Red Flag Laws: Constitutionality and Enforcement of Extreme Risk Protection Orders

Many states have passed laws that allow law enforcement—and often family members—to request court orders to disarm people who pose a risk of gun violence. Look for constitutional challenges ahead.

In an effort to combat gun violence—from mass shootings to suicide-by-gun—states are increasing turning to a new tool usually called “red flag laws.” Under these laws, family members or law enforcement may file a petition for a court order to prohibit an individual (known as the “respondent”) from possessing a firearm, because they believe the respondent poses a serious danger of hurting someone with a gun.

Although a few states had similar laws as far back as 1999, these “extreme risk protection orders” (or ERPOs) have become increasingly popular with state legislators (and voters) in the wake of the 2018 school shooting in Parkland, Florida. But critics are pushing back, warning that red flag laws could be unconstitutional.

What’s the Difference Between Red Flag Laws and Other Gun Prohibitions?

Federal law—and many state laws—already make it a crime to possess a gun if you:

(18 U.S.C. § 922(g) (2019).)

The problem with these laws, according to many anti-gun violence activists, is that they don’t allow preventative measures when people haven’t yet been subject to legal proceedings but are showing signs that they’re likely to use guns to hurt themselves or others. That scenario is very common, according to a 2018 FBI study of active shooters. Modeled on domestic violence restraining orders, ERPOs are meant to prevent gun violence outside of the home (as well as suicide with a gun) by temporarily removing access to firearms by people who’ve been identified as dangerous, regardless of their criminal history.

Which States Have Red Flag Laws?

As of July 2019, the following states passed red flag laws (or similar gun seizure laws):

  • California
  • Colorado
  • Connecticut
  • Delaware
  • District of Columbia
  • Florida
  • Hawaii
  • Illinois
  • Indiana
  • Maryland
  • Massachusetts
  • Nevada
  • New Jersey
  • New York
  • Oregon
  • Rhode Island
  • Vermont
  • Washington

This is a rapidly changing area of the law, and several other states are considering similar bills. (See this map for the status of pending legislation.)

Who Can Request Extreme Risk Protection Orders?

In most states with red flag laws (including California and New Jersey), both law enforcement officers and family or household members may file petitions for ERPOs (sometimes called gun violence or firearms restraining orders). Some states (like Florida and Indiana) limit these petitions to law enforcement only. A few others allow other community members to petition for ERPOs (such as certain health workers in Maryland or school administrators in New York).

How Long Do Firearms Restraining Orders Last, and What Proof Is Needed?

Although the requirements and procedures vary from state to state, people who request EPROs typically must sign an affidavit spelling out specific facts that make them believe the respondents pose an immediate risk of injuring themselves or others with a firearm. When courts decide whether or not to grant the petition, the level of proof required depends on the state and whether it’s a temporary or final order.

Temporary ERPOs

Generally, courts will promptly decide whether to issue an emergency order based on the affidavit and other information that’s provided. If the order is issued “ex parte” (meaning the respondent isn’t present), the court usually will make its decision based on whether there’s reasonable or probable cause to support the petition. The standard of proof may be higher in some states or when a family member filed the petition. Ex parte ERPOs last a short period of time, ranging from one or two days in Maryland to 21 days in California and Oregon.

Final ERPOs

After the respondent has received notice and an opportunity to object at a hearing, the court will decide whether to issue a final ERPO. Because these orders last longer, state laws almost always require a higher standard of proof supporting the petition, like clear and convincing evidence. Most final ERPOs last up to a year, although they may be renewed or lifted after a hearing.

If you’ve been served with a temporary ERPO, you should strongly consider speaking with a criminal defense lawyer as soon as possible. An experienced lawyer can represent you at the hearing and help you gather the evidence you need to challenge the order—or to lift an order that’s already in place.

When May Authorities Confiscate Guns Under Red Flag Laws?

Often, ERPOs simply order respondents to turn over their guns to law enforcement officers or agencies, so enforcement of the orders depends on their cooperation. Some states, such as Maryland and Florida, address this gap by authorizing search warrants to seize any guns that respondents possess, but only if there’s probable cause to believe they didn’t surrender a firearm in their possession. In a few other states, like Illinois and New Jersey, law enforcement may obtain a warrant at the same time as the ERPO—meaning that officers will search for and seize the guns when they serve the orders.

Second Amendment Sanctuaries: Can Local Law Enforcement Refuse to Enforce Red Flag Laws?

Before Colorado passed its red flag law in 2019, sheriffs in many of the state’s rural counties approved so-called “Second Amendment Sanctuary” resolutions, declaring that they wouldn’t enforce the new law. They followed similar moves by county sheriffs in Oregon, Nevada, and other states. It’s not clear yet what state officials will do if sheriffs follow through on their threats, although they have vowed to uphold the rule of law. But even without explicit sanctuary declarations, enforcement of these laws has often been uneven.

Are Red Flag Laws Constitutional?

In addition to the expected Second Amendment concerns, gun rights activists and even some civil rights advocates have argued that red flag laws could violate the constitutional right to due process, because temporary ERPOs generally may be issued—and guns confiscated—without notice to the respondents or a chance to appear at a hearing. Even though most red flag laws have provisions that make it a crime to lie in petitions (or, in some states, to file petitions in order to harass someone), critics also raise concerns about the potential for abuse, particularly when it may be difficult for some respondents to show up at all of the court hearings.

Courts in Connecticut and Indiana have held that the red flag or firearm seizure laws in those states don’t violate the Second Amendment (Hope v. State, 133 A.3d 519 (Conn. App. Ct. 2016); Redington v. Indiana, 992 N.E.2d 823 (Ind. Ct. App. 2013). However, further court challenges to red flag laws are likely, and it’s not clear how other courts will rule on the issue.

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