In many instances of gun violence, family members or friends noticed warning signs that shooters were at risk of harming themselves or others. In response to these tragedies, states have begun enacting lifesaving tools that can prevent gun tragedies before they occur. Extreme risk laws empower families, household members, or law enforcement officers to temporarily remove a person’s access to firearms before they commit violence.

Background

Like many other high-profile mass shooters, shooters in the Parkland, FL, and Isla Vista, CA, attacks displayed numerous warning signs and threatening behaviors before their attacks. Although family members of both of these shooters had contacted law enforcement, there was no clear process to restrict their access to guns, even temporarily.

ERPO Procedures by State PDF

Extreme risk laws create this process by allowing families, household members, or law enforcement officers to petition a court directly for an extreme risk protection order (ERPO) which temporarily restricts a person’s access to guns. This vital tool saves lives by allowing the people who are most likely to notice when a loved one or community member becomes a danger to take concrete steps to disarm them.

Research suggests that there are warning signs observable to others before most acts of violence.

  • Up to 80% of people considering suicide give some sign of their intentions.1
  • An FBI study of the pre-attack behaviors of active shooters found that the average shooter displayed four to five observable and concerning behaviors over time, often related to the shooter’s mental health, problematic interpersonal interactions, or other signs of violent intentions.2

Extreme risk laws save lives from suicide by creating a tool to proactively intervene and keep those at risk of hurting themselves from accessing the most lethal means of suicide during desperate periods. Narrower extreme risk laws in Connecticut and Indiana have been shown to be extremely effective at preventing firearm suicides.

  • For every 10 to 20 firearm removals under Connecticut’s and Indiana’s extreme risk laws, approximately one life was saved through an averted suicide.3
  • Similarly, Connecticut’s and Indiana’s extreme risk laws have been shown to reduce firearm suicide rates in these states by 14% and 7.5%, respectively.4
Extreme Risk Laws Toolkit

Properly implemented and utilized extreme risk laws may also help to prevent mass shootings and gun homicides. To date, states are already using these laws to temporarily disarm individuals that have made significant and credible threats of violence.

  • A case study of the use of California’s extreme risk law found at least 21 cases in which ERPOs were used to disarm people who threatened mass shootings, including a car dealership employee who threatened to shoot up his workplace and a high school student who threaten to commit a mass shooting at a school assembly. At the time this case study was published, none of the threatened shootings had occurred, and no other homicides or suicides by persons subject to the orders were identified by the researchers.5
  • At least four individuals who made threats of violence against schools were disarmed in just the first three months after Maryland implemented its extreme risk law.6
  • Similarly, extreme risk laws have been used to remove firearms from a Florida resident who said that murder would be “fun and addicting”7 and a Vermont resident who kept a diary titled “Journal of an Active Shooter.”8

Summary of Federal Law

Under federal law, a person suffering from mental illness is not prohibited from purchasing and possessing a gun unless he or she has been formally, and involuntarily, committed to a mental institution, found not guilty by reason of insanity, or undergone some other formalized adjudicative proceeding regarding his or her mental illness.9

Similarly, a person who has committed a violent act towards others is not prohibited from possessing guns under federal law unless he or she is the subject of a domestic violence restraining order, has been convicted of a felony, or has been convicted of a domestic violence misdemeanor.10

Summary of State Law

Most states have laws mirroring the federal prohibitions on gun possession by seriously mentally ill individuals. (For more information about these state laws, visit our policy page on Categories of Prohibited People). These laws allow states to enforce prohibitions on gun possession by mentally ill individuals utilizing their own law enforcement agencies and criminal justice systems. Similar to federal law, however, these laws do not provide a process for law enforcement or family members to disarm a dangerous individual who has not been adjudicated mentally ill or committed to a mental institution.

Similarly, state domestic violence laws allow a victim to seek a court order to prevent further acts of abuse. These laws have been enacted in all 50 states. Research has shown the laws to be effective, and courts have upheld them against various constitutional challenges. Because every state has a system for issuing domestic violence restraining and protective orders, and due process protections are built into those systems, ERPO laws draw heavily from the domestic violence protective order systems in their states. Domestic violence restraining orders, however, are issued to protect specified individuals and to restrain the aggressor from harming that specific person. ERPO laws, on the other hand, may be used to prevent harm when the dangerous person is suicidal, has not made a threat against a specific individual, or when they may be a danger to others outside the family.

Courts in Connecticut, Indiana, and Florida that have heard challenges to extreme risk protection order or risk-warrant laws have held that the laws do not violate the due process rights of respondents and/or are constitutional under the Second Amendment. To date, no court has invalidated an extreme risk protection order or risk-warrant law.11

Seventeen states and the District of Columbia currently have ERPO laws. Twelve of these states and DC allow family or household members as well as law enforcement to submit a petition for an ERPO, including Maryland and DC which also allow mental health providers to petition; New York which also allows school administrators to petition; and Hawaii which allows medical professionals, coworkers, and educators to petition. Three states limit the category of petitioners to law enforcement only. Two states (Connecticut and Indiana) have risk-based firearm removal laws that are similar to law enforcement-only ERPOs. The two risk based removal laws are discussed separately from other ERPOS in the Firearm Removal Laws Section below.

The details of how orders are issued vary from state to state. In all states, orders can be issued ex parte (without notice to the respondent) or after notice and a hearing (referred to below as final orders). Ex Parte orders differ from final orders in duration and what must be proven to obtain an order. Final orders last up to a year (up to six months in Illinois and Vermont) and can be terminated early and renewed. Other aspects of ERPOs such as how guns are relinquished by persons subject to the order or the types of evidence that can or must be considered to obtain an order generally do not differ between ex parte and final orders. Details about the specific ERPO procedures in each state are outlined and discussed below, but for shorthand reference, see our ERPO Procedures by State PDF.

