Gavin Howe
Red flag laws, also known as Extreme Risk Protection Orders (ERPOs) or gun violence restraining orders, are state laws that allow law enforcement, family members, and medical professionals to petition the court to temporarily limit an individual's ability to buy or possess a firearm if they are believed to be a danger to themselves or others. As of May 2023, 21 states and the District of Columbia have enacted some form of red-flag law, with variations in their specifics and degree of utilization. These laws are controversial due to concerns about the denial of due process, as individuals may be presumed guilty and forced to prove their innocence, and the potential for abuse by former partners or family members. Oklahoma is the only state with an anti-red flag law, explicitly prohibiting the enactment of such legislation.
| Characteristics | Values |
|---|---|
| Number of states with red flag laws | 19 or 21 states and the District of Columbia |
| Other names for red flag laws | Extreme Risk Protection Orders (ERPOs), gun-violence restraining orders, risk warrants, risk-based gun removal laws |
| What they allow | The temporary seizure of firearms and other dangerous weapons from a person deemed to be a danger to themselves or others |
| Who can initiate the process | Law enforcement, family members, medical professionals (in some states), employers, co-workers, teachers, roommates, people with a child in common or who have a dating relationship |
| Who can be targeted | Gun owners who have not committed a crime |
| Due process concerns | The person may be presumed guilty until proven innocent and may have their weapons confiscated before a full hearing |
| Effectiveness in preventing gun violence | Rarely used to stop gun violence |
| Effectiveness in preventing suicides | A multistate study found that one suicide was averted for every 17 ERPOs issued |
| State-level variations | Vary on matters such as who can initiate the process, if a warrant is required, what factors are considered for firearm removal, how long firearms are restricted, and what process is used to restore firearm access |
| State-level opposition | Some local sheriffs in rural Colorado counties refused to use the state's risk-based gun violence prevention laws; Oklahoma passed a law in 2020 prohibiting the state or any city, county, or political subdivision from enacting red flag laws |
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What You'll Learn
- Red flag laws are also known as ERPOs, gun violence restraining orders, or risk warrants
- They allow law enforcement, family members, and medical professionals to petition the court
- The court can order the temporary seizure of firearms and other dangerous weapons
- The person may not be aware of the petition or order, and their property may be confiscated
- Critics argue that red flag laws deny a person the right to due process and violate constitutional rights
Red flag laws are also known as ERPOs, gun violence restraining orders, or risk warrants
Red flag laws, also known as ERPOs (Extreme Risk Protection Orders), gun violence restraining orders, or risk warrants, are state laws that allow law enforcement, family members, and even medical professionals (in some states) to petition the court to temporarily restrict an individual's ability to purchase or possess firearms if they are deemed a danger to themselves or others. These laws are designed to address crisis situations where there are concerns about an individual's access to firearms. The specifics of red flag laws vary from state to state, including who can initiate the gun removal process, the requirement of a warrant, the factors considered for firearm removal, and the duration of restrictions.
Under red flag laws, a person who has not committed a crime may have their guns confiscated, which has raised concerns about a potential violation of the constitutional right to due process. In some states, the subject of the order may not be aware of the petition or given an opportunity to defend themselves before their property is confiscated and their gun rights are restricted. This has sparked debates about whether these laws genuinely target violent individuals or simply individuals with guns.
Support for ERPOs varies across demographics. According to an APM survey, about 77% of Americans support family-initiated ERPOs, while 70% support law enforcement-initiated ERPOs. Women are more likely than men to support ERPOs, and higher educational attainment is associated with higher support. A majority of gun owners also support ERPOs, with 60% backing police-initiated ERPOs and 67% supporting family-initiated ones.
The effectiveness of red flag laws in preventing gun violence has been questioned. As of 2022, 19 states and the District of Columbia had enacted some form of red flag law, but these laws were rarely used to stop gun violence. Critics argue that the laws are not adequately enforced, and journalists have been encouraged to investigate when and how these laws are utilized or ignored.
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They allow law enforcement, family members, and medical professionals to petition the court
Red flag laws, also known as Extreme Risk Protection Orders (ERPOs), are state laws that allow law enforcement, family members, and medical professionals to petition the court to temporarily restrict an individual's access to firearms if they are deemed to be a danger to themselves or others. These laws are designed to address crisis situations and prevent gun-related harm or violence.
Under red flag laws, a person who has not committed a crime may have their guns and ammunition confiscated, along with any concealed carry permits. This confiscation is based on statements and actions made by the gun owner, and the belief that they may present a danger. A judge makes the determination to issue the order, and law enforcement can then seize the firearms. The person subject to the order is presumed to be guilty and must go to court to prove their innocence.
The specifics of red flag laws vary from state to state. For example, in Maine, a law was passed that requires a medical professional assessment before police and prosecutors can seek permission from a court to confiscate dangerous weapons. In Maryland, about 60% of petitions for gun removal orders were filed by family or household members in the first three months of the law. Other states, such as California, Colorado, Connecticut, and New York, also allow individuals other than family and law enforcement to petition, including employers, coworkers, dating partners, healthcare professionals, and school personnel.
While red flag laws are controversial due to concerns about the potential for abuse and the violation of due process rights, they have been found to be constitutional in several court challenges. As of May 2023, 21 states and the District of Columbia have enacted some form of red-flag law, recognizing the importance of allowing loved ones and community members to intervene before warning signs of potential gun violence turn into tragedies.
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The court can order the temporary seizure of firearms and other dangerous weapons
Red flag laws, also known as Extreme Risk Protection Orders (ERPOs), are state laws that allow law enforcement, family members, and medical professionals to petition the court to temporarily limit an individual's ability to buy or possess a firearm if they are believed to be a danger to themselves or others. These laws are designed to address crisis situations where there are concerns about an individual's access to firearms, and the specifics of the laws vary from state to state.
