Extreme Risk Protection Orders: The Greatest Threat to American Gun Rights?

“An Extreme Risk Protection Order (ERPO) empowers family members and police to take guns away from a person who may pose a danger to themselves or others,” abcnews.go.com reports. “The person’s access to firearms is blocked until they can demonstrate that the risk is over. Essentially, ERPOs are a temporary restraining order for guns.” What could possibly go wrong? Well . . .

Judges can issue an ERPO — the unconstitutional artist formerly known as a GRVO or Gun Violence Restraining Order — without any testimony from the accused. In other words, the accused is denied his or her Sixth Amendment protected rights. law.cornell.edu:

The Confrontation Clause found in the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” The Clause was intended to prevent the conviction of a defendant upon written evidence (such as depositions or ex parte affidavits) without that defendant having an opportunity to face his or her accusers and to put their honesty and truthfulness to test before the jury.

The ACLU will be along any moment . . .

Meanwhile, gun owners in states with an ERPO face the prospect of having their guns and gun rights removed at the behest of an estranged wife, pissed-off relative or vengeful police officer. What are the odds? Think about this . . .

What judge is going to say “no” to someone filing for an ERPO (especially if it’s a cop)? What judge wants to be “that guy”?  The robed official who denied an ERPO in a case when the subject of the failed order went on to commit suicide, murder or mass murder? Better safe than sorry. Better your gun rights than his or her career.

Think about this some more . . .

Who are these people filing for an ERPO? Mental health experts? Nope. They’re family members and cops. If the antis crusade to “close the boyfriend loophole” succeeds, the list will grow to include present and former romantic partners. No one who could possibly act entirely out of hatred, anger and revenge [/sarc].

The answer to such concerns embedded in these laws is that courts must show “substantial evidence” that a person is a risk to themselves or to others. In addition, the removal of the firearm is only temporary (generally a year) unless the ERPO is renewed in a later hearing. These measures, said [Sandy Hook Promise’s Lauren] Alfred, have “overcome a lot the Second Amendment legal and political concerns.”

Yeah, no. Not feeling it. And where’s the “substantial evidence” that ERPOs are so effective at preventing the loss of life that they’re worth the loss of a Constitutionally protected civil right?

Where ERPOs are believed to be most often effective is in stemming suicides. For example, Everytown for Gun Safety cites a study of the law in Connecticut (where it has been in place the longest) that states that from 1999 to 2013, “For every 10 or 11 gun removal cases, one suicide was averted — an estimated 72 averted suicides.”

Believed to be most effective.” Don’t you just hate it when mainstream media sticks a qualifier in front of “facts” and cite statistics from a study from a hugely biased group, without linking to the study?

Even if we take this “lives saved” assertion at face value — which reminds me of nothing so much as Obama’s “jobs saved” propaganda — does this mean that 90 percent (or more) of ERPO-served Connecticut residents did commit suicide?

While we’re at it, did The Constitution State’s ERPOs prevent concerned family members or police from taking more effective action to prevent suicide or murder?

Not only does an ERPO do nothing to help suicidal or homicidal citizens — who can find other means to kill themselves or others — it disarms citizens who may face a lethal threat from a dangerously disaffected spouse, former spouse or family member, or a corrupt or crazy cop. The kind of people who’d gladly file an ERPO to disarm their victim.

Not to mention the fact that the police are an extension of government, which has a known tendency to use whatever methods it can to disarm those who’d limit or would limit its power.

Citizens who pose a demonstrable lethal threat to themselves or others can be removed from the public using existing mental commitment procedures. It’s a process fraught with its own set of civil rights issues, but a much safer option for all concerned.

The People of the Gun should resist ERPOs at every level until such time as the courts strike them down for the civil rights abomination that they are.

comments

  1. avatar Leighton Cavendish says:

    And yet they would leave all the other weapons in the house…all the drugs…chemicals, etc…right?
    Only thing they would take would be the guns.

  2. avatar Dan-ammo says:

    I think there should be a law to take someones car/keys away from someone who MIGHT/COULD be dangerous….an auto is a death machine.