Extreme Risk Protection Order Petitions

Who Can Petition for an Order?

Twelve states and the District of Columbia have enacted comprehensive laws allowing family or household members, in addition to law enforcement officers, to petition a court to keep guns away from a dangerous person in the throes of a crisis. These laws closely mirror the domestic violence restraining order processes in their respective states. Some of these states also allow certain other individuals to petition.

In order to prevent individuals from abusing this process, many of these states have expressly made it a crime to knowingly file a false or intentionally harassing petition.12 Other states have limited the ability to petition for an ERPO to law enforcement officers or state attorneys.

Jurisdictions that Allow Family or Household Members to Petition
Jurisdictions with an * do not allow dating partners to petition if they do not reside, or have not resided, with a respondent.

California*13
Colorado14
Delaware (Only law enforcement can petition for ex parte orders)15
District of Columbia16
Hawaii (effective January 1, 2020)17
Illinois18
Maryland19
Massachusetts20
Nevada (effective January 1, 2020)21
New Jersey22
New York23
Oregon24
Washington25

 

Jurisdictions that Allow Individuals Other than Family to Petition
District of Columbia (Mental health professionals)26
Hawaii (Medical professionals, educators, and coworkers)27
Maryland (Certain categories of mental and other health workers)28
New York (School administrators)29

States that Only Allow Law Enforcement Officers or Other State Officials to Petition
Florida30
Rhode Island31
Vermont32

Evidence Showing Dangerousness

Extreme risk protection orders are designed to temporarily keep guns away from people who are at a high risk of committing violence. Accordingly, these laws are often referred to as “risk-based removal” laws. To determine a person’s level of risk, states often require or authorize courts to consider certain types of evidence that research has demonstrated indicates a person is at an elevated risk of committing violence.33

For example, in California, when filing a petition for an order, the court must consider the following evidence:34

  • Threats or acts of violence by the respondent towards self or another within the past six months
  • A violation of a domestic violence emergency protective order that is in effect at the time the court is considering the petition
  • A violation of an unexpired domestic violence protective order within the past six months
  • Any conviction for any crime that prohibits purchase and possession of firearms (Even if a person is prohibited from purchasing or possessing firearms due to a criminal conviction, an ERPO may be necessary to require the individual to relinquish his or her firearms. Read more about disarming dangerous people in our report, Keeping Illegal Guns Out of Dangerous Hands)
  • A pattern of violent acts or threats within the past 12 months

California courts are also authorized, but not required, to consider any other evidence that is indicative of an increased risk for violence, such as:35

  • Unlawful and reckless use, display, or brandishing of a firearm
  • Use or threats of physical force against another person
  • Prior arrests for felonies
  • History of violations of domestic violence protective orders
  • Police reports and conviction records of criminal offenses within the past six months that involve controlled substances or alcohol, or documentary evidence of ongoing abuse of controlled substances or alcohol
  • Recent acquisition of firearms, ammunition, or other deadly weapons

Number, Types, and Locations of Firearms

ERPO petitioners are also generally required to include information they have about firearms, and in some cases, ammunition, the respondent possesses.36 For example, Washington requires a petition to identify the number, types, and locations of any firearms the petitioner believes to be in the respondent’s current ownership, possession, custody, or control.37 By including this information in the petition, if a court issues an order and the respondent fails to relinquish the identified firearms, the court may issue a search warrant allowing law enforcement to search the respondent’s property for these firearms. For further information about the use of warrants in ERPOs, see the Warrants section below.

Types of Extreme Risk Protection Orders

Like most protective and restraining orders, courts may issue emergency and non-emergency ERPOs. Ex parte orders are emergency orders that may be issued by a court when the threat of harm is imminent. It is not required that respondents receive notice of an ex parte hearing. Accordingly, these orders last for a short period of time during which a hearing for a final order is scheduled and the respondent is served with notice to appear. Because of the emergency nature of ex parte orders and their limited duration, the standard of proof required to obtain the order is usually lower than that for final orders.

Final orders are issued after notice is given to the respondent and a hearing is held where the respondent has the opportunity to contest the order. In most states, the final order lasts for up to a year.

Ex Parte Orders

Standard of Proof for Ex Parte Orders

For a court to issue an extreme risk protection order, the petitioner must prove that there is enough credible evidence to believe the respondent is dangerous. This is known as the “standard of proof.” In criminal proceedings, the standard of proof is guilty “beyond a reasonable doubt.” ERPOs are civil proceedings, however, and the standards of proof are “clear and convincing” (highest and hardest to meet), “preponderance” (meaning more likely than not), and reasonable, probable, or good cause (a reasonable person would believe the respondent poses a danger).

For emergency orders that can be issued ex parte without notice to the respondent, the standard of proof is often lower than for final orders to make it easier for a petitioner to obtain the order and prevent violence in an emergency situation. The lower standard of proof for an ex parte order is justified by the fact that the ex parte order only lasts for a short period of time before the court holds a hearing at which the petitioner must meet the higher standard required for a final order.

The standards of proof for state ex parte orders are listed below.

An asterisk indicates that the alleged danger must be imminent.

