Twenty-two states and the District of Columbia have adopted Extreme Risk Protection Orders (ERPOs), or “red flag” laws, which provide a mechanism to temporarily remove firearms from those at risk of harming themselves or others. And while passage of ERPO policies has become more common in recent years, their application is uneven, even in the places where they have been adopted. On this episode of Policy Outsider, Regional Gun Violence Research Consortium Executive Director Jaclyn Schildkraut speaks with two scholars about their research on the law enforcement perspective and use of extreme risk protection orders.
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The research discussed in this episode was made possible by the generosity of the National Collaborative on Gun Violence Research. The views expressed in this podcast are the authors’ and do not necessarily reflect the views of the National Collaborative on Gun Violence Research.
Transcript was generated using AI software and may contain errors.
Joel Tirado 00:02
Welcome to Policy Outsider presented by the Rockefeller Institute of Government. I’m Joel Tirado. Twenty-two states and the District of Columbia have adopted Extreme Risk Protection Orders, or Red Flag Laws, which provide a mechanism to temporarily remove firearms from those at risk of harming themselves or others. And while passage of ERPO policies has become more common in recent years, their application is uneven, even in the places where they have been adopted. On this episode of Policy Outsider, Regional Gun Violence Research Consortium Executive Director Jaclyn Schildkraut speaks with two scholars about their research on the law enforcement perspective and use of extreme risk protection orders. Our guests are April Zeoli, a professor of health management and policy at the University of Michigan School of Public Health and Julie Ward, an assistant professor of medicine, health, and society at Vanderbilt University. That conversation is up next.
Jaclyn Schildkraut 01:15
Thank you both so much for joining us today. Thank you for having us. Hi, Jackie. Happy to be here. Awesome. Before we get into talking about your research, which break… Is what brings us here today, let’s set the scene a little bit for our listeners. Can you guys briefly explain what an extreme risk protection order or an IRPA is and what it’s intended to do?
April Zeoli 01:37
An extreme risk protection order is a civil court order that temporarily suspends a person’s ability to purchase and possess a firearm. It is to be used when an individual is at high risk or imminent risk of harming themselves or others. So it would be very, very dangerous for them to have a firearm. It’s intended to prevent firearm death, firearm injury, you know, before it happens, to prevent suicides, to prevent homicides and mass shootings, and really any type of firearm injury or death.
Jaclyn Schildkraut 02:23
And it sounds like the process begins with the filing of a petition. What happens after that petition is filed?
April Zeoli 02:31
After the petition is filed, a judge looks at the evidence. There is generally a hearing, and this is at a stage before the person who the IRPA is filed against knows about it. There’s a very quick hearing. The judge looks at all the evidence and decides if it meets the statutory standard for granting an extreme risk protection order. If it’s granted, then the person under it will find out about it and will have notice of a hearing at which they can go and argue against having it. They can present reasons they think this is unnecessary. Some people, though, just acknowledge or accept that this order is in place to keep them safe, and it might be a good idea.
Jaclyn Schildkraut 03:29
And who specifically can file that petition for the ERBO?
April Zeoli 03:34
It depends on the state. In every state, law enforcement can file petitions. In the majority of states, family members, including intimate partners, can also file a petition so you can file one for your son or for your parent. And in a minority of states, but a growing number of states, health care providers can also petition for their patients.
Jaclyn Schildkraut 04:03
So, basically, ERPO laws are creating effectively a legal tool, but having that tool available doesn’t necessarily mean that it’s going to look the same across states or even be used consistently. What made you guys interested in studying how ERPOs are actually being used out in practice?
Julie Ward 04:21
I think I’ll respond to that question, by maybe first giving you a sense for the scale of this issue. So we have seen that within state, variation in use is actually so dramatic that if we as gun policy researchers want to study the effect of these ERPO policies, it actually doesn’t work for us to just compare states that do and don’t have the policy like we would be able to do for most other gun policies. The reality of this policy’s presence in people’s lives is just extremely localized. And the reason for this is is this dramatic variation in use. So it’s not actually realistic to say that just because you live in, say, Florida or California or Michigan or Maryland, for example, that statewide conditions changed for you when this policy was adopted. So in some counties, where the policy is actually being used, yes, conditions changed. But in other counties, where the policy has never been used or is is very rarely used, would it even make sense for us to say that that those residents’ reality that their prevention tools changed when this policy passed? Actually, not so much. And so this policy is more meaningfully studied by looking at how often a a local community uses them and to what effect. And that’s something that we’ve known for a long time, but we felt like we shouldn’t be satisfied with that alone. Right? We we think that there is more work that needs to be done to understand why this local use variation is so dramatic and to better understand what what places have more opportunity to to use ERPAs, to prevent, resident safety and how those conditions can be made more equal across the state.
