Massachusetts Adopts “Red Flag” Law

Stevens

by Bethany Stevens

Heads Up

Massachusetts law has long provided two tools to suspend a person’s lawful access to firearms:  a firearms licensing authority could suspend a person’s license to carry or possess a firearm if it found the person was unsuitable, or a court could — indeed, is required to — suspend a firearms license and order the surrender of the person’s firearms after finding a substantial likelihood of an immediate danger of abuse of a household or family member pursuant to G.L. c. 209A.  Massachusetts has now added a third tool, modeled after “red flag” laws in other states, to allow seizure of the firearms of persons who present a risk to themselves or others.  As of August 17, 2018, the District Court and Boston Municipal Court may now issue an “extreme risk protection order” to compel a person to immediately surrender firearms and ammunition on the petition of a household member, family member or licensing authority without the need for a finding of abuse.  See G.L. c. 140, §§ 131R-131Z.

What is an Extreme Risk Protection Order?

An extreme risk protection order (sometimes referred to as an “ERPO”) immediately suspends a person’s license to carry or possess a firearm and directs the person to immediately surrender their firearms licenses, guns (including stun guns), and ammunition to the licensing authority in the municipality where the person resides.  An ERPO may issue only upon a finding that the person “poses a risk of bodily injury to self or others by being in possession of a [firearms license] or having in his control, ownership or possession [guns or ammunition].”  G.L. c. 140, § 131T(a). While the order is in effect, the respondent is disqualified from obtaining a firearms license and is prohibited from possessing a firearms license, gun or ammunition.  A violation of the order is a misdemeanor criminal offense.

Who Can Seek an Order?

The new law allows a household or family member, defined as those phrases are used in G.L. c. 209A, to file a petition with the court upon “belie[f] that a person holding a license to carry firearms or a firearm identification card may pose a risk of causing bodily injury to self or others.”  G.L. c. 140, § 131R.  A petition may also be filed by the licensing authority where the respondent resides (defined as “the chief of police or the board or officer having control of the police in a city or town, or persons authorized by them,” G.L. c. 140, § 121).  In some instances, the licensing authority where the respondent resides will not be the authority that actually issued the respondent’s firearms license(s) because a person could be licensed by the police department of the municipality in which the person works or because a person might move to a different municipality after licensing.  G.L. c. 140, §§ 129B(1), 129B(11),  and 131(d).

Individuals who are not family or household members may not petition a court for an ERPO, even though in appropriate instances they may seek a harassment protection order under G.L. c. 258E.  Chapter 258E does not authorize a harassment prevention order to include an order to surrender firearms.  J.C. v. J.H., 92 Mass. App. Ct. 224, 230 (2017).  As a result, if an individual who is not a member of a license-holder’s family or household believes that a license-holder poses a risk to themselves or others, the individual should seek appropriate relief by reporting the information to an eligible ERPO petitioner.

Procedure to Issue an Order

The new law bears many procedural similarities to G.L. c. 209A.  A petitioner who seeks an ERPO must file a petition signed under the pains and penalties of perjury.  If on review the judge “finds reasonable cause to conclude that the respondent poses a risk of bodily injury to self or others” by possessing a firearms license, guns or ammunition, the judge may issue an emergency or temporary extreme risk protection order without first giving notice to the respondent.  G.L. c. 140, § 131T(a).  An emergency order issued during court hours is valid for only 10 days.  Like an emergency order under c. 209A, an emergency ERPO issued after court hours by an on-call judge is valid only until the end of the next court day.  If a petitioner seeks to have such an “after hours” emergency order extended beyond the next court day, the petitioner must appear during court hours for a hearing at the appropriate court with jurisdiction over the city or town where the respondent lives.

Because an ERPO suspends a person’s lawful access to guns and ammunition, an ERPO will not issue when the person has no license to suspend. Rather than issuing an ERPO, the court will provide the information to police to take whatever action is warranted when they learn information related to the illegal possession of firearms. If in these circumstances the petitioner is a household or family member concerned about their own safety, they should consider seeking a c. 209A order.

For an ERPO to be extended up to one year, the court must hold a hearing within ten days of the filing of the petition with notice to the respondent at least seven days prior to the hearing. The respondent can waive this notice period.  If the respondent files an affidavit stating that guns are required in the performance of the respondent’s employment, the hearing must be held within two days of the petition being filed. At the hearing, the petitioner must establish by a preponderance of the evidence that the respondent poses a risk of bodily injury to self or others by possessing guns or ammunition. If the judge so finds, the judge must issue an order for up to one year.  Either party may move to modify, suspend or terminate an active order.  Appeals of ERPO proceedings may be taken to the Appeals Court just as c. 209A orders may be appealed.

Effect of an Order

Whenever a court issues an ERPO, the licensing authority and the criminal justice information service database (CJIS) must be notified.  This triggers suspension of any Massachusetts firearms license and disqualifies the respondent from obtaining a new firearms license in Massachusetts.  This is the same process that occurs when a c. 209A order issues:  CJIS and licensing authorities are notified of c. 209A orders as such orders generally require immediate suspension of a firearms license and surrender of guns and ammunition.  G.L. c. 209A, §§ 3B and 3C.

The new statute allowing courts to issue extreme risk protection orders does not replace a licensing authority’s ability to suspend a firearms license.  Therefore, under G.L. c. 140, § 129B (firearm identification cards) or § 131 (licenses to carry), the chief of police who issued the license or their designee may still suspend a person’s license and require surrender of guns and ammunition upon finding the licensee “unsuitable.” This determination by the licensing authority results in immediate suspension of the firearms license without the need for a court ruling.

Restoration of Firearms License

While issuing an extreme risk protection order is a process separate from the licensing authority’s determination of suitability, the two processes converge upon an ERPO’s expiration or termination.   After an ERPO is issued, a firearms license, guns, and ammunition may be returned to the respondent only after the licensing authority where the respondent resides determines that the respondent is suitable. A determination of unsuitability must be based either on reliable information that the person “has exhibited or engaged in behavior to suggest the [person] could potentially create a risk to public safety” or on “existing factors that suggest that the [person] could potentially create a risk to public safety.”  G.L. c. 140, § 129B(1½)(d) . If denied reinstatement, a respondent presumably could seek judicial review under existing license appeal procedures, although the new statute does not explicitly provide for such judicial review.

Reports on the New Law’s Use

By December 31, 2018, we will learn more about the utility of this new law.  The court must provide an annual statistical report on its use, including the number of petitions filed, petitions granted, and petitions that led to surrender of guns, as well as demographic information about respondents and petitioners.  In the meantime, information about extreme risk protection orders and the forms a petitioner is required to file can be found on the court’s website. 

Bethany Stevens is the Director of Legal Policy and Deputy General Counsel to the Administrative Office of the District Court, and is a member of the BBA’s Criminal Law Section Steering Committee. Previously, she served as the Deputy Chief of the Middlesex District Attorney’s Appeals Bureau where she litigated closed courtroom claims at the trial level as well as at the Appeals Court and Supreme Judicial Court.