Probable/Reasonable/Good Cause
California* (Temporary order, law enforcement only)38
District of Columbia
Florida*39
Hawaii*40
Illinois*41
Maryland*42
Massachusetts43
New Jersey*44
New York45
Rhode Island*46
Washington*47

Substantial Likelihood
California* (Family and law enforcement)48

Preponderance of the Evidence
Colorado*49
Delaware*50
Nevada*51
Vermont*52

Clear and Convincing Evidence
Oregon* (This is an unusually high standard of proof for ex parte orders. However, Oregon’s orders become final automatically if they are unchallenged by the respondent, and this higher standard fits with other states’ requirements for final orders.)

Duration of Ex Parte Orders

The ex parte process allows a court to quickly issue an order, but because the restrained individual is not given notice or an opportunity to contest it, the order may only last for a short period of time during which the court must set a date for a full hearing that gives the respondent an opportunity to contest the order. The duration of ex parte orders varies by state.

21 Days
California53
Oregon (After an ex parte order is issued, the respondent has 30 days to request a hearing to contest the order. If the respondent requests a hearing, one must be held within 21 days from the date the order was issued.)54

15 Days
Delaware (Can be extended up to 45 days by a judge if necessary)55

14 Days
Colorado56
District of Columbia57
Florida58
Hawaii59
Illinois60
Rhode Island61
Vermont62
Washington63

10 Days
New Jersey64
Massachusetts65

7 Days

Nevada66

6 Days
New York67

1-2 Days
Maryland (Hearing must be on the first or second day on which a district court judge is sitting)68

Final Orders

Standard of Proof for Final Orders

The standard of proof for final orders is nearly always a higher standard than for ex parte, emergency orders because when a final order is issued, a person will lose rights for a longer period of time.

Preponderance of the Evidence
District of Columbia69
Hawaii70
Massachusetts71
New Jersey72
Washington73

Clear and Convincing Evidence
California74
Colorado75
Delaware76
Florida77
Illinois78
Maryland79
Nevada80
New York81
Oregon82
Rhode Island83
Vermont84

Duration of Final Orders

In most states, a final order lasts for up to a year, at which point it can either be renewed or allowed to expire. There are, however, some exceptions to this. Two states, Illinois and Vermont, have final orders that last up to six months. New Jersey’s final order lasts indefinitely, until the respondent demonstrates by a preponderance of the evidence that he or she is no longer a danger at a hearing.

Order Renewal and Termination

Final extreme risk protection orders may be renewed. To renew an order, the petitioner must request a hearing and prove that the respondent still poses a risk of harm to the safety of him or herself, or others, by possessing firearms. At the renewal hearing, the petitioner generally must meet the same burden of proof using the same categories of evidence he or she used to obtain the initial final order.

Individuals subject to extreme risk protection orders may also request a hearing to prove they no longer pose the risk that initially justified the order. Generally, respondents may request one hearing during the effective period of the order at which they bear the burden of proving, by the same standard used to obtain the order, that they no longer pose the risk of harm.

Disarming People Subject to Extreme Risk Protection Orders

Relinquishment Procedures

A critical component of any law that seeks to disarm a dangerous person is the process that requires the individual to relinquish his or her guns.

In California, when a court issues an order, the respondent is required to immediately relinquish all firearms and ammunition. If a law enforcement officer serves an order that indicates that the respondent possesses any firearms or ammunition, the officer must request that the respondent turn over the firearms and ammunition to the control of the requesting officer.85 If a law enforcement officer is unable to personally serve the order, the respondent is required to relinquish his or her guns and ammunition to the local law enforcement agency within 24 hours of being served the order. In lieu of transferring his or her guns to a law enforcement agency, the respondent may sell or transfer all firearms and ammunition to a licensed firearms dealer. The law enforcement officer or licensed firearms dealer taking possession of any firearms or ammunition must issue a receipt to the person surrendering the firearms or ammunition. Within 48 hours after being served the order, the respondent must file the receipt with the court that issued the order and with the law enforcement agency that served the order.86

Other states with ERPO laws also have similar provisions requiring people subject to extreme risk protection orders to relinquish their firearms and, in some cases, licenses to possess or carry firearms.87

Warrants

Most extreme risk protection orders direct the respondent to surrender his or her firearms to law enforcement. This makes the removal of firearms dependent on the respondent’s cooperation. In order to address this issue, many states incorporate a process for law enforcement to obtain a warrant for the seizure of firearms possessed by the respondent along with an ERPO. These warrants may be issued at the same time as the ERPO,88 or only if there is probable cause to believe that the respondent has not surrendered all weapons after service of the ERPO.

States that Issue Warrants at the Same Time as an ERPO
Delaware89
District of Columbia
Illinois90
New Jersey91
New York92
Rhode Island93

States that Issue Warrants Only Upon Allegation that Respondent Has Not Surrendered All Firearms
California94
Colorado95
Florida96
Hawaii97
Maryland98
Nevada99
Washington100

Firearm Removal Laws

Firearm removal laws are similar to extreme risk protection orders in that they allow certain categories of people to obtain court orders removing guns from dangerous people. These laws differ from extreme risk protection orders in that the orders may only be used to remove firearms already in the possession of a respondent whereas extreme risk protection orders may be obtained against individuals who do not possess firearms.

