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ROCHESTER 鈥� They are called 鈥渞ed flag鈥� laws for short, and last month Minnesota became the latest state to pass a measure aimed at restricting potentially dangerous people from accessing dangerous weapons.

But how do they work? And how will life, particularly those of gun owners, be different under the new law?

There are now 20 states with red flag laws on their books. They can differ from state to state. Minnesota鈥檚 red flag law allows a friend or family member to bypass law enforcement and take their case directly to a judge. Minnesota's law will take effect Jan. 1, 2024.

Earlier laws in Connecticut and other states took a different approach, requiring the public to make reports to prosecutors or the police, who would decide whether to petition the courts. Minnesota sidesteps that requirement.

Previously, a person in Minnesota concerned about a family member鈥檚 access to guns could 鈥渁lways call law enforcement, but law enforcement then has to basically develop a case on their own,鈥� Olmsted County Attorney Mark Ostrem said. 鈥淚t takes out that speed bump and allows that information to be put directly into the petition.鈥�

The petitioners can be family or household members, chief law enforcement officers, mental health professionals, city or county attorneys, or guardians.

The petition must contain certain elements. It must allege the person poses a significant danger of bodily injury to others or at is risk of committing suicide by possessing a fire arm. It also must be accompanied by an affidavit made under oath.

Andrew Link / Post Bulletin

The law lays out two paths for seeking a protective order. Both are to be used only when there is an imminence of danger, but one imagines a need for quicker action. A petitioner in such a situation has to meet a 鈥減robable cause鈥� standard to get an initial 14-day emergency order.

A petitioner can also seek a protection order that can last up to a year, but the bar for meeting that standard rises to 鈥渃lear and convincing鈥� evidence, a step below 鈥渂eyond a reasonable doubt.鈥� And unlike an ex parte hearing, the gun owner is given advance notice and gets a full hearing where both parties are present.

Contributed / Mark Ostrem

Initially, in seeking an emergency risk protection order, the petition can be made 鈥渆x parte,鈥� meaning that notice doesn鈥檛 have to be given to a gun owner of the civil action being taken. An ex parte motion, thus, can be granted without waiting for a response from the gun order. But the order would be short term and would be in effect for 14 days.

Ex parte motions are commonly used in situations where there is a pressing need for urgent relief, such as in domestic abuse cases when a spouse is seeking a non-contact or restraining order.

Ex parte motions imagine a need for quick relief, but there is also the potential for abuse, said Olmsted County Sheriff Kevin Torgerson.

鈥淭hat鈥檚 where the real rub comes in,鈥� Torgerson said. 鈥淲e also want to make sure that these allegations are real. And it鈥檚 not some kind of vendetta against an ex-spouse. Maybe there鈥檚 an argument over kids, and they鈥檙e a hunter, and it鈥檚 hunting season.鈥�

Once an emergency risk protection order is granted, the order is forwarded by the court administrator within 24 hours to the local law enforcement agency with jurisdiction over the gun owner.

Contributed

It is the responsibility of the police or the sheriff鈥檚 department to seize and hold the guns. The gun owner can arrange to have the weapons transferred to a licensed dealer if they prefer, and it can be arranged. Only relics and antiques can be transferred to a family member. The law also requires the court to send the order to the National Instant Criminal Background Check System to keep the person from buying weapons.

Ken Schueler, a Rochester attorney with an extensive background in ex parte motions, said there is no question that some people will seek to abuse a process premised on speed and avoiding irreparable harm.

But there are legal consequences for trying to use the process unfairly. A person can be sued. Minnesota statute also 鈥渄eals with people that assert claims in court in bad faith,鈥� Schuler said.

鈥淚t鈥檚 gonna happen,鈥� Schueler said about abuse of ex parte motions. 鈥淏ut in my experience, if a judge discovers that someone had no good faith basis for what they did, I mean, hell hath no fury. You鈥檙e going to get sanctioned by the court, and you will rue the day that you made that choice.鈥