Approach

Local policymakers, law enforcement, courts, and social service providers should work together to implement Extreme Risk laws, which create new court processes that can prevent gun violence tragedies and save lives. Passage and enactment of Extreme Risk laws are only the first steps to preventing gun violence. To effectively protect individual and public safety, localities must thoughtfully coordinate their implementation efforts and ensure that all stakeholders are informed and understand how to seek one of these lifesaving orders in a moment of crisis.

People who are in crisis and considering harming themselves or others often exhibit clear warning signs. Family members, social service providers, and law enforcement are usually the first people to see these signs. Extreme Risk laws empower law enforcement, and in some states loved ones and others, to intervene and temporarily prevent a person in crisis from accessing firearms.¹Eligible petitioners are defined by state statute and vary state to state. For example, in Connecticut, only law enforcement officers may petition a court for an extreme risk protection order, and in Hawaii, law enforcement officers, family or household members, medical professionals, educators, or coworkers may petition a court for an extreme risk protection order. Cal. Penal Code § 18100, et. seq. and Haw. Rev. Stat. Ann. § 134-61, et seq. These laws, sometimes referred to as “red flag” laws, can help deescalate emergency situations. They are a proven way to intervene before an incident of gun violence occurs and takes more lives. Nineteen states and the District of Columbia²States with Extreme Risk laws and effective year: California (2016), Colorado (2019), Connecticut (1999), Delaware (2019), District of Columbia (2019), Florida (2018), Hawaii (2020), Illinois (2019), Indiana (2005), Maryland (2018), Massachusetts (2018), Nevada (2020), New Jersey (2019), New Mexico (2020), New York (2019), Oregon (2020), Rhode Island (2018), Vermont (2018), Virginia (2020), and Washington (2016). have enacted Extreme Risk laws to help reduce gun violence in their communities.

Individuals authorized by state law³See supra note 1. may petition a court for a civil order—often called an extreme risk protection order (ERPO)⁴The names for these orders can vary by state. They are sometimes also known as gun violence restraining orders (GVROs), gun violence protective orders (GVPOs), high-risk protection orders, or lethal violence protective orders.—to temporarily remove guns from dangerous situations. If the court finds that someone poses a serious risk of injuring themselves or others with a firearm, that person is temporarily prohibited from purchasing and possessing guns. Any guns already in their possession must also be relinquished to law enforcement or another authorized party while the order is in effect.

Extreme Risk laws have been used across the country to prevent suicides, mass shootings, school and workplace shootings, domestic violence, and interpersonal violence.⁵Everytown for Gun Safety Support Fund, “Appendix A: Examples of How Extreme Risk Laws Save Lives,” July 7, 2021, https://everytownresearch.org/report/appendix-a-extreme-risk-laws-save-lives-stories/. Local officials have many important roles to play in implementing Extreme Risk laws to ensure their safe and effective use. Local officials can be leaders in ensuring that all relevant stakeholders are aware of and properly trained on the law and how to file and process an order. Officials can partner with advocates, local service providers, law enforcement, mental health professionals, and others to provide educational outreach to community members about the existence and effectiveness of Extreme Risk laws. In addition, officials can convene a county-wide task force to coordinate stakeholder outreach and education efforts, as well as law enforcement training and enforcement.

Impact

Connecticut (in 1999) and Indiana (in 2005) were the first two states to enact Extreme Risk laws. Studies of the impact of the laws in these states show that temporarily removing guns from people in crisis can reduce the risk of firearm suicide.

After Connecticut increased the enforcement of its Extreme Risk law following the 2007 mass shooting at Virginia Tech, one study found the law to be associated with a 14 percent reduction in the state’s firearm suicide rate.⁶Aaron 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 (August 2018): 855–62, https://doi.org/10.1176/appi.ps.201700250. While measuring events that didn’t happen is always difficult, an important study in Connecticut found that one suicide was averted for approximately every 11 gun removals carried out under the law.⁷Jeffrey W. Swanson et al., “Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does It Prevent Suicides?,” Law and Contemporary Problems 80 (2017): 179–208, https://bit.ly/3gidLYO.  In the 10 years following Indiana’s passage of its Extreme Risk law, the state’s firearm suicide rate decreased by 7.5 percent.⁸Kivisto and Phalen, “Effects of Risk-Based Firearm Seizure Laws.” As in Connecticut, another study estimated that Indiana’s Extreme Risk law averted one suicide for approximately every 10 gun removals.⁹Jeffrey W. Swanson et al., “Criminal Justice and Suicide Outcomes with Indiana’s Risk-Based Gun Seizure Law,” Journal of the American Academy of Psychiatry and the Law Online 47, no. 2 (2019): 188–97, http://hdl.handle.net/1805/22638.

