What you need to know about extreme risk protection orders (ERPOs)
By Anna Street
Imagine a legal mechanism that could swiftly intervene to prevent tragedies before they unfold—such is the promise of the extreme risk protection order (ERPO). Created under the terms of Minnesota’s new “red flag law,” which went into effect on January 1, 2024,1 ERPOs are temporary civil orders that restrict firearm possession by persons who pose significant danger of bodily harm to others or a significant risk of suicide.
In an era defined by escalating concerns over gun violence and mental health crises, red flag laws stand as a contentious yet potentially transformative measure at the intersection of public safety and individual rights. The Minnesota Supreme Court subsequently issued a standing order modifying the accessibility of these filings to ensure that any personal, compromising mental health information necessary for a filing will be protected from public view.2
What is an ERPO?
The implementation of red flag laws gained momentum in the wake of mass shootings and high-profile incidents of gun violence, as policymakers sought proactive measures to prevent future tragedies. Such laws have been enacted in 21 states and the District of Columbia,3 each with its own variations in terms of procedures, criteria for firearm removal, and duration of the orders. In Minnesota, ERPOs may be used in conjunction with other forms of legal relief already available. For example, orders for protection, harassment restraining orders, and domestic abuse no-contact orders (DANCOs) aim to protect individuals from domestic violence, harassment, stalking, or other forms of abuse. When mental health is a concern, there are civil commitment options as well as other ways to ensure that an individual is getting the medical help they need. ERPOs should make these other tools more effective by removing the immediate safety concern of an individual possessing a firearm.
The statute authorizes the issuance of three different types of ERPOs: ex parte, after hearing, and orders extending a prior ERPO. Judges must consider specific factors when deciding whether to issue any ERPO.4 Because of judicial ethics requirements that bar judges from conducting their own factual investigations, it is unclear right now how the requirement to consider certain information that might be readily available in the court system will be interpreted.5
For this reason, practitioners should ensure that any relevant court cases involving the respondent are noted within the four corners of the petition. The Minnesota Board of Judicial Standards has issued an advisory opinion further recommending that, if the court relies on a court record in another case, the court should give the parties an opportunity to be heard on the propriety of taking judicial notice of that court record after issuing an ex parte order.6 Because of the expedited nature of these proceedings, there is a balance to be struck between providing enough information for judges to analyze whether they should issue the order and not making the petition so long judges must sift through myriad background or supplemental information to find the most pertinent facts. ERPOs are temporary and provide strict time frames for the respondent to be heard.7 These orders will likely face constitutional challenges. But since these orders mirror due process requirements of other states’ red flag laws and of protective orders in Minnesota, proponents of the law are confident the constitutionality of the statute will be upheld.
Proponents further argue that red flag laws provide a crucial tool for intervening in situations where there are clear warning signs of potential violence, such as threats of harm or severe mental health crises. They assert that these laws can help prevent tragedies by temporarily removing firearms from individuals in crisis, giving them time to receive appropriate mental health treatment or other necessary support.
Critics, at the same time, raise concerns about due process rights, potential for abuse, and the subjective nature of determining who poses a risk. They argue that red flag laws could lead to unjustified infringements on Second Amendment rights and the stigmatizing of individuals with mental health conditions.
Given the polarizing nature of these laws, courts are likely to face appeals on various aspects of these statutes.
Who can apply for an ERPO?
Only certain individuals can apply for an ERPO:8 a chief law enforcement officer or designee, city or county attorney, family/household member,9 or guardian10 of respondent. These definitions are specific, and the family/household member definition differs from other statutes which use that term. Practitioners should carefully review the definition in the ERPO statute when determining if this is a viable cause of action for your client. Notably, mental health professionals are not permitted to file ERPOs—but they are required to communicate any threat of risk to the sheriff where their client resides if they are under a statutory duty to warn another of their client’s serious threat of physically violent behavior or significant risk of suicide by possessing a firearm.11 Mental health providers are also required to make a recommendation to the sheriff regarding the client’s fitness to possess firearms. Application, enforcement, and liability related to this obligation may be litigated to provide additional guidance about what is expected of mental health professionals.12 Some liability protections are enumerated in statute for certain professionals.13
Experience in other states suggests that law enforcement will be the most common petitioner requesting these orders. As law enforcement gets familiar with this new tool, we will see how impactful it proves to be in protecting communities. ERPO effectiveness in preventing firearm deaths, violent crime, defensive gun use, and other outcomes certainly calls for more research.14 Effectiveness is likely to vary depending on factors such as implementation, enforcement, and the specific circumstances of each case.
