Extreme Risk Protection Orders Respect Due Process
Extreme risk laws, also known as red flag laws, allow family members or law enforcement to ask a court to temporarily restrict a person’s access to firearms when there is sufficient evidence they pose a serious threat to themselves or someone else. To date, 18 states and the District of Columbia have enacted extreme risk laws, President Trump has voiced his support, and there are several bipartisan extreme risk bills pending in Congress.
Due process is built into extreme risk laws at every step of the process—from who can request an extreme risk protection order, to rules about when emergency orders can be issued, to stringent requirements that must be met before a final order can be issued. These orders are only temporary and guns must be returned when they expire. And courts are upholding extreme risk laws against constitutional challenges—finding they respect due process and do not violate the Second Amendment.
There are strict limitations on who can request an extreme risk protection order.
Only a limited group of people may ask a court to issue an extreme risk protection order—typically only law enforcement officers and family or household members.
- State laws vary on how family is defined and whether they can request an extreme risk protection order. Illinois, for example, only allows a family member to request an order if they are related by blood or marriage or living in the same home. Oregon limits family petitioners to a spouse, intimate partner, child, parent, sibling, or person living in the same household. And some states, like Indiana, don’t allow any family members to request an extreme risk protection order—limiting it only to law enforcement.1
- These limitations mean that it’s 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, that are requesting a judge issue an extreme risk protection order.
- Law enforcement agencies may also complete internal review processes before going to a court. In Florida, for example, the Broward County Sheriff’s Office has instituted a review process for all petitions so that when a Broward County sheriff’s deputy identifies a case as requiring an extreme risk protection order, it must be approved by their superiors and then reviewed by attorneys before the case can be filed in court.2
- Under H.R. 1236, a bipartisan bill pending in the House of Representatives, only family or household members (including current dating or domestic partners) or a law enforcement officer would be able to file for a federal extreme risk protection order.3
An extremely high bar has been set for emergency orders.
Some situations are so dire that they require an emergency “ex parte” order, issued before a full hearing can be held. In those cases, the court must make a factual determination that there is an immediate risk of harm and the order can only last temporarily until a full hearing can be held—typically within seven to 21 days.
- Courts have routinely rejected due process challenges to emergency firearms prohibition and removal orders. These cases have found that a full hearing is not required before issuing a temporary emergency order because the interest in protecting victims outweighs the risk of erroneous deprivation of the firearms, a neutral judge makes the decision whether to issue the order, and the period between the emergency order and the full hearing is relatively short.4
- The United States Supreme Court has recognized, in multiple contexts, that the process used for these emergency orders—a pre-hearing deprivation followed by a full hearing within a reasonable time frame—satisfies the due process of law required by the Constitution.5
- The Supreme Court has ruled that constitutional due process is satisfied as long as: 1) the government interest is strong; 2) a state officer, such as a judge, is required to make a factual determination that the order is necessary; and 3) a post-deprivation hearing is available within a short period of time.6 Extreme risk laws meet each of these criteria for a constitutional process—it’s hard to imagine a situation more suited to an emergency order than an armed individual experiencing some kind of crisis who appears to be suicidal or a threat to others.
- A federal temporary emergency order under H.R. 1236 would require a signed affidavit with specific facts that a judge finds show probable cause the person is an imminent risk to themselves or others and then there must be a full hearing within three days.
Stringent requirements must be met before a final order can be issued.
A final extreme risk protection order, generally lasting no longer than one year, can be issued only after a hearing where the person is given notice ahead of time and during which they have an opportunity to be heard and respond to evidence.
- When someone asks a court to issue an extreme risk protection order, they must present evidence to the judge and have the burden of demonstrating that the person poses a significant danger of harming themselves or others with a firearm. That person then has the opportunity to respond to any evidence presented, and present their own evidence.
- Many states’ laws include penalties for presenting false evidence.
- State laws typically specify the types of evidence that a judge is permitted to consider in these cases, such as recent acts and threats of violence or recent unlawful or reckless use of a firearm.
- A final federal extreme risk protection order under H.R. 1236 would require notice to the person and a full hearing. The person has the right to a lawyer, and will be provided one if financially necessary. The order would only be issued if a judge finds there is clear and convincing evidence that the person is a risk to themselves or others based on specific factors, and the final order would last for six months.
