Maryland courts have handled nearly 800 petitions in 10 months under the state’s new emergency risk protection order, a civil process that allows judges to temporarily order the removal of guns and ammunition from homes under certain circumstances.
And while about only 50 percent of the petitions were approved by judges, advocates praise the 2018 law and believe it has curbed violence that would end in bloodshed. Opponents decry the bill as a violation of their constitutional rights and predict legal challenges both nationally and in Maryland.
Commonly called “red flag” orders, the laws are gaining more attention again in the wake of two more mass shootings in El Paso, Texas and Dayton, Ohio. Some state and federal lawmakers and advocates for stricter gun laws are eyeing the measures as one piece of a strategy aimed and preventing more mass shootings.
“I don’t know why every state and national legislature doesn’t come to this conclusion,” said Del. Geraldine Valentino-Smith, D-Prince George’s County and sponsor of the legislation establishing the protective orders in Maryland.
In Maryland, a court can be petitioned for a civil order to remove guns and ammunition from a person for a number of reasons including if the person exhibits “alarming behavior” or is reckless with a firearm, has a problem with substance abuse, has issued threats of violence against themselves or others, or has violated a peace or protective order.
In Maryland, only certain categories of people – largely family members, spouses or partners, police officers and medical professionals — can ask the court for the order.
“The hope is that the immediacy of violence is stemmed and violence is averted,” Valentino-Smith said, adding that she believes Maryland’s law has saved lives.
States with the laws
Currently, 17 states — including Maryland — and the District of Columbia have red flag laws in place that allow law enforcement and individuals to petition the courts for an emergency risk protective order. The order, if granted, allows law enforcement to remove firearms from a home and bans the person subject to the order from possessing firearms or ammunition until the order is lifted or expires.
In Maryland, that period can last as long as 18 months.
Montgomery County Sheriff Darren Popkin, a leading advocate for the law, praised the efficacy of the new law during a June webinar produced by the Johns Hopkins Bloomberg School of Public Health.
“It’s truly a life-saving endeavor so far,” said Popkin, who was not available for comment for this story. “These are situations where somebody is clearly in crisis and clearly it (the law) is helping.”
Popkin has been compiling statistics on the orders since the law became effective last October.
The new law, however, tests the balances between public safety and Second Amendment rights.
“I think that what we see is a fair application of the statute,” said Valentino-Smith. “Overall, I’m pleased to see a very good balance between what is applied for and what is judicially granted.”
Not everyone sees it as a rousing success.
>Mark Pennak of Maryland Shall Issue, a Second Amendment organization that favors making Maryland a right-to-carry state, said the law “is working poorly in Maryland.”
“It’s misguided in its process, it’s misguided in its intent and it’s misguided in its application,” Pennak said of the red flag laws. “The real problem here is they are focusing on a tool and not focusing on an individual. The problem isn’t the gun. The problem is the person. A person believed to be in that kind of distress should be taken in for an evaluation. We have a procedure for that.”
Pennak and others say the law allows for the presumption of a crime when the defendant has committed no crime and sidesteps due process by allowing for “constitutionally protected property” to be taken, sometimes before the defendant has had a chance to appear in court.
“Often, the first time someone may hear about the order is when the police show up on your doorstep at 5 in the morning and demand your guns,” said Pennak.
Law enforcement agencies in Maryland filed petitions as soon as the law went into effect on August 1. Since then, nearly 80 petitions on average are filed each month around the state.
Implementation of the law has not been without its troubles.
In November, about one month after the law became effective, Anne Arundel County police shot and killed a 61-year-old man while attempting to serve a protective order on him at 5 a.m. Police said the man answered the door with a gun in his hand but put it down to speak with officers. He picked it up again after becoming angry about being served with the order.
The man was shot during a struggle with police in which the man’s gun fired, striking no one, according to police.
Pennak said the man “foolishly resisted” police but added that the law and its procedures for allowing someone to seek an order without the defendant being present if flawed. The outcome in Anne Arundel County was not a surprise, he said.
“I predicted something like that would happen,” said Pennak. “That kind of risk is going to happen again.”
The Anne Arundel police chief, speaking after the shooting, said the incident was proof of the need for the protective orders.
Advocates and opponents continue to disagree on how successful the law is at averting violence and how well the measures have been used.
