Extreme Risk Protection Orders - Raising the Red Flag

Ever get the feeling that everything is connected in some way? That odd sense you get when a seemingly chance event suddenly reveals itself to be more than simple coincidence? In the BBC television series starring Benjamin Cumberbatch as a modern-day Sherlock Holmes and Martin (Bilbo Baggins) Freeman as his erstwhile companion, Dr. Watson, Holmes says that he doesn’t believe in coincidence because “the Universe is rarely that lazy.” Color me a coincidence skeptic, and not an outright non-believer; open to the possibility that coincidences do happen, but also open to the possibility that two seemingly random events are, in fact, connected in some mysterious way. These musings came up again when a recent DOJ model statute for Extreme Risk Protection Orders (ERPO) crossed my desk. 

 The sense of connectedness arose because just a few months ago the issue of privacy and ERPOs was raised by Justice Alito in a concurring opinion I reviewed in my last Newsletter. To recap, in Edward A. Caniglia v. Robert R. Strom, et al.593 U.S. ___ (May 17, 2021), the issue before the Court was whether the warrantless search for and seizure of firearms from Caniglia’s home, after he had agreed to go by ambulance to a mental health screening, was justified by a caretaker exception to the 4^th Amendment. The Court unanimously ruled no such free-standing exception existed. Justice Alito wrote separately highlighting the issues that were not decided in the case, including the extent of protection afforded by the 4^th Amendment when the police respond to an individual subject to an ERPO. Put another way, does seizure of firearms from one subject to an ERPO violate the 4th Amendment? Justice Alito suggested that a challenge to ERPO laws is possible. The universal question is this, can an Extreme Risk Protection Order statute be drafted consistent with the privacy rights of the respondent? 

A little background is in order. ERPOs, colloquially red-flag laws, came about in response to the perceived rise in gun violence, including suicide, and the apparent inability of Congress to address it. The theoretical underpinning of all the laws is that lives will be saved by authorizing temporary bans on firearm possession by a person in crisis. 

My research found 20 states and District of Columbia had red-flag laws (Oklahoma is the only state that has an anti-red-flag order law). Almost all states authorize a court to issue ERPOs ordering the respondent to turn over any firearms to law enforcement or some other designee at the time the order is served and prohibiting the possession of firearms while the order is in effect. Other states go farther providing for the issuance of a search warrant, sometimes as part of the order itself directing law enforcement search for and seize any firearms owned or possessed by the respondent.

Within that general framework the procedures vary considerably from state to state. Important issues include deciding who may file a petition, should short-term temporary orders be issued ex parte, what must be shown by petitioner to justify an ERPO, what is the burden of proof, and should those things be different for an ex parte order than for one of longer duration. How and when prohibited firearms can be searched for and seized is always an issue, as is how violations of the order are to be addressed. The state of play is, in a word, confusing.

What’s needed, you cry out, is a model law that addresses these issues.  Well, the federal government has heard your pleas and supplications, and the U.S. Department of Justice is here to help. OK, I know nobody asked for a model law, but as these things often are it is more an encouragement for the states without red-flag laws to consider adopting them and presents options for addressing most of the issues. 

But the model law and commentary (find it here) do little digging into the nuts and bolts of the statutes of the kind that reveals the policy decisions behind individual state laws. Nor do they provide any kind of comprehensive survey of the laws that can provide valuable context for those who might be considering proposing legislation in their jurisdiction. 

Being curious about red-flag laws myself, I created an interactive chart setting out what I thought are some important aspects of each state’s law. Here are some of the highlights.

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