ERPOS: A spotlight on a unique form of gun control, how they work and why you should care.
- Extreme risk protection orders are intended to protect gun owners and those around them
- They are most often only a temporary measure
- These orders do not violate due process or the Second Amendment
- Many in the firearms community view them as a positive measure
Even the most dedicated gun enthusiast will acknowledge that in the wrong hands, a firearm can do more than range shoot, hunt, or defend people and property.
The vast majority of American gun owners are law-abiding citizens, many of them trained in firearms safety and accuracy.
Still, there are times when life can induce great stress that results in negative behavior.
Generally well-adjusted and responsible gun owners could be going through a difficult time that may lead to bad decisions and cause alarm to loved ones or law enforcement.
Extreme risk protection orders exist to deal with troubled people who pose a potential risk if armed.
This guide will explain what you need to know about these orders and how they are implemented.
The basics of extreme risk protection orders
These orders (also known as “red flag” laws) enable law enforcement officers, family members, or members of a household to petition a court to remove firearms from the possession of an individual deemed a risk to themselves and potentially others.
It is also possible in some scenarios for coworkers or other members of a community to initiate an order petition.
A successful order will also prohibit that individual from purchasing any new firearms for as long as the action is in place.
Concerned parties seeking an order must present evidence of someone posing a major risk if they have access to firearms.
Having a mental illness isn’t viewed as enough evidence to enact an extreme risk protection order, but a temporary mental health crisis may be.
What can constitute viable evidence?
Concerned parties can look for examples of an unstable or aggressive mental state that may be grounds for an order.
These include substance abuse or addiction, violent or threatening behavior, any expression of intent to self-harm, or previous convictions involving firearms.
All but previous convictions can be hard to prove in court without multiple witnesses, medical reports, or law enforcement being previously alerted.
Text messages and/or emails can be submitted as evidence.
It is also permissible to submit signed statements from others regarding risky behavior in order to support a petition.
Extreme risk protection orders can currently be activated in 19 states: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Mexico, New Jersey, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington.
They also apply in the District of Columbia.
Extreme risk protection orders in practice
There is no cost to file an extreme risk protection order and they don’t require a lawyer on your side.
Extreme risk protection order forms can be obtained through the Superior Court Clerk’s office local to the filer’s address or where the individual the order is intended for resides.
The clerk will provide a hearing date and time when the form is complete, which is usually not longer than 14 days following the petition.
A same-day hearing may be possible if the filer requests a temporary order.
Orders typically last until the court hearing date, at which time both the filer and the individual causing the concern must appear.
From that point, however, the court may impose further firearm restrictions on the individual being filed against that could last up to a year and may be renewed after that period.
How an ERPO is carried out
An activated order is fulfilled in one of two ways.
A police officer may ask the individual to surrender their firearm(s) right away and present them with a copy of the order detailing the time and location of their hearing.
An order which is served in court gives the individual 48 hours to voluntarily hand their firearm(s) into the nearest police station, with an appointment to do so being necessary beforehand to avoid any misunderstandings when arriving.
A receipt will be provided proving the firearms have been surrendered and a copy of this receipt will go to court.
Abiding by and appealing an extreme risk protection order
Anyone who finds themselves the subject of an extreme risk protection order must abide by the temporary surrendering of their firearms and must not attempt to purchase a new one unless the result of their hearing allows it.
Any attempt to restock guns while under an order will fail anyway because all orders are entered into the National Instant Criminal Background Check System (NICS).
Once in court, a subject may present the case from their side.
Compelling counter arguments may see a judge dismiss the petition while less convincing ones are likely to see a one-year order enforced.
Subjects are able to present evidence to the court when the order comes up for review after that year.
This may cause the court to reassess the previous order and forego the imposition of another.
Appealing an order on grounds that it violates the Second Amendment or due process will not work as the process is well within the limits of the law and the Constitution.
The expiration of an extreme risk protection order will see the individual’s firearm(s) returned to them and the order removed from the NICS database, which allows them to purchase firearms once again.
General views and recent developments on extreme risk protection orders
July 2021 saw the United States Department of Justice (DOJ) state that these orders save lives while delivering a new model for states to follow in implementing them.
There’s a strong argument in favor of them in those terms.
Section 5 of the DOJ model details an important aspect of extreme risk protection orders, namely that there are criminal penalties for anyone attempting to file a fake petition, commit perjury, or file false statements under oath.
This goes at least some way in preventing the abuse of a measure that otherwise could be invoked at random to disarm gun owners who pose no threat to themselves or others.
It’s also interesting to note that, for the most part, both gun owners and non-owners are in favor of extreme risk protection orders according to one study by John Hopkins University.
No one wants harm to come to another human being if it can be prevented.
Stay safe and informed with Ammunition Depot
The Ammunition Depot Gun Owner’s Gazette offers a regularly updated resource to inform our readers about many aspects of gun ownership.
Our knowledgeable staff are also here to provide advice, so you can confidently and safely exercise your Second Amendment rights.