The law permits county and city attorneys to petition. This may create confusion as to role of those attorneys. There could be arguments over whether they are witnesses or practitioners. Again, as Minnesota becomes more familiar with this tool, clarity will likely occur either through case law or the development of best practices. If law enforcement is not the petitioner in a matter, they must be notified of the action.15 If an ERPO is granted by the court, law enforcement is tasked with implementing and executing the order, including exercising any subsequent search warrants, regardless of what category a petitioner falls into. Law enforcement will be expected to request a search warrant to obtain the firearms to address any Fourth Amendment search and seizure concerns.
Practitioners should work closely with law enforcement regardless of whether they are filing as a county/city attorney or for an individual to yield the most effective and quick execution of an ERPO.
Court administration must forward any ERPO to law enforcement within 24 hours16 and send an ERPO order within three business days to the National Instant Criminal Background Check System.17 These alerts are to be removed by court administration if the order expires or is dismissed.18 A respondent may petition the court to terminate an ERPO issued after hearing.19 The respondent must show by clear and convincing evidence that the respondent does not pose a significant danger to other people and is not at significant risk of suicide by possessing a firearm. Once some respondents receive mental health care with the proper therapy and medication, it is possible that this statutory option could be used successfully.
Courts are gearing up to navigate the complex legal landscape surrounding ERPOs, seeking to ensure fair implementation while balancing the imperative of public safety with due process rights. Similar to warrants, counties are prepared for after-hours requests for these types of orders, and they will likely be handled faster than other types of emergency orders such as protection orders or harassment orders. It will vary by county what court calendar these cases are assigned to; some counties may create new calendars to handle any hearings resulting from requests for an ERPO. Procedures may also change with time as the legal system gains more information about how often Minnesotans will utilize this new order.
What happens after an ERPO is issued?
When an ERPO is granted, the court directs the respondent to transfer any firearms the person possesses as soon as reasonably practicable, but within 24 hours. Firearms must be transferred to a federally licensed firearms dealer or a law enforcement agency. (“Firearm” is defined in the ERPO statute as a device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion or force of combustion.20 The definition is taken from the negligent storage of firearms statute.21) If the respondent elects to transfer the respondent’s firearms to a law enforcement agency, the agency must accept the transfer.22 A temporary transfer that does not modify ownership or title is permitted. Dealers are permitted to charge a reasonable fee for temporary transfers, but law enforcement is not. There are, however, grants that law enforcement can access to cover some or all these additional costs.23 There is also an option, in cases involving antique or relic firearms, for the respondent to give the firearm to family members instead of law enforcement or a licensed firearm dealer.24
A search warrant shall be issued if an emergency ERPO is issued or the court makes a finding of immediate and present danger and there is a probable cause to believe the respondent possesses firearms.25 Law enforcement should be making the requests for search warrants on behalf of any type of petitioner for an ERPO. The search warrant for the seizure of the firearms will need to be issued by a judicial officer with jurisdiction over the location where the seizure will occur. Some situations are likely to require coordination between law enforcement officers seeking search warrants in different jurisdictions to assure that every firearm is obtained, since some respondents may store them in more than one jurisdiction (keeping hunting firearms at a cabin, for example).
The courts are striving for as much uniformity as possible. As individual counties encounter ERPOs and individual law enforcement agencies roll out their own utilization and application of the law, time will tell exactly what this will look like. A respondent must be given the opportunity to voluntarily comply with the surrender of firearms prior to execution of a search warrant.26 How this provision is applied to the execution of a search warrant may be a point of future litigation.
