By Kevin Sieben, Criminal Defense Attorney, Sieben Edmunds Miller PLLC
In 2023, Minnesota joined a growing number of states by enacting a “Red Flag Law” that took effect in January 2024. Legally termed an Extreme Risk Protection Order (ERPO), this law allows courts to temporarily remove firearms from individuals deemed a danger to themselves or others. The process moves quickly, the consequences are serious, and respondents often have little warning before they are required to act.
At Sieben Edmunds Miller, we recognize that gun ownership is a fundamental right and a meaningful source of safety for many Minnesotans. If the state seeks to restrict those rights based on overstated or misconstrued claims, you need a defense team that understands how these proceedings work and how to challenge them effectively.
What Is an Extreme Risk Protection Order in Minnesota?
Under Minn. Stat. § 624.7178, an Extreme Risk Protection Order allows family members, household members, law enforcement officers, and certain health professionals to petition a court to temporarily limit a person’s access to firearms when they are believed to pose a significant danger to themselves or others.
The law was designed as a short-term crisis intervention tool. In practice, however, ERPO petitions are sometimes filed based on subjective or one-sided accounts, including statements made during domestic disputes, heated arguments, or mental health crises that do not reflect an actual ongoing threat. The civil nature of the proceeding means respondents do not receive many of the automatic protections that apply in criminal court, which makes preparation and legal representation critical from the very beginning.
How the ERPO Process Works in Minnesota
The process begins when a petitioner files a sworn petition presenting evidence that the respondent poses a significant danger of causing injury to themselves or others by possessing firearms. There are two primary order types:
Emergency (Ex Parte) Order: A judge can issue this order without your prior knowledge if the petition suggests immediate danger. If granted, you are required to surrender all firearms and ammunition, typically to law enforcement, and you are prohibited from purchasing or possessing new firearms. This can happen before you have any opportunity to respond or present your side.
Long-Term Order: After the emergency order is issued, a formal hearing must be scheduled, typically within 14 days. At that hearing, the petitioner must meet a higher standard of proof to demonstrate that a significant risk remains. If the court grants a long-term order, it typically remains in effect for up to one year, with options for renewal or early termination.
While ERPO proceedings are civil in nature, compliance is not optional. Failure to surrender firearms as ordered can result in criminal charges. Compliance at the surrender stage is the legally correct first step, and it does not prevent you from contesting the order at the hearing.
Challenging a Firearm Restriction Order: Where the Real Fight Happens
The hearing stage is where the outcome is determined. The petitioner carries the burden of proof at a long-term order hearing, and that burden can be challenged on multiple grounds.
At Sieben Edmunds Miller, our gun rights restoration team approaches ERPO hearings by doing the following:
- Scrutinizing the evidence for inconsistencies, exaggerations, or missing context around allegedly threatening statements or behaviors.
- Investigating the petitioner’s motivations, including whether the petition was filed to gain leverage in a pending divorce, custody dispute, or other civil matter rather than out of genuine safety concerns.
- Presenting affirmative evidence of your stability, character, and history, including testimony from employers, family members, treatment providers, or others who can speak to your actual circumstances.
- Ensuring that law enforcement and the court followed the statutory procedures required under Minnesota’s ERPO framework, because procedural errors can be grounds to challenge the order.
- Advising you throughout the hearing to avoid statements that could be used against you in any future legal proceedings, civil or criminal.
Because these are civil proceedings, you do not have a right to a court-appointed attorney the way you would in a criminal case. That asymmetry matters. Petitioners often arrive with counsel or law enforcement support. Showing up unrepresented puts you at a significant disadvantage at a hearing that can affect your rights for a year or longer.
The Ripple Effects of an ERPO
An Extreme Risk Protection Order does not exist in isolation. While the order itself is civil, violations are criminal offenses. The underlying allegations in the petition can also trigger separate criminal investigations or be used as evidence in other proceedings, including divorce or custody cases. If you hold a professional license, work in law enforcement, the military, or a field requiring firearm possession, even a temporary ERPO can have immediate career consequences.
Our goal at Sieben Edmunds Miller is dismissal of the petition at the hearing stage, return of your property as quickly as possible, and a clean record that does not follow you into future matters. We practice in Dakota, Hennepin, Ramsey, Scott, and surrounding Minnesota counties, and we understand how these gun rights restoration hearings are handled across different jurisdictions.
If you have been served with an ERPO petition or received notice of a firearm seizure, contact us today. Acting quickly gives you the best opportunity to build a defense before the hearing.
Frequently Asked Questions
What is a red flag law in Minnesota?
Minnesota’s red flag law, enacted in 2023 and effective January 2024, allows courts to issue Extreme Risk Protection Orders temporarily removing firearms from individuals found to pose a significant danger to themselves or others. The process is civil, but the consequences, including mandatory surrender of firearms and criminal penalties for violations, are serious and can affect your rights for up to a year.
Who can file an ERPO in Minnesota?
Petitions can be filed by law enforcement officers, city or county attorneys, family or household members, and certain licensed health professionals. The range of eligible petitioners is broader than many people realize, which means an ERPO can be initiated by someone close to you based on a one-sided account of events.
How long does an ERPO last?
An emergency ex parte order remains in effect until the formal hearing, which must occur within 14 days. If the court grants a long-term order at that hearing, it typically lasts up to one year. The order can be renewed by the petitioner or terminated early if circumstances change.
Can you fight a firearm restriction order?
Yes. You have the right to a formal hearing where you can present evidence, call witnesses, and cross-examine the petitioner. The petitioner bears the burden of proof at that hearing. A well-prepared defense can expose weaknesses in the evidence, challenge the petitioner’s credibility, and prevent a long-term order from being granted.
Does an ERPO affect criminal charges?
An ERPO is a civil proceeding, but the two worlds are not separate. Violating the order is a criminal offense. The allegations in the petition can also surface in criminal investigations or be used in other civil matters. Statements made during the ERPO hearing can potentially be used in future proceedings, which is one reason having an attorney present throughout the process is important.
What should I do if I am served with an ERPO?
Comply with the surrender directive. Resistance creates criminal exposure that will complicate your defense. Then contact an attorney immediately. The hearing window is short, typically 14 days, and preparation time matters significantly.
