Understanding Red Flag Laws: What They Are and How They Work

How Red Flag Laws Work

Red flag laws allow law enforcement officials, family members, and/or household members to petition a court to temporarily remove firearms from individuals who may pose a danger to themselves or others. This process is often referred to as an Extreme Risk Protection Order (ERPO) or Gun Violence Restraining Order (GVRO).

The process typically involves filing a petition with the court outlining the reasons why the individual poses a danger and providing evidence to support those claims. This evidence can include previous threats or acts of violence, mental health concerns, or substance abuse issues.

If the court grants the ERPO or GVRO, law enforcement officials can then remove any firearms from the individual’s possession for a specified period of time, typically ranging from several weeks to several months. During this time, the individual may also be prohibited from purchasing new firearms.

Once the ERPO or GVRO expires, the individual can petition the court to have their firearms returned. In some cases, the court may require the individual to undergo a mental health evaluation or other assessment before returning their firearms.

It’s worth noting that red flag laws are not intended to be a substitute for criminal investigations or mental health treatment. Instead, they are designed to provide a mechanism for concerned individuals to take action when they believe someone may pose a threat to themselves or others.

Reasons for Enacting Red Flag Laws

Red flag laws have been enacted in response to several high-profile mass shootings and incidents of gun violence in the United States. One of the main reasons for enacting these laws is to prevent individuals who may be at risk of harming themselves or others from accessing firearms.

In many cases, individuals who carry out mass shootings or other acts of gun violence have exhibited warning signs in advance. Red flag laws provide a mechanism for concerned family members, friends, or law enforcement officials to take action before a tragedy occurs.

Another reason for enacting red flag laws is to reduce rates of suicide. Firearms are the most common method of suicide in the United States, and research has shown that temporarily removing firearms from individuals at risk of suicide can be an effective way to reduce the likelihood of a suicide attempt.

Finally, red flag laws have been enacted as a way to address concerns around domestic violence. Research has shown that access to firearms increases the risk of intimate partner violence and homicide. By allowing family members or household members to petition the court for an ERPO or GVRO, red flag laws provide a way to remove firearms from individuals who may pose a risk to their partners or family members.

Criticisms of Red Flag Laws

While red flag laws have gained support from many lawmakers, gun violence prevention advocates, and mental health professionals, they have also faced criticism from some groups.

One of the main criticisms of red flag laws is that they infringe on an individual’s Second Amendment rights. Opponents argue that the laws allow firearms to be removed from individuals without due process, and that this violates the rights of gun owners.

Another criticism is that red flag laws may be used to unfairly target certain individuals or groups. For example, some have raised concerns that red flag laws could be used to discriminate against individuals with mental health conditions or those who belong to certain minority groups.

There have also been concerns raised around the potential for false accusations or abuse of the system. Some worry that individuals could use red flag laws to harass or retaliate against others, or that law enforcement officials could abuse the system to target individuals they disagree with.

Finally, some critics argue that red flag laws are not effective in preventing gun violence. They point to cases where individuals have carried out acts of violence despite having their firearms removed, or argue that the laws do not address underlying issues such as mental health or access to firearms.

Current State of Red Flag Laws in the United States

As of March 2023, 20 states and the District of Columbia have enacted some form of red flag law. These states include California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Indiana, Maryland, Massachusetts, Nevada, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin.

The specifics of each state’s red flag law can vary, with some states allowing only law enforcement officials to petition for an ERPO or GVRO, while others allow family members or household members to do so. The length of time that firearms can be removed also varies by state, as does the process for petitioning the court and returning firearms.

Efforts to enact red flag laws at the federal level have also been ongoing. In 2019, the House of Representatives passed the Bipartisan Background Checks Act, which included a provision allowing for the creation of a federal red flag law. However, the bill was not taken up by the Senate.

President Biden has also expressed support for enacting a federal red flag law, and has included funding for such laws in his proposed budget. However, it remains to be seen whether Congress will take action on this issue in the near future.

Conclusion

Red flag laws have become an increasingly popular tool for addressing concerns around gun violence in the United States. These laws provide a mechanism for concerned individuals to take action when they believe someone may pose a danger to themselves or others, and can help prevent tragedies before they occur.

While red flag laws have faced criticism from some groups, they have gained support from many lawmakers, mental health professionals, and gun violence prevention advocates. As of March 2023, 20 states and the District of Columbia have enacted some form of red flag law, and efforts to enact federal legislation are ongoing.

As the debate around gun violence prevention continues, it is likely that red flag laws will continue to be a topic of discussion. While these laws are not a panacea for addressing all of the complex issues surrounding gun violence, they are one tool that can be used to help prevent tragedies and save lives.