If the public are uninformed about legislation, the ability to have an impact on the desired outcome, decreased deaths, injuries and intimidations, will be reduced.
This commentary is by Paul Manganiello MD, MPH, president of the GunSenseVt Education Fund.
The 2023 Vermont legislative session saw passage of significant gun safety legislation. One piece of this legislation I would like to highlight is the Extreme Risk Protection Order (ERPO) provision in H. 230 Act 45 (H.230).
The recent tragedy in Lewiston, Maine, was a failure on the part of the Maine legislature in not providing adequate public safety. It resulted in the untimely death of 18 Maine residents, with 13 additional Maine residents being wounded, before the shooter finally took his own life. The “yellow flag” legislation passed by the Maine legislature was inadequate and certainly did not assist the shooter, who was known by friends, family, colleagues, law enforcement and the U.S. Army Reserve to be deeply troubled.
Our newly enacted Vermont ERPO legislation does provide a possible intervention aimed at reducing gun-related violence by temporarily withholding a person’s access to a firearm(s), or a dangerous weapon(s), if they are suspected to be at risk either to themselves (by suicide), or to others (mass shootings, domestic violence, etc.). ERPO will empower an individual (family member, health care provider, state’s attorneys/Vermont state attorney general) and the police to ultimately petition the Family Division of the Superior court (a final ERPO) to temporarily prevent an individual from being able to purchase, acquire, or it may even compel the person to relinquish a firearm(s)/dangerous weapon(s). This law does not result in a criminal record.
As of today, there are 21 states and the District of Colombia which have ERPO (also commonly called Red Flag) laws. New Hampshire currently doesn’t have an ERPO law. These laws differ from state to state.
Sadly, I recently learned from a close friend living in Hartford, that her brother, shortly before the New Year, died by suicide with a firearm. She was unaware of the Legislature’s passage of H.230 at the end of this year’s legislative session. If the public are uninformed about legislation, the ability to have an impact on the desired outcome, decreased deaths, injuries and intimidations, will be reduced. Research carried out by the Ad Council Research Institute and The Joyce Foundation uncovered the extent of public knowledge and attitudes toward ERPO and identified how to empower citizens to utilize these gun violence prevention laws.
I will focus on what is happening in Vermont:
For ERPO to work effectively, we need to know who this order applies to and who will benefit. In Vermont, it is a two-step process. An individual(s) files to petition the court (Criminal, Civil, or Family division) to issue an “initial” ERPO. This is called an Ex-Parte ERPO motion, as only one of the parties (the petitioner) needs to be present in this initial review. An Ex-Parte motion is usually a temporary order pending the formal hearing, the Final ERPO.
The individual filing this Ex-Parte ERPO must prepare an affidavit. There are recommendations on the Vermont government website link listed above as to how to complete an affidavit (slide 87). The affidavit is taken to a law enforcement agency, which will then be taken to the State Attorney’s office. The State’s Attorney will be substituted as the petitioner for the remainder of the proceedings, with the individual who files the affidavit continuing in a supporting role. The affidavit must be notarized and/or include a declaration under penalty of perjury. The penalty for a falsified affidavit is imprisonment for not more than a year, a fine not more than $1,000.00, or both.
If the Ex-Parte request is approved and ordered, out of concern for the safety of the public, or to prevent imminent danger to the person filing the affidavit, action can be taken immediately, before the scheduled final hearing (final ERPO) date. The police will be able to remove the firearm(s)/dangerous weapon(s) from the owner who possesses them. This Ex-Parte order can be in effect for up to 14 days. If the Ex-Parte ERPO is issued, the weapons will remain in custody of the police; a federally licensed firearms dealer (FLFD); or a court ordered third party.
Well, exactly what type of information/evidence is needed for the process? For the Ex-Parte ERPO, the burden of proof will require a preponderance of the evidence that the individual poses an extreme risk of harming either themselves or someone else. At the hearing for the Final ERPO, it would require clear and convincing evidence (it is a type of burden of proof, that one has evidence indicating that the issue to be proven is highly probable).
How long will an individual, after being served a Final ERPO, have their access to firearms/weapons restricted? Up to six months following a Final ERPO, and after those six months the process, if warranted, can be renewed. Going forward, it can be reevaluated every six months.
How are weapons returned to the owner? Upon expiration of the ERPO, the firearm(s)/weapon(s) is returned to the owner within three business days. (There are examples of actual ERPO cases on slide 76 of the Vermont website listed above).
If we have any hope of Vermont’s H.230, “red flag” ERPO legislation, being able to reduce the chance of firearm violence happening in the state of Vermont, reducing death, injury or intimidation with a firearm, we all need to remain vigilant, be proactive and act.