    Annual Global Road Crash Statistics

    Nearly 1.3 million people die in road crashes each year, on average 3,287 deaths a day.
    An additional 20-50 million are injured or disabled.
    More than half of all road traffic deaths occur among young adults ages 15-44.
    Road traffic crashes rank as the 9th leading cause of death and account for 2.2% of all deaths globally.
    Road crashes are the leading cause of death among young people ages 15-29, and the second leading cause of death worldwide among young people ages 5-14.
    Each year nearly 400,000 people under 25 die on the world’s roads, on average over 1,000 a day.
    Over 90% of all road fatalities occur in low and middle-income countries, which have less than half of the world’s vehicles.
    Road crashes cost USD $518 billion globally, costing individual countries from 1-2% of their annual GDP.
    Road crashes cost low and middle-income countries USD $65 billion annually, exceeding the total amount received in developmental assistance.
    Unless action is taken, road traffic injuries are predicted to become the fifth leading cause of death by 2030.

  3. avatar BierceAmbrose says:

    Take his guns now, so nobody gets hurt while we’re pushing the papers on our iron-clad case. Then, he has to make his case to get them back. B T W, proving a negative.

    Seems legit.

    1. avatar fiundagner says:

      And let’s assume they do take them away generally for a year. At the end of that time they’re supposed to give them back to you. But you have to jump through all the legal loopholes to get them back possibly pay a lawyer to get them back when the state refuses to return them. And if you do get them back what’s happened to them during that year. Oh we left them outside in a barrel have full of salt water but you know it’s not our responsibility there your guns.

      I remember seeing something, that I unfortunately cannot find right now, about how a lot of the Firearms returned after the Katrina confiscation where now junk because they’ve been stored improperly. Just as importantly what happened to the ammo They confiscated. Ammo? What ammo? Or oh well the ammo was considered an explosive so we disposed of it. That wasn’t our responsibility.

      When I was in the military I was required to store my personal firearms in the Battalion Arms Room. It was well known to all the firearm owners in my unit that we were required to store ammo there as well. It was also well known that you may as well just throw Extra ammo away because when you came back for it it wasn’t going to be there.

      I cannot imagine that a civilian police agency is better than the military in this case

      1. avatar BierceAmbrose says:

        That was an attempt at irony.

        If you have to explain irony, you’ve failed at it.

        My bad.

      2. avatar Baldwin says:

        It’s not about how they take care of your stuff when it is seized….it’s about your government TAKING “your” stuff…period.

  4. avatar Ralph says:

    And how are the guns to be seized if the owner objects? With force, of course. Deadly force is certainly on the table. So to protect someone who is suicidal, the state will kill him and celebrate the operatives who do it.

    That reminds me of a certain village in Vietnam that the government had to destroy in order to save it. Same overreaching, vicious state; different day.

    But as Alexander Solzhenitsyn once wrote: “What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family?”

    It might come to that.

    1. avatar Robert Farago says:

      The patient died but the operation was a success!

    2. avatar Geoff PR says:

      “And how are the guns to be seized if the owner objects?”

      How are guns going to be seized if the ‘State’ doesn’t know what guns you own?

      It is every gun owner’s *duty* to have access to guns ‘Big Brother’ doesn’t know you have.

      Like an 80 percent Glock clone or AR-pattern lower. Stashed away somewhere, not inside your home. Get creative.

      So you can smile when you hand over ‘all’ your guns to them one day.

      “Yep! That’s all of them, officer!.”

      The Russians had it right about watering the garden with motor oil…

      1. avatar henry bowman says:

        The Russians had it right about watering the garden with motor oil…

        What? Explain

        1. avatar Mark N. says:

          To lube the ones buried out there.

      2. avatar ironicatbest says:

        If you *don’t* have a 9mm firearm to give “them”, don’t have any 9 casings lying around, “they” will tear down the house to find the gun.

    3. avatar Icabod says:

      The judge signs the order. The police are told to get the guns. How do the do this? Call and ask to come by? Smash the door at oh dark thirty? When the gun owner is shot dead, it it’s because he was a threat to himself or others. Right?

  5. avatar MamaLiberty says:

    No amount of “help” or prevention is going to stop a suicide, unless that person wants help and is willing to do what it takes to be helped. In the long run, the person who wants to die will do so, one way or another. And they have final ownership of their body and mind anyway.

