According to Addison County (Vermont) Independent News Service, two 14-year-old Middlebury Union Middle School students planned to take part in a school shooting earlier this week. Apparently, another student who overheard the two suspects discussing their plans told their parents and the parents relayed the information to the Middlebury Police Department.

In a statement by Middlebury Police Chief Tom Hanley,

“By early Monday, we had identified two people, one of whom had made a specific threat against a specific person in the school, with a date and time on when this was going to happen,” Hanley said. …

“Once we determined this threat was specific, included specific targets, and was to be executed at a specific time and date, that raised the level (of concern),” Hanley said. “It was more than idle chatter from someone blowing off steam.” …

“We executed what is called an ‘extreme risk order’ (Monday) night at a relative’s house who had all these firearms,” Hanley said. “They were locked up (in the home), but one of these kids said he had access to them and could get them. So we took advantage of that extreme risk order statute that was passed. We needed to separate the person from their ability to do this.”

As a law enforcement officer, I’m all for identification and investigation of potential threats. My own area had a similar situation occur. Except in the case here, the investigating agency only confiscated the guns of the actual suspect.

The issue with this case in Vermont is the language of the law and how the was situation was handled. The Vermont statute is plain as day.

§ 4053. PETITION FOR EXTREME RISK PROTECTION ORDER 
(a) A State’s Attorney or the Office of the Attorney General may file a petition requesting that the court issue an extreme risk protection order prohibiting a person from purchasing, possessing, or receiving a dangerous weapon or having a dangerous weapon within the person’s custody or control. The petitioner shall submit an affidavit in support of the petition.
(b) Except as provided in section 4054 of this title, the court shall grant relief only after notice to the respondent and a hearing. The petitioner shall have the burden of proof by clear and convincing evidence.
(c)(1) A petition filed pursuant to this section shall allege that the respondent poses an extreme risk of causing harm to himself or herself or another person by purchasing, possessing, or receiving a dangerous weapon or by having a dangerous weapon within the respondent’s custody or control.
(2)(A) An extreme risk of harm to others may be shown by establishing that:
(i) the respondent has inflicted or attempted to inflict bodily harm on another; or
(ii) by his or her threats or actions the respondent has placed others in reasonable fear of physical harm to themselves; or
(iii) by his or her actions or inactions the respondent has presented a danger to persons in his or her care.
(B) An extreme risk of harm to himself or herself may be shown by establishing that the respondent has threatened or attempted suicide or serious bodily harm.
(3) The affidavit in support of the petition shall state:
(A) the specific facts supporting the allegations in the petition;
(B) any dangerous weapons the petitioner believes to be in the respondent’s possession, custody, or control; and
(C) whether the petitioner knows of an existing order with respect to the respondent under 15 V.S.A. chapter 21 (abuse prevention orders) or 12 V.S.A. chapter 178 (orders against stalking or sexual assault).
(d) The court shall hold a hearing within 14 days after a petition is filed under this section. Notice of the hearing shall be served pursuant to section 4056 of this title concurrently with the petition and any ex parte order issued under section 4054 of this title.
(e)(1) The court shall grant the petition and issue an extreme risk protection order if it finds by clear and convincing evidence that the respondent poses an extreme risk of causing harm to himself or herself or another person by purchasing, possessing, or receiving a dangerous weapon or by having a dangerous weapon within the respondent’s custody or control.

The news story mentions that one of the suspects was going to obtain the firearms they intended to use in the shooting from a relative. That relative is an innocent third party. But law enforcement obtained an extreme risk protection order against the relative and confiscated that person’s guns.

Middlebury police investigators successfully applied to a court official for an “extreme risk protection order” that allowed them to temporarily remove firearms from the home from which one of the youths was going to access guns to use in the planned shooting.

According to the news report and the law as written, the actions taken by law enforcement were illegal and should have been prevented by the presiding judge.

This case raises serious questions about judicial review in gun violence restraining order cases. Many who push for “red flag” laws claim that the courts will weigh the evidence at hand and the law equally without violating individual rights. The Vermont law clearly states that it is only applicable when “prohibiting a person from purchasing, possessing, or receiving a dangerous weapon or having a dangerous weapon within the person’s custody or control.”

But in this case, the firearms in question were owned by a relative and kept in another home. Having potential access to them by criminal means like theft doesn’t qualify under the law.

In this case, police seized the firearms of an individual who wasn’t part of the plot to commit the shooting. The un-named relative likely had no knowledge of the the teens’ plans.

The seizure of the guns in this case clearly isn’t permitted under Vermont’s law as written. But in practice, judges who consider these petitions will, in all likelihood, grab the guns first and ask questions later. The last thing they want is to deny a request in a case that later results in injury or death. Gun (and property) rights will always be secondary considerations.

What if the suspects in this case had planned to steal the guns for their attack from a retailer like Cabela’s or a local FFL? Would the ERPO have then shut down the FFL and confiscated all of the store’s firearms? Would the judge have approved that request?