Delaware has a red flag law. It is called the lethal violence protective order, or LVPO, and it lives at 10 Del. C. ch. 77, sections 7701 through 7709....
Reviewed by Will Luker, Founder of CCW Hub. USCCA Training Counselor, USCCA Certified Instructor, NRA Certified Instructor, Law Enforcement.
Delaware has a red flag law. It is called the lethal violence protective order, or LVPO, and it lives at 10 Del. C. ch. 77, sections 7701 through 7709. Note the title: this is Title 10 (Courts and Judicial Procedure), not Title 11.
An LVPO is a court order "prohibiting and enjoining a person from controlling, owning, purchasing, possessing, having access to, or receiving a firearm or projectile weapon" (10 Del. C. § 7701(3)). It reaches more than guns. "Projectile weapon" is defined at 11 Del. C. § 222(28) to include a bow, a crossbow, an airbow, a weapon designed to discharge an arrow, crossbow bolt, or spear, and an airgun discharging a pellet, slug, or bullet larger than .177 caliber. "Firearm" takes the § 222(13) definition, which includes a frame or receiver and covers weapons "whether operable or inoperable, loaded or unloaded." "Physical injury" means "impairment of physical condition or substantial pain" (§ 222(27)).
Chapter 77 runs two tracks with different filers, different standards of proof, and different courts (10 Del. C. § 7702; § 7703; § 7704).
Section 7701(4) defines "petitioner" as either of two categories:
Standing then splits by track under 10 Del. C. § 7702:
Either way the filing is an affidavit or verified petition, and it must be filed in the county where the respondent resides (§ 7702(c)). Forms and instructions must be available from the Justice of the Peace Court's office and the Superior Court Prothonotary's office and must use "simple, understandable language" (§ 7702(d), (e)).
What the petition must show. Both tracks require the same two allegations: the danger, and the location of a firearm or projectile weapon the respondent is believed to currently own, possess, have access to, or control (§ 7703(a)(1)-(2); § 7704(a)(1)-(2)). The danger wording differs. Section 7703 requires an "immediate and present danger." Section 7704(a)(1) requires only a "danger."
| Element | What the statute says |
|---|---|
| Who may file | Law-enforcement officer (§ 7702(a); § 7703(a)) |
| Hearing timing | Within 24 hours of filing (§ 7703(b)(1)) |
| Burden | Preponderance of the evidence, on the officer (§ 7703(b)(2)) |
| Respondent's notice | None. The respondent "does not have the right to be heard or to notice" (§ 7703(b)(3)) |
| Maximum duration | 45 days (§ 7703(f)) |
On the required finding, the court shall order the respondent to relinquish firearms, projectile weapons, and ammunition to the law-enforcement agency receiving the order (§ 7703(d)). Beyond that mandatory term the court may prohibit the respondent from residing with another person who owns, possesses, or controls such items (§ 7703(d)(1)), and may direct a law-enforcement agency to "immediately search for and seize" them (§ 7703(d)(2)). Paragraph (d)(1) carries an express proviso that nothing in the section impairs the Second Amendment or Article I, § 20 rights of a person not subject to the order.
Service is immediate, by personal service, any form of mail, or any manner the court directs, including publication where other methods failed or were inadequate (§ 7703(e)). The court gives a certified copy to the officer before the petitioner leaves the courthouse.
An emergency order is a bridge, not an endpoint. Once one issues, the Superior Court must hold a full § 7704 hearing within 15 days (§ 7703(f)). Either court may extend the emergency order as needed to effectuate service or to protect the respondent or others, but its duration may not exceed 45 days.
| Element | What the statute says |
|---|---|
| Who may file | Any petitioner, family member or officer (§ 7702(b)) |
| Hearing timing | Within 15 days of filing if a hearing is requested, unless extended for good cause (§ 7704(b)(2)) |
| Burden | Clear and convincing evidence, on the petitioner (§ 7704(b)(4)) |
| Respondent's rights | To be heard; to notice; to present evidence; to cross-examine adverse witnesses (§ 7704(b)(1), (3)) |
| Maximum duration | A fixed period not to exceed 5 years (§ 7704(j)) |
| Appeal | Any party in interest aggrieved may appeal to the Delaware Supreme Court (§ 7704(i)) |
On the required finding the court shall order relinquishment to the law-enforcement agency receiving the order. Section 7704(d) then lists six optional terms. Two of them matter to a respondent trying to avoid a police seizure:
If the court finds the clear and convincing standard is not met, it shall not issue an order and shall vacate any emergency order then in effect (§ 7704(e)). When it does issue one, it must tell the respondent he is entitled to 1 hearing to request termination under § 7705 and hand him the request form (§ 7704(f)). A respondent absent from the hearing is served by the same methods available on the emergency track (§ 7704(g)); otherwise both parties get certified copies before leaving the courthouse (§ 7704(h)).
An ambiguity worth flagging. Section 7704(b)(4) sets the petitioner's burden as proving the respondent "poses a danger," but the issuance provision at § 7704(d) directs the court to issue on a finding of "immediate and present danger." The two subsections state different findings for the same order.
The mandatory term on both tracks is relinquishment "to a law-enforcement agency receiving the Court's order." Chapter 77 sets no number of hours or days for the handover and requires no proof-of-surrender filing. What it supplies instead is the optional immediate search-and-seizure directive (§ 7703(d)(2); § 7704(d)(4), (6)) and, on the nonemergency track only, the voluntary and designee options. Court rules adopted under § 7703(c), § 7704(c), or § 7709 may add procedure the statute leaves open.
