Law Intended to Confiscate Guns From Dangerous Individuals Goes Largely Unused

In January, the District of Columbia followed Maryland and 16 other states in adopting an Extreme Risk Protection Order (ERPO) law.

DC’s ERPO law, also known as the Red Flag Law, allows police to temporarily seize firearms and ammunition from individuals who are deemed to be a risk to themselves or others.

Petitions to remove firearms from the possession of a dangerous individual can be filed by family members, guardians, domestic partners, romantic partners or dates, parents of a child in common, roommates, police officers  and mental health professionals.

Once the petition is filed it will be brought before a DC Superior Court judge who will decide if the person is in fact a risk. If the judge does find the individual to be dangerous, an ERPO is granted. Both the person filing the complaint and the at risk individual will go before the judge to present evidence pertaining to their case.

With a judge’s approval, guns and ammunition can be confiscated from the subject of an ERPO for up to a year at which point a judge would need to renew the order or the weapons will be returned to the owner. 

As of Jan. 15, there have been three requests to confiscate firearms from DC residents under the law, according to Leah Gurowitz, director of media and public relations at DC Superior Court and DC Court of Appeals.

ERPO requests include one, that occurred eight months after the law was passed. A Metropolitan Police Department officer filed an ERPO petition, requesting that guns be removed from the custody of a 45-year-old district resident. The officer filed the petition after officers observed the man’s behavior to be “odd and somewhat out of the ordinary” while he tried to register a .45 semi-automatic handgun at police headquarters, according to the document.

A Superior Court judge granted an Ex Parte ERPO, which are used in emergency situations and approved by a judge within a single business day. If a judge grants an Ex Parte ERPO, MPD officers can be sent to seize any guns or ammunition belonging to the at risk person before they are aware that an ERPO has been filed against them. 

In these cases the subjects will have an opportunity to argue their case before the judge after the firearms have been confiscated. 

The Ex Parte ERPO granted in this case included a request to temporarily seize the .45-caliber handgun the man attempted to register in addition to a .308 caliber rifle in his possession. 

The ERPO cited two prior charges as well as a welfare incident report which indicated a “possible mental health condition,” and a suicide attempt which occurred in 2007.

In January of 2019, police found and confiscated a semi-automatic pistol from the trunk of his car outside of the Rice Building at George Washington University, sparking an investigation for unlawful transportation of a firearm which was never prosecuted. 

One of the prior charges was for second-degree assault in Maryland.

The second charge for third-degree sexual assault which occured in Northwest Washington, DC in January of 2018. The suspect of the ERPO was arrested in connection with the assault but never prosecuted. The case was dismissed in August of 2018.

Another ERPO was filed on Sept. 22 by a psychiatrist at the Psychiatric Institute of Washington. The psychiatrist filed a petition to remove firearms from custody a man who was admitted to the institute in October. According to the complaint the man had a plan to provoke police into shooting him when he was admitted. While he was at the institute he reported to staff that he had access to a gun multiple times, according to the report which was filed in preparation for his release.

The man has “a history of borderline personality [disorder] with chronic cutting behavior,” and attempted to harm himself using plastic utensils and broken glass multiple times while at the institute, according to the psychiatrist’s complaint.

“The patent threatened staff, been urinated on the floor, and thrown items at the staff,” according to the complaint. “He actively provokes other patients to become aggressive.”

A judge granted an Ex Parte ERPO the same day the complaint was filed and granted a final ERPO on Sept. 22. However, as of Dec. 12 no guns were actually confiscated in this case and according to MPD the subject of the second ERPO “was not known to actually have any.”

The methods used for collecting firearms and ammunition after a judge grants an ERPO depend on the circumstances of the case, Metropolitan Police told D.C. Witness. 

“Ideally, we first seek voluntary compliance with any service of an ERPO and if that is not provided we will use legal tools to assist with collecting firearms and ammunition,” said Public Affairs Specialist for MPD, Brianna Jordan. “ MPD will follow all legal processes to recover any known firearms as part of an ERPO and investigate as to where those firearms are located.”

In accordance with a long standing DC law, if an individual willingly surrendered firearms they cannot be prosecuted for possessing them, even if the firearms were illegally obtained. 

According to MPD, the subject of an ERPO won’t be allowed to legally register a firearm while the ERPO is in place. But, MPD officers “cannot specifically prevent an individual from obtaining an illegal gun.” 

According to the Office of the Attorney General of the District of Columbia, if a gun is willingly surrendered the person in possession of it won’t be prosecuted because the goal is to get the gun out of circulation. However, if the firearm is linked to any criminal activity willingly surrendering the weapon does nothing to prevent prosecution of those other crimes. 

Outside of no longer being able to legally register for a gun, being the subject of an ERPO has no legal consequences and cannot count against an individual in any way should they be suspected of or tried for any future crimes, including weapons charges, according to the Office of the Attorney General.

Siena Rush wrote this story.