Oregon's 'red flag law' underused, state auditors find

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SALEM, Ore. — Oregon is one of nearly two dozen states that can require someone to surrender their weapons if a court decides that they're at risk of hurting someone, commonly called a "red flag law" or Extreme Risk Protection Order. But according to a recent report from state auditors, not enough people are aware that this option exists.

Under Oregon's ERPO system, first passed by lawmakers in 2017, family members or law enforcement officers can petition a civil court for a special protective order if they believe that someone has access to deadly weapons and is at risk of hurting themselves or others. If the order is approved by a judge, the person must then turn over their weapons to law enforcement, a licensed gun dealer, family member or a friend within 24 hours.

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On Wednesday, the Oregon Audits Division released a new advisory report that examines how ERPOs are being used in the state. While not an official state audit, the report went through a similar quality assurance process. It found that the state is likely not using this tool to its full potential.

“Gun violence is a serious and growing risk not only in Oregon, but nationwide,” said Audits Director Kip Memmott. “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.”

Over the last four years, Oregon's rate of firearm-related suicide has been 42% higher than the national rate, the auditors noted. The state's overall rate of death from firearms, on the other hand, is roughly equal to the national rate.

ERPOs are used very rarely in Oregon, according to the auditors. Of all the protective orders requested between 2018 and 2021, less than 1% were ERPOs — 485 requests in all. Protective orders for family abuse made up the majority of requests, almost 59%, followed by stalking protective orders at 21%.

There is a higher bar for successfully getting an ERPO granted than other types of protective orders. While the others require a "preponderance of evidence," ERPOs require "clear and convincing evidence" of impending harm. The auditors noted that 78% of ERPO requests were actually approved by a judge. Of those approvals, 76% originated with law enforcement.

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During the four-year period examined by auditors, 29 of Oregon's 36 counties saw at least one ERPO filed, but numbers by county varied widely. In all, 15 counties had 10 or more ERPOs filed. Washington County had the most at 94, followed by 78 in Deschutes County.

But on a per capita basis, ERPOs were actually most common in comparatively rural counties. With eight requested in Lake County, it had a rate of 99.1 per 100,000 residents. Josephine County, with 45 total ERPOs, had a rate of 52. Lane County had the lowest rate of use per capita, at just 3.9.

"Auditors pointed out multiple barriers that may discourage people from seeking an ERPO," the audits division added. "For one thing, the process to petition can be immensely time-consuming and may require petitioners to attend multiple court hearings. For another, petitioners may be unfamiliar with court forms and procedures. Language barriers could come into play — by statute, the form to request an ERPO must be filled out in English and court proceedings are conducted entirely in English."

Above all, there's simply a lack of awareness that ERPOs are an option, the auditors noted. While that applies to the public as a whole, the audits division said that law enforcement officers need better training and education on the process as well.

"It’s like we worked so hard to get the law passed and we just think, oh, we’ve done this great thing and then we forget that there’s still work we have to do on the backend to let people know about it. Educate them on how they can utilize it. And I think that that’s exactly what we are seeing here," said Ellen Klem, Director of Consumer Outreach & Education for the Office of the Attorney General. The AG released a fact sheet — referenced in the new report — back when the law was passed.

The Oregon Audits Division quickly ran into limitations with how much they could examine the use of ERPOs in Oregon, noting that there needs to be more robust data gathered on the topic. Currently there are no attempts to review or evaluate the law's effectiveness at reducing gun violence.

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Red flag laws typically get more attention in the U.S. after mass shootings, when questions arise about how the perpetrator had access to weapons and whether there were warning signs or chances to intervene. However, it's particularly difficult to quantify how effective ERPOs have been in preventing mass shootings.

Despite all this, the audits division noted that Oregon's ERPO laws generally align with best practices in the 21 other states, including the District of Columbia, where similar laws are in effect.