    1. avatar Robert Farago says:

      In the long run we’re all going to die. Just saying . . .

      1. avatar MamaLiberty says:

        That’s profound, Robert… but hardly addresses the issue.

        If someone demonstrates the desire/intent to harm others, that’s one thing. If they indicate they wish to kill themselves, it may well be a plea for help.

        As a retired health care professional, working many years among those with mental illnesses, I can assure you that if they simply want to die they will not likely say or do anything to call attention to that. This group mostly succeeds.

  6. avatar DUG says:

    What other constitutional right can be suspended by a court Order without the participation of the party?

    How about the 4th, yep in this instance (the state in their wisdom will enter your house and take your possessions).

    How about the 5th, when the individual won’t tell the police where his weapons are hidden, oh that leads to the 8th (cruel and unusual punishment) just put the person in jail (for his safety) until he complies with court order. How about an EX, or a family member, or any state agency suspending your voting rights and you have to prove you are sane enough to vote.

    So anyone who voted for Trump (HRC or Bernie) obviously has a mental issue and needs to be cleared by a mental health professional (who by the way is employed by said government).

    What could possibly go wrong!

    1. avatar pg2 says:

      Medical kidnapping. Happens everyday.

  7. avatar strych9 says:

    “How a politician stands on the Second Amendment tells you how he or she views you as an individual; as a trustworthy and productive citizen, or as part of an unruly crowd that needs to be lorded over, controlled, supervised, and taken care of.”

    – Dr. Suzanna Gratia Hupp

  8. avatar Hank says:

    This is by far the most dangerous thing about the left, and the anti gun side in general, is the complete disregard to constitution. What they push doesn’t just violate the second amendment, it’s an all out attack on the 6th, 4rth, and probably some more. Machiavellianism at its finest.

  9. avatar Angry Former USA Sapper says:

    The best way to turn me into an “extreme risk” is to label me an “extreme risk” and try to unlawfully confiscate legally owned private property from me or any of my family/friends/neighbors without proper Constitutional due-process.

    I hope whomever has the balls to step up to the plate has a Will made out and has made peace with their dear and fluffy lord. And don’t give me that bullshit of, “oh well they’re just doing their job.”

    That shit didn’t fly during the Nuremberg trials. It’s not an excuse to do shitty and illegal things. I guarantee you that anyone stupid enough to agree to perform ERPO confiscations will have a survival rate of zero.

    Remember folks, here in the U.S., civilian traitors to the country and Constitution are hanged, military traitors to the country and Constitution are lined up against a wall and shot.

    1. avatar Geoff PR says:

      ” I guarantee you that anyone stupid enough to agree to perform ERPO confiscations will have a survival rate of zero.”

      They will seize them when you aren’t home…

  10. avatar No one of consequence says:

    Are ERPOs the greatest threat to Americans’ gun rights?

    No. That would be the politicians who enacted those laws, and by extension the people who voted them in in the first place.

  11. avatar Rusty Chains says:

    Clearly, someone intent on committing suicide with a gun is not acting out for the sake of getting attention. If you take away their guns, they will simply go to another choice, from suicide by cop to driving a car into a tree or bridge support at a high rate of speed. Are these idiots going to put a fence around all the tall places to prevent jumpers? Nope, this isn’t about preventing suicide or even homicide, it is about doing everything they can to damage gun ownership in any way they can. They don’t actually care about the people they claim to want to protect, they just hate guns and gun owners.

  12. avatar LKB says:

    In theory, getting a temporary restraining order that temporarily restricts an individual’s rights isn’t unheard of — as long as the defendant is guaranteed the right to be promptly appear and be heard *and* there is a mechanism for recovering damages for a wrongful injunction.

    If ERPO proponents are serious that ERPO’s are only going to used in the most extreme and urgent cases, and aren’t going to be abused or used to violate someone’s legitimate rights, then they ought to have no problem with the following modest proposals:

    1. You want a ERPO issued, you must first post a bond of at least $10K. (Just about any other kind of TRO or preliminary injunction always requires the movant to post a bond to cover the defendant’s damages if it turns out that the injunction was wrongfully obtained. Why should ERPO’s be any different?)

