New Maryland Gun Law: Immediate Surrender of Firearms

Factual Background

On July 26, 2011, Ramos pleaded guilty to criminal harassment in the district court of Maryland in Anne Arundel County. He received a suspended sentence and was placed on probation for 18 months with the requirement that he participate in therapy. Five days later, on July 31, 2011, staff writer Eric Hartley published an article entitled “Jarrod wants to be your friend.”

The Capital Gazette story highlighted one woman’s struggle with internet harassment by Ramos. Ramos found the victim online, recognizing her as one of his high school classmates. He initially contacted her on Facebook, and she accepted his friend request. She began communicating with him regularly once she realized that they went to high school together. Ramos began sharing his problems with the victim, and she recommended that he attend counseling. Ramos did not appreciate the recommendation, and the once-friendly emails became hostile and violent in nature. Ramos called her vulgar names; told her to kill herself; and even emailed her place of employment, trying to get her fired.

The newspaper story explained that although the victim asked him to stop contacting her, he had refused. She blocked him from her Facebook page and subsequently notified police. These measures were initially successful, and his contact ceased for a few months. The contact began again, however, and this time his emails were more threatening. In one email, he stated, “You’re going to need restraining order now. You can’t make me stop. I know all these things about you. I’m going to tell everyone about your life.” Hartley quoted Ramos, pointing out that in April 2010 he wrote, “Have another drink and go hang yourself, you cowardly little lush. Don’t contact you again? I don’t give a (expletive). (Expletive) you.” Ramos v. Hartley, 2015 Md. App. LEXIS 1022, at *4.

The article concluded that in January 2011, the victim obtained a peace order, which halted the harassment. During the peace order hearing, the victim’s lawyer requested that the judge order a mental health evaluation after showing Ramos’s “disturbing” Twitter feed. The judge declined to order the evaluation.

On July 23, 2012, Ramos filed his initial complaint in the circuit court for Prince George’s County, charging Eric Hartley, editor Thomas Marquardt, Capital-Gazette Communications, Inc., and Capital-Gazette Communications, LLC, with defamation. There were no supporting documents or any affidavits submitted with the complaint. His second complaint, filed in October, was 22 pages with an additional charge of invasion of privacy.

The judge found that neither complaint stated a chargeable offense. During a full hearing, the judge probed Ramos to find out which statement was actually false or how he had been harmed by the article. Ramos was unable to give a satisfactory answer.

As a result, the court dismissed the case with prejudice, reasoning, “The appellant was charged with a criminal act. The appellant perpetrated a criminal act. The appellant plead [sic] guilty to having perpetrated a criminal act. The appellant was punished for his criminal act. He is not entitled to equal sympathy with his victim and may not blithely dismiss her as a ‘bipolar drunkard.’” The court concluded that “he does not appear to have learned his lesson.” Ramos, 2015 Md. App. LEXIS 1022, at *12.

No truer words have been spoken because, several years later, Ramos sought revenge against the Capital Gazette. The revenge was not online harassment, however. It was an in-person mass shooting.

A New Remedy under the Law

Mass shooters often exhibit warning signs before going on a killing spree. They will often make threats and act in worrisome ways. Until recently, people who noticed the worrisome behavior had little to no legal mechanism to prevent a person from tragically endangering himself or others with a firearm.

A new law in Maryland, though, provides a remedy for people who notice behavior in others that could implicate dangerous use of firearms. It is a new type of protective order—an Extreme Risk Protective Order (ERPO), otherwise known as a “red flag” law. This is a specialized protective order that provides an efficient way for people to get guns out of the hands of loved ones and others who may be a danger to themselves or others and/or who may be experiencing a mental health crisis.

The new law went into effect on October 1, 2018, drawing more than 100 petitions for firearm removal in the first month. The granted requests resulted in the removal of many firearms from respondents and prohibited the purchase of any firearms for the duration of the orders. Some of the orders included an emergency psychological evaluation and involuntary commitment into a psychiatric hospital.

Maryland has followed suit after several other states had already implemented some form of the red flag law. Those states include California, Connecticut, Delaware, Florida, Illinois, Indiana, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington.

