Maryland Red Flag Laws and Extreme Risk Protective Orders

Under Maryland's "red flag law," courts may issue extreme risk protective orders (ERPOs) that require individuals (known as "respondents") at risk of gun violence to give up their firearms and ammunition temporarily. This article explains the process for obtaining or fighting an ERPO.

What Is a Red Flag Law in Maryland?

Maryland's red flag law allows a judge to temporarily remove a person's access to guns when there is evidence that the person is an immediate threat to themselves or others. As of early 2024, Maryland is one of about 21 states and the District of Columbia that have red flag laws in effect.

Who Can Request Extreme Risk Protective Orders in Maryland?

Maryland allows any of the following people (known as "petitioners") to request an ERPO:

• family members and intimates of the respondent
• certain health and mental health professionals who have examined the respondent, and
• law enforcement officers.

(Md. Code, Pub. Safety § 5-601 (2023).)

How to Request an Extreme Risk Protective Order in Maryland

If you're one of the people allowed to request an ERPO in Maryland, you can do so by filling out a petition. You'll need to provide specific facts, along with any supporting documents, that make you believe the respondent poses an immediate danger of injury (to self or others) by having a gun.

If you want to request an emergency mental health evaluation of the respondent, you may also file an addendum that summarizes the respondent's mental health history and any behavior that's a sign of a mental disorder.

After signing the petition (under penalty of perjury), you'll need to file it with the district court clerk or, if the clerk's office is closed, with a district court commissioner. There's no fee for filing the petition.

You should also come to the temporary and final hearings (discussed below), to make your case for why the judge should issue an ERPO. (Md. Code, Pub. Safety §5-602 (2023).)

Decisions and Required Proof for ERPOs in Maryland

The procedure—and the level of proof needed—varies, depending on whether it's an interim, temporary, or final order. At any of these stages, judges or commissioners may refer a respondent for an emergency mental health evaluation if there's reason to believe the legal requirements have been met.

Interim ERPOs

When a petition is filed with a court commissioner, the commissioner will decide whether to issue an interim ERPO. The commissioner may enter the order if there are "reasonable grounds" to believe that the respondent poses an immediate danger of injuring someone by having a gun.

An interim ERPO typically lasts until the temporary ERPO hearing, but not beyond the end of the second business day after it is issued.

(Md. Code, Pub. Safety §5-603 (2023).)

Temporary ERPOs

After the petition is filed with the court (or after an interim ERPO is issued), a judge will hold a hearing to decide whether to issue a temporary ERPO. At this hearing, the commissioner may enter the order if there are "reasonable grounds" to believe that the respondent poses an immediate danger of injuring someone by having a gun.

A temporary ERPO typically lasts until the final ERPO hearing, but not beyond six months.

(Md. Code, Pub. Safety § 5-604 (2020).)

Final ERPOs

Generally, a hearing on a final ERPO must be held within seven days after a temporary order has been served on the respondent. However, the respondent can ask to have the hearing postponed up to 30 days.

The judge may issue a final order if, after considering all of the relevant evidence presented by both the petitioner and the respondent at this hearing, the judge finds clear and convincing evidence that the respondent poses a danger of hurting someone by having a gun.

A final ERPO can last for as long as one year and may be extended for an additional six months for good cause at a subsequent hearing.

(Md. Code, Pub. Safety §§ 5-605 and 5-606. (2023).)

How Can Maryland Gun Owners Fight Back Against ERPOs?

If someone has asked for an ERPO against you, Maryland law gives you the right to attend the final ERPO hearing, testify, and present evidence in an attempt to convince the judge not to issue the order. You also have the right to have an attorney represent you at the hearing (although the state won't provide a lawyer for you). A lawyer who's experienced in handling restraining orders can help you gather evidence and prepare for the hearing—so it's a good idea to contact an attorney as soon as possible.

A temporary ERPO hearing may be held without your presence. If you're served with an interim order, however, you'll receive information about the temporary ERPO hearing so that you can attend.

You may file a petition to rescind, or lift, a final ERPO. You may also appeal a judge's decision to issue a final ERPO against you. If you're thinking of filing an appeal, you should definitely talk to a lawyer. (Md. Code, Pub. Safety §§ 5-603, 5-604, 5-605, 5-606 (2023).)

How Long Do Extreme Risk Protective Orders Last in Maryland?

The different types of ERPOs are effective for different lengths of time:

• An interim order lasts only until the hearing on the temporary order, which must be held the next day that a judge is sitting in court, or the day after that.
• A temporary order usually lasts no more than seven days, unless the respondent asks to postpone the final ERPO hearing.
• A final ERPO will last as long as the judge decides, up to a year. However, a petitioner may request to have a final order extended for another six months, and either the petitioner or respondent can ask to have the order changed or lifted. There will be a hearing on any of those requests, similar to the final ERPO hearing.

(Md. Code, Pub. Safety §§ 5-603, 5-604, 5-605, 5-606 (2023).)

Enforcement of ERPOs in Maryland

Law enforcement officers will serve interim, temporary, and final ERPOs on the respondents. Respondents must immediately surrender any guns and ammunition in their possession, and they may not buy or acquire any more while the orders are in effect.

If law enforcement shows probable cause to believe that a respondent hasn't fully obeyed an ERPO, a judge may issue a search warrant to find and remove any guns in the respondent's possession.

It's a misdemeanor in Maryland to violate an ERPO. For a first offense, the penalty is up to 90 days in jail and/or a fine of up to $1,000; another offense could get you up to a year in jail and/or a fine of up to $2,500. (Md. Code, Pub. Safety §§ 5-607, 5-609, 5-610 (2023).)

Getting Guns Returned After an ERPO Expires

Once an ERPO expires or is terminated, the respondent needs to make a request to get the surrendered gun(s) back from the law enforcement agency that's holding them. (Md. Code, Pub. Safety § 5-608 (2023).)