    2. ERPO must automatically expire and the bonded amount be immediately paid to the defendant after ten days unless, at a hearing where the defendant has the meaningful right and ability to appear and be heard, the movant demonstrates by clear and convincing evidence that the defendant was in fact a danger to himself or others. (Standard here should be similar to that required for involuntary civil commitment.)

    3. If ERPO is ultimately not upheld (or is overturned on appeal), movant must pay the defendant’s attorneys fees and all actual damages (including any amounts that exceed the amount of the bond).

    4. No immunity of any type for any judges, police, etc., for their involvement in issuing, serving, or enforcing any ERPO that is not ultimately upheld, and they are jointly and severally liable with the movant for all amounts payable to the defendant.

    In short, if you want an ERPO, you have to put your money where your mouth is, and if it turns out that you can’t prove your case, the person whose rights you infringed is automatically compensated. Further, the judges and cops will have skin in the game, as they will *personally* be on the hook if it turns out the there was not a truly exigent need for an ERPO.

    Would ERPO proponents be amenable to provisions like this that would put some real teeth into protecting the rights of the innocent? Of course not, and that should tell you all you need to know about their actual motivations.

    1. avatar Geoff PR says:

      “Would ERPO proponents be amenable to provisions like this that would put some real teeth into protecting the rights of the innocent? Of course not,…”

      Ohh, I *like* that idea!

      Have you considered passing that idea along to Ted Cruz or John Boch here?

      They may be able to send it up the chain where it may do some good…

    2. avatar FedUp says:

      I’m with you 99% of the way, but I’m not comfortable with making a cop financially responsible for the legality of the court order he’s enforcing if he didn’t have anything to do with the making of that false court order.

      Sort of like a search warrant. Some LEO fabricates an affidavit in support of a no-knock warrant, and a dozen thugs in black ninja outfits and face masks show up at 3am to knock your door down. Only one of them is a criminal armed home invader who needs to be shot to death on the spot, the other thugs are just doing their job.

    3. avatar LarryinTX says:

      Any law which makes a judge personally liable for any monies if the accused is found not guilty (or whatever) will guarantee no such finding will ever occur. A fair and equitable judgment will require a judge who has no skin in the game. Judges, like cops, are only human, they have not been elevated to some kind of gods.

  13. avatar FedUp says:

    does this mean that 90 percent (or more) of ERPO-served Connecticut residents did commit suicide?

    I interpreted the data as indicating that 90% of those whose fundamental civil rights were revoked upon allegations of suicidal tendencies were not suicidal and lost their rights over a false accuation. But your interpretation is possible too. Maybe 70% weren’t suicidal and 20% weren’t stopped from committing suicide?

  14. avatar Fight islam Now says:

    In kalifornia, if a collector with many guns has a vindictive erpo filed and firearms siezed the authoritas will only return firearms at the rate of one a month with forms and NICS check for each gun. If you have a large collection it could take a lifetime to have it returned.

    Further, I have seen atf confiscate guns based on a restraining order having been issued. The atfholes remove the guns from the boxes and cases and toss (throw) the guns into a barrel. The implied objective is ALWAYS to destroy or reduce the value of the weapons.

    Politicians that have supported this type of legislation are TRAITORS. Period. and they lied when then took their oath to protect and uphold the constitution. Long past time to water the tree of liberty liberally

  15. avatar Take Me, Take Me! says:

    The first to be taken would be 2A advocates. The second, 1A advocates. The third group, of course, would be anyone and everyone not in favor with whatever regime was currently in power. The last group would be the United States of America.

  16. avatar GS650G says:

    If you sense a ERPO is going to be laid on you it’s best to skip town. Enforcing said order is a lot harder hundreds of miles away from whomever placed it on you.

  17. avatar Gov. William J Le Petomane says:

    “For every 10 or 11 g un removal ca ses, one suicide was averted — an estimated 72 averted suicides.”

    How in the hell do they know how many suicides were ‘averted’? My guess is they’re just assuming that everyone who was stripped of their 2A rights would have committed suicide had their gu ns not been confiscated. And that would mean that about 10% committed suicide anyway.

  18. avatar Michael says:

    How are these even Constitutional? Seeing one cannot have a right taking away without Due Process or Habeas Corpus Rights. That a charge must be present of a crime, that a defendant has a right to both a lawyer and to know who is accusing them. They have a right to a trial of their peers, and to appeal the courts verdict. So how has not anyone challenged this in the US Supreme Court as a violation of the Bill of Rights.