Connecticut

In 1999, Connecticut enacted a firearms removal law. The law allows a state’s attorney, or any two police officers, to file a complaint for seizure of a firearm or ammunition when they have probable cause to believe that:

  • A person poses a risk of imminent personal injury to himself, herself or others
  • The person possesses one or more firearms
  • The firearm is within or upon any place, thing or person101

Probable cause may be based on evidence similar to the categories of evidence courts must review when reviewing petitions for ex parte GVROs and ERPOS. The Connecticut law also allows a court to issue a search and seizure warrant for firearms or ammunition possessed by the dangerous individual.102 The court must hold a hearing no later than 14 days after execution of the warrant to determine whether the seized firearms and ammunition should be returned to the person named in the warrant.103 If the court finds by clear and convincing evidence that the person poses a risk of imminent personal injury to himself or herself or others, it may order the state to continue to hold the firearms and ammunition for up to one year.104

Although Connecticut’s law could not be used to prevent a person who does not possess firearms from acquiring them in the future, a person whose guns have been removed pursuant to the state’s removal law is prohibited from purchasing new firearms for the duration of the order.105

Indiana

Indiana also has a law similar to Connecticut’s that allows a law enforcement officer to remove firearms from a dangerous person in possession of a firearm.106

Under Indiana law, a “dangerous individual” is defined to include a person who:

  • Presents an imminent risk of personal injury to himself, herself or another person; or
  • It is probable that the individual will present a risk of personal injury to himself, herself or another person in the future and he or she:
    • Has a mental illness that may be controlled by medication, and has not demonstrated a pattern of voluntarily and consistently taking the individual’s medication while not under supervision; or
    • Is the subject of documented evidence that would give rise to a reasonable belief that he or she has a propensity for violent or suicidal conduct.107

A circuit or superior court may issue a warrant to search for and seize a firearm in the possession of a “dangerous individual” if:

  • A law enforcement officer provides the court a sworn affidavit describing the facts that have led the officer to believe the individual is dangerous and in possession of a firearm. The affidavit must also describe the officer’s interactions and conversations with:
    • The individual who is alleged to be dangerous; or
    • Another individual, if the law enforcement officer believes that information obtained from this individual is credible and reliable;
  • The affidavit specifically describes the location of the firearm; and
  • The circuit or superior court determines that probable cause exists to believe that the individual is dangerous and in possession of a firearm.108

Law enforcement officers may seize firearms from any individual whom the law enforcement officer believes to be dangerous without obtaining a warrant. In such an instance, the officer must submit to the court having jurisdiction over the individual an affidavit describing the basis for the officer’s belief that the individual is dangerous within 48-hours of the seizure.109

If the court finds that probable cause exists to believe the individual is dangerous, the court shall order the law enforcement agency having custody of the firearm to retain the firearm.110 Following the seizure of firearms with or without a warrant, a law enforcement agency must file a search warrant return with the court setting forth the quantity  and type of each firearm seized.111 If the court finds that there is no such probable cause, the court shall order the law enforcement agency having custody of the firearm to return the firearm to the individual.112

After the filing of a search warrant return or an affidavit following a warrantless search, the court shall conduct a hearing as soon as possible but no later than 14 days following the filing of the return or affidavit.113 At the hearing, the state must prove by clear and convincing evidence that the individual is dangerous as defined.

If the court determines that the state has met its burden of proof, the court shall issue a written order:

  • ordering the law enforcement agency having custody of the seized firearm to retain the firearm;
  • ordering the individual’s license to carry a handgun, if applicable, suspended; and
  • prohibiting the individual from possessing, owning, purchasing, or receiving a firearm.

The court must also determine whether the individual should be referred to further proceedings to consider whether the individual should be involuntarily detained or committed.

If a court orders a law enforcement agency to retain individual’s firearm, the individual may petition the court for a determination that he or she is no longer dangerous at least 180 days after the initial ruling.114 The petitioner must prove by a preponderance of the evidence that he or she is no longer dangerous.115

Prior to one year from the date the order is issued, the state must prove by clear and convincing evidence that the individual is still dangerous and, if the court finds the state has met its burden of proof, the order will be continued and the respondent must wait 180 days to petition to terminate the order as described above.116

If the court has ordered the law enforcement agency to retain possession of the firearm, the respondent may petition the court to require the agency to transfer the firearm(s) to a “responsible third party” or a federally licensed gun dealer.117 A “responsible third party”118 is someone who:

  • does not cohabitate with the person found to be dangerous in the hearing;
  • is a proper person (as defined under section 35-47-1-7) who may lawfully possess a firearm; and
  • is willing to enter into a written court agreement to accept the transfer of the firearm as a responsible third party.

Both the Connecticut and Indiana laws have been upheld by state courts as constitutional119 under the Second Amendment.120

Illinois

In Illinois, the Firearms Seizure Act121 allows any person to bring a complaint before a circuit court that a person possessing a firearm(s) has threatened to use the firearm(s) illegally. If the court is “satisfied that there is any danger of such illegal use of firearms,” it must issue a warrant to apprehend the person for appearance before the court, and authorize the seizure of any firearm in the person’s possession. The court must order any firearm taken from the person to be kept by the state for safekeeping for a stated period of time no longer than one year. The firearm(s) must be returned to the person at the end of the stated period. The court may enter judgment against a person who files a complaint maliciously and without probable cause.

Because the Firearms Seizure Act does not require an individual to relinquish his or her Firearm Owners Identification (FOID) card which is required to purchase or possess a firearm in the state, (Illinois has a separate law that requires this, see below), a person whose firearms have been removed pursuant to the Act may not prohibited from acquiring new ones.

License Revocation Procedures

Three states—Illinois, Massachusetts, and New York—require a license to possess firearms. Each state has a procedure to revoke a person’s firearm license if the individual poses a danger to themselves, others, or the general public.

Illinois

In addition to its Firearms Seizure Act discussed in the preceding section, in Illinois, a person is prohibited from possessing a firearm if his or her mental condition (meaning a state of mind manifested by violent, suicidal, threatening, or assaultive behavior) is of such a nature that it poses a clear and present danger to self, others, or the community.122 A person poses a clear and present danger if he or she (1) communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to self or others or (2) demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions, or other behavior.123

The individuals listed below are required to report to the Department of State Police (DSP) within 24 hours when they determine a person poses a clear and present danger to himself, herself, or others.

