It’s become a common refrain after high-profile mass shootings: could red flag laws have prevented this?
On the books in less than half of US states, red flag laws vary from place to place but generally require that people who are deemed a threat to themselves or others turn over their guns for a certain period of time. While research shows they lead to significant drops in firearm suicides, and may also have prevented dozens of mass shootings, the concept is frequently rebuffed by Republican politicians, who say they infringe on due process rights.
On Saturday, the vice-president, Kamala Harris, announced that the White House has created a new national office to help states implement red flag laws, an initiative funded by the justice department. The announcement comes after Joe Biden’s establishment in September of the White House Office of Gun Violence Prevention, which Harris is leading. In announcing the office, Harris called on the states without red flag laws to enact them, citing their ability to prevent mass shootings.
Here’s a look at how red flag laws actually work, their potential to prevent gun violence – and the right’s efforts to undo them.
What are ‘red flag laws’?
A red flag law refers to a civil proceeding that allows people – usually police officers and family members – to petition a judge for an emergency order that would temporarily remove firearms from a person found to be at risk of harming themselves or someone else. Depending on the state, these are also called extreme risk protection orders (Erpos), extreme risk laws or gun violence restraining orders. Though names vary, they broadly operate in the same ways and are modeled after domestic violence restraining orders (DVROs) that are meant to protect victims of household or intimate partner violence.
The first Erpo law was established in Connecticut in 1999, one year after a 35-year-old accountant at the state lottery killed four of his bosses before turning his firearm on himself. The second law was put in place five years later in Indiana.
Since the mid- to late 2010s, following several high-profile mass shootings on school campuses and other public spaces, the number of states with some type of red flag law grew, mainly across blue states like Oregon, New York, Connecticut and Minnesota, but also in Florida and Nevada.
In all 21 states where Erpos exist, law enforcement is eligible to petition a judge for an order – and in some states, such as New Mexico and Florida, they’re the only ones eligible to do so. In other states, such as California, Colorado and Hawaii, eligible petitioners include family members, teachers and medical professionals. Though routinely invoked by news media, officials and commentators in the wake of a high-profile mass shooting, Erpos are also used as suicide-prevention tools.
How do Erpos go from petition to firearm removal?
Upon learning that someone is threatening to harm themselves or another person, and they know or believe that person has access to a firearm, a petition can be submitted to a judge. The judge will evaluate whether the situation warrants an immediate order based on the specificity of the threats and access to a firearm. If the judge finds that the risk of violence is high, they can issue an emergency ex parte order, which will go into immediate effect without the subject of the order being present or notified in advance. In this case, the subject of the petition can request their guns back from law enforcement, which then conducts a background check before returning the firearms.
The emergency order requires an immediate surrender of firearms for two weeks until an evidentiary hearing is held, during which the subject can present evidence that they are not a threat. The judge can uphold the order, in which case the person’s guns continue to be withheld, usually for a year, and then returned. If the judge accepts the subject’s defense, they can get their guns back immediately.
What does due process mean in this context?
Due process is established by the 14th amendment of the US constitution and guarantees that someone whose constitutional rights will be affected has a right to be notified and able to participate in legal proceedings. In the context of gun seizures based on extreme and immediate risk, this right is weighed against public and private interest, which in the case of Erpos is the physical safety of the gun owner and the community.
Erpos aren’t the only arena in which someone can be subject to a court action before they have their day in court. A similar process is used with restraining orders, in which someone is barred from being in the same space as another person, under threat of arrest and jail time.
And while the initial emergency ruling to take someone’s guns happens without a hearing, a long-term order isn’t put into place until a hearing is held. Usually it is set for one to three weeks after the ex parte order. During these hearings, people have the opportunity to appear before a judge to present evidence that refutes the original petition. They can hire representation or speak for themselves, but people subject to these orders are not offered a public defender since Erpos are civil, not criminal, matters.
Have these orders been effective?
While there is no centralized data on the use of Erpos, state-level research suggests these laws have an impact on suicide and mass-shooting prevention.
According to research on extreme risk laws in Indiana and Connecticut, two of the first states to establish Erpo laws, these orders were credited with 13% and 7% decreases in firearm suicides between 1981 and 2015, respectively. In California, which established its gun violence restraining order law in 2016, the orders were used 58 times when mass shootings were threatened. Six of these cases involved minors who had planned to target schools, according to the violence prevention research center at the University of California, Davis.
It’s difficult to get a picture of the universal effectiveness of Erpos because most of the state statutes are less than a decade old and can take years to implement through education among the public and law enforcement.
What have the challenges to implementation been?
Experts say that Erpos are only as effective as their implementation, which requires education campaigns to let people know these laws exist and how to file for an order. This effort has to reach all of the systems and individuals involved in the process. This includes judges, administrative staff, law enforcement officers and advocates who walk petitioners through the Erpo process.
In February 2023 the US Department of Justice doled out $231m to support states’ Erpo and other crisis response programs.
Since 2010, 1,200 US counties across 42 states have declared themselves “second amendment sanctuaries”, where law enforcement won’t adhere to any gun policy that it believes violates the second amendment.
As red flag laws expand throughout the country, starting in the late 2010s, questions about their constitutionality have consistently come up from gun rights advocates and right-leaning officials. These debates have only grown since the US supreme court’s 2022 ruling in the New York State Rifle & Pistol Association v Bruen case, which established a new standard to determine the constitutionality of a gun law based on whether it’s consistent with “the nation’s historical tradition”.
However, the United States v Rahimi case may put the future of red flag laws at stake. The case centers on whether the second amendment rights of Zackey Rahimi, who was subject to a domestic violence restraining order for assaulting his then girlfriend, were violated. The future of DVROs and Erpos can be thrown into question if the supreme court rules that they are not in line with the historical test created by the Bruen decision.
