The following is the response to questions from an armed defense legal representation organization regarding extreme risk protection orders (ERPO), gun violence restraining order (GVRO) or so-called red flag laws. It was written by Attorney Ralph D. Long, Sr., a member of the Alabama State Bar Association.
Mr. Long was a small town municipal prosecutor and retired police lieutenant with 26 years of experience in patrol and investigations. His police service includes extensive experience as a police firearms trainer. He gives us permission to reprint his advice with the following caveat.
He, in NO WAY, advocates or encourages any citizen to break the law or to disobey/ignore a judge’s order. He insists that the time and place to resist an ERPO is before the legislature passes a “red flag” law. Though Mr. Long states that the principle of Constitutional and common law due process requires a hearing before a person’s property is seized by the government, no one should use violence to resist peace officers who are sent to their home with a court order.
After ERPOs becomes law, and until they are overturned by the state or U.S. Supreme Court, an ERPO must only be contested in court after the fact. Those subjected to an ERPO should conduct themselves with restraint so as to aid their attorney’s efforts to restore the seized property and/or right to bear arms. Resisting officers executing a court order only gives credence to the person who has sworn before the judge that the subject is a danger to himself or others.
Mr. Long further encourages citizens to research and enroll in an armed citizen legal defense insurance program that offers civil and criminal defense representation. These organizations include Armed Citizens Legal Defense Network, US Law Shield, US Concealed Carry Association and others. Some of these policies may provide representation for red flag seizures in the states that have such laws. You should make sure you know what kind of representation each organization provides and pick the coverage that bests suits your situation.
By Ralph D. Long, Esq.
If you have never had an adversarial former spouse, angry child, or disillusioned business partner, you are fortunate, because any of these or your doctor can file a motion for an extreme risk protective order in at least 14 states.
If you’ve crossed swords with a police officer who wants to get even with you for embarrassing him in court or for filing a complaint against him, you should be worried about red flag laws going into effect in your state.
That being said, as a municipal prosecutor and retired police lieutenant, I will offer my professional opinion for those who have had their constitutional right to due process limited by legislative action.
1. What are a citizen’s options when the police knock on the door with a warrant and want to confiscate the citizen’s guns?
You have NO Options. Be polite and cooperative; you are basically considered a “dangerous armed adversary.” Call your attorney as soon as you can, not to stop the seizure, but to start the appeal process to get your property back.
Resistance could get you arrested or worse – shot. You can’t ask Mr. Gary Willis of Ferndale, MD, anymore. He was shot to death by Anne Arundel County Police at 5:17 A.M. on Nov. 7, 2018, when an extreme risk protective order was served on him. Police said he answered the door with a gun in his hand and was combative. How many of us wouldn’t arm ourselves if someone came banging on the door before daylight?
All preparations should be made prior to the police showing up at your house. All firearms should be inventoried and photographed prior to the arrival of police–in other words do it NOW. They will not give you time to do that when they come for your firearms, though they probably will give you some kind of receipt for what they take. It’s better to have your own inventory taken when your blood pressure isn’t 195/110.
I’m not advising anyone to violate a judge’s order, but some may want to consider having another firearm stored in a fireproof gun safe at a trusted friend’s or relative’s house so that he will have some means of protecting himself if a dangerous situation arises before the firearms are returned.
Some orders may allow a hearing within a week or 10 days. But they can remain in effect for a year (check your state’s law) if the judge is anti-Second Amendment and delays a hearing to determine whether there is risk to yourself or others. The protective order will likely go to the FBI National Instant Criminal Background Check System. If the order doesn’t prevent you from buying another gun, the NICS notification will.
2. Assuming the guns are securely locked in a gun safe, do you advise the citizen to comply and open the safe?
YES. The safe may be taken (unlikely because police officers are government employees and, by their nature don’t like the physical work involved in moving the whole safe) or opened by force, to include destruction of the locking mechanism. The red flag court order gives them that authority.
3. What consequences do you anticipate would result from refusing to open a safe?
It depends on how your state’s law is worded but expect arrest for P.O.P. (pissing off the police). It may be termed as “interfering with officers in the course of/performance of their duties,” harassment, assault, and/or violating an extreme risk protective order (remember an order was signed by a judge who conducted a hearing without you present), and they will pile on by adding “resisting arrest.” Try getting a concealed carry permit after conviction for a couple of those charges.
This article originally appeared elsewhere and is reprinted here with permission.