Extreme risk protection orders provide a proactive way to stop mass shootings and other tragedies by temporarily intervening to suspend a person’s access to firearms if they show clear warning signs of violence.
In many instances of gun violence, family members or friends noticed warning signs that people close to them were at significant 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 protection laws typically empower families, household members, and law enforcement agencies to petition courts for a civil (non-criminal) order to temporarily suspend a person’s access to firearms before they commit violence.
An FBI study of mass shooters found that the average shooter displayed four to five observable and concerning behaviors before their attacks. But in many states, people who observe those warning signs often have no clear means of intervening to prevent that violence until it is too late. The shooter who perpetrated the February 14, 2018 school shooting in Parkland, Florida, for instance, was prohibited from carrying a backpack on school grounds for fear that he might be concealing guns. He had been the subject of dozens of 911 calls to local law enforcement and two tips to the FBI. At the time, Florida law enforcement had few effective means of preventing him from accessing guns.
Similarly, weeks before a gunman shot 46 people and killed 23 in El Paso, Texas in August 2019, the shooter’s mother had called the police to express concerns about her son and what he would do with his assault rifle. If Texas had an extreme risk law in place, she and/or the police department may have been been able to proactively present evidence to a court that her son’s access to firearms should be temporarily suspended. And 23 murders might have been prevented.
ERPO Procedures by State
Extreme risk laws create this process by allowing families, household members, certain key community members, or law enforcement officers (depending on the jurisdiction) to petition a court directly for an extreme risk protection order (ERPO), which temporarily restricts a person’s access to guns if they are found to present a significant risk of harming themselves or others. This vital tool saves lives by allowing the people who are most likely to notice when a loved one or community member poses a risk with a firearm 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
Properly implemented and utilized extreme risk laws may 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.3
- 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.4
- Similarly, extreme risk laws have been used to remove firearms from a Florida resident who said that murder would be “fun and addicting”5 and a Vermont resident who kept a diary titled “Journal of an Active Shooter.”6
Feb 07, 2020
While ERPOs are often discussed in the context of individuals who are at significant risk due to severe mental illness, these laws typically are not—and should not be—limited to those circumstances. Authorities in Washington State, for instance, used Washington’s new extreme risk law to disarm the leader of an organized and violent Neo-Nazi hate group who was training with a cache of military-style weapons to wage a “race war.” This demonstrates how critical it is that ERPO laws authorize judges to issue extreme risk orders to temporarily disarm people at extreme risk of violence whether or not they are not found to be severely mentally ill. If a petitioner provides credible sworn evidence to a judge that a person is a member of a violent hate group and poses an extreme risk for violence on that basis, the judge should be authorized to act immediately to protect the public from harm, even if the judge does not have evidence that the hate group member has a diagnosable psychiatric condition.
Extreme risk laws can also 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 temporary crisis periods. Narrower extreme risk laws in Connecticut and Indiana have been shown to be effective at preventing firearm suicides.
- Researchers found that one life was saved from suicide for every 10 firearm removals under Indiana’s extreme risk law; studies of Connecticut’s law similarly found that by temporarily removing weapons from 762 high-risk individuals over the study period, Connecticut’s extreme risk law had prevented up to 100 suicide fatalities.7 (This is in addition to lives saved from prevention of homicide).
- 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.8
Summary of Federal Law
Under federal law, a person suffering from mental illness is generally not prohibited from purchasing or possessing a gun unless they have been formally, and involuntarily, committed to a mental institution, found not guilty by reason of insanity, or otherwise been found by a court, board, commission, or other official authority to be a danger to themselves or others or to “lack the mental capacity to contract or manage [their] own affairs,” as a result of their mental condition or illness.9
Similarly, a person who has committed a violent act towards others is generally not prohibited from accessing guns under federal law unless they are the subject of a domestic violence restraining order, have been convicted of a felony, or have been convicted of a domestic violence misdemeanor.10
Bipartisan Safer Communities Act
The Bipartisan Safer Communities Act authorizes the use of Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) funding by states and localities for the implementation of State crisis intervention court proceedings and related programs or initiatives, including mental health courts, drug courts, veteran courts, and extreme risk protection order programs.11 Byrne JAG is the federal government’s leading source of support to states and localities to assist them in addressing crime.
