Extreme Risk Protection Orders: A Common-Sense Approach to Gun Violence Prevention

Extreme Risk Protection Orders (ERPOs) allow authorities to temporarily remove firearms from high-risk individuals, aiming to prevent violence and enhance public safety across 21 states.

When addressing our nation’s gun violence crisis, the majority agree that prevention is the most crucial factor. No longer satisfied by the status quo, our nation is now looking for “common sense” gun legislation and mental health intervention to prevent these attacks before perpetrators are able to bring their sick ideas to fruition. Past efforts, such as the 1968 Gun Control Act, highlight the initial steps we took to regulate firearms, as insufficient as this measure now seems. Now, most Americans want tougher regulation to prevent firearms from being purchased or collected by individuals who have shown to be a risk to themselves and others. Such legislation, referred to as Extreme Risk Protection Orders (ERPOs), or “red flag laws”, were first introduced by Connecticut in response to several high-profile shootings, which served as a template for the 21 states that have released similar legislation. As mass shootings are still a regular occurrence, it’s important that we evaluate the historical context of these laws and evaluate their current impact on justice and victimization.

Background checks have been the mainstay for preventative gun violence solutions, but they have proven to be an insufficient means of preventing guns from falling into the wrong hands. Wide variation in state gun restriction criteria, inconsistencies in local enforcement, and gaps in reporting hinder effective identification of individuals who should be barred from gun ownership. Guns are highly durable and often stand the test of time, leading to firearms being passed down as heirlooms—even into the hands of dangerous individuals. Between these issues and the loopholes inherent in private gun sales (which don’t require background checks), it’s estimated that there are now more guns in America than Americans, making a mockery of the idea that background checks alone are a sufficient safeguard against improper gun ownership.

In 1999, a year after a mentally-ill Connecticut Lottery Corporation worker murdered four of his coworkers before shooting himself in his head, Connecticut passed Public Act 99-212, making it the first state to pass legislation that gives the state authority to seize weapons from individuals deemed as dangerous. The proliferation of these laws into the rest of the nation has resulted in preventing instances of mass violence, such as when authorities seized 18 guns from a San Jose police officer after he made explicit threats to an attorney. There have been several instances in states with red flag laws that weren't utilized properly. The Highland Park shooting is a case in point, where the shooter, previously flagged for mental health concerns, was still able to legally purchase a firearm, which he later used to kill seven people—after his father sponsored the purchase. We’ve also seen instances where states that have not passed ERPO laws undergo tragedies at the hands of deeply-disturbed individuals that would have otherwise been flagged, such as when a woman with a documented history of crime and mental illness opened fire at Lakewood Church in Houston. Such events highlight not only the need for further implementation of these immediate intervention laws, but a realignment of the qualifiers and processes of legally seizing these firearms from potential perpetrators. 

While other states followed suit behind Conneticticut’s law, many of these laws were updated and altered to satisfy bipartisan interpretations of the law; some found the laws would exclude mentally-ill people from their second amendment right, others found it unacceptable to limit access to guns in general. Because of this, many found the state of these laws to be convoluted and taxing at the police level. 

Take a look at Connecticut's original ERPO, where to legally seize the weapons of a individual who has been deemed at “imminent risk” required an affiant, a co-affiant, supervisor’s review, State’s attorney’s office review, and approval and a judge’s signature and then, of course, an execution on that warrant.1 While these steps were taken to ensure the protection of an individual’s rights, it certainly hindered the disarming of dangerous individuals, especially for police departments with staffing issues and limited resources. Furthermore, authorities were only able to hold the individual’s weapons for up to fourteen days before a decision had to be made to return the seized weapons or hold them for up to a year. At these hearings to determine the future of the subject’s gun ownership, the court had to agree that “the person poses a risk of imminent personal injury to himself or herself or to other individuals”––a difficult precedent to attain. Because of the labor-intensive nature of enacting these original statutes, along with the constitutional “red tape,” only a small amount of guns were seized in Connecticut––only about twenty per year, on average, from 1999 through 2006.2

