Gun safety advocate Rachael Joseph knows the lasting toll of gun violence. Twenty years ago, Joseph’s aunt, Shelley Joseph-Kordell, was being stalked, harassed, and threatened for more than a year by her distant cousin, Susan Berkovitz. On September 29, 2003, on the 17th floor of the Hennepin County Government Center in downtown Minneapolis, Berkovitz opened fire outside of a hearing room where harassment cases were being heard, killing Joseph-Kordell and wounding her attorney.
Berkovitz’s stalking and harassment were well-documented leading up to the shooting, Joseph said. A nearby county had banned her from filing court complaints, labeling her a “frivolous litigator.” A court reporter had complained that Berkovitz was harassing her. Still, Berkovitz was able to buy a .38 revolver for just $60 in an unregulated private sale at a gun show.
“The courts failed to protect her,” Joseph, who runs a survivors advocacy group, told The Trace of her aunt.
At the time, and for years after the incident, Minnesota continued to allow private sales to proceed without background checks and offered no means by which law enforcement or family members could seek an emergency order to stop dangerous people from possessing a gun. That changed earlier this year, when the Minnesota Legislature approved bills to expand background checks and implement an Extreme Risk Protection Order law.
The ERPO law, also known as a red flag law, is set to go into effect in January, and it will allow family members, romantic partners, and law enforcement officers to petition a court for an order to seize guns from people deemed to be imminently dangerous.
Joseph believes that her aunt could have used such an order back then.
“After all of the stalking and harassment, Shelley absolutely would’ve utilized a gun violence protection order against Susan if they’d been available,” Joseph said. “Unfortunately, my family doesn’t get to go back.”
Minnesota and Michigan are the latest of 21 states to enact Extreme Risk Protection Order laws. The two Great Lakes states moved on the heels of the 2022 Bipartisan Safer Communities Act, the first significant federal gun reform legislation in nearly 30 years. Though the law didn’t include a national ERPO measure, it did include funding incentives and support for states to enact and implement state-level versions. Minnesota was the first to take Congress up on that offer.
Though it doesn’t go into effect until 2024, state officials, lawmakers who authored the bill, and gun reform advocacy groups are already preparing for its implementation. They hope that setting a strong foundation and getting adequate infrastructure, resources, and support in place will help Minnesotans take full advantage of the law on Day One.
“We’re hoping to save lives. And I think that it will,” said state Rep. Cedrick Frazier, DFL-New Hope. “Everywhere we look in states that have already implemented the laws, their data says that they’ve been able to intervene in situations where people have been showing risky behavior.”
As with many gun violence prevention policies, how the state’s ERPO is implemented will play a big role in determining whether it will be as effective in saving lives as its supporters hope.
There is dearth of gun violence research, and the evidence on ERPOs and their effects on gun deaths is limited. But studies suggest that ERPOs may reduce gun deaths, including in cases of threatened violence and potential mass shootings. And the evidence is stronger that they may reduce firearm suicides; when Indiana implemented its risk order law, it was associated with a 7.5 percent decline in firearm suicides.
But the research that’s available also shows that awareness, training, and enforcement are key. Connecticut’s law was associated with a 1.6 percent decline in the firearm suicide rate after its passage in 1999, but that reduction rose to 14 percent when enforcement of the law was increased in 2007. In California, a few counties drove an increase in using the law in 2018 and 2019, suggesting that local leadership, protocols, and training of law enforcement — who typically file most petitions — played a role.
Minnesota’s ERPO legislation laid out much of the framework for how the process will work, and lawmakers considered implementation concerns on the front end, Frazier said, along with lessons from other states. The Minnesota Department of Public Safety will coordinate the statewide implementation of the law, according to the bill’s text, while individual county courts and local law enforcement will be doing the bulk of the work on the ground.
To file for a risk order, local law enforcement or a family member will petition their local district court. And although mental health professionals cannot file a petition on their own, there is a special provision in the law for mental health professionals to notify law enforcement when someone is a risk to themselves or others so that law enforcement can file a petition.
For family petitioners, the barriers may be twofold: knowing that the option exists, and then going through what could be a complicated legal process for some. For law enforcement, it will also require resources and training to handle court paperwork and filings. And if an order is granted, it will take manpower, protocols, space, and money to enforce those orders, safely retrieve firearms, report prohibitions to the background checks system, and store seized firearms.
“One of the things that came up from some of our local law enforcement jurisdictions was how are we going to do this,” Frazier said. “We don’t have the space to house the guns if we take them into our possession. So we’re gonna need resources for that.”
The Minnesota Legislature set aside funding for that purpose when it passed the ERPO law. Local jurisdictions will be able to request grants from the state for funding to help implement the ERPO laws in their local jurisdictions, Frazier said.