  • Law enforcement officials and officers
  • School administrators
  • A physician, clinical psychologist, or qualified examiner (must report to the Department of Human Services which is required to transfer the information to DSP)124

If a person is determined by DSP to pose a clear and present danger to self, others, or the community, it may revoke the individuals FOID card.125 Once a person’s FOID card has been revoked, he or she is required to surrender his or her FOID card to the local law enforcement agency where the person resides. The local law enforcement agency must provide the person with a receipt and transfer the FOID card to the DSP.126

The individual must also complete a Firearm Disposition Record form which must disclose the make, model, and serial number of each firearm owned by the person, the location where each firearm will be maintained during the prohibited term, and if any firearm will be transferred to another person, the name, address, and FOID card number of the transferee. A copy of this form must be provided to the person whose FOID card has been revoked and to the DSP.127

A violation of these requirements is a misdemeanor. If a person who receives a notice of revocation fails to comply with these requirements, the local law enforcement agency may petition the circuit court to issue a warrant to search for and seize the FOID card and firearms in the possession of that person.128

On April 22, 2018, an individual whose FOID card had been revoked by DSP for posing a clear and present danger shot and killed four people at a Waffle House in Nashville, Tennessee. Pursuant to Illinois law, the shooter turned his firearms over to his father, who illegally returned the firearms to his son.129

Massachusetts

In order to purchase a long gun in Massachusetts, an individual must have either a License to Carry or a Firearms Identification Card (FID). For handgun purchases, anyone without a License to Carry must possess an FID as well as a purchase permit.130

If the licensing authority deems an applicant for a FID “unsuitable,” it must file a petition with a court and, at a hearing, prove by a preponderance of reliable, articulable, and credible evidence that the applicant has behaved in a way to suggest he or she could potentially create a risk to public safety.131 The licensing authority may also deny or revoke a License to Carry if reliable and credible evidence exists to believe the applicant poses a public safety risk. It is not necessary for the licensing authority to petition a court to deny or revoke a License to Carry, though the applicant may request a court hearing to contest the denial.132

When a person receives a notice of revocation, he or she must “without delay” deliver or surrender all firearms and ammunition in his or her possession to the licensing authority where he or she resides.133 After taking possession, the licensing authority may transfer possession of any firearms and ammunition to a licensed firearms dealer for storage purposes. The dealer must issue a receipt to the prohibited person, who is liable to the dealer for reasonable storage charges. Through the dealer, the prohibited person may then transfer any relinquished firearms to a person lawfully permitted to purchase or take possession of the weapon.134

New York

New York requires individuals wishing to possess a handgun to obtain a license.135 The licensing authority is required to issue an order suspending or revoking the individual’s license when it receives a report regarding a mental health patient who may be a danger to himself, herself, or others.136 A person whose license has been revoked is entitled to a court hearing.137

Whenever a person’s license is suspended or revoked, that person must surrender his or her license to the appropriate licensing official. In addition, any and all firearms possessed by the person must be surrendered to an appropriate law enforcement agency. If these firearms are not surrendered, law enforcement must remove all such weapons and declare them a nuisance.138

Key Legislative Elements

Giffords Law Center has drafted model ERPO legislation. Please contact us directly for a copy of our model law. Any ERPO legislation should include:

  • Immediate ERPOs: The court must consider any petition for an ERPO within 24 hours and should be able to issue an ERPO immediately to prevent the harm that might result if the person continues to have access to firearms. When determining whether to issue an ERPO before notice to the person, the court must consider the risk that he or she may attempt to conceal guns that are already in his or her possession.
  • Hearing and Duration: An ERPO issued without a hearing should only be valid until the court can hold a hearing where the respondent has the opportunity to participate. At the hearing, the court should be able to issue an ERPO for a longer period, such as one year. The petitioner should be able to ask the court to renew the order.
  • Surrender of Guns: A person who is served with an ERPO must be required to immediately surrender all firearms in his or her possession. Law enforcement must provide the person with a receipt and take these weapons into custody for the duration of the ERPO. The law may allow the restrained person to immediately surrender all firearms and ammunition to law enforcement or sell them to a licensed dealer. In either circumstance, the restrained person must obtain a receipt, which must be filed with law enforcement and the court that issued the order.
  • Search Warrant: If a person subject to an ERPO does not file a receipt demonstrating that he or she has relinquished firearms believed to be in his or her possession, the court should be required to issue a search and seizure warrant upon a finding of probable cause that the person possesses firearms.
  • Fee Waivers: No fees should be charged to file or serve an ERPO. In many states, fees for filing and service of domestic violence protection orders are not required.
  • Protections for Co-habitants: The law should provide that a gun may not be seized pursuant to a warrant if the gun is owned by someone other than the person subject to the ERPO and is stored so that he or she does not have access to it. Also, a gun safe owned solely by someone else may not be searched.
  • Notice to Law Enforcement: Law enforcement should be notified when a petition for an ERPO is filed, so that law enforcement can determine whether the dangerous person already has a gun. Law enforcement may also have other relevant evidence that can assist the court in determining whether to issue an ERPO.
  • Penalty for False Petitions: The law should impose a criminal penalty on any person who files a petition for an ERPO that contains statements the person knows are false.
  • Reporting for Background Checks: Upon issuing an ERPO, the court must ensure that records identifying the person subject to the ERPO who is restrained from having a gun are promptly submitted to the background check system. This requirement will help ensure that the person cannot purchase any new guns.
  • Ammunition: Each provision of the law should apply to ammunition as well as firearms.
Notes
  1. “Suicide,” Mental Health America, http://www.mentalhealthamerica.net/suicide. ⤴︎
  2. James Silver, Andre Simons, and Sarah Craun, “A Study of the Pre-Attack Behaviors of Active Shooters in the United States,” Federal Bureau of Investigation, June 2018, https://www.fbi.gov/file-repository/pre-attack-behaviors-of-active-shooters-in-us-2000-2013.pdf/view. ⤴︎
  3. Jeffrey W. Swanson, et al., “Implementation and Effectiveness of Connecticut’s Risk–based Gun Removal Law: Does it Prevent Suicides.” Law & Contemporary Problems 80, (2017): 179–208; Jeffrey W. Swanson, et al., “Criminal Justice and Suicide Outcomes with Indiana’s Risk-Based Gun Seizure Law.” The Journal of the American Academy of Psychiatry and the Law, (2019). ⤴︎
  4. Aaron J. Kivisto and Peter Lee Phalen, “Effects of Risk–based Firearm Seizure Laws in Connecticut and Indiana on Suicide Rates, 1981–2015,” Psychiatric Services 69, no. 8 (2018): 855–862. ⤴︎
  5. Garen J. Wintemute, et al., “Extreme Risk Protection Orders Intended to Prevent Mass Shootings: a Case Series,” Annals of Internal Medicine (2019). ⤴︎
  6. Ovetta Wiggins, “Red–flag Law in Maryland Led to Gun Seizures From 148 People in the First Three Months,” The Washington Post, January 15, 2019, https://wapo.st/2KfXwwh. ⤴︎
  7. Jessica Lipscomb, “Florida’s Post-Parkland ‘Red Flag’ Law Has Taken Guns From Dozens of Dangerous People,” Miami New Times, August 7, 2018, https://bit.ly/2ORW56U. ⤴︎
