Federal Extreme Risk Protection Order Act of 2026
- Sponsor
- Rep. McBath, Lucy [D-GA-6]
- Committees
- Judiciary Committee (primary)
- Last action
- Feb 17, 2026
Bottom line
The bill creates a federal 'red flag' law and encourages state-level adoption, aiming to prevent firearm violence by temporarily removing guns from individuals posing an imminent risk while incorporating due process protections.
What it actually does
This bill establishes a federal framework for extreme risk protection orders (ERPOs), allowing federal courts to issue orders prohibiting individuals deemed a risk from purchasing, possessing, or receiving firearms or ammunition. It also creates a grant program to incentivize states and Indian Tribes to enact and implement their own ERPO laws, and mandates training for federal law enforcement officers on the equitable use of these orders.
Proponents argue
Supporters argue that ERPOs are a critical and proven tool for preventing gun violence, including suicides and mass shootings, by allowing temporary firearm removal based on evidence of dangerous behavior. They emphasize the bill's robust due process protections, such as the 'clear and convincing evidence' standard for long-term orders and the right to counsel, and its support for state-level initiatives.
Opponents contend
Opponents contend that such orders can infringe on Second Amendment rights, lack sufficient due process, and could be abused by individuals making false accusations. They argue that existing laws are adequate and that ERPOs may not effectively address the root causes of violence, potentially leading to overreach or targeting specific groups.
The bill is moderately detailed, requiring careful reading to understand the procedural nuances of both federal and state ERPO systems, as well as the grant program requirements.
Sec. 2, adding 18 U.S.C. 935(a)
Definitions for Federal Extreme Risk Protection Orders
This provision defines key terms for the new federal extreme risk protection order system. It clarifies that a 'court' means a U.S. district court, and broadly defines 'family or household member' to include parents, spouses, siblings, children, dating partners, co-parents, and individuals residing with the respondent. These definitions establish the scope of who can petition for an order and who can be subject to one.
Supporters argue
Supporters argue that clear, comprehensive definitions are essential for the consistent and fair application of ERPO laws, ensuring all parties understand their roles and the scope of the orders. The broad definition of 'family or household member' ensures that those closest to an individual in crisis can seek intervention.
Critics contend
Critics may argue that broad definitions, particularly for 'family or household member,' could lead to an expansive application of the law, increasing the potential for misuse or overreach by individuals with personal grievances.
Tradeoffs
This provision balances the need for broad applicability to cover various dangerous situations with concerns about potential overreach and the scope of who can initiate such a serious legal process.
Sec. 2, adding 18 U.S.C. 935(b)
Petition Process and Fee Prohibition
This section authorizes a family or household member, or a law enforcement officer, to submit a petition to a U.S. district court for an ex parte (temporary) or long-term Federal ERPO. It explicitly prohibits courts or law enforcement agencies from charging any fees for filing, issuing, serving, or reporting an ERPO, or for any related pleadings or motions. It also allows law enforcement petitioners to provide source identities to the court under seal.
Sec. 2, adding 18 U.S.C. 935(c)
Ex Parte Federal Extreme Risk Protection Orders
This section outlines the process for issuing temporary ex parte (without the respondent present) Federal ERPOs. A court must grant or deny a petition for an ex parte order on the same day it's submitted, or the next judicial day if submitted late. The court may issue an order only upon a finding of probable cause that the respondent poses a risk of imminent personal injury to self or others by possessing a firearm, based on a signed, sworn affidavit from the petitioner. These orders expire after 14 days or when a determination is made on a long-term order.
Sec. 2, adding 18 U.S.C. 935(d)
Long-Term Federal Extreme Risk Protection Orders and Renewals
This section details the process for issuing long-term Federal ERPOs, which can last up to 180 days. It mandates a hearing where the respondent receives notice and has the opportunity to be heard, including the right to court-provided counsel if financially unable. The petitioner must prove by 'clear and convincing evidence' that the respondent poses a risk of personal injury to self or others by possessing a firearm. Long-term orders can be renewed under the same evidentiary standard and procedural requirements.
Sec. 2, adding 18 U.S.C. 935(f)
Relinquishment of Firearms and Ammunition
Upon issuance of any Federal ERPO, the court must order the respondent to surrender all firearms, ammunition, and permits to the U.S. Marshals Service or a designated law enforcement officer. Officers serving the order will request immediate surrender or sale to a licensed dealer and take possession of visible items or those found via lawful search. If immediate custody isn't possible, the respondent must surrender items within 48 hours. Receipts are issued, and knowing attempts to access surrendered items lead to forfeiture.