Jaclyn Schildkraut 06:03
So you actually kind of touched upon my next question that I’ve been thinking about, which is, like, how much variation your research is showing. What does that variation look like in your findings?
Julie Ward 06:15
Yeah. So, we took a look at county level use in Florida in the first three point eight years of of their policy implementation. And to get a a sense for that, that range in use, we see that in the third of Florida’s counties, one third of their counties with the lowest petitioning, filing rates, we see that those counties filed from the rate range of zero to three petitions per 100,000 residents. The middle third of counties in The States filed about three to seven petitions per 100,000 residents, and the top third of counties filed nearly 87 or as high as 87 petitions for for per 100,000 residents. So we see a huge range in how often ARPA petitions are filed, and we also see changes over time in who RPOs are used for. So low use counties didn’t really change that much over time. Moderate use counties saw much more variability in petitioning, especially during the pandemic where use really declined among younger respondents. And in high use counties, we saw a fairly rapid, rate of adoption early on and then a steady high rate of use and diversification of respondents over time. So building on that work, our research aimed to better understand what factors are considered by police who are the primary petitioners of ERPOs in, in most states and the only authorized petitioners in Florida. So we wanted to better understand their views on petitioning, and this process of deciding when and how to petition for an ERPO under authorized condition… Situations.
Jaclyn Schildkraut 07:50
So thinking about the variability of ERPO use across county, why is there such substantial variation? Are there any sort of local factors that are shaping this, or what are we seeing going on?
Julie Ward 08:02
Yeah. This is really a question that is ripe for ongoing research, because it turns out that some of the things that we would expect to be really influential actually are not. Most importantly, we would expect that if you live in a community where higher rates of suicide or higher rates of homicide exist, that we would expect to see then higher rates of ERPO used to prevent those incidents. In our analysis of Florida counties, we actually find that to not be the case. Similarly, local rates of gun ownership, political conditions, law enforcement staffing, binge alcohol use, other things that we might expect to be associated with these riskier scenarios, and risk for threat and and hopefully, ERPO use to prevent that threat from being, harmful to oneself or another person. These also don’t have strong links to local rates of URPO use. But one really critical actor is the… In in URPO use is the petitioner. What do they have to say about what they consider when they’re deciding whether petitioning for an URPO, may be appropriate for a specific situation? So that’s where we, sort of went with this research first to better understand how Florida law enforcement officers who have ERPO petitioning experience view the conditions of their practice environment, and what is most influential in deciding, in a situation that would be appropriate under the the state law, to use an ERPO, whether they decide to use their discretion to, to pull on that tool, the ERPO tool, to prevent that incident from happening.
Jaclyn Schildkraut 09:40
Now correct me if I’m wrong, but Florida is somewhat unique in having, police be the only authorized ERPO petitioners. How is that shaping the way that the law is operating in practice?
April Zeoli 09:53
Well, Florida is not only unique, because only law enforcement can petition, but because of the high numbers of petitions that come from Florida overall. Many communities and counties have, you know, law enforcement that appreciate having this tool as part of their toolkit. In states where family members and health care providers can petition for extreme risk protection orders, With some exceptions, we see that it is still law enforcement that petition for the majority of them. In Maryland, we do see some family, you know, like, quite a lot. About half are family member intimate partner petitioners. But in most places, law enforcement comprise a majority of petitioners regardless. And what we think that means is that in addition to law enforcement, identifying cases that maybe they happen upon the scene or get a 911 call to the scene of something happening, a crime happening, that they’re also being called to places where there’s suicide risk, or places with an older adult who no longer recognizes their care… His caretakers and thinks they’re intruders. Things that are not necessarily crimes, but law enforcement are able to add some safety rails to the situation by petitioning for an extreme risk protection order, essentially on behalf of the family.
