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EXTREME RISK FIREARM PROTECTION ORDER (ERFPO)

On May 20, 2020, the Extreme Risk Firearm Protection Order Act became effective. NMSA 1978, Sections 40-17-1 through 40-17-13. This new law creates a court process to temporarily prevent a person in crisis from accessing firearms and harming themselves or others. This type of law is sometimes referred to as a “Red Flag” law. 

Definitions

 Affidavit – a sworn statement provided by the Reporting Party to a law enforcement officer.

Reporting Party“a spouse, former spouse, parent, present or former stepparent, present or former parent-in-law, grandparent, grandparent-in-law, co-parent of a child, child, person with whom a respondent has or had a continuing personal relationship, employer or public or private school administrator” but may be any individual regardless of their relationship to the person for whom the Order is being requested [1].

Law enforcement officer – “a public official or public officer vested by law with the power to maintain order, to make arrests for crime or to detain persons suspected of committing a crime and includes an attorney employed by a district attorney or the attorney general”.

Petitioner – a “law enforcement officer who files an extreme risk firearm protection order petition”.

Respondent – “the person identified in or subject to an Extreme Risk Firearm Protection Order petition”.

Petition – the legal paperwork that must be filed with the Court to obtain an Extreme Risk Firearm Protection Order (ERFPO).

Probable cause – reasonable grounds to believe.

Preponderance of evidence – more likely than not.

When can an Extreme Risk Firearm Protection Order (ERFPO) be used?

A petition may be filed when a law enforcement officer receives credible information that a person (the “Respondent”) poses a significant danger of causing imminent personal injury to themselves or others by having a firearm in their custody or control or by purchasing, possessing, or receiving a firearm.

What gets the Extreme Risk Firearm Protection Order (ERFPO) process started?

A “Reporting Party” provides credible information to a law enforcement officer about a person who “poses a significant danger of causing imminent personal injury to themselves or others by having a firearm in their custody or control or by purchasing, possessing, or receiving a firearm”.  

What paperwork is needed to obtain an Extreme Risk Firearm Protection Order (ERFPO)?

First, a law enforcement officer must obtain an affidavit from the Reporting Party that includes credible information to support the Court issuing a temporary Extreme Risk Firearm Protection Order. Second, the law requires a law enforcement officer to file a petition in the District Court in the county where the Respondent resides. The affidavit from the Reporting Party must be attached to the petition filed by the law enforcement officer so the judge is able to have enough information to consider granting a temporary Extreme Risk Firearm Protection Order.

Are there forms created to assist with filing a Petition for an Extreme Risk Firearm Protection Order (ERFPO)?

Yes. A Word fillable-form has been created by the AOC to help a law enforcement officer prepare the information needed to file a petition with the court. In addition, an affidavit form has also been created for the Reporting Party to fill out. Both the petition and the affidavit will need to be notarized.

Who may file the paperwork for an Extreme Risk Firearm Protection Order (ERFPO)?

Only a law enforcement officer may file a petition for an Extreme Risk Firearm Protection Order. The individual for whom an Extreme Risk Firearm Protection Order is sought for is called the “Respondent”. 

Legal Standard for Filing an ERFPO Petition

Law enforcement officer receives credible information that Respondent poses a significant danger of causing imminent personal injury to self or others by having in the respondent’s custody or control or by purchasing, possessing or receiving a firearm. See NMSA 1978, § 40-17-5(D)

 

Court Process

What happens once the Petition and Affidavit have been filed with the Court?

A judge will review the information provided by the Reporting Party in the affidavit and the information contained in the petition filed by the law enforcement officer. The law requires that the petition and accompanying affidavit from the Reporting Party include statements, actions or facts that support the belief that the Respondent poses a significant danger of causing imminent personal injury to themselves or others by having a firearm in their custody or control or by purchasing, possessing or receiving a firearm before notice can be served and a judge holds a hearing. The burden of proof necessary for a temporary Extreme Risk Firearm Protection Order is “probable cause.”

Legal Standard for a Temporary ERFPO

Specific facts shown by the petition that there is probable cause to believe Respondent poses a significant danger as defined above. See NMSA 1978, § 40-17-6(A)

 

What happens when the temporary Extreme Risk Firearm Protection Order (ERFPO) is issued?