    1. avatar Mark N. says:

      They are constitutional because of the part that Robert left out–as he always does. The ERPOs (or GVROs) are, in every statute I’ve reviewed, a two step process. First is a temporary order which, as is usual with all TROs, issued ex parte on sworn affidavits (i.e. testimony under penalty of perjury). These orders AUTOMATICALLY expire unless, within a statutorily defined period of time (ten day to three weeks depending on the law), there is a full blown evidentiary hearing at which the respondent is entitled to appear, to be represented by counsel, and to present evidence. Moreover, the respondent must be promptly served with the TRO so that he has a full opportunity to exercise his constitutional rights. Failure to serve again results in the TRO being vacated (and without service, there is no seizure of firearms).

      Further, most if not all of these statutes restrict the persons who may seek such orders, and nonresidents including vindictive ex-spouses need not apply. Persons seeking divorces have far more powerful TROs available–the DVRO. These are sought with a massive regularity, many never proceed to hearing. Procedurally, they are identical to EVROs, requiring service and a full evidentiary hearing. They have withstood constitutional attack. And they too result in mandatory disarmament. Funny how Robert doesn’t complain about them.

      Officers are permitted to seek such orders, but I sincerely doubt that this happens very often, since the officer has the power to subject an at-risk individual to an involuntary hold at a psychiatric facility. IF that involuntary hold (varies as to length of time by state, in California it is 3 days, other states are longer) “for assessment” results in an involuntary hospitalization, then gun rights go poof. However, such an extended involuntary detention requires a judicial hearing.

      1. avatar Baldwin says:

        ” Moreover, the respondent must be promptly served with the TRO so that he has a full opportunity to exercise his constitutional rights.” What about they just leave him the f#ck alone in the first place? How about they actually support and defend the Constitution in the first place?

  19. avatar RCC says:

    Some states in Australia now only require the police to issue one for the first 48 hours before they need to go before a judge. I can tell multiple stories of people who have been threatened / had them issued by ex wives.

    One of my friends was hit by girlfriend who even said she hit him in affidavit and she then still applied to have an order against him. Cost him about $1200 in legal fees after I helped him find a good firearms lawyer. Police told him to just show up on the day. He would have lost everything if he had done that.

  20. avatar ironicatbest says:

    In the State I reside ,its against the law to commit suicide

    1. avatar LarryinTX says:

      Well, heck, that sure took care of the problem!

  21. avatar Matt says:

    I can’t honestly think of hearing about an ERPO being abusing in CT. That’s not to say it doesn’t and hasn’t happened or that they are right and good, but I just can’t think of any off hand.

  22. avatar johnny108 says:

    It is the denial of a Constitutional Right without due process.
    Want to explain to gun-grabbers?
    Try this:
    imagine you and some other anonymous individual insult each other online, next thing you know- a judge orders your internet/cell phone access shut down until you can prove you weren’t going to bully someone into suicide.
    A clear loss of your Right to Free Speech without due process….

  23. avatar CC says:

    1) There articles in law journals where family law attonries freely admit that 80% of protection orders are fake and simply tactics.

    Asfar as extreme risk orders there are two addtionoal fundimental probmes

    2) looking at the case law on ERPO, the probative burdens are still WAY lower, and protection of civil liberties, fourth and fifth amendment rights of defendant than any criminal prosecution. hearsay is allowed, ability to cross examine witness against you is not guaranteed, and establishing beyond a reasonable doubt burdens are not needed.

    3) if a person is too dangerous to themselves or others to have a firearm, why are they out able to knife people or kill themselves by non firearm means?

    1. avatar Hi-De-Ho, good neighbor! says:

      Most other forms of suicide do not wake up the neighbors at 2:00 AM. There are the obvious exceptions, such as plunging one’s head through the neighbor’s plate glass window, driving one’s car into the neighbor’s gas meter, packing your own house with ammonium nitrate fertilizer, nitromethane, and diesel fuel mixture, etc.
      BTW, these methods are not illegal, but they WILL annoy the hell out of your neighbors.
      Especially at 2:00 AM.

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