SEATTLE — It’s a scalpel, not a hammer.
That’s how Eric Pisconski, the acting lieutenant of the Seattle Police Department’s Crisis Response Unit, thinks of the state law that allows law enforcement officers and family or household members to petition a superior court judge for an extreme risk protection order, commonly known as an ERPO.
It’s a two-stage, civil legal process to remove guns from peoples’ possession and prevent them from purchasing or having access to new firearms for one year.
“You’re looking at an imminent threat. We’re more concerned about threatening or violent behavior and it can be to yourself or other people,” Pisconski said. “ERPO is designed for a small niche of the population that doesn’t fall into another category that would prohibit their eligibility” to legally possess firearms.
Such laws — sometimes referred to as “red flag” laws — are having a renewed moment in the national spotlight. After a spate of recent mass shootings, President Joe Biden has directed the U.S. Justice Department to publish model legislation to make it easier for the roughly 30 states without such laws to enact them.
Washington has been at the forefront of the issue, after voters in 2016 resoundingly approved such a measure at the ballot box, making the state the fourth one to enact an extreme risk protection law.
In addition to giving police the legal authority to secure someone’s guns, ERPOs also require the surrender of concealed pistol licenses and respondents’ names are added to the national no-sell list to ensure they won’t pass a background check to purchase a firearm from a gun dealer for the same one-year period.
Juveniles, people convicted of felonies, anyone arrested or convicted of a crime of domestic violence, subjects of domestic violence protection orders and anyone ordered by the court into involuntary mental health treatment for 14 days are not legally allowed to own guns, so an ERPO does not apply to them. As of January, anyone involuntarily committed for up to five days loses eligibility to legally possess firearms for six months.
“It’s for everyone that falls outside those categories and they’re demonstrating threatening behavior and have access to firearms,” said Pisconski, whose unit has filed some 100 ERPO petitions since 2017 — by far the most of any law enforcement agency in the state.
While the law allows for ERPOs to be renewed, in practice, most of the orders are allowed to expire.
‘Preventive, not punitive’
Though more research is needed on whether ERPOs are effective in preventing firearm deaths, Dr. Ali Rowhani-Rahbar, an associate professor of epidemiology at the University of Washington’s School of Public Health, said early evidence looks promising. Studies in Connecticut and Indiana show that for every 10 to 20 petitions granted by a judge, one suicide is prevented, he said. And there’s preliminary data out of California that Rowhani-Rahbar said suggests its ERPO law has prevented mass shootings.
ERPOs, which are civil protection orders, “are really meant to be preventive, not punitive,” said Rowhani-Rahbar, who is also co-director of Harborview’s Firearm Injury and Policy Research Program. “It’s heartbreaking when some of these tragedies occur and families didn’t even know this was an option they had.”
With guns at the very center of America’s deep cultural and political divides, Biden is already facing pushback from critics and gun rights activists who argue the laws can be used to strip someone of their gun rights based on unproven allegations.
Critics of gun regulations have also raised questions over whether the policies are effective.
“One thing for sure is that it did not lower the homicide rate as promised and sold to the public,” Alan Gottlieb, founder of the Bellevue-based Second Amendment Foundation, wrote in an email.
But most people who die from a gun do so by suicide. In 2017, for example, 75% of Washington’s gun deaths were attributed to suicide, according to a report from Haborview Injury Prevention and Research Center. The national figure that year was 60%.
Now, gun safety advocates are pointing to recent research on King County that suggests ERPOs are getting firearms away from people who could harm themselves. In a study last year in the journal Injury Epidemiology, which analyzed King County’s ERPO orders in 2017 and 2018, 30 of the 75 petitions applied to people described as a risk to “themselves only.”
In an interview, Shannon Frattaroli, one of the report’s authors, said, “If you ask me … what the biggest impact of this law will be, without hesitation in my mind, it’s going to be suicide.”
Seventy-nine ERPOs were filed in King County last year, up from 67 in 2019. As of the end of March, 12 ERPOs had been filed in the county this year, resulting in the seizure of 45 firearms, according to data provided by the Regional Domestic Violence Firearms Enforcement Unit, a collaboration between the county prosecutor’s office, the Seattle City Attorney’s Office, Seattle police and the King County Sheriff’s Office.
As of September, 521 ERPOs had been filed statewide since the law went into effect in 2017, though none had been filed in 12 of Washington’s 39 counties, said Kelsey Conrick and Megan Moore, both researchers with the University of Washington’s School of Social Work.
Mass shootings spur change
After mass shootings in Colorado and Georgia in March, followed by April’s mass shooting at a FedEx facility in Indiana — where prosecutors were criticized for not seeking a hearing a year ago to bar the 19-year-old gunman from possessing firearms under that state’s “red flag” law — there’s been a renewed push for states to enact extreme risk-protection laws.
But the widespread use of ERPOs came as a result an earlier shooting: the 2012 rampage at Sandy Hook Elementary School in Connecticut.
In its wake, the Educational Fund to Stop Gun Violence pulled together a consortium of public health experts, law enforcement members and others to look for preventive policies, according to Frattaroli, who was part of that group.
Some of the discussion was — and still is — focused on mental health issues leading to violence. But in reviewing the evidence, she said, it became clear that while a person’s mental health condition wasn’t an indicator of violence, dangerous behaviors were.
“People sort of give clues in the buildup to when they actually do bring harm to society or to others,” said Frattaroli, a professor who is core faculty with the Johns Hopkins Center for Gun Violence Prevention and Policy.
But, she added: “There really wasn’t a mechanism to remove guns from people who are on that trajectory, you kind of had to say ‘well, wait for it to happen and we’ll be there.”