Connecticut’s ERPO has been updated to allow family members, medical professionals, and police to petition the court directly to seize firearms if a person poses an imminent risk, reducing the need for multiple reviews or signatures that previously slowed down the process. Now, states develop these statutes following a model outlined by the federal government, which draws upon two different approaches. A “warrant” statute provided immediate action for authorities to get court orders to temporarily restrict individuals from possessing or purchasing firearms, whereas an “order” statute provided more long-term restrictions. The current model combines both templates, “[including] language that would authorize the judicial issuance of no-firearms orders for dangerous individuals and the concurrent issuance of search warrants to search for and seize their firearms.”3 

Different states have largely consistent qualifications for legally seizing an individual’s weapons. One common factor is that these orders can only be instigated by someone close to the individual in question: a spouse, blood-relative, member of the household, etc. Petitions for removal can also be requested by law enforcement officers. States such as California extend this ability to employers, coworkers and teachers. When determining whether or not to grant this order, certain qualifiers remain constant across states with ERPOs: recent or past violent threats or acts toward oneself or others, substance abuse, felony arrests, violations of protection orders, and the use or threat of physical force. Individuals can also be deemed a threat based on a history of dangerous behavior or mental health concerns.

Are Extreme Risk Protection Orders working?

While it’s difficult to determine exactly if ERPOs prevent individuals from carrying our mass violence, research into their effectiveness in preventing suicides and domestic violence shows moderate, but meaningful success. Research suggests that for every 10–20 ERPOs issued, one suicide is prevented. In states like Indiana and Connecticut, firearm suicides decreased by 7.5% and 13.7%, respectively, after implementing ERPO laws. Additionally, in a study of California’s ERPOs, 10% of ERPO cases involved threats of mass violence, with no mass shootings, suicides, or homicides occurring after intervention in cases where subjects showed clear intent to commit such acts. In states where ERPOs are utilized effectively, there is a clear indication that these orders prevent violence and victimization. 

The U.S. Department of Justice iterates that these laws are more effective when their implementation is supported by the relevant community stakeholders and properly funded. All participants in the ERPO process—including law enforcement, mental health professionals, healthcare providers, victim advocates, and community leaders—must be well-versed in these statutes. They need proper training for their specific roles, actively promote awareness of the laws, and engage in the ongoing development and improvement of ERPO protocols to ensure they are effectively implemented.

Extreme Risk Protection Orders have proven to be an effective preventative tool against victimization relating to gun violence. Nothing stokes the frustrations and routine cynicism surrounding the U.S. gun violence problem more than stories of gun violence where the perpetrator was a known problem, with a history of violence, where those close to them had vocalized their concerns. There is no longer an excuse for letting a sizable concern slip through the cracks. Citizens in states with ERPOs should be encouraged to utilize these laws in the effort to protect the millions of Americans who live in uncertain, violent circumstances.4 Access to firearms is a constitutional right, but like all systems, needs to be checked and regulated. Citizens in states that do not have these laws would do well to petition their state to invest resources into developing ERPO legislation that fits their social landscape. If we, as a country, can't support common sense legislation, then we allow those whose temperaments defy common sense to continue their parade of violence unchecked.

  1. Jeffrey W. Swanson et al., Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?, 80 Law and Contemporary Problems 179-208 (2017). Available at: http://scholarship.law.duke.edu/lcp/vol80/iss2/8
  1. Jeffrey W. Swanson et al., Implementation and Effectiveness of Connecticut’s Risk-Based Gun Removal Law: Does it Prevent Suicides?, 80 Law and Contemporary Problems 179-208 (2017). Available at: http://scholarship.law.duke.edu/lcp/vol80/iss2/8
  1. Commentary for extreme risk protection order model legislation. U.S. Department of Justice. (2022, October 25). https://www.justice.gov/doj/reducing-gun-violence/commentary-extreme-risk-protection-order-model-legislation 
  2. Jeffrey W. Swanson, Mark L. Rosenberg; American Gun Violence & Mental Illness: Reducing Risk, Restoring Health, Respecting Rights & Reviving Communities. Daedalus 2023; 152 (4): 45–74. doi: https://doi.org/10.1162/daed_a_02031

Jacob Lasswell has been writing at Drift Net for over three years, bringing much-needed exposure to the reality of mass violence in the United States. Engaging with the nation’s security and violence prevention thought-leaders, Jacob brings the perspectives of the victims and onlookers of mass violence to the forefront, with an emphasis of finding solutions.