Red Flag question

Just a hypothetical. Say a person was red flagged via a complaint to the police, police came and found no weapons, ammo nada. Can the flaggee counter complaint that a falsified police report was given? And would this be a case for the courts on the inviolability of the law. Essentially the law was weaponized to harass a neighbor. Looking for thoughts an opinions.

Neighbors can't report neighbors under the true Red Flag law.
Must be a family member or health care / mental health care professional. - As explained to me directly by the Frederick County Sheriff himself.

IANAL but I believe you can only counter sue or complain if there was damage done. If no damage was done to you, then you may not have any basis for a suit.

Just thinking out loud here...
What do the experts say?

thought it was a part of the bill was no adverse action can be taken against the complainer

not sure that a red flagger is saying "this guy has guns." think he's saying that this guy is unstable etc and shouldn't have access to guns. then the cops come and take away any guns that he may have.

but given that we're throwing out due process, and the risks with firearms being involved of kicking down someone's door who doesn't think he's guilty of anything, i def think that a false accuser (whether red flagger or a swatter) should have a STIFF mandatory sentence.

To clarify, Guy A has a neighbor B that's an Ahole. B starts his Harley at 530 AM to see if it starts. Plays loud music and is overall one of "those" neighbors, I'd say like a bully even though that sounds third grade. A has words over the fence asking him to knock it off, things are a little heated but no threats. B files a complaint with the popo, claims firearms present. The cops pull an ERPO and show up unannounced with a warrant, toss his house for four hours with no effect and go home angry.

FWIW Guy A has a lawyer and he's looking into his options. I'm just curious as to how this can be used in an overall case as there are several constitutional issues with the ERPO. Here is an incident where the law was clearly used as a retaliatory action again another party, i.e weaponized against a presumably innocent person.


https://mdcourts.gov/district/ERPO

Since the red flag law itself is a violation of multiple Constitutional amendments and is invalid on its face but is still being used, I think it is illogical to assume that the application of the illegal law would be done according to any other laws.

They implemented an illegal law. They are enforcing an illegal law. Don't expect them to suddenly follow and legal rules about repercussions of the illegal law.

This is the problem with out of control government. When they start ignoring their own laws they become dangerous to the rule of law

https://mdcourts.gov/district/ERPO

I'd recommend reading this for answers to a lot of questions.

My opinion also IS to call these what they are. Extreme Risk Prevention Orders.