  8. Melissa Korn, “Vermont Police Thwart Potential School Shooting,” The Wall Street Journal, February 16, 2018, https://on.wsj.com/2HRpvAZ. ⤴︎
  9. 18 U.S.C. § 922(d)(4); See 27 C.F.R. § 478.11 (Defines “adjudicated as a mental defective” and “committed to a mental institution.”). ⤴︎
  10. 18 U.S.C. § 922(d)(9). ⤴︎
  11. Hope v. State, 163 Conn. App. 36, 133 A.3d 519 (2016); Redington v. Indiana, 992 N.E.2d 823 (Ind. Ct. App. 2013), trans. denied (rejecting challenges based on the Second Amendment, the Indiana right to bear arms, the takings clause of the US Constitution, and vagueness). The Indiana Supreme Court subsequently refused to hear an appeal of the case. 997 N.E.2d 356 (Nov. 7, 2013); https://www.1dca.org/content/download/537544/6066635/file/183938_1284_09252019_09405740_i.pdf. ⤴︎
  12. See, e.g., Cal. Penal Code § 18200; 430 Ill. Comp. Stat 67/35(c) and 430 Ill. Comp. Stat 67/40(c); Mass. Gen. Laws, ch. 140, Section 131V; Or. Rev. Stat. Ann. § 166.543(3); Rev. Code Wash. § 7.94.120(1). ⤴︎
  13. Cal. Penal Code §§ 18150. ⤴︎
  14. CO HB 1177. ⤴︎
  15. Del. Code Ann. tit. 10, § 7701, 7704. ⤴︎
  16. D.C. Code § 7-2510.01. ⤴︎
  17. Haw. Rev. Stat. Ann. § 134-61. ⤴︎
  18. 2017 IL HB 2354, 430 Ill. Comp. Stat 67/35, 430 Ill. Comp. Stat 67/40. ⤴︎
  19. Md. Code Ann., Pub. Safety § 5-601(E)(2). ⤴︎
  20. Mass. Gen. Laws, ch. 140 § § 121, 131R. ⤴︎
  21. 2019 NV AB 291. ⤴︎
  22. N.J. Stat. Ann. § 2C:58-21 et seq. ⤴︎
  23. NY CLS CPLR § 6340 et seq. ⤴︎
  24. Or. Rev. Stat. Ann. §§ 166.527. ⤴︎
  25. Rev. Code Wash. §§ 7.94.030(1) and 7.94.020(2). ⤴︎
  26. 2017 DC B 1068, Act 629 (effective until April 30, 2019); 2017 DC B22-0588, Act A22-0620 (projected law date June 6, 2019). ⤴︎
  27. 2019 HI SB 1466. ⤴︎
  28. Md. Code Ann., Pub. Safety § 5-601(E)(2). ⤴︎
  29. 2019 NY SB 2451/ AB 2689. ⤴︎
  30. Fla. Stat. § 790.401(1)(a), (2)(a). ⤴︎
  31. R.I. Gen. Laws § 8-8.3-1, et seq. ⤴︎
  32. Vt. Stat. Ann. tit. 13, § 4051, et seq. ⤴︎
  33. See Daniel W. Webster and Jon S. Vernick, “Keeping Firearms from Drug and Alcohol Abusers,” 15 Injury Prevention, no. 6 (2009): 425–427; Sharon M. Boles and Karen Miotto, “Substance Abuse and Violence: A Review of the Literature,” 8 Aggression and Violent Behavior, no. 2 (2003): 155–174; Philip J. Cook, Jens Ludwig, and Anthony A. Braga, “Criminal Records of Homicide Offenders,”294  JAMA, no. 5 (2005): 598–601; Garen J. Wintemute, Mona A. Wright, Christiana M. Drake, and James J. Beaumont, “Subsequent Criminal Activity Among Violent Misdemeanants who Seek to Purchase Handguns: Risk Factors and Effectiveness of Denying Handgun Purchase,” 285 JAMA, no. 8 (2001): 1019–1026. ⤴︎
  34. Cal. Pen Code § 18155(b)(1). ⤴︎
  35. Cal. Pen Code § 18155(b)(2). ⤴︎
  36. See, e.g. Cal. Pen Code § 18107; Del. Code Ann. tit. 10, §§ 7703(a), 7704(a); 2017 DC B 1068, Act 629 (effective until April 30, 2019); 2017 DC B22-0588, Act A22-0620 (projected law date June 6, 2019); Fla. Stat. § 790.401(2)(e); Haw. Rev. Stat. Ann. § 134-63(b); 430 Ill. Comp. Stat 67/35(a), 430 Ill. Comp. Stat 67/40(a); Md. Code Ann., Pub. Safety §§ 5-602(a), 5-603(A); Mass. Gen. Laws, ch. 140, section 131R(b); N.J. Stat. Ann. § C.2C:58-23(b); R.I. Gen. Laws § 8-8.3-3(f); Vt. Stat. Ann. tit. 13, § 4053(c)(3)(B); Rev. Code Wash. § 7.94.030(3)(b). ⤴︎
  37. Rev. Code Wash. § 7.94.030(3)(b). ⤴︎
  38. Cal. Penal Code § 18125. ⤴︎
  39. Fla. Stat. § 790.401 (4)(c). ⤴︎
  40. Haw. Rev. Stat. Ann. § 134-64(f). ⤴︎
  41. 430 Ill. Comp. Stat. Ann. 67/35 (f). ⤴︎
  42. Md. Code Ann., Pub. Safety § 5-603(a)(4). ⤴︎
  43. Mass. Gen. Laws, ch. 140 § 131T(a). ⤴︎
  44. N.J. Stat. Ann. § 2C:58-23(e). ⤴︎
  45. NY CLS CPLR § 6342(a). ⤴︎
  46. R.I. Gen. Laws §§ 8-8.3-4(a). ⤴︎
  47. Wash. Rev. Code Ann. § 7.94.050(3). ⤴︎
  48. Cal. Penal Code § 18150 (b). ⤴︎
  49. 2019 CO HB 1177. ⤴︎
  50. Del. Code Ann. tit. 10, § 7703(d). ⤴︎
  51. 2019 NV AB 291. ⤴︎
  52. Vt. Stat. Ann. tit. 13, § 4054(b)(1). ⤴︎
  53. Cal. Pen Code § 18155(c). ⤴︎
  54. Or. Rev. Stat. Ann. § 166.527(9). ⤴︎
  55. Del. Code Ann. tit. 10, § 7703(a), (f). ⤴︎
  56. CO HB 1177. ⤴︎
  57. 2017 DC B22-0588, Act A22-0620; 2019 DC B 286. ⤴︎
  58. Fla. Stat. § 790.401(3)(a). ⤴︎
  59. Haw. Rev. Stat. Ann. § 134-64(i). ⤴︎
  60. 430 Ill. Comp. Stat 67/35(i). ⤴︎
  61. R.I. Gen. Laws § 8-8.3-4. ⤴︎
  62. Vt. Stat. Ann. tit. 13, § 4054(c)(1). ⤴︎
  63. Rev. Code Wash. § 7.94.050(5),(7). ⤴︎
