Red Flag Laws | Delaware Concealed Carry

Red Flag Laws (Lethal Violence Protective Orders) in Delaware

Delaware enacted its red flag law on June 27, 2018, when Governor John Carney signed House Substitute 1 for HB 222 into law. The legislation, sponsored by Representative David Bentz, passed the General Assembly with bipartisan support and without a single vote against it. Delaware's red flag law is codified at Title 10, Chapter 77 of the Delaware Code (§§ 7701–7709) and is officially titled the "Lethal Violence Protective Order" (LVPO) statute.

The LVPO law was part of a broader package of gun safety measures signed during the same legislative session, which also included the Beau Biden Gun Violence Prevention Act, legislation toughening penalties for straw purchases, and a bump stock ban.

Statutory Framework

The law was originally enacted as 81 Del. Laws, c. 274, § 1 and has been amended by:

• 84 Del. Laws, c. 525 — Updated emergency hearing procedures, definitions, and storage/immunity provisions (amended §§ 7701, 7703, 7707)
• 84 Del. Laws, c. 514 — Updated sanctions provisions (amended § 7708)
• 85 Del. Laws, c. 147 — Updated commencement procedures (amended § 7702)

What the Law Covers

A lethal violence protective order prohibits and enjoins a person from controlling, owning, purchasing, possessing, having access to, or receiving a firearm or projectile weapon (10 Del. C. § 7701(3)). Key definitions are cross-referenced from Title 11:

• "Firearm" — as defined in 11 Del. C. § 222
• "Projectile weapon" — as defined in 11 Del. C. § 222
• "Physical injury" — as defined in 11 Del. C. § 222
• "Law-enforcement officer" — as defined in 11 Del. C. § 222
• "Respondent" — the individual alleged to pose a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to, or receiving a firearm or projectile weapon (§ 7701(7))

The law covers both firearms and projectile weapons, giving it a broader scope than red flag statutes in some other states that address only firearms.

Who May Petition for an Order

Under § 7701(4), eligible petitioners include:

• Family members of the respondent, as defined in 10 Del. C. § 901, or members of the class defined in 10 Del. C. § 1041(2)b. — This cross-reference to the Protection from Abuse statute encompasses a broad range of family and household relationships, including spouses, former spouses, persons cohabitating, persons with a child in common, persons in dating relationships, and relatives by blood, adoption, or marriage residing in the same household.
• Law-enforcement officers who file a petition alleging that the respondent poses a danger of causing physical injury to self or others by controlling, owning, purchasing, possessing, having access to, or receiving a firearm or projectile weapon.

The petition must be filed in the county where the respondent resides (§ 7702(c)).

Note: Unlike some states' ERPO laws, Delaware does not extend petitioner eligibility to employers, coworkers, health care providers, or school officials. The U.S. Department of Justice's June 2021 Commentary for Extreme Risk Protection Order Model Legislation identifies these as categories other states have adopted:

• Employers/coworkers: California (Cal. Penal Code §§ 18150, 18170), Hawaii (Haw. Rev. Stat. § 134-61)
• Health care providers: District of Columbia (D.C. Code § 7-2510.01(2)(C)), Maryland (Md. Code Ann., Pub. Safety § 5-601(e)(2)(i))
• School officials: Hawaii (Haw. Rev. Stat. § 134-61), New York (N.Y. C.P.R.L. 6340(2))
• Dating/intimate partners: Colorado (Colo. Rev. Stat. § 13-14.5-102(2)(g)), Maryland (Md. Code Ann., Pub. Safety § 5-601(e)(vii))

The DOJ model legislation proposes an even broader list of eligible petitioners, including attorneys for the state, household members, and dating or intimate partners.

