Red Flag Law Introduced in Nebraska

Nebraska Senator Adam Morfeld recently introduced LB 58, a bill called the “Extreme Risk Protection Order Act,” which is aimed at confiscating firearms from individuals deemed a “significant risk” of harming themselves or others. The Act is similar to the widely known and publicized red flag laws, which are named so because they remove firearms from an individual who has exhibited “red flags” commonly associated with acts of violence. This article will focus on the details of the bill itself, while an upcoming article will analyze the Constitutional and practical issues that red flag laws, and this bill in particular, raise.

Our experienced firearm defense attorneys are committed to protecting the Constitutional rights of our clients, including the Second Amendment right to bear arms. Because of this, we disagree with LB 58 and other similar red flag laws. See why we think red flag laws are unconstitutional in our follow up article: The Problems with LB 58 and Other Red Flag Laws in Nebraska.

What is an Extreme Risk Protection Order?

An extreme risk protection order (“ERPO”) is an order issued by a county or district court requiring an individual to forfeit any firearms, concealed carry permits, or certificates for the purchase or transfer of a handgun to the government.

Who Can File for an Extreme Risk Protection Order?

Under the bill, A “family or household member” can file for an ERPO.  Family and household members are defined as:

• Spouse or former spouse
• Children
• Persons presently residing together OR who have resided together in the past
• Persons who have a child in common (whether or not they have been married or have lived together at any time)
• Persons related through consanguinity (relatives) OR affinity (in-laws)
• Persons presently involved in a dating relationship
• Persons who have been involved in a dating relationship

Law enforcement agencies can also file for an ERPO, including:

• Police Departments
• Sheriff’s Departments
• Nebraska State Patrol
• A law enforcement officer from any of those agencies

What is Required when Filing a Petition?

To file a petition, you must provide information that the individual in question poses a significant risk of causing injury to self or others by possessing a firearm. The individual filing the petition must also issue an affidavit under oath showing specific statements, actions, or facts that give rise to reasonable fear of future dangerous acts.  The petition must allege details based only on personal knowledge that the respondent poses a significant risk of causing injury to self or others in the near future by possessing a firearm.  Finally, the petitioner must provide contact information.

What Evidence may be Considered?

Evidence that may be considered includes, but is not limited to:

• Recent act or threat of violence, whether or not the violence involves a firearm
• Pattern of threats or acts of violence
• Evidence of serious mental infirmity or recurring mental health issues
• Existence of previous or current ERPO
• Whether an existing or previous ERPO has been violated
• Conviction of a crime where a family member or household member was the victim
• Ownership of, access to, or intent to possess a firearm
• Unlawful or reckless use, display, or brandishing of firearm
• History of use, attempted use, or threatened use of physical force
• History of stalking
• Previous arrest for or conviction of a crime involving violence or a threat of violence
• Corroborated evidence of abuse of controlled substances or alcohol
• Evidence of recent acquisition of firearms

What Happens if the Court Issues an Order?

If the court issues an order, then the order is:

• Entered into the national criminal history record information system and remains there until expiration or termination
• Sent to Nebraska State Patrol, who will revoke any concealed carry permits or certificates for purchase or transfer of a handgun

The individual in question must surrender, within 24 hours:

• All firearms
• Any permit to carry a concealed handgun
• Any certificate for the purchase or transfer of the handgun

What Items are Considered Firearms?

According to Nebraska Revised Statute 28-1201, a firearm is “any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or frame or receiver of any such weapon”

What Happens to the Surrendered Firearm?

Law enforcement is required to hold the firearm until the expiration or termination of the ERPO. Upon expiration or termination, the individual in question may claim the firearm, and the firearm is returned to the individual in question (provided that the individual is eligible to own a firearm). If a firearm is not claimed within 60 days of expiration or termination, the firearm is disposed of in accordance with the procedures and policies of the law enforcement agency.

Penalty for Refusing to Submit Your Firearm(s)?

If you refuse to submit your firearms, then law enforcement may conduct a search, as permitted by law, for any of the items that the individual in question is supposed to surrender. Upon a sworn statement, the court may determine whether probable cause exists to believe that respondent has not surrendered all firearms and thereby issue a warrant authorizing search and seizure. Possession of a firearm in violation of the ERPO is considered a Class II misdemeanor for the first or second violation (punishable by up to six months imprisonment and/or a fine of up to $500) and a Class IV felony for third or subsequent violations (punishable by up to two years imprisonment and/or a fine of up to $10,000). A conviction also includes order prohibiting purchase or possession of firearm for five years from the date of issuance of the underlying ERPO.

What Happens if You Disagree With an ERPO Issued?

If you have been issued an ERPO that you disagree with, file a written request for termination of the ERPO once during every 12-month period that the order is in effect. Upon requesting termination, a court must schedule a hearing within 30 days. As always, you may appeal a final ERPO like any judgment of the court. If an individual knowingly filed a petition with false information, they will be charged with intent to harass – a Class III misdemeanor punishable by up to three months imprisonment and/or a fine of up to $500.

What are the Negative Implications that Can Arise from this “Red Flag” Law?

Although the law may have good intentions, these laws have been controversial from both a practical and constitutional standpoint.  A detailed discussion of these issues will be presented in part II of this series.

Nebraska Firearms Rights Lawyers

Berry Law opposes LB 58 because the proposed Extreme Risk Protection Order Act can be detrimental to lawful firearm owners. Not only does the act infringe upon due process rights regarding the fundamental constitutional right to bear arms, but it is an attempt to solve a problem that already has adequate solutions under Nebraska Law.  At Berry Law, we understand the importance of the 2^nd amendment. Our firm is a proud member of the NRA Business Alliance and the National Shooting Sports Foundation. If you need legal help due to your ownership of firearms, contact our firearms rights attorneys today at 402-466-8444 to schedule a consultation.

A detailed discussion of these issues can be found in our article: Why Red Flag Laws Violate Your Rights