What is an Extreme Risk Protective Order, and what CAN it do?
An Extreme Risk Protective Order (ERPO) is a court-issued civil order temporarily requiring a person to:
surrender any firearms or ammunition to law enforcement; and
not purchase or possess firearms or ammunition.
With reasonable belief that a person meets the requirements, an ERPO allows the court to refer someone for an emergency evaluation due to mental disorder.
What an Extreme Risk Protective Order CANNOT do
An ERPO cannot order a person to:
stop threatening or committing abuse;
stay away from your home, place of employment, or school;
have no contact with you or others.
There are other legal remedies to obtain these protections.
If you need protection for yourself or a family member, see the "How to File for a Peace or Protective Order" Brochure (CC-DC-DV-PO-001BR).
An ERPO is a civil order and not a criminal charge. See a District Court commissioner or a State's Attorney to file criminal charges.
Who can file an Extreme Risk Protective Order?
The person requesting an ERPO is the petitioner. A petition may be filed by a:
spouse;
cohabitant;
relative by blood, marriage, or adoption;
person with child(ren) in common;
current dating or intimate partner;
current or former legal guardian;
law enforcement officer;
medical professional who has examined the respondent (this includes a physician, psychologist, clinical social worker, licensed clinical professional counselor, clinical nurse specialist in psychiatric and mental health nursing, psychiatric nurse practitioner, licensed clinical marriage or family therapist, or health officer or designee of a health officer who has examined the individual).
Who is an Extreme Risk Protective Order filed against?
A person who poses an immediate and present danger of causing personal injury to self or others by having firearms. The person who is alleged to be a danger is called the respondent.
Factors demonstrating possible risk include:
alarming behavior and statements;
unlawful firearm possession;
reckless or negligent firearm use;
violence or threats of violence to self or others;
violating peace or protective orders;
drug and/or alcohol abuse; and/or
information contained in health records.
An Extreme Risk Protective Order can be filed against a minor.
How to Apply for an Extreme Risk Protective Order
Step 1: Complete the petition and addendum forms
Obtain a Petition for Extreme Risk Protective Order (DC-ERPO-001) and both addendum forms (Description of Respondent DC-ERPO-001A and Summary of Respondent's Behavior & Mental Health History DC-ERPO-001B) from a District Court clerk or commissioner, or online at: mdcourts.gov/district/forms.
State specifically how the respondent presents an immediate and present danger of hurting himself/herself, you, or others if he/she has a firearm.
Describe the respondent's behaviors and any statements made about hurting himself/herself or others.
State that the respondent possesses firearms; provide a description and the location for each firearm.
Sign the petition. By signing, you are stating under the penalties of perjury the information is true.
A petitioner who, in good faith, files a Petition for Extreme Risk Protective Order is not civilly or criminally liable for filing the petition.
Step 2: File the petition
File the Petition for Extreme Risk Protective Order and addendum forms in District Court.
When the clerk's office is open, file the petition with a District Court clerk.
If the clerk's office is closed, file with a District Court commissioner.
Visit mdcourts.gov/district/directories/commissionermap for commissioner locations and mdcourts.gov/district/directories/courtmap for court locations.

Step 3: Appear for a temporary hearing
The judge may issue a temporary order if he/she reasonably believes the respondent, by having firearms, poses an immediate and present danger of causing injury to himself/herself, you, or others.
The judge may hold a final hearing instead of a temporary hearing if:
(a) the respondent appears at the hearing; (b) the respondent has been served with an interim extreme risk protective order; or (c) the court otherwise has personal jurisdiction over the respondent; and
the petitioner and the respondent expressly consent to waive the temporary extreme risk protective order hearing.
If court is closed unexpectedly, hearing will be held on the next day on which the court is open.
Step 4: Appear for a final hearing
Usually, the court will schedule a hearing within seven (7) days after the respondent is served the Temporary ERPO.
The judge may hold the final hearing with or without the respondent being present if the respondent has been served. A final hearing may not be held without service on the respondent.
The Final ERPO period can be as long as one (1) year.
The court can extend the Final ERPO for an additional six (6) months (for good cause) after notifying the parties and holding a subsequent hearing.
If the court is closed unexpectedly, the hearing will be held on the second day on which the court is open.

What are the fees/costs associated with Extreme Risk Protective Order filings?
There are no filing fees or service fees for Extreme Rick Protective Orders. Additionally, there is no fee to file an appeal.

Do I need an attorney?
It is your decision. If you decide to consult/hire an attorney, make contact as soon as possible to allow the attorney enough preparation time to assist you.

frogman68 said:

thought it was a part of the bill was no adverse action can be taken against the complainer

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From what I remember, that is correct. As long as it's filed "in good faith" there are no repurcussions for whoever requested it.

HoCo PD has already said if the guy does not cooperate (no definition as to what that is), he is to be arrested and a search warrant rubber-stamped by a judge to toss the place.

Thanks. I had that link in my post.

trailman said:

To clarify, Guy A has a neighbor B that's an Ahole. B starts his Harley at 530 AM to see if it starts. Plays loud music and is overall one of "those" neighbors, I'd say like a bully even though that sounds third grade. A has words over the fence asking him to knock it off, things are a little heated but no threats. B files a complaint with the popo, claims firearms present. The cops pull an ERPO and show up unannounced with a warrant, toss his house for four hours with no effect and go home angry.
https://mdcourts.gov/district/ERPO

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Guy A should consider that attempted murder and proceed accordingly.

inkd said:

From what I remember, that is correct. As long as it's filed "in good faith" there are no repurcussions for whoever requested it.

