Perpetrators of gun violence often signal their intent to do so before it happens. “That leakage—and all those instances of someone saying ‘I’m going to kill myself,’ or ‘I’m going to kill people at a school or church or synagogue’ or wherever the case may be—provides an opportunity for intervention,” said Lisa Geller, a Senior Advisor for Implementation at Johns Hopkins’ Center for Gun Violence Solutions and co-lead of the National ERPO Resource Center.
What should that intervention look like? Geller believes the answer lies in Extreme Risk Protection Orders, or ERPOs. ERPOs—also commonly known as “red flag” laws—are court-ordered warrants that temporarily restrict someone’s access to firearms if they exhibit behavioral risk factors.
Over the past thirty years, the debate over gun control measures has mobilized Americans across the political spectrum. Survivors, legislators, gun owners and non-gun owners alike have taken active and vocal roles in advocating for gun reform. Despite the intense controversy surrounding gun violence prevention laws, ERPOs have recently emerged in the American gun conversation as a policy where different sides of the debate might reach common ground.
For individuals under an active ERPO, not only are the firearms in their possession temporarily removed, but the order also bars them from purchasing firearms for the duration of its effect.
These laws don’t come out of nowhere. They are often passed in the wake of major tragedies. The first two red flag laws—in Connecticut in 1999 and Indiana in 2005—were both passed in response to shootings.
The atmosphere changed drastically after the 2012 shooting at Sandy Hook Elementary School in Newtown, Connecticut. That day, twenty students and six educators were murdered in an elementary school—just eleven days before Christmas.
After the shooting, Geller noted that “there was a large public discourse about the intersection, or lack thereof, between mental illness and gun violence. A group of experts, including my boss and the director of our center, Josh Horowitz, convened a group of experts in law, in health […] and that is where the notion of basing red flag laws off of behaviors instead of diagnoses, was formed.”
In other words, the group decided that individuals don’t necessarily need a mental health diagnosis for an ERPO petition to succeed—they merely need warning signs of violence.
Motivated by the massacre at Sandy Hook and other tragedies in the following years, 19 other states and the District of Columbia—in addition to Connecticut and Indiana—put ERPO laws on their books.
Not all ERPO laws are exactly the same. After the Sandy Hook shooting, most ERPO laws required petitioners to prove by clear and convincing evidence that the respondent was likely to participate in behaviors that would cause serious harm. But New York, which passed its ERPO law in 2019, took a broader approach to what it means to be a “petitioner.” The state acknowledges not just law enforcement, health care professionals or family members as petitioners, but also school officials.
According to Geller, while this broad view is unique in the national landscape, “it doesn’t seem like it’s being used among the population too much.” New York’s law diverged further from its equivalents in 2022 after a racially motivated mass shooting at a Tops supermarket in Buffalo.
Grappling with the loss of life, Governor Kathy Hochul (D-NY) expanded the scope of the red flag law to not only encourage but compel law enforcement to petition for ERPOs if they are made aware of warning signs in an individual’s behavior.
To Geller, “that is the biggest way New York differs from its neighbors. Therefore, we see pretty high numbers [of ERPO petitions] in New York.”
Jane Fanning, a gun violence prevention advocate and high school senior in Albany County, New York, agrees with the approach but believes it should not make other individuals and potential petitioners complacent about filing ERPOs.
“I think implementation is key. The government is obviously important in terms of implementation, but at the end of the day, citizens of the county need to be aware of the laws that they can utilize,” Fanning said.
Implementation matters; ERPOs cannot prevent harm if they sit unused. But because of the law’s localized nature, even after a state passes an ERPO law, some counties use ERPOs more aggressively than others.
“New York is really proactive in terms of red flag laws but obviously we see that some counties are more proactive in using them than others,” Fanning observed.
