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.
Help—and a Warning—for Potential Violence Victims
There are many resources for crime victims. However, if you’re worried about the threat of gun violence from someone close to you, think about how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you’re doing research or seeking help, especially if that person could gain access to your device.
You should also know that other types of protective orders are available in Maryland, including domestic violence protective orders and “peace orders” (Md. Code Fam. Law § 4-504; Md Cts & Jud Proc § 3-1505 (2020)). Because ERPOs only prohibit respondents from having firearms, these other orders may be helpful, depending on your situation.
Maryland allows any of the following people (known as “petitioners”) to request an ERPO:
(Md. Code, Pub. Safety § 5-601 (2020).)
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), in order to make your case for why the judge should issue an ERPO. (Md. Code, Pub. Safety §5-602 (2020).)
Where to Get Forms for Maryland ERPOs
You can download all of the forms related to extreme risk protective orders—including the original petition and requests to change, extend, or stop ERPOs—on the District Court of Maryland’s website. The site also has location information for the court or commissioner in your area.
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 probable cause to believe the legal requirements have been met.
When a petition was 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. (Md. Code, Pub. Safety §5-603 (2020).)
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 considerations and standard of proof are the same as for interim orders. (Md. Code, Pub. Safety § 5-604 (2020).)
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 by clear and convincing evidence that the respondent poses a danger of hurting someone by having a gun. (Md. Code, Pub. Safety § 5-605 (2020).)
The different types of ERPOs are effective for different lengths of time:
(Md. Code, Pub. Safety §§ 5-603, 5-604, 5-605, 5-606 (2020).)
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). It’s a good idea to contact a criminal defense lawyer as soon as possible, so that the attorney can help you gather evidence and prepare for the hearing.
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 (2020).)
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 (2020).)
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 (2020).)
Look for Changes to Maryland Laws
States can change their laws any time, but you can use the Library of Congress search tool to check the current version of any statute mentioned in this article.