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Extreme Risk Protection Orders

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Note:  We are grateful that two early-career scholars from Michigan State University have shared with us research-based information about an important issue that deserves consideration by Michigan’s legislators

By Jennifer Paruk, MPH and Stephen Oliphant, MPP

Firearms play a central role in suicide and lethal violence. As Spencer Lawson wrote in a previous MCPGV post, suicide and access to firearms are intrinsically linked. Between 1999 and 2019, more suicides in the U.S. were committed using firearms than all other methods combined (Centers for Disease Control and Prevention, 2020). Limiting access to firearms for people who are suicidal is especially important given their high lethality relative to other weapons. Research examining suicides in the U.S. from 2007 to 2014 found that the case-fatality rate of firearm-suicide attempts (89.6%) was higher than that of any other method (Conner, Azrael, & Miller, 2019). According to the Centers for Disease Control and Prevention (CDC), 50.4% of the 1,472 suicides recorded in Michigan in 2019 were committed with a firearm. Firearms are similarly prevalent in assaultive violence in Michigan, as 75.5% of the 607 homicides perpetrated in 2019 involved a firearm (CDC, 2020).

It is not uncommon for suicide or acts of violence (including mass violence) to be preceded by warning signs or patterns of dangerous behavior (Silver, 2020; Rudd et al., 2006). For example, a person might tell a family member that they are going to die by suicide, or a victim of intimate partner violence may be the target of abuse involving the threat or use of weapons. In addition, evidence suggests that certain risk factors (e.g., previous conviction for a violent misdemeanor, alcohol abuse) are associated with risk of future violence (Wintemute et al., 2001; Friedman, 1998). However, in many situations, families or law enforcement do not have the legal means to prevent someone who has exhibited such behavior from accessing firearms.

To prevent future firearm violence after warning signs or opportunities for intervention, states have increasingly adopted Extreme Risk Protection Orders (ERPOs). ERPOs are civil orders that temporarily prohibit a person who is at risk of harming themselves or others from purchasing or possessing a firearm. ERPO bills have been proposed in Michigan, but the legislature has not acted to put those proposals into law.

Law enforcement officials are authorized petitioners in all states with ERPOs, and some states also allow others (e.g., intimate partners, family or household members, employers) to petition as well. Petitioners must present evidence to a court illustrating that a person’s risk of violence to themselves or others warrants temporary restriction of firearm access. Temporary orders may be issued “ex parte” (i.e., without notice to the respondent) in cases where the risk of violence is imminent. If granted, a temporary order is in effect for a short period of time (e.g., two weeks) until a final hearing takes place. Both the respondent (i.e., the person who may be subject to the ERPO) and petitioner are given an opportunity to present evidence during a final hearing. If a final order is granted, the respondent is prohibited from accessing firearms typically for one year. Currently, 19 states and the District of Columbia have a version of an ERPO law.

Research suggests that ERPOs may save lives. Researchers examined a proportion of California ERPOs (called Gun Violence Restraining Orders) and found that ERPOs were used in 21 out of 159 cases to prevent mass shootings. For example, a potential workplace shooting was averted when a company alerted police of an employee’s threat to shoot fellow employees if he was fired. Planning on suspending the employee, the company called the police, a temporary ERPO was granted, police recovered five firearms, and a judge issued a one-year ERPO following a court hearing (Wintemute et al., 2019). Additionally, researchers found that Connecticut’s risk warrant law (a precursor to ERPOs) is associated with a decreased risk of suicide (Swanson et al., 2017).

A common misconception about ERPOs is that petitions are filed for inappropriate reasons (e.g., to harass another person) and that there is nothing to prevent the filing of such nuisance petitions. The existing research suggests that that is not the case. For example, in Oregon, 73% of respondents had a history of suicidality and 75% had a history of interpersonal violence. Additionally, over half of the Oregon respondents had a history of both suicidality and interpersonal violence (Zeoli et al., 2021). In Colorado, out of the 86 ERPO petitions filed and analyzed in 2020, researchers found only four petitions in which the respondent mischaracterized their relationship to the petitioner. All four of these petitions were denied, and one of the four petitioners was charged with perjury (Barnard et al., 2021). Further, state ERPO laws specify that willfully filing false petitions or information is a crime. For example, per ORS 166.543, a person who files an ERPO petition in Oregon to harass the respondent or knows that the information is false is guilty of a Class A misdemeanor.

A second misconception is that anyone can petition for the court to restrict a person’s access to firearms. In reality, authorized petitioners are limited to the groups of people mentioned above (and in some states, law enforcement officials are the only authorized petitioners).

