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.[1] Refusal to comply with the order is punishable as a criminal offense.[2][3] 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.[4][5][6]

For laws that required drivers of early automobiles to take certain safety precautions, see Red flag traffic laws.
  States with red flag laws
  States with anti-red flag laws

Orders issued under "red flag" laws, also called risk-based gun removal laws,[7] are known by several names, including Extreme Risk Protection Orders (ERPOs) (in Oregon, Washington, Maryland, Vermont, and Colorado); Extreme Risk Firearm Protection Orders (ERFPO) (in New Mexico); Risk Protection Orders (in Florida); Gun Violence Restraining Orders (GVROs) (in California); risk warrants (in Connecticut); and Proceedings for the Seizure and Retention of a Firearm (in Indiana).[8] As of April 2020, 19 states and the District of Columbia have enacted some form of red-flag law.[9] The specifics of the laws, and the degree to which they are utilized, vary from state to state.[10]

History and adoption

In 1999, Connecticut was the first to enact a red flag law,[11] following a rampage shooting at the Connecticut Lottery.[12] It was followed by Indiana, which adopted its legislation—called Jake Laird's Law, after an Indianapolis police officer was fatally shot by a mentally disturbed man[13] in 2005.[11][14] Subsequent red-flag laws were adopted by California (2014), Washington (2016), and Oregon (2017).[11] 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.[12]

Before 2018, only the above-mentioned five states had some version of red flag laws.[15] After the Stoneman Douglas High School shooting in Parkland, Florida, in 2018, that number more than doubled, as more states enacted such laws:[16][17] Florida,[18] Vermont,[19] Maryland,[20] Rhode Island,[21] New Jersey,[22] Delaware,[23] Massachusetts,[24] Illinois,[25] and the District of Columbia.[26]

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.[27][28] In addition to allowing police and family members to petition for entry of an extreme risk protection order,[27][28] the law also allows teachers and school administrations to file such petitions, making New York the first state to include such a provision.[29] Three other states enacted red-flag laws in 2019: Colorado,[30] Nevada[31] and Hawaii.[32][33][34] The Colorado, Nevada, and Hawaii laws all went into effect on January 1, 2020.[35][36][37]

In 2020, New Mexico became the 18th state to adopt a red-flag law, after Governor Michelle Lujan Grisham signed legislation on February 25, 2020. New Mexico's law will go into effect on July 1, 2020.[38][39]

In Virginia, the state's General Assembly, then controlled by Republicans, voted down red-flag legislation in its January 2019 session.[40] After the Virginia Beach shooting later that year, 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.[41] After the Democrats won control of both chambers of the General Assembly in the fall 2019 elections, for the first time in more than two decades, Northam vowed to reintroduce gun control proposals, including a red flag bill.[42] The General Assembly subsequently passed an "extreme risk protective order" (red flag) law, on a party-line vote in the Senate[43][44] and a nearly party-line vote in the House of Delegates.[45] Northam signed the legislation into law in April 2020, alongside four separate gun measures.[46][47]

Proposed or pending legislation

Other state legislatures considered similar legislation.[48][5][49][50] In 2019, red-flag bills were being considered, but did not pass the following states:

  • North Carolina: Since 2018, red flag bills introduced by North Carolina Democratic legislators have been defeated or stalled in committee the Republican-controlled state House.[52][34] North Carolina's governor, Democrat Roy Cooper, supports the legislation.[52]
  • Ohio: After the Dayton shooting, Ohio's Republican governor, Mike DeWine, announced that he wanted Ohio's Republican-controlled legislature to pass a red flag law.[53][54] Two months later, however, DeWine retreated from this proposal.[54]
  • Tennessee: A red-flag bill had been introduced in the Tennessee Legislature, but in 2019 the Republican-controlled legislature has declined to take up the bill, and Governor Bill Lee has not committed to support it.[55]
  • Similar legislation was proposed, but did not pass, in Pennsylvania,[56] Michigan,[57] Nebraska,[58] and Kentucky.[59]

In 2020,

  • New Hampshire: The Democratic-majority New Hampshire Legislature passed a red-flag bill, but it was vetoed by Republican Governor Chris Sununu.[60]

Provisions

A 2018 American Psychiatric Association resource document on risk-based gun removal laws notes that all such laws are "designed to address crisis situations in which there is an acute concern about an individual's access to firearms" but the specific provisions of such laws differ from state-to-state, varying on matters such as "who can initiate the gun removal process, whether a warrant is required, what factors the court must consider before ordering firearm removal, what must be proven in court, how long the firearms are restricted, and what process is used to restore the individual's firearm access."[61]

For example, in Indiana, only law enforcement may petition for an order.[62] In contrast, in Oregon, any person living with the person of concern may file a petition.[62] 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.[12][63] Similar legislation, however, was signed into law by Governor Gavin Newsom in 2019; the legislation, which went into effect January 1, 2020, expands the list of people who may request GVROs to include "an employer of the subject of the petition"; "a coworker of the subject of the petition, if they have had 'substantial and regular interactions with the subject for at least one year' and have obtained the approval of the employer"; and "an employee or teacher of a school that the subject has attended for the last six months, if the employee or teacher has obtained the approval of administrators."[64]

In California, it is a misdemeanor offense for a person to file a GVRO petition "knowing the information in the petition to be false or with the intent to harass."[65]

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."[66] 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."[66]

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."[67] 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 non-firearm suicides."[67]

A preliminary case series published in the Annals of Internal Medicine in 2019 analyzed the use of ERPOs in California, and found that the cases studied suggest that California's red-flag law, as a form of "urgent, individualized intervention ... can play a role in efforts to prevent mass shootings."[65]