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However if person A does not own or possess firearms and person B made a sworn statement that firearms are present then that is perjury. That isn’t good faith. One thing to misreport that someone appears to be a threat. That can of course be a lie, but hard to substantiate. U less person B claims person A was saying they have guns...

What’s the response to “scary, and he has guns” when no evidence to substantiate ANY part of the report happens?

PS police can request an ERPO also. So someone reporting you to the police could get the police to ask a judge for an ERPO. However, I’d think it would need to be very damning evidence presented to the police. But in that case, you’d likely have better luck going after person B for filing a false police report and possibly the police for failure to do due diligence before asking for the ERPO.

whistlersmother said:

HoCo PD has already said if the guy does not cooperate (no definition as to what that is), he is to be arrested and a search warrant rubber-stamped by a judge to toss the place.

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By context, I’d assume that likely means refusal to allow police to search the premise. An ERPO is not a search warrant. Unless exigent circumstances existed at the time police arrived to serve the order, they’d likely need a search warrant to enter and search your persons and property for firearms.

“I don’t own any guns and no you may not search my house” should be sufficient for them to have to go get a warrant. Which as pointed out, just about any judge magistrate is going to grant at that point. So it is at most delaying things a few hours at best and making the cops really annoyed with you.

It is my understanding that in order for an ERPO to be issued, firearms must be owned or in the possession of the respondent. If that is not the case, then the court has no reason to issue an ERPO. If an ERPO is issued on false pretense (he has evil guns), and it is proven that the respondent is NOT a firearms owner, then I would think that would be a good start to go after the "good faith" issue.

dblas said:

It is my understanding that in order for an ERPO to be issued, firearms must be owned or in the possession of the respondent. If that is not the case, then the court has no reason to issue an ERPO. If an ERPO is issued on false pretense (he has evil guns), and it is proven that the respondent is NOT a firearms owner, then I would think that would be a good start to go after the "good faith" issue.

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I don't know if that is entirely accurate. For instance the ERPO would prevent the respondent from legally purchasing/possessing firearms.

One does not need to own or possess it currently if the intention was made known that they intend to purchase or acquire a firearm.

For instance "When XXX gun shop opens I'm going to get one and kill you" or "I'm headed to my XXX (relative) house to get a gun".

In that instance the ERPO could be issued to "prevent" the purchase of the firearm.

Topher said:

Neighbors can't report neighbors under the true Red Flag law.
Must be a family member or health care / mental health care professional. - As explained to me directly by the Frederick County Sheriff himself.

IANAL but I believe you can only counter sue or complain if there was damage done. If no damage was done to you, then you may not have any basis for a suit.

Just thinking out loud here...
What do the experts say?

Click to expand...

Neighbors can't...but you missed the part where Law Enforcement Officers can. If the neighbor makes the complaint to the Law Enforcement Officer they can apply based on that statement.

Name Taken said:

Neighbors can't...but you missed the part where Law Enforcement Officers can. If the neighbor makes the complaint to the Law Enforcement Officer they can apply based on that statement.

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Yup. But it does open the person making the complaint to possible charges of filing a false complaint. Those ERPO “safe haven”/good faith protections apply to the person applying for an ERPO.

Even there, I’d think you’ve got more civil suit wiggle room against police if they take some neighbor at their word with zero evidence and go and get an ERPO without even bothering to talk to the respondent.

Never realized how insane the ERPO's were, up to 1 year plus a 6 month extension possible?! That's wild, makes my brain hurt. Is there any active effort to overturn the ERPO notion?

Additionally...How is an ERPO order able to get a nightcapped warrant, while still requiring knock and announce rule? (refering to the pre dawn ERPO served where the dude got killed) ESpecially since its a civil matter not a criminal matter!?

Nightcapped Warrant ?

I believe in most cases the complaintant applying for the protective order is the police, not family members. Would be an interesting statistic to look up.