The Filing Process

A spouse, relative, cohabitant, intimate partner, person with children in common, legal guardian, health professional, or law enforcement officer can file a petition for an ERPO. Under the Maryland Code, the court can order that the respondent immediately surrender all firearms and ammunition to law enforcement. Md. Code Ann., Pub. Safety § 5-604.

The person who files has to offer proof that the respondent poses an immediate and present danger of causing injury to self or others with a firearm. There must be proof of recent threats or acts of violence, alarming behavior and statements, unlawful firearm possession, reckless or negligent firearm use, violation of a peace or protective order, substance abuse, and/or concerning information contained in health records. Id. § 5-602.

Depending on the outcome of the hearing, the judge can enter a temporary order for protection, which can be extended for up to one year. The final hearing may not commence, however, if the respondent has not been served. Once the respondent is served, the respondent is permitted to present evidence in his defense. Id. § 5-605. If, after being served, the respondent chooses not to appear at the hearing, a judge can put a one-year final order into place in his absence. During the year that the final order is in place, the respondent is not permitted to possess or purchase a firearm. Once a gun is surrendered, law enforcement will hold it for safekeeping. If something concerning occurs during the duration of the order, the order may be extended.

Involuntary Mental Health Evaluation

In the temporary and final stage of the ERPO, if the court finds probable cause that a person has shown symptoms of a mental disorder, the ERPO requires the court to refer the respondent to receive an emergency mental health evaluation.

Limitations

An ERPO is very limited in nature. The order does not allow a judge to order a person to stop threatening or abusing someone. It also does not permit a judge to order a person to stay away from any home, business, or school. In addition, the ERPO cannot prohibit the respondent from contacting the petitioner. If a petitioner wants a respondent to stay away and have no contact, the petitioner must file separately for a peace or protective order.

Appeals

Either party can file an appeal of a district court judge’s decision to either grant or deny an ERPO. The hearing would take place in the circuit court, but the order would remain in place unless and until it is superseded by a judgment of the circuit court.

Penalties: Not Just a Piece of Paper

Violations come with penalties, and a violation of an ERPO is a crime. If there is probable cause to believe that the respondent has violated a term of an interim, temporary, or final ERPO, the penalties can be harsh. A respondent may be arrested with or without a warrant, incarcerated, criminally prosecuted, and/or fined. Additionally, if a respondent is found to be in violation of a temporary or final ERPO, he may be found in contempt of court. Md. Code Ann., Pub. Safety § 5-609.

Personal Service of ERPO

The law requires that a respondent immediately surrender all firearms to a law enforcement official upon personal service of an ERPO. However, some people do not want to surrender their firearms.

In November 2018, a 61-year-old man was killed when he refused to turn over his gun to officers. Two officers went to serve an ERPO on respondent Gary Willis. He answered the door holding his handgun. When he saw the officers, he put the gun down but picked it back up when the officers tried to serve him the order. One of the officers tried to take the gun from Willis, and Willis fired the gun. The second officer shot Willis, and he died at the scene.

A respondent may receive an ERPO by mail if he is served and fails to appear at the hearing. If the respondent receives the ERPO by mail, the respondent must arrange for the immediate surrender of all firearms and ammunition. If a state’s attorney or law enforcement officer has probable cause to believe that a respondent who is subject to an ERPO did not surrender a firearm in his possession as ordered, a court may issue a search warrant for the removal of the firearm. Md. Code Ann., Pub. Safety § 5-607. A respondent may regain access to the firearm once the order expires or is terminated.

Conclusion

Gun violence protective orders are a necessary tool to help prevent tragedies like what occurred at the Capital Gazette. Murder is devastating, and most suicide attempts with a gun result in death. Maryland’s new gun safety law has already proven to be a successful way to obtain firearms from those who pose a risk to themselves or others. This new law is an effective and narrowly tailored way to serve the compelling interest of protecting people from harming themselves or others with firearms.

Farrah Champagne is the coeditor-in-chief of the Criminal Litigation newsletter, a member of the Content Management Committee for the Section of Litigation, an appointed attorney for the district court of Maryland, and a domestic violence attorney at the Women’s Law Center of Maryland.

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