What Are 'Red Flag Laws' & How Do They Work?

What’s the story?

• So-called “red flag laws” are emerging as a prominent proposal in the ongoing debate about gun control in the aftermath of the recent mass shootings at an elementary school in Uvalde, Texas; a grocery store in Buffalo, New York; and a church in Laguna Woods, California.
• Red flag laws have been adopted by several states and legislation to use similar processes at the federal level has been introduced in Congress with some degree of bipartisan support. Here’s a look at what red flag laws are and how they work. 

What are red flag laws and how do they work?

• Red flag laws are gun control policies that allow a defined group of individuals ― usually family members or law enforcement, but sometimes school officials, coworkers, partners, or healthcare professionals ― to petition a court to temporarily remove firearms from a person who has exhibited “red flags” that indicate they may pose a danger to others or themselves. That’s typically demonstrated by showing evidence of acts of violence, credible threats of violence, or suicidal statements. 
• Once the petition is made and a hearing is held, a judge makes a determination about whether to issue the order and remove the firearm from the gun owner in question. If the judge issues the order, refusing to comply with the judge’s order is typically a criminal offense.
• After a set period of time that varies depending on each jurisdiction’s law, the firearm is returned to the gun owner in question unless a subsequent court ruling extends the firearm confiscation following another hearing. 
• The technical language for red flag laws varies between jurisdictions: they’re known as extreme risk protection orders (ERPOs) in five states; gun violence restraining orders (GVROs) in California; risk protection orders in Florida; risk warrants in Connecticut; and several other names. 
• As of May 2022, 19 states plus the District of Columbia have enacted some form of red flag law, including Connecticut (1999), Indiana (2005), California (2014), Washington (2016), and Oregon (2017). Those states were joined in 2018 by Florida, Vermont, Maryland, Rhode Island, New Jersey, Delaware, Massachusetts, Illinois, and the District of Columbia. They were followed by New York in 2019; and by Colorado, Hawaii, Nevada, New Mexico, and Virginia in 2020.
• Red flag laws may not be a remedy for preventing all or most mass shootings, as not all would-be perpetrators exhibit “red flag” behaviors that would prompt a judge to issue an order to temporarily take their firearms if a petition (although at least one study shows that 42% mass shooters do). 
• Some implementations of red flag laws may leave too much time between the petition being filed and the hearing occurring, which could allow a would-be mass shooter to carry out their plot during the intervening period. A lack of public knowledge about applicable red flag laws has also raised concerns about the efficacy of such laws.
• A federal red flag law would also likely be more difficult to implement in some areas simply because not all cities and towns are home to a federal court, which means people petitioning for a red flag order may need to travel a considerable distance to a city that has a federal court in order to file.
• Critics of red flag laws argue that they’re an infringement on the right to self defense and can constitute an unreasonable search and seizure without adequate due process protections. Some also take issue with the nature of the hearings, which may be ex parte in nature, which means the gun owner in question may not be present for the hearing to advocate for their defense and cross-examine their accusers. 
• The state of Oklahoma is the only state that has moved to prohibit red flag laws from being enacted by the state or its political subdivisions, including cities and counties.

— Eric Revell

(Photo Credit: iStock.com / AleksandarGeorgiev)