Column: How a key piece of Vermont gun law works

By PAUL MANGANIELLO

For the Valley News

Published: 02-09-2024 4:30 PM

The 2023 Vermont legislative session saw passage of significant gun safety legislation. One piece of this legislation I would like to highlight is the Extreme Risk Protection Order (ERPO) provision in Act 45.

The recent tragedy in Lewiston, Maine, was a failure on the part of the Maine Legislature in not providing adequate public safety. It resulted in the untimely death of 18 Maine residents, with 13 additional Maine residents being wounded, before the shooter finally took his own life. Maine’s “yellow flag” legislation was inadequate and certainly did not assist the shooter, who was known by friends, family, colleagues, law enforcement and the US Army Reserve to be deeply troubled.

Vermont’s newly enacted ERPO legislation does provide a possible intervention aimed at reducing gun-related violence by temporarily withholding a person’s access to firearms, or dangerous weapons if they are suspected to be at risk either to themselves or to others. ERPO will empower an individual (family member, health care provider, state’s attorneys or the state Attorney General’s Office) and the police to petition the Family Division of the Superior Court to temporarily prevent an individual from being able to purchase or acquire a firearm or dangerous weapon, and it may even compel the person to relinquish such a weapon. This law does not result in a criminal record.

As of today, 21 states and the District of Colombia have ERPO (commonly called Red Flag) laws. New Hampshire currently doesn’t have an ERPO law. These laws differ from state to state.

Sadly, I recently learned from a close friend living in Hartford, that her brother, shortly before the New Year, died by suicide with a firearm. She was unaware of the passage of Act 45. If the public is uninformed about legislation, the ability to have an impact on the desired outcome — decreased deaths, injuries and intimidations — will be reduced. Research carried out by the Ad Council Research Institute and The Joyce Foundation uncovered the extent of public knowledge and attitudes toward ERPO and identified how to empower citizens to utilize these gun violence prevention laws.

For ERPO to work effectively, we need to know who this order applies to and who will benefit. In Vermont, it is a two-step process. An individual files to petition the court (Criminal, Civil, or Family division) to issue an “initial” ERPO. This is called an ex-parte ERPO motion, as only one of the parties (the petitioner) needs to be present in this initial review. An ex-parte motion is usually a temporary order pending the formal hearing, the final ERPO.

The individual filing this ex-parte ERPO must prepare an affidavit. The affidavit is taken to a law enforcement agency, which will then take it to a State’s Attorney’s office. The State’s Attorney will be substituted as the petitioner for the remainder of the proceedings, with the individual who files the affidavit continuing in a supporting role. The affidavit must be notarized and/or include a declaration under penalty of perjury. The penalty for a falsified affidavit is imprisonment for not more than a year, a fine of not more than $1,000.00, or both.

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If the ex-parte request is approved and ordered, out of concern for the safety of the public, or to prevent imminent danger to the person filing the affidavit, action can be taken immediately, before the scheduled final hearing date. The police will be able to remove any firearms or dangerous weapons from the owner who possesses them. This ex-parte order can be in effect for up to 14 days. If the ex-parte ERPO is issued, the weapons will remain in the custody of the police, a federally licensed firearms dealer, or a court ordered third party.

Exactly what type of information/ evidence is needed for this process? For the ex-parte ERPO, the burden of proof will require a preponderance of the evidence that the individual poses an extreme risk of harming either themselves or someone else. At the hearing for the final ERPO, it would require clear and convincing evidence.

How long will an individual, after being served a final ERPO, have their access to firearms/weapons restricted? Up to 6 months following a final ERPO, and after those 6 months the process, if warranted, can be renewed. Going forward, it can be re-evaluated every 6 months.

How are weapons returned to the owner? Upon expiration of the ERPO, the weapons are returned to the owner within three business days.

If we have any hope that Vermont’s ERPO legislation will reduce the chance of firearm violence happening in Vermont, reducing death, injury or intimidation with a firearm, we all need to remain vigilant, be proactive and act.

Paul Manganiello, of Norwich, is president of the GunSenseVt Education Fund.