Understanding the Impact of an Extreme Risk Protection Order: A Guide by Scrofano Law PC

Explore the intricacies of extreme risk protection orders with Scrofano Law PC. Learn how ERPOs work, their legal criteria, and implications in our comprehensive guide.

Introduction to Extreme Risk Protection Orders

Extreme Risk Protection Orders (ERPOs) represent a critical yet often misunderstood element of legal intervention within the District of Columbia. These orders serve as a preventive measure — to prevent potential harm before it occurs.

ERPOs are designed to temporarily remove firearms from individuals deemed an “immediate and present danger” to themselves or others due to some concerning factors. If you’ve been flagged as high-risk and are subject to an ERPO, it’s crucial to understand both the intentions behind these orders and the legal framework that guides them.

At Scrofano Law PC, we recognize the complexity and sensitivity of these cases. Drawing on extensive experience in criminal defense, we aim to demystify ERPOs for those in DC who find themselves at the focal point of such orders.

What are Extreme Risk Protection Orders?

ERPO is a court order judges use to remove from an individual’s possession their:

  • Firearm

  • License to carry a concealed pistol

  • Ammunition

  • Registration certificate

  • Dealer’s license

However, that individual has to demonstrate behaviors or warning signs that suggest they represent a significant risk to themselves or others.

The Legal Framework of ERPOs

In recent years, the narrative surrounding gun violence and mental health has led to significant legal developments aimed at helping law enforcement officers prevent gun tragedies. More than 20 US states have implemented extreme risk laws that allow for quick intervention when a person is at serious risk of causing harm with a firearm.

These laws are designed to safeguard public safety. Sometimes called “red flag laws,” they allow courts to issue temporary and final extreme risk orders against individuals. These orders prohibit people from possessing firearms based on clear and convincing evidence that they pose a serious threat.

The District of Columbia has its own extreme risk law as part of the Firearms Safety Omnibus Amendment Act of 2018.

Criteria for ERPO

The criteria for an ERPO focus on specific behaviors and warning signs of being at high risk of gun violence, including:

  • Credible threats of violence towards oneself or others

  • Careless use or waving of a firearm or other weapon

  • Evidence of recent acquisition of firearms

  • Patterns of violence or substance abuse

These criteria help courts determine if an individual represents a serious and imminent threat necessitating intervention.

The Process of Obtaining an ERPO

Only certain individuals can file for an extreme risk protective order. In DC, The Domestic Violence Division of the Superior Court handles requests for ERPO, as well as requests for civil protection orders (CPO) and anti-stalking orders (ASO).

Filing for an ERPO

The person filing for an extreme risk order is called the petitioner, while the individual against whom the order is filed is called the respondent. By law, a petitioner can be an individual who:

  • Is related to the respondent by marriage, blood, guardianship, adoption, or domestic partnership

  • Has a child with the respondent, lives with the respondent, or has a romantic or sexual relationship with them

  • Is a mental health professional (as defined in DC Code §7-1201.01(11))

  • Is a member of the Metropolitan Police Department

Initiating an ERPO requires that a petitioner, typically a law enforcement officer or family member, provides substantial evidence of the respondent’s potential danger.

Court Proceedings and Hearings

When filing the petition, the petitioner can seek an ex parte emergency hearing for a temporary ERPO. The temporary ERPO hearing can be held on the same day without the respondent’s presence. If the judge considers there is enough evidence, they will approve the temporary ERPO. The order can be valid for up to 14 days but can be renewed until the final ERPO hearing.

At the final ERPO hearing, the respondent will have the opportunity to present evidence to their defense. The judge may ask questions regarding the petition and consider presented evidence before deciding whether the respondent poses a significant danger to causing personal injury to themselves or others.

The court will issue a final order if the petitioner establishes, by a preponderance of the evidence, that it is more likely than not that the respondent poses a danger to themselves or others. The final ERPO can be valid for up to one year.

Representing individuals during these proceedings, Scrofano Law PC employs a rigorous defense strategy, emphasizing the importance of substantiating every claim with irrefutable evidence.

Implications of an ERPO

An ERPO can dramatically impact one’s personal and professional life, leading to a temporary but significant alteration of one’s rights.

Effects of Being Issued an ERPO

The red flag law is sometimes considered controversial because it gives the court authority to order the search of a person’s home and the seizure of their firearms even though that person hasn’t been arrested or accused of committing any crime.

However, an ERPO can negatively affect the respondent’s job if they have to carry a firearm in connection with their employment. Furthermore, this order can negatively affect defensive gun use. 

Legal Rights and Responsibilities

Being under an ERPO involves specific legal responsibilities, including surrendering firearms to any law enforcement agency and ensuring no breaches of the order occur.

Compliance is vital, as violations can result in criminal charges and further legal consequences.

Enforcement and Violations

Violating the terms of protective orders in DC can result in criminal charges that may lead to jail time, fines, child custody complications, and employment issues. The severity of the penalty usually depends on several factors, including the respondent’s previous criminal record and the specific circumstances of a violation.

Fighting an Extreme Risk Protection Order

You do not have to agree with the court’s decision for an Extreme Risk Protection Order. You have the right to challenge the court’s decision by filing an appeal with the district court where the order was granted. However, the order will remain valid until the Circuit Court delivers a different judgment. You may need to discuss your case with attorneys to start such appeals.

At Scrofano Law PC, we advocate fiercely on behalf of our clients to challenge unwarranted ERPOs, leveraging our comprehensive understanding of the law and dedication to protecting civil liberties.

Although you have the right to appeal the judge’s decision to grant an ERPO, that can be hard. Fighting an extreme-risk protective order before it is granted may have more chances of a successful outcome.

How Can Scrofano Law PC Help?

An ERPO serves as a legal pause button, allowing law enforcement agencies, mental health professionals, or family members to petition a court to temporarily prevent an individual in crisis from accessing or possessing firearms.

While ERPOs serve a critical role in the quest to prevent gun violence and protect public safety, the ramifications for those on the receiving end are profound.

If you find yourself facing an ERPO, remember that knowledgeable and aggressive legal support can be your best ally. Whether you’re seeking to challenge an ERPO, navigate the intricacies of ERPO laws in DC, or simply seek clarity on your situation, Scrofano Law PC can help.

We view each case through a lens of empathy and legal experience, committed to providing the strong representation you need. If you are served with an ERPO, contact us today to learn your options and fight with our team to achieve the most favorable outcome.

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