  64. N.J. Stat. Ann. § 2C:58-24(a), 2C:58-23(h), effective Sept. 1, 2019. ⤴︎
  65. Mass. Gen. Laws, ch. 140 § 131T. ⤴︎
  66. 2019 NV AB 291. ⤴︎
  67. Temporary orders last 6 business days. NY CLS CPLR § 6342(4). ⤴︎
  68. Md. Code Ann., Pub. Safety § 5-603(B)(2). ⤴︎
  69. 2017 DC B22-0588, Act A22-0620; 2019 DC B 286. ⤴︎
  70. Haw. Rev. Stat. Ann. § 134-65(c). ⤴︎
  71. Mass. Gen. Laws, ch. 140 § 131S(c). ⤴︎
  72. N.J. Stat. Ann. § 2C:58-24(b). ⤴︎
  73. Wash. Rev. Code Ann. § 7.94.040(2). ⤴︎
  74. Cal. Penal Code § 18175 (b). ⤴︎
  75. 2019 CO HB 1177. ⤴︎
  76. Del. Code Ann. tit. 10, § 7704(d). ⤴︎
  77. Fla. Stat. § 790.401 (3)(b). ⤴︎
  78. 430 Ill. Comp. Stat. Ann. 67/40 (f). ⤴︎
  79. Md. Code Ann., Pub. Safety § 5-605(c)(4). ⤴︎
  80. 2019 NV AB 291. ⤴︎
  81. NY CLS CPLR § 6343(2). ⤴︎
  82. Or. Rev. Stat. Ann. § 166.530(3)(b). ⤴︎
  83. R.I. Gen. Laws §§ 8-8.3-5(a). ⤴︎
  84. Vt. Stat. Ann. tit. 13, § 4051(e). ⤴︎
  85. Cal. Pen Code § 18180(b). ⤴︎
  86. Id. ⤴︎
  87. See CO HB 1177; Del. Code Ann. tit. 10, § 7704(d); 2017 DC B 1068, Act 629 (effective until April 30, 2019); 2017 DC B22-0588, Act A22-0620 (projected law date June 6, 2019); Fla. Stat. § 790.401(7)(b); 430 Ill. Comp. Stat 67/35(g)(2), 430 Ill. Comp. Stat 67/40(h)(2); Burns Ind. Code Ann. § 35-47-14-2; Md. Code Ann., Pub. Safety §§ 5-603(A)(3)(I 5-604(A)(3)(I); Mass. Gen. Laws, ch. 140, sections 131S(f), 131T(c); 2019 NV AB 291; N.J. Stat. Ann. § C.2C:58-26(b); 2019 NY SB 2451/ AB 2689 (Effective Aug 24, 2019); Or. Rev. Stat. Ann. § 166.537(1); R.I. Gen. Laws § 8-8.3-3(b), 8-8.3-4(e)(6); Vt. Stat. Ann. tit. 13,§ 4059; Rev. Code Wash. § 7.94.090(2). ⤴︎
  88. These warrants can generally only be issued if there is probable cause to believe that the respondent owns firearms. ⤴︎
  89. Del. Code Ann. tit. 10, § 7703(d)(2); Del. Code Ann. tit. 10, § 7704(d)(4). ⤴︎
  90. 430 Ill. Comp. Stat. Ann. 67/40 (g-5); 430 Ill. Comp. Stat. Ann. 67/35 (f-5). ⤴︎
  91. N.J. Stat. Ann. § 2C:58-26(b). ⤴︎
  92. NY CLS CPLR § 6342(8). ⤴︎
  93. R.I. Gen. Laws §§ 8-8.3-4(b). ⤴︎
  94. Cal. Penal Code § 1524(a)(14). ⤴︎
  95. 2019 CO HB 1177. ⤴︎
  96. Fla. Stat. § 790.401 (7)(b). ⤴︎
  97. Haw. Rev. Stat. Ann. § 134-67(d). ⤴︎
  98. Md. Code Ann., Pub. Safety § 5-607. ⤴︎
  99. 2019 NV AB 291. ⤴︎
  100. Wash. Rev. Code Ann. § 7.94.090(4). ⤴︎
  101. Conn. Gen. Stat. § 29-38c(a). ⤴︎
  102. Conn. Gen. Stat. § 29-38c(a). ⤴︎
  103. Conn. Gen. Stat. § 29-38c(d). ⤴︎
  104. Id. ⤴︎
  105. Conn. Gen. Stat. § 53a-217(a). ⤴︎
  106. Ind. Code Ann. § 35-47-14-2. ⤴︎
  107. Ind. Code Ann. § 35-47-14-1(a). ⤴︎
  108. Ind. Code Ann. § 35-47-14-2. ⤴︎
  109. Ind. Code Ann. § 35-47-14-3(a), (b). ⤴︎
  110. Ind. Code Ann. § 35-47-14-3(b). ⤴︎
  111. Ind. Code Ann. § 35-47-14-2(b), 3(e). ⤴︎
  112. Ind. Code Ann. § 35-47-14-3(b). ⤴︎
  113. Ind. Code Ann. § 35-47-14-5. ⤴︎
  114. Ind. Code Ann. § 35-47-14-8(a). ⤴︎
  115. Ind. Code Ann. § 35-47-14-8(e). ⤴︎
  116. Ind. Code Ann. § 35-47-14-8(e), (g). ⤴︎
  117. Ind. Code Ann. § 35-47-14-10. ⤴︎
  118. Ind. Code Ann. § 35-47-14-1.5. ⤴︎
  119. A prior version of the law was upheld in 2013. The state amended the law in 2019. ⤴︎
  120. Hope v. State, 163 Conn. App. 36, 133 A.3d 519 (2016); Redington v. Indiana, 992 N.E.2d 823 (Ind. Ct. App. 2013), trans. denied (rejecting challenges based on the Second Amendment, the Indiana right to bear arms, the takings clause of the US Constitution, and vagueness). The Indiana Supreme Court subsequently refused to hear an appeal of the case. 997 N.E.2d 356 (Nov. 7, 2013). ⤴︎
  121. 725 Ill. Comp. Stat. 165/0.01 et seq. ⤴︎
  122. 430 Ill. Comp. Stat. 65/1.1. ⤴︎
  123. 430 Ill. Comp. Stat. 65/8. ⤴︎
  124. 430 Ill. Comp. Stat. 65/8.1. ⤴︎
  125. 430 Ill. Comp. Stat. 65/8(f). ⤴︎
  126. 430 Ill. Stat. Comp. 65/9.5(a), (b). ⤴︎
  127. Id. ⤴︎
  128. Id. at (c), (d). ⤴︎
  129. Meribah Knight, “Waffle House Shooting Underscores How Gun Laws Vary From State To State,” NPR Morning Edition, April 23, 2018https://www.npr.org/2018/04/23/605103200/waffle-house-shooting-underscores-how-gun-laws-vary-from-state-to-state. ⤴︎
  130. Mass. Gen. Laws ch. 140, §§ 129B(6), 131E. ⤴︎
  131. Mass. Gen. Laws ch. 140, § 129B. ⤴︎
  132. Mass. Gen. Laws ch. 140, § 131. ⤴︎
  133. Mass. Gen. Laws ch. 140, § 129D. ⤴︎
  134. Id. ⤴︎
  135. N.Y. Penal Law §§ 265.00 et seq., 400.00, 400.01. ⤴︎
  136. N.Y. Penal Law § 400.00(11)(b). ⤴︎
  137. N.Y. Crim. Proc. Law § 530.14(7). ⤴︎
  138. N.Y. Penal Law § 400.00(11)(c). ⤴︎