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Maryland's Red Flag Law and Your Rights

On October 1, 2018, Maryland's extreme risk protective order law took effect. The "red flag" law, as it has been called, was enacted to establish a process by which a petitioner may seek a court order to prevent a respondent from purchasing or possessing any firearm or ammunition for the duration of the order under specified conditions. Principally, the law provides a means to prevent the possession of or to remove firearms from the possession of individuals who pose a threat to themselves or others. The law was first proposed as a response to the Great Mills High School murder-suicide and mass shootings at the Capital Gazette in Annapolis and in Jacksonville by a twenty-four-year-old from Howard County, as well as other acts of gun violence by individuals who never should have been allowed to access to firearms

Obviously, from a public safety standpoint, removing lethal weapons from psychologically unstable individuals is laudable and necessary. However, like any other legal process that is dependent upon testimony of potentially self-interested parties, there is the possibility of misuse. Law Enforcement Officers and those required to be armed in their professions could well lose their livelihoods as a result of false or misleading petitions. Because of that reality, knowledge of the process and experienced legal representation is crucial.

In terms of initial filing, the red flag law functions very similarly to peace and protective orders from Courts and Judicial Proceedings and Family Law Articles of the Maryland Annotated Code, respectively. A petitioner files either for a temporary extreme risk protective order with a judge when courts are open, or for an interim protective order with a court commissioner when courts are closed. If an interim protective order is filed, the petitioner would go before a judge on the next business day. The hearing for the temporary order is typically ex parte, meaning the respondent is not present. The petitioner has the burden of showing reasonable grounds for the judge to grant a temporary order, a standard that is almost always easily met. Usually, a respondent will not be served or given notice of the existence of the protective order proceedings until after the issuance of the temporary protective order. The temporary protective order is only in effect for seven days, but can be extended on a weekly basis until the respondent is served. If the temporary protective order is granted and the respondent is served with that temporary order, a final protective order trial will be held the following week. At that trial, both sides have the opportunity to testify and produce witnesses and evidence.

Where the red flag law differs from typical protective orders is in who may seek a petition, the appropriate basis for the petition, the burden of proof, and the effect of the petition.

A peace order can be filed by anyone regardless of relationship. A Family Law protective order can only be filed by a spouse, someone engaged in an intimate relationship with the respondent, a person with a child in common, or a person related to the respondent by blood, marriage, or adoption. An extreme risk protective order, in addition to those having the above types of relationships to the respondent, may be filed by a mental or medical health professional who has examined the respondent, a law enforcement officer, a cohabitant regardless of relationship, or a current or former legal guardian of the respondent. Md. Code Ann., Pub. Safety § 5-601. While a petition must be signed and sworn by the petitioner under the penalty of perjury, a petitioner who files a petition "in good faith" is immune from civil or criminal liability for filing the petition. Md. Code Ann., Pub. Safety § 5-602 (a)(1)(i) and (d).

The basis for an extreme risk protective order is the belief that the respondent poses an immediate and present danger of causing personal injury to the respondent, the petitioner, or another by possessing a firearm. Md. Code Ann., Pub. Safety § 5-604; § 5-605.

While the burden at the temporary hearing for an extreme risk protective order is the same as that of the Family Law version (reasonable grounds), the burden at the final hearing is higher. In order to grant an extreme risk protective order, the court must find, by clear and convincing evidence, that the respondent poses a danger of causing personal injury to the respondent, the petitioner, or another by possessing a firearm. Md. Code Ann., Pub. Safety § 5-605. This is higher than the preponderance of evidence standard for the Family Law version of the protective order. A petitioner must provide specific facts to show the respondent poses an immediate and present danger of causing personal injury to the respondent himself or herself, the petitioner, or another by possessing a firearm. The petition must also provide the petitioner's basis of knowledge supporting the claim, which includes a description of the respondent's behavior, statements made by the respondent, the number, types, and location of any known firearms believed to be possessed by the respondent with supporting documents, or any additional information that led to the petitioner's belief. Md. Code Ann., Pub. Safety § 5-602. A petition for an extreme risk protective order may also include health records or other health information concerning the respondent, which is sealed in the court file. The court considers all relevant evidence, along with the time that has elapsed since the events described by the petitioner. Md. Code Ann., Pub. Safety § 5-605(c)(2).

If the petition is granted, the respondent is ordered to surrender any firearm and ammunition in the respondent's possession to law enforcement authorities, and is prohibited from purchasing or possessing any firearm or ammunition for the duration of the extreme protective order. Md. Code Ann., Pub. Safety § 5-605(c)(3). Additionally, if there is probable cause to believe that the respondent meets the requirements for an emergency mental health evaluation, the judge may refer the respondent for emergency evaluation.

Like other protective orders, a petitioner or respondent may appeal the finding to the Circuit Court within thirty days. If the extreme risk protective order was granted, that order stays in effect while the appeal is pending trial. The Circuit Court will hold a de novo hearing, meaning new trial, within sixty days. Md. Code Ann., Pub. Safety § 5-606(b) A final protective order may only be modified or rescinded after notice is provided to all affected persons and after a hearing is held. Md. Code Ann., Pub. Safety § 5-606. Further, a final protective order may be extended for a period of six months after notice is given to all affected persons and upon a showing of good cause at a hearing. Id.

The requirement to surrender all firearms and refrain from purchasing or possessing firearms begins at the point at which the respondent is served with the interim or temporary extreme protective order. It does not cease until the dismissal or denial of the final extreme risk protective order. Violation of an interim extreme risk protective order, temporary extreme risk protective order, or final extreme risk protective order may result in a finding of contempt of court or criminal prosecution. Md. Code Ann., Pub. Safety § 5-609. Officers are required to arrest, with or without a warrant, and take into custody any person who the officer has probable cause to believe is in violation of an interim, temporary, or final extreme risk protective order. Md. Code Ann., Pub. Safety § 5-610. For a first offense, a person found guilty of such a violation is subject to imprisonment up to 90 days, a fine up to $ 1,000, or both. Subsequent offenses carry the potential for imprisonment up to one year, a $2,500 fine, or both. Md. Code Ann., Pub. Safety § 5-610.

Litigation in these matters is fast-paced. Consequently, a respondent often has only a week to prepare for a trial that could easily affect his or her life and career for at least a year. Being properly prepared and effectively presenting testimony and evidence makes the difference between the granting or denial of a petition. Chaz R. Ball has represented clients in peace and protective orders throughout Maryland in both District and Circuit Court. If you or a family member have concerns about losing your career or right to possess firearms due to a baseless petition, contact Schlachman, Belsky & Weiner, P.A. to discuss your options. At SBW Law, we are committed to serving your best interest. We have the experience, staff, contacts, and resources to protect your rights effectively.

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