The Extreme Risk Protection Order process

An Extreme Risk Protection Order is a legal tool designed to temporarily prevent individuals deemed to pose a risk of harm to themselves or others from accessing firearms. In the United States, ERPO laws have been enacted in multiple states like the District of Columbia, mostly since 2016, as a response to mass shootings and the need to prevent homicides and suicides. ERPO laws allow family members or law enforcement to petition a judge to remove a firearm from the environment of a person deemed at risk of harming themselves or others, including children and adolescents at risk of committing suicide. 

What is an extreme risk protection order?

An ERPO is a legal method allowing courts to temporarily stop individuals in crisis from getting firearms. This action aims to intervene before early warning signs lead to harm to the person or others.

States have guidelines to follow when setting up ERPO laws, detailing eligible applicants for these orders – such as law enforcement officers, immediate family members, health care providers, and other concerned individuals – and the kinds of orders that can be made. There are two types of ERPOs:

• Emergency ex parte orders: Courts can quickly issue these orders in urgent situations. They are based on probable cause that shows a significant danger from the person's access to firearms. These orders stop the individual from owning or getting firearms and might require giving up any firearms they own. Their purpose is to quickly prevent immediate harm.
• Long-term orders: These are given after a court hearing where the evidence and situation are reviewed to decide if the person is a danger to themselves or others. If the court sees enough reason, it can give a long-term order lasting for a time set by state law. Like emergency orders, these long-term orders stop individuals from owning or getting firearms. They might require them to give up any firearms. They provide a longer and more thorough restriction on firearm access.

See also: What are extreme risk protection orders?

Criteria for a court to issue an extreme risk protection order

• Petition by an eligible party: A qualified individual or entity, such as a law enforcement officer, family member, or healthcare provider, must file a petition requesting the extreme risk protection order. Different states may have different definitions of who is eligible to file.
• Evidence of risk: The petitioner must provide proof that the respondent (the person against whom the order is sought) poses a significant risk of harm to themselves or others if they have access to firearms. This evidence is typically presented through affidavits, sworn statements, or other credible sources.
• Standard of proof: For an emergency ex parte extreme risk protection order, the standard is often "probable cause" to believe that the respondent poses an immediate risk. For a longer-term extreme risk protection order, the standard may be higher, such as "clear and convincing evidence" or a "preponderance of the evidence" indicating a significant risk.
• Consideration of relevant factors: The court considers various factors to assess risk, such as recent acts of violence or threats, mental health issues, past restraining orders, or evidence of substance abuse.
• Due process: The court must ensure that the respondent’s due process rights are respected, especially for longer-term orders. This includes notifying the respondent of the proceedings and allowing them to appear in court, contest the order, and present their evidence.
• Judicial discretion: Ultimately, the decision to issue an extreme risk protection order rests with the judge, who must weigh the evidence and the circumstances to determine whether issuing the order is appropriate and necessary for public safety.

See also: HIPAA Compliant Email: The Definitive Guide

The process of receiving an extreme risk protection order

• Filing a petition: An eligible individual, such as a family member, law enforcement officer, or healthcare provider, files a petition with the court requesting the ERPO. This petition must provide detailed reasons why they believe the respondent (the person the order is against) poses a significant risk of harm to themselves or others if they have access to firearms.
• Providing evidence: The petitioner must supply evidence supporting their claim. This might include incidents of recent threats, evidence of mental health issues, history of violence, or substance abuse.
• Initial review by a judge: A judge initially reviews the petition. For an emergency ex parte ERPO, this review can happen without the respondent being present.
• Issuance of an emergency order (if applicable): If the judge finds probable cause to believe that the respondent poses an immediate risk, they may issue an emergency ex parte ERPO, temporarily restricting their access to firearms.
• Notification to the respondent: The respondent is notified of the ERPO and the scheduled hearing date for the final order. In the case of an emergency order, this notification may occur after the order is already issued.
• Full court hearing: A full hearing is scheduled, usually within a few days to a few weeks, where both the petitioner and the respondent can present their evidence and arguments.
• Judge's decision: After considering the evidence and hearing arguments from both sides, the judge decides whether to issue a final ERPO. This decision is based on a higher standard of proof than the emergency order.
• Issuance of a final order: If the judge decides to issue an ERPO, it typically includes a prohibition on possessing, purchasing, or receiving firearms and may require the respondent to surrender any firearms they have.
• Duration and renewal: ERPOs are generally issued for a fixed period, often up to one year, and can be renewed if the court finds continued risk at the end of the term.
• Compliance and enforcement: Law enforcement ensures compliance with the order, which may involve confiscating firearms and monitoring the respondent.
• Appeal process: The respondent may have the right to appeal the ERPO.
• Termination: If circumstances change or at the end of the order’s duration, the respondent can petition for the termination of the ERPO, or it will expire automatically.

See also: Disclosures of PHI that occur during litigation

ERPO and HIPAA 

HIPAA, which protects the privacy of an individual's health information, might initially seem at odds with ERPO laws. It can be found that in some cases, HIPAA allows healthcare providers to petition for the temporary removal of firearms from individuals they deem to be a danger. The interaction between the two still remains carefully managed. 

Under HIPAA, some exceptions permit healthcare providers to disclose protected health information (PHI) if they believe it's necessary to prevent a serious and imminent threat to the health and safety of a person or the public. This means that if a healthcare provider determines that a patient poses a significant risk of harm to themselves or others, they can legally share relevant information when filing an ERPO petition, aligning HIPAA’s privacy rules with the preventive intentions of ERPO laws.

FAQs

Can the individual contest an ERPO?

Yes, the individual (respondent) has the right to contest the order. A hearing is usually set shortly after the temporary order is issued, where the respondent can present evidence and argue against the imposition of a longer-term order.

What happens if someone violates an ERPO?

In many jurisdictions, violating an ERPO is a criminal offense. Depending on the severity of the violation and local laws, penalties can include fines, arrest, and potential jail time.

How does one get their firearms back after an ERPO expires or is terminated?

Procedures for the return of firearms vary by jurisdiction but generally involve applying to the court for the return of the firearms once the order has expired or terminated. The individual may need to pass a background check before the firearms are returned.