PA Red Flag Laws: Do They Exist & How Do They Work?
Understanding Emergency Risk Protection Orders (ERPOs) is crucial when considering does pennsylvania have red flag laws. These orders, often facilitated by local law enforcement agencies, provide a legal mechanism for temporarily removing firearms from individuals deemed a threat to themselves or others. The Pennsylvania General Assembly has debated the implementation of specific ERPO legislation, examining its potential impact on both public safety and Second Amendment rights. Analyzing these debates helps clarify whether Pennsylvania aligns with states that have enacted what are commonly known as red flag laws.
Image taken from the YouTube channel TheGunCollective , from the video titled PA getting Red Flag Gun Laws?! - The Legal Brief! .
Pennsylvania Red Flag Laws: An Overview
This document explores the question "Does Pennsylvania have Red Flag Laws?", officially known as Extreme Risk Protection Orders (ERPOs), and explains how they function within the state.
Defining Red Flag Laws (ERPOs)
Red Flag Laws, also referred to as Extreme Risk Protection Orders (ERPOs), are civil court orders that temporarily restrict a person's access to firearms when they are deemed to pose a significant risk of harm to themselves or others. These laws aim to prevent gun violence by providing a legal mechanism to temporarily remove firearms from individuals in crisis.
Key Characteristics of ERPOs:
- Temporary Restriction: The firearm restriction is not permanent.
- Due Process: Individuals subject to an ERPO have the right to a hearing.
- Focus on Imminent Risk: The legal standard requires a demonstration of imminent risk of harm.
Does Pennsylvania Have Red Flag Laws?
Yes, Pennsylvania has a form of Red Flag Law, formally known as an Extreme Risk Protection Order (ERPO). It was enacted into law in 2018 as part of Act 79.
The Legal Basis:
- ERPOs are governed by Pennsylvania Consolidated Statutes Title 23 Pa.C.S.A. Domestic Relations Section 6102(b)(24) regarding relinquishment of firearms when Protection From Abuse (PFA) order is issued, and Pa.C.S.A. Title 23 Chapter 61 Subchapter C regarding Extreme Risk Protection Orders.
- The law outlines the process for petitioning the court, the required evidence, and the procedures for both temporary and final ERPOs.
How Pennsylvania's ERPO Law Works
The ERPO process in Pennsylvania involves several key stages, each with specific requirements and protections.
1. Petitioning the Court
A petition for an ERPO can be filed by the following individuals:
- Law Enforcement Officers: Police officers and other law enforcement personnel.
- Family or Household Members: Relatives or individuals residing with the person of concern.
The petition must be filed with the Court of Common Pleas in the county where the person resides.
2. Initial Hearing and Temporary ERPO
Following the filing of a petition, the court holds an initial hearing, often ex parte (without the respondent present). If the court finds probable cause to believe the person poses an immediate and present danger of causing bodily injury to themselves or others, it may issue a temporary ERPO.
- Duration: A temporary ERPO is typically valid for up to ten days.
- Firearm Surrender: The respondent is required to surrender their firearms to law enforcement during the temporary ERPO period.
3. Final Hearing
Within ten days of the issuance of a temporary ERPO, the court must hold a final hearing. At this hearing, the respondent has the right to:
- Be present
- Present evidence
- Cross-examine witnesses
- Be represented by an attorney
4. Evidence Considered by the Court
The court considers various types of evidence when determining whether to issue a final ERPO, including:
- Recent Threats: Any recent threats or acts of violence made by the respondent.
- History of Violence: A history of domestic violence or other violent behavior.
- Mental Health History: Evidence of mental health issues or substance abuse.
- Unlawful Use of Controlled Substances: Evidence of recent or current drug use.
- Unsafe Handling of Firearms: Evidence suggesting disregard for safe firearm usage or storage.
- Violation of a PFA (Protection from Abuse Order): Evidence suggesting the respondent violated a PFA order.
- Other Relevant Information: Any other information that the court deems relevant to assessing the risk posed by the respondent.
5. Issuance of a Final ERPO
If, after the final hearing, the court finds by clear and convincing evidence that the respondent poses a significant risk of causing bodily injury to themselves or others, it may issue a final ERPO.
- Duration: A final ERPO is typically valid for a period of one year.
- Continued Firearm Restriction: The respondent is prohibited from possessing or purchasing firearms during the ERPO period.
6. Renewal and Termination
- Renewal: An ERPO can be renewed for an additional year if a petition is filed prior to the order's expiration and the court finds continued evidence of significant risk.
- Termination: A respondent can petition the court to terminate the ERPO if they believe they no longer pose a threat. A hearing is held, and the court considers evidence presented by both sides.
Key Differences from Protection From Abuse (PFA) Orders
While both ERPOs and Protection From Abuse (PFA) orders can result in firearm restrictions, they serve different purposes.
| Feature | Extreme Risk Protection Order (ERPO) | Protection From Abuse (PFA) Order |
|---|---|---|
| Purpose | Prevent harm to self or others based on a demonstrable risk. | Protect victims of domestic violence from abuse. |
| Petitioner | Law enforcement or family/household members. | The victim of abuse. |
| Relationship | No specific relationship required. | A familial or intimate relationship is required between the parties. |
| Evidence Focus | Focuses on imminent risk of violence or suicide, regardless of abuse. | Focuses on acts of abuse. |
| Firearm Removal | A specific and direct consequence of the order's issuance. | A firearm removal order may be part of the order. |
Video: PA Red Flag Laws: Do They Exist & How Do They Work?
FAQs: Understanding Pennsylvania's Red Flag Laws
Confused about Pennsylvania's red flag laws? These frequently asked questions provide a quick overview of what they are and how they function in Pennsylvania.
What are Pennsylvania's "Red Flag" Laws called?
Pennsylvania doesn't technically have "red flag laws." Instead, they are referred to as Extreme Risk Protection Orders (ERPOs). These orders temporarily restrict a person's access to firearms if they are deemed a danger to themselves or others. So, while Pennsylvania does not have red flag laws by that name, it has similar legislation.
Who can file an ERPO in Pennsylvania?
Only law enforcement officers and family members can petition a court for an Extreme Risk Protection Order in Pennsylvania. They must provide clear and convincing evidence that the individual poses a significant risk.
How long does an ERPO last in Pennsylvania?
An initial temporary ERPO can last up to 10 days. A final ERPO, issued after a hearing, can remain in effect for up to one year. It can then be renewed if the risk persists. This shows that Pennsylvania does have red flag laws in practice, though labeled differently.
What happens if an ERPO is issued against someone?
If an Extreme Risk Protection Order is granted, the individual is required to relinquish any firearms they own. They are also prohibited from purchasing new firearms for the duration of the order. Violations can result in criminal charges. Pennsylvania does have red flag laws in place to remove firearms from dangerous hands.