Termination (§ 7705(a)). A respondent under a § 7704 order, or under an order renewed under § 7705(b), may submit 1 written request per year during the effective period for a termination hearing. The Superior Court must give notice to all parties and hold a hearing before terminating. The respondent must prove by clear and convincing evidence that he does not pose a danger of causing physical injury to self or others through a firearm or projectile weapon (§ 7705(a)(2)). If he meets that burden the court shall terminate (§ 7705(a)(3)).
Renewal (§ 7705(b)). A petitioner may request renewal at any time within 3 months before the expiration of a § 7704 order or a previously renewed order. Notice to all parties and a hearing are required. The petitioner must prove by clear and convincing evidence that the respondent continues to pose a danger of causing physical injury to self or others in the near future (§ 7705(b)(2)). The court sets the renewed order's duration, up to 1 year (§ 7705(b)(4)). So an original order can run as long as 5 years, but each renewal is capped at 1 year.
Section 7705(b)(3) contains a drafting inconsistency: it directs renewal if the court finds "the respondent has met the burden imposed by paragraph (b)(2)," although (b)(2) places that burden on the petitioner.
Getting property back (§ 7706). If an order is vacated under § 7704(e), terminated under § 7705(a), or expires without renewal, the law-enforcement agency shall return the firearm, projectile weapon, or ammunition taken from the respondent, "unless otherwise prohibited under § 1448 of Title 11." Return is mandatory unless the person is independently prohibited for some other reason.
Under 11 Del. C. § 1448(a)(11), a person subject to an LVPO issued under § 7704 of Title 10 is a prohibited person, "but only for so long as that order remains in effect or is not vacated or otherwise terminated under Chapter 77 of Title 10." Read that paragraph closely: it names § 7704 only. The § 7703 emergency order is not listed there, though it independently bars possession by its own terms under § 7701(3) and § 7703(d).
Two consequences follow from prohibited-person status:
| Conduct | Offense | Grade |
|---|---|---|
| Knowingly violating or failing to obey any provision of an LVPO, where the violation or failure to obey occurred in Delaware (§ 7708(a); 11 Del. C. § 1271A(a)(2)) | Criminal contempt of an LVPO | Class A misdemeanor (§ 1271A(b)) |
| Same, where it caused physical injury or involved the use or threatened use of a deadly weapon or firearm (§ 1271A(c)) | Felony criminal contempt | Class F felony |
| Swearing falsely in a petition, a termination or renewal request, or a hearing (§ 7708(b)) | Perjury, third degree (11 Del. C. § 1221) | Class A misdemeanor |
| Same, where the false statement is all three of: made in a written instrument for which an oath is required by law, made with intent to mislead a public servant in the performance of official functions, and material to the action, proceeding, or matter involved (11 Del. C. § 1222) | Perjury, second degree | Class F felony |
| Same, where the false statement is testimony material to the proceeding (11 Del. C. § 1223) | Perjury, first degree | Class D felony |
A person convicted of criminal contempt of an LVPO must receive a minimum of 15 days incarceration if the contempt caused physical injury, involved the use or threatened use of a deadly weapon or firearm, or the defendant has 2 or more prior § 1271A convictions (§ 1271A(d)). That minimum cannot be suspended, and no probation, parole, furlough, or suspended custody is available during it (§ 1271A(e)). The Superior Court has exclusive jurisdiction over LVPO contempt (§ 1271A(f)).
The false-petition exposure under § 7708(b) reaches petitions filed under § 7702, § 7703, or § 7704, written termination or renewal requests under § 7705, and testimony in any hearing under § 7703, § 7704, or § 7705. "Swears falsely" is defined at 11 Del. C. § 1224 as intentionally making a false statement, or affirming the truth of one previously made, knowing it to be false or not believing it to be true.
Section 7707 does three things. Nothing in the chapter stops a petitioner or officer from removing a weapon under other authority or filing criminal charges where probable cause exists (§ 7707(a)). An officer who in good faith does not seek an LVPO is immune from civil liability (§ 7707(b)). A law-enforcement agency is immune from civil or criminal liability for damage or deterioration of items stored or transported, except where it resulted from recklessness, gross negligence, or intentional misconduct by the agency or a federally licensed firearms dealer (§ 7707(c)).
Section 7709 lets the Supreme Court, Superior Court, Justice of the Peace Court, State Police, State Bureau of Identification, and the Delaware Criminal Justice Information System Board of Managers promulgate rules to carry out the chapter.
| Citation | Subject |
|---|---|
| 10 Del. C. § 7701, § 7702 | Definitions; commencement, county venue, forms |
| 10 Del. C. § 7703 | Emergency orders: 24-hour hearing, preponderance, 45-day cap |
| 10 Del. C. § 7704 | Nonemergency orders: 15-day hearing, clear and convincing, 5-year cap, appeal |
| 10 Del. C. § 7705 | Termination (1 request per year) and renewal (3-month window, 1-year cap) |
| 10 Del. C. § 7706, § 7707, § 7709 | Return of property; limitation on liability; rulemaking |
| 10 Del. C. § 7708 | Sanctions: contempt and perjury |
| 11 Del. C. § 222 | Firearm, projectile weapon, physical injury, law-enforcement officer |
| 11 Del. C. § 1221, § 1222, § 1223, § 1224 | Perjury degrees and "swears falsely" |
| 11 Del. C. § 1271A | Criminal contempt of a lethal violence protective order |
| 11 Del. C. § 1441(m) | Concealed carry license void by operation of law |
| 11 Del. C. § 1448(a)(11), (b), (c) | Prohibited person status from a § 7704 order, and the possession offense |
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