Chapter 135 "Red Flag" (ERPO) Language Review

The following is a basic summary of the new language in Chapter 135 and should be NOT taken as an entire legal representation of the complete language.

“Extreme risk protection order”, an order by the court that orders:

1. The immediate suspension and surrender of any license to carry firearms or firearm identification card that the respondent may hold.
2. The respondent to surrender all firearms or ammunition that the respondent then controls, owns or possesses
3. That the respondent shall be ineligible for any new license to carry or firearm identification card for the duration of the order.
4. An extreme risk protection order shall be in effect for up to 1 year from the date of issuance and may be renewed upon petition.

 “Petitioner”, as used in sections 131R to 131Y, inclusive, the individual that is filing the petition and is:



1. A family or household member of the respondent.
2. The licensing authority of the municipality wherein the respondent resides.
3. A law enforcement agency or officer.
4. A health care provider can include:
5. licensed physician,
6. licensed physician assistant,
7. registered nurse,
8. licensed practical nurse,
9. certified nurse practitioner,
10. certified clinical nurse specialist,
11. certified psychiatric clinical nurse specialist,
12. licensed psychiatrist,
13. licensed psychologist,
14. licensed mental health counselor,
15. licensed marriage and family therapist,
16. licensed alcohol and drug counselor,
17. licensed independent clinical social worker,
18. licensed certified social worker
19. A principal or assistant principal of an elementary school or secondary school.
20. An administrator of a college or university.

The petition process:

1. Within 10 days the court shall conduct a hearing on the petition.
2. If the accused files an affidavit that a firearm or ammunition is required in the performance of the respondent's employment the court shall hold a hearing within two days.
3. The court shall issue a summons with the date, time and location of the hearing.
4. The court shall direct a law enforcement officer to personally serve a copy of the petition and the summons on the accused.
5. Notice shall be made not less than 7 days prior to the hearing.
6. After a hearing, if the court finds that the accused poses a risk to themselves or others because they are a gun owner, the court shall grant the petition.
7. If the accused does not appear at the hearing the court shall issue the protection order if the evidence that the accused poses a threat.
8. After the court shall issues an ERPO the accused must surrender any licenses and all firearms and ammunition to the licensing authority.
9. The court shall enter written findings as to the basis of its order within 24 hours of granting the order.
10. The court may modify, suspend or terminate its order at any subsequent time upon motion by either party after a hearing.
11. 30 days prior to the expiration of an extreme risk protection order the court will notify the accuser who can file a renewal of the ERPO.
12. If the court believes that the accused has access to a firearm or ammunition and the accused fails to surrender any firearms or ammunition within 24 hours of being served pursuant to subsection the court will issue a warrant to search and seize.
13. Each extreme risk protection order issued by the court shall contain the following statement: VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.
14. Once a licensing authority is notified, they required to suspend any license for the duration of the order.
15. Once an order is issued against the defendant, they must surrender any licenses, firearms and ammunition.
16. Transfers can only be made to a licensed retailer or licensing authority.
17. Any accused that files an appeal cannot have any firearms or ammunition while the appeal takes place.
18. Even after firearms and/or ammunition are surrendered, the accused will technically maintain ownership.
19. If the licensing authority cannot determine who lawfully owns the firearms after 180 the can dispose of them
20. When the accused surrenders a license, firearms and/or ammunition the licensing authority must provide the accused with a receipt and file a copy with the court.
21. If someone else claims rightful ownership of the firearms or ammunition, and it is confirmed the property shall be returned. The rightful owner must ensure that the accused has no access.  

Expiration of an ERPO

1. When the ERPO expires the local licensing authority can still apply suitability as to whether to restore a license and return property.
2. 7 days prior to expiration the licensing authority notify the accuser.
3. If the person who owned the seized property no longer wants them or is no longer eligible, they can sell or transfer the property to a licensed retailer.
4. If the licensing authority cannot determine the lawful ownership they can dispose of them.

“Emergency” ERPO

1. The court can file an emergency order without notifying the accused if they determine the accused is a risk due to access to firearms.
2. When an emergency ERPO is issued, the clerk magistrate of the court shall notify the accused.
3. An emergency order shall expire after 10 days if no hearing is scheduled.
4. Once an ERPO is issued, the accused must surrender all license, firearms and/or ammunition.
5. If the court believes the accused has access to firearms they can issue a warrant for law enforcement to conduct a search and seize.
6. An emergency order can be issued outside of normal court hours.

Healthcare Petitioners

1. Healthcare petitioners can disclose protected health information for an investigation.
2. The court can issue further orders to obtain other health related records. Those records shall be sealed by the court.
3. Healthcare petitioners are protected from civil and criminal action for releasing protected information.
4. The Massachusetts Supreme Judicial Court nd the Appeals court shall have concurrent jurisdiction to review any proceedings held.
5. The supreme judicial court or the appeals court, may vary procedures for reviews to make them more simple, speedy and effective.

ERPO Reporting

The new law adds to the prior reporting requirements:

1. The number of warrants issued that lead to the seizure of firearms or ammunition.
2.  A breakdown of the types of items surrendered.
3. The number of orders that were filed fraudulently.
4. The number of instances in which a petition was found to be fraudulent and the penalties received in each instance.
5. The race and ethnicity of the accuser and the accused.
6. The gender and gender identity of the accuser and the accused.
7. The data on the duration of extreme risk protection orders.
8. The number of instances in which an order has been terminated or otherwise modified prior to its original expiration date.

Harassment Orders

1. If an ERPO is issued the accuser can also file for a harassment order.
2. Harassment order now have the same impact as domestic violence protection orders.
3. The accused may appeal, and a hearing shall be held within 10 court days.
4. If they accused is required to possess a firearm for employment the appeal hearing will take place within 2 days.