Violation or misutilization of this statute has criminal ramifications.27 Though there is significant prosecutorial discretion with regard to charging and sentencing requests, existing ineligible person to possess firearm laws are statutory gross misdemeanors,28 while violation of the ERPO statute is a statutory misdemeanor.29 Similarly, if there is a contemporaneous protective order and a respondent violates both that protective order and the ERPO, the protective order is enhanceable,30 whereas the ERPO statute is silent as to enhanceability.
Conclusion
Extreme risk protection orders (ERPOs) represent a multifaceted approach to addressing the complex intersection of mental health crises and gun violence. While proponents laud their potential to prevent tragedies and save lives, critics raise legitimate concerns regarding due process rights and the potential for misuse. As ERPOs continue to be implemented and evaluated across jurisdictions, it is imperative to strike a balance between protecting public safety and upholding individual liberties. Ultimately, the efficacy of ERPOs hinges not only on the legal framework but also on robust mental health support systems and community engagement efforts.
The interplay between ERPOs and other safety measures that already exist in the law is yet to be seen. As this new law is implemented and different agencies and counties learn how best to deploy its tools, the hope is that our communities become safer and residents are better able to access the resources available to them. Only through ongoing dialogue, research, and refinement can ERPOs fulfill their intended purpose of mitigating risk while respecting the rights of all individuals involved.
ANNA STREET is an associate attorney at Tuft, Lach, Jerabek & O’Connell and focuses on family law and civil litigation. Anna has focused her career on making our community a safer place for families to thrive.
Notes
1 See Minn. Stat. §§624.7171-.7178 (2023).
2 https://www.mncourts.gov/About-The-Courts/NewsAndAnnouncements/ItemDetail.aspx?id=2300 (Retrieved 2/4/2024).
3 https://www.mprnews.org/story/2023/12/28/red-flag-gun-removal-orders-become-new-option-in-minnesota-in-2024?gad_source=1&gclid=Cj0KCQiAwvKtBhDrARIsAJj-kTj6C0_bPllFmb8roTdJ6SPHEzfgkGaIhfVMqrEg-VU6mDip4yCV7kAaAnsBEALw_wcB
4 Minn. Stat. §624.7172 subd.2(b)-(c) and Minn. Stat. §624.7173(a).
5 Minn. Code of Jud. Con. 2.9(C).
6 Minn. Bd. Jud. Cond. Adv. Opin. 2016-2 at 5.
7 Minn. Stat. §§624.7171-.7174.
8 Minn. Stat. §624.7171 subd. 4(b).
9 As defined in Minn. Stat. §624.7171 subd. 1(b).
10 As defined in Minn. Stat. §524.1-201. Clause (27).
11 Minn. Stat. §624.7171 subd. 5.
12 See definition of who is a qualifying professional see Minn. Stat. §624.7171 subd. 1 (d) and Minn. Stat. §245I.02 subd. 27.
13 Minn. Stat. §624.7178.
14 https://www.cnn.com/factsfirst/politics/factcheck_a3eef96b-644f-4292-b0d3-caeb5a772950
15 Minn. Stat. §624.7172 subd. 1(f).
16 Minn. Stat. §624.7171 subd. 4(m).
17 Minn. Stat. §624.7171 subd. 4(m).
18 Presentation by the Hon. Dale Harris and Hon. Maximillia Utley, “Extreme Risk Protection Orders and Sign and Release Warrants” (1/17/2024).
19 Minn. Stat. §624.7173 (b).
20 Minn. Stat. §624.7171 subd. 1(c).
21 Minn. Stat. §609.666, subd. 1(a). See also State v. Haywood, 886 N.W.2d 485 (Minn. 2016); State v. Glover, 952 N.W.2d (Minn. 2020).
22 Minn. Stat. §624.7175 (a).
23 https://dps.mn.gov/divisions/ojp/grants/Pages/default.aspx
24 Minn. Stat. §624.7175 (c)(1).
25 Minn. Stat. §624.7175 (d).
26 Id.
27 Minn. Stat. §624.7177.
28 See Minn. Stat. §624.713.
29 Minn. Stat. §624.7177 subd. 2.
30 See Minn. Stat. §518B.01 subd. 14.