Duke Panel Discussion on Extreme Risk Laws

Last night at Duke, we held a fantastic panel discussion with distinguished guests Professors Kristin Goss & Jeffrey Swanson and North Carolina Representative Marcia Morey to discuss Extreme Risk laws, often called Red Flag laws. These are laws that allow law enforcement to temporarily remove firearms from individuals that a court determines are a danger to themselves or others. If the person asking the court to temporarily remove the firearms proves their case, the court can enter what’s usually called an Extreme Risk Protection Order (or ERPO for short) that permits law enforcement to disarm the person who has been found dangerous.

Seventeen states and the District of Columbia currently have Extreme Risk laws on the books. More than a dozen of those have been passed in the last two years. In other words, there’s clearly momentum behind this type of legislation.

One important thing to note is that these are all state-level interventions. There is no federal Extreme Risk law, and the current proposals about federal legislation would not create one. Instead, the federal proposals are designed to provide grants to incentivize states to pass their own Extreme Risk laws that satisfy certain standards. The proposed federal legislation would also make it a federal crime for someone under an ERPO to possess guns, so that a person subject to a North Carolina ERPO couldn’t simply jump into Virginia and purchase a gun. Because the Extreme Risk laws are state-level interventions, the laws can vary quite a bit.

There are several main features of Extreme Risk laws, and the state laws differ on these dimensions. First, the states vary in who can petition for an ERPO; all states allow law enforcement to seek an ERPO. And most allow family or household members to do so in addition to law enforcement. Several expand the pool farther, such as allowing mental health professionals, school administrators, or coworkers to petition for an ERPO.

Second, the states differ in how the petitioner can get emergency relief. This often happens in what’s called an ex parte proceeding, where the petitioner shows that the person against whom the ERPO is sought (generally called the respondent) is an imminent risk of harm to himself or others; the proceeding is called “ex parte” because it can take place without the respondent. The states vary in the showing the petitioner must make to get an emergency ERPO – the majority require reasonable, probable, or good cause, some require a preponderance of the evidence (a showing of more likely than not) and others use a “clear and convincing” standard, which is generally the hardest burden to meet in civil cases. None require proof beyond a reasonable doubt, which is generally restricted to criminal cases.

Third, states differ in how long the emergency, ex parte ERPO can last before the Respondent is given a chance to respond at a hearing. The states range from permitting these ex parte orders to remain in effect for just a day or two in Maryland all the way up to 21 days in California and Oregon. The most popular number among the states is 14 days for an ex parte ERPO.

Finally, the states differ in what the petitioner must to do obtain a full ERPO, which typically lasts for six months or a year. About 2/3 of the states require the petitioner to make her case by clear and convincing evidence—again, the most demanding civil burden of proof—and the other 1/3 permit a full ERPO based on showing a preponderance of the evidence.

Extreme Risk laws have been effective at generating bipartisan consensus in many states. But there are critics who say these laws run afoul of the Second Amendment or violate the Respondent’s due process rights. Joseph and I are at work on a paper that will discuss these constitutional dimensions and plan to post about that in more depth on this blog in the coming weeks. Briefly, so long as procedural mechanisms are provided to the Respondent that meet the requirements of Constitution’s guarantee of due process, the Second Amendment arguments to temporary removal based on a finding of dangerousness are likely to fare poorly given the current state of the law.

As for due process, the Supreme Court has said that, in general, due process requires notice of the government action and an opportunity to be heard. In exceptional circumstances, the opportunity to be heard can be postponed until after the deprivation has occurred. Thus, the idea of an ex parte, emergency ERPO is consistent with the Supreme Court’s recognition that emergency situations justify quick actions necessitating seizure of property before a hearing is held.

A video from the event will be posted on the Center’s website when it becomes available.