After the 2014 stabbing and shooting that killed six in Isla Vista, California, near the University of California, Santa Barbara, Sen. David Frockt, D-Seattle, was interested in finding a way to prevent such tragedies. In 2015, Frockt and Rep. Laurie Jinkins, D-Tacoma — who is now House speaker — sponsored ERPO bills in the House and Senate. But Republicans then held the upper chamber, and the bills didn’t advance.
“The main arguments [against it] were, ‘it’s going to be abused, you’re going have people using it for nefarious purposes, to get back at a past partner,’” said Frockt.
Frockt tried to address that, he said, by among other things making it a misdemeanor for anyone filing an ERPO with false information. He called the legislation “one of the most important bills that I’ve worked on.”
In 2016, the Alliance for Gun Responsibility picked up on that work, putting an ERPO before voters that November as a statewide ballot measure. The initiative version of the policy made it a gross misdemeanor to file the petition falsely, or in order to harass someone.
Voters resoundingly approved the measure by 69.4%. Even rural Washington communities — like Okanogan, Chelan, Cowlitz and Lewis counties — voted in favor.
As of last year, 19 states and the District of Columbia had enacted their own ERPO laws. Some states only allow law enforcement officers to petition for an extreme risk protection order, while others, like Washington, also extend the right to family or household members. In a handful of states, medical professionals and educators can also file ERPO petitions.
“The rapid adoption of ERPO policies across the country has been one of the most significant gun violence prevention policy initiatives in modern history,” said a report last year by the consortium that helped develop ERPO policy.
But it remains to be seen how far the policy will spread. Similar legislation was considered by at least nine other states but bills died in committee, failed to pass or, in the case of New Hampshire, was vetoed by the governor.
Help in a crisis
Two days after disappearing from a family gathering on the Eastside in April, a 41-year-old Bainbridge Island man called 911 from a Bellevue hotel room and told responding police officers he was being followed by dangerous people.
That same day, a Bellevue cop filed a petition for a temporary ERPO in King County Superior Court after learning from the man’s family that his mental state had rapidly deteriorated, he was paranoid and had access to firearms, court records show.
After a judge granted the emergency order — good for 14 days — the man’s father and brother testified telephonically in support of the one-year ERPO, said King County Senior Deputy Prosecutor Kim Wyatt, who is assigned to the county’s Regional Domestic Violence Firearms Enforcement Unit. During that hearing, Wyatt said, the judge commented that the case was a wonderful example of police collaborating with a family to prevent future harm.
The man surrendered a revolver, two semi-automatic handguns, a hunting rifle and his concealed pistol license to Bellevue police.
In a different case, “I had a dad who said, ‘This is a law of common sense,’ when his son was struggling with substance abuse and had access to firearms and was suicidal — that kind of sums it up,” Wyatt said.
There are a couple ways potential candidates for ERPOs show up on law enforcement’s radar, said Wyatt. Police responding to a call about a person in crisis can take a gun, then petition for an ERPO to ensure that person doesn’t have access to other firearms. Crisis line workers, emergency room doctors and mental health providers all have a duty to report to police when they believe someone in their care presents an imminent threat of harm to themselves or others, which can translate into police seeking an ERPO. And family or household members, who can directly petition the court for an ERPO, sometimes reach out to law enforcement or Wyatt’s unit with their concerns, who can then take the lead on filing the petition.
In rare cases when someone refuses to surrender firearms as a result of an ERPO, police can obtain a warrant to seize them.
Though many ERPOs are sought to prevent self-harm, Wyatt said the COVID-19 pandemic has spurred an increase in the number of ERPOs related to threats of violence against others. Mass shootings in other cities can also lead to people here expressing homicidal ideation, Wyatt said.
“That is not what I see weekly but when those come in, you’re obviously alarmed and concerned and law enforcement is appropriately triaging those [cases] and moving quickly,” she said.
Wyatt wants to see greater public awareness of ERPOs “because family members are going to see those warning signs before it reaches law enforcement.”
“We want families to reach out and know there’s help,” she said.
For family members, seeking an ERPO can be a delicate situation, said Pisconski, the acting lieutenant of SPD’s Crisis Response Unit. He said the best way for someone with behavioral health issues to stabilize is by connecting with their support network. Police, he said, are happy to step in and petition for an ERPO so as not to jeopardize those relationships.
“We’ll be the heavies, we’ll be the bad guys in court, and we’ll let your support network, your family and friends, help you get better,” Pisconski said. “We’ve gotten that feedback from families, who say, ‘We think this is really important but I don’t want my name on the (court) paperwork.’”
Before Washington enacted its extreme risk protection law, police didn’t have any legal authority to keep guns away from suicidal people, he said.
“There’s nothing worse as a cop. Your Spidey senses are going off and the hair on the back of your neck goes up and you know it’s a bad idea (to let someone keep a gun) and you know they’re probably going to kill themselves,” Pisconski said of his pre-ERPO days on the department.
“It’s horrible,” Pisconski said of responding to suicide scenes. “It’s the gut punch of human nature and desperation and lack of hope, to see someone who has got to that point.”
Surrendered firearms get booked into evidence. Before guns are given back once an ERPO has expired, SPD runs a background check to ensure the individual can legally possess firearms, Pisconski said.
He’s heard of a single case in Colorado where a false ERPO was filed, and doesn’t think abuses are at all widespread. But it’s hard to convince his law-enforcement counterparts and gun rights advocates in other states that ERPOs support police in safeguarding lives.
“What you don’t want this to turn into is it being perceived as a gun grab,” Pisconski said. “I tell them, ‘No, no, no, this is a temporary interdiction to secure a firearm from a potentially volatile situation.’”
If ERPO laws are “narrowly applied and you have a robust vetting system and you use it as a scalpel, it’s an effective tool for law enforcement,” he said. “It’s a temporary thing, which is what I try to drive home.”