Jaclyn Schildkraut 11:46
So when an officer encounters one of these situations that you’re describing where an ERPO might actually be an appropriate tool, what are some of the factors identified in your research that they’re considering when deciding whether or not to pursue?
April Zeoli 12:03
So they’re considering the factors that are in the statute, the Florida statute, and in fact, the statute in every single state has a list of things that the court has to consider when deciding whether to grant an extreme risk protection order, and those often include current other restraining orders or pending charges, violence against someone else, threat of violence, threat of suicide. I believe Florida has harm to animals or pets in it as well. You… So they’re going to look at those situations. And within that, they’re also going to look for the contextual setting. How how are they contextualizing this situation? Are children in danger? Is somebody a suicide risk, but also being violent against others? We had some officers who spoke of a perfect storm of a situation that would lead them to petition.
Jaclyn Schildkraut 13:14
And how much discretion exists in the individual officer or at the agency level? Is it pretty considerable, or is it more limited?
Julie Ward 13:25
Very considerable. So the the, allowable situations under state statute are clearly defined, but they are quite broad. And this is, one of the, strengths that we think that exists in the tool. We don’t want this to be used in every situation. We want it to be used in the right situations, when this can be, you know, purposefully hold on to prevent harm in defined moments in time. So we like this discretion, but it’s important to to understand how that discretion is being used and to make sure that it is being used fairly.
Jaclyn Schildkraut 13:58
Are there any differences in things like local policies or training, resources, even organizational practices that may influence that decision or discretion, you know, that may help people use that discretion more effectively?
April Zeoli 14:13
Yes. There are. There are many differences from police department to police department to sheriff’s office to sheriff’s office. Each unit, each department or office really has to decide for themselves how they want to implement this policy. And because extreme risk protection orders are relatively new on the scene, We had early ones in Connecticut and Indiana in the late nineties and early two thousands. But since then, it’s it’s really 02/2015 on, you know, that we’ve seen the majority of these get enacted. So these are brand new policies that each unit has to figure out how to implement. And there are many different models. Are they going to have detectives investigate all the ERPO cases and serve the ERPOs and remove firearms? Are they going to have many levels of approval before a petition is is filed? Are they going to state that these, you know, should be used in domestic violence cases whenever there are children involved? Or, you know, you really have to figure out how your department wants to use them and then how the actors, the law enforcement officers who are out there are going to engage with what is in front of them. You know, as Julie mentioned, there’s a lot of discretion when you’re at the scene to even decide whether or not to think this might be an ERPO case.
Julie Ward 16:07
So I would just add to that that, you know, we we focus a lot on the role of the petitioner, which we think is a a critical piece in this. But we also hear these experienced law enforcement officers describing to us this much broader, you know, policy ecosystem that’s really influential to what they do. And within that, they’re talking about interjurisdictional cooperation. So how how easy is it for them to get information from, other policing agencies or or other legal agencies? How tight are their partnerships with legal consultation, to be able to recognize when a situation is, applicable under the law and to make sure that the the information that is needed for a successful petition is included in the petition that they file. Perceptions of the ERPO and of police among the public and how that… How those things are portrayed in the media, kind of both reflecting and shaping those public views. Clinician partnerships, we we heard about a lot. Right? So so focusing on the, as April was saying, the conditions within the agency and how these policies are viewed within the agency, but then how as well how these other partners, that exist locally in turn shape how how, petitioners are able to use this policy.
Jaclyn Schildkraut 17:31
So it seems, and correct me if I’m wrong, but just listening to you guys both that the overarching concern in all of this for those petitioners is safety. Right? That’s a huge part of the decision making process. In this context, you know, thinking about law enforcement and the perfect storm that April mentioned, what did what did you guys find that safety really means? Like, how would they define our operationalized safety in this context?