Filing Procedures (§ 7702)

• A law-enforcement officer may request an emergency order under § 7703 by filing an affidavit or verified petition (§ 7702(a))
• Any eligible petitioner (family member or law enforcement) may request a nonemergency order under § 7704 by filing an affidavit or verified petition (§ 7702(b))
• Forms and instructions for initiating proceedings must be available from the Justice of the Peace Court's office and the Superior Court Prothonotary's office (§ 7702(d))
• All forms must contain simple, understandable language (§ 7702(e))
• There is no filing fee specified in the statute

Two Types of Orders

1. Emergency Lethal Violence Protective Order (§ 7703)

The petition must satisfy two requirements (§ 7703(a)):

1. Allege that the respondent poses an immediate and present danger of causing physical injury to self or others by controlling, purchasing, owning, possessing, having access to, or receiving a firearm or projectile weapon
2. Identify the location of firearms or projectile weapons it is believed that the respondent currently owns, possesses, has access to, or controls

If granted, the court shall order the respondent to relinquish all firearms, projectile weapons, and ammunition to a law-enforcement agency. The court may also (§ 7703(d)):

1. Prohibit cohabitation with gun owners — Prohibit the respondent from residing with another individual who owns, possesses, or controls a firearm, projectile weapon, or ammunition. The statute contains an express proviso: "Nothing in this section may be construed to impair the rights, under the Second Amendment to the United States Constitution or Article I, § 20 of the Delaware Constitution, of an individual who is not subject to the Court's order."

2. Authorize search and seizure — Direct a law-enforcement agency having jurisdiction where the respondent resides or where a firearm is located to immediately search for and seize firearms, projectile weapons, or ammunition owned, possessed, or controlled by the respondent.

Service of the emergency order (§ 7703(e)): The Justice of the Peace Court shall direct that the order be served immediately upon the respondent by personal service, any form of mail, or in any manner directed by the Court, including publication if other methods of service have failed or been deemed inadequate. The court must give a certified copy of the order to the law-enforcement officer after the hearing and before the petitioner leaves the courthouse.

Extension and transition (§ 7703(f)): If an emergency LVPO is issued, the Superior Court must hold a full hearing in compliance with § 7704 within 15 days. Either the Justice of the Peace Court or the Superior Court may extend an emergency order as needed to effectuate service of the order or where necessary to ensure the protection of the respondent or others, but the total duration cannot exceed 45 days.

Note: The DOJ model legislation specifically cites Delaware's "immediate and present danger" standard (Del. Code Ann. tit. 10, § 7703(d)) as one formulation states have adopted, alongside Florida's "significant danger" and Hawaii's "imminent danger" standards.

2. Nonemergency Lethal Violence Protective Order (§ 7704)

As with emergency petitions, the nonemergency petition must (§ 7704(a)):

1. Allege that the respondent poses a danger of causing physical injury to self or others
2. Identify the location of firearms or projectile weapons believed to be in the respondent's possession or control

Due process protections (§ 7704(b)):

• The respondent has the right to be heard (§ 7704(b)(1))
• If a hearing is requested, it must be held within 15 days of filing, unless extended by the Court for good cause shown (§ 7704(b)(2))
• The respondent has the right to notice of the hearing, to present evidence, and to cross-examine adverse witnesses (§ 7704(b)(3))
• The petitioner bears the burden of proof by clear and convincing evidence (§ 7704(b)(4))

Both the Superior Court (§ 7704(c)) and the Justice of the Peace Court (§ 7703(c)) may adopt additional rules governing their respective proceedings.

Comparison of the two order types:

Termination and Renewal (§ 7705)

The statute provides procedures for both terminating and renewing LVPOs:

• A respondent may file a written request to terminate an active LVPO
• A petitioner may file a written request to renew an LVPO before it expires
• Perjury penalties apply to false statements made in written requests to terminate or renew an order (§ 7708(b))

Note: The statute does not specify how many times a respondent may request termination or how many renewals a petitioner may seek. By comparison, the DOJ model legislation recommends limiting respondents to one termination motion per order period and placing the burden on the respondent to prove they no longer pose a danger by the same standard required at the original hearing.

