Differences narrow between House and Senate over gun seizure bills

By Alan J. Keays, VTDigger.org

It appears differences are almost ironed out allowing for the advancement of two gun-related bills, one in the House and the other in the Senate, that both deal with authorities seizing firearms in certain situations.

Lack of agreement earlier this month resulted in no gun legislation making its way to the desk of Gov. Phil Scott by Town Meeting Day as he had initially hoped in the wake of a mass shooting in Florida and what police say was a foiled plot by a Vermont teenager to cause “mass casualties” in Fair Haven.

Now, the leaders of the House and Senate Judiciary committees appear to be on the same page. Both panels spent time Thursday hearing testimony on the two separate bills that deal with different “extreme risk” situations when guns can be seized.

Meanwhile, a different gun-related piece of legislation, S.55, hits the House floor Friday morning for consideration. That bill would expand background checks to private firearms sales, prohibit those under 21 from purchasing a firearm, and ban high-capacity magazines and bump stocks.

A slimmer version of that bill passed the Senate earlier this month. That bill contained the provisions for wider background checks and increasing the age to buy a firearm.

On Thursday, the discussion at the Statehouse centered on the other two gun-related bills.

The House Judiciary Committee took testimony Thursday on S.221, known as the “Red Flag” bill, which was approved by the Senate this month.

The bill establishes a civil procedure for law enforcement to temporarily restrict an individual from possessing firearms if the person is deemed a serious threat. It also empowers law enforcement officers to obtain an order to remove firearms from that person.

Bill backers say it provides authorities the crucial ability to act in situations involving someone planning to commit domestic violence or suicide, or a person set on carrying out a rampage such as a school shooting.

Meanwhile, the Senate Judiciary Committee heard testimony Thursday on H.422, known as the domestic violence gun bill.

According to that bill, when a police officer arrests or cites someone into court on a domestic assault charge, the officer may remove any firearm from that person under certain conditions. At an arraignment held on the next business day a judge would then take up the matter.

S.221 unanimously passed the Senate this month, with strong support among gun rights organizations, who say it provides due process safeguards needed to balance the constitutional rights of gun ownership with public safety. H.422 was approved by the House last year with strong support from victims rights advocates.

A key matter of difference between the House and the Senate has been the standard for determining when a firearm could be seized from a person.

In S.221, as passed by the Senate, in cases where a threat or danger appears imminent authorities could seek an emergency order that would last 14 days. The standard for obtaining that order, as passed by the Senate, is a “preponderance of the evidence.”

To extend that order to 60 days, a judge would need to show “clear and convincing” evidence that a person is a danger to themselves or others.

The House panel, which took testimony on the legislation earlier this month, had lowered that standard to obtain the longer order to a “preponderance of the evidence,” and passed it as part of a H.675 on the last legislative day before the weeklong Town Meeting Day break.

That bill also included provisions of H.422, and had been termed a “melding” of that bill and S.211.

However, H.675 has not been taken up by the Senate Judiciary Committee, and it appears likely it won’t be. Sen. Dick Sears, D-Bennington and head of the committee, has said that legislation wasn’t part of an earlier agreement between Senate and House leaders to move forward on S.221 and H.422.

Sears said Thursday that if the House doesn’t pass S.221 with that “clear and convincing” standard needed for the 60 day seizing of a firearm than there is “no deal” on H.422 moving forward.

Rep. Maxine Grad, D-Moretown, chair of the House Judiciary Committee, said Thursday she could support that “clear and convincing” standard in S.221 for determining the longer term seizing of a firearm.

She highlighted the testimony on S.211 before the committee earlier Thursday from John Campbell, executive director of the state Department of State’s Attorneys and Sheriffs.

Campbell told the committee that other states that have such “Red Flag” laws also use a “clear and convincing” standard. He said he supported that standard as well when determining the longer term seizing of a firearm.

“Some people say, ‘Why would you want to sustain a higher burden of proof?’” Campbell said.

“By having that higher standard you’re balancing the constitutional imposition with the state’s interest,” he said. “I would rather be able to go to a court and say we proved by clear and convincing evidence that this individual was presenting a danger to themselves or others.”

Eric Fitzpatrick, a lawyer for Legislative Council who helped draft S.211, also testified before the House committee Thursday, explaining the difference between the standards, “clear and convincing” and “preponderance of the evidence.”

He described a preponderance of the evidence as “more likely than not,” “any amount that tips the scale,” or “51 percent to 49 percent.”

Clear and convincing, Fitzpatrick said, is a higher standard. “It’s not certain, but it’s reasonably certain,” he said.

The Senate Judiciary Committee has set a vote on H.422 for Friday morning.

The House Judiciary Committee has not yet set a date for a vote on S.221, mainly because Friday may be a long day in the House with S.55, the background check bill, hitting the floor for debate in the morning, Grad said.

S.55 passed the House Judiciary Committee on Wednesday by a mostly party line 6-5 vote, with the four Republicans on the panel joined by one Democrat in opposing the measure.

Gov. Phil Scott has said he supports both S.221 and H.422. He has also said he would support S.55 as it passed the Senate. Asked during a press conference on Thursday if he would support the high-capacity magazine ban in the House version, he indicated he would.

“I’m the one who brought that up … so if it makes its way through as part of this bill I can see myself supporting that,” he said. “But again, details do matter.”