A Byrne JAG recipient may use the funding for an ERPO program if the program includes:12
- Pre- and post-deprivation due process rights, including (at the appropriate phrases to prevent a violation of constitutional rights) notice, the right to an in-person hearing, an unbiased adjudicator, the right to know opposing evidence, the right to present evidence, and the right to confront adverse witnesses.
- The right to counsel at no expense to the government.
- Pre- and post-deprivation heightened evidentiary standards and proof, which (at the appropriate phase to prevent violation of constitutional rights) prevent reliance on evidence that is unsworn or unaffirmed, irrelevant, based on inadmissible hearsay, unreliable, vague, speculative, and lacking a foundation.
- Penalties for abuse of the ERPO program.
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Summary of State Law
Most states have laws mirroring the federal prohibitions on gun possession by people subject to court orders related to mental illness. (For more information about these state laws, visit our policy page on Firearm Prohibitions). These laws allow states to enforce firearm restrictions utilizing their own law enforcement agencies and criminal justice systems. Similar to federal law, however, these laws generally do not provide a process for law enforcement or family members to proactively disarm a person who is showing clear warning signs of violence or self-harm but who has not been adjudicated mentally ill or committed to a mental institution.
As discussed in the Firearm Prohibitions policy page, many state and federal gun laws also have significant gaps that allow people to keep and access guns even after they are convicted convicted of violent crimes, such as violent hate crime misdemeanors, or of criminally misusing firearms.
ERPOs are a critical supplement to firearm restriction and background check laws because they provide an individualized risk-based assessment process, through the courts, to temporarily disarm people who are found to be an extreme risk of violence but who would otherwise be able to pass a background check and acquire deadly weapons.
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.
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 a 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.13
Nineteen states and the District of Columbia currently have ERPO laws. Thirteen 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 and certain categories of health care workers to petition; and Hawaii which allows medical professionals, coworkers, and educators to petition. Five states limit the category of petitioners to law enforcement only. Indiana has a risk-based firearm removal law that is similar to law enforcement-only ERPOs. That law is 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, Vermont, and Virginia) 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 ERPO procedures in each state are outlined and discussed below.
States with Extreme Risk Laws
- District of Columbia
- New Jersey
- New Mexico*
- New York
- Rhode Island*
States with an * allow only law enforcement or state officials to petition for an ERPO.14
Extreme Risk Protection Order Petitions
Who Can Petition for an Order?
Thirteen 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 people at extreme risk of harming themselves or others. These laws typically mirror the domestic violence restraining order processes in their respective states. Some of these states also allow certain other individuals to directly petition courts for extreme risk orders, instead of providing information to law enforcement petitioners.
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, in addition to other applicable penalties for perjury or filing false statements.15 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.
- Connecticut (Only law enforcement and state officials can petition for an order; however, family and household members may petition for an investigation by law enforcement that can result in law enforcement petitioning for an order)18
- Delaware (Only law enforcement can petition for ex parte orders)19
- District of Columbia20
- New Jersey26
- New York27 (Family and household members may petition but law enforcement officers are required to file when they obtain credible information that an individual is likely to engage in conduct that would result in serious harm to himself, herself or others unless the officer determines that there is no probable cause for such filing.)