In our own experience reviewing risk protection order petitions in Florida as part of a larger study, we have read hundreds of cases in which law enforcement officials utilized the ERPO process to try to prevent seemingly imminent violence. Cases often include affidavits from family members or intimate partners that document a history of abuse or suicide threats that have led to a significant event that generates a response from law enforcement. In these cases, ERPOs are being used more as a last resort rather than a first response.

If Michigan policy makers decide to pursue an ERPO law and look to other states’ policies for guidance, they will find that ERPOs can vary across states, including how long ERPOs last and who can petition for an ERPO. The Consortium for Risk-Based Firearm Policy, the group of researchers and academics who developed the ERPO policy, has put together recommendations for ERPO policy and implementation based on available research and stakeholder perspectives. Similarly, the Educational Fund to Prevent Gun Violence and the Coalition to Prevent Gun Violence jointly offer suggestions on creating a racially equitable ERPO law, including conducting a policy impact assessment and convening implementation working groups.

Although more research is needed to better understand the impact of ERPOs on suicide and interpersonal violence, adopting a formal legal process that enables proactive intervention when a person poses a serious risk to themselves or others may be an appropriate step for states to take to prevent firearm violence.

By Jennifer Paruk, MPH and Stephen Oliphant, MPP

References

Barnard, L. M., McCarthy, M., Knoepke, C. E., Kaplan, S., Engeln, J., & Betz, M. E. (2021). Colorado’s first year of extreme risk protection orders. Injury Epidemiology, 8(1), 59. https://doi.org/10.1186/s40621-021-00353-7

Centers for Disease Control and Prevention (2020). Underlying Cause of Death 1999-2019 on CDC WONDER Online Database, released in 2020. Data are from the Multiple Cause of Death Files, 1999-2019, as compiled from data provided by the 57 vital statistics jurisdictions through the Vital Statistics Cooperative Program. Retrieved from http://wonder.cdc.gov/ucd-icd10.html

Conner, A., Azrael, D., & Miller, M. (2019). Suicide case-fatality rates in the United States, 2007 to 2014: a nationwide population-based study. Annals of Internal Medicine, 171(12), 885-895.

Friedman, A. S. (1998). Substance use/abuse as a predictor to illegal and violent behavior: A review of the relevant literature. Aggression and Violent Behavior, 3(4), 339–355. https://doi.org/10.1016/S1359-1789(97)00012-8

Rudd, M. D., Berman, A. L., Joiner, T. E., Nock, M. K., Silverman, M. M., Mandrusiak, M., Van Orden, K., & Witte, T. (2006). Warning signs for suicide: Theory, research, and clinical applications. Suicide and Life-Threatening Behavior, 36(3), 255–262. https://doi.org/10.1521/suli.2006.36.3.255

Silver, J. (2020). Space between concern and crime. Criminology & Public Policy, 19(1), 253–270. https://doi.org/10.1111/1745-9133.12474

Swanson, J. W., Norko, M. A., Lin, H.-J., Alanis-Hirsch, K., Frisman, L. K., Baranoski, M. V., Easter, M. M., Robertson, A. G., Swartz, M. S., & Bonnie, R. J. (2017). Implementation and effectiveness of Connecticut’s risk-based gun removal law: Does it prevent suicides? Law and Contemporary Problems, 80(2), 30.

Wintemute, G. J., Pear, V. A., Schleimer, J. P., Pallin, R., Sohl, S., Kravitz-Wirtz, N., & Tomsich, E. A. (2019). Extreme risk protection orders intended to prevent mass shootings: A case series. Annals of Internal Medicine, 171(9), 655-658. https://doi.org/10.7326/M19-2162

Wintemute, G. J., Wright, M. A., Drake, C. M., & Beaumont, J. J. (2001). Subsequent criminal activity among violent misdemeanants who seek to purchase handguns: Risk factors and effectiveness of denying handgun purchase. JAMA, 285(8), 1019–1026. https://doi.org/10.1001/jama.285.8.1019

Zeoli, A. M., Paruk, J., Branas, C. C., Carter, P. M., Cunningham, R., Heinze, J., & Webster, D. W. (2021). Use of extreme risk protection orders to reduce gun violence in Oregon. Criminology & Public Policy, 20(2), 243–261. https://doi.org/10.1111/1745-9133.12544

GUNS DON'T BELONG IN THE CAPITOL.

The Michigan Capitol Commission voted unanimously to support a limited prohibition on citizen-carried firearms inside the state Capitol. However, this ban does not apply to the Capitol grounds or to individuals with conceal carry permits. While an important first step, the Capitol Commission has a long way to go. Show your support and urge your representatives to ban all citizen firearms on the Capitol grounds!

Let’s make our voices heard and put an end to this dangerous practice!

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