Julie Ward 17:56
We heard a lot from officers about, safety, and and they describe this both in terms of physical safety and also the reputational safety. And, you know, safety is always kind of number one front of mind priority for police. There’s there’s been whole books that have been written about this, and and that’s fair. We all deserve to expect to return home from our jobs at the end of the day alive and uninjured. But it’s also important that safety and threat be appropriately calibrated to to real world risk. And that’s kind of been a harder thing to get accurate information on because threat is hard to measure. Use of deadly force, which officers are legally authorized to use when they perceive an appropriate level of of threat. That’s also very hard to measure. And… But this felt important for us to to do for us to understand how how police are thinking about this safety concern. The way they described their reputational concerns, the safety safety and reputation came into play in sort of the high profile nature that these cases sometimes take. And that related to both these threat scenarios where an ERPO may or may not be used and considerations for how that would be portrayed to to the public and how how they themselves might look in this decision if they made a if they decided to use the the ERPO, or if they chose not to and that turned out to be the wrong decision. And we also heard about it in terms of risk… Their perceived risk for scenarios that might lead to use of deadly force. That was also a high profile… Is a high profile situation that officers described worrying about potentially being associated with the need for ERPO use.
April Zeoli 19:59
And I would just add that in addition to worrying about their own safety, officers did not share with us any circumstances that they knew of or had experienced surrounding ERPA use in which their safety actually was threatened or the safety of officers that they knew or had heard stories of. So we didn’t hear any cases in which that realistic worry was borne out.
Julie Ward 20:40
And still we took these concerns seriously and wanted to look into… Even if we can’t see specific cases, we wanted to look into whether whether there might still be some links that that that sort of bolster this this kind of baseline concern. And and so we looked at local local frequency and ERPO use post adoption in the one month following ERPO use and in the period, the longer period following an active ERPO order to see if there are connections between local frequency of ERPO use and local frequency of injurious shootings by police. This is work that we’re still digging into a bit, but so far, we are not seeing strong associations, between between these incidents. So to April’s point, we don’t know of of individual cases where this has happened, and we’re not seeing population level patterns in in this happening.
Jaclyn Schildkraut 21:38
Interesting. So kind of shifting gears a little bit, but not too much. You know, if the same state law can be implemented, very differently across communities, What does that tell us about the relationship between policy on paper and policy in practice?
April Zeoli 21:56
I like to tell my students when I’m teaching them about policy that essentially every line of a policy can be met with the word how. So the policy says we’re gonna do this, and you have to ask the question how? And even if it gets a little specific on how, you know, law enforcement will petition for the IRPO, the judges will hear the cases with these criteria, you still have to ask how. So a law on the books needs to be implemented. There need to be protocols and practices in place with the authorities that the law directs to do it so that these things happen.
Julie Ward 22:51
Policy on paper and policy on… In practice are not the same, and and our work doesn’t stop once we get the policy in the paper. No.
Jaclyn Schildkraut 23:01
Well… And it’s interesting too because one of the things that you guys have talked so much about is discretion and variability. And so even when you have this policy that’s somewhat static on paper, it becomes so dynamic in practice, which I imagine also makes it very difficult to evaluate or to really understand the nuances as as you all are trying to do. Would I be correct in that?
Julie Ward 23:25
Yeah. And I I… Again, I wanna reiterate that we we don’t think that this, discretion in this case is inherently bad. In fact, we think it’s a real strength of the ERPO tool to be able to flex to the situations where it is legal and well suited. There is still more that we can, do to understand how that discretion is used and and how we can inform that discretion for future use.
Jaclyn Schildkraut 23:48
Well, even though it does sound like you guys are continuing to tackle this issue and there’s more work to be done, From what you’ve been able to gather so far, what are your findings suggesting that policymakers or practitioners could do to make implementation for ERPOs more consistent and effective without eliminating that discretion component?
April Zeoli 24:09
I think that more training could help people really understand how to use this. You know, what we saw is that there were some officers who started off saying that when the law was introduced, they were skeptical of it. You know, they were skeptical of its use. They were skeptical of its constitutionality. But after it was in place and they saw it being used, they realized that it did in fact fit with their role in policing to safeguard communities. And it also clearly, you know, was saving lives and their opinions or at least being used in appropriate circumstances.
Julie Ward 24:59
I think we also need to remember that these policies exist in that broader policy ecosystem, Right? And keeping in mind all of the key players, the the legal system, the the clinical world, the many facets of policing, the public, the media, potential would be respondents, right, and their understanding of the temporariness and and preventive nature of these policies. And the collaborative nature of them. There is consent. This is an important piece of of ERPOs working as intended. And, you know, we can all do better to improve understanding of of RIPOS, share the stories of of their implementation, and, you know, partner in in, working toward fair, successful, consistent use, in appropriate situations.