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.[68]

Usage

In Florida, red-flag orders were granted 2,227 times between March 2018 (when the law took effect) and July 2019. State judges granted petitions for temporary orders about 97% of the time and granted petitions for final orders 99% of the time.[69] In many cases (up to 90% in Broward County) the respondent agrees to the order.[70] The volume of petitions varies from county to county.[69]

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.[71][72]

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.[73] 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.[74]

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."[75]

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.[76] Of gun seizure orders served, 91.5% were directed to men and 8.5% were directed to women, and the average age of the individuals was 47.4 years old.[76] 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."[76] 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.[76] 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."[76]

In the first 16 months that Vermont's law was in effect, the state courts issued about 30 extreme risk orders.[77]

In the first 22 months that Oregon's law was in effect (January 1, 2018–October 31, 2019), 166 petitions were filed in Oregon for a extreme risk protection order. Of the 166 petitions, 112 were for people at risk of suicide and 39 related to domestic violence; 26 petitions involved both a suicide risk and domestic violence.[37] An Oregon Public Broadcasting review found that the petitions concerned individuals in crisis, with the majority of petitions citing "multiple factors such as threats of violence, use of physical force, owning or attempting to purchase deadly weapons, prior convictions and use of controlled substances."[37] The Oregon courts granted 122 petitions (73% of those filed). The remaining 44 petitions (27% of those filed) did not result in issuance of an order, either because a judge denied the petition (in 32 cases) or the request was withdrawn (in 12 cases).[37] Counties varied widely in level of usage of the process: the most petitions were filed in Washington and Multnomah counties, respectively, while 11 counties did not issue any ERPOs and 7 counties issued a single ERPO.[37]

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.[78][79] Senator Marco Rubio, Republican of Florida, introduced a separate bipartisan bill that would use grants to encourage the passage of state red-flag laws.[78] 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.[62] Another proposed federal red flag law is Rep. John Katko's Protecting our Communities and Rights Act,[80] 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."[81]

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).[82] 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."[82] In September 2019, the House Judiciary Committee approved amendments to the federal red flag bill to create a national red flag process.[83]

While campaigning for the Democratic nomination for president in 2019, Senator Kamala Harris of California called for legislation to create "domestic terrorism prevention orders," which would "give law enforcement and family members of suspected white nationalists or domestic terrorists the ability to petition a federal court to temporarily restrict a person's access to guns if the person exhibits clear evidence of being a danger."[84] In states with red-flag laws, individuals making credible threats of violence can already be subject to gun-removal orders.[84] Matt Olsen, former director of the National Counterterrorism Center during the Obama administration, has said that should Harris's proposal move forward, it would be important for the legislation to specify that a person cannot be deemed a domestic terrorist solely based on First Amendment-protected activity (such as openly stating white nationalist beliefs).[84]

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.[82] 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."[82][85] 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.[82][85] 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.[82][86] In Davis v. Gilchrist County Sheriff's Office (2019), the Florida First District Court of Appeal also rejected a challenge to Florida's red-flag law, holding that the law is constitutional and does not violate the right to due process.[87][88] A lawsuit is pending challenging Nevada's red flag law.[89]

Support and opposition

Public opinion

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).[90][91] State-level polling in Colorado and Michigan has shown similar levels of support.[92][93] A PBS NewsHour/NPR/Marist Poll released in September 2019 showed that 72% of Americans supported passage of a federal red-flag law, while 23% were opposed.[94]

Advocacy groups and elected officials

Democrats and some Republicans are receptive to this law.[1] 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.[17]

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,[95] and object to ex parte hearings.[96][97][98][99] 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.[100]

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,[48] and worked to defeat such legislation in Utah and Maryland.[101] 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,[49][101] including a judicial finding by "clear and convincing evidence" that the person poses a significant risk of danger.[101] The NRA did not identify any federal or state red flag laws that it supported,[101] and even after its March 2018 announcement continued to work to defeat or weaken red flag bills introduced in state legislatures.[102] In summer 2018, the NRA mobilized to defeat red-flag legislation proposed in Pennsylvania because it objected to allowing initial hearings ex parte.[102] In Arizona in 2019, the NRA ghostwrote an opinion piece for sheriffs to submit to the local press stating their opposition to the legislation.[103] 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.[104]

The ACLU of Rhode Island argued against such a law, stating that "People who are not alleged to have committed a crime should not be subject to severe deprivations of liberty interests...in the absence of a clear, compelling and immediate showing of need. As well-intentioned as this legislation is, its breadth and its lenient standards for both applying for and granting an ERPO are cause for great concern."[105]

Some counties and cities have adopted "Second Amendment sanctuary" resolutions in opposition to red flag laws.[103][106][107] As of 2019, 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.[103]

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."[62] However, Trump did not endorse any particular piece of legislation, and Republican Senate Majority Leader Mitch McConnell has said he would allow gun legislation to be brought to the Senate floor only if it gained Trump's support.[108][109] Gun rights groups mounted a campaign to discourage Trump from supporting red-flag laws or other gun-control measures, saying that pushing for red flag laws could cost Trump the 2020 presidential election.[110][108] In November 2019, Trump abandoned the idea of putting forth red-flag law proposals or other legislation to curtail gun violence.[111]

Oklahoma anti-red flag law

In May 2020, Oklahoma became the first and thus far only state to enact an anti-red flag law. The law specifically "prohibits the state or any city, county or political subdivision from enacting red flag laws."[112][113]

See also

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