DVPOs vs. ERPOs
The differences between Domestic Violence Protective Orders and Extreme Risk Protection Orders
By: Rachel Graber, MA, MSW, Director of Public Affairs, National Coalition Against Domestic Violence (NCADV)
States across the nation have recently passed statutes creating a civil process by which a court can temporarily restrict an individual’s firearm access if they pose a danger to themselves or others. These statutes are sometimes referred to as “red flag laws,” but they are more appropriately known as Extreme Risk Protection Orders (ERPOs).
ERPOs are a short-term legal intervention to reduce the risk of suicide or homicide by someone experiencing a crisis, whether a situational crisis or a mental health crisis. Research has shown that for every ten ERPOs issued as a suicide prevention measure, one life is saved. [i]
While ERPOs are a critical tool to address firearm access by an individual experiencing a temporary crisis, they are rarely appropriate in the context of intimate partner violence (IPV, used interchangeably here with “domestic violence” or DV). Unfortunately, they are often erroneously promoted as a solution to domestic violence, leading to confusion for survivors of IPV and sometimes creating barriers to survivors accessing important legal protections.
This article describes the difference between domestic violence protective orders (DVPOs) and ERPOs, illustrates why DVPOs are almost always the more appropriate remedy for survivors of IPV, addresses some instances in which a survivor might prefer an ERPO, and discusses important considerations when a third party might be seeking an ERPO to ensure an intimate partner is not harmed as a result.
DVPOs are designed to address the holistic needs of survivors of IPV.
The survivor decides, based on their situation, when and how to file a protective order and what relief to request. DVPOs can provide an array of relief that address many aspects of the survivor’s daily life, including: requiring the respondent to stay away from the survivor, their children, or others; ordering the respondent not to abuse, harass, stalk, or otherwise harm the survivor, their children, or others; temporarily assign child custody, establish visitation, etc.; ordering the respondent to participate in counseling, a batterer intervention program, or drug or alcohol misuse treatment; assigning use of a shared residence or vehicle; assigning custody of pets; and providing temporary economic supports for the survivor.
DVPOs also address the respondent’s firearm access.
Federal law prohibits respondents to final orders (issued after a hearing of which the respondent has notice and at which the respondent has the opportunity to appear) from possessing, receiving, shipping, or transporting firearms – as long as the protected person has one of the following relationships to the respondent: is a current/former spouse, is a current/former cohabitant, shares a child in common with the respondent, or is the child of the petitioner or of the respondent.
In many states, respondents to ex parte DVPOs (issued before a hearing of which the respondent has notice and at which they have the opportunity to appear) are prohibited from possessing firearms, and many states cover a broader range of relationships than federal law, including dating partners, siblings, and other family and household members. Many states also require respondents to relinquish any firearms in their possession, and state laws give courts latitude to order whatever they deem necessary to protect the survivor.
In contrast, ERPOs address only one issue – firearms. No one is the protected party, and while the respondent may no longer have firearms, the ERPO does not, for example, require them to move out of a shared residence or to stay away from the survivor.
Moreover, DVPOs are more accessible for survivors of domestic violence. Domestic violence shelters and other victim service providers across the country provide victim advocacy or legal representation for survivors seeking DVPOs. For survivors with the financial means, family lawyers are often experienced in helping their clients petition for DVPOs.
There is a fairly robust infrastructure to support survivors seeking protective orders, and some jurisdictions even have courts dedicated specifically to DV. Moreover, the evidence the survivor needs to present is evidence directly related to their experience – for example, police reports, evidence of physical harm, evidence of threats, etc.
A history of physical violence or threats of physical violence against the survivor is typically sufficient for a court to issue a DVPO. In contrast, to issue an ERPO, a court needs evidence that the respondent is likely to commit violence in the future, which requirement may or may not be satisfied by showing a history of past violence.
DVPOs are also preferable to ERPOs because they are afforded full faith and credit across state lines.
As noted previously, federal law prohibits some respondents to final orders from possessing firearms, so they cannot legally possess or obtain firearms anywhere in the U.S. Federal law also requires all states to give full faith and credit to DVPOs issued in other states, which means that a DVPO is valid and enforceable everywhere in the US. Thus, if a court prohibits an individual such as a dating partner (who is not covered under the federal DVPO prohibitor) from possessing or obtaining a firearm, they cannot go to another state and legally obtain a firearm. In contrast, unless the states in question have a reciprocity agreement, states are not required to honor out-of-state ERPOs, and an individual can simply go to a different state to legally access firearms.
