because it would be difficult to enforce. And there is a concern for privacy. The concern was raised that in order to enforce the provision, someone would have to go into a home and inspect the premises to see if firearms are securely stored. Striking this provision eliminates these concerns around enforcement and privacy.
Our strike all amendment provides that criminal penalties would only be applied for violation of the safe storage provision in cases when a child or prohibited person accesses an unsecured firearm and misuses it. Misuse means committing a crime with the firearm, displaying the firearm in a threatening manner, or causing death or serious bodily injury with the firearm.
The other significant change to the secure storage provision in the strike all amendment relates to injury. Subdivision (b)(2) imposes a five-year felony if a child or prohibited person gains access to an unsecured firearm and causes death or, in the bill as passed by Health Care, injury to any person. Under the Health Care Committee’s definition, “injury” would include a harmful effect on one’s health, including mental, emotional, or physical health, based on the misuse of an unsecured firearm. And certainly such an injury would be possible. But this is not a recognized injury under our criminal laws, particularly for a felony-level offense. That definition is too broad. For a felony-level offense, the appropriate standard is serious bodily injury, which is defined in the strike all amendment through a cross reference to 13 VSA 1021(a)(2).
(2) “Serious bodily injury” means:
(A) bodily injury that creates any of the following:
(i) a substantial risk of death;
(ii) a substantial loss or impairment of the function of any bodily member or organ;
(iii) a substantial impairment of health; or
(iv) substantial disfigurement
In subsection (c), injury is changed to serious bodily injury. In addition, the word shall is changed to may to recognize the importance of prosecutorial discretion in such situations. A witness from the Department of State’s Attorney testified that subsection (c) was not necessary because a State’s Attorney would already consider whether to charge a parent in this situation. But we felt it was important to send the message acknowledging the trauma that a parent would experience in this situation while recognizing that the decision is within the discretion of the prosecutor.
Turning now to Sections 4 through 6 on page 978.
The intent of the Health Care and Judiciary Committees is to make the process for obtaining an Extreme Risk Protection Order (or ERPO) more accessible to those who know first-hand whether someone poses an extreme risk to themself or others.
As has been explained, an ERPO is a civil order that temporarily prohibits individuals who pose a danger of injury to self (including suicide) or others from purchasing, possessing, or receiving any dangerous weapons, including firearms.
Under current law, only a State’s Attorney or the Office of the Attorney General may file an ERPO petition. They usually would seek an emergency, or ex parte, ERPO first. To obtain an ex parte ERPO, the court must find by a preponderance of the evidence that the respondent poses an imminent and extreme risk of causing harm to themselves or another person by purchasing, possessing, or receiving a dangerous weapon or by having a dangerous weapon within their custody or control. A hearing for an ex parte ERPO does not have to include the person against whom the order is sought. But, if the court issues an ex parte ERPO, it must provide that person notice that the order was entered and must hold a hearing open to that person within 14 days. After that later hearing, if the court finds by a higher standard – clear and convincing evidence – that the person is a danger to themself or others, it may issue an order that lasts up to six months. If an ex parte or final ERPO is issued, law enforcement will assist in obtaining weapons that the respondent must relinquish.
H.230 as passed by Health Care would allow a family or household member to initiate the process for obtaining an ERPO by directly petitioning the court for the order A State’s Attorney or the Attorney General would also still be able to do so.
The Judiciary Committee’s amendment first changes the definition of “Household member.” In the bill as passed by Health Care, the definition cross references 15 VSA 1101. That definition would include anyone who has ever lived with or dated the person who presents an extreme risk of harm, which is extremely broad. The committee’s amendment narrows the definition to include only those currently living together, sharing occupancy in a dwelling, dating, or engaged in a sexual relationship.
Turning to section 6 of the strike all on page 979 of today’s calendar. The Judiciary Committee’s new subdivision 4054(b)(1)(B) would provide the following: if a court grants an ex parte ERPO that was initiated by a family or household member, the Court would notify a State’s Attorney or Attorney General, and one of these offices would take over the case. They would become the party in court in the action for a final ERPO.
Jumping back to section 5 of the bill at page 978. Instead of requesting a temporary ex parte order, the family or household member could instead directly file a petition for a final ERPO. Under new subdivision 4053(b)(2) in our strike all amendment, the State’s Attorney or the Attorney General would be substituted as the plaintiff in the action.
