Judicial Officers

Judges, magistrates, commissioners, and other judicial officers weigh the evidence and determine whether to grant or deny the petition for an ERPO.

Judicial officers determine whether there are grounds for an ex parte or final ERPO to be issued.

Modeled after other types of protection orders, there are two phases of an ERPO:  an ex parte proceeding for an initial limited duration emergency order, followed by a full hearing. The petitioner files a sworn petition setting forth for the court the specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent.  The court reviews the petitioner’s information and other records available to the court for all relevant facts and circumstances, such as threats or acts of violence toward others, threats of self-harm, prior incidents of violence, convictions and arrests, other pending or past protection orders, or violations of protection orders, changes in behavior or communications, abuse of drugs or alcohol, recently acquired firearms, participation in groups promoting violence, or any other specific factors that the relevant state law requires be considered, to determine whether the respondent meets the threshold set forth in the law.

If the petitioner is aware that the respondent has firearms, as much information as possible about the number, types, and locations of the firearms should be obtained by the court. In some cases, the respondent may not currently have possession of firearms. In those cases, the ERPO is still necessary to provide a safeguard of prohibiting any future attempts to purchase or acquire firearms while the order is in effect.

Because of the importance of quick intervention, the best practice is for courts to provide a means for petitioners to be able to file ERPO petitions outside of normal court hours (similar to on-call warrant procedures), and to have the option for online or telephonic as well as in-person hearings.

If the court issues an emergency, temporary ERPO, the respondent must be served as soon as possible with the court’s order, along with a notice for the hearing, which occurs within a few days (exact timeframe varies by state). The court’s order should require the respondent to temporarily relinquish any firearms and associated licenses or permits they may have at the time of service, and prohibit possession, accessing, manufacturing, receiving, or purchasing firearms from that point until the hearing is concluded. It is important that the court’s order gets entered immediately into the appropriate databases so that firearm dealers, law enforcement, and others are aware of the prohibition.

In some jurisdictions, if the petition or affidavit establishes probable cause that the respondent has access to a firearm on their person or in an identified place, when issuing the emergency ex parte ERPO, the court must or may (depending on the state) concurrently issue a warrant authorizing a law enforcement agency to search the respondent and any identified location for firearms and to remove any firearm to which the respondent would have access or control. In the alternative, if a warrant is not concurrently issued, and the respondent fails to fully and immediately comply with the court’s order at time of service, a warrant can be authorized at that time. The best practice for issuing a search warrant for firearms is for the court to provide a mechanism for telephonic or electronic authorization so that there is not further delay.

If any firearms that are obtained by law enforcement are owned by someone other than the respondent, provision is made for the owner to retrieve the firearms from the law enforcement agency, subject to a background check to ensure the owner is not disqualified from possessing firearms. The owner must be required to provide a sworn affidavit affirming ownership and providing assurance they will safeguard the firearms against access by the respondent.

Because of the imminent nature of the possible harm, the best practice is for law enforcement to:

• Serve the ERPO swiftly;
• Explain to the respondent that they must comply with the court’s order, including when and where the hearing will be;
• Remove the firearms so that law enforcement has possession until the full hearing occurs;
• Issue a receipt identifying all firearms that have been surrendered;
• Provide a copy of the receipt to the respondent;
• File the original receipt with the court; and retain a copy.

If the respondent makes statements or takes action during the law enforcement interaction that provides additional indication of concern about them harming themselves or others, law enforcement should note this on the return of service form filed with the court so the court can weigh that at the hearing.

At the full hearing, the petitioner and respondent may both testify, present evidence, and offer witnesses. If the court finds the petitioner has met their burden of proof, the court then issues an order for a longer duration, usually for a period of six months or a year, depending on the state law. The court should explain to the respondent what the court’s order requires, the penalty that could be imposed if the order is violated, and what is allowed regarding termination, modification, or renewal of the order. The order should be promptly entered into the national and state firearm background check systems that identify persons prohibited from possessing firearms.

If the ERPO is not renewed, upon expiration of the ERPO, the firearms are returned to the owner if the owner is not otherwise prohibited from having them. Law enforcement must determine that the individual to whom the firearms will be returned is the individual from whom the firearm was obtained, or an authorized representative of that person, and does not have any other pending prohibitions making them ineligible to possess a firearm.