Moreover, ERPOs can actually put survivors at increased risk of harm if someone other than the survivor petitions for the order without the assent of the survivor. Domestic violence does not stay consistent over time; it is often cyclical, with periods of escalation. Because domestic violence is, at its core, about the abusive intimate partner exerting power and coercive control over the survivor, any threat to that power and control will often cause the abusive intimate partner to escalate to increasingly dangerous and potentially lethal forms of violence. This is why the most dangerous time in a relationship with an abusive intimate partner is when the survivor takes step to leave the relationship.
Survivors are the experts in their own situations. They are constantly managing risk in ways that are not apparent to outsiders. In many cases, it may be safer for the survivor to stay in the relationship than to leave. However, this is very difficult for the survivor’s friends, family, and community to understand.
A well-meaning individual who decides that the best thing for a survivor is for the abusive intimate partner’s guns to be taken away and petitions for an ERPO may, by doing so, cause the abusive intimate partner to escalate, without the survivor being able to manage that risk. While firearms are used in most intimate partner homicides, abusive intimate partners who feel they are losing control over their victims have other means at their disposal to severely injure or to murder their intimate partners.
If a survivor wants a third party to petition for an ERPO, of course, that is a different matter, as long as the survivor is in control of the process and can take whatever actions they need to manage the associated risk. In some cases, a survivor might want the firearms addressed and feel that if they took action, the abusive partner would escalate, but if another individual brought a petition, the abusive partner would not escalate. The absence of the lethal threat of firearm violence may enable the survivor to take further steps to seek safety after the firearms are removed, such as seeking a DVPO. However, once again, the third party should only act with the consent of the survivor to avoid increasing, rather than decreasing, the risk of serious injury or death.
There are, of course, cases in which law enforcement or others may seek an ERPO against an individual who is committing violence against an intimate partner because that individual is also displaying behavior that leads law enforcement to believe they might be a threat to others as well. If law enforcement is petitioning for an ERPO and they know the respondent has a history of intimate partner violence, they should notify the survivor and connect the survivor to victim services before filing the petition, to ensure the survivor has an opportunity to safety plan.
All this being said, there are times when an ERPO is entirely appropriate in domestic violence cases – often as a supplement to a DVPO, not an alternative, or when they are not eligible for a DVPO.
For example, the federal law prohibiting respondents to final protective orders from possessing firearms excludes dating partners, unless they live or lived together or share a child. Some state laws likewise exclude dating partners from either firearms protections or do not permit them to access DVPOs at all. Moreover, in states where judges may, but are not required to, order firearm relinquishment, some judges may fail to do so. In these cases, ERPOs provide an important means by which survivors can have the guns addressed when other avenues are not available to them.
Finally, there may be a situation in which a survivor does not want the relief afforded in a DVPO, but only for the firearms to be addressed (ex. an intimate partner may make firearm threats when drunk, but not display violent behavior any other time, and the victim wants to continue the relationship).
However, in general, the default court order in domestic violence cases should be a DVPO, not an ERPO.
A recent news article illustrates the importance of educating law enforcement, courts, and the general public about the difference between DVPOs and ERPOs. This article chronicled the journeys of two women who both experienced violence at the hands of their spouses, including threats with a firearm. They were both seeking to separate from their spouses, and they were concerned that their spouses would use the firearm to make good on their threats. They reached out to law enforcement to request law enforcement file an ERPO, but law enforcement refused to file an ERPO.
They then went through a confusing and arduous process of petitioning for an ERPO on their own, and reported having very negative experiences and no guidance from law enforcement our court officials. One was ultimately successful in obtaining an ERPO; the other was not. The woman who did obtain an ERPO told a reporter afterward that it was her only option.
In fact, it was not her only option, it was the only option she knew about. In that state, had she petitioned for DVPO, her spouse’s firearms would have been removed under both the ex parte and the final order. Moreover, the state schedules automatic compliance hearings to ensure respondents to DVPOs have relinquished their firearms and have not obtained new ones. The law enforcement agents she originally approached should have referred her to a domestic violence program, which would have helped her obtain a DVPO that addressed not only the firearms, but also her other needs. And she would not have had to navigate a difficult legal process on her own.
[i] Swanson, J. W., Easter, M. M., Alanis-Hirsch, K., Belden, C. M., Norko, M. A., Robertson, A. G., Frisman, L. K., Lin, H., Swartz, M. S., & Parker, G. F. (2019). Criminal justice and suicide outcomes with Indiana’s risk-based gun seizure law. Journal of the American Academy of Psychiatry and the Law Online, 47(2), 188-197. https://doi.org/10.29158/JAAPL.003835-19
B&W image by Tumisu from Pixabay; color image by Gerd Altmann from Pixabay