Beyond preventing suicide, Extreme Risk laws have been invoked to prevent mass shootings, school shootings, and interpersonal violence. A study examining 21 cases in California in which an order was issued following evidence showing the respondent intended to carry out a mass shooting found no reports that any of the respondents had followed through on their threats, or otherwise engaged in violence against themselves or others following the order.¹⁰Garen J. Wintemute, “Extreme Risk Protection Orders Intended to Prevent Mass Shootings: A Case Series,” Annals of Internal Medicine 171 (2019): 655–58, https://doi.org/10.7326/M19-2162. In the first three months following enactment of Maryland’s Extreme Risk law, the law had been used in at least four cases involving “significant threats” against schools, according to a leader of the Maryland Sheriffs’ Association.¹¹Luke Broadwater, “Sheriff: Maryland’s ‘Red Flag’ Law Prompted Gun Seizures after Four ‘Significant Threats’ against Schools,” Baltimore Sun, January 15, 2019, https://bit.ly/2Gdf6Qi.

Necessary Resources

Stakeholder Engagement

In states where Extreme Risk laws exist, law enforcement, prosecutors, gun violence prevention advocates, domestic violence advocates, court personnel, judges, victim assistance advocates, and public health advocates play a critical role in safe and effective implementation.

Clear lines of communication and defined roles are necessary, and stakeholders may consider creating a Memorandum of Understanding (MOU) to outline them and set expectations. Additionally, law enforcement agencies and the courts should consider the social service needs of the individuals subject to an ERPO, or any other parties whom the order affects, by partnering with social service providers, including domestic violence advocates and mental health professionals, to ensure resources and referrals are readily available.

A county-wide task force may be helpful in centralizing communication, problem solving, and processing ERPOs. For example, in King County, Washington, the prosecuting attorney’s office convened a regional firearms enforcement unit composed of representatives from their office, the Seattle City Attorney’s office, Seattle Police Department, and King County Sheriff’s office. The unit is staffed by law enforcement officers, three prosecutors, a victim advocate, two court liaisons (one to address issues with orders and the other to coordinate information sharing between law enforcement and judges), a paralegal, a data technician, and a program manager. They are responsible for proactively assisting with the service of all orders to surrender weapons (e.g., ERPOs, domestic violence protection orders, no contact orders), immediate removal of firearms, and holding respondents accountable in all 40 jurisdictions in the county.¹²King County Prosecuting Attorney, “Regional Domestic Violence Firearms Enforcement Unit,” accessed August 19, 2021, https://bit.ly/2W3ML8N.

Training and Public Awareness Campaigns

For the law to be effective, all parties that are responsible for implementing Extreme Risk laws must be aware that the law exists and must be trained in the process of filing for an ERPO. Public awareness campaigns and training should target law enforcement, judges, court personnel, eligible petitioners, and social and legal services providers. Training curriculums should be tailored based on the audience’s role in the order process.

Eligible petitioners vary by state. In some states, only law enforcement may petition for an ERPO, but other states have expanded petitioner classes to include family or household members and others.¹³See supra note 1. Therefore, it is critically important to undertake public awareness campaigns to ensure all eligible petitioners are aware of the law and how to file for an order in court. Local officials can partner with nonprofit organizations and advocates or others to assist in this effort.

Public awareness campaigns should socialize the intent of the law: protecting someone in crisis from harming themselves or others through a temporary, noncriminal order. These campaigns should make clear to the public that individuals concerned for someone’s well-being can reach out to law enforcement and request that law enforcement file for an ERPO. Public outreach can include holding school or community events, and should also include conversations with social and legal service providers who can help eligible petitioners file for an ERPO or refer an individual to law enforcement for assistance. Providing information about an Extreme Risk law on a city, county, local law enforcement, or court website can also increase public awareness and use of these laws.

