Red Flag Laws Explained: ERPOs, Constitutionality, and Your Rights

To combat gun violence—from mass shootings to suicide-by-gun—states are increasingly turning to extreme risk protection orders (ERPOs), more commonly called “red flag laws.”

Only a handful of states had red flag laws prior to 2018, but they became increasingly popular with state lawmakers (and voters) in the wake of the 2018 school shooting in Parkland, Florida. Critics, however, have pushed back on the laws, warning that red flag laws could be unconstitutional.

What Are Red Flag Laws?

Red flag laws allow judges to temporarily restrict a person's access to guns when there is evidence that the person poses an immediate risk to themselves or others. A petitioner can ask the judge to issue an extreme risk protection order (ERPO) that temporarily prohibits a person from possessing or purchasing a firearm. The order also provides a process for surrendering or removing firearms already in the person's possession.

Twenty-two states and the District of Columbia have red flag laws. Some states use different names for these orders, such as lethal violence protective order, emergency substantial risk order, and gun violence restraining order.

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 under some circumstances, including if you:

• have been convicted of certain crimes (domestic violence misdemeanors as well as most felonies)
• had a domestic violence restraining order issued against you
• use illegal drugs
• have been dishonorably discharged from the military
• are in the U.S. illegally or on a nonimmigrant visa, or
• have been committed to a psychiatric facility or found by a court to be mentally ill.

(18 U.S.C. § 922(g) (2026).)

The problem with these "prohibited persons" 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. 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.

Who Can Request Extreme Risk Protection Orders?

In most states with red flag laws, both law enforcement officers and family or household members may file petitions for ERPOs (sometimes called gun violence or firearms restraining orders). A few states allow other community members to petition for ERPOs, such as:

• employers and coworkers of the respondent (in California)
• certain health care workers (Maryland), and
• certain school personnel (New York and California).

In 2026, California started a pilot project to allow district attorneys in certain counties to file ERPO petitions.

How Long Do Red Flag Orders Last? What Proof Is Needed?

Although the requirements and procedures vary from state to state, people who request ERPOs 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.

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 last as long as five years in California and Delaware. In addition, most states have procedures for renewing or lifting the orders after a hearing.

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.

Defending Against a Red Flag Order

If you’ve been served with a temporary ERPO and you want to challenge it—or you want to get a permanent order lifted—you should consider speaking with an attorney who handles restraining orders. Although you aren't required to have a lawyer at the hearing, an attorney who's experienced in this area can help you gather the evidence you need and represent you at the hearing.

A defense attorney can challenge the petitioner's evidence or motive and try to poke holes in their case. Another defense strategy is presenting evidence that you don't present a risk of harm to yourself or others. This evidence might be proof of no criminal record, no history of violence, or no history of mental health or behavioral issues. Your attorney could call character witnesses to testify as to your peaceful behavior. Procedural errors might also present an opportunity to ask the court to deny the petition.

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 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 a few states have held that their red flag laws don’t violate the Constitution. (For example, see Hope v. State, 133 A.3d 519 (Conn. App. Ct. 2016); Redington v. Indiana, 992 N.E.2d 823 (Ind. Ct. App. 2013); and Davis v. Gilchrist County Sheriff’s Office, 280 So.3d 524 (Fla. Dist. Ct. App. (2019).) However, further court challenges to red flag laws are likely, and it’s not clear how other courts will rule on the issue.

What Are State Anti-Red Flag Laws?

A counter-movement has emerged in states and local jurisdictions determined to protect Second Amendment rights. These legislative efforts, often termed "Anti-Red Flag Laws," operate by prohibiting state and local government entities—including law enforcement—from recognizing, enforcing, or spending resources on existing or potential red flag orders.

This stance represents a direct reaction to the critiques of ERPOs, particularly the arguments that ERPOs violate due process rights and the Second Amendment by allowing for the confiscation of property (firearms) before a full, adversarial hearing takes place. For example, Texas enacted an Anti-Red Flag Law that explicitly bars local and state governmental entities from recognizing or enforcing red flag orders. Other states that have enacted similar laws include Montana, Oklahoma, Tennessee, West Virginia, and Wyoming.

These state-level statutes often go hand in hand with resolutions passed by counties declaring themselves "Second Amendment Sanctuaries," a political movement aimed at resisting gun control measures they deem unconstitutional.

(Mt. Code § 7-1-118; Okla. Stat. tit. 21, §§ 1289.24b, 1289.24c; Tenn. Code § 39-7-1329, Tex. C.C.P. Code ch. 7C; W. Va. Code § 61-7B-6 Wyo. Code §§ 9-14-302, 9-14-303 (2026).)

Which States Have Red Flag Laws?

According to Everytown Research and Policy, as of May 2026, the following states and the District of Columbia have passed red flag laws (or similar gun seizure laws):

This is a changing area of the law. Several states are considering similar bills, while existing regulations face legal challenges. If you have questions about ERPOs in your state, talk to a lawyer.

In 2023, the Johns Hopkins Center for Gun Violence Solutions, in collaboration with the U.S. Department of Justice, established the National Extreme Risk Protection Order Resource Center (the Center). The Center is meant to provide training and technical assistance to states, local governments, law enforcement, and other professionals responsible for implementing ERPOs. Learn more about how ERPO users must work together to keep guns out of the hands of people who are a danger to themselves or others.

Examples of State ERPO Laws

Below are examples of key provisions in state ERPO laws.