The Story of ERPO
The real history of the extreme risk law — as told by its creators.
On Monday, Donald Trump addressed the nation regarding the tragic shootings in El Paso, Texas and Dayton, Ohio. He accepted no responsibility for his role in inspiring and emboldening armed white supremacists. He called people with mental illness “monsters.” He blamed video games for our nation’s gun violence epidemic. In short, he got it almost completely wrong. Almost.
The one thing Trump got right was our country’s need for Extreme Risk Protection Orders (ERPO) — sometimes called extreme risk laws.
As of August 2019, 17 states and the District of Columbia have enacted ERPO: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, and Washington. But before this policy gained present-day popularity among policymakers and constituents, ERPO was being tested, developed, and discussed by experts.
The first ERPO was Connecticut’s “risk warrant,” which passed in 1999 following a mass shooting at the state’s lottery headquarters. Six years later, in 2005, Indiana passed another early version of ERPO. Nearly a decade passed. Then, in 2014, following the mass shooting in Isla Vista, California, the concept began to take shape and take hold.
This is the story — told by some of the experts and architects behind this policy — of ERPO’s journey.
CHAPTER 1: What’s an ERPO?
Josh Horwitz, Executive Director, Educational Fund to Stop Gun Violence: ERPO is a policy that allows family members and law enforcement to petition a court to temporarily remove firearms from people demonstrating dangerous behavior. After all, those closest to us are often the first to notice a serious change in behavior. Using ERPO, concerned relatives can get help for a family member who is demonstrating evidence-based risk factors for dangerousness, whether the person is abusing substances and erupting in violent outbursts or demonstrating suicidal behavior. It is important to note that ERPO is based on behavior, not a diagnosis.
Jeff Swanson, Professor of Psychiatry and Behavioral Sciences, Duke University School of Medicine: I would define an ERPO essentially as a civil court order from a judge that authorizes police to search for and temporarily remove firearms from a person who is known to pose a high risk of harming self or others in the near future. The ERPO is designed to be a non-criminalizing public safety intervention that is time-limited and provides due process.
Kelly Roskam, Senior Director of Law and Policy, Educational Fund to Stop Gun Violence: ERPO is a unique policy because it serves as a safety net where individuals may not be convicted of disqualifying offenses or have disqualifying mental health records or have disqualifying domestic violence protective orders. It just kind of swoops in to ensure that for people who are at heightened risk of hurting themselves or somebody else, there’s still a mechanism to remove the most lethal means of causing harm. It’s also a very light touch. It does not include the same lifetime collateral consequences as, for instance, a prohibiting conviction. The prohibition and removal lasts only so long as the order is in place.
CHAPTER 2: The Beginning of the Contemporary ERPO
Following the shooting at Sandy Hook Elementary School in Newtown, Connecticut in 2012, the discussion in the media and around the country focused largely on the intersection of mental health and gun violence — much like we are seeing today. In 2013, the Educational Fund to Stop Gun Violence (Ed Fund), with support from the Joyce Foundation and the New Venture Fund, convened the Consortium for Risk-Based Firearm Policy (Consortium), a diverse group of experts — including mental health and gun violence prevention researchers, practitioners, advocates, and legal professionals — at the Johns Hopkins Bloomberg School of Public Health. These experts made a commitment to thoroughly examine leading research and advance evidence-based gun violence prevention policy recommendations.
Josh Horwitz: At the beginning, the Ed Fund played a catalytic role in putting together mental health and public health and law enforcement professionals to examine what we thought was the question at the time: what do we know about the intersection of firearms and mental illness? That was the beginning of the Consortium.
Jeff Swanson: Josh realized the significance and the opportunity of the moment. His leadership and formidable networking skills were key factors in developing the core partnerships that spawned the Consortium, convening a genuinely interdisciplinary group of leading academic experts in mental health policy and law from one side and the nation’s gun violence prevention research “brain trust” from another.
Josh Horwitz: At that first meeting at John Hopkins, we quickly realized that it’s not really mental illness that we should be focused on. It’s dangerous behavior. And working with Jeff, Shannon Frattaroli, Beth McGinty, Richard Bonnie, and Paul Appelbaum, among others, we realized that there were and are lots of circumstances where people who are at a high risk of dangerousness had access to firearms. It was clear that we needed to identify a legal tool that would focus on removing firearms from people at high risk of violence to self or others. We needed a tool that focused on behavior and not diagnosis — and we developed the modern ERPO concept at that meeting.
Jeff Swanson: We had a mutual understanding that gun violence is a public health problem — to be addressed with the conceptual tools of risk and prevention — along with a shared commitment to evidence-based public policymaking. This provided a common place for a Consortium to form and “stand” and a common direction for it to move forward.
Josh Horwitz: I think what was unique was the process. It was such an exciting thing to connect with people who really had tons of expertise in different areas of research and bring them together. And that first Consortium meeting had a very unique feeling — to be part of something that really felt bigger than the people there. We wanted to listen, we wanted to learn from each other, and there were a lot of disagreements in that room. But walking out, we were all unified. That is a testament to what a unique process it was — but also to the knowledge and expertise of the attendees of the Consortium meeting. And it was out of that meeting that California’s extreme risk law was born.
CHAPTER 3: ERPO Begins to Take Hold
California’s extreme risk law (known as a Gun Violence Restraining Order) was enacted after the deadly shooting in Isla Vista, California in 2014. The shooter had exhibited dangerous behavior prior to the shooting, and his parents shared their concerns with his therapist, who contacted law enforcement. The police briefly interviewed him but had no legal authority to intervene.
