Washington Red Flag Law: Extreme Risk Protection Orders (ERPO)

Washington's "red flag" law lets a court temporarily restrict a person's access to firearms through an Extreme Risk Protection Order (ERPO). The framework began with Initiative 1491 in 2016 (formerly chapter 7.94 RCW) and was recodified into the unified civil protection order statute, chapter 7.105 RCW, effective July 1, 2022 (2021 c 215). An ERPO is a civil order. It does not require a criminal charge or conviction, and it is separate from criminal no-contact orders.

What an ERPO Is For

An ERPO is available when a respondent poses a significant danger of causing personal injury to self or others by having in the respondent's custody or control, purchasing, possessing, accessing, receiving, or attempting to purchase or receive, a firearm (RCW 7.105.100(1)(e); RCW 7.105.225(1)(e)). Unlike other protection orders, an ERPO addresses firearm access only. It does not order the respondent to stay away from, or stop contacting, a specific person. For that kind of personal protection, a separate protection order (such as a domestic violence protection order) must be sought.

Who Can Petition for an ERPO

Under RCW 7.105.100(1)(e), a petition for an extreme risk protection order may be filed by:

• An intimate partner of the respondent, or a family or household member of the respondent; or
• A law enforcement agency.

The petition must allege that the respondent poses a significant danger as described above, and must identify the information the petitioner can provide about the respondent's firearms, including the number, types, and locations of any firearms the petitioner believes are in the respondent's current ownership, possession, custody, access, or control (RCW 7.105.100(1)(e)).

What an ERPO Does

Upon issuing an ERPO, including a temporary order, the court orders the respondent to surrender all firearms in the respondent's custody, control, or possession, and any concealed pistol license (CPL) issued under RCW 9.41.070, to the local law enforcement agency. For orders other than ex parte temporary orders, the court also directs law enforcement to revoke any CPL issued to the respondent (RCW 7.105.340(1)).

While the order is in effect, the respondent may not have in the respondent's custody or control, access, possess, purchase, receive, or attempt to purchase or receive, a firearm or a concealed pistol license (RCW 7.105.330(3)(g)). The respondent also cannot obtain a new CPL during that period.

How to Obtain an ERPO

Step 1: File a Petition

The petition is filed under penalty of perjury and must state the specific facts and circumstances for which relief is sought (RCW 7.105.105(3)). It must allege that the respondent poses a significant danger of personal injury through firearm access and identify the respondent's known firearms (RCW 7.105.100(1)(e)). A petitioner may file on their own or with an attorney.

Step 2: Temporary ERPO

If the court finds reasonable cause to believe the respondent poses a significant danger of causing personal injury to self or others in the near future through firearm access, it shall issue a temporary extreme risk protection order (RCW 7.105.330(2)). A temporary ERPO:

• Must be served by a law enforcement officer (RCW 7.105.330(5)).
• Requires the respondent to surrender all firearms and any CPL (RCW 7.105.330(3)(g); RCW 7.105.340).
• Expires upon the full hearing on the petition unless reissued by the court (RCW 7.105.330(4)). An ex parte temporary protection order is issued initially for a period not to exceed 14 days, which may be extended for good cause (RCW 7.105.100(8)).

If the court declines to issue a temporary ERPO, it must state the particular reasons for the denial (RCW 7.105.330(6)).

Step 3: Full Hearing

A full hearing is held before the temporary order expires. At an ERPO hearing the court may examine the petitioner, respondent, and witnesses under oath, or consider their sworn declarations, and shall ensure a reasonable search of criminal history and civil protection order records (RCW 7.105.215(1)). In deciding whether grounds exist, the court may consider any relevant evidence, including recent acts or threats of violence, a pattern of acts or threats within the past 12 months, violation of a prior protection order, unlawful or reckless use or display of a firearm, abuse of controlled substances or alcohol, and recent acquisition of firearms (RCW 7.105.215(3)).

The court shall issue a full ERPO if it finds, by a preponderance of the evidence, that the respondent poses a significant danger of causing personal injury to self or others through firearm access (RCW 7.105.225(1)(e)). A full ERPO has a duration of one year (RCW 7.105.330(3)(g); RCW 7.105.340(6)).

Cost

There is no cost to file for an ERPO. Courts may not charge a petitioner service-of-process fees, and no filing fee applies to protection order petitions under chapter 7.105 RCW other than antiharassment petitions (RCW 7.105.105(9)).

Firearm Surrender Requirements

When an ERPO is issued, the law enforcement officer serving it shall request that the respondent immediately surrender all firearms in the respondent's custody, control, or possession, and any CPL, and may conduct any search permitted by law. The timing of surrender works as follows (RCW 7.105.340(2)):

• If served by a law enforcement officer, the respondent must immediately surrender all firearms and any CPL upon request.
• If the respondent was present at the hearing (in person or remotely), the respondent must surrender all firearms and any CPL to the local law enforcement agency on the day of the hearing.
• If personal service is not possible and the respondent did not appear, the respondent must surrender within 24 hours of being served by alternate service.

At surrender, the officer issues a receipt identifying all surrendered firearms and provides a copy to the respondent. Within 72 hours after service of the order, the serving officer files the original receipt with the court (RCW 7.105.340(3)).

