Attorneys
Attorneys present the evidence to the court, often on behalf of law enforcement petitioners. Respondents also have the right to counsel, at no cost to the government.
There are many opportunities for attorneys to engage in ERPO proceedings, either as counsel for petitioners or respondents. While ERPO cases often involve parties on both sides proceeding pro se (meaning, without legal counsel), all participants benefit from the participation of counsel. In addition to helping ensure that ERPO cases are fair, efficient, and consistent with due process, attorneys for petitioners and respondents should help ensure that both parties can access supports and services that are ancillary to the ERPO case but may also help address the underlying circumstances that led to the filing of an ERPO petition.
Attorneys for Petitioners
Attorneys representing petitioners in ERPO proceedings should first work with clients to understand the full scope and nature of the risk presented and the kind of protections that the petitioner and respondent may need. While an ERPO may be an appropriate legal intervention to reduce a respondent’s access to firearms, a petitioner may also benefit from other legal protections that cannot be included in an ERPO but may be part of another type of civil protection order, such as an order directing the respondent to stay away from certain locations or individuals. Attorneys for petitioners should review the full scope of available civil protection orders to determine the best approach in each case. In some states, the counsel for the petitioner may be the designee of the prosecuting attorney’s office.
In drafting an ERPO petition and preparing for a hearing, attorneys should help petitioners collect evidence of specific examples of the respondent’s statements and behavior that will allow a court to determine whether the burden for issuing an ERPO has been met. Most state ERPO statutes provide a list of factors that courts must consider in adjudicating an ERPO petition – these lists are generally not exhaustive but provide clear guidance on the type of evidence that will be meaningful to the court. Attorneys should also be sure petitioners understand that they will be expected to attend any hearings in the case and may be required to testify in court in front of the respondent and answer questions from the court, respondent, and respondent’s counsel.
Attorneys for petitioners should consider reaching out to the local law enforcement agency that will be responsible for serving an ERPO and effectuating the surrender of respondent’s firearms in advance of or simultaneous with filing the ERPO petition. Even if law enforcement is not a party to the case and will not be providing evidence or participating as a witness, law enforcement will nearly always be involved in the service of these orders and the surrender of firearms pursuant to an ERPO. Communicating early with the relevant local law enforcement agency will help provide adequate time for officers to develop a well-informed plan for service and surrender that will minimize any risks involved in that process.
Attorneys for Respondents
When an ERPO petition has been filed, attorneys for respondents should ensure that the client understands the nature of the proceeding and the potential options for responding to the petition, including consenting to the issuance of an ERPO or contesting the allegations at a hearing. If the court issues an ex parte emergency ERPO, counsel for respondents should ensure that they comply with this order as soon as possible and understand the obligation to participate in any hearings that are scheduled if they wish to contest the order.
If the court issues an ERPO, attorneys for respondents should ensure that respondents understand the terms of the order, how to comply with it, and the potential consequences for violating it, particularly any criminal consequences. Attorneys have a duty to advise their clients of their rights, including the right to an in-person hearing, and the opportunity to testify, present evidence, and confront adverse witnesses. If a respondent is ordered to surrender guns already in their possession, attorneys for respondents should consider working with the relevant local law enforcement agency to negotiate a safe process for the respondent to surrender firearms in compliance with the order. In addition, most state ERPO laws provide a process for respondents to seek termination of an ERPO prior to its expiration, and attorneys for respondents should ensure that their clients understand this process and the burden of proof for a respondent seeking to terminate an order.
Attorneys should also consider whether a respondent may benefit from a referral to behavioral health services or other social services to help address any challenges the respondent may be experiencing that led to the filing of the ERPO petition.
