A red flag law is the common name given to Extreme Risk Protection Orders, Emergency Substantial Risk Orders, Firearm Restraining Orders, and a number of other official names that vary from state to state.
Essentially, red flag laws allow a civil court—a judge—to temporarily remove firearms from a person who is considered a threat to themselves or others. Other items deemed dangerous weapons can also be seized depending on the state. Red flag laws were enacted to protect people as a suicide-prevention tool, a method to stop domestic violence, or averting a potential mass shooting.
I think we—gun owners and non-gun owners—are all in favor of laws that protect our family, friends, and communities, but when the government, in this case, the state government, seizes our property, is that a violation of the 4th Amendment against unlawful search and seizure? What about the 2nd Amendment and the right to bear arms?
What States Have Red Flag Laws?
The following states have enacted Red Flag Laws:
- California
- Colorado
- Connecticut
- Delaware
- Florida
- Hawaii
- Illinois
- Indiana
- Maine
- Maryland
- Massachusetts
- Michigan
- Minnesota
- Nevada
- New Jersey
- New Mexico
- New York
- Oregon
- Rhode Island
- Vermont
- Virginia
- Washington
- District of Columbia
Other states are considering adopting a red flag law.
The first state to enact a red flag law was Connecticut in 1999. A shooting at the Connecticut Lottery headquarters in 1998, where an employee shot and killed four of his supervisors and then killed himself, was the act that caused Connecticut to pass the law.
In 2022, under the Biden administration, the federal government created the Bipartisan Safer Communities Act to encourage states to adopt red flag laws. The act offers states grants if the state enacts and enforces red flag laws.
How Red Flag Laws Work
Each state has its own procedures on starting the process to seize a gun owner’s firearms, but generally operate the same way. Law Enforcement and/or family members petition a judge for an emergency order. That order would temporarily remove firearms from a person found to be at risk of harming themselves or someone else.
In all 21 states where red flag laws exist, law enforcement is allowed to petition a judge for an order. In New Mexico and Florida, law enforcement is the only one eligible to petition a judge. In states like California, Colorado, and Hawaii, family members, teachers, and medical professionals can also petition a judge.
Here’s how the scenario plays out. Someone is threatening to harm themselves or another person or people. Law enforcement, family members, teachers and medical professionals know or believe that person has access to a firearm, so they submit a petition to a judge.
The judge has the final word on whether the situation warrants an immediate order and evaluates it based on the specificity of the person’s threats and that person’s access to firearms. If the judge deems the risk of violence high, the judge can issue an emergency ex parte order, which goes into effect immediately without the person being present or notified in advance. An ex parte decision is one decided by a judge without requiring all of the parties to the dispute to be present.
The burden of proof on which the judge bases his or her decision is remarkably low for the initial seizure hearing, especially when you consider that no crime has been committed.
The length of time the guns are kept away from their owner varies by state and situation, but typically, a set time is established, and then the guns are returned unless other court hearings extend the period of confiscation.
The person named on the order can request their guns back and fight the order in court, at the person’s own expense, where they can present their side to the story. When guns are returned, law enforcement may conduct a background check before returning the firearms.
Do Red Flag Laws Work?
There is no central database that collects information on the effectiveness of red flag laws, but states like Connecticut credit the laws with a decrease in suicide. California touts that the law prevented mass shootings targeting schools.
On the other side of the coin, 42 states have declared themselves Second Amendment sanctuaries where law enforcement will not enforce gun policies that it believes violate the 2nd Amendment.
Do Red Flag Laws Violate the 2nd and 4th Amendment?
In recent years, red flag laws have been challenged and failed, with courts ruling that they are constitutional.
We should all understand how red flag laws work in the state we live.
Every law has loopholes that could potentially weaponize it against an unsuspecting person, even if the law was enacted in good faith.
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