Red flag law

In the United States, a **red flag law** is a gun control law that permits police or family members to petition a state court to order the temporary removal of firearms from a person who may present a danger to others or themselves. A judge makes the determination to issue the order based on statements and actions made by the gun owner in question. Refusal to comply with a court order by a judge is punishable as a felony criminal offense (including contempt of court, obstruction of justice and others) ranging from 5 to 50 years in prison. After a set time, the guns are returned to the person from whom they were seized unless another court hearing extends the period of confiscation.

Such orders are known by various names, including "Extreme Risk Protection Orders" (ERPO) (in Oregon, Washington, Maryland, and Vermont); "Risk Protection Orders" (in Florida); "Gun Violence Restraining Orders" (in California); "risk warrants" (in Connecticut); and "Proceedings for the Seizure and Retention of a Firearm" (in Indiana). As of August 2019, 17 states and the District of Columbia have passed some form of red-flag law. The specifics of the laws, and the degree to which they are enforced, vary from state to state.

## History and adoption

In 1999, Connecticut was the first to enact a red flag law, following a rampage shooting at the Connecticut Lottery. It was followed by Indiana (2005), California (2014), Washington (2016), and Oregon (2017). California was the first state to pass a red flag law allowing family members to petition courts to take weapons from persons deemed a threat, after Elliot Rodger committed a mass shooting in Isla Vista, California; the California law also permits law enforcement officials to petition for an order for the removal of guns from an individual for up to twelve months.

Before 2018, only the above-mentioned five states had some version of red flag laws. After the Stoneman Douglas High School shooting in Parkland, Florida, in 2018, that number more than doubled, as more states enacted such laws: Florida, Vermont, Maryland, Rhode Island, New Jersey, Delaware, Massachusetts, Illinois, and the District of Columbia. In 2019, New York enacted a red-flag law as part of a broader package of gun-control legislation that overwhelmingly passed the state legislature. In addition to allowing police and family members to petition for entry of an extreme risk protection order, the law also allows teachers and school administrations to file such petitions, making New York the first state to include such a provision. Three other states have also enacted red-flag laws so far in 2019: Colorado, Nevada, and Hawaii.

### Proposed or pending legislation

Other state legislatures considered similar legislation. In 2019, red-flag bills were being considered in Ohio, Pennsylvania, Michigan, North Carolina, Nebraska, and Kentucky.

The Virginia General Assembly voted down red-flag legislation in its January 2019 session. After the Virginia Beach shooting, Governor Ralph Northam, a Democrat, called the Republican-controlled General Assembly into special session to consider gun-control legislation. The legislature did not vote on any gun legislation, but opted to refer the legislation to the State Crime Commission for study. The bill is scheduled to be taken up again in another special session after the November elections. In response to the shootings in El Paso and Dayton, Republican Caucus Chair Del. Tim Hugo, the only Republican state delegate representing Northern Virginia, announced he was signing on to support Del. Jason Miyares's red flag bill.

A red-flag bill previously died in the Arizona Legislature, but in 2019, Governor Doug Ducey renewed pressure on legislative Republicans to pass the law in the wake of the shootings in El Paso, Texas and Dayton, Ohio. A red-flag bill has been introduced in the Tennessee Legislature, but in 2019 the Republican-controlled has legislature declined to take up the bill, and Governor Bill Lee has not committed to support it.

Since 2018, red flag bills introduced by North Carolina Democratic legislators have been defeated or stalled in committee the Republican-controlled state House. North Carolina's governor, Democrat Roy Cooper, supports the legislation. After the Dayton shooting, Ohio's Republican governor, Mike DeWine, announced that he wanted Ohio's legislature to pass a red flag law.

## Provisions

The specific provisions of red-flag laws differ from state-to-state, on issues such as who may petition for a risk protection order. For example, in Indiana, only law enforcement may petition for an order. In contrast, in Oregon, any person living with the person of concern may file a petition. The California Legislature passed a measure in 2016 to allow high school and college employees, co-workers and mental health professionals to file such petitions, but this legislation was vetoed by Governor Jerry Brown. Similar legislation cleared the California Senate in September 2019.

## Effects

A 2016 study published in the journal *Law and Contemporary Problems* analyzed data from the 762 gun removals under Connecticut's "risk warrant" law from October 1999 through June 2013 and determined that there was "one averted suicide for every ten to eleven gun seizure cases." The researchers concluded that "enacting and implementing laws like Connecticut’s civil risk warrant statute in other states could significantly mitigate the risk posed by that small proportion of legal gun owners who, at times, may pose a significant danger to themselves or others."