As of October 27th of this year, Suffolk County, New York has 0.233 ERPOs filed per 100 residents. St. Lawrence County, however, has seen only 0.085, or 36 percent, of Suffolk’s ERPO filing totals. The discrepancy suggests that many individuals in under-implemented counties at risk of harming themselves or others still have access to firearms, putting those individuals and their communities at risk.
Geller emphasized that this county-by-county variation in ERPO filings is a national problem.
“It’s not unique to New York. It usually stems from leadership and priority at the local level, so you could have a jurisdiction that has three times the population of its neighboring jurisdiction, but the neighboring jurisdiction has directives from leadership that this is a tool that they should be pursuing and using. It also gets down to training.”
The consequences of under-implementation are not theoretical. In August of this year, a man with a history of mental illness murdered four of his family members in Long Island after his mother’s death before turning the gun on himself.
“In that instance, they knew that the man was in crisis and law enforcement was even quoted…saying that, if someone had told us about him, we could have gotten an [ERPO],” said Geller.
In addition to county-by-county variance in petitions, there is a wide discrepancy when it comes to the petitioners themselves. Not only do school administrators tend not to file ERPOs, but other potential petitioners, too. Geller noted that in California, 96% of petitions are filed by law enforcement, despite immediate family members and employers (among other individuals) also having the ability to file.
“The same is true almost everywhere,” Geller said. She observed Maryland as an exception to this rule—about 50% of the filings are from law enforcement and the other 50% are from non-law enforcement—but she also found in her research “that it is often a non-law enforcement entity that’s initiating this discussion.”
In her words, an immediate family member concerned about an individual’s behavioral risk might “call law enforcement and have them come,” without knowing that an ERPO exists, and “even if [they’re] told that [they] can go directly to the court and file, it’s challenging, even for folks familiar with the court system.”
Geller thinks that the problem is a lack of awareness as much as it is a problem of people feeling like pursuing a court order is law enforcement’s responsibility, not theirs.
“I think it’s probably for some people, ‘This is not my job. This is not what I should do.’ But law enforcement’s job is public safety more so than family and household members writ large, and [yet] I think it’s easier for them because they’re more familiar with search warrants, with orders, with protection orders and court processes.”
Dr. Nina Agrawal, a child abuse pediatrician and gun safety advocate who has practiced in New York for about three decades, pointed towards another barrier to ERPO use. Doctors, she argued, are worried about filing ERPOs not because they are inexperienced with the process but because of liability issues. “The biggest barrier for us, in addition to just the paperwork and how you do it, is that we don’t have liability protection if somebody were to sue us for doing this filing.”
Physicians like Dr. Agrawal receive liability protection in child abuse reporting for making complaints so long as they are filed in good faith. To her, extending this kind of protection to ERPOs would offer them the freedom and legal security to petition courts.
In New York, this concern grew even more important after the Buffalo shooting in May 2022 and Hochul’s mandatory petitioning order. To her, while the order is well-meaning, its implications could put doctors at risk.
“Hochul […] changed the way law enforcement functions. What I would like is [that] we do have that liability protection, because even if we communicated concerns [to law enforcement], we could be affected,” Dr. Agrawal explained.
That said, mandating law enforcement to petition for ERPOs when they identify warning signs in individuals has increased the number of ERPOs filed.
Doctors are not the only petitioners who face challenges when filing for ERPOs. For several years, using the law was also reputationally dangerous for law enforcement. Because individual officers petitioning for an ERPO would be listed as the petitioner in court records instead of the police department, officers were flagged as highly litigious when pursuing mortgages or loans, damaging their creditworthiness.
This complication was recently addressed. On October 9th, Hochul signed a package of gun violence prevention measures, one of which allows police agencies to be listed as the petitioner rather than individual officers.
It took five years after 2019, when the initial red flag law was passed in New York State, for this minor correction to become law. There are two reasons why these kinds of clumsy technicalities in ERPO laws are able to persist for extended periods of time—or continue to endure, as physician liability protection is still not an addressed issue in New York.