Jeff Swanson: Connecticut’s 1999 “risk warrant” law provided a model for what the Consortium first called the Gun Violence Restraining Order (GVRO) law, as enacted in 2014 in California. The GVRO’s main innovation beyond the Connecticut’s statute was to provide a legal tool for family members to directly petition a judge to order temporary removal of firearms from a risky individual, without going through law enforcement first, using a legal process similar to what states already had in place for issuing a domestic violence order of protection.
Josh Horwitz: I think we definitely thought of California as the testing ground for the law. Earlier than a lot of other states, they had a legislature that was very supportive of this type of work. California made for a good state additionally because they’re one of the few states that does domestic violence removal in a way that is meaningful. So it made sense to pick a state that is removing guns effectively.
Mike Feuer, Los Angeles City Attorney: My first reaction to the ERPO was that this is an approach that could save lives. This is an approach that, if it had been applied in situations where there have been mass shootings, might have made the difference between whether the shooter actually had the weapons available to him or not. Temporarily getting guns out of the hands of people who could pose a threat to themselves or others should be a policy that everyone — irrespective of the ideology — supports.
Kelly Roskam: We continue to lay the groundwork in every place in which we work. Every state that we help to craft an ERPO, we convene a group of stakeholders that includes all kinds of interested parties — law enforcement, prosecutors, advocates, mental health care providers and practitioners — to try to draft the best policy for that state. There’s really no one-size-fits-all version of ERPO.
Kimberly Wyatt, Senior Deputy Prosecuting Attorney, King County, Washington: I remember hearing about ERPO as part of the citizens’ initiative, but it was not until our unit, the Regional Domestic Violence Firearms Enforcement Unit, formed in January 2018 that I began to understand the importance of the ERPO work.
Mike Feuer: Law enforcement typically is unaware of the law when it first takes effect. So the first step in the implementation is to educate and train law enforcement and others. My office also trained a cadre of pro-bono lawyers to help families when the law first was enacted here in California. In addition to training, of course, there’s the actual use of the tool. Obviously, it needs to be used judiciously. But by the same token it needs to be used as frequently as is necessary to protect the public.
CHAPTER 4: How ERPO is Saving Lives
Jeff Swanson: Our group’s research studies in Connecticut and Indiana show that ERPO laws can prevent suicides — one life was saved for every 10–20 gun removal actions. We matched death records to the gun removal cases in these two states, used case fatality rates to estimate the number of suicide attempts that would have been made by each method to produce the observed distribution of suicides that occurred following gun seizure, then conducted a counterfactual analysis to calculate the additional number of deaths that would likely have resulted if firearms had not been removed from these individuals.
Kimberly Wyatt: We’ve had a number of individuals subject to an ERPO that have thanked law enforcement in court for intervening and saving their lives by filing an ERPO. These cases involved respondents who were at the lowest points in their lives, with suicidal ideation. It is a powerful experience to see respondents express gratitude for the use of this new tool.
We have also worked with law enforcement on ERPOs that involved threats to harm others. For example, a threat to shoot up a neighborhood while armed with over 35 firearms, a case involving the stalking of a local dentist and child luring, a case where a respondent brought a loaded gun to a school, a case that involved threats to law enforcement that included the respondent conducting surveillance on a local police department, a threat to bomb and harass tenants in an apartment complex, and a respondent that shut down our local highway while armed with a shotgun.
Josh Horwitz: Recognizing that harm to self is a criteria makes ERPO unique. Typically you’d think about harm to others — that’s what the domestic violence orders are about — but I think for people who’ve experienced the tragedies of suicide or firearm suicide, that’s equally as painful. I’m really proud of the fact that we also include self-harm as a reason to remove firearms. And when you think about it, suicides being 60 percent of gun deaths in America, that’s a really important aspect.
Mike Feuer: We’ve seen some very concrete successes here in our territory here in Los Angeles. In one case, a domestic violence suspect pointed a gun at his own head during an argument with his girlfriend. He also made threats to the girlfriend and her kids. The victim suspected that that person had two guns. When the person was released from custody, before prosecutors could make a felony decision, a GVRO was obtained as a stop-gap measure until a protective order could be issued in court.
CHAPTER 5: The Future of ERPO
Since the February 14, 2018 massacre at Marjory Stoneman Douglas High School in Parkland, Florida, there has been a dramatic increase in the passage and implementation of ERPOs in states across the nation. The increased attention and bipartisan support for ERPOs made the laws attractive for states seeking to take action.
Kimberly Wyatt: After the Parkland, Florida tragedy, our unit saw a dramatic increase in ERPO petitions and an increase in national coverage of tools that may help to prevent these tragedies before they occur. We feel fortunate that Washington already had a tool to intervene in these high-risk cases. As the public and law enforcement learn more about the ERPO and the intent of the law, we believe we will see more jurisdictions considering their use in appropriate cases to intervene upstream, before a tragedy occurs.
Kelly Roskam: There’s a huge bipartisan appetite for a law like this. We saw almost thirty states introduce an extreme risk law bill last year. That’s a large amount of this country. And that includes Democrats and Republicans. As people continue to see people they care about shot in all the places people are supposed to be safe, they are going to continue to demand that something be done.
Josh Horwitz: Obviously, there’s a lot of hurdles in traditional gun rights states, but I think that you’re going to see this spread even into those states over the next five to 10 years. I think that as the evidence mounts it’s going to be harder and harder for states that are traditionally not in our corner to say no to this. Because it plays into that frame that people at risk shouldn’t have firearms and you’re hard pressed to find even most gun owners who object with that.
Jeff Swanson: The increasing frequency of mass shootings — and especially the Parkland school shooting that inspired a national student-led gun violence prevention youth movement — has placed new pressure on federal and state lawmakers across the political spectrum to “do something” about gun violence. ERPO is a thing they can do that is politically palatable. The line goes like this: The Second Amendment community has long said that “guns don’t kill people, people kill people.” So here’s a legal tool designed to help identify who those people are.