A 2018 study published in the journal *Psychiatric Services* utilized CDC data from all suicides in all 50 states from 1981-2015 to "examine the effects of Connecticut and Indiana's risk-based firearm seizure law on state-level firearm suicide rates." The researchers concluded that "Indiana’s firearm seizure law was associated with a 7.5% reduction in firearm suicides in the ten years following its enactment, an effect specific to suicides with firearms and larger than that seen in any comparison state by chance alone. Enactment of Connecticut's law was associated with a 1.6% reduction in firearm suicides immediately after its passage and a 13.7% reduction in firearm suicides in the post–Virginia Tech period, when enforcement of the law substantially increased." The study also found that "Whereas Indiana demonstrated an aggregate decrease in suicides, Connecticut's estimated reduction in firearm suicides was offset by increased nonfirearm suicides."

In light of the fact that 62% of U.S. gun deaths from 2008 to 2017 were suicides, the potential for red flag laws to prevent suicide has been cited as a benefit that may be more valuable than their ability to prevent mass shootings.

## Usage

In the first four months after Florida's risk protection law took effect, a total of 467 risk protection cases were filed in Florida. Slightly over one-fourth of the cases involved holders of concealed-carry firearm licenses; when an order is granted against a license-holder, the license-holder's license is temporarily suspended.

In California in 2016 and 2017, 189 petitions for gun violence restraining orders were granted. Of these, 12 petitions were filed by family members, while the rest were filed by law enforcement.

In Maryland, the courts reviewed 302 petitions for a gun removal order in the first three months of the state's law; the petition was granted in 148 cases (about half the time). About 60% of petitions were filed by family or household members, one petition was filed by a healthcare worker, and the rest were filed by police. In November 2018, a Maryland man was killed by Anne Arundel County police officers serving a removal order after refusing to surrender his firearms; police said that there was a struggle over the gun and a shot was fired before officers fatally shot the man.

In Marion County, Indiana (which contains Indianapolis, and the most of the uses of Indiana's ERPO law), a 2015 study published in the journal *Behavioral Sciences & the Law* found that seizure petitions were filed in court 404 times between 2006 and 2013, from persons identified at being a risk of suicide (68%), violence (21%), or psychosis (16%). The study found that 28% of firearm-seizure cases involved a domestic dispute and 26% involved intoxication. The study found that "The seized firearms were retained by the court at the initial hearing in 63% of cases; this retention was closely linked to the defendant's failure to appear at the hearing. The court dismissed 29% of cases at the initial hearing, closely linked to the defendant's presence at the hearing. In subsequent hearings of cases not dismissed, the court ordered the destruction of the firearms in 72% of cases, all when the individual did not appear in court, and dismissed 24% of the cases, all when the individual was present at the hearing."

In Connecticut, some 764 "imminent risk" gun seizures were served between October 1999 and July 2013, according to a 2014 study in the *Connecticut Law Review*. Of gun seizure orders served, 91.5% were directed at men and 8.5% were directed to women, and the average age of the individuals was 47.4 years old. Police reports associated with the Connecticut gun seizures in 1999 to 2013 indicated that at the time of confiscation, about 30% of the subject gun owners "showed evidence of alcohol consumption" and about 10% "indicated using prescribed pain medications." At the time the warrants were served, the majority of gun owners (60% of men and 80% of women) were sent to a local hospital emergency department for an emergency evaluation; a minority (20%) were arrested. The study noted that "In over 70% of the cases, the outcome of the hearings was unknown. For the cases with outcomes reported, the judges ruled that the weapons needed to be held by the state 68% of the time. Weapons were returned in only twenty of the reported cases. In fifteen other cases, guns were given to a family member; in thirty cases, the guns were destroyed."

In the first 16 months that Vermont's law was in effect, the state courts issued about 30 extreme risk orders.

## Federal legislative proposals

Senator Dianne Feinstein, Democrat of California, introduced a bill, the Extreme Risk Protection Order Act (S. 506), which would allow states to use grants to develop red flag laws. The legislation is supported by 25 Democratic senators and two Democratic-aligned independent senators. Senator Marco Rubio, Republican of Florida, introduced a separate bipartisan bill that would use grants to encourage the passage of state red-flag laws. Senator Lindsey Graham, Republican of South Carolina, said in 2019 that he also planned to introduce legislation to encourage states to pass red flag laws. Another proposed federal red flag law is Rep. John Katko's Protecting our Communities and Rights Act, which places on the State or petitioner "the burden of establishing by clear and convincing evidence that the respondent poses an imminent, particularized, and substantial risk of unlawfully using a firearm to cause death or serious physical injury to himself or herself or to another person."