Jurisdictions that Allow Individuals Other than Family, Cohabitants, and Law Enforcement to Petition
- California (Employers, coworkers, dating partners, people who have child in common, and certain school personnel)30
- Connecticut (Medical professionals may not directly petition a court for an order, but may petition for an investigation by law enforcement)31
- District of Columbia (Mental health professionals)32
- Hawaii (Medical professionals, educators, and coworkers)33
- Maryland (Certain categories of mental and other health workers)34
- New York (School administrators and certain categories of health care workers)35
States that Only Allow Law Enforcement Officers or Other State Officials to Petition
Evidence Showing Extreme Risk
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 harm or violence to themselves or others.41
For example, in California, when filing a petition for an order, the court must consider the following evidence:42
- 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
- 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:43
- 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.44 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, access, or control.45 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.
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 poses a danger to self or others. 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.
- California* (Temporary order, law enforcement only)46
- District of Columbia
- New Jersey*53
- New Mexico*54
- New York55
- Rhode Island*56
- California* (Family and law enforcement)59
Preponderance of the Evidence
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 not challenged 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.
- 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.)65
- Delaware (Can be extended up to 45 days by a judge if necessary)66
- District of Columbia69
- Rhode Island73
- New York81
- Maryland (Hearing must be on the first or second day on which a district court judge is sitting)82
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.
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. Three states, Illinois, Vermont, and Virginia, 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. Similarly, Connecticut‘s final order lasts until the respondent initiates a review in which either law enforcement determines there is no probable cause of a risk, or the state fails to show by clear and convincing evidence at a hearing that there is a risk.102 Currently, courts in California are authorized to issue final orders lasting between one year and five years.103
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.
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Disarming People Subject to Extreme Risk Protection Orders
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.104 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.105
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.106
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 people who pose a danger to self or others. 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, generally, extreme risk protection orders may be obtained against individuals who do not possess firearms.
Firearm removal laws have been upheld by state courts as constitutional under the Second Amendment.107
Indiana’s firearm removal law allows a law enforcement officer to remove firearms from a dangerous individual in possession of a firearm.108
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.109
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.110
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.111
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).
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.112 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.113 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.114
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.115 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.116 The petitioner must prove by a preponderance of the evidence that he or she is no longer dangerous.117
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.118
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.119 A “responsible third party”120 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.
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.
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
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 requires individuals wishing to possess a handgun or semiautomatic rifle 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.
- Prompt Removal of Guns Once Order Issued by Court: 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 authorized to issue a search and seizure warrant.
- 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.
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Guns in schools are an unnecessary and significant threat to the safety of children and college students.
Universal background checks are essential to close deadly loopholes in our laws that allow millions of guns to end up in the hands of individuals at an elevated risk of committing violence each year.
Community violence intervention programs prevent shootings by interrupting the cycle of violence in the country’s most impacted communities.
- Robert Golden, Fred Peterson, and Carla Weiland. The truth about illness and disease. Infobase Publishing 2009.
- 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.
- Garen J. Wintemute, et al., “Extreme Risk Protection Orders Intended to Prevent Mass Shootings: a Case Series,” Annals of Internal Medicine (2019).
- 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.
- 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.
- Melissa Korn, “Vermont Police Thwart Potential School Shooting,” The Wall Street Journal, February 16, 2018, https://on.wsj.com/2HRpvAZ.
- 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); 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.
- 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.
- Federal law, enacted in 1968, still uses archaic and offensive terminology to prohibit firearm access by people who have been “adjudicated as a mental defective.” 18 USC 922(g)(4). Federal regulations define that term to mean:
(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, incompetency, condition, or disease
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.Federal regulation also expressly clarifies that this firearm prohibition applies to:
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of lack of mental responsibility pursuant to [specified articles] of the Uniform Code of Military Justice. 27 CFR § 478.11.
- 18 U.S.C. § 922(d)(9).
- 34 U.S.C. § 10152(a)(1)(I).
- 34 U.S.C. § 10152(a)(1)(I)(iv).
- 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.
- See below for citations to state statutes.
- 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. § 7.105.460.
- Cal. Penal Code §§ 18150.
- CO HB 1177.
- Conn. Gen. Stat. §§ 29-38c(a), 29-38c(b)(1).
