Over the past few years, “Red Flag” laws have been one of the hottest topics in the gun control debate. Ever since 17 people lost their lives during the 2018 tragic school shooting in Parkland, Florida, there’s been a massive push for lawmakers to “do something” and prevent weapons from falling into the hands of the mentally ill. But Red Flag laws are not a new concept, and the issue of how to keep guns out of the hands of mentally unstable individuals is one that gun rights advocates and politicians have been debating long before the media sensationalized it.
If you’ve ever listened to anyone talk about gun control, you’ve probably heard the term “Red Flag law” more times than you can count. But what actually are these laws? What do they accomplish that existing regulations don’t? Most importantly, how do Red Flag laws affect law-abiding people like you?
What Are Red Flag Laws?
Red Flag laws are intended to preemptively disarm people who show warning signs that they could be dangerous to themselves and/or others. The term “Red Flag law” is actually a collective nickname for the various court orders states have in place, including: Extreme Risk Firearm Protection Orders (ERFPO), Risk Protection Orders (RPO), Extreme Risk Protection Orders (ERPO), Gun Violence Restraining Orders (GVRO), and risk warrants. When information emerged that the Parkland shooter had documented mental health issues, legislators across the country began pushing for laws that would take guns away from individuals whose unstable behavior raised a “red flag.”
Many states with Red Flag laws allow a court order to not only remove someone’s current firearms, but to also prevent them from owning, purchasing, possessing, or transporting firearms and ammo for a specified period of time. Generally, there’s an initial temporary firearm restraining order that lasts for several weeks, but this initial order can last even longer in some states. And most jurisdictions allow the extension of these orders if the person is still “deemed a threat.”
How Do Red Flag Laws Work?
The Red Flag law process begins when a law enforcement official, family member, or household member petitions a state court to temporarily remove firearms from someone they believe to be a danger to themselves or others. In some states, the list of eligible petitioners can include school officials, health care workers, or even coworkers!
After a petition is filed, the court will hold a hearing where the concerned party provides evidence to support their claim that the person in question (the “Respondent”) is a threat. States use two main standards of proof in these hearings:
- Preponderance of the evidence, or
- Clear and convincing evidence.
(For context, these standards are both lower standards of proof than “beyond a reasonable doubt,” which is the standard required in a criminal trial.)
If the order is granted, the judge may issue a warrant allowing law enforcement officials to search the Respondent’s property and confiscate weapons, sometimes without any prior notice. At that point, most states require the police to arrange safe storage of the firearm(s) for the duration of the order.
Sometimes, the initial hearing is conducted “ex parte,” meaning the Respondent is not present to defend themselves. If the hearing is ex parte, then the court will schedule another hearing to take place within the following weeks, giving the Respondent the chance to fight the claims. If they’re successful in their defense, the temporary order is dismissed, and the seized firearm(s) will be returned. But if the Respondent is not successful (meaning, the judge rules against them), the order is typically extended up to one year (depending on the state).
What Happens if You Violate a Red Flag Law?
If a “Red Flag” order has been issued against you, then you’re prohibited from possessing firearms and ammo for as long as it’s active—even during the initial temporary period! If you come into possession of any prohibited items, you are in violation of the court order. Most states with Red Flag laws impose criminal penalties for both the unlawful possession of a firearm and the violation of a court order. These penalties differ by state but can include felonies.
For example, under California’s Red Flag law (a Gun Violence Restraining Order), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammo for anywhere between one and five years, with the potential for the order to be renewed and extended indefinitely.
How Do You Fight a Red Flag Law?
Unfortunately, there isn’t much you can do to fight a Red Flag law order. As mentioned earlier, the initial hearing is usually an ex parte hearing, so you’re not able to defend yourself or give your side of the story (because you’re not there). Also, it’s highly unadvised (not to mention dangerous) to try and fight a Red Flag order by not cooperating with the police officers sent to execute it. In fact, a Maryland man tried to fight police officers over a Red Flag order in 2018 and was fatally shot in the process. Beyond the physical danger, interfering with law enforcement’s duties can lead to numerous different criminal charges.
That means the time and place to fight against a Red Flag law order is in court, during the second hearing. This is when the judge will determine whether to extend the order, and you have the chance to present your side of things and fight the petition. Sadly, this does mean you’ll have to give up any weapons initially when police officers come to execute the order. But if your defense is successful, they will be returned!