S. 506 and other proposed bills would add persons subject to extreme risk protection orders to the list of "prohibited persons" in 18 U.S.C. § 922(g) (those persons who are prohibited from possessing a firearm). The legislation would thus make "it a federal crime for persons subject to the orders to possess firearms and for anyone else who has reasonable cause to know about the orders to sell or give firearms to them." In September 2019, the House Judiciary Committee approved amendments to the federal red flag bill to create a national red flag process.

Dudley Brown, president of the National Association for Gun Rights, has warned Trump that pushing for red flag laws could cost him the 2020 presidential election. Trump aides have gathered data showing that supporting any gun control measures could be problematic for his campaign, and Trump has made no commitment to back red flag laws.

## Judicial review

To date, red-flag laws have been upheld against Second Amendment challenges, although the amount of case law on the subject is limited. In *Hope v. State* (2016), the Connecticut Appellate Court 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." The court considered the Connecticut statute to be "an example of the longstanding 'presumptively lawful regulatory measures'" permissible under the U.S. Supreme Court's decision in *Heller v. District of Columbia*. Similarly, in *Redington v. State* (2013), the Court of Appeals of Indiana concluded that Indiana's red-flag statute did not violate the right to keep and bear arms, was not an unconstitutional taking, and was not unconstitutionally vague. A challenge is pending against Florida's red flag law.

## Support and opposition

An April 2018 poll found that 85% of registered voters support laws that would "allow the police to take guns away from people who have been found by a judge to be a danger to themselves or others" (71% "strongly supported" while 14% "somewhat supported" such laws). State-level polling in Colorado and Michigan has shown similar levels of support. A PBS NewsHour, NPR and Marist poll released in September 2019 showed 72% believe Congress should pass a national red flag law; 23% say Congress should not pass it.

Democrats and some Republicans are receptive to this law. Such laws are supported by groups that support gun control, such as Brady Campaign to Prevent Gun Violence and Everytown for Gun Safety. The latter group conducted a nationwide study showing that the perpetrators of mass shootings showed warning signs before the event 42% of the time.

Opponents of red flag laws argue that such legislation infringes on constitutional rights such as the right to bear arms and the right to be secure against unreasonable searches and seizures, and object to *ex parte* hearings. There has been debate about how soon after the ex parte hearing the adversarial hearing should be held. For example, in Virginia, state senator Glen Sturtevant argued that the legislature should consider requiring an adversarial hearing on the order within 48 hours, rather than within 14 days.

The National Rifle Association (NRA) had previously argued that red flag laws unnecessarily hamper the right to due process of individuals who are restrained by them, and worked to defeat such legislation in Utah and Maryland. In a March 2018 policy reversal, the NRA suggested that it might support such laws, but conditioned any openness to such laws on an extensive list of conditions, including a judicial finding by "clear and convincing evidence" that the person poses a significant risk of danger. The NRA did not identify any federal or state red flag laws that it supported, and even after its March 2018 announcement continued to work to defeat or weaken red flag bills introduced in state legislatures. In summer 2018, the NRA mobilized to defeat red-flag legislation proposed in Pennsylvania because it objected to allowing initial hearings *ex parte*. In Arizona in 2019, the NRA ghostwrote an opinion piece for sheriffs to submit to the local press stating their opposition to the legislation. A 2019 study by gun rights advocate John Lott found red flag laws have no significant effect on murder, suicide, the number of people killed in mass public shootings, robbery, aggravated assault, or burglary.

One concern with red flag laws is that they may infringe dissidents' freedom of speech. Matt Olsen, former director of the National Counterterrorism Center during the Obama administration, has said that Senator Kamala Harris's proposed domestic terrorism prevention orders legislation should include a provision that a person cannot be deemed a domestic terrorist solely based on First Amendment-protected activity.

Some counties and cities have adopted "Second Amendment sanctuary" resolutions in opposition to red flag laws. As of 2019[update], some 75 jurisdictions have declared themselves sanctuaries that oppose emergency protection orders and enforcement of gun background checks, at times with assistance from the NRA.

In the wake of the El Paso, Texas shooting and Dayton, Ohio shooting of August 4 and 5, 2019, President Donald Trump called on states to implement red flag laws to help remove guns from "those judged to pose a grave risk to public safety."