- Del. Code Ann. tit. 10, § 7701, 7704.
- D.C. Code § 7-2510.01.
- Haw. Rev. Stat. Ann. § 134-61.
- 2017 IL HB 2354, 430 Ill. Comp. Stat 67/35, 430 Ill. Comp. Stat 67/40.
- Md. Code Ann., Pub. Safety § 5-601(E)(2).
- Mass. Gen. Laws, ch. 140 § § 121, 131R.
- 2019 NV AB 291.
- N.J. Stat. Ann. § 2C:58-21 et seq.
- N.Y. Civil Practice Law & Rules Law § 6340 et seq.
- Or. Rev. Stat. Ann. §§ 166.527.
- Rev. Code Wash. §§ 7.105.100(e).
- Eligible petitioners include the (1) employer of the person named in the petition, (2) a coworker who has had substantial and regular interactions with the person for at least one year, if the coworker has obtained approval from the employer to file a GVRO petition, or (3) an employee or teacher at a secondary or postsecondary school that the person named in the petition has attended in the last six months, if the employee or teacher has obtained approval from a school administrator or administration staff member with a supervisorial role to file a GVRO petition. Cal. Pen. Code §§ 18150; 18170; 18190.
- Conn. Gen. Stat. § 29-38c(b).
- 2017 DC B22-0588, Act A22-0620.
- 2019 HI SB 1466.
- Md. Code Ann., Pub. Safety § 5-601(E)(2).
- N.Y. Civil Practice Law & Rules Law § 6340.
- Fla. Stat. § 790.401(1)(a), (2)(a).
- N.M. Stat. Ann. § 40-17-5.
- R.I. Gen. Laws § 8-8.3-1, et seq.
- Vt. Stat. Ann. tit. 13, § 4051, et seq.
- Va. Code Ann. § 19.2-152.13, et seq.
- 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.
- Cal. Pen Code § 18155(b)(1).
- Cal. Pen Code § 18155(b)(2).
- 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); N.M. Stat. Ann. § 40-17-5; 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).
- Rev. Code Wash. § 7.105.100(e).
- Cal. Penal Code § 18125.
- Conn. Gen. Stat. § 29-38c(a).
- Fla. Stat. § 790.401 (4)(c).
- Haw. Rev. Stat. Ann. § 134-64(f).
- 430 Ill. Comp. Stat. Ann. 67/35 (f).
- Md. Code Ann., Pub. Safety § 5-603(a)(4).
- Mass. Gen. Laws, ch. 140 § 131T(a).
- N.J. Stat. Ann. § 2C:58-23(e).
- N.M. Stat. Ann. § 40-17-6.
- NY CLS CPLR § 6342(a).
- R.I. Gen. Laws §§ 8-8.3-4(a).
- Va. Code Ann. § 19.2-152.13.
- Wash. Rev. Code Ann. § 7.105.330.
- Cal. Penal Code § 18150(b).
- 2019 CO HB 1177.
- Del. Code Ann. tit. 10, § 7703(d).
- 2019 NV AB 291.
- Vt. Stat. Ann. tit. 13, § 4054(b)(1).
- Cal. Pen Code § 18155(c).
- Or. Rev. Stat. Ann. § 166.527(9).
- Del. Code Ann. tit. 10, § 7703(a), (f).
- CO HB 1177.
- Conn. Gen. Stat. § 29-38c(e).
- 2017 DC B22-0588, Act A22-0620; 2019 DC B 286.
- Fla. Stat. § 790.401(3)(a).
- Haw. Rev. Stat. Ann. § 134-64(i).
- 430 Ill. Comp. Stat 67/35(i).
- R.I. Gen. Laws § 8-8.3-4.
- Vt. Stat. Ann. tit. 13, § 4054(c)(1).
- Va. Code Ann. § 19.2-152.13.
- Rev. Code Wash. § 7.105.100 (8).
- Mass. Gen. Laws, ch. 140 § 131T.