Compliance Verification

Upon issuance of a one-year ERPO, the court sets a compliance review hearing and requires the respondent to appear not later than three judicial days from issuance to show that all firearms and any CPL have been surrendered. The hearing may be waived only on a satisfactory showing, supported by the record, that the respondent has timely and completely surrendered (RCW 7.105.340(6)).

If the petitioner or a law enforcement officer swears that the respondent failed to surrender all firearms, the court determines whether probable cause exists; if it does, the court shall issue a search warrant describing the firearms and authorizing their seizure (RCW 7.105.340(4); see also RCW 9.41.801(4)). Courts also develop procedures to verify timely and complete compliance with surrender orders, including review of Department of Licensing and Washington State Patrol firearm records (RCW 9.41.801(6)).

Renewal of an ERPO

The renewal rules are set by RCW 7.105.410:

• The court must notify the petitioner of the order's impending expiration. That notice must be received by the petitioner 105 calendar days before the order expires (RCW 7.105.410(1)).
• An intimate partner, a family or household member of the respondent, or a law enforcement agency may move to renew the order at any time within 90 days before its expiration (RCW 7.105.410(2)).
• The court sets a renewal hearing not later than 14 days from the date the renewal order issues, applying the same standard and procedure as RCW 7.105.215 (RCW 7.105.410(2)(a)-(c)).
• A renewed ERPO has a duration of one year, subject to further renewal or to termination under RCW 7.105.505 (RCW 7.105.410(2)(d)).

Termination of an ERPO

Termination is governed by RCW 7.105.505, not the renewal statute:

• The respondent may submit one written request to terminate the ERPO in every 12-month period that the order is in effect, starting from the date of the order and continuing through any renewals (RCW 7.105.505(1)).
• The court sets a hearing no sooner than 14 days and no later than 30 days from the date the request is served on the petitioner (RCW 7.105.505(2)).
• The respondent bears the burden of proving, by a preponderance of the evidence, that the respondent does not pose a significant danger of causing personal injury to self or others through firearm access (RCW 7.105.505(3)).
• If the respondent meets that burden, the court shall terminate the order (RCW 7.105.505(4)).

Violations and Penalties

Penalties tied directly to an ERPO are set by RCW 7.105.460:

• A person who possesses, accesses, purchases, receives, or attempts to purchase or receive a firearm knowing that an ERPO prohibits them from doing so is guilty of a gross misdemeanor, and is further barred from firearm access for five years from the date the existing order expires (RCW 7.105.460(2)(a)).
• That violation is a class C felony if the person has two or more previous convictions for violating an order issued under chapter 7.105 RCW (RCW 7.105.460(2)(b)).
• A person who files an ERPO petition knowing the information to be materially false, or with intent to harass the respondent, is guilty of a gross misdemeanor (RCW 7.105.460(1)).

Two related consequences also apply. First, failing to comply with the surrender requirements can result in an arrest warrant and contempt proceedings under chapter 7.21 RCW (RCW 7.105.340(7)). Second, a prior violation of an order to surrender and prohibit weapons or of an extreme risk protection order is a predicate that makes any later firearm possession the crime of unlawful possession of a firearm in the second degree, a class C felony (RCW 9.41.040(2)(a)(i)(F); RCW 9.41.040(2)(b)).

Impact on a Concealed Pistol License

An ERPO has direct consequences for CPL holders:

1. Surrender: The physical CPL must be surrendered along with all firearms (RCW 7.105.340(1)(a), (2)).
2. Revocation: For an ERPO other than an ex parte temporary order, the court directs law enforcement to revoke the CPL (RCW 7.105.340(1)(b)).
3. No new license: The respondent cannot obtain a new CPL while the order is in effect (RCW 7.105.330(3)(g)).
4. Database entry: Law enforcement must ensure the order and CPL revocation are entered into the appropriate databases (RCW 9.41.800(7)(b)).

Other Protection Orders That Can Require Firearm Surrender

An ERPO is not the only chapter 7.105 order that can result in firearm surrender and CPL revocation. Under RCW 9.41.800, a court entering a protection order, restraining order, or no-contact order shall, upon a showing by a preponderance of the evidence that a party used, displayed, or threatened to use a firearm or other dangerous weapon in a felony, or is ineligible to possess firearms under RCW 9.41.040, require surrender of all firearms and any CPL, prohibit future possession, and (other than for unheard ex parte orders) direct revocation of the CPL.

Note that violating the restraint provisions of a domestic violence, sexual assault, stalking, or vulnerable adult protection order is a separate gross misdemeanor (a class C felony in the circumstances described in RCW 7.105.450(4) and (5)). ERPO-specific penalties are governed by RCW 7.105.460, described above.

Information Sharing for Compliance

To help courts ensure compliance with an order to surrender and prohibit weapons or an extreme risk protection order, the Department of Licensing makes the following information available to prosecuting attorneys' offices, city attorneys' offices, public defender agency staff, probation services personnel, and court judicial officers and staff (RCW 9.41.815):

• Whether a person is ineligible to possess firearms;
• A person's firearms purchase history; and
• Whether a person has or previously had a concealed pistol license, or has applied for one.

How to Request an ERPO

• Statewide protection order forms are available through the Washington Courts website at courts.wa.gov/forms.
• Contact your local superior court clerk's office for assistance and county-specific resources.
• A petitioner is not required to hire an attorney, but may choose to consult one.

Key Statutes