What is an Extreme Risk Protection Order?
It is a court order that temporarily suspends a person’s access to firearms if there is evidence that the person is threatening to harm him or herself or others. Because of the risk of violent behavior, the person, who is called a “respondent” in the court order, is ordered by the court to turn over to police all firearms and any concealed pistol license. The respondent is also directed not to have a firearm in his or her custody or control, and not to purchase, possess, receive, or attempt to purchase or receive a firearm.
May I get an Extreme Risk Protection Order against someone?
A family or household member or a law enforcement officer or agency may ask the court to issue an order by filing a petition. The person requesting the order is referred to as the “petitioner.” The law defines a family or household member as:
- person related by blood, marriage, or adoption to the respondent;
- dating partner of the respondent;
- person who has a child in common with the respondent, regardless of whether such person has been married to the respondent or has lived together with the respondent at any time;
- person who resides or has resided with the respondent within the past year;
- domestic partner of the respondent;
- person who has a biological or legal parent-child relationship with the respondent, including stepparents and stepchildren and grandparents and grandchildren, or;
- a person who is acting or has acted as the respondent’s legal guardian. If you do not have the necessary relationship, or are not comfortable asking the court for an order, you can tell police about the situation and they can assist in the process.
How long does the order last?
If the court issues a temporary order, it will last until your hearing date, which must be within 14 days of the date of the temporary order. If at the hearing the court issues a more permanent order, it will last for one year. It may be renewed for additional one-year periods.
Will this order protect me in other ways, such as keeping the person from coming near me?
No, this order is just about restricting access to firearms. If you need personal protection such as a domestic violence protection order, please contact your local County Superior Court.
What is the difference between a Temporary Extreme Risk Protection Order and an Extreme Risk Protection Order?
You may ask the court for a Temporary Extreme Risk Protection Order if you believe that the respondent poses a significant danger in the near future of causing injury to him or herself or to others by using a firearm. The court can issue this order without the respondent being present in court. The temporary order is in effect immediately and lasts up to 14 days.
For an Extreme Risk Protection Order, the court has a hearing where the respondent has a chance to appear, and the court then has to decide whether the respondent poses a significant danger of causing injury to him or herself or to others. This order will be in effect for one year.
Will I have to pay a filing fee to request the order?
No. The request for the order is referred to as “filing a petition.” You will not be charged a fee for filing, or for law enforcement to serve the order on the respondent.
What forms do I need to get the order?
Click here to get the forms you need online. You will need to fill out all of Form XR 101, which is the Petition for an Extreme Risk Protection Order. You will also need to fill out page 1 of Form XR 141 which is the Petitioner and Respondent information and “Respondent Identifiers.” Use forms XR 121 and XR 112 for a Temporary Extreme Protection Order-Without Notice. The website also includes Form XRi 101, a photo sheet showing examples of firearms.
Where do I need to go to get the order?
You must file the petition in the county where either you or the person to be restrained lives.
Once you have downloaded the forms and filled them out, go to the clerk’s office at the county’s superior court and give them the forms you’ve filled out. Click here to find addresses for county superior courts. The court clerk will give you a hearing date and time, and note it on your copy of the order form.
If you don’t have access to a computer, the clerk can also give you the forms there to fill out.
How soon can I get the order?
You can ask for a Temporary Extreme Risk Protection Order, which will be effective right away. You will likely go before the court the same day you file your petition, or the next day, and at that time the court will decide whether to grant a temporary order. The court will decide whether to grant the order based on what you write in your petition , so make sure to fill it out thoroughly. The court may want to ask you questions under oath in person or by telephone. The clerk will tell you whether you should wait to talk to the judge or come back later to find out if the court has signed a temporary order.
If you don’t ask for a temporary order, you will have to wait up to 14 days until the hearing, which is when the court will decide whether to issue an order that will last for one year.
How will the person to be restrained know about the order?
If the court issues a temporary order, police will “serve” (give) the respondent a copy of the order. Police will fill out Form XR 112, which is called the “Return of Service” form. That is the proof that the respondent received the notice the law requires.
What is “service”?
Service is the act of giving your legal papers to the other party. There are many kinds of service: in person, by mail, and others. This type of order must be served “in person.” That means that someone must personally “serve” (give) a copy of the forms to the respondent (the person to be prohibited from having guns). Service lets the respondent know: why you are asking for the protection order; the hearing date; and how to respond.
Why do I have to get the orders served?
The police cannot arrest anyone for violating an order unless that person knows about the order. No hearing can be held by the court about granting the order for a year unless the respondent was served and knows about the hearing.
Do I have to provide my address?
No. If providing an address would risk harm to the petitioner or a family member, then the address does not have to be listed in the petition. However, the petitioner must provide an “alternative address” for communications regarding the case.
What do I have to prove to get the order?
If you are asking for a temporary order, the information you provide will have to convince the judge that the person to be restrained poses a significant danger in the near future of causing injury to himself, herself, or another person by having a firearm. Or, at the hearing , you will have to prove to the judge that the person poses a significant danger of causing personal injury to himself, herself, or others by having a firearm. The judge will review whatever documents you provide to see if there is “reasonable fear of future dangerous” acts by the respondent.
