Extreme Risk Protection Orders are Minnesota’s version of a red flag law which have been passed all the country. These Orders are a new tool created to restrict access to firearms for certain individuals who are deemed dangerous as a response to the prevalent mass shooting that have been happening in America. Here is what you need to know about Minnesota’s Extreme Risk Protection Orders.
What is an Extreme Risk Protection Order?
What is an Extreme Risk Protection Order?
It is an Order from the Court that restricts a person’s ability to possess and purchase firearms while the Order is in place. This is Order meant to take firearms out of the hands of individuals that are at a significant risk of harming themselves or others.
How does an Extreme Risk Protection Order Work?
An Extreme Risk Protection Order can be petitioned to the Court by a person’s family or household member, the respondent’s guardian, by the chief law enforcement officer or by the city or county attorney of a jurisdiction. The petition must be accompanied by an affidavit alleging specific facts that show the respondent poses a significant danger of bodily harm to other persons or is at significant risk of suicide by possessing a firearm. Once the Petition is filed with the Court there will be a hearing within 14 days where the Petitioner will have to prove the petition by clear and convincing evidence. After the hearing the Court will determine whether the Order will be granted or not.
Emergency Extreme Risk Protection Orders
A person petitioning for an Extreme Risk Protection Order may at the same time petition for an emergency extreme risk protection order.
Under that emergency order the Court determines if there is probable cause that the individual poses a significant danger of bodily harm to themselves or others by possessing a firearm, and the person presents an immediate and present danger of either bodily harm to others or taking their life.
If the Court grants this order than it is an ex parte order and will be in effect for 14 days or the date of the hearing for a normal extreme risk protection order whichever is earlier.
How long will an Extreme Risk Protection Order be in effect?
The Extreme Risk Protection Order will be in effect depending on the Court’s decision. They have to be in place for a minimum of six months but cannot be longer than one year.
However, the Order can be extended indefinitely if a person entitled to petition the court for an Extreme Risk Protection Order files for an extension within three months of the previous order being granted.
If an extension is granted the length of the extension will be determined by the Court and it will be in place for a minimum of six months but cannot be in place longer than a year.
What evidence needs to be presented for an Extreme Risk Protection Order to be granted.
The Court can rely on the following evidence to grant an Order:
- A history of threats or acts of violence by the respondent directed toward another person;
- The history of use, attempted use, or threatened use of physical force by the respondent against another person;
- A violation of any court order, including but not limited to orders issued under sections 624.7171 to 624.7178 or chapter 260C or 518B;
- A prior arrest for a violent felony offense;
- A conviction or prior arrest for a violent misdemeanor offense, for a stalking offense under section 609.749, or for domestic assault under section 609.2242;
- A conviction for an offense of cruelty to animals under chapter 343;
- The unlawful and reckless use, display, or brandishing of a firearm by the respondent;
- Suicide attempts by the respondent or a serious mental illness;
- Whether the respondent is named in an existing order in effect under sections 624.7171 to 624.7178 or chapter 260C or 518B, or party to a pending lawsuit, complaint, petition, or other action under sections 624.7171 to 624.7178 or chapter 518B.
- Any other evidence that bears on whether the respondent poses a danger to others or is at risk of suicide.
What are the Effects of an Extreme Risk Protection Order?
Once the Extreme Risk Protection Order is granted that person is prohibited from possessing or purchasing a firearm. The person will have transfer all their firearms to law enforcement or a licensed firearm dealer within 24 hours of the Order being signed. That person then must file proof of the transfer of firearm provided by law enforcement, or the dealer to the Court.
It is also a misdemeanor level offense for a person who possesses a firearm while knowing there is an extreme risk protection order against them. That offense comes with a maximum penalty of 90 days jail and $1,000 dollar fine.
A person who violates the extreme risk protection order will also be prohibited from possessing firearms for five years.
Can an Extreme Risk Protection Order be Terminated?
Yes. The order can be terminated by filing an application with the court. If you file an application the court will hold a hearing and you will have to prove by clear and convincing evidence that you do not pose a significant danger to another person or are at a significant risk of suicide.
You can apply one time for every six months an order is an effect. So if it is a six month order you can apply once, but if it is a year order you can apply twice within that year.
Are Extreme Risk Protection Orders Public Records?
Normally yes but there are exceptions where the record of the Extreme Risk Protection Order can be sealed. If you decide to waive the right to contest the hearing and the basis for the Extreme Risk Protection Order is a risk of suicide you can then request the petition and records of the hearing be sealed. The Court will grant that request unless the Court finds that there is clear and convincing evidence that the interests of the public and public safety out weigh the disadvantages to respondent of not sealing the petition.
If the basis for the extreme risk protection order is based on the fact the person is a danger to others it cannot be sealed.
Conclusion
Extreme Risk Protection Orders are a new way for Minnesota to take away a person’s ability to possess firearms if they pose a risk to themselves or others. Though these orders are designed as a temporary protection that acts quickly in removing firearms from individuals deemed dangerous to protect the public safety. These Orders can also become a tool to remove firearm rights even if no crime is committed that would normally cause a person to lose their firearm rights. That is because the Orders can be extended indefinitely by the Court through repeated petitions. It is for this reason that hiring an experienced attorney is important if you find yourself facing an Extreme Risk Protection Order.