ERPO Service and Surrender and Storage of Firearms

For law enforcement agencies, training officers in the appropriate and safe use of Extreme Risk laws is important for successful implementation. Law enforcement officers play a role in petitioning for orders and are also tasked with both serving the orders on high-risk individuals and recovering the firearms. Therefore, it is critical that officials develop policies and procedures for petitioning, serving, and enforcing ERPOs, and establish ongoing training programs for officers.

Such policies, procedures, and trainings should make it clear that the order does not merely prohibit access to firearms owned by the respondent but all firearms in their actual or constructive possession, custody, or control. Although the order may identify specific firearm brands and models to be surrendered, personnel should recover all firearms. Officers should be directed to conduct any search permitted by law for such firearms and take possession of all firearms that are surrendered, observed in plain sight, or discovered pursuant to a lawful search.

To ensure the safety of all parties—including officers, the respondent, the protected person or persons, and any third parties—law enforcement officers should be trained on and required to conduct a comprehensive threat assessment before serving the order. Factors to be considered in the assessment include, but are not limited to

• Prior incidents of assault (domestic and nondomestic violence) and assaults or threats against children
• Prior incidents of assault or threats against law enforcement officers
• Any type of physical violence, stalking, or sexual harm toward a victim
• Threat to harm or kill others or themself
• Conviction or arrest involving violent acts
• Presence of firearms or other dangerous weapons
• History of alcohol or substance abuse
• Violence against animals
• Behavioral crisis indicative of harm to self or others

Law enforcement agencies must also maintain storage space for surrendered firearms and develop policies and procedures for the storage and return of firearms. This should include conducting a firearms background check prior to returning firearms to ensure the person has not become a prohibited person since the court entered the ERPO.

Information Sharing

In addition to temporarily limiting the respondent’s access to firearms already in their possession, a critical component to Extreme Risk laws is preventing the new acquisition of firearms while the order is in effect. This requires clearly defined roles and procedures to swiftly add ERPO information into the FBI’s National Instant Criminal Background Check System, state background check database, or both. These procedures should include instructions for the initial order, any renewals of the order, and expiration of the order.

Law enforcement must also share information with the court system regarding the status of the service of the order, the respondent’s compliance, and any violations.

Monitoring and Evaluation

Data collection is critical to monitoring implementation of the law and evaluating its impact. Officials should create a centralized database to facilitate the collection of data and establish reporting procedures to ensure that data is accessible to stakeholders, researchers, and policymakers. Common data indicators include petitioner type; petitioner-respondent relationship; demographic information about the petitioner and the respondent; respondent’s prior ERPO history; respondent’s concurrent court case information; respondent’s risk profile (e.g., threat to self, to others, to self and others); synopsis of respondent’s preceding behavior; city/county; dates of filing, issuance, service, and expiration; petition disposition and reason; any action taken toward respondent (e.g., arrested, referral to treatment, hospitalized); number and type of firearms possessed by or accessible to the respondent; number and type of firearms recovered; number of firearms unrecovered; respondent’s compliance with relinquishment order; and if respondent contested the order.¹⁴Consortium for Risk-Based Firearm Policy, “Extreme Risk Protection Orders: New Recommendations for Policy and Implementation,” October 2020, https://efsgv.org/wp-content/uploads/EFSGV-ConsortiumReport2020-ERPOs.pdf.

Strategy in Practice

Overview

Extreme Risk laws are designed to defuse dangerous situations while also ensuring due process and a system of checks and balances.¹⁵“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). In each state with an Extreme Risk law, only specific groups of people may request an ERPO. For example, states typically limit ERPO petitioners to law enforcement officers and family or household members. These limitations mean that only people who are very close to the person at risk of harming themselves or others, or who are trained to identify and respond to such risks, can bring forth these cases.

In a crisis situation where a petitioner presents clear evidence that someone (i.e., a respondent) poses an immediate risk, a judge can issue an emergency ERPO. This emergency ERPO immediately suspends firearms access until a full hearing can be held, usually within seven to 21 days. A longer-term final ERPO can be issued only following a hearing, prior to which the respondent is given notice, and during which they have an opportunity to be heard and respond to evidence.

