Legal Information: Delaware

State Gun Laws

View all
Updated: 
November 29, 2021

Who starts the order of relinquishment process?

A mental health service provider usually starts the process for an order of relinquishment. When a mental health service provider identifies a person who presents a danger, s/he will send a written report to law enforcement. Then law enforcement files the petition for an order of relinquishment.1

A mental health service provider does not have to start the relinquishment process every time a person says that s/he might harm himself/herself or others, as we explain below.

When the mental health service provider has the option (discretion) to report to law enforcement:
A mental health service provider (or an institution, agency, or hospital) has the option to notify law enforcement if s/he believes that his/her patient is dangerous to him/herself or others. This can happen even if the patient has not made specific threats against an identifiable victim.1 Under the law, being dangerous to oneself or others means that within the reasonably foreseeable future:

  • due to his/her mental condition, there is a substantial likelihood that the person will:
    • suffer serious bodily harm himself/herself (“dangerous to self”); or
    • cause serious bodily harm to someone else (“dangerous to others”).2

When making this determination, the mental health service provider must take into account the person’s history, recent behavior, and any recent act or threat.2 The mental health service provider is allowed to break confidentiality in order to make a report to law enforcement, regardless of whether or not the conversations between the mental health service provider and the person were supposed to be kept confidential.3

When the mental health service provider must (has a duty to) report to law enforcement:
The mental health service provider has a duty to notify law enforcement and arrange for the patient’s immediate voluntary or involuntary hospitalization if:

  1. the patient makes a specific and immediate threat to do any of the following:
    • a threat to kill or seriously injure a clearly identified victim;
    • a threat to commit a specific violent act; or
    • a threat to destroy property under circumstances that could easily lead to serious personal injury or death; and
  2. the patient has an apparent intent and ability to carry out the threat.4

The mental health service provider must notify law enforcement in a “timely manner” and arrange for hospitalization in an inpatient or outpatient program. If the mental health service provider does not do that, s/he can possibly be held liable if the person follows through with any of the threats.4

1 16 Del. Code § 5403
2 11 Del. Code § 1448C(a)(2), (a)(4)
3 16 Del. Code §§ 5403(a); 5402(c)
4 16 Del. Code § 5402(a), (b)

Who files the petition for an order of relinquishment?

Only law enforcement can file for an order of relinquishment. This usually happens after law enforcement gets a written report from a mental health provider that identifies a person who presents a danger. If the law enforcement agency has a good reason (“probable cause”) to believe that the person is dangerous to him/herself or others, the officer is supposed to do both of the following immediately:

  1. file for an order from the Justice of the Peace Court to force the person to give up (relinquish) any firearms or ammunition that s/he owns, possesses, or controls; and
  2. refer the matter to the Department of Justice for possible additional action.1

The Justice of the Peace Court must immediately hear the officer’s request for an order. The person (respondent) does not have the right to be notified beforehand or to be present in the court to object to the order being issued against him/her.2

1 11 Del. Code § 1448C(b)(1)(a)
2 11 Del. Code § 1448C(c)(1)(a), (c)(1)(c)

How long does an order of relinquishment last?

The initial order, issued by the Justice of the Peace Court, will last for approximately 30 days. During that time, the Department of Justice will decide whether to file another petition in the Superior Court to ask for a longer-term order of relinquishment.1 If the Department of Justice does file the petition, a court date will be held within approximately 15 days. The person (respondent) does have the right to be notified before the Superior Court hearing and to be present in court to object to the order being issued against him/her.2 The law doesn’t specifically state how long an order of relinquishment issued by the Superior Court can last but it is intended to be a longer-term order than the initial 30-day order.

Note: If the Department of Justice does not file a petition with the Superior Court within the timeframe allowed by law (which is usually 30 days unless an extension is given), the Justice of the Peace Court’s order would expire and the law enforcement agency must return the firearms or ammunition to the respondent.3

1 11 Del. Code § 1448C(b)(2), (b)(3)
2 11 Del. Code § 1448C(c)(2)
3 11 Del. Code § 1448C(b)(3)

What terms can be included in an order of relinquishment?

In the initial order that law enforcement requests from the Justice of the Peace Court, where the person (respondent) is not present in court or notified beforehand, the order can do any of the following:

  • force the respondent to hand over (relinquish) to law enforcement any firearms or ammunition that s/he owns, possesses, or controls;
  • prohibit the respondent from living with anyone who owns, possesses, or controls firearms or ammunition; and
  • order a law enforcement agency to immediately carry out a search for any firearms or ammunition owned, possessed, or controlled by the respondent and take (seize) any that are found.1

In the order after a hearing that the Department of Justice requests from the Superior Court, where the respondent is allowed to be present in court and is notified beforehand, the order can do any of the following:

  • allow the respondent to “voluntarily” hand over (relinquish) to a law enforcement agency any firearms or ammunition that s/he owns, possesses, or controls;
  • force the respondent to give up (relinquish) any firearms or ammunition that s/he owns, possesses, or controls to law enforcement;
  • force the respondent to give up (relinquish) any firearms or ammunition that s/he owns, possesses, or controls to someone who will keep them away from the respondent - however, it must be someone who does not live with the respondent;
  • prohibit the respondent from living with anyone who owns, possesses, or controls firearms or ammunition; and
  • order a law enforcement agency to immediately carry out a search for any firearms or ammunition owned, possessed, or controlled by the respondent and take (seize) any that are found.2

​1 11 Del. Code § 1448C(d)(1)
2 11 Del. Code § 1448C(d)(2)

WomensLaw serves and supports all survivors, no matter their sex or gender.