Massachusetts Extreme Risk Protection Order (Red Flag Law)

Overview

Massachusetts enacted an Extreme Risk Protection Order (ERPO) statute in 2018, codified at M.G.L. c. 140, Section 131R and the operative procedure in M.G.L. c. 140, Sections 131R-131Z. The statute is commonly known as the red flag law and authorizes a court to order temporary firearm surrender by a person deemed an imminent threat to themselves or others.

Chapter 135 of the Acts of 2024 expanded the categories of persons authorized to petition for an ERPO and tightened certain procedural elements.

Who Can Petition

Under M.G.L. c. 140, Section 131R, an ERPO petition may be filed by:

• A family or household member of the respondent (spouse, former spouse, parent, child, sibling, person with a child in common, current or former dating partner, person sharing a residence).
• A licensed mental health professional who has personally examined the respondent.
• A law enforcement officer.

Chapter 135 of 2024 expanded the petitioner categories to include certain healthcare providers and to allow employers under specified conditions. Confirm the current list against the active text of c. 140, Section 131R.

Two Types of ERPOs

Massachusetts ERPOs come in two forms:

Emergency (Ex Parte) ERPO

A petitioner may seek an emergency ERPO without prior notice to the respondent when the petitioner alleges the respondent poses an immediate and present danger of harming themselves or others. The court may issue the emergency ERPO based on the petition alone, without an evidentiary hearing.

• An emergency ERPO is effective for up to 10 days.
• The court must schedule a full hearing within that 10-day window to determine whether a longer ERPO should issue.
• During the emergency period, the respondent must surrender any firearms, LTC, and FID to law enforcement.

Standard (One-Year) ERPO

A standard ERPO follows a noticed evidentiary hearing where the respondent has the opportunity to appear, cross-examine, and present evidence. The standard ERPO requires the petitioner to prove by a preponderance of the evidence that the respondent poses a risk of personal injury to self or others.

• A standard ERPO is effective for up to one year.
• The petitioner may seek renewal at the end of the term following the same notice-and-hearing procedure.

What an ERPO Requires the Respondent To Do

A respondent subject to an ERPO must:

• Surrender all firearms, ammunition, LTC, and FID to law enforcement immediately upon service of the order.
• Not possess, purchase, or otherwise receive any firearm, ammunition, or firearm license during the term of the order.
• Not transfer firearms to a third party except through law enforcement to a licensed dealer.

Failure to comply with the surrender order is a separate criminal offense under M.G.L. c. 140, Section 131T.

Procedural Protections for the Respondent

The Massachusetts ERPO statute incorporates due process protections:

• Notice and hearing for any non-emergency order beyond the initial 10-day emergency.
• Right to counsel at the hearing; the respondent may retain counsel or proceed pro se.
• Standard of proof of preponderance of evidence for issuance of a one-year ERPO.
• Right to seek termination of the ERPO during its term upon a showing of changed circumstances under M.G.L. c. 140, Section 131U.
• Appeal to the appellate courts under standard appellate procedure.

Firearm Return After ERPO Expiration

When an ERPO expires (or is terminated), the respondent may petition for return of the surrendered firearms. The return process under M.G.L. c. 140, Section 131W requires:

• The respondent to demonstrate continued eligibility to possess firearms.
• The respondent to hold a valid LTC or FID (which may have been revoked separately due to the ERPO and would need to be re-applied for or reinstated).
• The law enforcement agency to confirm no outstanding warrants or new disqualifying circumstances.

A respondent whose LTC or FID was suspended or revoked in connection with the ERPO must complete the reapplication process to recover the license.

Interaction With Other Restraining Orders

Massachusetts has several other order types that affect firearm possession:

• M.G.L. c. 209A abuse prevention orders (domestic violence restraining orders) automatically result in firearm surrender under M.G.L. c. 209A, Section 3B.
• M.G.L. c. 258E harassment prevention orders may also include firearm-related conditions.
• ERPOs under c. 140, Section 131R cover the imminent-danger scenario that does not require a domestic-violence or harassment showing.

A single incident may give rise to multiple orders (c. 209A plus ERPO, for example). Each order operates independently.

Federal Interaction

The federal Gun Control Act prohibits firearm possession by:

• A person subject to a qualifying domestic violence protection order (18 U.S.C. 922(g)(8)).
• A person convicted of a misdemeanor crime of domestic violence (18 U.S.C. 922(g)(9)).

The U.S. Supreme Court in United States v. Rahimi, 602 U.S. ___ (2024), upheld 922(g)(8) against a Second Amendment challenge in the post-Bruen framework. Massachusetts ERPOs typically qualify under the federal protection-order provision when the underlying order was entered with notice and hearing; emergency ex parte ERPOs generally do not trigger federal 922(g)(8) until the noticed-hearing order issues.

False Petition Penalties

M.G.L. c. 140, Section 131S provides penalties for a person who knowingly files a false ERPO petition. The petition system relies on truthful sworn statements; misuse for harassment or retaliation is a substantive criminal offense.

Statistics and Enforcement

Massachusetts ERPO usage has grown since 2018. The State Police FRB maintains aggregate statistics on petitions filed, orders issued, and firearms surrendered. Enforcement rates and reissuance patterns are tracked by the Executive Office of Public Safety and Security.

Practical Considerations

For an LTC or FID holder:

• An ERPO results in immediate firearm surrender and license suspension or revocation.
• A hearing is required before any order beyond the initial 10-day emergency, but the burden of proof at that hearing favors the petitioner (preponderance, not beyond reasonable doubt).
• The respondent should retain Massachusetts firearms counsel immediately upon service of any ERPO petition, emergency order, or notice of hearing.
• Compliance with the surrender order is mandatory; non-compliance is a separate crime.

For a petitioner:

• The petition must be sworn and truthful.
• Documentation supporting the imminent-danger claim (medical records, prior incidents, witness statements) strengthens the petition.
• The emergency ex parte process is appropriate when there is no time for a noticed hearing; the standard process is preferred when the danger is real but not imminently lethal.

Key Statutory References

Takeaway

The Massachusetts ERPO is a powerful temporary order that triggers immediate firearm surrender. The statute provides due process protections - notice, hearing, right to counsel, right to seek termination - but the preponderance standard makes the orders relatively easy for a petitioner to obtain when there is a genuine concern. Compliance is non-optional; non-compliance is a separate offense. Any respondent should retain counsel without delay.