A ‘red flag’ law (also known as Extreme Risk Protective Orders or ERPOs), a policy that would temporarily remove firearms from people in crisis who pose a dangerous threat to themselves or others. ERPOs are evidence-based policy shown to significantly reduce suicide. They also prevent other gun deaths and injuries, such as mass shootings. 16 states and the District of Columbia have already passed red flag laws, often in the wake of a mass shooting. In the Utah, 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 the order is punishable as a criminal offense. 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.
Orders issued under “red flag” laws, also called risk-based gun removal laws, are known by several names, including Extreme Risk Protection Orders (ERPOs) (in Oregon, Washington, Maryland, Vermont, and Colorado); 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). The specifics of the laws, and the degree to which they are utilized, vary from state to state. A “red flag” law is only as good as the enforcement behind it. And depending on the state, the law does not always guarantee enforcement of the order. That often depends on the resources and awareness of local police and sheriffs. In some states, these laws are used widely and enforcement is swift, while in others, they aren’t used much at all. In some cases, it’s a matter of education. Neither the community nor law enforcement may be aware that “red flag” laws are an option in their state. In other areas, law enforcement has dedicated staff and trainings for police. And in some jurisdictions, law enforcement doesn’t support the laws, and aren’t proactive in making the option known to residents.
What Does A ‘Red Flag’ Law Do?
When a person is in crisis and considering harming themselves or others, family members and law enforcement are often the first people to see the warning signs. Extreme Risk laws sometimes referred to as “Red Flag” laws, empower loved ones or law enforcement to intervene in order to temporarily prevent someone in crisis from accessing firearms. These laws can help de-escalate emergency situations and are a proven way to intervene before gun violence such as a firearm suicide or mass shooting takes more American lives. States around the country are increasingly turning to Extreme Risk laws as a common-sense way to help reduce gun violence. ‘Red flag’ laws, or Extreme Risk Protection Orders (ERPOs) allow family members, law enforcement or other third parties to ask a court to temporarily remove a person’s guns if they’re concerned about the individual. If a judge finds that person is dangerous to himself or others, that person must surrender all firearms to the police for a specified period of time. During that period of time, the person is also not allowed to buy or sell guns.
What A Red Flag Law Doesn’t Do
It is a temporary order, so it does not permanently keep guns away from individuals who might cause significant risk. The window of time it’s in effect depends on how the law was written in your state.
Why Do Some Gun Rights Supporters Oppose These Laws?
The National Rifle Association (NRA) supports the “idea” of “red flag” laws but opposes how they’ve been enacted in states across the country, saying they infringe on due process rights. This is because the hearings to decide if an individual is dangerous are held “ex parte,” which means the person whose guns are temporarily removed does not have to be present at the time of the hearing. This isn’t unusual. Restraining order hearings are often held “ex parte.” The issue has also become a point of contention for gun rights advocates as a sign of government overreach.
Do ‘Red Flag’ Laws Work?
Unless otherwise stated, Guns & America defines a mass shooting as the shooting of two or more people in a single incident, in a public place. This definition excludes crimes of armed robbery, gang violence, or domestic violence, focusing on cases in which the motive appears to be indiscriminate mass murder. There hasn’t been a great deal of research on the effectiveness of these laws, mostly because they are relatively new. And we don’t know yet how these laws can affect future violence or homicides. However, the studies we have so far suggest these laws can at least reduce gun suicides, which make up 60% of the nation’s total annual gun deaths. One argument for “red flag” laws is they may be used as a tool to reduce mass shootings. And according to the most recent report from the FBI, more than a third of mass shooters killed themselves. While mass shootings are rare, and thus hard to study, one hypothesis is that “red flag” laws could target this group by giving those closest to them an opportunity to take action before something happens.
Which States Have Red Flag Laws?
There are currently 17 states and the District of Columbia with red flag laws. They include the following:
• California
• Colorado (goes into effect on January 1, 2020)
• Connecticut — the first state to adopt a red flag law, Connecticut adopted the law in 1999. A state’s attorney or any two police officers may file a complaint.
• Delaware
• Florida
• Hawaii (goes into effect on January 1, 2020) — In addition to law enforcement and family or household members, medical professionals, educators or colleagues may file a petition.
• Illinois
• Indiana
• Maryland — In addition to law enforcement and family or household members, medical professionals are allowed to file petitions.
• Massachusetts
• Nevada (goes into effect on January 1, 2020)
• New Jersey
• New York — In addition to law enforcement and family or household members, school administrators or their designees may file a petition.
• Oregon
• Rhode Island
• Vermont
• Washington
The law, passed in 2019, includes an appeals process, a prompt evidentiary hearing and provides a burden on the petitioner to meet a certain standard of evidence. There are at least five more states with red flag bills under consideration. A federal bill has been discussed that would set up a grant program to assist states in adopting red flag laws. Local law enforcement agencies could use those funds to hire and consult mental health professionals before issuing Extreme Risk Protection Orders.
HOW DO EXTREME RISK (RED FLAG) LAWS PREVENT GUN VIOLENCE?
In the aftermath of a shooting incident, we often hear stories from friends or family members about “red flags” the shooter exhibited. That’s because there are often warning signs, red flags, prior to these acts of violence, and knowing them can save lives. Sandy Hook Promise has evidence-based programs to teach people to know the Signs and how to act to help prevent gun violence. Extreme risk protection orders (ERPOs), sometimes known as “Red Flag Laws,” empower family members and law enforcement agencies to prevent gun violence and gun-related suicides. The intent of these laws is to reduce risk and protect people in crisis from harming themselves or others, not to further stigmatize them. Therefore, members of the gun violence prevention movement call these laws “extreme risk laws” or “extreme risk protection orders.”
