As of April 15, 2020, 19 states and the District of Columbia (DC) authorize specific categories of people (e.g., law enforcement, family, household members) to petition a court for a civil order to temporarily restrict persons at extreme risk of harming themselves or others from having access to guns, by prohibiting gun purchase and possession. These orders are generally known as Extreme Risk Protection Orders (ERPOs), although not all statutes use this term. We refer to these orders as ERPOs for simplicity. All but 2 of these ERPO laws were adopted since 2016, based on a recommendation by the Consortium for Risk-based Firearm Policy released in the aftermath of the Sandy Hook Elementary School shooting in Connecticut. (Consortium for Risk-Based Firearm Policy 2013; McGinty et al. 2014) Typically, legislatures have passed ERPO bills in response to mass shootings. While a case series using California data documents that individuals threatening mass violence are respondents to these orders, (Wintemute et al. 2019) both early commentary (Frattaroli et al. 2015) and recent studies (Kivisto and Phalen 2018; Swanson et al. 2019; Swanson et al. 2017) suggest that ERPO laws are also a promising strategy for preventing suicide. We do note that the outcome studies to date reflect findings from Connecticut and Indiana (the two states with early “risk warrant” laws before 2016) which differ in some procedural ways such as who can initiate the formal process (only law enforcement can request a risk warrant) and the court proceedings that follow. (Bloomberg American Health Initiative) The rapid uptake of ERPO laws across the United States provides an opportunity to answer questions about how ERPOs are being used (e.g., in response to threats of suicide, violence against others and/or mass shootings), inform implementation policy and practice, and provide a foundation for future ERPO evaluations.
We sought to explore ERPO implementation by examining the experience of King County, Washington. We chose to focus on King County for several reasons. King County’s ERPO implementation processes built on the regional effort there to strengthen policies and practices to enforce civil court orders prohibiting domestic violence offenders from purchasing and possessing firearms. Leaders in King County, the most populous county in the state and home to Seattle, established the Regional Domestic Violence Firearms Enforcement Unit (Unit), composed of police, prosecutors, a court orders “problem-solver,” and victim advocates with expertise in intimate partner violence and gun laws. Working to improve swift and certain compliance with firearm dispossession orders for respondents to Domestic Violence Protection Orders (DVPOs) (who are prohibited from accessing, purchasing and possessing firearms and other dangerous weapons while subject to a DVPO) is a priority of the Unit. Because ERPO laws follow a similar process that is based on state DVPO laws, (Frattaroli et al. 2015) the basic infrastructure needed to implement ERPOs was already in place. In addition, the Unit worked with the Seattle Police Department’s Crisis Response Unit – which responds to people experiencing a behavioral crisis (City of Seattle 2019) – to assure both their experience and their personnel were part of ERPO implementation. Washington was the second state, after California, of the 17 states that enacted an ERPO law post-Sandy Hook Elementary School shooting, and King County, in particular, through its new regional Unit, was an early ERPO adopter. As a result, the County’s initial efforts yielded sufficient quantities of ERPOs to inform this initial analysis. Finally, we view the experience of King County, and the Unit, as informative for ERPO implementation in other jurisdictions.
Overview of Washington law
Washington voters passed ballot initiative 1491 (that would become the State’s ERPO law) on November 8, 2016 with 69% of voters statewide and a majority of voters in 32 of the State’s 39 counties, including King County. (Ballotpedia) The law took effect on December 8, 2016. Washington’s ERPO law authorizes law enforcement, family (including intimate partners), and household members to first petition a court for a temporary (“ex parte”) ERPO to be issued without notice to the respondent when petitioners “have personal knowledge that the respondent poses a significant danger of causing personal injury to self or others in the near future by having in his or her custody or control, purchasing, possessing, or receiving a firearm.” (Revised Code of Washington Chap. 7.94) These orders are emergency orders that may be issued by a court when the threat of harm is imminent.
The petition for the temporary order results in an immediate hearing that includes the petitioner and judge who grants or denies the request for a temporary ERPO based on whether the information provided by the petitioner, under penalty of perjury, establishes reasonable cause to enter the order. The petition must identify the number, types, and locations of any firearms the petitioner believes to be in the respondent’s possession, if any, so that law enforcement can remove them when the order is served. To determine a respondent’s level of risk, courts are to consider certain factors that research has demonstrated indicates a person is at an elevated risk of committing harm or violence to themselves or others, which are specified in the law (e.g., violent act or threat, violation of a protection order, problematic substance use, criminal history, brandishing a firearm, access or intention to acquire a firearm).
The court must then hold a hearing within 14 days to determine if a one-year ERPO should be issued. The respondent must be served with notice of the hearing, including the underlying petition and temporary order, at least five court days prior to the full hearing. During the hearing, both the petitioner and the respondent participate and the judge determines whether a preponderance of evidence has been established to issue an ERPO. Both temporary and one-year EPROs prohibit respondents from purchasing and possessing firearms for the duration of the order.
In 2019, Washington amended its law to replace “dangerous mental health issues” with “behaviors that present an imminent threat of harm to self or others,” add hate crimes convictions as criteria for courts to consider when issuing an ERPO, include minors as ERPO respondents, make the court process more immediate for officers dealing with rapidly emergent threats, and clarify other aspects of the law. (Senate Bill 5027, 2019)
While the literature documents how some local jurisdictions implement DVPOs, (Frattaroli and Teret 2006; Wintemute et al. 2014) there is scant information about ERPO implementation. In one evaluation of Connecticut’s risk warrant law (an ERPO-style law enacted in 1999 that allows only for law enforcement to petition the court) the authors include perspectives from law enforcement about implementation processes. (Swanson et al. 2017) Here we seek to add to the Connecticut and Indiana findings, and to the California case series by addressing three questions: Who are the petitioners and respondents in ERPO cases? What are the behaviors described in ERPO petitions? How have courts responded to ERPO petitions?