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Sen. Cruz Urges Congress to Take Action in Passing Legislation to Improve School Safety and Prevent Guns From Falling Into the Wrong Hands

Questions expert witnesses on effectiveness of red flag laws for gun control

March 27, 2019

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202-228-7561

WASHINGTON, D.C. - U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, this week participated in a hearing entitled, "Red Flag Laws: Examining Guidelines for State Action." There, he questioned expert witness Dave Kopel, Research Director at the Independence Institute, on the effectiveness of red flag laws while respecting due process and individual rights as provided by the U.S. Constitution. Sen. Cruz also highlighted his efforts along with Sen. Chuck Grassley (R-Iowa) to introduce the Protecting Communities and Preserving the Second Amendment Act of 2018, legislation that would prevent further gun violence by ensuring that relevant agencies and institutions accurately submit records to the National Instant Criminal Background Check System (NICS).

"The shooter in Sutherland Springs--it was already doubly illegal for him to purchase a firearm. He had a felony conviction, and he had a domestic violence conviction, as well as mental health issues. But in that instance, the shooter lied about his convictions when he purchased his firearms," Sen. Cruz said. "And tragically, the Air Force, under the Obama administration, never reported his felony convictions to the background check database. We need to do much more. And in particular, I would urge this committee to take up and finally pass legislation that I've filed over six years ago: the Grassley-Cruz legislation that I filed with the former Chairman of this committee that targets resources on bad guys--on felons and fugitives--that would have audited every federal agency to make sure that those felonies were reported to the background check database. Which would have meant the Sutherland Springs shooter would have had his conviction in the database. But also, critically, that mandates prosecuting the felons and fugitives who try to illegally buy firearms. Every year, tens of thousands of felons and fugitives go in and try to illegally buy firearms, and most of them are not prosecuted. Had Grassley-Cruz passed into law, that Sutherland Springs shooter, when he lied on that form and committed another felony, he would have been persecuted. He would've been in a federal prison. And he wouldn't have been in that beautiful church murdering those individual people."

Watch Sen. Cruz's full line of questioning here. Full transcript below:

Sen. Cruz: "Thank you, Mr. Chairman. Thank you to each of the witnesses for being here today and for testifying. The national epidemic we have of mass shootings and school shootings is a tragedy and it is one that I believe we need to do significantly more to prevent. The state of Texas tragically has experienced this recently and in horrific instances in both Sutherland Springs and in Santa Fe. I was in Sutherland Springs and Santa Fe in the hours following those shooters.

"As I said, I was in Santa Fe. I was in Sutherland Springs in the hours following those shootings and what happened there was truly horrific. Sutherland Springs is frustrating because that crime, in particular, was easily preventable. The shooter in Sutherland Springs--it was already doubly illegal for him to purchase a firearm. He had a felony conviction, and he had a domestic violence conviction, as well as mental health issues. But in that instance, the shooter lied about his convictions when he purchased his firearms. And tragically, the Air Force, under the Obama administration, never reported his felony convictions to the background check database. We need to do much more. And in particular, I would urge this committee to take up and finally pass legislation that I've filed over six years ago: the Grassley-Cruz legislation that I filed with the former Chairman of this committee that targets resources on bad guys--on felons and fugitives--that would have audited every federal agency to make sure that those felonies were reported to the background check database. Which would have meant the Sutherland Springs shooter would have had his conviction in the database. But also, critically, that mandates prosecuting the felons and fugitives who try to illegally buy firearms. Every year, tens of thousands of felons and fugitives go in and try to illegally buy firearms, and most of them are not prosecuted. Had Grassley-Cruz passed into law, that Sutherland Springs shooter, when he lied on that form and committed another felony, he would have been persecuted. He would've been in a federal prison. And he wouldn't have been in that beautiful church murdering those individual people.

"There is a great deal more we should do. But the right approach, I think, is targeting and focusing on bad guys. And I do think that extreme risk laws of the kind we are discussing can potentially be part of the solution set. That targeting those that pose an extreme risk, that have serious mental illness, and pose a threat to themselves or others is a law enforcement tool that can be helpful in preventing crimes of violence.

"Now, as has been noted by several witnesses, policymakers have to balance the need to protect the public's safety, with also the obligation to protect constitutional rights and to protect civil rights. And so, Mr. Kopel, I wanted to ask you, in your view, what are the minimum protections that an extreme risk law should have to ensure--to comport with--due process?"

Dave Kopel: "Sure. Use of ex parte proceedings only on a finding of necessity. As we have in Federal Rules of Civil Procedure 65. You can't normally just get an ex parte, a TRO [Temporary Restraining Order], against somebody because you think you have a good case. You'll have to demonstrate to the judge specifically why the other party isn't in court today. And what attempts you made to contact that person. And if you're sufficient, then you can get the temporary restraining order. So, ex parte orders only on a showing of necessity--a clear and convincing standard throughout. Because if we're eventually going to have a hearing with a clear and convincing standard, an ex parte hearing ought to be a fairly easy thing to win with no opposition. Right to counsel, including ideally providing appointed counsel for respondents guaranteeing their right of cross-examination. For public safety and avoiding trouble, a ‘Vermont-styled' system where the subject of an order--the respondent to an order--may surrender the guns either to law enforcement or to a federal farms licensee--a gun store--or to another responsible person who will store the guns and keep them away from the respondent and a civil remedy for false or malicious accusations. Those are what I would say is the core--and obviously, my twenty-seven-page testimony gets into some more features--but those would be the most important."

Sen. Cruz: "And, am I understanding you right that in your judgment of the different states that have enacted these laws, you think Vermont's is the best constructed? And it strikes the best balance?"

Dave Kopel: "In those regards, I would say that Connecticut has probably the best procedures for starting things. Because they require anybody--dating partners, employees, teachers--anyone can go to law enforcement or to a state's attorney's office. But there's a filter of having a law enforcement or a state attorney's decision on bringing it. And Connecticut specifically requires that there must've been an independent investigation. You can't merely proceed on allegations that have no corroboration."

Sen. Cruz: "One of the things that you discussed in your written testimony was efforts of some of the gun control organizations to block the drafting of a model red flag law in the Uniform Law Commission. Can you describe that at some additional depth"

Dave Kopel: "Sure. So when the conference of Chief Justices, which represents obviously all the Chief Justices of the fifty states and I believe the territories and the district, asked the Uniform Law Commissioners, which for over a century has been drafting model laws on many many topics, to create a national model law. And obviously, it wouldn't be a uniform act that everybody has to adopt or implement on change. But a national model law for states to use as their starting point and adapt to their circumstances. And so, we had an in-person meeting of the study committee--that was created for this in late November of last year--and then two telephonic meetings which had some of the original people there and then additional people. We talked and argued some about different topics here, like ex parte, among others and then the head of the committee took a poll and followed up by email voting, and all of the comments except from one organization were, ‘Yes let's go ahead and do this. We'd be happy to participate in the process.' And the one organization that has its own very different model--which I view as going way to the extreme--said, ‘No, we don't think you should do this because obviously, it will be a competitor to our group.'"

Sen. Cruz: "Which organization is that?"

Dave Kopel: "That was the Giffords Organization."

Sen. Cruz: "Okay, thank you.

"Thank you, Mr. Chairman."

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