In the United States, a red flag law permits a state court to order the temporary seizure of firearms and other dangerous weapons from an individual who is deemed a potential threat. This determination is made by a judge based on the statements and actions of the gun owner in question. If the order is signed, law enforcement can confiscate the firearms and ammunition, and the individual loses their gun licenses and permits. The court can also prohibit the person from purchasing new guns. After a set time, the guns are returned unless another court hearing extends the period of confiscation.
The process of seizing firearms and dangerous weapons typically involves two methods. Firstly, law enforcement officers can seize weapons from individuals they believe to be dangerous without a warrant. In this case, a judge must hold a hearing within 14 to 16 days to determine whether there is probable cause to believe the individual is dangerous, and the state must prove this by "clear and convincing evidence." If the state fails to provide sufficient evidence, the firearms must be returned within five days.
Alternatively, law enforcement officers can file a petition in court before seizing the firearms, seeking a warrant from a judge. After the seizure, the officer must file a "search warrant return" within 48 hours, listing the quantity and type of firearms seized. A hearing then takes place within 14 to 60 days, where the state must prove the individual is dangerous. If the state succeeds, the individual can file a petition after 180 days for another hearing to prove they are no longer a threat.
The controversy surrounding red flag laws arises from concerns about the potential abuse of these petitions by former partners or family members and the presumption of guilt that forces the accused to prove their innocence. Additionally, there is a debate over whether these laws genuinely target violent individuals or simply those who own guns. However, studies have shown that red flag laws are associated with reductions in state firearm suicide rates, averting one suicide for every 17 ERPOs issued.
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The person may not be aware of the petition or order, and their property may be confiscated
Red flag laws, also known as Extreme Risk Protection Orders (ERPOs), gun-violence restraining orders, or risk warrants, are state laws that allow law enforcement, family members, and in some states, medical professionals, to petition the court to temporarily restrict an individual's access to firearms if they are deemed a danger to themselves or others. A judge makes the determination to issue the order, and if signed, law enforcement can confiscate the firearms and ammunition from the individual.
In some states, the person subject to the order may not be aware of the petition or order, and their property may be confiscated without their knowledge. This lack of awareness can result in the inability to defend themselves against the accusation before their property is seized and their right to purchase or possess firearms is revoked. Typically, when law enforcement seizes property or enters an individual's home without their permission, certain judicial steps must be followed, including the right to confront the accuser, review evidence, and request a jury trial. However, in red flag law cases, the government may take unilateral action without the accused's knowledge, undermining their right to due process.
The controversy surrounding red flag laws arises from concerns about the potential abuse or "weaponization" of these laws by former partners or family members. Additionally, the subject of the order is presumed guilty until proven innocent, shifting the burden of proof onto the individual. Critics argue that these laws may not genuinely target violent individuals but rather individuals with guns, potentially violating their constitutional rights.
The specifics of red flag laws vary from state to state. For example, Maine's law, effective from July 1, 2020, requires a medical professional assessment, leading to its nickname as a "yellow flag law." In contrast, Maryland's law, in effect from October 1, 2018, has resulted in the granting of numerous petitions for gun removal orders, with about 60% filed by family or household members in the first three months.
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Critics argue that red flag laws deny a person the right to due process and violate constitutional rights
Critics of red flag laws argue that they deny a person their right to due process and violate their constitutional rights in several ways.
Firstly, red flag laws can result in the confiscation of firearms and other property without the respondent's prior knowledge or opportunity to defend themselves in court. This is because the laws allow for the temporary removal of an individual's access to guns based on evidence that they pose an immediate risk to themselves or others. In some states, the person subject to the order may not be notified of the petition or order until after their property has been confiscated. This raises concerns about the denial of due process, as individuals typically have the right to confront their accuser, review the evidence, and request a jury trial before being convicted of a crime.
Secondly, critics argue that red flag laws violate the Second Amendment of the Bill of Rights, which protects the right to bear arms. By confiscating firearms, red flag laws effectively disarm individuals, even if they have not committed a crime. This is seen as an infringement on the constitutional right to gun ownership.
Thirdly, there are concerns that red flag laws encourage "police-led searches" of social media content, which may result in the abridgment of freedom of speech and press guaranteed under the First Amendment. Disagreeable speech can be labelled as "hate speech" and potentially "violent" speech, leading to the removal of weapons under red flag laws.
Additionally, critics raise concerns about the potential for abuse of red flag laws, especially when respondents may find it challenging to attend all court hearings. While most red flag laws have provisions criminalizing lying in petitions or harassing someone through the filing of petitions, there is still a risk of false accusations or misuse of the laws by former partners or family members.
In conclusion, critics argue that red flag laws have significant implications for due process and constitutional rights, including the right to bear arms, freedom of speech, and the right to a fair judicial process.
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Frequently asked questions
Red flag laws are state laws that allow law enforcement, family members, and medical professionals to petition the court to temporarily limit an individual's ability to buy or possess a firearm if they are believed to be a danger to themselves or others.
Yes, states can refuse to enact red flag laws. As of 2025, 19 states along with the District of Columbia have enacted some form of red-flag law, while 13 states have seen similar legislation stalled or defeated. Oklahoma is the only U.S. state with an anti-red flag law, having passed a law in 2020 that specifically prohibits the enactment of red flag laws within the state.
Supporters of red flag laws argue that they are an effective tool for preventing gun violence and suicides. A multistate study found that one suicide was averted for every 17 ERPOs issued, and that these laws are associated with reductions in state firearm suicide rates.
Opponents of red flag laws argue that they deny a person their constitutional right to due process, as they can have their guns confiscated without having committed a crime. There is also a concern that these laws can be abused or "weaponized" by former partners or family members.
