Extreme risk protection orders, more commonly referred to as “red flag” laws, have been passed across the country as a means to prevent gun violence — but there are many questions about what these laws involve and how well they work.
Until 2018, just five states had adopted red flag laws. The number of states implementing such laws surged after the 2018 shooting at Marjory Stoneman Douglas High School in Parkland, Florida.
The nonprofit group Everytown for Gun Safety has been a big advocate for these laws. They’re vital to preventing gun violence, said Chelsea Parsons, Everytown’s director of implementation.
“They provide a proactive opportunity to prevent tragedies,” she said. “You don’t have to wait for somebody to commit a crime when there are clear warning signs that this person having access to firearms poses a clear risk.”
Here’s what to know about red flag laws and their impact on gun violence.
What are red flag laws?
These laws allow people to petition for the temporary confiscation of an individual’s firearms if that person is deemed to be a risk to themself or to others.
Petitioners first ask a judge to issue a confiscation order. They present evidence about the risk they believe the individual poses. The judge decides when to issue an order.
“The basic idea behind these laws is that they allow a court to order a firearm to be temporarily taken away from a person who presents an immediate risk to themselves or others,” said Joseph Blocher, co-director of Duke University’s Center for Firearms Law.
Who can petition for a firearm to be removed?
Laws about who can petition vary from state to state. In some states, coworkers, employers, teachers, doctors and family and household members can file petitions for gun removal. But Parsons said in most states it’s still largely law enforcement officers who can petition for the orders, sometimes referred to as ERPOs, for extreme risk protection orders.
“It can be an extremely intimidating process to go to court on your own, file a petition like this during a moment of intense crisis,” Parsons said.
The organization recommends policymakers focus on the needs of petitioners outside of law enforcement to make sure the process is accessible.
Everytown maintains a list of state laws and who is permitted to petition for a firearm to be removed in each state.
Are red flag laws constitutional?
Critics argue red flag laws go against the Second Amendment. While there have been Second Amendment challenges to these laws, they’ve each failed, Blocher said.
In Hope v. State, the Connecticut Appellate Court in 2016 concluded that the state’s firearm removal law does not violate the Second Amendment because “it does not restrict the right of law-abiding, responsible citizens to use arms in defense of their homes.”
There have also been challenges based on due process.
“Normally when you’re deprived of some constitutional interest, like possession of a gun, you are entitled to notice and a hearing and those kinds of things,” said Blocher. “Red flag laws permit these emergency orders to be entered without, necessarily, a full hearing. So I think people want to know, is there enough process here to protect people from being wrongfully deprived of their guns?”
Which states have them?
More than 20 states, along with Washington, D.C., have passed red flag laws as of June 2023. They are:
- California
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Florida
- Hawaii
- Illinois
- Indiana
- Maryland
- Massachusetts
- Michigan (going into effect early in 2024)
- Minnesota (going into effect early in 2024)
- Nevada
- New Jersey
- New Mexico
- New York
- Oregon
- Rhode Island
- Vermont
- Virginia
- Washington
How quickly can an order be issued and what happens next?
There are two types of orders: emergency, or ex parte, orders and final orders, according to the Giffords Law Center, a research organization that advocates for more restrictive gun control measures.
The emergency order can be issued without the gun owner present during the court hearing, Blocher said. The order is usually short term and lasts a week or two. Another hearing then happens with the gun owner present to make their case.
Based on the judge’s ruling at the second hearing, someone’s gun can be removed for a longer duration. The final order lasts for a year in most states. At that point, it can either expire or be renewed. Gun owners can also request hearings to have their firearms returned. How often they can petition the court depends on the state the individual lives in.
What problems have states experienced with implementation and enforcement?
In Colorado, where a red flag law was signed in 2019, nearly half of the state’s counties declared themselves Second Amendment sanctuaries.
The shooter who opened fire with an AR-15-style rifle inside Colorado Springs’ Club Q last year, killing five people and wounding 17 others, had previously been arrested for making threats. The state has a red flag law, but no ERPO was filed. In Colorado, law enforcement, family and household members, certain medical professionals and certain educators can file petitions, according to Everytown.
“The sheriff in El Paso County has previously said he would not use the state’s ERPO law except in ‘exigent’ circumstances,” Allison Anderman, senior counsel and director of local policy at Giffords Law Center, said.
Victims’ families and survivors of the shooting there have said they plan to sue the sheriff’s office for failing to block the shooter from buying guns before the attack. The El Paso County Sheriff’s has not responded to repeated CBS requests for comment on the issue, but the official policy on the issue is still that deputies will not petition for an ERPO “unless exigent circumstances exist, and probable cause can be established pursuant to 16-3-301 C.R.S that a crime is being or has been committed.”
“It is the policy of the Sheriff’s Office to respect and protect the constitutional rights of all those we serve,” according to the department’s policy posted online. “The El Paso County Sheriff’s Office will ensure that the rights of people to be free from unreasonable search and seizures, and to receive due process of law, are safeguarded and maintained.”
Other states face problems because of a lack of coordination and investment, Anderman said.
Why are some states not considering red flag laws?
Some feel red flag laws infringe on the Second Amendment right to bear arms. Republican Sen. Mike Crapo, who represents Idaho, which does not have a red flag law, has said he’s working on ways to address gun violence “without abridging Second Amendment rights.”
Texas Sen. Ted Cruz, also a Republican, has said he supports the ability of states to make their own ERPO laws, but does not support them federally. Texas does not have a red flag law. Cruz has said red flag laws “pushed by Democrats and gun control advocates” are designed to deprive Americans of fundamental rights.
Across the U.S., Blocher has found many are concerned about being wrongfully deprived of their guns without trial.
“I think there’s a misconception that these extreme risk protection orders are a criminal punishment. They’re not,” he said. “They’re like a restraining order and those are civil.”
What about a federal law?
There’s no federal red flag law, but in February, the Justice Department announced it would be sending out more than $230 million to help states and the District of Columbia administer red flag laws and other crisis-intervention programs. Biden also signed legislation in June 2022 making it easier for states to put red flag laws into place. The bill includes incentives for states to pass red flag laws.
Neither Blocher nor Andrew Willinger, executive director of the Duke Center for Firearms Law, believe a federal red flag law is likely.
“The focus is really on not necessarily moving toward a federal law but improving these laws at the state level,” Willinger said.
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