A temporary Extreme Risk Firearm Protection Order is in effect only until a hearing is held.  The hearing must take place within ten (10) business days of the temporary Extreme Risk Firearm Protection Order being issued. The Respondent will need to be personally served with a copy of the petition, affidavit, temporary Extreme Risk Firearm Protection Order and notice of the 10-day hearing. The Reporting Party and the law enforcement officer will also receive notice of the 10-day hearing and should plan on attending the court hearing to provide the judge with information on whether a One-Year Extreme Risk Firearm Protection Order should be granted.

How does an Extreme Risk Firearm Protection Order (ERFPO) deal with firearms?

A temporary Extreme Risk Firearm Protection Order will temporarily prohibit the Respondent from purchasing, receiving, or attempting to purchase or receive a firearm while the Order is in effect.  The Respondent’s name and date of birth will be entered into the National Instant Criminal Background Check System (NICS) once a temporary Extreme Risk Firearm Protection Order is issued. This will prevent the Respondent from being able to purchase a firearm from a licensed firearms dealer until the 10-day hearing is held.

 

The temporary Extreme Risk Firearm Protection Order will also require the Respondent to relinquish (surrender) all firearms in the Respondent’s possession, custody, or control to either a law enforcement officer, a law enforcement agency or a federal firearms licensee within forty-eight (48) hours of service of the temporary Extreme Risk Firearm Protection Order or sooner at the discretion of the court.

What happens at the One-Year Extreme Risk Firearm Protection Order (ERFPO) hearing?

If the judge finds the Respondent is more likely than not to continue to pose a significant danger of causing imminent personal injury to themselves or others by having a firearm in their custody or control or by purchasing, possessing, or receiving a firearm, then a One-Year Extreme Risk Firearm Protection Order will be issued. For this reason, both the petitioner (law enforcement officer who filed the petition) and the Reporting Party should attend the One-Year hearing and provide enough evidence (testimony) for the judge to consider. The Respondent’s information will be updated in the National Instant Criminal Background Check System (NICS) once a One-Year Extreme Risk Firearm Protection Order is issued.

Legal Standard for a One-Year ERFPO

Preponderance of the evidence that Respondent poses a significant danger of causing imminent personal injury to self or others by having in the Respondent’s custody or control or by purchasing, possessing or receiving a firearm. See NMSA 1978, § 40-17-8(A)

IMPORTANT THINGS TO REMEMBER

  • The Reporting Party must fill out an affidavit with specific information to support a belief that the Respondent poses a significant danger of causing imminent personal injury to themselves or others by having a firearm in their custody, control, or possession. The affidavit by the Reporting Party must be notarized.
  • Only a law enforcement officer, as defined in Section 40-17-2 NMSA 1978, may file a petition for an Extreme Risk Firearm Protection Order. The petition must be notarized.
  • The name, address and date of birth of the Respondent must be included in the petition. The Respondent must be personally served with a copy of the petition and affidavit. The Respondent’s date of birth is required to be entered into the National Instant Criminal Background Check System (NICS).
  • The name and address of the Reporting Party must be included, but may be sealed, upon request. The Reporting Party will receive notice of the 10-day hearing and will need to appear to testify in court for the One-Year hearing.
  • The petition must include a description of any lawsuit, complain, petition, restraining order, injunction or other legal action between the Reporting Party and the Respondent.
  • The petition must include the quantities, types and locations of all firearms and ammunition the Petitioner believes to be in the Respondent’s ownership, possession, custody, or control.
  • The Petitioner may ask the judge to order the immediate relinquishment of firearms by the Respondent.
  • If a temporary Extreme Risk Firearm Protection Order is denied, an amended petition, with additional information for the court to consider, may be filed.

The caption (title) of the case should be:  In the Matter of an Extreme Risk Firearm Protection Order for {Respondent’s name.}. 

 

ERFPO FORMS

1.Affidavit - Temp ERFPO.2023

2.Petition for Extreme Risk Firearm Protection Order.revised.Dec2023

5.Respondent's Motion to Postpone a Hearing for a One-Year ERFPO.2023

10.Petition to Extend One-Year ERFPO.2023

12.Respondent's Motion to Terminate One-Year ERFPO.2023

Relinquishment Form.ERFPO.2023

EFRPO Process flow chart.Dec2023