Minnesota passed Extreme Risk Protection Orders (ERPOs), also known as Red Flag Gun Confiscation Orders, during the 2023 legislative session as a part of Senate File 2909, the Omnibus Public Safety Policy & Finance Bill.
The Red Flag Order provisions take effect on January 1st, 2024.
What's in this law?
This new law (effective January 1st, 2024) introduces Extreme Risk Protection Orders (ERPOs), also known as Red Flag Gun Confiscation Orders, enabling individuals, including family and law enforcement, to petition for an ERPO against someone they believe is a danger to themselves or others with a firearm.
The law details two types of orders:
- Temporary ex parte orders, issued without a hearing based on imminent risk.
- Final orders are issued after a hearing and can last up to a year.
It also provides a process for individuals to challenge ERPOs.
Procedures for surrendering and returning firearms when an ERPO is issued and terminated are outlined. The law stipulates penalties for non-compliance, provides immunity for law enforcement officers, recognizes ERPOs from other states, mandates specific training for law enforcement, and appropriates funds for implementation.
Who does this law impact?
Individuals subject to extreme risk protection orders, law enforcement agencies, third parties involved in the relinquishment of firearms.
Statutes changed by this Law
This portion of the bill modifies the following Minnesota Statutes:
- 624.7171 – 624.7181
Who can petition the court for a Red Flag Order?
According to the Extreme Risk Protection Order (ERPO) law in Minnesota, a petition for an ERPO can be made by:
- The chief law enforcement officer or their designee
- A city or county attorney
- Any family or household members of the respondent
- Spouses and former spouses of the respondent
- Parents and children of the respondent
- A guardian of the respondent
- Persons who are presently residing with the respondent
- A person involved in a significant romantic or sexual relationship with the respondent.
- A mental health professional who determines that a client presents a significant risk of suicide by possessing a firearm, must communicate the threat or risk to the sheriff of the county where the client resides. They must also make a recommendation to the sheriff regarding the client’s fitness to possess firearms.
Process for getting an order issued after a hearing
After the petition is filed, a hearing is scheduled where both the petitioner and the respondent can present their case.
If the court finds clear and convincing evidence that the respondent poses a significant risk of causing personal injury to self or others by having in their custody or control, purchasing, possessing, or receiving a firearm, it will issue a final ERPO.
This order lasts for up to one year, but the respondent has the right to request one hearing to terminate the order during that period.
The petitioner also has the right to request an extension of the order before it expires.
Confiscation/Surrender of Firearms
- The law enforcement agency will obtain any firearms the person possesses as soon as reasonably practicable but no later than 24 hours.
- The firearms will be transferred to a law enforcement agency or a federally licensed firearms dealer.
Process for Getting an Emergency Ex Parte Order
An emergency ex parte order can be issued immediately without a hearing if there’s evidence of an imminent risk to the safety of an individual or the public if the respondent were to possess a firearm.
The petitioner must provide detailed allegations based on personal knowledge that the respondent poses a significant danger of causing personal injury to self or others in the near future by having in their custody or control, purchasing, possessing, or receiving a firearm.
Without the presence of or any input from the accused, the court then examines the evidence. If it finds reasonable grounds to believe that the respondent poses an imminent risk, it issues a temporary ex parte ERPO.
This temporary order typically lasts until a full hearing can be held, usually within 14 days.
The respondent is notified of the order and can request a hearing to challenge it.
Confiscation/Surrender of Firearms
- The court shall issue a search warrant and seizure order to the local law enforcement agency, prior to any notice to the respondent.
- The local law enforcement agency will serve the search warrant and take possession of all firearms in the respondent’s possession as soon as practicable.
Process for getting an order revoked
The respondent may submit one written request for a hearing to terminate the order during the effective period of the order.
The court shall hold a hearing within 14 days after the date on which the request is submitted.
The respondent shall have the burden of proving by clear and convincing evidence that the respondent does NOT pose a significant danger of causing personal injury to self or others by having in his or her custody or control, purchasing, possessing, or receiving a firearm or ammunition.
False Information or Harassment
A person who petitions for an extreme risk protection order under section 624.7172 or 624.7174, knowing any information in the petition to be materially false or with the intent to harass, abuse, or threaten, is guilty of a gross misdemeanor.
Violation of Order
A person who possesses a firearm and knows or should have known that they are prohibited from doing so by an extreme risk protection order under section 624.7172 or 624.7174, or by an order of protection granted by a judge or referee pursuant to a substantially similar law of another state, is guilty of a misdemeanor and shall be prohibited from possessing firearms for five years.
Liability protection for Petitioner
A chief law enforcement officer, the chief law enforcement officer’s designee, or a city or county attorney who, in good faith, decides not to petition for an extreme risk protection order or emergency extreme risk protection order shall be immune from criminal or civil liability.
Liability protection for storage of firearms
A law enforcement agency shall be immune from civil or criminal liability for any damage or deterioration of firearms, ammunition, or weapons stored or transported pursuant to section 624.7175.
Liability protection for harm following service of an order or execution of a search warrant
A peace officer, law enforcement agency, and the state or a political subdivision by which a peace officer is employed has immunity from any liability, civil or criminal, for harm caused by a person who is the subject of an extreme risk protection order.
Liability protection for mental health professionals
A mental health professional who provides notice to the sheriff under section 626.7171, subdivision 5, is immune from monetary liability, and no cause of action or disciplinary action by the person’s licensing board may arise against the mental health professional for disclosure of confidences to the sheriff, for failure to disclose confidences to the sheriff, or for erroneous disclosure of confidences to the sheriff in a good faith effort to warn against or take precautions against a client’s violent behavior or threat of suicide.
Frequently Asked Questions
Will a lawyer be provided at a court hearing?
- In contrast to criminal charges pursued by the government, an Extreme Risk Protection Order is a civil process. Consequently, no lawyers or legal fees are provided to the respondent, even if they are indigent.
I want to read the actual bill text.
What other bills have moved this legislative session?
- UBCs and Red Flag Gun Confiscation were the only gun control law that passed the legislature in 2023.
- You can see other bills that had hearings and were being considered on our 2023-2024 Legislative Page.
- You can see all bills that were introduced on our Bill Tracker.
Will this law be challenged in court?
- As an organization, we cannot directly challenge this law because we do not have standing to sue in court. An individual that is harmed directly by this law (i.e. has had a red flag order served against them) will have to pursue this option.
- We continue to explore options around potential court challenges to this law and will take appropriate legal action if possible.
- If you have a specific situation where your Second Amendment rights have been infringed upon under this law, contact us at email@example.com.
I have questions, where can I go?
If you’ve read the Frequently Asked Questions (FAQ) above and still have questions, contact us at firstname.lastname@example.org and we’ll do our best to answer them.