Getting guns out of the hands of abusers is one of the most important ways to prevent domestic violence homicides. A new law that takes effect October 1 will give police and victims a powerful tool that can save lives.
Beginning October 1 police, family members, intimate partners, cohabitants, health care professionals, and legal guardians in Maryland will be able to petition a Commissioner or District Court judge for an Extreme Risk Protective Order, or ERPO. If an interim or temporary ERPO is granted, the Sheriff’s Department will have the authority to rapidly seize all firearms temporarily, pending completion of the court process.
Recently a couple was driving in a rural county in Maryland. They began to argue, and the man in the car pulled out a gun and hit his partner on the head with it. The victim was able to call 911 and the police arrested the man and took the gun, however there were multiple other guns in his home. Until October 1, securing the additional guns has to wait for a judge to issue a final protective order, at least a week after the initial incident and often longer.
For domestic violence victims, leaving guns in the possession of their abuser immediately after a violent incident or threats of violence is often deadly. In January of 2018, Candace Carnathan asked a Charles County judge to require her husband to turn in his gun as part of her temporary protective order, but the judge declined to do so. On January 26, 2018 Ms. Carnathan was shot to death by her husband. Beginning October 1, victims in a similar position will be able to request that police file an Extreme Risk Protective Order immediately after an incident or do so by themselves.
Key provisions of Extreme Risk Protective Orders include:
- A District Court judge or a Commissioner may issue an ERPO if they find “reasonable grounds” to believe that there is an immediate and present danger of personal injury to the respondent, petitioner, or another as a result of their possession of a firearm.
- Interim or temporary ERPO order the respondent to surrender firearms and ammunition and prohibits the purchase or possession of firearms or ammunition.
- The State’s Attorneys’ Office or law enforcement can apply for a search warrant to search for firearms and ammunition if they have probable cause to believe the respondent failed to surrender firearms under an ERPO.
- A District Court judge may issue a final ERPO if he or she finds “clear and convincing evidence” that the respondent is a danger to themselves, the petitioner, or another by having a gun in their possession;
- Firearms may be transferred to a licensed firearms dealer or another person not living at same address.
- The judge may require an emergency mental health evaluation;
- Final ERPO’s ban respondent possession or purchase of firearms for one year and may be extended for six months under certain circumstances;
- De Novo appeals will be heard in Circuit Court within 60 days; and
- Failure to comply with an ERPO is a misdemeanor punishable by 90 days to one year in jail.
Implementation issues
Maryland’s Administrative Office of the courts is working on the specifics of implementing the new Extreme Risk Protective Order law. Cases may be heard as part of the domestic violence/peace order docket or elsewhere.
While Extreme Risk orders are a big step forward that will protect many domestic violence victims as well as residents who may be suicidal, implementation may be complicated for victim advocate programs. The fact that ERPO’s require “clear and convincing evidence,” a higher standard than domestic violence protective orders, is likely to result in a higher ERPO denial rates. Safety planning will be critical for victims who are denied an ERPO if they do not have a final protective order in place.
The ERPO provision that allows a respondent to hand their guns and ammunition to someone not living at the same location is a potentially very dangerous loophole. Getting guns out of the hands of abusers only works if those guns are completely inaccessible to the abuser.