When an ERPO case is filed in court, the burden to prove the need for an ERPO is placed on the petitioner. The petitioner must present evidence to a judge demonstrating that the respondent poses a significant danger of harming themselves or others with a firearm. State laws typically specify the types of evidence that a judge can consider in an ERPO case—for example, evidence of recent acts and threats of violence or recent unlawful or reckless use of a firearm. The respondent then has the opportunity to respond to any evidence presented, and to present their own evidence. Many states’ laws include penalties that apply if the petitioner presents false evidence.

After considering all of the evidence, the judge can dismiss the case or order a final ERPO. The final ERPO typically lasts one year. However, in most states, respondents have the ability to petition to terminate the ERPO prior to its expiration date. If there is evidence that an ERPO should be extended beyond its initial end date, another hearing is required during which the respondent is afforded the same rights as in the initial hearing.

At several points in this process, law enforcement officers may be involved; they include investigation, petitioning the court, serving the ERPO, removal of firearms, and monitoring compliance. Prior to filing of the petition, officers may find an order is necessary during their own investigation or through an investigation requested by an individual who may or may not be eligible to petition on their own. Officers may then be responsible for preparing the petition and appearing in court to present evidence. Once an emergency or final ERPO is issued by the court, officers are responsible for swiftly serving the order upon the respondent. Officers will be involved in obtaining the firearms surrendered by the respondent, or executing a search warrant to secure any firearms in the respondent’s possession, custody, or control, and returning firearms to the respondent when the order expires. Lastly, officers are responsible for monitoring compliance with the order, keeping the court informed, and reporting any violations of the order.

Common Barriers

Anecdotal evidence suggests that Extreme Risk laws are underutilized due to a lack of awareness both among the legal parties responsible for their implementation and the general public.¹⁶Swanson et al., “Criminal Justice and Suicide Outcomes”; Ali Rowhani-Rahbar et al., “Extreme Risk Protection Orders in Washington: A Statewide Descriptive Study,” Annals of Internal Medicine 173, no. 5 (2020): 342–49, https://doi.org/10.7326/M20-0594. To increase awareness and ensure effective implementation of the law, state government agencies and nonprofit organizations have launched training programs and public awareness campaigns geared toward law enforcement, court personnel, and eligible petitioners outside of the legal system.

Following the passage of New York’s Extreme Risk law in 2019, the governor’s office held conferences to educate eligible petitioners about when and how to file for an ERPO. The state also launched a website and call center to help eligible petitioners identify warning signs and navigate the filing process.¹⁷New York State Governor’s Office, “Governor Cuomo Launches Statewide Education Campaign on New Red Flag Law,” press release, September 18, 2019, https://on.ny.gov/3eAL7ld. When New Jersey’s Extreme Risk law took effect in 2019, the state attorney general issued guidelines to prosecutors and law enforcement on how to implement the law and held trainings for community members.¹⁸State of New Jersey, Office of the Attorney General, “Attorney General Law Enforcement Directive No. 2019-2,” August 15, 2019, https://bit.ly/3B1rXx9; Leah Mishkin, “AG’s Office Gets the Word out on State’s New Red Flag Law,” NJ Spotlight News, September 16, 2019, https://bit.ly/3uBxwzD. In Fort Lauderdale, Florida, officers receive an initial training, followed by annual refresher trainings, on the investigation, petition, and service of ERPOs.¹⁹Fort Lauderdale Police Department, “Policy 514.0, Risk Protection Orders,” Rev. September 2019, https://www.flpd.org/home/showdocument?id=5477.

In 2019, Everytown for Gun Safety Support Fund launched a public awareness campaign called “One Thing You Can Do” to educate communities on how to use the Extreme Risk law in their state. Since 2019, Moms Demand Action for Gun Sense in America volunteers have conducted more than 700 events and trainings in communities across the country on how Extreme Risk laws work. These events—sometimes held in partnership with community stakeholders, such as law enforcement and public health entities—are designed to raise awareness about how and why an ERPO could be used to prevent someone from harming themselves or others.²⁰Moms Demand Action for Gun Sense in America, “Extreme Risk / Red Flag Laws,” https://momsdemandaction.org/work/red-flag-laws/.