What States Have Red Flag Laws?
As of 2020, there are 19 states (plus D.C.) that have some sort of Red Flag law in place:
- District of Columbia
- New Jersey
- New Mexico
- New York
- Rhode Island
Several other states have proposed Red Flag law measures of their own but haven’t been successful.
Oklahoma & the Anti-Red Flag Act
Of the states without Red Flag laws, Oklahoma is the only one (at the time of this writing) that has gone so far in the other direction that it has an anti-Red Flag law. The Anti-Red Flag Act (SB 1081) was signed in May 2020 amidst the flurry of Red Flag laws passed by other states in reaction to the school shooting in Parkland. State Sen. Dahm (Senate author of the measure) said the reason he wanted this kind of law was because he’s concerned the federal government may try to offer grants to states or municipalities to enact Red Flag laws, but “these types of laws are a serious abuse of constitutional rights.” Likewise, State Rep. Steagall (House author of the bill) said Red Flag laws “[strip] American citizens of their rights to due process under the law.”
Oklahoma state legislators have also argued that the current Oklahoma Victim Protective Order procedure is effective enough at keeping firearms out of the hands of those deemed dangerous. And Oklahoma courts have the authority to remove a person’s weapons and freedom if there is evidence that person is a threat to the public. The courts also maintain a mental health docket and if someone is suicidal, unable to care for themselves, or is a danger to others, the courts can—and do—intervene.
Maine & the Yellow Flag Law
In 2019, Maine passed a sort of Red Flag law compromise that has come to be known as a “Yellow Flag” law. It’s essentially a Red Flag law, but with an additional requirement that has made it significantly more popular than the standard Red Flag laws and extreme risk protection orders. Before a court order to confiscate weapons may be issued, there must be an assessment by a medical practitioner specifically finding that the person in question poses “a substantial risk in the foreseeable future of serious physical harm” to themselves or others based on recent behaviors. In practice, this requirement makes it considerably more difficult to successfully petition the courts to have someone’s firearm(s) removed.
Is There a Federal Red Flag Law?
As of this writing, there are currently no federal Red Flag laws in place. However, there have been several bills introduced at the federal level over the years that have proposed one. In fact, both Trump and Biden presidential administrations publicly supported Red Flag law policies.
President Biden made a federal Red Flag law attempt part of his early agenda, while former President Trump urged Congress to consider Red Flag policy and formed the Federal Commission on School Safety(which openly endorses Red Flag laws). In an even rarer display of bipartisanship, Senate Judiciary Committee members from both parties have stated their support for the Red Flag law and Extreme Risk Protection Order movement. And when high-profile members of the Republican party (like U.S. Sens. Lindsey Graham, Marco Rubio, and Mitch McConnell) back Red Flag law policy, it makes other party members much more willing to compromise on various versions of these laws. But, despite these efforts and all the attention these laws have attracted, attempts at a federal Red Flag law have been unsuccessful so far.
What Amendments Do Red Flag Laws Violate?
According to rulings and precedents set by various courts (including the U.S. Supreme Court), Red Flag laws don’t inherently violate any constitutional amendments. The courts have recognized that the Second Amendment does not create an absolute right to possess firearms that can’t be restricted under any circumstances. For example, convicted felons and persons determined mentally incompetent are prohibited from possessing firearms. But in that example, individual rights are taken away only after due process of law. Meanwhile, Red Flag laws allow someone’s rights to be restricted without any prior knowledge or opportunity for defense. So, aren’t Red Flag laws a clear violation of our constitutional rights? Not exactly…
While the U.S. Constitution guarantees us “due process” as a protection from the arbitrary denial of life, liberty, or property by the government (in both the Fifth and Fourteenth Amendments), SCOTUS has noted that due process requirements depend upon the circumstances:
“‘[D]ue process’ is a flexible concept—the process required by the Clause with respect to termination of a protected interest will vary depending upon the importance attached to the interest and the particular circumstances under which the deprivation may occur.”
This means—in respect to Red Flag laws and ex parte hearings—the state’s interest in preventing you from harming yourself or others (in theory) is of enough importance to allow flexibility with the due process requirement.
