Frequently Asked Questions about LD 1312 Understanding the Extreme Risk Protection Order (“ERPO”), sometimes referred to as a “Red Flag” law.

Why does Maine need an ERPO? How is it different than Maine’s current laws?

In Maine there is no legal process for removing firearms from individuals who are temporarily at a higher risk of violence towards themselves or others but are not otherwise prohibited from possessing firearms. This means that law enforcement and families don’t have the legal tools to remove firearms from people who are exhibiting dangerous behaviors. An Extreme Risk Protection Order is a critical preventative measure that fills that gap by allowing family members and law enforcement to seek an order issued by a judge to temporarily reduce access to firearms by individuals who pose a threat to themselves or others.

Under this bill, who can seek an ERPO?

Law enforcement officers and immediate family and household members of the individual exhibiting dangerous behaviors may petition for an Extreme Risk Protection Order. Ten of the 15 states with Extreme Risk laws, plus the District of Columbia, also provide that family and household members may petition for an order.

Are there adequate due process protections in the bill?

The Extreme Risk Protection Order is modeled after Maine's domestic violence protective order process, which allows relief (including firearm purchase and possession prohibitions and removal of firearms) through a temporary order, which may be issued ex parte—that is, without the individual who is the subject of the order appearing before the judge. These temporary orders only last until a full hearing can be scheduled. The due process protections afforded by the temporary order in this bill are nearly identical in substance and form to those afforded in the case of domestic violence temporary protective orders under current law. Temporary domestic violence protective orders issued ex parte have been routinely upheld against due process challenges.

Will the respondent have access to counsel?

When a hearing is held, all parties, including the respondent, will have the opportunity to have a lawyer present to represent their interests. The bill provides for appointment of counsel to indigent individuals who would otherwise be unable to afford an attorney. While this is not constitutionally necessary, the bill’s sponsors have included this provision in response to statements shared by some members of the public.

What’s to stop someone from seeking an ERPO in bad faith or as some form of punishment?

The petitioner must allege, in writing and under penalty of perjury, that the respondent poses a threat and provide credible evidence that the respondent poses the risk alleged in the petition. Upon evaluating the evidence, a judge must find that there is sufficient evidence to issue the order. A person who knowingly seeks a false order would have committed perjury, and could face criminal penalties.

How do you respond to claims that abusers will use ERPOs to disarm victims of domestic abuse?

The presence of a gun in situations involving domestic abuse increases the likelihood of harm to the victim. Evidence is clear that abused women are five times more likely to be killed by their abuser if their abuser has access to a gun. Further, laws that restrict access to firearms for persons under domestic violence restraining orders are associated with a 10% reduction in intimate partner homicides and a 13% reduction in firearm intimate partner homicides. These results are consistent with findings from other studies.

A petition for an extreme risk protection order must be made under oath and contain a sworn affidavit. The issuance of an ERPO requires a decision by a judicial officer based on evidence of behavioral risk. If a person attempted to maliciously petition for an ERPO in order to potentially disarm their victim in a domestic violence situation, the petitioner would be subject to civil liability and penalties.

Further, the state has long had a Protection from Abuse law which allows for an ex parte order from a court restricting an accused abuser from accessing firearms. Maine’s ERPO bill is modeled on this long-standing and life-saving law.

What happens to the firearms when an ERPO is issued?

Respondents to an Extreme Risk Protection Order shall be required to surrender all firearms from their possession or control to law enforcement. Once the order has expired, the respondent may request to have their firearms returned.

Can the respondent get their firearms back if there is no longer a threat?

Yes, the respondent may file a written request for a hearing to dissolve an Extreme Risk Protection Order. A hearing would then be held on the request, and respondent would be required to provide proof that they do not pose a serious threat of causing personal injury to themselves or others by having access to firearms.

Will law enforcement support and implement this policy?

Yes. The Maine Chiefs of Police Association support this policy, as has law enforcement in the other states where it has passed. Additionally, extreme risk laws are being effectively implemented in states around the country.

California’s ERPO law has been used to disarm dangerous individuals and suicidal family members. On April 12, 2018— the day after Vermont enacted this lifesaving policy, and two months after the Parkland massacre—Vermont law enforcement obtained an ERPO against an 18-year-old who had planned a mass shooting at a high school. The would-be murderer kept a diary called “Journal of an Active Shooter,” in which he detailed his plans to cause more casualties than any previous school shooting. In Washington state, a Senior Deputy Prosecuting Attorney for King County, Kimberly Wyatt, recounted several instances in which Washington’s ERPO law helped prevent gun deaths, including:

• a concerned therapist who contacted law enforcement to remove firearms from their suicidal patient;

• a woman who requested an ERPO for her suicidal partner, who later shared his gratitude that someone had intervened and removed his firearms during that moment of crisis; and

• a doctor who alerted police about their patient’s “hit list” and intention to commit mass violence. Extreme risk laws are enforced and actively saving lives in the states that have them.