Criminal Penalties and Sanctions (§ 7708)

Delaware imposes two categories of criminal penalties related to its red flag law:

Violation of a Lethal Violence Protective Order

Any person who violates an LVPO may be guilty of criminal contempt under 11 Del. C. § 1271A (§ 7708(a)). This includes:

• Failing to relinquish firearms as ordered
• Purchasing, possessing, or receiving firearms while subject to an active order
• Violating any other term of the protective order

False Statements in Proceedings

Any person who swears falsely (as defined by 11 Del. C. § 1224) in any of the following may be guilty of perjury under 11 Del. C. §§ 1221, 1222, or 1223 (§ 7708(b)):

• An affidavit or verified pleading filed under § 7702, § 7703, or § 7704
• A written request to terminate or renew a lethal violence protective order under § 7705
• Any court hearing under § 7703, § 7704, or § 7705

Delaware's perjury statutes provide graduated penalties:

• Perjury in the first degree (§ 1221) — Class D felony (applies in judicial proceedings)
• Perjury in the second degree (§ 1222) — Class A misdemeanor
• Perjury in the third degree (§ 1223) — Class G felony or lesser depending on context

Practical effect: The dual penalty structure means that a person who files a false LVPO petition faces perjury charges, while a respondent who violates the order faces criminal contempt. Both are criminal offenses with potential incarceration.

Firearm Storage, Return, and Immunity (§ 7707)

Relinquished firearms are stored by a law-enforcement agency. Under § 7707(c):

• Law-enforcement agencies are immune from civil or criminal liability for any damage or deterioration of stored firearms, projectile weapons, or ammunition
• Federally-licensed firearms dealers who store or transport firearms under this section also receive this immunity
• The immunity does not apply if the damage or deterioration resulted from recklessness, gross negligence, or intentional misconduct by the law-enforcement agency or federally-licensed firearms dealer

Note: The statute does not specify a maximum storage duration, nor does it detail the process for return of firearms after an order expires or is terminated. The DOJ model legislation recommends that states establish procedures for third-party owners to retrieve seized firearms through an affidavit process with a background check confirming the owner is not disqualified from possessing firearms.

Rulemaking Authority (§ 7709)

The following entities are authorized to promulgate rules and regulations to carry out the purposes of Chapter 77:

• Supreme Court of Delaware
• Superior Court
• Justice of the Peace Court
• State Police
• State Bureau of Identification
• Delaware Criminal Justice Information System (DELJIS) Board of Managers

This broad rulemaking authority allows both the judicial and law enforcement branches to develop implementing procedures for LVPO proceedings, including service protocols, firearm storage standards, and records management.

Relationship to Protection from Abuse (PFA) Orders

Delaware's LVPO statute operates alongside, but is distinct from, the state's Protection from Abuse (PFA) framework under 10 Del. C. Chapter 10. Key differences:

Under Delaware's PFA framework (10 Del. C. § 1041 et seq.), permanent protective provisions — including prohibitions on firearms — can last up to 2 years, and may be extended beyond 2 years upon consent or upon finding aggravating circumstances such as physical injury, use of a firearm, past domestic violence convictions, or repeated violation of prior PFA orders.

National Context

Delaware was among the first wave of states to enact red flag legislation following the February 2018 mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. As of the law's enactment, Delaware joined Connecticut, Indiana, California, Washington, Oregon, Florida, Vermont, Maryland, Rhode Island, New Jersey, Massachusetts, Illinois, New York, and the District of Columbia in adopting extreme risk protection order statutes.

The DOJ's June 2021 model legislation identifies Delaware's framework as a hybrid of the two main ERPO approaches:

• "Warrant" statutes that authorize courts to issue orders permitting law enforcement to search for and seize firearms
• "Order" statutes that authorize courts to issue temporary orders prohibiting dangerous individuals from possessing or acquiring firearms

Delaware's emergency LVPO provisions combine both approaches — the court can simultaneously issue a no-firearms order and authorize search and seizure of the respondent's weapons.

Concealed Carry Implications

A person subject to an active LVPO is prohibited from owning, purchasing, possessing, having access to, or receiving a firearm. This effectively:

• Suspends the ability to carry concealed (whether under a CCDW permit or otherwise)
• Requires surrender of all firearms, projectile weapons, and ammunition to law enforcement
• May prohibit residing with anyone who possesses firearms (if the court orders this provision)
• Triggers federal prohibitions — under 18 U.S.C. § 922(g)(8), it is a federal crime to possess a firearm while subject to a qualifying court order that restrains a person from harassing, stalking, or threatening an intimate partner or their child

Key Statutory References