Scholarship Highlight: New Article Raising First Amendment Concerns With Some ERPO Laws

As Joseph and I continue editing our forthcoming article on Extreme Risk Protection Order laws–and how these laws can withstand due process challenges–more legal scholarship on these laws is cropping up. Out now is an article raising concerns about the implications of such laws that look to First Amendment protected activity as a factor in the analysis.

  • Clay Calvert & Ashton Hampton, Raising First Amendment Red Flags About Red Flag Laws: Safety, Speech and the Second Amendment, 30 Geo. Mason U. Civ. Rts. L.J. 351 (2020).

From the Introduction (footnotes omitted):

This Article examines another troubling aspect of red flag laws yet to be thoroughly addressed in law journal articles that have analyzed these statutes. That issue is how these laws implicate First Amendment speech rights when an individual’s writings, words, posts, and even media consumption may be used as evidence to obtain an ERPO. First, this Article analyzes how speech and speech activities traditionally safeguarded by the First Amendment may be turned against an individual under red flag laws. Second, this Article evaluates how the term “threat” as used in these statutes may be interpreted loosely and colloquially by both law enforcement officials and judges without applying the Supreme Court’s “true threat” doctrine. The Article then offers five suggestions for how these issues might be cured. The authors’ goal is not to have red flag laws jettisoned from the pages of code books. Rather, it is to ensure that freedom of expression is not unnecessarily sacrificed or chilled by laws that serve the patently compelling interests of preventing bloodshed and saving lives.

Analyzing Maryland Extreme Risk Law Data

This past week, Joseph and I just finished another round of edits on our forthcoming Virginia Law Review article, Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process. Doing those edits, and working on another draft paper related to extreme risk laws, led me to dive more deeply into the statistics that are currently available. Maryland has some decent data, so I’m starting there in today’s post.

Maryland’s recent Extreme Risk Protective Order (“ERPO”) law took effect in October 2018. Under that law, several groups of individuals may petition for an ERPO: (1) law enforcement officers, (2) family or household members and other specified relationships of similar nature, and (3) certain healthcare workers.

Most state frameworks have two kinds of ERPOs – temporary ones issued after an ex parte hearing and final ones entered after an adversary hearing. Maryland has three: (1) “interim” orders that a court commissioner enters, which can ordinarily only last 1-2 days, (2) “temporary” orders that a district court judge issues, which can last 7 days, and (3) “final” orders, which can last up to a year. Typically, interim orders only occur when the district court is not open, such as late at night or on weekends, when a court commissioner is all that’s available. Court commissioners cannot issue temporary orders, only interim ones. A district judge, as well as issuing temporary orders, is also permitted to proceed directly to a hearing for a final order if the respondent appears at the hearing and consents or if he had a prior interim order against him.

Because of this complicated structure, the Maryland data on petitions can be hard to put into perspective. A temporary order can occur without an interim order, and a final order can occur without a temporary order or interim order. The raw data comparing, for example, interim orders with final orders does therefore not give a complete measure of how often petitioners who seek or obtain an interim or temporary order secure a final one (and, thus, even less than usual what an “erroneous” ERPO would look like). But it can help identify trends and provide aggregate information.

The state provides data by district and month; for the chart below, I aggregated this data for each year and calculated the percentages. Because there was no clear data on initial petition filings themselves—and what manner they were handled in (interim, temporary, or straight to final)—I break down the data by hearing type and order.

This data does not, to my eyes, support the notion that judges are rubber-stamping petitions. Temporary ERPOs are only issued after hearings (which can be ex parte but need not be) in about 3 of every 5 cases. To be sure, the way the data is recorded does not allow exact comparison; these are aggregate statistics on the number of hearings held that year and the number of granted petitions that year. That caveat is especially important for the monthly data below, with some months showing more granted petitions than hearings on petitions of that type.

Finally, ERPO hearings, which can be considered a fairly reliable proxy for petition filings, have remained pretty consistent over time. But there does seem to be a noticeable recent uptake, possibly as a result of added tensions related to Covid-19. Or perhaps the rise is the courts making up for the dip that occurred around the time of courthouse closures earlier this year.


Florida Appeals Court Upholds Red Flag Law against Constitutional Challenge

Jefferson Davis (not that one), a Gilchrist County Sheriff’s deputy, allegedly threatened to kill another deputy after he discovered that his girlfriend had been involved with the man. His colleagues sought and obtained a Risk Protection Order (“RPO”) under Florida’s new “red flag” law. Davis appealed, raising a number of challenges to the RPO entered against him and to Florida’s entire scheme. In Davis v. Gilchrist County Sheriff’s Office, Florida’s first district court of appeal rejected those challenges. This case represents one of the few rulings on the constitutionality of “red flag” laws generally and the first on Florida’s law. The Florida court joins courts in Indiana and Connecticut in upholding these types of laws against constitutional challenge.

As I’ve written about previously, “red flag” laws—also known as Extreme Risk Protection Order laws—permit law enforcement to temporarily remove firearms from an individual that a court determines is a danger to himself or others. Florida’s law, like most states, allows both temporary, emergency orders, and longer (one year) orders. Some Second Amendment advocates have argued that these laws violate a respondent’s due process rights. But, in fact, the Supreme Court has regularly recognized that emergency situations often require quick action (like a temporary, ex parte RPO) that permits postponing a hearing for a short period of time.

Florida’s appeals court recognized the procedural protections built into Florida’s law. It noted that “[t]he statute . . . requires a hearing within fourteen days of an RPO petition being filed, thus affording a respondent due process and a prompt opportunity to resist a final order.” Not only that, but:

the statute incorporates an added due process safeguard by requiring proponents to meet the heightened “clear and convincing” burden of proof standard. Compare § 790.401(3)(b), Fla. Stat. with e.g. Wash. Rev. Code. § 7.94.040(2) (requiring a showing of significant danger by the less stringent “preponderance of evidence” standard). Furthermore, the duration of the RPO may not exceed twelve months, § 790.401(3)(b), and the statute contains a mechanism whereby the respondent can request early termination of the order. § 790.401(6), Fla. Stat. Finally, the statute clearly requires the listed factors be considered within a specific context—the threat of gun violence. § 790.401(3)(b), Fla. Stat.

Davis also challenged the law as void for vagueness. He argued that “it leaves too much to the discretion of the trial court and law enforcement in determining what constitutes ‘significant danger,’ ‘relevant evidence’ [of that danger], and ‘mental illness.’” The court, however, appealed to common usage to find this language fairly specified:

In our view, there is nothing inherently vague about the terms Appellant would have us scrutinize. We interpret the word “significant” (as in “significant danger”) in a manner consistent with standard dictionary synonyms such as “noteworthy, worthy of attention and consequential; as opposed to “trivial.” “Significant” is no more or less “vague” than the word “imminent” found in the domestic violence injunction statute (§ 741.30, Fla. Stat). The same is true of the commonly used word, “relevant”.

The court’s decision will likely prove to be influential among Florida courts considering the coming challenges to Florida’s new law. As a recent Sun Sentinel report shows, Floridians have been making use of the new law to disarm those who are found to be dangerous to themselves or others.

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.