Extreme risk protection orders are only temporary and any guns surrendered are returned when the order expires.
Extreme risk protection orders are temporary and remove a person’s access to guns only for the period in which they pose a serious risk to themselves or others. The laws include a process for people to end the order early if the crisis passes. Once the order expires, the person gets their guns back as long as they are not prohibited from having them for any other reason.
- Emergency extreme risk protection orders last only for a few days (usually seven to 21) and final orders, issued only after a full hearing, expire after a set period of time—typically six months or one year.
- Before an extreme risk protection order expires, the family member or law enforcement can ask a judge to renew the order by showing evidence that the person continues to pose a serious risk of injury to themselves or another by having a gun.
- Once an order expires, any firearms that were surrendered under the order must be returned to their owner. Law enforcement will run a background check to ensure that the owner is not otherwise prohibited from owning guns under federal or state law, and as long as they are not, any guns will be returned and they will not be prohibited from purchasing others.
- Under H.R. 1236, the federal temporary emergency order would last for no longer than 14 days, and a final order would expire after six months. The person would get a receipt for their firearms and must have them returned when the order expires if they can pass a background check.
Courts are upholding extreme risk laws against constitutional challenges.
Extreme risk laws have already faced constitutional challenges and courts have found that they do not violate the Second Amendment, due process, or similar state constitutional provisions. In fact, case law demonstrates that extreme risk laws have and will continue to withstand constitutional challenges.
- An appellate court in Connecticut rejected the argument that the state’s extreme risk law violates the Second Amendment.7
- The Court of Appeals in Indiana held that its state extreme risk law does not violate a provision of the Indiana Constitution that says, “The people shall have a right to bear arms, for the defense of themselves and the State.”8
- Last September, Florida’s 1st District Court of Appeals became the first court to hear a due process challenge to an extreme risk law—and it rightly upheld Florida’s law as constitutional. In its decision, the court said that “the prevalence of public shootings, and the need to thwart the mayhem and carnage contemplated by would-be perpetrators does represent an urgent and compelling state interest.” The court explained that it upheld Florida’s extreme risk law because it has a preventative—not punitive—purpose as well as strong due process protections, like requiring a hearing within 14 days of a petition being filed.9
1. Everytown for Gun Safety Support Fund, How It Works in Your State, One Thing to Do, https://onethingtodo.org/, (last visited March 2, 2020). ↩
2. Amy Sherman, How Florida’s red flag gun law works, Politifact, (Sept. 3, 2019), https://bit.ly/2lyXGo6. ↩
3. Extreme Risk Protection Order Act of 2019, H.R. 1236, 116th Cong. (2019).↩
4. U.S. v. Calor, 340 F.3d 428, 432 (6th Cir. 2003); Kampf v. Kampf, 603 N.W.2d 295, 299 (Mich. Ct. App. 1999) (citing Mitchell v. W.T. Grant Co., 416 U.S. 600 (1973)); North Carolina v. Poole, 745 S.E.2d 26, 36-37 (N.C. Ct. App. 2013); Herbert v. Reynolds, No. 07-CV-00091, 2009 WL 3010510, at *9 (N.D. Ind. Sept. 15, 2009). In finding violations of due process rights where officials provided inadequate procedures for returning seized firearms, courts have noted that the same procedures are impractical to apply before issuing an emergency order to remove firearms, where it is consistent with due process for a hearing to take place after the order is issued. See also Razzano v. County of Nassau, 765 F. Supp. 2d 176, 186 (E.D.N.Y. 2011); Richer v. Parmelee, 189 F. Supp. 3d 334, n. 8 (D.R.I. 2016). ↩
5. See, e.g., Mathews v. Eldridge, 424 U.S. 319, 340-49 (1976); Gilbert v. Homar, 520 U.S. 924, 931-35 (1997).↩
6. See, e.g., Mackey v. Montrym, 443 U.S. 11-19 (1979); Mitchell v. WT Grant Co., 416 U.S. 600, 606-10 (1974).↩
7. Hope v. State, 133 A. 3d 519, 524-25 (Conn. App. Ct. 2016). ↩
8. Redington v. State, 992 N.E. 2d 823, 830-35 (Ind. Ct. App. 2013).↩
9. Davis v. Gilchrist Cty. Sheriff’s Office, 280 So. 3d 524, 531-33 (Fla. Dist. Ct. App. 2019).↩