News & Updates

H.B. 209 Extreme Risk Protective Order

Sections Affected:
U.C.A. 53-10-208.1. Magistrates and court clerks to supply information.

Section Created:
Title 78B, Chapter 7, Part 5, Extreme Risk Protective Order Act.

This Bill is what’s called a “red flag” firearm law. Similar to laws in other states, it would allow a family member (parent, stepparent, sibling, step-sibling, spouse, child, or stepchild), who has lived with the individual within the last 6 months or a police officer, could petition a court (free of charge) for an “ex parte” “extreme risk protective order” which allows the removal of that individual’s firearms and ammunition. Basically, stealing your property without due process, without committing any crime, and no way to defend yourself from the allegations just because someone may THINK that you are at risk to harm yourself or another individual.

Although it does not make this Bill any better, it does contain a penalty, a third degree felony, for anyone that provides a falsification of any statement or information provided for the purpose of obtaining an ex parte order.

Before a court can issue an ex parte order, the court shall consider whether:
• There has been a recent threat of violence, or act of violence toward himself, herself, or others, including the transmission of threats through electronic or digital means
• The individual is a restricted person in accordance with Section 76-10-503
• The individual is dangerous
• If the individual has recently violated a protective order
• There has been a recent pattern of violent acts or threats by the individual and other less restrictive alternatives either have been tried and found to be ineffective or are inadequate or inappropriate for the circumstances of the individual.

In determining whether grounds for an extreme risk protective order exist, the court may also consider other evidence of an increased risk for violence, including evidence of any of  the following:
• The reckless use, display, or brandishing of a firearm by the individual
• The history of use, attempted use, or threatened use of physical force by the individual against another individual;
• An act or threat of violence against himself or herself;
• A prior arrest of the individual for a violent felony offense or violent crime;
• Evidence, including police reports and records of convictions, of either recent  criminal offenses by the respondent that involve controlled substances or alcohol or ongoing abuse of controlled substances or alcohol by the respondent; and
• Evidence of the recent acquisition of firearms or ammunition.

Just buying a firearm for any reason puts you at risk for the court to grant the “extreme risk protective order”.

If the court determines the individual poses a serious risk of harm to himself, herself, or others, the court will issue an ex parte extreme risk protective order that prohibits the individual from purchasing, possessing, receiving, or having in his or her custody or control, or attempting to purchase or receive, a firearm or ammunition, and expires no later than 20 days from the date of issuance, during which a hearing is set.
This “ex parte order”, takes away your RIGHT to defend yourself against the judge’s order to issue the “extreme risk protective order”. You have no due process and now you’re screwed.
After the ex parte order is in affect the individual must surrender all firearms and ammunition to the law enforcement officer serving the order at the time of service. It is a third degree felony to refuse to surrender all firearms and ammunition to the law enforcement officer serving the order or to possess, purchase, or receive a firearm or ammunition while the order is in effect.
The individuals information is also entered into the national crime information center system.

This also creates a dangerous situation for law enforcement officers who have to serve the order and take possession of the individuals firearms and ammunition. If the officer feels there is a reason not to take the firearms and ammunition or the individual refuses, it gives law enforcement the ability to apply and obtain a search warrant to forcibly enter the residence to take possession of the individuals firearms and ammunition.

If, during the hearing process, the court determines the individual poses a serious risk of harm to himself, herself, or others, and issues a full extreme risk protective order, the individual cannot petition the court to remove it before 180 days has passed. To get it removed the individual now has to prove they are no longer dangerous. This is absolutely RIDICULOUS!!
In addition, if the court denies the petition, the individual can’t petition the court again unless the order is extended. Otherwise, it expires one year after it was originally ordered. However the person who petitioned the order in the first place can petition the court to extend it within 60 days of it expiring.
If it is extended, the individual cannot petition to remove it for another 180 days and the process repeats itself all over again, potentially taking away your right forever if you can’t prove you’re not a danger to yourself or others.

IF the court vacates the order or it expires and not extended, the individual can then reclaim any firearms surrendered to or seized by a law enforcement agency and the court will remove the respondent from the national crime information center system, unless the individual is no longer eligible to own or possess a firearm in accordance with Section 76-10-503.

There are a lot of other details in this Bill that we have not talked about.

 We Oppose This Bill