But the state is also getting assistance from the federal government through the Safer Communities Act. Earlier this year, it received a $3.7 million grant from the Department of Justice’s Bureau of Justice Assistance. It’s one of 51 awards that the DOJ has made to support crisis interventions like ERPOs, amounting to more than $238 million in the 2023 fiscal year. To help get the infrastructure in place in Minnesota, much of that funding will likely go to local law enforcement and courts.
Before the grant money can be put to use, though, the state is setting up a requisite advisory board to make decisions about where it should go. In addition to basic infrastructure to run the process, it could also be used to support a public awareness campaign and compile required reports on how often the law is used to petition courts, and how many of those petitions result in court orders.
“One thing we also learned from some of the other states was that, even when the law was in place, not many folks were aware that it existed and so not many folks were actually using the tool,” Frazier said.
Across the U.S., the degree to which ERPO laws are used varies by state and even by county. While some states like Florida, which passed an ERPO law after the 2018 Parkland shooting, have seen thousands of petitions filed and orders issued, other states see their laws used relatively infrequently, even when taking into account population.
“It seems to me like there’s just very often this lack of understanding from the community that ERPOs exist, that this tool is available when a crisis moment is occurring,” said Maggiy Emery, the executive director of Protect Minnesota, a gun violence prevention organization.
Protect Minnesota is taking on part of the tasks of public education and awareness, preparing for a campaign surrounding the law that it expects will launch in partnership with the state and other advocacy groups. “This is going to have to look like a partnership between the state and between organizations like ours, who are really leading the charge on this gun violence prevention work,” Emery said.
While Minnesota has a lower gun death rate relative to other states, more than 600 Minnesotans still die every year by firearms. In 2021, suicides were 68 percent of the state’s gun deaths, and most occurred in Greater Minnesota, the rural parts beyond the Twin Cities metro area. “When we were talking about extreme risk protection orders and what that could look like in Minnesota, there’s a lot of gun violence that they can address, but for us, a lot of it was largely about firearm suicides and reducing firearm suicides here in our state,” Emery said.
However, many of the lawmakers from the rural districts with the highest suicide rates opposed the ERPO law, signaling that local officials there may hesitate to use the law in the places where it could be most beneficial. MinnPost previously reported that some county sheriffs opposed the red flag law and could be more reluctant to file petitions to remove guns, leaving it up to family members to be the primary petitioners. But an organization representing sheriffs across the state expects they will comply when it comes to carrying out court orders.
“The MSA stance remains consistent,” James Stuart, the executive director of the Minnesota Sheriffs’ Association, told The Trace. “The sheriffs held some hesitation initially based on certain laws that had been enacted in other states. Specifically, they wanted to ensure that no one’s rights were overlooked, and that due process was included as part of the proceeding.”
Now that Minnesota is rolling out the law, Stuart said, the sheriffs are working with other stakeholders to develop outreach, training, and implementation processes, adding: “I am confident that the sheriffs will carry out the laws and that they all want safer communities.”
Varying levels of usage within a state are not an uncommon occurrence. In Colorado, for example, some counties see high uptake while others don’t. Denver County has seen nearly six times the number of ERPO orders issued compared to El Paso County, which has roughly the same population — the result of local officials who declared themselves a “Second Amendment sanctuary” and resisted using the law. Minnesota has many of its own Second Amendment sanctuary counties, largely in Greater Minnesota.
“There are these cultural differences between bigger cities that are going to be eager and willing to implement this where it can save lives, and maybe Greater Minnesota rural places, where the way that they think about guns is culturally different,” Emery said.
Frazier said that when they wrote the bill, lawmakers were already considering the possibility that some parts of the state may be more hesitant to participate than others. That’s part of why the state is developing uniform filing requirements and processes even though local courts will be handling those processes. The Legislature also directed local courts to provide “simplified forms and clerical assistance” to help with the writing and filing of ERPO petitions.
And it provided some leeway for petitioners to file in a different county in some circumstances, such as when the petitioner lives in a different county than the respondent.
While the ERPOs may have the biggest impact on suicides, Joseph said she doesn’t want victims and survivors of stalking, and domestic and intimate-partner violence, to be left out of the conversation, no matter what part of the state they’re from.
“Bureaucracy and system delays with implementation could absolutely cost people their lives in abusive situations,” Joseph said.
For Emery, there’s no time to wait to implement the law. The process should be accessible on Day One, when courts reopen in the new year.
“If we can save any amount of lives with ERPO next year, I don’t think we have a choice,” she said. “I think that we need to enact this with the urgency that the epidemic calls for.”
Editor’s note: This story has been updated to correct the spelling of Shelley Joseph-Kordell’s name.