Extreme Risk Protection Orders as Criminal Deflection and Diversion

The extreme risk protection order (ERPO) was conceived initially as a civil restraining order to temporarily suspend access to firearms for individuals behaving dangerously who are not otherwise legally barred from gun possession by a felony conviction or other gun-disqualifying record. In practice, however, ERPOs in many states are being applied in a range of different kinds of cases in conjunction with discretionary criminal law enforcement and prosecution, essentially as a tool of deflection or diversion from the criminal legal system. In this article, we develop a typology of the discretionary uses of ERPOs by police officers, prosecutors, and judges, in cases where an ERPO may be initiated as an alternative to arrest, a diversion from prosecution, a mitigating intervention to soften criminal charging and sentencing (reducing incarcerations), a concurrent legal intervention, or as a complementary tool for robust law enforcement. We illustrate the typology with case vignettes from Indiana, Washington, Virginia, and Florida. Although many ERPO petitions are initiated in response to suicide threats, with or without the presence of public risk, the article invites the question of whether, in some cases, ERPOs can serve effectively as a mechanism of deflection or diversion from the criminal legal system and suggests that future research should carefully examine both the process and outcome of ERPOs used in this way.