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Posted On May 10, 2020 Uncategorized
The tragic rise of mass shootings in the United States has resulted in numerous state measures to prevent potential threats from access to firearms and ammunition. One of the most notable initiatives is the extreme risk protection order (ERPO), an order which immediately restricts a person’s access to guns for a temporary period of time.
Also known as “red flag laws,” these orders serve to give family members and law enforcement the ability to disarm any seemingly dangerous individuals from potentially committing another tragedy.
As of May 2020, 19 states and the District of Columbia currently have red flag laws (ERPO) or similar measures in place.
The states with Extreme Risk Protection Order laws (red flag laws) on the books are: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and, of course, Washington D.C.
Two of these states have passed laws that go into effect in 2020. New Mexico’s law is effective as of May 2020 and Virginia’s law goes into effect on July 1, 2020.
While these states have Extreme Risk Protection Order laws, it’s important to note, however, that each state has separate, distinct criteria for these laws. This includes:
|State||Law?||Who Can Petition?||Temp. Orders||Final Orders||Statutes|
|California||Yes||Family, household members, and law enforcement||21 days||1 year||Cal. Penal Code § 18100|
|Colorado||Yes||Family, household members, and law enforcement||14 days||1 year||2019 CO HB 1177|
|Connecticut||Yes||One state’s attorney or any two police officers||14 days||1 year||Conn. Gen. Stat. § 29-38c|
|Delaware||Yes||Family, household members, and law enforcement||Usually 15 days, up to 45 days||1 year||Del. Code Ann. tit. 10, § 7701|
|Florida||Yes||Law enforcement||14 days||1 year||Fla. Stat. § 790.401|
|Hawaii||Yes||Family, household members, educators, medical professionals, coworkers, and law enforcement||14 days||1 year||2019 HI SB 1466|
|Illinois||Yes||Family, household members, and law enforcement||14 days||6 months||430 Ill. Comp. Stat. Ann. 67/1|
|Indiana||Yes||Law enforcement||14 days||Until terminated by petition and hearing, no earlier than 180 days||Ind. Code Ann. § 35-47-14-1|
|Maryland||Yes||Family, household members, law enforcement, and certain health workers||2 days ex parte, 7 days temporary (can be extended up to 6 months)||1 year||Md. Code Ann., Pub. Safety § 5-601|
|Massachusetts||Yes||Family, household members, and law enforcement||10 days||1 year||Mass. Gen. Laws, ch. 140 § 131R(b)|
|Nevada||Yes||Family, household members, and law enforcement||7 days||1 year||2019 Nevada AB 291|
|New Jersey||Yes||Family, household members, and law enforcement||10 days||Until terminated by petition and hearing||N.J. Stat. Ann. § 2C-58-20|
|New Mexico||Yes||(effective May 2020) Law enforcement||10 days||1 year||N.M. Senate Bill 5|
|New York||Yes||Family, household members, school administrators, and law enforcement||6 business days||1 year||NY CLS CPLR § 6340|
|Oregon||Yes||Family, household members, and law enforcement||21 days||1 year||Or. Rev. Stat. Ann. § 166.525|
|Vermont||Yes||State’s Attorneys or the Office of the Attorney General||14 days||6 months||Vt. Stat. Ann. tit. 13, § 4051|
|Virginia||Yes||(effective July 1, 2020) Attorney for Commonwealth or law enforcement||14 days||180 days (may be extended)||Va. Code Ann. 19.2-152.13 et seq|
|Washington||Yes||Family, household members, and law enforcement||14 days||1 year||Wash. Rev. Code Ann. § 7.94.010|
|Washington, D.C.||Yes||Family, household members, mental health professionals, and law enforcement||14 days||1 year||2017 DC B22-0588|
Generally, most states with red flag laws follow a similar process in order to file for a protection order.
The criteria and process for each step of the process may differ from state to state.
12 states and the District of Columbia allow the following individuals to petition for an ERPO.
Of these states, five allow individuals other than family and household members to petition. This includes:
Five states only allow law enforcement officers or other state officials with a similar capacity to petition: Florida, New Mexico, Rhode Island, Vermont and Virginia. Vermont has the most narrow scope when it comes to permissible individuals: an ERPO can only be filed by a State’s Attorney or the Office of the Attorney General.
An extreme risk protection order is only issued if the petitioner can provide enough evidence to show the person in question is at a high risk for committing acts of violence. Because the ERPO is a civil action, the standards of proof may vary from state to state. Generally, this falls into three categories:
It is important to note that the standards of proof for an ex parte order are typically more lenient than those for a final order. This makes it easier for a petitioner to get an emergency order when they believe danger to be imminent.
10 states and the District of Columbia only require probable, reasonable, or good cause in order to secure an ex parte order, while 4 states require a preponderance of the evidence. Only Oregon requires clear and convincing evidence to secure an ex parte order. However, this is because ex parte orders that are not contested by the respondent are automatically upgraded to a final order – the only ERPO state to do so.
Regarding final orders, the standards of proof are significantly higher. 11 states require clear and convincing evidence to issue a final order, and only 5 require a lesser preponderance of the evidence: Hawaii, Massachusetts, New Jersey, and the District of Columbia.
Ex parte orders can last anywhere from 6 days to 21 days depending on the state, but many of them commonly last for 14 days.
Maryland is the largest outlier in this time period – an ex parte order only lasts 1-2 days, with the expectation that the respondent can schedule a hearing with a sitting district court judge within that time period.
Final orders usually last 1 year, but there are a few notable exceptions. Illinois and Vermont have final orders that may last up to 6 months, and New Jersey’s final order actually lasts indefinitely – until the respondent provides a preponderance of the evidence that they are no longer a danger.
Connecticut and Indiana are notably left out in the above time periods and statistics for a very good reason: while they do not have red flag laws in the traditional sense, they do have what are called firearms removal laws that act in a similar way.
Both of these laws do not allow family or household members to petition for the removal of a firearm. Rather, they allow law enforcement or a state’s attorney to file for a seizure of firearm or ammunition from a person that they deem is high-risk or dangerous. Depending on the circumstances, law enforcement may also request a search and seizure warrant to remove any firearms or ammunition from the premises of the respondent.
Although red flag laws rely on concrete evidence in order to enforce the removal of firearms, there may be other traits that may indicate that an individual or loved one may pose an imminent danger to others. Some warning signs include:
Although red flag laws may aide in curbing any imminent danger that may be present in an individual, observing any warning signs and reporting them to the proper authorities can also be an invaluable way to prevent further tragedies from occurring in the United States.
Related: Read our analysis of firearm restrictions in domestic violence cases.