Understanding Red Flag Laws And Your Rights

Red flag laws, also known as risk-based gun removal laws, are designed to prevent individuals who show signs of being a threat to themselves or others from purchasing or possessing firearms. These laws allow loved ones or law enforcement to intervene by petitioning a court for an order to temporarily confiscate weapons from individuals deemed to be a danger. The specifics of red flag laws vary from state to state, including who can initiate the gun removal process, the factors the court considers, and the process for restoring firearm access. While some states have enacted red flag laws, there is currently no federal red flag law in place. This paragraph introduces the topic of red flag laws and their purpose, highlighting the key aspects and variations in their implementation across different states in the United States.

Who can initiate the gun removal process?

The specifics of red flag laws vary from state to state, and so does the process of who can initiate the gun removal process. In some states, only law enforcement officials can petition the court for an order for the removal of guns from an individual. For example, in California, law enforcement officials can petition the court for an order for the removal of guns from an individual for up to twelve months. On the other hand, some states, like New York, empower teachers, school administrators, and mental health professionals to help prevent shootings by pursuing court intervention. In New York, Governor Kathy Hochul signed a legislative package to strengthen the state's gun laws and protect its citizens from gun violence.

In some states, family members can also petition state courts to remove weapons from persons deemed a threat. For example, in California, the California State Legislature enacted a red flag law allowing family members to petition state courts to remove weapons from persons deemed a threat after Elliot Rodger committed a mass shooting in Isla Vista, California.

In Maine, the red flag law differs from other states in that it requires a medical professional assessment. This limitation is why the law in Maine is often called a "yellow flag law".

In some states, like Florida, the rate of usage of red flag laws is higher than in other states. This could be due to the fact that Florida has courts that allow petitioners to seek an order after business hours and on weekends.

Is a warrant required?

The requirement of a warrant for gun removal under red flag laws varies across different states. For instance, Indiana's red flag law allows police to confiscate firearms without a warrant or a judge's signature if a person is threatening to harm themselves or others. However, officers must provide a written statement to the court explaining why the person is considered dangerous, and judges have 14 days to review the seizure.

In Connecticut, a 2016 study published in the journal Law and Contemporary Problems analysed 762 gun removals under the state's "risk warrant" law from October 1999 to June 2013. The study concluded that there was "one averted suicide for every ten to eleven gun seizure cases."

In California, the state legislature enacted a red flag law that allows family members to petition state courts to remove weapons from individuals deemed a threat. This law also permits law enforcement officials to petition the court for an order to remove guns from an individual for up to twelve months.

In New York, Governor Kathy Hochul has strengthened the state's red flag laws, which now include the Extreme Risk Protection Order (ERPO). An ERPO is a court order issued when a person may be dangerous to themselves or others, prohibiting them from purchasing or possessing firearms and requiring them to surrender any guns they already own. While New York's red flag law initially required an index number fee for ERPO applications, this is no longer the case.

In Maryland, family or household members filed about 60% of the petitions for gun removal orders in the first three months after the law took effect in October 2018. During this period, one petition was filed by a healthcare worker, and the rest were filed by police.

In summary, the requirement of a warrant under red flag laws depends on the specific state legislation. While some states like Indiana allow warrantless seizures, others may require a court order or a written statement from law enforcement detailing the reasons for the seizure.

What factors must the court consider?

Red flag laws, also known as Extreme Risk Protection Orders (ERPOs), are state laws that allow certain individuals to petition the court to temporarily restrict an individual's ability to buy or possess a firearm if they are believed to be a danger to themselves or others. The factors that courts consider when reviewing red flag law petitions vary from state to state, but there are some common elements.

Firstly, the court will consider the specific facts and evidence presented in the petition. This can include information about the individual's behaviour, such as threats of violence, use of physical force, prior convictions, substance abuse, or other concerning factors. The court will assess whether there is sufficient evidence to indicate that the individual poses a credible threat.

Secondly, the court will also take into account the potential risk to public safety. This involves evaluating the likelihood of the individual causing harm to themselves or others if their access to firearms is not restricted. In some states, like Maine, there is an additional requirement for an assessment by a medical practitioner who must find that the person poses "a substantial risk in the foreseeable future of serious physical harm" based on their recent behaviours.

Another factor that courts may consider is the individual's right to due process. This includes their Second Amendment right to bear arms and their right to confront their accuser, review evidence, and have a jury trial. Courts have generally upheld red flag laws as constitutional, finding that they do not violate the Second Amendment as they only restrict the rights of individuals who are deemed to pose a risk.

Additionally, the availability of resources and the specific procedures outlined by state laws can influence the court's decision-making process. For example, some states allow petitions to be filed after business hours and on weekends, making it more likely for a petition to be granted.

It is important to note that the application and consideration of red flag laws can vary significantly across different states, and the above factors may not be exhaustive. Each state's laws and court procedures will determine the specific factors considered when reviewing red flag law petitions.

What must be proven in court?

The specifics of Red Flag Laws vary from state to state. However, there are some commonalities in what must be proven in court for a judge to grant an Extreme Risk Protection Order (ERPO).

Firstly, it must be proven that the respondent poses a serious and immediate risk of harm to themselves or others. This risk must be "substantial" and based on recent behaviours, as determined by a medical practitioner. The petitioner must provide evidence to support their claim, which can include statements and actions made by the gun owner in question. In some states, there must be evidence of a recent threat of violence or act of violence, or unlawful and reckless use, display, or brandishing of a firearm.

Secondly, it must be proven that the respondent has access to firearms or other weapons. This is where the Red Flag Law differs from other gun laws, as it is not enough to simply prove that an individual is a danger to themselves or others. The presence of firearms or other weapons is what authorizes the temporary seizure of these items.

Once an ERPO has been granted, the police will seize any firearms and ammunition from the respondent. This order typically lasts for one year but can be renewed if the respondent continues to pose a significant danger. The respondent can ask the court to remove the order once a year if they believe there is no longer any convincing evidence.

How long are firearms restricted?

The duration of firearm restrictions under red flag laws varies across different states in the US. For instance, in California, the law permits law enforcement officials to petition the court for an order to confiscate firearms from an individual for up to twelve months. On the other hand, in DC, the police can seize firearms and ammunition for up to one year, with the possibility of renewal.

In general, red flag laws are designed to address crisis situations where there is an immediate concern about an individual's access to firearms. These laws allow for the temporary removal of firearms and other dangerous weapons from individuals deemed to be a threat to themselves or others. The specifics of the laws, including the duration of firearm restrictions, vary across states.

As of 2025, 19 states and the District of Columbia have enacted some form of red flag law, with the support of a majority of Americans. However, the laws are rarely enforced to stop gun violence. The process to restore an individual's firearm access typically involves court intervention, where the individual can present their evidence.

The duration of firearm restrictions under red flag laws can be extended or shortened depending on various factors, such as the individual's mental health evaluation and the severity of the threats made. The laws aim to balance the need for public safety with the individual's right to bear arms, as protected by the Second Amendment.

Frequently asked questions