First, as mentioned earlier, most of this legislation is advanced in response to mass shootings. Often, advocates have to wait until after a disturbing instance of gun violence to harness the anger and resignation of legislators and their constituents.
Second, gun policy is highly polarized. Fanning noted that her “assembly person is a conservative—someone who does not align with my beliefs—but obviously was elected by the more rural community that I live in. When I talk to people like that, you just have to keep in mind that they have their opinion for a reason, right?”
Fanning believes it is the job of the gun violence prevention movement to collaborate with legislators with whom they disagree, even if it makes the task more difficult.
“I think a really important part of the work of advocates is not just getting people to co-sign bills or talking to those friendly legislators who you know are going to co-sign, but having those tougher conversations with the conservative side of the aisle,” she said.
Fanning added that she tries to “let [conservative legislators] know that when they go back to their constituents, red flag laws are going to keep them safe, too.”
Setting aside technicalities or practical considerations, some people have larger structural problems with the law. Joel Abelove is one of those people. A military-trained gun rights enthusiast, Abelove was the former District Attorney of Rensselaer County, New York. Now, he is in private practice as a criminal defense and Second Amendment lawyer and serves as a board member at the New York State Rifle and Pistol Association.
“I always enjoyed many years in the military, was very familiar with firearms, not just on the civilian side, but on the military side, and retired from the Army about six years ago after spending a total of about 23 years in the Army National Guard.”
When it comes to gun laws, Abelove is resolved. “It’s a very important issue. I just view [the Second Amendment] as a very pivotal right in the Bill of Rights.”
The Second Amendment was ratified in 1791 and protects the right to keep and bear arms. While gun litigation was relatively dormant for much of American history, in 2008, the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment confers an individual right to firearm ownership.
Over a decade later, the New York State Rifle and Pistol Association, of which Abelove is a board member, challenged a 1911 gun law that required permits for concealed firearms. That case later became the Supreme Court case NYSRPA v. Bruen, decided in 2022, which further heightened the bar for the constitutionality of gun laws by striking down New York’s century-old concealed carry law.
Energized by their victories and the Court’s new framework, the NYSRPA has become a prominent voice in a broader conservative legal movement to constrict firearm regulations.
On New York’s ERPO law, Abelove thinks it is “well-intentioned” but “allows for a gross abuse of the process.”
“Complaints can be made, and very little investigation or follow-up seems to be happening before. The search orders are supposed to be akin to a search warrant under the Criminal Procedure Law [CPL]. It says regarding the statute that it’s supposed to comport with the dictates of Article 690 of the CPL. Well, that’s almost never done.”
Article 690 of the CPL in New York refers to the standards for issuing and executing search warrants. It sets rules on how and when law enforcement can carry out a search so as to protect an individual’s constitutional rights against unreasonable searches.
“[Ignoring Article 690] has consequences, because in a number of these cases that I’ve handled, not only [is there] the strictest result of taking somebody’s guns, but somebody might have a gun they’re not supposed to have, and they get charged criminally.”
Abelove’s complaints about the law, while primarily relating to structure and procedure, are especially applicable to TERPOs, or Temporary Extreme Risk Protection Orders. Because situations of potential violence are almost always time-sensitive, TERPOs expedite the conventional ERPO proceedings with less drastic consequences for the respondent.
TERPOs are only in effect for a maximum of six days, while ERPOs can last up to one year. It is easier to obtain a TERPO than an ERPO—the petitioner only needs to show probable cause (for a TERPO) rather than clear and convincing evidence (for an ERPO). TERPOs are also granted exclusively through rapid ex parte hearings where the respondent is not present.
“Roughly in one of five cases where a TERPO is granted, a final ERPO is not. So, in 20% of cases, someone’s constitutional rights are ostensibly being violated in that their guns have been taken away, and they’re made a prohibited person in the system [while the TERPO is in effect].”
