Audit: Oregon's red flag gun removal law isn't working as well as it could be

Firearm-related suicides in Oregon have been 40% higher than the national rate for the past four years, despite the existence of extreme risk protection orders in the state.

Such orders, commonly known as "red flag" orders, allow individuals or law enforcement to ask the courts to remove firearms from someone they believe may be a danger to themselves or others.

An advisory report released Wednesday by the Oregon Audits Division suggests that while Oregon's ERPO law is generally in line with similar laws in other states, Oregon needs to do more to make residents aware that the tool exists.

“Gun violence is a serious and growing risk not only in Oregon, but nationwide,” audits director Kip Memmott said in a news release. “We have a tool and a process in our laws to protect people in those situations where we know the risk is heightened. But if Oregonians don’t know it’s available — or can’t use it — that’s a problem we need to fix.”

What is the ERPO law?

The state Legislature passed Oregon's ERPO law in 2017 and the "red flag" law has been in effect since 2018. The District of Columbia and 20 other states have similar red flag laws.

Family or household members or law enforcement can request a civil court order to prevent someone at risk of hurting themselves or others from having access to firearms. The law aims to reduce gun violence and suicide.

It is one of five types of civil protective orders in the state, including orders of protection.

The ERPO order process begins with a petition filed in court by a household member, family member or law enforcement officer who identifies that someone is at risk of hurting themselves or others. They fill out a form and a hearing is held either the same day or the next available business day.

The person petitioning the court must appear at the hearing and a judge determines if there is "clear and convincing" evidence of the risk that someone will injure themselves or others.

If the ERPO is issued, the local county sheriff's office, private process server or another competent adult will serve the order and the respondent must turn over firearms to law enforcement, a licensed gun dealer, or a third party who can lawfully purchase firearms. This must be done within 24 hours and a respondent cannot purchase firearms for the period outlined in the order.

ERPO information is then submitted to Oregon's Law Enforcement Data System and the National Crime Information Center system. The person with an ERPO order then has 30 days to request a hearing to challenge the order. The petitioner will again have to appear or the order is dismissed and if the respondent does not appear or request a hearing, the ERPO goes into effect for one year.

Law enforcement request most ERPOs

The Oregon Justice Department provided data on ERPOs filed from January 2018 through June 2022. Across that time period, 564 ERPOs were requested. Law enforcement requested a majority of the orders, according to the report released Wednesday.

Over the four and a half years analyzed, 78% of ERPOs requested were granted but 96% of ERPOs petitioned by law enforcement were approved. Household or family members, making up a third of the requests, received approved ERPOs 59% of the time.

The Audit Division's analysis found that at least one ERPO was filed in 29 of the state's 36 counties. Looking at ERPO use per 100,000 residents, Lane County hit the lowest rate with 3.9 ERPOs per 100,000 residents and 15 total orders. Josephine County had the highest use with 52 orders per 100,000 residents. Washington County had the highest total ERPOs with 94.

Demographics of ERPOs

As of December 22, orders were largely issued for white men under the age of 45, according to the report. One quarter of respondents were between age 15 and 25 and 44% were between age 26 and 45. There were two ERPOs for Black and Asian/Pacific Islander individuals, less than 5% of the ERPO count.

There were 15 ERPOs issued for women, about 14% of the analyzed orders.

The Audit Division said in its report that demographic data indicates that the red flag law has not disproportionately targeted people of color in the state. Despite this, the division wrote that more nuanced evaluation was still needed.

Analysis of ERPO use should include demographic analysis of both respondents and petitioners, they said. Oregon's data system currently does not include information on petitioners.

"Understanding how ERPOs are perceived and used within and against communities of color is essential for understanding and ensuring their equity and effectiveness as a tool to reduce gun violence," the report added.

Suggestions from auditors

Fewer than 1% of the 64,000 protection orders requested in the state from 2018 to 2021 were ERPOs.

An Associated Press analysis ranked Oregon 10th in the rate of ERPOs approved per 100,000 adults compared to the 19 other states and the District of Columbia with similar laws from 2020 through September 2022.

Auditors suggested the process of petitioning can be time-consuming and requires attending multiple hearings. Court forms and procedures are another potential barrier, they said.

Oregon can do more to make residents aware that ERPOs exist and more to train and educate law enforcement on the process, they said. They also suggested other changes to the law.

Oregon is one of 16 states that only allow family, household members or law enforcement to petition for an ERPO. Some other states allow other types of petitioners.

In California, for example, employers, coworkers and certain school staff can do so. In Hawaii, Colorado, Connecticut, Maryland, Michigan, New York and the District of Columbia health care and mental health professionals may petition for ERPOs.

Auditors wrote, however, that suicide prevention and firearm safety advocates consulted for the audit expressed concerns about expanding eligible petitioners in Oregon. They cited potential hesitance in individuals to seek medical or mental health help if they were afraid their provider might request an ERPO and have their firearms removed.

Other policy suggestions include:

• Additional provisions to ensure all firearms are relinquished.

• Addressing the limited process for confirming firearm surrenders.

• Addressing the 24-hour period respondents have to transfer firearms, which means respondents still possess firearms after an order is served.

Another suggestion is adding specific provisions for minors.

The law was used for a minor respondent in one case in the state but specific guidance does not exist. The report pointed to Washington laws where minors who may not be allowed to own firearms but have access to firearms in their homes are able to request confidential and sealed court records when responding to an ERPO.

Dianne Lugo covers the Oregon Legislature and equity issues. Reach her atdlugo@statesmanjournal.com or on Twitter @DianneLugo.

This article originally appeared on Salem Statesman Journal: Audit: More awareness needed of Oregon's red flag gun removal law