Over the past few years, “Red Flag” laws have been one of the hottest topics in the gun control debate. There’s been a massive push for lawmakers to “do something” and prevent weapons from falling into the hands of people who have mental illnesses. But Red Flag laws are not a new concept, and the issue of how to keep guns out of the hands of individuals who have a mental illness is one that gun rights advocates and politicians have been debating long before the media covered it extensively.
If you’ve ever listened to anyone talk about gun control, you’ve probably heard the term “Red Flag law.” But what are these laws? What do they accomplish that existing regulations don’t? Most importantly, how do Red Flag laws affect law-abiding people like you?
What Are Red Flag Laws?
Red Flag laws are intended to preemptively disarm people who show warning signs that they could be dangerous to themselves and/or others. The term “Red Flag law” is actually a collective nickname for the various court orders states have in place, including: Extreme Risk Firearm Protection Orders (ERFPO), Risk Protection Orders (RPO), Extreme Risk Protection Orders (ERPO), Gun Violence Restraining Orders (GVRO), and risk warrants. When information emerged that there were warning signs that the shooter at Marjory Stoneman Douglas High School in Parkland, Florida in 2018 had mental health issues, legislators across the country began pushing for laws that would take guns away from individuals whose behavior raised a “red flag.”
Some states with Red Flag laws allow a court order to not only remove someone’s current firearms, but to also prevent them from owning, purchasing, possessing, or transporting firearms and ammo while the order is in place. Generally, there’s an initial order that is enforced for a certain amount of time, which varies by state, and most jurisdictions allow the extension of these orders if the person is still deemed at risk of violence to self or others.
How Do Red Flag Laws Work?
The Red Flag law process begins when an authorized party petitions a court to temporarily remove firearms from someone they believe to be a danger to themselves or others. The list of eligible petitioners varies by state but can include law enforcement officials, family members, household members, school officials, health care workers, or even coworkers.
After a petition is filed, the court will hold a hearing in which the concerned party provides evidence to support their claim that the person in question (the “Respondent”) is at risk of harming themselves or others. States use two main standards of proof in these hearings:
- Preponderance of the evidence, or
- Clear and convincing evidence.
(For context, these standards are both lower standards of proof than “beyond a reasonable doubt,” which is the standard required in a criminal trial.)
If the order is granted, the judge may issue a warrant allowing law enforcement officials to search the Respondent’s property and confiscate weapons, sometimes without any prior notice. At that point, most states require the police to arrange safe storage of the firearm(s) for the duration of the order.
Sometimes, the initial hearing is conducted ex parte, meaning the Respondent is not present to defend themselves. If the hearing is ex parte, then the court will schedule another hearing to take place within the following weeks, giving the Respondent the chance to fight the claims. If they’re successful in their defense, the temporary order is dismissed, and the seized firearm(s) will be returned. But if the Respondent is not successful (meaning, the judge rules against them), the order is typically extended (depending on the state).
What Happens if You Violate a Red Flag Law?
If a Red Flag order has been issued against you, then you’re prohibited from possessing firearms and ammo for as long as it’s active—even during the initial temporary period. If you come into possession of any prohibited items, you are in violation of the court order. Most states with Red Flag laws impose criminal penalties for both the unlawful possession of a firearm and the violation of a court order. These penalties differ by state but can include felonies.
For example, under California’s Red Flag law (a GVRO), a person could be prohibited from owning, purchasing, possessing, or transporting firearms and ammo for up to five years, with the potential for the order to be renewed and extended indefinitely.
How Do You Fight a Red Flag Order?
Unfortunately, there isn’t much you can do to fight a Red Flag order. As mentioned earlier, the initial hearing is often an ex parte hearing, so you’re not able to defend yourself or give your side of the story because you’re not there. Also, it’s highly unadvised—not to mention dangerous—to try and fight a Red Flag order by not cooperating with the police officers sent to execute it. Beyond the physical danger, interfering with law enforcement’s duties can lead to numerous different criminal charges.
Either way, the time and place to fight against a Red Flag law order is in court. This is when the judge will determine whether to grant or extend the order, and you have the chance to present your side of things and fight the petition. In the event that the initial order is issued ex parte, you’ll have to give up any weapons initially when police officers come to execute the order. But if your defense is successful, they will be returned.
What States Have Red Flag Laws?
As of 2023, there are 21 states (plus D.C.) that have some sort of Red Flag law in place:
- District of Columbia
- New Jersey
- New Mexico
- New York
- Rhode Island
Several other states have proposed Red Flag law measures of their own but haven’t been successful.
Oklahoma and the Anti-Red Flag Act
Of the states without Red Flag laws, Oklahoma is the only one (at the time of this writing) that has gone so far in the other direction that it has an anti-Red Flag law. The Anti-Red Flag Act (SB 1081) was signed in May 2020 amidst the flurry of Red Flag laws passed by other states in reaction to the school shooting in Parkland. Oklahoma State Sen. Nathan Dahm, author of the measure, said the reason he wanted this kind of law was because he’s concerned the federal government may try to offer grants to states or municipalities to enact Red Flag laws, but “these types of laws are a serious abuse of constitutional rights.” Likewise, Oklahoma State Rep. Jay Steagall, House author of the bill, said Red Flag laws “[strip] American citizens of their rights to due process under the law.”
Oklahoma state legislators have also argued that the current Oklahoma Victim Protective Order procedure is effective enough at keeping firearms out of the hands of those deemed dangerous.
Maine and the Yellow Flag Law
In 2019, Maine passed a sort of Red Flag law compromise that has come to be known as a “Yellow Flag” law. It’s essentially a Red Flag law, but with an additional requirement that has made it significantly more popular than the standard Red Flag laws and extreme risk protection orders. Before a court order to confiscate weapons may be issued, there must be an assessment by a medical practitioner specifically finding that the person in question poses “a substantial risk in the foreseeable future of serious physical harm” to themselves or others based on recent behaviors. In practice, this requirement makes it considerably more difficult to successfully petition the courts to have someone’s firearm(s) removed.