To obtain a final ERPO, the standard of proof to show that the person is an imminent and extreme risk of causing harm to themselves or another person is clear and convincing evidence. That standard would be difficult for a lay person to meet. This is the primary reason for substituting the State’s Attorney or Attorney General in a case seeking a final ERPO.
In addition, once an ex parte or emergency ERPO is entered, law enforcement and a State’s Attorney or Attorney General will already necessarily be involved in the process for obtaining relinquished firearms.
The Judiciary Committee amendment also strikes what was Section 5 of H.230 as passed by the Health CAre Committee. With the substitution of the state’s attorney or Attorney General in the case, it is important that a family or household member files the petition in the county where the respondent resides or the county where the events giving rise to the petition occurred. The case shouldn’t be filed in the county where the family or household member resides if it is different than where the respondent resides or the events occurred.
In addition the Judiciary Committee amendment strikes what was Section 8 of H.230 as passed by the Health Care Committee. With the substitution of a State’s Attorney or Attorney General in the final ERPO process, and therefore as the moving party for any extension of the ERPO, the changes to Section 8 were no longer necessary.
Family or household members would continue to be able to go through a State’s Attorney or Attorney General to obtain an emergency ERPO. In many instances this would be a better approach given the expertise of those offices. But the amendment eases the way for a family or household member to initiate the process by going directly to court.
In short, the Judiciary Committee’s amendments to H.230 seek to make the process for obtaining an ERPO more accessible to family and current household members, those who are in the best position to know if someone is a danger to themselves or others.
72 HOUR WAITING PERIOD FOR FIREARMS TRANSFERS
Turning to Section 7 of H.230, which involves a 72-hour waiting period for the purchase of a firearm in Vermont.
Last year, the legislature passed S.30, which, among other provisions, closed the so-called Charleston Loophole. In Vermont, anyone purchasing a firearm needs to undergo a background check. However, gun purchases can legally go forward under federal law after three days if the background check has not yet been completed. That is the “Charleston Loophole.” S.30 closed this loophole – under the bill, the purchase could not be made until the background check was final, no matter how long that might take. The Governor vetoed S.30.
In response, the legislature passed S.4 with a compromise related to background checks. S.4 provided more time for completion of the background check, from 3 days to 7 days, but if the background check was not completed in 7 days, the firearm purchase could proceed. The Governor signed S.4.
Back to H.230, the waiting period provision in the bill as passed by Health Care would have inadvertently closed the Charleston Loophole. Under the bill, a firearm purchase could not go forward until the background check was completed and the purchaser was deemed not to be a prohibited person. To honor the compromise reached last year, the Judiciary Committee amendment would provide that the transfer of a firearm could proceed either 72 hours after the purchaser passes a background check or after 7 days without any result from the background check, whichever occurs first.
The Judiciary Committee amendment also addresses a concern related to gun shows. These shows often occur over a weekend, making it more difficult for a transaction to occur and for a purchaser to obtain a firearm under a 72-hour waiting period. The amendment would exempt purchases at gun shows from the 72-hour waiting period. This exception, however, would be repealed effective July 1, 2024. This repeal would give the legislature time for further consideration of whether a person who has proof of firearm ownership and can pass a background check should be subject to the 72-hour waiting period. It would allow time to consider a method for firearm purchasers to be able to show that they already own a firearm.
We heard from the following witnesses:
|1. A doctor with the Pediatric Critical Care, University of Vermont Children’s Hospital|
|3. President, VT Federation of Sportsman Club|
|4. Litigation Attorney, Giffords Law Center to Prevent Gun Violence|
|5. Vermont Attorney General|
|6. Government Affairs Manager, Lake Champlain Regional Chamber of Commerce|
|7. President, Gun Owners of Vermont|
|8. Student – Mount Abraham Union High School, representing GunSense Vermont|
|9. Legislative Counsel|
|10. Associate Regional Director of State Government Affairs, Everytown for Gun Safety|
|11. Counsel, Everytown for Gun Safety|
|12. Attorney, Vermont Department of State’s Attorneys and Sheriffs|
|13. Supervising Attorney, Appellate Division, Office of the Defender General|
|14. Chief Superior Judge, Vermont Judiciary|
The Committee vote was 7-4-0.
H.230 provides meaningful measures to reduce the incidence of firearm violence in Vermont, particularly related to the use of this lethal means of suicide. There is strong support for the constitutionality of the provisions. H.230 is a solution that we should implement now. It will save lives while preserving Vermonter’s right to keep and bear arms. I ask you to support the Judiciary Committee’s strike-all amendment.