Do Red Flag Laws Work?
Now that you know how Red Flag laws work, you’re probably wondering do they work? If they’re intended to reduce and prevent violence caused by potentially unstable gun owners, do they accomplish that? Are they reducing the number of mass shootings or suicides? Are they saving lives?
First, despite Red Flag laws often being advocated as a way to prevent future mass shootings, they’re mainly used to combat suicide rates. Take Connecticut for example, the first state to enact a Red Flag law. Passed because of the mass shooting incident at the state lottery building (and enforced much more heavily after the Virginia Tech tragedy), the law hasn’t had a huge impact on the state’s homicide rates. However, one study found that from 2007 to 2015 (after the law was enforced more), the rate of gun-related suicides dropped by 13.7%. Similar results were also seen in Indiana, the second state to enact a Red Flag law. Other studies estimate that for every 10-20 gun confiscations, one life was saved.
Then Red Flag laws must work, right? Not quite… Although there was a nice drop in gun-related suicides seen after these states passed a Red Flag law, there was also a spike in non-firearm suicides. Not to mention, mass shootings still happened (like the 2012 tragedy at Sandy Hook Elementary in Connecticut). So, what does this mean? It means the underlying roots of the issue—such as mental health—are not being addressed. States would rather slap a cheap band-aid over the problem than put in effort to actually solve it. Leaving law-abiding, responsible gun owners to pay the price with their self-defense rights and freedoms.
**Suicide is a serious subject and impacts gun owners far beyond the scope of Red Flag laws. Learn more about what gun owners can do here.**
Future of Red Flag Laws
What is the future of Red Flag laws in America? Surprisingly (or maybe not, depending on your view of the game of politics) there’s been more bipartisan support for Red Flag laws than one might think. Former Presidents Obama and George W. Bush both advocated for various “common sense” gun control measures during their term, and the Biden and Trump administrations have both publicly endorsed Red Flag laws specifically. Why? To please their constituents, of course…
A 2019 study showed that 77% of Americans support family-initiated Extreme Risk Protection Orders, and 70% support police-initiated Red Flag laws. Even more surprising, it reported that 67% of gun ownerssupport ERPOs. Why would gun owners be in favor of something that could take away their rights? Well, the specific wording of the questions asked tend to pose risk orders as simply “temporary removals” and only for those with mental health risks. And who doesn’t want to help solve the mental health crisis?
Despite the massive outcries for “something to be done” after another mass shooting incident makes headlines and all the bipartisan support Red Flag laws are getting on Capitol Hill, no federal Red Flag laws have succeeded. Why? While pro-gun legislators have repeatedly stated their willingness to keep guns out of the hands of dangerous individuals by way of Extreme Risk Protection Orders, those against guns have refused to accept anything not paired with mandatory, universal background check legislation. Because their goal isn’t actually to address mental health, it’s to take away your guns and your rights.
Red Flag Laws & You
How can a gun owner protect themselves against Red Flag laws? Although there’s not much you can do to stop the process, you can prepare for it. U.S. LawShield® members can have peace of mind knowing Extreme Risk Protection Order and Red Flag law coverage is included in every base membership. So, if you’re a member and fall victim to an unlawful, unwarranted, or improper Red Flag law action, you don’t have to fight it alone. You’ll have U.S. LawShield by your side at every step of the process to help you fight for your constitutional right to keep and bear arms.
Because, honestly, the best thing (and just about the only thing) you can do to counter a Red Flag law order is to know your local laws and come prepared with a strong and solid defense.
Your Protection Starts Here!
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By your definition people like Gascon, Boudin, and Garland could be considered law enforcement “officials”
If they went to a friendly court and cited Liz Cheney or Nancy Pelosi that all Tump voters are “dangerous”, and the friendly court ruled that there was “a preponderance of the evidence that Trump voters were either a danger to themselves or others. What other than, having a large enough police force would stop liberal DAs police chiefs, or Attorney Generals from going over the voter Rolla and launching confiscation raids on all republican gun owners in Red Flag states?
I am not against a Red Flag Law specifically. But, I don’t understand why “ex parte” doesn’t violate the constitutional right to face your accuser in court. The court should not sign the order to remove property “weapons/guns” until it heard the defense’s side.