How can I convince the court?
You will need to give the court specific information. If the respondent owns, has tried to purchase, or may have access to, firearms, make sure to tell the court how many, the types, and where they are kept. You will need facts to show that the respondent is dangerous to self or others. This could be information about any threat of violence that the person has made, any violent incidents in which the person has been involved, or any crimes of violence the person has committed.
Has there been any recent act or threat of violence or a pattern of acts or threats of violence in the last 12 months? Has the respondent violated any kind of protection order in the past? Are there 911 calls, arrests or convictions the court should know about? Is there a history of use or threats to use physical force? A history of stalking? Does the respondent use controlled substances or alcohol? Incidents of the unlawful and reckless use, or display of a firearm or the recent acquisition of a firearm? Or it could be evidence that the person has been identified by a mental health provider as a danger. Also make sure to provide information to the court about any existing or past protection orders or pending lawsuits.
You should include all of this information in your petition and also be prepared to present it to the court at the hearing. You can add signed, sworn statements from any other people with direct information as well.
Do I have to go to court?
Yes. You must go to court on the date the clerk gives you. However, a court may schedule a hearing by telephone when it is necessary to accommodate a disability or “in exceptional circumstances” to protect a petitioner from potential harm.
Will I see the restrained person at the court hearing?
If the respondent comes to the hearing, yes. If you are afraid, let court staff know.
Do I need to bring a witness to the hearing?
Witnesses are not required, but it helps to have more proof than just your word. For example, consider bringing:
- Witnesses
- Written statements from witnesses made under oath
- Photos or videos
- Medical or police reports
- Damaged property
- Threatening letters, e-mails, or telephone messages
The court may or may not let witnesses speak at the hearing. So, if possible, you should bring their written sworn statements to the hearing. (As an example of what a sworn statement may look like, see: Form WPF DV 7.040 – Declaration of (NAME).)
May I bring someone with me to court?
Yes. You can bring someone to sit with you during the hearing, but that person cannot speak for you in court. Only you or your lawyer (if you have one) can speak for you.
Do I need a lawyer?
Having a lawyer is always a good idea, but it is not required and you are not entitled to a free court-appointed attorney. Ask the court clerk about free and low-cost legal services and self-help centers in your county.
To obtain legal advice you should hire a lawyer (for “full service” representation or for “limited” representation) or, if you cannot afford one, contact a low cost or free legal service program. For a referral to a lawyer or a legal service program, call CLEAR (888) 201-1014. If you are the victim of domestic violence, you may also obtain assistance from the Domestic Violence Hotline (800) 562-6025. Your county may also have a courthouse facilitator who cannot provide legal advice, but who can offer limited assistance in completing necessary paperwork. This list of forms is not legal advice and is provided only for reference purposes.
What if I need help to understand English?
When you file your papers, ask your court’s clerk if the court will provide an interpreter for you at no cost. If not, you will have to pay a fee for the interpreter. If an interpreter is not available for your court date, you should ask someone who is over age 18 to interpret for you.
What if I am deaf or hard of hearing?
Assistive listening systems, computer-assisted real-time captioning, or sign language interpreter services are available if you ask at least five days before the hearing. Contact the clerk’s office or click this link for Request for Accommodations by Persons with Disabilities and Response.
May I renew this order?
The petitioner can ask the court to renew the order for another year. You may do that any time after 260 days. Make sure not to wait until the last day before the order is scheduled to expire. If the respondent doesn’t oppose it, the order may be renewed based on an affidavit saying there is no change in circumstances. Otherwise, the same process applies as with the initial order.
What if the respondent does not obey the order?
The court is required to verify compliance with the order. At the time the order is issued, the court must set a new hearing date no more than three judicial days later, at which the respondent is required to appear to show that he or she has surrendered all firearms in his or her possession. If there is proof of compliance before the hearing, the court will cancel it.
After that, if you are aware of the respondent violating the order, call police. The respondent can be arrested and charged with a crime, or the court can be asked to issue a search warrant to obtain the firearms. If the petitioner or police swears under oath that the respondent failed to comply with order to surrender firearms, the court must determine whether the respondent has failed to comply, and, if so, the court must issue a warrant authorizing police to search for the firearms.
Can the order be canceled or changed?
The order may not be changed. The respondent may ask the court to cancel the order once in the 12-month period and must prove that he/she no longer poses a significant danger to self or others by having access to firearms.
How is the respondent supposed to surrender his or her firearms?
The police officer serving notice of the hearing on the respondent is required to ask him or her to immediately turn over all firearms. The officer must take possession of any firearms turned over by respondent or any firearms seen in plain sight. The respondent is given a receipt for them and the officer must file the receipt with the court within 72 hours. For more information about how to turn in, sell, or store firearms, click here.
If for some reason the respondent is served notice of the hearing by a private party instead of by police, or if the respondent is present at the hearing, then the respondent must surrender firearms to a local law enforcement agency within 48 hours.