Advocates argue that because ex parte-issued TERPOs last for a short period of time, the lower standard of proof is justified—especially when it might prevent immediate harm. But Abelove remains unwavering in his belief in the authority of the Second Amendment and is doubly concerned about putting police at risk.
“There’s been a lot of governments around the world who have disarmed their citizens all in the name of public safety, and it doesn’t end well in those scenarios. […] I’d like to see some sort of modification to the process to protect people’s rights better. I guess it would involve something where the respondent has a right to a hearing before you take their rights away,” he said.
“And it places the police in a very precarious situation, because now you’re telling them to go and knock on somebody’s door who has no idea that they’re coming, and they might be a dangerous person.”
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Geller still strongly believes that ERPO success stories deserve better coverage.
“Public health is a thankless job. We get blamed, and law enforcement and judges and whoever else gets blamed when things go wrong—but they don’t get thanked when things go right.”
It was after Geller read hundreds of ERPO petitions, court orders, and police write-ups on incidents that she discovered how much she “would love to see more coverage on how an ERPO saved a life, how an ERPO was a tool that actually put that time and space between someone and their suicide attempt.”
Because shootings are such devastating events, it is difficult to devote attention to the “success stories” of gun violence prevention—especially for those without backgrounds in gun violence prevention solutions.
Abelove, Geller, Fanning, and Dr. Agrawal’s feelings about red flag laws are informed by their diverse interactions with the public health crisis.
Abelove was an assistant district attorney in Rensselaer County when a teacher was shot at Columbia High School in East Greenbush, New York. “I’ve been to a school shooting. I was at that scene when they were still clearing the school.”
He added, “it’s not as though people who are still pro-Second Amendment or anti-red flag law don’t care about public safety. They’re worried about school shootings. There are a lot of other things that could be happening in society to try to prevent those things from happening, but you can’t sacrifice constitutional rights in the name of public safety.”
Fanning lives in a rural town with individuals who share Abelove’s perspective—wary of red flag laws and nonetheless concerned about gun violence. Yet their opinions motivated her to advocate for ERPOs. She sees a pathway toward a culture of responsible gun ownership led by the youth in her community.
“I think [our advocacy] will inform [students] down the road that when they do become voters, they can say, ‘okay, maybe this Republican candidate—maybe I need to lobby them a little bit and let them know that I, as maybe a gun owner, maybe not, support red flag laws that are going to keep our community safe.’”
Fanning continued, “it’s not about taking everybody’s guns away [… it’s about] ensuring that we are fostering a community across the United States and specifically New York that is about safety and about not harming other people around you.”
Geller has an even more long-standing connection to the crisis. When she was pursuing her undergraduate degree at the University of Wisconsin–Madison, she helped Moms Demand Action defeat a campus carry bill that was being considered in the Wisconsin State Legislature.
“It really ignited my interest and passion in public policy and public health.”
The activism of long-standing experts on implementation like Geller, student activists like Fanning, and conscientious objectors like Abelove is rooted in their personal experiences. For Dr. Agrawal, her sense of urgency surrounding ERPOs is motivated by her patients.
“I was working in the Bronx and a lot of children who were minorities were experiencing gun violence every day. I started to think about gun violence prevention policies—are they equitable? Are they helping the children most impacted by gun violence?”
Gun violence is urgent, and ERPOs are an ostensibly powerful tool to target those experiencing mental health crises without encroaching upon an otherwise law-abiding citizen’s desire to own a gun.
ERPOs are safety tools, not public awareness campaigns. Thus, although Geller and the National ERPO Resource Center are working relentlessly to change that, awareness is mixed, and the varied nature of ERPO laws across states makes them even more difficult to fine-tune.
While ERPOs are not a panacea, they are a step towards combatting America’s gun violence crisis. For Agrawal, this forward progress is invaluable.
“I think if I could change one thing, it is to give kids hope that they don’t have to live like that,” Agrawal said. ERPOs may do just that.