Jaclyn Schildkraut 25:53
Great. It does sound like that public education component is vital. And, you know, I know one of the things as a civilian, I don’t hear a lot about, you know, on the more public side. I certainly hear about it on the on the policy and research side is about, you know, what ERPOs are and what they are designed to do. So it sounds like that could also be an important next step is thinking about how do we incorporate the public into that conversation. You know, one of the things that you guys have both individually and collectively touched upon is we know some. We don’t know all, and there’s still work to be done. And so thinking about as you guys continue in this this journey and this work that you’re doing, what do we still need to learn about ERPOs? What questions should still be asked, whether it’s by researchers or practitioners or policymakers?
Julie Ward 26:38
So a couple of of things come to mind for me on that. I I think there is still more to understand, in terms of what shapes this variation in local policy use. We as a team have also been working to really kind of wrap our heads around the the outcome side of this and and what does success look like for this policy. There has been a lot of interest in trying to detect whether suicide rates or homicide rates on a population level can be reduced by effective use of this policy. And the more we’ve spent time with that question, the more we’ve started to think, you know, that that might actually not be the the the full question. This is a… THRPOs are a public health tool, in their focus on prevention. But its approach is actually really much more surgical and and, focused on a specific person in a specific point in time, than a lot of other public health tools are. And so like a successful surgical tool, we think that we should be celebrating every life that this tool saves, and not so focused on defining success as moving an entire population’s outcome in terms of reducing county or state level suicide rates or homicide rates. We can have success in that… In this very individualized local way and and celebrate that. And then think about what other tools might support, policy tools or social conditions can further help to support people, in that kind of population level way.
April Zeoli 28:22
Yeah. I completely agree. It is a bit premature for us to be able to detect ecological or population level effects for boring statistical reasons. You know? But in order to save lives, in order for this tool to have population level effects, we need to first see that on an individual level because that is how it would have population level effects. At the individual level, changes are made and we get to enough individuals who are at risk and, you know, change the outcomes there to prevent suicide or homicide that the population level numbers really start changing. So right now, while this policy is still relatively new, in many states, they aren’t using it very much. And as we saw in in counties in Florida, they’re not using it very much. We really need to focus on this individual level question. Who gets an ERPO? So who is petitioned for an ERPO as a respondent, and how does that interaction go? We know very little about this from the respondent’s side. So if we could look more at that as well, you know, we could learn, maybe tweak approaches, maybe tweak the law. It’s worth examining.
Jaclyn Schildkraut 30:03
Well, it certainly sounds like, you know, the the policy itself is off to a successful start if we’re thinking about it in the metrics of success that you both have described, but also that your research is really shedding a lot of important light on this issue and how we can use these new tools most effectively, especially with them being so new and, you know, still in a in a spot where making those changes wouldn’t be such a tremendous overhaul against… You know, compared to policies that are, you know, much more ingrained in our social, you know, or ecological models. Thinking ahead and just thinking about the work that you guys have done, is there any final thoughts on, extreme risk protection orders that you’d like to leave the audience with, things to consider as we all think more importantly and critically about this tool?
April Zeoli 30:53
Yes. And I’ll go first. What I would like audience members to really understand is that firearm violence is preventable. Suicides are preventable. Suicide deaths are preventable. Homicide deaths are preventable. Now when I say that, some of them we don’t know about, we didn’t… We couldn’t get to, you know, in in time. I respect that people have circumstances in which they could not have prevented that. On a whole, we can do something about these tragic events. And an extreme risk protection order is one tool to help prevent these events. It’s not the only tool. It is generally better if it’s not used alone. If someone is suicidal, you know, remove the firearm under Erpo, but they probably have other needs as well that should be addressed. But an extreme risk protection order can save lives. I I would reiterate that. Extreme risk protection orders are a really powerful tool in the gun violence prevention toolkit, and, we can all have a part in making sure that that tool is effectively, used once that law is passed in a in a state.
Joel Tirado 32:28
Thanks again to April Zeoli, Julie Ward, and Jaclyn Schildkraut for that important conversation. If you liked this episode, please rate, subscribe, and share. It will help others find the podcast and help us deliver the latest in public policy research. All of our episodes are available for free wherever you stream your podcasts and transcripts are available on our website. I’m Joel Tirado; until next time.
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