A 2018 Rand Corporation study of extreme risk protective orders found that the laws were underutilized. The effectiveness of the laws, according to the report, largely depends on public familiarity with the laws and how they are used since family members often are the first to see warning signs.
Harford County Sheriff Jeff Gahler said it’s difficult to pin down how many incidents have been stopped as a result of the new law.
“I can’t put my finger on it to say it has or has not saved lives,” said Gahler.
In September, about a week before the law went into effect, a 26-year old mentally ill woman shot six co-workers, killing three, at a Rite Aide warehouse in Aberdeen.
“Would it have made a difference?” Gahler said. “Probably, but other than that … How do you prove it either way?”
Harford County spent $15,000 in overtime to train the vast majority of officers in the law over a two-day period. Officers inform victims of the availability of the order and, Gahler said. Officers are required to apply for it themselves if the situation qualifies under the law and the victim declines to file a petition.
Statistics provided by Gahler’s office showed the number of petitions for an interim order — the shortest of the orders — filed by citizens and his office were about the same. The department filed more temporary and final petitions than residents.
A temporary petition can last six months and be extended. A final petition can last a year and be extended another six months.
“We’ve implemented what the legislature passed,” said Gahler, adding he believes that the law has caused some confusion among law enforcement agencies and the law is not implemented the same way across the state.
Committed to training
Harford County, with a population of more than 250,000, has had 70 petitions filed as of the end of July, fourth-most in the state. It’s also fourth-most in the state when adjusted for population, with nearly 28 orders per 100,000 people.
Gahler chalked the numbers up to training and education on the law.
“It’s not that Harford County is more violent or we have more mental health issues or criminals,” said Gahler.
But Gahler said the law is subject to abuse by disgruntled spouses and partners and the process that allows for an order to be issued without a defendant present and no crime has been committed is problematic. Additionally, the order is a civil process and “do not give our deputies the extra ability to go in and get (the guns).”
Most people typically comply and are reasonable, Gahler added.
In Maryland, petitions sought by police made up about 45 percent of the cases during the first three months after the law went into effect. Filings from family member ranked a close second, making up 41 percent of the cases in the same period.
Gahler said “many” of the petitions in his county came out of reports from schools investigated by school resource officers, though he could not provide a definitive number.
Through July 31, there have been 788 petitions filed. Of those, 401 have been granted. About 28 were denied by a judge and another 156 were dismissed because the petitioner failed to come to a court hearing.
Valentino-Smith, the lawmaker, said she is concerned that some counties such as Caroline, Kent, Talbot and Worchester aren’t making use of the law. She questioned whether or not the public has been fully educated on it.
By the raw numbers, Anne Arundel County has the most petitions filed at 128. The state law went into effect after the June 28 assault on the Capital Gazette newspaper that left five people dead.
Kent County is the only jurisdiction in the state to have no petitions filed through the end of July.
In tiny St. Mary’s County, population 25,918, there were 22 petitions filed between October and July. Adjusted for population, that’s the equivalent of nearly 85 per 100,000 people, the highest ratio in the state.
The state average is slightly more than 13 per 100,000.
Baltimore city, which continues to struggle with gun-related violence and homicides and is on pace to exceed 300 for the fifth straight year, has had 29 petitions filed so far. Adjusted for population, the city with a murder rate higher than Chicago and New York has about five petitions per 100,000 people — a rate lower than any other jurisdiction except Kent County, which has yet to see a petition filed.
Valentino-Smith said it’s likely that the legislature will look to tweak Maryland’s law.
“I think we’ll continue to have a very public conversation about who can be a petitioner before the court,” she said. “Going forward, we’ll continue to evolve.”
Gahler, the Harford County sheriff, also hopes the legislature will revisit the current law and address some of the aspects he and others find concerning.
“Part of me hopes the legislature next session will fix it rather than make it worse,” said Gahler.
Pennak, who is representing Maryland Shall Issue in a federal challenge of the state’s “good and substantial” requirement for handgun carry permits, predicted a different path for the law.
“There were constitutional concerns that were swept under the rug when this was passed,” said Pennak, who is an attorney. … “It’s going to get litigated sooner than later, and it’s going to get litigated in Maryland.”