Whether you call it a “red flag” law or “Extreme Risk Protection Order,” laws that allow people to petition a court to remove someone’s access to firearms are gaining traction.
The rules vary in the five states that have these laws. Some states only allow law enforcement to request them. In Washington state, family and even friends can request Extreme Risk Protection Orders.
You don’t need a lawyer to get one. You can access the petition online and file it with the court. But if you need help, the King County Regional Domestic Firearms Unit can walk you through the process.
“It’s basically a two-part process,” program manager Sandra Shanahan said,” so people would come in, they would fill out the forms identifying who they are, who they’re filing against, what the concerns are, and then provide a narrative of the behavioral crisis that they’ve observed that leads them to be fearful for this person’s safety or the safety of others. They would see a commissioner or a judge that same day and they could get an emergency order that’s in place for two weeks. Then the other party gets served and then they would come back two weeks later and the court would hear it [in order] to see if there is merit, and if they should enter the order for a longer period.”
Kim Wyatt, a senior prosecutor with the firearms unit, says while the law allows a friend or other third party to serve the person with the order once it’s granted, they don’t recommend it.
“Each one of these we have done has been served by law enforcement because of the risk associated with that. And I think that was the intent, that law enforcement gets these orders right away, they immediately go out and try to create a safety plan to get the firearms from somebody.”
Wyatt says the idea is for cops to serve the order the same day a judge grants it.
“It’s worked fairly well in many cases. We did have a recent case where somebody wouldn’t answer the door and we ended up assisting Seattle Police Department with a search warrant in that case.”
In that case, officers got the warrant and went in to actually seize the weapon. But Wyatt says that’s the only ERPO case in the state she’s aware of where police had to get a warrant to take someone’s weapons, rather than the person voluntarily turning them in.
Our state’s law was created by citizen’s initiative (I-1491), which did have some support from gun owners. But others were concerned about what they saw as a threat to due process.
Shanahan says the law has protections in place so a person can’t just easily strip away someone’s Second Amendment rights.
“They still have to see a judge, they still have to present their case and have facts that provide enough of a basis for the court to act. The person who is restrained does have the right to come in and respond to it — argue against it. This isn’t people just coming in and willy-nilly getting firearms taken away. There is a vetting process to make sure its sufficient under the law.”
When should someone consider asking for an order
Wyatt says there are really two types of situations where a family member may want to consider requesting an ERPO.
“Either when people are in a mental health crisis or exhibiting violent behavior. The family member doesn’t exactly know what’s going on in the mental health side, but they’re seeing an escalation or a change in violent behavior, fixation or fascination with weapons, threats of suicidal ideation. All of these things are what we’re kind of seeing in the petitions before us.”
And you’ll need evidence, Shanahan says.
“Different things that kind of form a pattern of behavior that’s showing that somebody may be having some dangerous thoughts, danger to themselves or to other people and that can be evidenced by social media posts, emails, texts, actual communication — verbal threats directly. And so it’s all of those things together that somebody would be able to provide in a narrative to the court as evidence of why they have such concern for that person.”
Shannahan says this is just as much about preventing suicide as it is stopping murders or mass shootings.
“With all of the focus on Parkland, I don’t want anybody to forget the importance of ERPOs as a tool to prevent potential suicides. We don’t want this to further stigmatize people. It’s really an opportunity to get help and assistance and we want it to be in as non-stigmatizing of a way as possible.”
Wyatt says ERPO’s don’t just mean you have to surrender your existing weapons. You also can’t buy a gun while it’s in effect.
“As soon as the ex-parte or emergency order is signed, the law enforcement or individual brings it back to the clerk’s office. The clerk’s office is mandated by statute to immediately get that into system. They also contact local law enforcement so that it hits all the databases within Washington state, including into the national NICS system so that it flags specifically for firearms purchase.”
So, in other words, you land in the same databases you do if you’re a felon or anyone else not allowed to have a gun.
After the initial 14-day emergency order, a court hearing is held where the person it’s being requested against can also make their case. If a judge grants the ERPO at the full hearing the person loses their gun rights for one year.
After that year, they don’t just get their guns back. Shanahan says there’s a process, including the ability for the person who requested the order to ask for an extension.
“So, they could file a petition basically saying they had ongoing fear of this person and the court would set up another hearing and then the other party would be able to respond. And respondents have one opportunity during the life of the ERPO to come in and try to terminate it, to argue that there’s been some substantial change in circumstances and why they’re no longer a risk or a danger.”
She says while the person doesn’t have to get mental health counseling in order to prove to the court they’re no longer a danger and get their gun rights back, it’s certainly a good way to show a judge the situation has improved.
King County courts have handled approximately 30 of these cases since the law took effect in 2016, with the new firearms unit handling about 10 since the start of this year. Of those, all but one have resulted in the person losing their gun rights for the full year.
You can find out more about Extreme Risk Protection Orders and get the forms to file one here.