WHAT ARE EXTREME RISK LAWS?
Under such a law, family members and law enforcement officials can petition a court to temporarily separate at-risk individuals from firearms. If the judge finds the person poses a significant danger of injury to self or others, the judge will order that the firearms be temporarily placed in safe storage until the person is safe. Studies have shown that these laws work. Recent research found that for every 10 to 20 ERPOs filed, at least one life is saved from suicide.
Why Are Red Flag Laws Controversial?
One reason red flag laws are controversial is because, in some states, the person that is the subject of the order has no knowledge of the petition or order. Therefore, there is no ability to defend himself or herself against the accusation prior to the property being confiscated and losing the rights to purchase or possess firearms. A person who has not committed a crime has his or her guns confiscated, seemingly in violation of the constitutional right to due process. There is typically a full hearing within 21 days, at which the subject of the order may present his or her own evidence or respond to any evidence presented. There is also a concern regarding the opportunity for these petitions to be abused or “weaponized” by former partners or family members. Some states, like Rhode Island, have created penalties for providing false evidence. In addition, the subject of the order is presumed to be guilty and forced to go to court to prove his or her innocence.
What’s the Difference Between Red Flag Laws and Other Gun Prohibitions?
Federal law—and many state laws—already make it a crime to possess a gun if you:
• have been convicted of certain crimes (including most felonies and domestic violence misdemeanors)
• had a domestic violence restraining order issued against you, or
• have been committed to a psychiatric facility or found by a court to be mentally ill.
The problem with these laws, according to many anti-gun violence activists, is that they don’t allow preventative measures when people haven’t yet been subject to legal proceedings but are showing signs that they’re likely to use guns to hurt themselves or others. That scenario is very common, according to a 2018 FBI study of active shooters. Modeled on domestic violence restraining orders, ERPOs are meant to prevent gun violence outside of the home (as well as suicide with a gun) by temporarily removing access to firearms by people who’ve been identified as dangerous, regardless of their criminal history.
Who Can Request Extreme Risk Protection Orders?
In most states with red flag laws (including California and New Jersey), both law enforcement officers and family or household members may file petitions for ERPOs (sometimes called gun violence or firearms restraining orders). Some states (like Florida and Indiana) limit these petitions to law enforcement only. A few others allow other community members to petition for ERPOs (such as certain health workers in Maryland or school administrators in New York).
How Long Do Firearms Restraining Orders Last, and What Proof Is Needed?
Although the requirements and procedures vary from state to state, people who request EPROs typically must sign an affidavit spelling out specific facts that make them believe the respondents pose an immediate risk of injuring themselves or others with a firearm. When courts decide whether or not to grant the petition, the level of proof required depends on the state and whether it’s a temporary or final order.
Temporary ERPOs
Generally, courts will promptly decide whether to issue an emergency order based on the affidavit and other information that’s provided. If the order is issued “ex parte” (meaning the respondent isn’t present), the court usually will make its decision based on whether there’s reasonable or probable cause to support the petition. The standard of proof may be higher in some states or when a family member filed the petition. Ex parte ERPOs last a short period of time, ranging from one or two days in Maryland to 21 days in California and Oregon.
Final ERPOs
After the respondent has received notice and an opportunity to object at a hearing, the court will decide whether to issue a final ERPO. Because these orders last longer, state laws almost always require a higher standard of proof supporting the petition, like clear and convincing evidence. Most final ERPOs last up to a year, although they may be renewed or lifted after a hearing. If you’ve been served with a temporary ERPO, you should strongly consider speaking with a criminal defense lawyer as soon as possible. An experienced lawyer can represent you at the hearing and help you gather the evidence you need to challenge the order—or to lift an order that’s already in place.
When May Authorities Confiscate Guns Under Red Flag Laws?
Often, ERPOs simply order respondents to turn over their guns to law enforcement officers or agencies, so enforcement of the orders depends on their cooperation. Some states, such as Maryland and Florida, address this gap by authorizing search warrants to seize any guns that respondents possess, but only if there’s probable cause to believe they didn’t surrender a firearm in their possession. In a few other states, like Illinois and New Jersey, law enforcement may obtain a warrant at the same time as the ERPO—meaning that officers will search for and seize the guns when they serve the orders.
Second Amendment Sanctuaries: Can Local Law Enforcement Refuse to Enforce Red Flag Laws?
Before Colorado passed its red flag law in 2019, sheriffs in many of the state’s rural counties approved so-called “Second Amendment Sanctuary” resolutions, declaring that they wouldn’t enforce the new law. They followed similar moves by county sheriffs in Oregon, Nevada, and other states. It’s not clear yet what state officials will do if sheriffs follow through on their threats, although they have vowed to uphold the rule of law. But even without explicit sanctuary declarations, enforcement of these laws has often been uneven.
Utah has proposed its own ERPO law, a strong measure that protects Second Amendment rights while saving lives and helping people in crisis get the behavioral health treatment they need. The measure was developed with input from a huge number of stakeholders, including mental health, suicide prevention, law enforcement, courts, domestic violence prevention and gun owners. As a way to prevent at-risk and violent individuals from harming themselves and others, one Utah lawmaker has reintroduced a bill that would allow a judge to order the temporary confiscation of those individuals’ firearms and ammunition. A so-called “red flag” gun law, designated as 2019’s HB 209, Extreme Risk Protection Order, is sponsored by Layton Republican Rep. Stephen Handy. Handy introduced a similar bill last year in the waning days of the legislative session and didn’t get very far.
Gun Confiscation Attorney
When someone has taken your guns, call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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