- N.J. Stat. Ann. § 2C:58-24(a), 2C:58-23(h), effective Sept. 1, 2019.
- N.M. Stat. Ann. § 40-17-6.
- 2019 NV AB 291.
- Temporary orders last 6 business days. NY CLS CPLR § 6342(4).
- Md. Code Ann., Pub. Safety § 5-603(B)(2).
- 2017 DC B22-0588, Act A22-0620; 2019 DC B 286.
- Haw. Rev. Stat. Ann. § 134-65(c).
- Mass. Gen. Laws, ch. 140 § 131S(c).
- N.J. Stat. Ann. § 2C:58-24(b).
- N.M. Stat. Ann. § 40-17-8.
- Wash. Rev. Code Ann. § 7.94.040(2).
- Cal. Penal Code § 18175 (b).
- 2019 CO HB 1177.
- Conn. Gen. Stat. § 29-38c(e).
- Del. Code Ann. tit. 10, § 7704(d).
- Fla. Stat. § 790.401 (3)(b).
- 430 Ill. Comp. Stat. Ann. 67/40 (f).
- Md. Code Ann., Pub. Safety § 5-605(c)(4).
- 2019 NV AB 291.
- NY CLS CPLR § 6343(2).
- Or. Rev. Stat. Ann. § 166.530(3)(b).
- R.I. Gen. Laws §§ 8-8.3-5(a).
- Vt. Stat. Ann. tit. 13, § 4051(e).
- Va. Code Ann. § 19.2-152.14.
- Conn. Gen. Stat. § 29-38c(f).
- Cal. Pen Code § 18175(d).
- Cal. Pen Code § 18180(b).
- See Conn. Gen. Stat. § 29-38c(a); 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).
- Hope v. State, 163 Conn. App. 36, 133 A.3d 519 (2016) (upholding a firearm removal law that was the predecessor to Connecticut’s current extreme risk law); 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).
- Ind. Code Ann. § 35-47-14-2.
- Ind. Code Ann. § 35-47-14-1(a).
- Ind. Code Ann. § 35-47-14-2.
- Ind. Code Ann. § 35-47-14-3(a), (b).
- Ind. Code Ann. § 35-47-14-3(b).
- Ind. Code Ann. § 35-47-14-2(b), 3(e).
- Ind. Code Ann. § 35-47-14-3(b).
- Ind. Code Ann. § 35-47-14-5.
- Ind. Code Ann. § 35-47-14-8(a).
- Ind. Code Ann. § 35-47-14-8(e).
- Ind. Code Ann. § 35-47-14-8(e), (g).
- Ind. Code Ann. § 35-47-14-10.
- Ind. Code Ann. § 35-47-14-1.5.
- 725 Ill. Comp. Stat. 165/0.01 et seq.
- 430 Ill. Comp. Stat. 65/1.1.
- 430 Ill. Comp. Stat. 65/8.
- 430 Ill. Comp. Stat. 65/8.1.
- 430 Ill. Comp. Stat. 65/8(f).
- 430 Ill. Stat. Comp. 65/9.5(a), (b).
- Id. at (c), (d).
- Meribah Knight, “Waffle House Shooting Underscores How Gun Laws Vary From State To State,” NPR Morning Edition, April 23, 2018, https://www.npr.org/2018/04/23/605103200/waffle-house-shooting-underscores-how-gun-laws-vary-from-state-to-state.
- Mass. Gen. Laws ch. 140, §§ 129B(6), 131E.
- Mass. Gen. Laws ch. 140, § 129B.
- Mass. Gen. Laws ch. 140, § 131.
- Mass. Gen. Laws ch. 140, § 129D.
- N.Y. Penal Law §§ 265.00 et seq., 400.00, 400.01.
- N.Y. Penal Law § 400.00(11)(b).
- N.Y. Crim. Proc. Law § 530.14(7).
- N.Y. Penal Law § 400.00(11)(c).