Sec. 2, adding 18 U.S.C. 935(l)
Training for Federal Law Enforcement Officers
This section mandates that federal law enforcement agencies require their officers to complete training on the safe, impartial, effective, and equitable use and administration of Federal ERPOs. The training must cover topics such as bias (including race, gender, mental health), appropriate use in domestic violence cases (with safety planning), de-escalation techniques for individuals in distress, outreach to marginalized communities, and referrals to social service providers. Agencies must consult with relevant experts and community groups when developing this training.
Sec. 3, amending 18 U.S.C. 922(d) and (g)
Federal Firearm Prohibition for Individuals Subject to ERPOs
This section amends existing federal law (18 U.S.C. 922) to prohibit licensed firearms dealers from selling firearms to, and individuals from possessing firearms if they are subject to, a Federal extreme risk protection order issued under the new section 935, or a qualifying state or tribal extreme risk protection order. This change integrates ERPOs into the federal background check system and existing prohibitions on firearm possession.
Sec. 4(b)
Extreme Risk Protection Order Grant Program
This section establishes a grant program, administered by the Office of Community Oriented Policing Services (COPS) of the Department of Justice, to provide funding to eligible states, Indian Tribes, local governments, and other entities. The grants are intended to help these entities implement their own ERPO laws by funding personnel, training, data collection, protocol development, and public awareness campaigns. It requires 25-70% of grant funds to be allocated for law enforcement training and offers preferential treatment in other COPS grants to jurisdictions with qualifying ERPO laws.
Sec. 6
Full Faith and Credit for Extreme Risk Protection Orders
This section mandates that extreme risk protection orders issued under qualifying state or tribal laws (those enacted in accordance with this Act) must be given 'full faith and credit' by courts and law enforcement in other states or Indian Tribes. This means such orders must be enforced as if they were orders of the enforcing state or tribe, provided the issuing court had jurisdiction and the respondent received reasonable notice and opportunity to be heard (or within a reasonable time for ex parte orders).
Penalty for False Reporting or Frivolous Petitions
Sec. 2, adding 18 U.S.C. 935(i)
Why it matters:It is standard legislative practice to place penalty clauses towards the end of a section detailing a new legal process, rather than integrating them into the core procedural steps.
Case for: Proponents argue this provision is a crucial safeguard against abuse of the ERPO system, deterring individuals from making false accusations or filing petitions without merit, thereby protecting respondents' rights and conserving court resources.
Case against: Critics might argue that while a deterrent is necessary, the penalty of up to $5,000 fine or 5 years imprisonment could be seen as overly harsh for what might be a misjudgment rather than malicious intent, potentially discouraging legitimate petitioners who fear legal repercussions.
Estimated impact: Aims to reduce frivolous filings and false reports, impacting the integrity and fairness of the ERPO process and potentially affecting individuals who misuse the system.
Rule of Construction and Preemption Clause
Sec. 2, adding 18 U.S.C. 935(m) and (n)
Why it matters:These are standard clarifying provisions typically found at the end of a legislative section to prevent unintended legal conflicts and preserve existing legal frameworks or state authority.
Case for: Proponents argue these clauses are essential to clarify that the federal ERPO law does not alter existing domestic violence protective order requirements and does not preempt any stronger state laws, ensuring a comprehensive approach to gun violence prevention and respecting state autonomy.
Case against: No specific opposition is typically raised against these clarifying clauses, as they aim to prevent unintended legal conflicts and preserve existing protections and state authority, which are generally seen as positive aspects.
Estimated impact: Ensures legal clarity and preserves existing protections and state autonomy, preventing unintended consequences or conflicts with other laws.
Inclusion of ERPO Records in National Crime Information Databases and Record Destruction
Sec. 5, amending 28 U.S.C. 534
Why it matters:This is a technical amendment to an existing statute to integrate new data types into established federal databases, a common legislative practice for updating existing legal frameworks.
Case for: Proponents argue that including ERPO records in national crime information databases (like NCIC) is crucial for effective enforcement, allowing law enforcement nationwide to quickly identify individuals prohibited from possessing firearms. The destruction clause ensures records are removed when orders expire, protecting due process.
Case against: Critics may raise privacy concerns about the collection and sharing of such sensitive personal information in national databases, even with the destruction clause, and question the potential for data misuse or errors, particularly if the data is not perfectly accurate or timely.
Estimated impact: Enhances the enforceability and reach of ERPOs by making relevant information accessible to law enforcement nationwide, while also setting limits on data retention to protect individual privacy.